author: Poem's, J.

text:
    No. 8866.
    John H. Wilberding vs. Widow Daniel Maher.
    In an action for the specific performance of an agreement to sell for cash a piece of immovable property, if it is shown that the defendant, who is a widow, had purchased the pro* perty in her own name during marriage, under the régime of the community, and had in good faith believed it to be her separate property, but discovered, after her agreement to sell the same, that the property belonged to the community, and that her husband’s share of the same, which had accrued to her as his universal legatee, was affected with a general mortgage, resulting from a bond of tutorship, and if it appears that it is impossible for her to cancel said mortgage, there is a lawful excuse for the non-perfórmance of hor contract, as the same had been made by her through an error of law. The defendant is therefore released from the obligation of her contract.
    APPEAL from the Civil District .Court for the Parish- of Orleans, Lazarus, J.

      A. J. Murphy and W. S. Benedict for Plaintiff and Appellee.

      Jos. B. Hornor and F. W. Balter for Defendant and Appellant.
   The opinion of the Court was delivered by

Poem's, J.

Plaintiff seeks to enforce the specific performance of a contract evidenced by the following instrument:

“ New Orleans, March 16fch, 1882.

Received from Mr. John H. Wilberding the sum of fifty dollars, on account of agreement between him and Mrs. Widow Daniel Maher, in relation to sale of property situated No. 101 St. Ann street, between Bourbon and Dauphine streets, Second District, said sale to be for the price and sum of twenty-eight hundred dollars in cash.

“Signed: Widow Daniel Maher.”

For defense, it is urged that an unforeseen event or circumstance ' makes it impossible for the defendant to perfect the sale. She avers that the property, which belonged to the community existing between herself and her deceased husband, is burdened with ageneral mortgage of $ 1,500, resulting from her husband’s tutorship of four minor children, one of whom is yet only seventeen years of age. She acknowledges that she was aware of the tutorship aforesaid at the time that she entered into the agreement of sale with plaintiff, but she avers that the property having been purchased in her individual name, she was ignorant of the fact that, under the law, it had become community property, and as such liable for the debts of her husband, who had made her his universal legatee in his last will. She tendered the sum of fifty dollars, received under the agreement, but it was declined by plaintiff.

The case was tried by a jury, who returned a verdict against the defendant, whereupon judgment was rendered condemning her to execute a sale of the property to plaintiff, and imposing the following conditions:

u That the said defendant, Mrs. Mary Maher, widow of Daniel Maher, be ordered to execute and sign a good and sufficient deed and title to said property to said plaintiff, according to law, and the agreement herein sued upon, before Octave DeArmas, Notary Public of this Parish, and that, after having signed and executed such deed and title, and' having caused to be discharged and cancelled all mortgages or privileges recorded against and bearing upon said property, that the sum of $2,750 be paid to her by said plaintiff; and, in the event that she should fail or neglect to discharge or cancel any of such mortgages or privileges, that the said plaintiff shall be entitled to retain in his hands such portion of said $2,750 as will be sufficient to pay and discharge such mortgages or privileges remaining nncancelled, until said defendant has discharged and cancelled the same.”

The defendant appeals, and she is clearly entitled to relief.

In the first place, it is apparent on mere inspection, that the judgment does not in terms enforce the contract sued upon, which was a cash sale, but it orders a sale on entirely different terms, under which only thirteen hundred dollars are to be received in cash by the vendor, to whom the balance of the purchase price-is to be paid at an indefinite time in the future.

It is conceded by all parties, and it is undeniable, under our jurisprudence, that if plaintiff had exacted a sale under the original terms, and had been willing to take the risk of the general mortgage, the defendant could have been coerced to the performance of her part of the contract. But the plaintiff formally declined that risk, and called for a transfer under a title free of the mortgage in question.

As it was impossible for the defendant to release the property from the mortgage, and as the jury had found in favor of the plaintiff, under his prayer, it is easy to appreciate the .difficulty which the District Judge had to overcome in rendering and framing a judgment in accordance with the verdict of the jury, and to conform to the prayer of plaintiff’s petition.

While we concede that the performance which he ordered is as near an approximation to a specific performance of the contract as the circumstances of the case would admit, yet, it is nevertheless true, that the contract which the judgmeut orders is materially different from that which the parties contemplated in their original agreement.

Hence, it follows, that the execution of that judgment, on these grounds alone, is forbidden by law, as well as by justice and equity.

But, in addition to these considerations, it appears conclusively to our minds that defendant, against whom no fraud has been proved, or even alleged, has shown circumstances which legally exonerate her from the performance of her contract, which she had entered into under a palpable error of law.

The record shows that she had purchased the property in her individual name, and that, until better informed, slie bad always believed that it was her separate property, and not that of the community. She was truly informed of the existence of the facts, but she had drawn from them erroneous conclusions of law. C. C. Art. 1822.

She is, therefore, entitled to relief. C. C. Art. 1819.

Acting under similar views and guided by like considerations, this Court held, in the case of Williams vs. Hunter, 13 An. 476, that a penal clause, stipulated in a contract, could not be enforced against the defendant, who was shown to have agreed to sell a portion of a, plantation which she then believed, in. good faith, to be her lawful property, and to have subsequently discovered that she had no legal title to one-half of said property.

We, therefore, hold in this case, that the subsequent discovery of the general mortgage affecting the property, which was the subject matter of the contract sought to be enforced, c'oupled with the fact that the defendant has no means at present to release such mortgage, is a lawful excuse for the,non-performance of her contract, and that the jury erred in their conclusions.

It is, therefore, ordered and decreed that the verdict of the jury be set aside, and that the judgment of the District Court be annulled and reversed, and that there be judgment against plaintiff, rejecting his demand and dismissing his action at his costs in both,Courts.

Rehearing refused.


source: Caselaw Access Project

author: Fennek, J.

license: Public Domain

text:
    No. 8956.
    John Laughlin vs. The Louisiana and New Orleans Ice Company.
    It is now the settled jurisprudence of -the Supreme Court of the United States that, except in actions affecting personal status, or in those partaking of the nature of proceedings in rem, like suits to partition real estate, foreclose mortgages or enforce privileges or liens, substituted service, as against a non-resident, can be effectual as “ due process of law,>} under the 14th Amendment to the CQnstitution of the United States, only where, in connection therewith, property in the State is brought under the control of the court and is subjected to its disposition by process adapted to that purpose. The question being federal in its nature, former jurisprudence of this Court on this subject must yield to the authority of the Supreme Court of the United States.
    APPEAL from the Civil District Court for the Parish of Orleans. Lazarus, J.

      TP. S. Benedict for Plaintiff and Appellant.
    Geo. O. Préot for Defendant and Appellee:
    Personal service is necessary in a personal suit; substituted service by the appointment of a curator ad hoc does not constitute that “ duo process of law,” contemplated in the 14th Amendment, Constitution U. S., and is in conflict therewith. Pennoyer vs. Nefl‘, 95IJ. S. Reports, p. 714 et scq.

    Foreign corporations form a particular class of absentees specially provided for in Article 236 of the Constitution of Louisiana of 1879.
   The opinion of the-Court was delivered by

Fennek, J.

Defendant, a foreign corporation, unrepresented in this State by any aghnt having authority to receive service of process, is sued in a personal action sounding in damages. Upon the simple averment that it owns property in the State, the attempt is made to bring the defendant into court by substituted service upon a curator ad hoc appointed by the court to represent the absent person. The curator ad hoe so appointed excepted to the jurisdiction of the court, on the ground that substituted service on a curator ad hoc, in a case of this character, and unattended by any process subjecting property of the absent defendant to the control of the court, does not constitute that “ due process of law,” contemplated and required by Section 1, of the 14th Amendment to the Constitution of the United States.

From a judgment maintaining the exception, this appeal is taken. We, at first, doubted whether the objection was properly raised at this stage of the proceedings, since, in the mere prosecution of the suit, no immediate attempt is made to “deprive” the defendant of “life, liberty or property,” within the language of the amendment. We conclude, however, that if any judgment based on such substituted service would be an absolute nullity, incapable of any effect whatever against the person or property of defendant, it would be mere folly to permit the ear of the Court to be vexed with such useless and inconsequential proceedings. See Harkness vs. Hyde, 98 U. S. 478. The question is obviously one of federal constitutional law, in v.rhich practical common sense, as well as comity, require us, where we can do so without flagrant wrong to our judicial conscience, to follow the decision of the Supreme Court of the United States, since, the appellate jurisdiction granted to that tribunal would render an opposite course merely vain and nugatory.

The question in hand has been exhaustively considered in the leading case of Pennoyer vs. Neff, 95 U. S. 714, and the Supreme Court of the United States there held that, except in actions affecting personal status or in those partaking of the nature of proceedings in reni, like suits instituted to partition real estate, foreclose mortgage, or enforce lien or privilege, substitued service can be effectual against non-residents as “process of law,” only where, in connection therewith, property in the State is brought under the control of the court and subjected to its disposition by process adapted to that purpose.

Tlie very elaborate opinion of the Court and, still more, the dissenting opinion of Mr. Justice Hunt, establish that every possible objection to the doctrine was considered and overruled, and the Court has since expressly reaffirmed it. Brooklyn vs. Insurance Co,, 99 U. S. 362; Harkness vs. Hyde, 98 U. S. 476.

The former decisions of this Court maintaining an opposite view, in 19 An. 36; 29 An. 821, and perhaps others, mast yield to the above authority.

The hardship of the instant case, where the damages sued for are alleged to have been occasioned by the improper and unlawful use of property in the State belonging to the absent defendant, is recognized, but as the law of the State confers no privilege on the property for such damage, as it provides no process for subjecting the property to the control of the court as a basis of jurisdiction, and as Art. 236 of •the State Constitution, requiring foreign corporations doing business in this State to appoint a resident agent upon whom process may be served, has not been complied with, nor enforced by legislative action, we are powerless to afford relief.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 8662.
    Fannie A. Darling vs. Lehman, Abraham & Co.
    . A married woman has the right to borrow money and to secure its return by mortgage on her property, with the authority of her husband, given concurrently with that of tLe District Judge of her domicil, or without it.
    Whore judicial sanction is obtained, the creditor is relieved from the necessity of proving tho loan, and that it enured to her benefit: the burdeu is upon her, under proper chargee, to prove that she is not liable. Where the sanction is not procured, the creditor is required to make the proof.
    The authority of the Judge is cumulative, not restrictive or exclusive in character.
    The power to compromise and to sell property implies, that of giving it in payment of a just debt of the principal. What the agent could have done indirectly, he can accomplish directly.
    APPEAL from the Civil District Court for the Parish of Orleans. Lazarus, J.

      W. 8. Benedict and A. Voorhies for Plaintiff and Appellee.

      JS. J). White and Braughn, Buck & Dinkelspiel for Defendants and Appellants:
    1. The plaintiff gave her full and express power of attorney to her father, investing him not only with power to administer, but to mortgage and sell her property.
    2. The father borrowed $6,000, and secured it by mortgage on a plantation in which plaintiff was interested, as heir of her mother, jointly with her co-heirs.
    3. The proof shows that the money was used for working the plantation.
    4* A married woman does not need the authority of a judge to mortgage her separate pro. perty. She may do so with the authority of her husbaud. The Act of 1855, now C. C. 127, was intended to enlarge, not restrict, the power of married women. Bice Bros. vs. Alexander, 15 An. 54 5 Hardeu vs. "Wolf & Cerf, 29 An. 333.
    5. Having the power to act with the authority of her husband, no law restricts the exercise of the power through an agent duly appointed. Nugent vs. Starke, 30 An. 492; Calhoun vs. Mechanics’ & Traders’ Bank, 30 An. 774.
    6. The debt enured to the separate advantage of the wife. The advances were made the agent’to work her property. The mere fact that the agent bought supplies from the husband, and paid him for the advances, was not paying the husband’s debts with the wife’s money. It was simply paying a debt due him.
    7. The fact, that instead of paying the husband for the supplies bought in money, the agent paid him in a draft on.the merchant who was making the advances, and that the husband used this draft for paying his debts, does not constitute a payment of the husband’s debts with the wife’s property or money. The draft having been given the husband for the price of supplies by him sold, became the husband’s property. He paid his debts with his own. He had acquired the draft for value; it was his, not his wife’s.
    8. Be this as it may, the draft was that of a partnership; not the wife’s. The wife was a member of the partnership; the other members being her co-heirs. The partnership was distinct from its members. Paradise vs. Gerson, 32 An. 532.
    9. The claim preferred by the wife, in this cause, for revenues during the very time the plantation was worked, with the advances made to her agent, which she now seeks to repudiate, is an admission which destroys her present claim. One cannot claim the revenues and repudiate that without which revenues coaid not exist. Funches non intd* liguntur nisi deducing impensis.

   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action by a married woman to annul a dation en paiement made by her agent of her fifth interest in a certain plantation, and to recover her share of the revenues of the property from the time she parted with possession.

The defence is, that the agent had authority to contract debts in her name, to secure them by mortgage on her real estate, to dispose of her property and that, having done so validly, his acts are binding on her.

From a judgment adverse to them, the defendants have appealed.

The power of attorney from plaintiff to her father, who acted throughout as her agent, was executed with marital authorization in the notarial form. It covers some six pages and apparently was designed to provide for all imaginable contingencies. It specially delegates the power to administer, mortgage, compromise and sell.

The contention by the plaintiff seems to be predicated on the theory, that, as she was not authorized by the District Judge of her domicil to borrow money and to mortgage her property, to secure reimbursements, and, as her agent had no greater powers than she herself possessed, those who dealt with him did so at their risk and peril and can recover under no circumstance.

This is a fallacy. The theory was long since exploded.

• A married woman has the right to borrow money and to secure its return by mortgage on her property, but the exercise of that right is subordinate, as a rule, to the authority of her husband, granted either concurrently with that of the District Jndge, or without it. The authority given by the Act of 1855, now Article 127, R. C. C., is cumulative, not restrictive or exclusive in character.

In the first instance, the loan having been effected and the mortgage consented under judicial sanction, and steps being takon to enforce payment of the debt, with the security attached, the creditor is relieved from the necessity of seeing and of showing that the loan enured to the benefit of the married woman. The burden rests upon her, under proper charges of non-liability, implicating the creditor, to show that she is not indebted.

In the second instance, in which judicial authority was not obtained, it is incumbent on the creditor seeking payment to make the proof. 15 An. 54; 22 An. 457; 26 An. 402, 714; 29 An. 337; 30 An. 492; 28 An. 232, 494; 29 An. 123; 31 An. 734, 832; 30 An. 774, 812, 940, 1157; 32 An. 203, 1103.

In the case at bar, as the plaintiff was not authorized by the Judge, and as the power of the agent to borrow in her name is not disputed, she must recover, unless the loan was not contracted, or, if contracted, it did not enure to her benefit.

Hence, the questions to be examined are:

Has the agent borrowed for his principal, and, if so, how much ?

Has the amount enured to the benefit of the plaintiff?

Was the debt contracted alive at the time of the settlement?

Had the agent the right or power to ratify it, by giving in payment the property of his principal?

The evidence, which it is useless to discuss, establishes satisfactorily that the defendants have advanced, at different times and in different ways, to the agent of plaintiff, sums of money and supplies which were employed to work the plantation owned by plaintiff and her four coheirs, and that the advances thus made and used, in the aggregate footed $8,796, for which the five owners were liable, subsequently swelling to $9,000.

Among the items figuring in the statements of advances are to be found drafts drawn by plaintiff’s agent, in favor of her husband, who was engaged in the grocery business in this City on defendants, who settled them, but it is proved that they were thus furnished for supplies and provisions purchased from him by the plantation manager aud Which were used for plantation purposes. Whether those drafts were paid in money by the defendants, or placed to the credit of the husband, in part payment of an indebtedness of his to them, is immaterial, as it leads to the same result.

The record discloses a telling contemporaneous circumstance, going strongly to corroborate the fact of the indebtedness, that of a proper use and application of the advances of money and supplies, and that of a fairness and propriety in the elation en paiement. It is this: that tlie other co-proprietors were parties to the acts of mortgage and transfer of the property, and are not heard to charge error or fraud, or any reason destructive of the several transactions had in the matter, or in any manner to complain of injustice, or even injury. There is not even a whisper on that subject, calculated to cast the least reflection on the dealings of the parties; none surely to assail the good faith and character of the defendants.

The power to compromise and to sell the property implies that of giving it in payment of a just debt. The agent unquestionably could have sold the property to the defendants, receiving the price with one hand and paving it out with the other, in extinction of the debt. It would have been an idle ceremony to have done so. In such a case, that which the agent could validly have done indirectly, could be legally accomplished directly.

There is no evidence that the property has netted any revenues,' susceptible of division among the co-proprietors.

The defence is well founded, and plaintiff must succumb in her action.

It is, therefore, ordered and decreed that the judgment appealed from be reversed, and that judgment be and is now rendered in favor of defendants in both Courts.

liehearing refused.


author: Manning, J.

text:
    No. 8943.
    The State ex rel. C. B. Hauk vs. H. L. Lazarus, Judge.
    The power of determining or deciding whether the facts, as set out in a bill of exception, are true, must of necessity rest with, the trial Judge. Any other rule would be impracticable, and would lead to endless disputo and inextricable confueion»
    Application for Writ of Mandamus.

      A. Drieugne and Sambola & Diteros for the Relator.

      liobt. Mott for the Respondent.
   The opinion of the Court was delivered by

Manning, J.

On the trial below of tlie suit of Hauk vs. Nicholson, the relator, wlio is the plaintiff in that suit, alleges that he requested the court,to charge the jury as set forth voluminously in the petition now before us, and at the same time excepted to. the charge as given by the court, and by agreement between counsel on both sides and the Judge, the relator was to have a few days time to draw his hills, and that within the time so allowed, his bills were drawn and exhibited to the opposing counsel, and presented to the Jndge in open court, who promised to examine them and sign them if found correct. This was in last April. He further alleges that he repeatedly requested the Judge during the summer to act on his bills, who promised to do so, but who finally, about the beginning of September, peremptorily refused to sign the bills, assigning as a reason that lie bad recently prepared a statement of the case which would serve instead of the bills.

The Judge’s version is, that his charge was reduced to writing, and after its delivery Hauk’s counsel reserved a bill to it without specifying any particular fact, and also presented nine written requests to charge, some of which he gave, and qualified or refused others—that after the verdict of the jury had been rendered, the Judge asked Mr. Ducros, one of Hauk’s counsel, whether a bill of exceptions would be prepared, who answered there would be no appeal, and that Hauk’s counsel requested the short hand writer not to translate the testimony as there would be no appeal—that nothing was done with the requests and exceptions until June, and when an appeal was taken and he was requested to sign the bills of exceptions, he refused because they dó not fairly state his ruling, but that he prepared a bill, based upon his notes taken by him on the trial, of the requests and his rulings thereon, and annexes it to his answer.

All that a Judge can bé required to do is to sign a bill that presents the facts in accordance with his recollection, and when he lias taken notes at the time instead of trusting to memory alone, there is greater assurance of accuracy. The power of determining, or rather the right of deciding, whether the facts as stated'in a bill are true or not, rests with the Judge. All courts so hold, because a different rule would be impracticable and lead to endless dispute and inextricable confusion. He is justified in refusing to hear testimony contradicting his recollection of the facts, State vs. Gunter, 30 Ann. 536; and we cannot do what we justify him in not doing. When therefore the Judge has prepared a statement of the facts and his rulings on the.law which he has incorporated in a bill, or is ready to do so, and sign it, we cannot order him to do more, since that is all he is bound to do.

The mandamus is refused at the relator’s cost.


text:
    No. 8707.
    Jose Laciano vs. B. H. Flaspoller.
    A claim of damages for an alleged tort is "barred by the claimant’s consent to and active assistance in the performance of the act whioh produced the damage.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.
    ■ H. L, Edwards and J. 8. Adams for Plaintiff and Appellant.
    J. -H. Eerguson for Defendant and Appellee.
   The opinion of the Court was delivered by

Manning, J.

This suit is for the recovery of $6,760.00, as damages for taking out of and away from the plaintiff’s shop, without warrant of law, a lot of goods which at sale by public auction realized $79.70.

The items of this demand are: *

Actual damages for the loss of goods................$ 800.00

Prospective profits....................... 960.00

Ruined credit...................................... 3,000.00

Exemplary damages............................... 2,000.00

$6,760.00

The claim is preposterous. The lower Judge found that it was unsupported, and gave judgment for the defendant.

The plaintiff had bought a lot of groceries from the defendant, and owed $500 or thereabouts for them. The defendant could get neither pay nor any satisfaction, but promises to pay only, whereupon he proposed to take back his goods or what remained of them. The plaintiff consented to it, and assisted in removing the goods to a dray and float. Whatever might have been his rights to redress for an invasion of his' shop, and amotion of his stock without his consent, he can claim nono where he has not only consented to the defendant’s removal of the stock, but actively assisted therein.

Judgment affirmed.

Rehearing refused.


author: Todd, J.

text:
    No. 8936.
    The Mayor and City Council of Monroe vs. Fred. S. Meuer.
    Violations of tho ordinances of a city, passed in the exercise of the express or implied powers vested in municipal corporations, and relating to acts not included in the criminal laws of the State, oauuot properly he regarded as crimes to Which the constitutional guarantees of prosecution, by indictment or information and trial by jury, pertain.
    The constitutional prohibition against slavery or involuntary servitude does not relate to tho mode of punishment of any class of offenders, but was directed against any attempt to reestablish the system of slavery once prevailing in some of the States, or any species of servitude resembling it.
    likewise, tbe prohibition against fixing by law the price of manual labor, refers exclusively to contract labor. Hence, where a party was sentenced by the Recorder of Monroe to pay a fine of §50 for keeping a disorderly house, and in default of payment, to work on the streets of the city at the rate of one dollar per day until the same were paid, is not illegal and void.
    APPEAL from the Recorder’s Court of the City of Monroe. Trousdale, J.

      Franldin Garrett for Plaintiff and Appellee.

      R. G. Gobi> for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

Tbe defendant was sentenced by the Recorder of the City of Monroe, after trial before him, to pay a fine of fifty dollars and costs, for keeping a disorderly bouse, and, in default of payment, to be imprisoned, and work on tbe streets at one dollar per day, until tbe fine and costs were paid.

From tliis sentence lie lias appealed, and among other defenses urged, and the only one we can notice under our limited jurisdiction, lie contends that the city ordinances and charter authorizing such sentence are violative of the Constitutions of 1868 and of 1879, and, consequently, null and void.

1. The Articles of the two Constitutions charged to be violated are those which provide for prosecution of criminal offenses, by indictment or information, and the right of trial by jury in such prosecutions; also which prohibit slavery or involuntary servitude, except for crime; and the Article in the Constitution of 1868, which prohibits the fixing by law of the price of manual labor.'

The charter in question confers on the city full and complete police authority for the preservation of the peace, good order, safety and health of the place, and also to abate nuisances.

Under this power, doubtless, the ordinance complained of against keeping a disorderly house was passed.

An examination of the authorities bearing on this interesting question satisfies us that offenses against ordinances passed in the exercise of the express or implied police powers vested in municipal corporations, and relating to minor acts and matters not inclxxded in the criminal statutes of the State, are not properly regarded as crimes, to which the constitutional provisions, relating to prosecutions and trial by jury, refer.

To insure the prompt and efficient exercise of the police authority with which municipal corporations are ordinarily clothed, the trial of offenders must be speedy, and the punishment summary, which .are impossible of attainment under the slow and formal methods of prosecuting by indictment or infoi’mation, and trial by jury.

The power or right of the legislature to confer such authority on towns and cities is expressly provided in Articles 92 and 136 of the present Constitution.

■ The distinction between crimes against the State and mere violations of municipal ordinances, and the bearing of the constitutional provisions referred to, touching the respective modes or methods for the prosecution and punishment of offenders against the same, is cleai’ly recognized by elementary writers on the subject, and confirmed by frequent adjudications. Dillon, Mun. Corp., 2d Ed., Vol. 1, pp. 451 et seq.; Cooley, Const. Lim. 596; Sedgwick, Stat. and Const. Law, 548, 549; 15 An. 190; 33 An. 1011; 4 Ga. 509; 14 Ga. 358; 38 Ga. 542; 9 Minn. 166, 186; 42 Penn. St. 89; 33 N. J. Law, 213.

2. The constitutional prohibitions against slavery or --involuntary servitude have, we conceive, no real bearing on the question before us. They were evidently directed against any attempt to reestablish slavery, such as had but recently been abolished, or any system of servitude resembling the same. This is the more evident from the exception contained in the Articles.

3. The inhibition in the Constitution of 1868, against laws fixing the price of manual labor, evidently liad reference to contract labor to be performed under contract and, therefore, has no applicability to the case before us. There is no question touching the payment of the costs.

We see no force in any of the grounds urged against the sentence appealed from.

Judgment affirmed.


text:
    No. 8586.
    State of La. ex rel. J. E. Brown vs. W. T. Houston, Judge.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a certiorari and for a /tabeas corpus.

The relator complains that he was committed to jail for ten days, for contempt of court, under circumstances which do not justify his imprisonment, and that he should be released from custody.

A copy of the commitment is attached to the application. It recites that the relator was found guilty of contempt after due trial, on rule, and it sets forth reasons in support.

A writ of certiorari lies in such cases only, from which it appears that the proceedings are absolutely null.

In the present instance, the proceeding seems to have been instituted and conducted contradictorily with the relator. The writ shows that he has had a trial, according to the forms of law, and was sentenced after hearing.

It does not appear that the regularity of that proceeding is in the least questioned.

It has been repeatedly, held that in applications for a certiorari, this Court is limited in its enquiry to au examination of the extrinsic and not of the intrinsic correctness of the proceeding; in other words, to questions of form and not of substance. It is sufficient that a court has jurisdiction, and that it has exercised it in a proper form to justify this Court in abstaining from interfering' with its action, unless in exceptional cases rarely to occur, of which that before it is not one.

The defendant Judge had a right to compel by rule the appearance before him of the relator, on a charge of contempt, to try the rule and to punish him if found guilty of the offense, by fine and imprisonment, within tlie limits fixed by law. C. P. 131, 132, 857; 32 An. 217, 549, 553, 719, 1092, 1222, 1256; 33 An. 16; Wells on Jurisd., 178 et seq.; 36 Miss. 33; 37 N. H. 451; Cooley on Torts, 422; Blackstone, B. iv; c. ix, (3) 284; 29 Wall. 505; Hurd on Habeas Corpus, 7.

While conferring upon this Court the power of issuing habeas corpus, the Constitution has expressly restricted the right to cases within its appellate jurisdiction, which was not enlarged or extended by Article 90, vesting it with a general supervision and control over inferior courts. 30 An. 672; 32 An. 1225.

Whatever may have been held, touching the right of appellate courts to review the action of an inferior court, on a question of contempt, it does not appear that it has been exercised in proceedings other than those for a habeas corpus. 24 N. Y. 75; 7 Cal. 181; 14 Gray, 226; 1 Grant’s cases, 453; 39 Penn. 30; 10 C. B. 3; 2 Daly N. Y. 530; 13 Md. 621; 34 Tex. 618; 21 C. 442; 2 Cr. C. C. R. 612.

As this Court has no power to issue a writ of habeas corpus, unless in a case in which it would have an appellate jurisdiction, and as it has none in the present instance, it follows that it cannot pass upon the validity of the action of the District Judge. This was formally decided in the case of Wood, 30 An. 672; 9 An. 522; 15 An. 120.

Conceding that the interdiction matter, or case alluded to in the commitment, is an appealable matter, that does not render the contempt proceeding itself appealable. 30 An. 672; 32 An. 1225.

We see no necessity, as the showing made does not justify it, to order either the production here of the original proceedings, or the appearance of the relator, together with the cause of his caption and detention. The averments of the petition and the recitals of the commitment accompanying it, authorize a refusal of the relief sought, on .the face of the papers.

It is therefore ordered that the application be refused at relator’s costs.


text:
    No. 8598.
    State ex rel. O’Malley vs. W. T. Houston, Judge.
   The opinion of the Court was delivered by

Bermudez, C. J.

The petition for a prohibition and the return of the defendant thereto, are, on the face of the papers, submitted for adjudication.

The relator complains that he was condemned for contempt of court, and committed to jail for ten days, under circumstances which do not justify the senteuce and his imprisonment; that in thus acting, the District Judge has usurped a jurisdiction with which the law does not vest him. He prays that a restraining order issue, and that, after due course of law, the provisional prohibition be perpetuated.

The Judge urges that the relator is not entitled to the relief sought, because a prohibition does not lie in such a case, and because the facts justify his action.

In the case of State ex rel. Brown vs. the same Judge, recently decided, which was an application for a certiorari and for 'a habeas corpus, to test the validity of a commitment for contempt of court, we declined relief for the double reason, that the proceedings assailed appeared to have been regularly conducted, and that we have no jurisdiction in matters of habeas corpus, unless in cases in which we can have appellate jurisdiction.

It appears in this instance that the acts charged as not constituting a contempt, not having been committed within the presence or hearing of the court, the rule was issued and tried contradictorily with the relator, and that, after trial, the Judge considered that under the circumstances, the defendant therein was guilty of a contempt of his authority, and ordered his confinement for ten days.

A prohibition is allowed against an inferior court only where it exceeds the bounds of its jurisdiction. C. P. 845.

The moment that such court acquires jurisdiction over a cause, it becomes vested with power to enforce it, by rendering and carrying out all orders which precede or follow judgment, and to finally adjudicate upon it.

All courts possess the inherent power of bringing to their bar and punishing for contempt of their authority, not only the parties to the litigation, the jurors, the witnesses, the officers of the court, but also offenders not connected with the controversy, whenever they impede or obstruct the process of the court, disturb its proceeding, insult its officers or commit any act which interferes with or thwarts its administration of justice. Each court has necessarily the power of determining for itself, whether the act or acts thus done constitute or not a contempt of its authority, and, where it has exercised that power and passed sentence, in the manner and form prescribed, and within the limitations fixed by law, it does not appertain to this Court, as a rule, to inquire into the facts passed upon, with a view to ascertain and determine whether a contempt was or not actually committed and to release the convicted offender. 32 An. 1256, 1225.

The regular ruling of a Judge on a question of contempt is no more revisable than his regular ruling in an unappealable case.

It is an essential, privileged and significant attribute, which should be exercised with independence, but with discretion and dignity.

It is unfortunately possible, that forgetful of his mission of peace and conciliation, a magistrate may palpably ill use that conservative power, so as to become reproachable with oppression in office, but, in such instances rarely to occur, the question of abuse of authority cannot be ‘ determined and remedied against by the process now sought. Wells:' on Jurisdiction, p. 178, § 179.

The District Judge had jurisdiction and has regularly exercised it. 0. P. 131.

Whatever may be the extent of our supervisory powers or jurisdic-. tion over inferior tribunals, we do not think that, under the showing made in this case, we should allow the relief demanded. 32 An. 1092, 1182; 33 An. 923.

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


text:
    No. 8873.
    The State ex rel. Annie Martin et al. vs. Judge of Eighth Judicial District.
   Mandamus refused, to compel a District Judge to render a particular judgment.


text:
    No. 7567.
    White, Richards & Co. vs. A. D. Grief.
   Sheriff not held liable for refusing to collect rents of seized property, under certain circurm stances.


text:
    No. 6918.
    David Wallace, Liquidator, vs. Wyche & Morgan et al.
   After dissolution of partnership, former partner cannot he cited out of his domicil.


text:
    No. 8836.
    M. T. Pitkin vs. The Sheriff et al.
   Appeal dismissed -when transcript does not contain copy of judgment appealed from.


text:
    No. 8904.
    The State ex rel. Wm. B. Berthoud, President, etc. vs. Hahn, Judge, etc.
   Suspensive appeal does not lie from decree of District Judge, accepting bond and sureties of sheriff, under certain circumstances.


text:
    No. 8847.
    John Janney vs. Silas Lillard et al.
   Mortgage granted by part owner of land, will operate upon his undivided part.


text:
    No. 8490.
    L. O’Donnell vs. T. McDermott.
   íhis case involves issues of fact only.


text:
    No. 8351.
    Mrs. D. Fleitas vs. W. F. Halsey.
   When attachment is dissolved for non-compliance with the technical requirements of the law, the attaching creditor is liable for actual damage.


text:
    No. 8630.
    G. McNeil et al. vs. Railroad Co.
   Case of gross contributory negligence on the part of the party injured.


text:
    No. 8016.
    C. F. Caruthers vs. Vaiden, Hawkins & Roberts.
   This case involves questions of fact only.


text:
    No. 8326.
    S. Hermann vs. S. Block.
   Case decided upon the preponderance of evidence.


text:
    No. 8682.
    J. A. Stevenson vs. Mrs. Cassidy and Husband.
   Damages recovered by a neighbor, from a tenant who misuses the hydrant, privies, etc.


text:
    No. 8014.
    E. D. Seixas et al. vs. T. S. Waterman et al.
   Kevocatory action prescribed by one year.


text:
    No. 8820.
    Baton Rouge Oil Works for Monition.
   Purchaser at tax sale, which is set aside, entitled to recover taxes paid by him and the value of useful improvements.


text:
    No. 8723.
    Succession of Mary Unforsake.
   The rights of an adopting parent, upon the property of an adopted child, cannot be deter* mined upon a petition, merely setting forth that the nnder-tutor is about to have au inventory taken, and praying that the order for it he stayed.


text:
    No. 8860.
    J. A. Stevenson vs. A. Shultz et al.
   Parol evidence cannot he received to establish a verbal agreement to make repairs, made at the time o$ and prior to signature of a written lease, when the latter admits the property to be in good repair and obliges the tenant to keep it so. *


text:
    No. 8062.
    J. D. Lobdell vs. Mrs. J. S. Clark.
   Appeal dismissed because the transcript does not contain the evidence on which the case was tried below.


text:
    No. 8042.
    R. F. Harrison vs. L. T. Murdock et als.
   The sureties on the bond of an officer elected for one year, cannot be held liable for acts done by him during a year different from that covered by the bond.


text:
    No. 7990.
    J. Kaiser vs. New Orleans.
   Case identical with that of Bergen vs. City of New Orleans, recently decided and reported.


text:
    No. 7574.
    T. P. Leathers vs. J. W. Cannon et als.
   A policy of insurance issued on a steamboat to cover the losses on the entire boat, owned by several parties, for the account of present owners, loss, if any, payable to one of said owners, who contracted for the insurance, will enure to the benefit of each owner of the boat in the proportion of his virile share, although the party effecting the insurance claims that he intended to insure his share only, and for his exclusive benefit.

Having received the policies stipulating to cover the whole property, for the account of present owners without objection, and having collected the insurance money under the policies thus conditioned, he will he held to have ratified the contract as evidenced by the policies.


text:
    No. 8810.
    W. D. Carmichael vs. J. B. Askew.
   Suit on joint note of husband and wife. Exception of no cause of action against the wife maintained and no appeal taken therefrom. Plaintiff cannot complain that judgment is rendered against the husband only for his virile share.


text:
    No. 8826.
    New Orleans vs. Factors’ & Traders’ Insurance Co.
   The city budget for the year 1882, having been adopted in accordance with law in December, 1881, and the license tax therein levied, being within the limits prescribed by Act No. 119 of 1880, then in force as the State license law, cannot be affected by Act No. 4 of 1882, which can have no retroactive effect.


text:
    No. 8882.
    The State vs. J. Johnson et al.
   Por an exceptional criminal case, this Court will proprio motu issue an order to the Clerk of the District Court to complete the transcript, defective by bis fault.


text:
    No. 8934.
    The State ex rel. Baumgarden et al. vs. The Judge, etc.
   A mandamus does not lie to compel a District Judge to issue a writ of possession on an ex parte application, where opposition is apprehended, where the judgment on which the application is founded does not justify the demand, and where part of the property is under the control of independent judicial authority.


text:
    No. 7954.
    U. Bourg vs. D. A. Given & Son.
   This case involves only questions of fact.


text:
    No. 8824.
    Mrs. C. H. Gibson vs. B. F. Hitchcock et al.
   Wlioro an appeal is taken by a wife, whose husband is not a party to the suit, dnd is unrep* resented by counsel of record, the signature of the bond of appeal, by the attorney of the wife in the name of the husband, is not sufficient evidence of the latter’s authorization to maintain the appeal, which must therefore be dismissed.


text:
    No. 8059.
    E. W. Burbank vs. J. H. Oglesby.
   A commercial partner cannot sue upon a particular item of the partnership business, but must provoke a settlement of the entire partnership and sue for the balance on account. Prescription therefore does not commence to run, until the dissolution of the firm.

All matters that are fairly chargeable to the partnership, and that were undertaken for its account, will be so held and charged, and the acquiesence in'and non-complaint of them during the existence of the partnership, will be considered as corroborating proof, that both partners so understood them.


text:
    No. 8709.
    New Orleans vs. F. A. Blanks et al.
   This oase involves only an issue of fact.


text:
    No. 8701.
    A. Weber vs. Brooks, Norton & Conners.
   This case involves only an issue of fact.


text:
    No. 8689.
    R. E. Rivers vs. A. Hero, Jr.
   Parol evidence admissible to,show that certain movable property was not inoluded in tile sale of a plantation.


text:
    No. 8331.
    Mrs. M. Morris vs. Union Bank.
   This case was decided upon the evidence.


text:
    No. 8066.
    Fayssoux & Coleman vs. New Orleans.
   An appeal should uot he dismissed when the deficiencies in the transcript are not attributable to the appellant.


text:
    Nos. 8065-8066.
    Bartley & Fayssoux vs. New Orleans. Fayssoux & Coleman vs. New Orleans.
   Rutnre and entirely contingent or eventual profits cannot form the basis of a judgment for damages.


text:
    No. 8063.
    T. Drouet vs. L. Leconte.
   This case involves only questions of fact, upon which the court will not disturb the finding of the jury.


text:
    No. 8927.
    Wm. Bogel vs. H. A. Peeler.
   An appellant who has obtained the consent of the appellee to the dismissal of the appeal, has the right to discontinue the motion to dismiss, as long as it has not been acted upon by the court, where it does not appear that the dismissal is the result of a compromise or contract which has vested some right in the appellee.


text:
    No. 8660.
    Ernst & Co. vs. Mrs. A. Kirsch et al.
   Tilts case involves only questions of fact.


text:
    No. 8976.
    The State vs. W. H. Wallace.
   Appeal dismissed for want of either a "bill of exception, motion in arrest of judgment or an assignment of errors.


text:
    No. 8937.
    New Orleans Water Works Co. vs. S. Hernsheim & Bro.
   This case is identical with thatoftlie City of New Orleans vs the Water Works Company, recently decided and reported.


text:
    No. 8373.
    J. Bataille vs. A. Ribet.
   An agent without compensation is hound to use prudence in administration only, and cannot be held liable for losses which such administration could not avail.


text:
    No. 8886.
    The State ex rel. H. N. McCrea vs. Livaudais, Judge, etc.
   A District Judge who orders a case to be removed from the jury to the court docket, does not exceed the bounds of his jurisdiction. A Prohibition is not the proper remedy to prevent him. from trying the case.


text:
    No. 8893.
    The State ex rel. Doran vs. Lazarus, Judge, etc.
   A mandamus does not lie to co'mpel an inferior Judge to render a particular judgment.


text:
    No. 1099.
    Mrs. H. Rush vs. G. B. Rush, Administrator.
   widow in community is not required to give bond as usufructuary of the community property*


text:
    No. 1168.
    The State vs. Moses White.
   Criminal case.

The record establishes a fair trial, legal conviction and proper sentence. The judgment Is affirmed.


text:
    No. 1171
    The State vs. Henry Dickenson.
   Criminal casa.

The record presenting no suggestion, of error, and none being assigned in this Court, the judgment is affirmed.


text:
    No. 1192.
    M. Billiaud vs. Morgan’s R. R. Co.
   This case presents the same issue as that of St. Julien vs. Morgan Louisiana «fe Texas B. B* Oo., recently decided and reported.


text:
    No. 1207.
    Mrs. S. Sandoz et al. vs. Mrs. A. Duhon et al.
   Although the allegations of the petition do not afíhmatively fix the amount in controversy as ■within the appealable sum, if these are supplemented by allegations of the defeudaut, and from both combined it appears that the object sought to bo recovered is worth more than §1000, the appeal will be maintained.


text:
    No. 1194.
    H. S. Buckner vs. Thomas Mora.
   Case of tbiid opposition dismissed on tbe exception of no cause of action.


text:
    No. 117.
    S. W. Vance et al. vs. Pickett et als.
   Motion to make new parties allowed and the case continued to next term.


author: Bisruuuracz, O. J.'

text:
    No. 8374.
    Samuel H. Kennedy vs. The New Orleans Savings Institution.
    Claims acquired by a debtor against bis creditor, with full knowledge of. the latter’s notorious insolvency and for the purpose of obtaining an undue preference, cannot be set up by the former in compensation of liis indebtedness, although the insolvency had not been previously judicially declared.
    Courts of justice cannot be asked to create a transaction or condition of things, which the law reprobates and forbids and which they would havo undone, if called upon to do so.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Thomas J. Semines and II. B. Tipton for Plaintiff and Appellant:
    1. Samuel H. Kennedy, on the thirty-first day of March, 1879, obtained the writ of sequestration, from the late Fifth District Court of the Parish of Orleans, under which writ the civil sheriff: seized and took into his possession certain mortgage notes, which he now holds, under said writ. The mortgage notes were, at the date of tho issuance of the ■writ of sequestration, in tlie possession of David Urquhart, president of said Institution. The ■writ of sequestration issued prior to the rendition of tlie judgment, by the United States Circuit Court, appointing receivers to take charge of the property and effects of said Hew Orleans Savings Institution. On the day that the -writ of sequestration issued a real tender was made to the Hew Orleans Savings Institution of the full amount duo by said Kennedy on said mortgage notes. This tender was validly made, foPowcd by a consignment, and had tho effect of a fulland complete payment. R. C. C,, Arfe. 2167; ’Walker vs. Brown, 12 A. 266.
    2. Sequestration is defined to be amandate of the court, ordering tho sheriff, in certain cases, to take into his possession and to keep a thing, of which another person has tile j>ossession, until after tho decision of a suit, in order that it be delivered to him who shall be adjudged entitled to have the propeity or possession of that thing. Obligations and titles may be sequestered when their ownership is in dispute. It. O. C. Arts, 269 and 272.
    3. In ordinary cases of attachment, or when a judicial sequestration is necessary, the law has provided an officer — to-wit: the sheriff — to take care of the property seized ,• but ho is to act only in the event of the parties failing to appoint a fit and proper sequestrator or keeper of their own selection. 411.517,524; UR. 418; 11 M. 462, 522, 523; Meshewvs. G-ould, 30 A. 163 ; Levy vs. Penny, 11 A. 540.
    4. Compensation takes place by the mere operation of law, even unknown to the debtors» The two debts are reciprocally extinguished as soon as they exist simultaneously to the amount of their respective sums. R. C. C. 2208 ¿2204); 4 A. 157; 15 A. 165; United States Reports, S. C., vol. 95 (5 Otto), pages 177 and 178; 5 Mason’s Reports 212; 2 Otto 362, High on Receivers, sec. 247, pages 163 and 164; Waterman on Set-Off, 2d edition, pages 16 and 17; Morse on Banks and Banking, page 41.
    5. Ho proceeding has ever been instituted by the State to enforce the forfeiture of the charter of tho Hew Orleans Savings Institution. It has never been divested of its corporate character and capacity. Its insolvency has never been judicially ascertained and determined. 5 R. 63; 5 A, 179 ; 16 A, 28, 29 ; 31 A. G3 ; Atclial'alaya Bank vs. Dawson, 13 L. 497; State t'.carel, Lannes vs. Attorney General, 30 A. 958; the State of Louisiana vs. Citizens’ Savings Bank, 31 A. 836 ; Baker et al. vs The Louisiana Portable Railroad Company, 34 A. 754.
    6. The Hew Orleans Savings Institution has been hold by this Court to he a bank. 32 A. 531.
    7. Our law differs from the common law doctrine, that where a check has been presented to and acceptance refused by a bank, there being no privity, the holderof the check can not sue the hank. & check duly notified to the bank constitutes an equitable assignment of the fund against which it is drawn. Case vs. Henderson, 23 A. 49. Overruled. Obiter. There is no distinction tobe made between the irregular deposit of tho customer with his factor and that of a depositor with a hank. Bank vs. Coates. 12 Reporter 514; Jackson vs. Tiernan, 15 La. 485; Gordon & Gomila vs. Muchlor, 34 A. 004; R. C. C. 2642 to 2654; (lark vs. Clark, 108 Mass. 522,
    8. Ho piovision in act Ho. 239 of 1855, entitled an act “to incorporate the Hew Orleans Savings Institution,” or the act of 1857, ameuding act Ho. 239 of 1855; or in act Ho. 105 of 1878, page 157, entitled an net “to extend tho charter of the Hew Orleans Savings Institution, with amendments,” providing tho mode and manner of its liquidation, in the event of its becoming necessary. There is no general law under which proceedings could have been hud for its liquidation. Tho only statutes under which its affairs could have been legally liquidated and settled are the acts of 14th and 26th March, 1842, and 5th \pril, 1S43. They are special laws for special purposes, and are to ho construed, together as inpani materia and apply alike to solvent and insolvent banks. These acts are in full force and effect. 31 A. 837. The second section of the act of 5th April, 1843, is in the following terms : "It shall be the duty of each of the banks of this State, at all times, to receive, in set-off or part off-set of debts due to it, its own debts, -when liquidated or past due, whether for circulation, deposits or arising from any source whatever, and whether such banks be or not in liquidation, and without reference to the date at which the debtor offering such tender may have acquired the claim by him offered in off-set.” The terms of these laws are general, and apply to all the banks of the State, whether in liquidation or not; to those which still retain their charters, as well as to those which have lost theirs and are in a train of liquidation. Tho Commissioners of the Exchange and Banking Company of Now Orleans vs. Enoch R. Mudge and another, 6 R. 396 and 397.

      Bol>ert Mott, Henry Tí. Kelly and TU. M. Hudson for Defendant and Appellee:
    1. The proceeding by sequestration in this ease is irregular, and not warranted by law. The moitgage debtor is not, upon the bare averment that his liability upon a mortgage note has been extinguished by one of the causes specified in article 739, C. P., and that he fears that the mortgage creditor will conceal, part with or dispose of the note when the note has matured, entitled to havo the evidence of indebtedness sequestered out of tbe hands of the ci editor, so as to thereby prevent him from resorting to executory proceedings to enforce tho mortgage, hut should be remitted to his sight to avail himself of the alleged ground of extinguishment of the mortgage debt in any action which ma^ be brought thereupon by the creditor or his transferee, after maturity.
    2. The Circuit Court of the United States for the District of Louisiana, having acquired jurisdiction ratione personarum of the suit of Larroque et al. vs. The Now Orleans Savings Institution, had a right to decide every question arising in that suit, and having decided to assume charge of the liquidation of tho affairs of that institution upon aver-ments oí insolvency and dereliction, and to appoint receivers of its effects, the correctness of its decision cannot be questioned here. Dillon, removal of causes, p 20; Elliott vs, Piersol, 1 Pet., 340; 'W’nyma/r vs. Southard, 10 'W'h.. 49; Livingston vs. Story, 9 Pet.. 362; P.obinson vs. Campbell, 3 AVli.. 222; Payno vs. Hook, 7 Wall, 430.
    3. The proceedings in. tbe Circuit Court wore regular and proper in the exercise of its jurisdiction as a court of chancery, the suit of Larroque et al. vs. The New Orleans Savings Institution falling plainly within the equity jurisdiction of the court. Mora-waetz on Private Corporations, p. 682; Gaylord vs. Receivers, quoted in High on Receivers, p. 39, n. 2
    4. Claims against an insolvent, acquired after insolvency, cannot he compensated against debts dire to the insolvent prior to and at the time of insolvency. Nov can exemption from the general rule he allowed in this case under the exception thereto established by Act 157, of 1842, and Act 92, of 1S43. Man ns el de Pailiat, 7 Ed. 1286 ; 3 Larombiére, p. 718, Nos. 7 and 8; 2 Zaohrió, p. 4L3, No. 32; 7 Toulliór, No. 381; Journal du Palais, Table Complemontairo, Part II, -verbo Eaitlite, Nos. 4. 5, 194.195; Bossier’s Syndic vs. Belair, 1 N. S. 484; Kenner’s Syndic vs, Sims, G N. S. 66.
    5. A Savings Bank is only an incorporated agency for receiving and investing money of depositors and if a loss of deposits is incurred, one depositor cannot maintain au action against the bank to recoveries shave. The remaining assets belong to all tho depositors. One has no better right to bo paid at the expense of the others than another. And if a depositor in such hank is indebted to it ns a borrower of its funds, ho cannot, in case of insolvency of tho bank, offset his deposit against his debt due- to the hank. Burrell vs. Savings Society, 38 Conn. 203; Osborn vs. Byrne, 43 Conn. 156.
   The opinion of the Court was delivered by

Bisruuuracz, O. J.'

On the averment that four certain notes of liis, secured by mortgage and once owned by the defendant Institution, have been paid in part, and extinguished otherwise by compensation, by operation of law; that the said notes are in the possession of the defendant, who refuses to deliver them and who may dispose of the same, the plaintiff lias obtained a sequestration thereof, praying that, in due course, they be returned to him as his property.

From an adverse judgment, the plaintiff has appealed.

The facts disclosed by the record are the following:

On the 31st of March, 1879, the defendant Institution held four mortgage notes of the plaintiff, each for $5000, on which $2500 had been paid and on which $17,500 appeared to remain due.

On the same day, the plaintiff tendered to the defendant, in extin-guishment of the debt thus owing:

1. All his rights, title and interest in and to the deposits figuring to the credit of two different deposit accounts, evidenced by a. transfer to him by the depositors of the latter’s claims to such deposits and by checks drawn by them against the funds represented by the pass books, for $16,058 38.

2. In cash, the sum of $841 62, being the difference between the amount of the deposits and the amount due on the notes ($17,500).

The Institution refused to accept the pass books, checks and cash in payment of the notes and to deliver the notes. The plaintiff thereupon deposited the books, checks and cash in a bank, subject to the order of the Institution and gave written notice to the latter of the deqrosit thus made.

The plaintiff then obtained the sequestration of the notes, which since March, 1879, have been, in some way or other, in legal custody. 32 A. 1232.

It appears further from the record, that on the 28th of February, 1879, the Institution, after being almost drained by a rim, suspended payment and gave public notice of its inability to pay its deposits.

On the 20th of March, 1879, a bill in equity was filed in the United States Circuit Court for this district, by a foreigner who was a depositor for a large amount in said Institution, alleging the insolvency of the same and praying for its dissolution and liquidation by a receiver.

On the 31st of March, following, the Court appointed receivers, who qualified on the same day and subsequently took possession of the property of the concern, realizing and distributing the proceeds thereof among the creditors, according to their respective rights.

The consideration given by the plaintiff to Pierce lbitle.r and the estate of Ann Butler, the depositors aforesaid, for the amount of deposits figuring' to their credit, on the books of the company and of their own pass books, namely, $16,658 88, and for the. checks thereagainst, was plaintiff’s own check for $5880 50; that is, thirty-five per cent of the whole amount, and an agreement to pay fifteen per cent more in case he should use the, books.

The purchase of the rights of the. depositors took place, on the 29th of March, 1879, a month after suspension and advertisement and two days before the tender already stated was made.

At that time, the Institution was not a creditor of either of the Butler depositors.

Great ingenuity and learning was displayed during the argument of the case, to show that the claim of the Institution, evidenced by the notes, had been or had not been extinguished by compensation by operation of law, it being admitted, however, on both sides, that, the defense was good or had according as the claim of the depositors were acquired before or after insolvency, with this distinction, however, that the plaintiff claimed that the insolvency had not been judicially declared and that this was essential to debar compensation; while the defendants urged that it was enough if the- insolvency was actual and to the knowledge of the plaintiff; but that, anyhow, the. insolvency had been judicially admitted and that this fully satisfied the requirement, if valid in law.

Hence it is that, the learned counsel indulged in argument in the discussion of the often mooted proposition which does not seem as yet finally decided by unquestionable superior authority: Whether service of process, or seizure, of property, confers jurisdiction.

It is not deemed necessary to discuss and determine whether the appointment of the receivers retroacted to the, date of the filing of the bill in equity and whether the jurisdiction of the. Circuit Court attached from that time.

It cannot be denied that, if on the day of the. filing of the bill in equity (March 20, 1879), the. Circuit Court had appointed receivers, and that these had taken possession of the assets of the, Savings Institution, deemed as an insolvent concern, at any time, before the purchase by plaintiff (29th of March, 1879) of the lights of the depositors, the claim in compensation could not have, been set up, for it is too clearly settled by a number of indisputable authorities, which it is unnecessary to enu-ynerate, that compensation or set-off is not admissible whore the credits or claims set up have been acquired after a surrender or cession judicially accepted or an insolvency judicially declared.

Conceding, therefore, that proposition, and yielding further, that on the 29th of March, 1879, the insolvency of the Savings Institution had not been judicially declared and that it then and. on the 33 st of March following, when the sequestration of the notes took place, still was under the control of its regular officers and had qmssession of all its assets, the question which arises and which, after all, is the only one to he solved in this controversy, is: Whether the claim of the Institution for the amount due on the notes can he compensated by the drawer and debtor thereof, with claims against it, purchased after its insolvency had become notorious and was well known to 1dm?

We deem it unnecessary to consider and determine whether Pierce Butler and the estate of Ann Butler, who were depositors, and as such, creditors, before the insolvency of the Institution had been ascertained, could or not themselves have pleaded compensation by setting up their deposits in partial or total extinguishment of a claim of the. Institution against them, if any had existed. That state of facts is not presented and the formal decision of the question is not useful in this controversy.

The difficulty, then, which is to bo solved is, whether, under the law of Louisiana, a debtor can set up in compensation, by operation of law, of the claim of bis creditor, at par, debts of the latter, acquired after that creditor has become actually and notoriously insolvent and has practically failed, although his insolvency or failure has not been followed by a judicial surrender or cession of property.

Before entering into the discussion of that question, we think it proper to dismiss at once from consideration the defense that such compensation can he pleaded successfully under the provisions of the hank acts of .1843. In relation to that subject, it is sufficient to say that such legislation referred to a class of banking institutions in existence at the time, or of similar ouch susceptible of subsequent life. It did not enter into tire mind of the Legislature to provide for money organizations which were then hardly known, are no kindred to. those in contemplation, and are not therefore reached by the acts in question.

Proceeding now with our inquiry, let it he. supposed for a moment that, instead of meeting plaintiff’s demand with a refusal, as it did, ou the 31st of March, 1879, the Institution then, under the control of its officers, had accepted in payment of the notes the pass books, the checks and the cash offered, and had surrendered the mortgage notes; and that some time later, surely within a year, the receivers had instituted suit against the plaintiff, stating the facts occurred, asking the nullity of the transaction and payment of the notes ($17,500) and the plaintiff here, the defendant there, had answered, maintaining the validity of the transaction and his right to the notes, what would have been the character of the action?

Would it not be that of actions which the law gives to creditors or to their representatives, to revoke the acts of their debtors, injurious to them, under certain stated circumstances?

Undoubtedly. And would not the issues then presented have had to be determined under the empire of principles and laws winch should and do govern in actions of the nature of that now before the Court? Assuredly.

The substantial charge and ground of complaint in the case of such revocatory action by the receivers of the Savings Institution, representing all those concerned in it, would be that their debtor (the Institution) had received in payment, at par, of a valid, active claim due it and worth every cent of its face, a counter claim which is not money, worth only about one-third of its face, from one who was aware of its insolvency, and that by such transaction, which is forbidden by law, they have sustained injury.

In such a case, the material questions to be solved would be:

1. Did the creditor of the concern l'anoto of its insolvency?

2. Has he satisfied the claim of the Institution against him in money ?

If ho knew of the insolvency and did not pay in money, the receivers would be entitled to a rescission of the transaction, and to recover the amount of the notes, less the actual dividends declared on the credits purchased against the Institution, and actually ready for payment.

The law gives to every creditor where there is no cession of goods, as well as to the representatives of all the creditors, where there is any such cession, or other proceedings by which they are, collectively represented, an action tq annul any contract made in fraud of their rights. R. C. C. 1970.

This action can only be exercised when the, debtor has not property sufficient to pay the debt of the complaining creditor, or of all his creditors, when there lias been a .cession or amj proceeding analogous thereto. R. C. C. 1971.

No contract shall be avoided by this action but such as are made, in fraud of creditors and such as, if carried into execution, would have the effect of defrauding or injuring therein. If made in good faith, it cannot bo annulled, although it prove injurious to the «'editors; and although made in bad fait]), it cannot be rescinded unless it operate to their injury. E. 0. C. 1978, 1989.

Every contract shall be deemed to haEve been made in fraud of creditors when the obligee blew that, the obligor was in insolvent circumstances and when such contract gives to the obligee, if lie be a creditor, any advantage over other creditors of the. obligor. R. C. C. 1984.

By being in insolvent circumstances is meant, that the whole property and credits are not equal in amount, at a fair appraisement, to the debts due by the party. R. C. C. 1985.

Not only contracts which dispose of property, but all others which are made, in fraud of creditors and deprive them of their recourse to the property of their debtor, come within the. provisions of the law. R. C. C. 1989.

No payment of a just debt in money shall be affected by the action, although the party was in insolvent o irewmstcmees and the person to whom he made the payment knew of such insolvency. R. C. C. 1986.

Any debtor who shall, within three months next preceding his failure, have disposed of his goods and effects, in order to give an unjust preference, to one or more over the others, shall be debarred from the benefit of the insolvent laws and the acts shall be declared null and void. R. C. 1808.

The word failure used in the Code, signifies the situation of the debtor who finds himself in the impossibility of paying his debts. Solvency is the ability to pay one’s debts. He who cannot pay all that he owes, is not solvent. R. C. C. 3556, 11, 26.

If the act consist merely in the endeavor to obtain a preference over other creditors, the party shall lose the advantage to be secured by the act, but shall be reimbursed what he may have given or paid and he shall restore all advantages he has received from the transaction. E. C. (!. 1.983.

The foregoing are the principles which should be invoked for the decision of a cause like that submitted in the present instance.

Under the textual provisions of the law, it is manifest, that it is not indispensably necessary that an insolvency or failure of a debtor be judicially declared or that he should make surrender or cession of property to entitle his creditors or their representatives to annul any act done in fraud and to the, injury of their rights. It is sufficient that he be in the impossibility of paying his debts; that the party who claims to have been benefited had knowledge of bis circumstances and if be were allowed bis pretensions be. would obtain an undue preference to the injury of the other creditors. •

It is apparent that the plaintiff in this ease hum of the failure and insolvency of the. Institution. He was informed of it by public advertisement, by the proceeding in equity, and he purchased privileged rights against, it at thirty-five cents on the dollar, which he seeks to have received at par, in payment of his debt to. the concern. If this were done, the other depositors, creditors of the. concern, to whom all the assets belong, would sustain an injury of at least sixty-five qmr cent of their interest in one. of those items, the notes due by plaintiff and would be. far from being paid in lull, while, the plaintiff’s claim would be, or nearly so.

It has been well said that Savings Institutions are incorporated agencies for receiving and loaning money on account of the owners. They have no stock, no capital. They arc places of deposit, where money can be. left, to remain or to be taken out at the pleasure of the owner. 32 Conn. 173.

They are corporations created for the benefit of the. poorer classes, to induce them to be careful,, saving and prudent. They pay interest or dividends, when any are earned, to the deposits, whoso money is invested, and made productive.

The depositors become partners and stand in the attitude of and have the same interest, as stockholders. Then funds are placed together, to be invested in the securities designated by the organizing-law and are entitled to share the profits in the proportion which their deposits and other deposits bear to the profits realized. The corporation is their agent, «'presenting their interest collectively and individually.

In the case, of Bunnell vs. Collinsville Savings Society, 38 Conn. 203, in, which a depositor was seeking to recover twenty-four per cent with which the company had credited his action, as his share, of losses maintained, the Court said, speaking of such institutions:

“ Their assets consist of loans of money made by them for the benefit of their depositors, from whom the money was derived. In case of loss, they have no property out of which it can be paid and if the claim of the plaintiff is correct, these Institutions would have to go into, insolvency and wind up their affairs whenever a loss occurs, however small it may be; in which case depositors would have to bear their- proportion of the loss. Had this institution wound up its affairs in consequence of tliat loss, the plaintiff would not have received any portion of the sum which he now seeks to recover, for his proportion of the loss would he the sum now in controversy. Why should he he benefited because the defendant did not go into insolvency? He knew when he deposited Ms money that he was placing it at hazard. He prat it into the hands of the defendant to he used substantially as his agent for his benefit and, in the use, so much of it has been lost. What ground has he to complain? The assets this Institution now has belong substantially to the present depositors. How can he obtain his loss'? Shall he be paid out of their money? Substantially, he has lost the sum he now seeks to recover by his own act, through the instrumentality of his agent and ho has no right to complain.”

In Osborn vs. Byrne, decided later by the same court (43 Conn. 156), the question presented was, whether a debtor to a Savings Institution, who, at a time when it was generally believed throughout the community that it was insolvent, had purchased at par a deposit claim against it, could set-off that deposit claim against his indebtedness to the bank.

The learned Court, after referring approvingly to previous opinions of its own touching the character of Savings Institutions and the relations between them and the depositors of money therein (32 Conn. 173; 38 Conn. 203), say:

The deposits and the loans are wholly independent of each other, so much so, that it does not appear that the one was made in consequence of the other. * * * The debts which depositors owe to the Institution in form, belong in fact to all the depositors, but neither of the depositors, nor the Institution, owe them anything more on their deposits than their just proportion of the value of the assets that the Institution owns. The difference in amount has been lost by these parties, through the instrumentality of their agent, and they have no right to require that the loss shall fall on the other depositors, who have already suffered in the same way and to the same extent.
The depositors in Savings Banks boar the same relation to each other and to the assets of the bank that stockholders in other monetary institutions do to eaóh other and to the property of the bank. Disastrous investments affect each in the same way, and in case of insolvency, all a party who owns deposits in the one case, or stock in the other, can claim, is Ms just proportion of what remains at the final winding up of the Institution.”

The case then presented and decided was one in which the deposits had been purchased at par, therefore, at a time when the suspected embarrassment of the concern had not affected the value of the deposits with it. How stronger the case of the purchase of such deposits at one-tJrird of their face or nominal value and one month after the insolvency of the concern had become a matter of public notoriety.

The same principle recognized by law, existing in Louisiana, which authorizes the revocation of acts done by an insolvent, where bad faith resulting from actual or constructive fraud exist, and where injury has been done to the creditors, prevails, and was recognized in Massachusetts a few years ago by the able Supreme Court of that State.

The Court then said:

“The case discloses a purchase of demands against an insolvent under circumstances that should prevent the purchaser from availing himself of them in set-off against a debt due from him to the insolvent and sought to be recovered by the assignee of the insolvent for the purpose of general distribution among his creditors. The present case differs from that of Aldrich vs. Campbell, 4 Gray, 284, where such purchase was made in good faith and unaccompanied by circumstances to show a knowledge that the purchase would operate to defeat the purposes and provisions of the insolvent laws. The whole arrangement, * * * preceding and connected with the purchase of these demands from creditors of the insolvent, indicates the purpose to interfere with the proper distribution of the estate of the insolvent, and is contrary to the spirit of the insolvent laws.
“ To allow this set-off would not be consonant with equity and justice to the parties interested, would directly tend to defeat an equitable distribution of the assets among the creditors generally, and would enable a debtor of an insolvent, one notoriously so, and who was about to become the subject of proceedings in insolvency, to give a preference to such creditors of the insolvent as he might be disposed to favor, making the debts available to the whole amount due, if the purchaser pleased to take them at that rate,-as he might well do if he was to be allowed their full amount as an available set-off against his own debt by the insolvent, or what would be equally objectionable, to allow the debtors of the insolvent to discharge their liabilities by a set-off acquired by purchasing the depreciated debts of the insolvent at a large discount from their nominal value.” Smith vs. Hill, 1877-8, Gray, Mass. 573.

In the subsequent case of Colt vs. Brown, 12 Gray, Mass. 233, which was an action by receivers of a bank upon a debt contracted before the institution of proceedings against the bank, the defendant was denied the right to set-off debts purchased, since their commencement.

Shaw, 0. J., there said:

“ To allow the. set-off would he inconsistent with the intent and spirit of the statutes, .and would essentially effect a preference, in favor of debtors to the bank, by enabling them to pay in a depreciated medium.” Atlas Bank vs. Nahant Rank, 23 Pick. 480; Makepeace vs. Coates, 8 Mass. 451; Crease vs. Babcock, 10 Met. 525, cited.

In his valuable work on Private Corporations, Morawetz, p. 581, § 581, says:

“ It seems clear, upon general principles, that an insolvent corporation which has ceased to carry on business, cannot distribute its assets unequally, and prefer certain creditors at the expense of others. The equitable lien of the creditors upon the corporation assets is for the benefit of all the creditors equally, and if the corporation can divest that lien so as to prefer one creditor to another, this must be done by virtue of the powers of management with which the company and its agents have been intrusted. The creditors of a corporation must, necessarily be held to have consented that the company's assets maybe used by its agents in order to carry on the business, and to further any of the purposes for which the company was formed.”

In Sawyer vs. Hoag, 17 Wall. 610, Mr. Justice Miller said:

“As soon as the company became insolvent, and this fact became known to the appellant, tlie right of set-off for an ordinary debt to its full amount ceased. It became a fund belonging equally, in equity, to all the creditors and could uot be appropriated by the debtor to the exclusive payment of his own claim.” See also, 3 Barr. Pens. 470; 6 Barr. Pens. 420; 60 Ga. 174; and others cited in note of Morawetz at foot of sec. 581.

From all those authorities, it appears that the principle recognized and applied is, that the law which has the power to annul a transaction has likewise the virtue, of preventing the same, and consequently debts purchased with knowledge of the debtor’s insolvency and reason to believe he is about to go and be. driven into insolvency and notice to the debtor of the purchase, cannot be set-off on an action on the debt due from the purchaser to the debtor.

Coming back to the case before us:

What is it that the plaintiff acquired from Pierce Butter and the estate/of Ann Butler when he purchased their rights as depositors? He acquired all the lights which th&y then- had, or might subsequently iicwe, against the Institution; that is, actual and eventual rights. What were those rights? Rights to be paid their deposits out of the. proceeds of tlie assets of the insolvent concern, in full, if the same proved sufficient; in part, in case the same were inadequate. Pierce Butler and the estate of Ann Butler could not have, sold to the plaintiff more rights than they possessed and which were nothing more than an interest as partners in the common fund and its accretions, even if the Institution had not suspended.

The rights of all the depositors who may he received as partners or stockholders, that is, their interest in the Institution, became fixed the moment that the corporation suspended. The depositors become owners in common of all the assets and entitled to share the same, after payment of privileged debts, in the proportion which their respective deposits hear to the net amount ultimately to be realized.

It is this interest of theirs which the Butlers transferred to the plaintiff and which he acquired.

As the purchase was made after the known insolvency or failure of the Institution, the rights acquired cannot surely be set up in compensation in full extinguishment of the liability under the notes.

Compensation did not. take place proprio vigore, as a matter of right under the Roman law. It was allowed its effects when differences arose, but only after judicial determination. Emancipation from such restraint as a condition precedent for reaping its advantages and the instantaneous vivitication of its consequences, even when unknown to the mutual debtors, is of Gallic creation. The principles of the modern civil law on the subject have been transplanted in the common law and set-off or compensation in that system is now regulated by the rules of the civil law.

It is 'an equitable, remedy, which originates in and rests upon good faith. It is not permitted when its operation would involve a deception and a disappointment of the just expectation and confidence of the party against whom it is set up. It is never allowed when repugnant to good conscience, when it is the, offspring of artifice, when the party setting it up has been guilty of bad faith, actual or constructive, and never when, if sanctioned and admitted, it would prejudicially affect the previously acquired rights of innocent third parties. Pardessus Dr. Com. Vol. 1, No. 235; Merlin Vo. Compens. 2, No. 11; Toullier 4, p. 381; Mourlon 2, p. 761, No. 1452 (C. N. 1290); 5 R. 288; 6 A. 46, 207; 7 A. 53; 10 A. 406; R. C. C. 2215.

If it he true that no law can be pointed out which expressly defeats the pretensions of plaintiff', it is equally so that none can be shown which formally forbids compensation from being set up when the claim has been purchased or acquired since a surrender or cession of property, or since the opening of an insolvent succession. Yet it is a constant principle not to be controverted that counter claims thus acquired cannot be allowed in such cases.

The principle upon which compensation is not permitted in such instancies is, that compensation cannot take place to the prejudice of the rights acquired by third persons,” (R. C. C. 2215) and that by the surrender or cession or opening of the insolvent succession, the rights of all the creditors of the bankrupt or insolvent deceased debtor are fixed at the time of failure or death and therefore antedate the acquisition of such claims.

The principle is the same in cases of corporations, like the present one, which become insolvent and go into liquidation, where their failure becomes notorious and knowledge of it is brought home to the creditor who has subsequently purchased the claims and attempts to set them up in compensation.

Toullier, Vol. 4, p. 381, pointedly remarks:

“La compensation n’est pas admise en faveur de celui qui étant créancier on dóbiteur du failli avant l’ouverture de la faillite est devenu depuis son dóbiteur ou son créancier lie quelque manióre, que ce soit, car cette compensation porterait prejudice aux droits acquis par les antees créanciers, ce que ne permettent ni l’équité ni la loi.” Also authorities hereafter mentioned.
The equity of the rule on this subject,” said this Court in 10 A. 407, “requires that the rights and obligations of all those who have liad dealings with the bankrupt should be so far unaffected by the bankruptcy, that no claims should be enforced either for or against the" creditors of the bankrupt which might not equally have been enforced for or against the bankrupt himself.”

Much stress is laid'upon what Mr. Justice Story, in his Eq. Jur. secs. 1438-44, inclusive, and what Mr. Justice Miller, in Blount vs. Windley, p. 178, 95 U. S., have said' on the subject of compensation as allowed and regulated by the Roman law and the Civil Code of Louisiana, but conceding the correctness of the views expressed on the matter, it is impossible to discern what application the same may have to the present case, where the claim set up in compensation was acquired after the notorious insolvency of the bank. See Waterman on Set-off, p. 23, § 22; p. 149, § 120; p. 193, § 171; p. 222, § 200.

The failure, i. e. a suspension on account of insolvency, has the same meaning and produces the same effect, in such cases, as a surrender, or cession, or opening of an insolvent succession. Tlie rights of third parties, of creditors of such corporations, whose property is a common pledge, are fixed at the date of failure, and compensation cannot take place so as to give a preference to one creditor over another, by paying him in full to the injury of the others, who would not thus he paid.

It is an error to suppose that the French law, from which ours derives on tliis subject, quite directly, almost unaltered, differs'in this particular.

There, as here, compensation is not permitted to be set up, where the claim is acquired after the failure of the debtor.

A merchant who ceases or suspends his payments, is in a state of failure. C. N. 457.

Here, where one is unable to pay all his debts, he is, in a legal aspect, in failing or insolvent circumstances. R. C. C. 3556, Nos. 11 and 16.

If there exist any variance or disparity between the two systems, it consists in this, that our law is broader and more equitable in preventing compensation in all the cases in which the debts set up against an insolvent wore purchased with knowledge of his insolvency and with the view of obtaining- an undue preference. 3 Larombiere, p. 716, Nos. 7 and 8; 2 Zacharice, p. 413, No. 32; 4 Toullier, 381; 7 Toullier, No. 380; Rep. Journal P., Compl. Vo. Faillite, p. 7, No. 4, 5; p. 49, No. 194; Cassation, 9 Juillet, 1860. See also 1 N. S. 484, and 6 N. S, 66; 2 L. 84, and 5 R. 288; 2 L. 85; 2 A. 459; 23 A. 112; in which the principle was applied.

The principle under the Code of 1825 and the revised one of 1870, is the same as that prevailing under the Code of 1808, when the two first significant cases were determined.

It is undeniable that, if the transaction proposed by plaintiff and refused by the Institution had taken place, it would clearly have been such as could have been revoked, for it is glaring that the insolvency of the concern was manifestly known to all, and specially to the plaintiff at the time, and-the transaction would have amounted to a payment in full of plaintiff’s claims, in derogation and to the prejudice of the rights of other creditors similarly situated to participate equally in the common pledge.

How then can it be legally and fairly claimed that the law which would have the virtue of repudiating and bursting asunder such repro-bated transaction, can be successfully invoked to force its accomplishment and execution by the sacred fiat of judicial agency?

A system of laws wliioli, conld they he. desecrated and prostituted to operate so offensively and odiously, and to bring forth such monstrous wrongful and crying enormity, should at once be stigmatize,d, in unmeasured terms, as the handmaid of fraud and the breeder of iniquity.

The District Judge thus viewed and felt. The judgment appealed from should not be disturbed.

Judgment affirmed, with costs.

Mr. Justice Fenner concurs in the decree.

Mr. Justice Manning takes no part.