author: IIowe, J.

text:
    No. 2842.
    T. T. Tyree & Co. v. Sands & Co.—Thomas P. Miller & Co. Intervenors.
    The comity of nations has well nigh the force of a rule of international law in private matters, (ju3 gentium privatum).

    It is not the comity of courts, but the comity of nations which authorizes the administration of foreign laws within the limits of another sovereignty; and, subject to certain familiar ‘ limitations, the courts have, no discretion in the matter.
    As a general rule, a personal contract, with its attendant privileges and effectB, when made in another State, will be enforced in Louisiana upon movables according to the lex loci contractus, provided such enforcement he not contrary to our policy, and does not violate the order of priorities established by our laws, and does not injure the rights of our own citizens; and provided further, that we have by our own law, lex fori, the remedy which is asked.
    The plaintiffs in April, 1869, having by the laws of Alabama a vendor’s lien on cotton superior to that of the intervenors as pledgees, and it appearing that all parties were citizens of and made their contracts in Mobile; that an identical pledge was provided in New Orleans; and that a sufficient remedy existed by the law of Louisiana: Held — That the courts of. Louisiana would enforce such vendor’s lien upon the cotton sequestered in How Orleans.
    There can be no imprudent confidence in trusting one’s property to the guardianship of the law.
    The plaintiffs having their lien, and the intervenors knowing the law and having it in their power to know the facts, the latter can not invoke against the former tho rule that “ as between two innocent parties the loss should fall on the one whose imprudent confidence has enabled the wrong-doer to got credit.”
    APPEAL from the Fourth District Court, parish of Orleans.. Théard, J.

      Cam/pbell, Spofford & Campbell, for plaintiffs and appellees. Maaidell Hvmt and W. H. Hunt, and Dirrhammer & Kennard, for intervenors and appellants.
   IIowe, J.

On the thirtieth of March, 1869, the plaintiffs, Tyree & Co., sold to the defendants, Sands & Co., iñ the city of Mobile, one hundred and twelve bales of cotton. On the thirty-first of March the plaintiffs gave to brokers who had bought it orders on the warehouse for the cotton, and it was delivered. On the day of the sale the defendants, Sands & Co., made an arrangement with the intervenors, Thomas P. Miller & Co., to sell the latter a draft for $25,000, to be drawn by Sands & Co., on Gardner, Bacon & Co., of New Tork, to which was to be attached as collateral a hill of lading for two hundred bales of cotton. The intervenors handed the defendants $12,000 on account of this negotiation on the thirtieth, and the balance of the amount on the thirty-first of March, the defendants on the latter day delivering their draft, but not the bill of lading. The cotton, which included that sold by plaintiffs, was shipped on the first of April for New York via New Orleans, and bills of lading taken by Sands & Co., not to the order or in favor of intervenors, but in error to the order of Gardner, Bacon & Co. One of these bills was mailed to Gardner, Bacon & Co. by Sands & Co., in a letter óf advice of April 1a duplicate went forward on the vessel, and the triplicate was retained by Sands & Co. On the second of April Sands & Co. failed, and on that

day, after their suspension, delivered to, the intervenors this triplicate bill of lading.

On the third of April, the plaintiffs not having been paid for the one hundred and twelve bales sold by them, although the sale was “for cash,” sequestered the same in New Orleans, and Miller & Co. intervened, claiming the cotton in virtue of the bill of lading and the facts above set forth.

The court below decided in favor of the plaintiffs, and intervenors appealed.

' Without dwelling on the infirmities of intervenors’ title as pledgees in consequence of the error in the bill of lading, we prefer to pass at once on the principal point in the case.

By the laws of Alabama, in evidence, it is provided that “ when a contract is made in the city of Mobile, by a factor for the sale of cotton, and by the general usage of the trade in that city, it is considered a sale for cash, but by such usage the purchaser, his broker or agent, is allowed a reasonable time to examine, reweigh and resample such cotton before paying for it; the seller shall have a lien, and a lien is hereby given Mm on such cotton for the purchase money, which lien is paramount to any sale or transfer of the cotton by such purchaser, and shall continue for fifteen days from the time when the cotton or an order for its delivery on any warehouseman with whom it was stored was delivered to the purchaser, his factor or agent, and no longer.” Laws of 1858.

By tho same statute the vendor could enforce this lien by a seizure.

By the law of Louisiana at the date of these transactions, a privilege indentical in character and effect existed in favor of the vendor of cotton in New Orleans for five days, and this privilege could be here enforced by sequestration. Laws of 1855, No. 298. The seizure in this case was made before the lapse of five days from the sale.

By neither the law of Alabama nor of Louisiana in 1869, did this potent privilege require to be recorded in any way.

All the parties to this litigation are citizens of Mobile.

' We see no reason, then, why upon well settled principles of public law, we should not enforce the lien of the plaintiffs. The éxistence of decent relations between civilized countries, and a fortiori between the States o'f this nation, depends in a considerable measure upon th© enforcement by the courts of such liens as a matter of comity. And this comity we understand to be something more than a ceremonial politeness which may be exercised by our courts, or not, as the humor may seize them. It has, on the contrary, well nigh the force of a rule of international law in private matters, jus gentium privatum. 5 La. 299. It is not the comity of courts but the comity of nations which authorizes the administration of foreign laws within the limits of another sovereignty.” 9 Porter (Ala.) 25. And, subject to certain familiar limitations, the courts have no discretion in the matter.

As a general rule a personal contract, with its attendant privileges and. effects, when made in another State, will be enforced in this State upon movables, according to the lex loci contractus; provided such enforcement is not contrary to our policy, or does not violate the order of priorities established under our law; or does not injure the rights of our own citizens; and, provided further, that we have by the lex fori the remedy which is asked. Story, on Conflict of Laws, 322 et seq.; Kent Com., vol. 2, page 458, and authorities cited. Hanrick vs. Andrews, 9 Porter 25 ; Ohio Ins. Co. vs. Edmonston, 5 La. 299 ; Dobbin vs. Hewitt, 19 An. 513.

Thus Mr. Story mentions “ the lien of a vendor upon real estate, * * the lien given for the purchase money upon goods or merchandise sold by the civil law, and by the law of some modern countries; the right of stoppage in transitu of the vendor of goods; * * the lien of a bottomry bond on the thing pledged; the lien of marines on the ship for their wages; the priority of payment in rem which the law sometimes attaches to peculiar debts or to particular persons.”

"In these and like cases,” he says, “ where the lien or privilege is created by the lex looi contractus, it will generally, although not universally, be respected and enforced in all places where the property is found, or where the right can be beneficially enforced ly the lex fori."

Now, the enforcement of the plaintiffs’ lien was not contrary to our public policy,, for at the moment it sprang into being an identical privilege was provided by the Louisiana statute. It did not violate any priority established by our laws, but, on the contrary, was in harmony with our rules of preference. It did not injure the rights of our own citizens, for no such rights were involved. And finally, it did not infringe the rule that the remedy must in all cases be in accordance with the law of the forum, for by the law of the forum the vendor of cotton could within five days enforce his lien by sequestration — the process adopted by the plaintiffs in this case.

Much stress was laid in the able arguments of the intervenors’ counsel upon the equities of their case, and they have invoked the rule that as between two innocent parties, the loss should fall on the one who by his imprudent confidence has enabled the wrong-doer to get credit with innocent parties.” The case of Campbell vs. Penn, 7 An. 371, from which this rule is here quoted, is clearly not in point, having been decided in 1852, when the vendor of cotton had not the privilege which in 1869 existed for five days after sale and delivery, both in New Orleans and Mobile. In the case of Miltenberger vs. Hatch, 13 An. 528, decided in 1858, after this privilege had been established, no allusion was made to the equities in favor of intervenors, but the vendor’s lien was enforced. We incline to think that the “ imprudent confidence” was reposed in this case rather by the intervenors than by the plaintiffs. But however this may be as' matter of fact, we apprehend the rule cited has no application to plaintiffs. They had their lien. They had a right to rely upon it as upon any other legal protection. There can be no imprudent confidence ” in trusting one’s property to the guardianship of the law. The intervenors, bankers of Mobile, knew the law, and were aware of the possibility of plaintiffs’ lien. They might have easily asked if the cotton was paid for; they might have required their money to be used in paying for it. It is as likely as not that they knew it was not paid for, for they show by evidence and urge in argument that in Mobile the proceeds of drafts cashed as they cashed that of defendants, are usually applied to the jom/ment of what the drawer owes for the cotton which he expects to pledge as collateral — “ in this way aiding in the purchase of cotton.”

Judgment affirmed.


source: Caselaw Access Project

author: Wyly, J. Howell, J., Howe, J. Howell, J., Wyly, J.,

license: Public Domain

text:
    No. 3466.
    State ex rel. Livingston & Guthrie v. James Graham, Auditor.
    Reporter. — This case was first; decided in favor of the defendant and appellant, and after, ward, on rehearing, the first decree was set aside, and the cause was remanded, so that no principle of law was settled by the decision.
    APPEAL from the Eighth District Court, parish of Orleans. Dibble,, J.

      Billings <& Hughes and J. B. Howard, for relators and appellee. Hornor & Benedict, for defendant and appellant.
   Wyly, J.

The défendant appeals from the judgment rendering peremptory the mandamus sued out by the relators, requiring him forthwith to take up the warrants issued by the President of the Board of Public Works in favor of the relators, amounting to $62,643, by issuing-therefor his warrants as Auditor upon the general fund of the State for said amount.

The warrants held by the relators, and upon which they demand from the Auditor State warrants for like amount, were issued to them by the President of the Board of Public Works, under a contract made-by them with the relators on the tenth December, 1870, for the purpose of removing obstructions and improving the navigation of Bayou Bartholomew, pursuant to act No. 59 of the extra session acts of 1870.

There are several defenses urged, but the most effectual one is, that on the tenth December, 1870, when the contract was made, out of which the relators’ claim arose, no agreement could be made by the Board of Public Works, or any one else, to increase the amount of the State debt, because it already exceeded $25,000,000,. the limit fixed in the-constitutional amendment then in force.

In reply to this defense the relators say that the constitutional amendment was not in force when the contract was made; that it did not go into operation until five days thereafter, to wit, the fifteenth December, 1870, when it was officially promulgated.

The joint resolution proposing the constitutional amendment was approved sixteenth March, 1870, and it is as follows :

“ Be it resolved by the Senate and House of Representatives, in General Assembly convened, two-thirds of the members of each House agreeing thereto, that the following amendment of the Constitution of the State of Louisiana shall be submitted to the people of the State at the next general election for Representatives of the General Assembly, and if approved and ratified by a majority of the voters at said election, the same shall become part of the Constitution:
‘Article —. That prior to the first day of January, one thousand eight hundred and ninety, the debt of the State shall not be so increased as to exceed twenty-five million of dollars.’ ”

We think this amendment of the Constitution became operative from the day it was ratified by the people at the general election which was held on the first Monday of November, 1870. Constitution, article 347. But the relators contend that there is no evidence in the record that the constitutional limitation had been reached when they made the contract of the tenth December, 1870, with the Board of Public Works.

This fact need not be proved. It will be noticed judicially as a historical fact, which came to the knowledge of this court and was announced by it in the case of the State ex rel. Salomon & Simpson v. James Graham, Auditor, 23 An. 402. See authorities collated in Brightly’s Federal Digest, page 365, sections 82, 83, 84, 85, 86, 87. As the State debt could not be increased at the time the contract was made, out of which the relators’ claim arose, they hold no valid obligations of the State, and in our opinion the Auditor did not err in declining to issue to them the State warrants which they demanded of him.

Let the judgment appealed from be annulled; let the mandamus herein be disallowed, and let the relators’ petition be dismissed, with costs of both courts.

Howell, J.,

concurring. I prefer to place my concurrence in the

decree of the court in this case, under the facts, on the ground that the relators have not shown a sufficient cause for the issuance of the writ of mandamus.

Act No. 59, approved March 5, 1870, and consisting of six sections, appropriated $40,000, “ or so much thereof as may be necessary,” out of the internal improvement fund, to remove obstructions in Bayou Bartholomew ; ordered an examination of the stream, and plans and specifications, with estimates of the cost of the work, to be made by the engineer; directed the Board of Public Works to advertise for proposals and award the contracts to the lowest bidder, the work to be completed by the first January, 1871, the bids not to exceed the estimates, bonds to be required, and the amounts to -be paid by the treasurer out of the internal improvement fund, upon the warrant of the President of the Board of Public Works on the Auditor.

By section 9 of act No. 63, of the extra session of 1870, approved the fourth of April, the internalimprovement fund was abolished, and the balance therein transferred to the “ interest tax fund.”

After this, to wit, on the tenth December, 1870, a contract purports to have been made by the Board of Public Works with the relators, under and by virtue of said act No. 59, for the work at certain prices, by the section, amounting to $118,500 for the four sections, the estimates thereof appearing to be $122,695.

On the twelfth January, 1871, the President of the Board of Public Works drew his thirteen warrants on the Auditor, in favor of the relators, for sums amounting to $63,500, as the cost of the first and second sections. On these the sum of $857 was paid, - being all that was to the credit of the internal improvement fund, leaving the amount claimed in this proceeding.

In Marchj 1871, act No. 45 became a law, amending and re-enacting sections one, three and five, of act No. 59, of 1870, and by Which the sum of $40,000 and such additional amount, n'otto exceed the estimate of the engineer of the Board of Public Works, necessary to complete the removal of the obstructions in Bayou Bartholomew, were appropriated ; proposals to perform said work were to be advertised after receipt of the estimates provided for in section 2, of act No. 59, of-1870, and contracts awarded to the lowest bidder who would offer the 'best security to complete the work in a reasonable time, and upon the completion of each section and its acceptance by the engineer, payment was to be made on the warrant of the President of the Board of Public Works upon the Auditor in favor of the-'contractor, the act closing with this proviso : “that if any warrants have been drawn upon the internal improvement fund by the President of the Board of Public Works anterior to the date of the passage of this act as part payment of the work, the State Auditor of Public Accounts is hereby authorized and it shall be his duty to take up such warrants of the President of the Board of Public Works, and issue therefor his warrants upon the general fund of the State.”

It is upon this proviso that the relators rely as imposing upon the Auditor the duty of taking up the warrants issued on twelfth January preceding its passage.

It is contended, and I think very properly, on behalf of the Auditor, that under the terms of the act No. 59, of 1870, no contract could be entered in to, binding upon the State, for a sum exceeding $40,000; and if it could, the proviso relied on is without effeet, because no specific amount is appropriated, as required by article 104 of the Constitution.

If it be true that such an amount of work as represented in the •claim, embracing forty-nine miles of the river, and worth $63,500, was .really performed by the relators within thirty-two days, they have not presented a case for a mandamus to compel the Auditor to issue any warrants in their behalf on the Treasurer. They have not shown a law which makes it the duty of the Auditor to issue a wari ant for the specific warrauts held or the sum claimed by them. The amendatory act of 1871 does not refer to their contract, but clearly contemplates the'contracting and paying for the whole work, as first provided for in the first act. The proviso is drawn in unusual language for a law— •“ if any warrants have been drawn, etc,’’ implying a doubt and leaving the whole matter to be determined by the Auditor, as to their -existence, dates, amounts and the object of their issuance. Such language does not impose a duty which the Auditor is legally competent to perform.

On Rehearing.

Howe, J.

After further examination of this case a majority of the court are in .favor, in the interests of justice, of remanding this cause, for the purpose of taking prooí as to the amount of the State debt at the time this contract was made.

It is therefore ordered that the judgment heretofore rendered by us be set aside, that the judgment of the lower court be reversed, and the cause remanded for a new trial at costs of appellees.

Howell, J.,

dissenting. I adhere to the opinión already filed by me herein, and I therefore dissent from the decree now rendered.

Wyly, J.,

dissenting. I do adhere to the former decree rendered in this case.

• The main -ground set up in the petition and brief for rehearing was that the contract was made long prior to the tenth December, 1870, and the relators pressed the court to remand the case, in order to give them the opportunity to prove it.

I objected to granting the rehearing, and I now object to remanding the case, because the relators are precluded by their judicial admissions from showing that they made the contract prior to the tenth of December, 1870. In their petition we find the following allegation, which no court can ever permit the relators to contradict, to wit: Petitioners aver that under and according to the provisions of said above recited act they contracted with the Board of Public Work's, which contract was entered into between these petitioners and the Board of Public Works of the State of Louisiana, on the tenth day of December, A. D. 1870, a duly certified copy of which contract is attached, etc.”

On the tenth December, 1870, the constitutional amendment limiting-the State debt to twenty-five millions of dollars was in force. As a matter of history the court took notice that the State debt at that date largely exceeded twenty-five millions of dollars.

I do not believe the relators ever made a valid contract for the work; not a siugle requirement for letting out and making the contract according to act 59, of the acts of 1870, seems to have been complied with.

From the short time between the making of the contract and the reception of the work by the State Engineer — only about thirty days— I do not believe that sixty odd thousand dollars of work was done to improve the navigation of Bayou Bartholomew. I regard the case as having no merit whatever, and I will add, I believe the whole claim is a fixed up job to defraud the State out of a large sum of money. Act No. 59, to improve the navigation of Bayou Bartholomew, never authorized a contract to exc.eed forty thousand dollars. I regard the contract for one hundred and eighteen thousand dollars for that work as a deliberate fraud upon the State.

I therefore object to remanding this case, and Í respectfully dissenfr' from the judgment to that effect.


author: Ludeling, C. J. Wyly, J.,

text:
    No. 3733.
    H. S. Losee v. L. A. Sauton.
    A purchaser of real estate at judicial sale must comply ■with the terms of his bid by paying the price before he can demand a title from the sheriff translative of the* property. If he fails to pay the price the property does not pass to him, and he can not maintain ail injunction to stay its sale, when made by a creditor, on the ground that he is the owner.
    APPEAL from the Ninth Judicial District Court, parish of Rapides, Orsborn, J.

      H. 8. Losee, in person,. plaintiff and appellant. M. By an, for defendant and appellee.
   Ludeling, C. J.

This suit was commenced by an injunction to-restrain the sheriff from selling the undivided half of a tract of land, under an execution issued in the suit of Santón-, tutor, n. W. J'. Beatty, on the ground .that the property belonged to the plaintiff. On the trial, the court ot the first instance dissolved the injunction without. damages. The plaintiff has appealed, and the appellee has asked that the judgment be amended by allowing damages.

The plaintiff alleges that his title is derived from his purchase at sheriff’s sale, under an execution against W. J. Beatty. It appears from the record'that at that sale the plaintiff was the last and highest bidder, that the sheriff refused to make him a title because he thought he had erred in selling an undivided half oí the property when he had advertised ihe whole for sale, and he had been enjoined from selling one undivided half thereof. ■ On a rule'taken against the sheriff he was ordered to make and deliver to the purchaser a title according to law, “ on his paying the price.”

Upwards-of five months after this judgment had been rendered, the plaintiff in this suit having failed to pay the price, Sauton, tutor, caused an execution to issue against his debtor, Beatty, and the property previously knocked off to Losee, the plaintiff, was seized and advertised for sale. The claim of the tutor, Sauton, was secured by a legal mortgage on the property, and might have been proceeded against in the possession of Losee, if he had paid the price and received a title, which, however,- he has failed to do. It is clear that Losee can not have a title to the property hid for by him at the sheriff’s sale until he pay the price (2 La. 360); and it is equally clear that it was his duty to pay the price withm a reasonable time after the judgment which ordered the sheriff to make him a title on his paying the price. The payment of the price is a condition precedent to his getting a title. C. P. 689.

In Stout vs: Voorhies et al., this court said: “ It is proper, however, to settle a previous question raised by the plaintiff’s counsel relating to the right acquired by the bid of the former purchaser, although he did not immediately .comply with the condition of the sale, which was cash. In support of this right, reliance is liad on the articles of the Code of Practice, 690, 695, and on the articles of the Louisiana Code, 2588, 2590. The provisions of the Louisiana Code relate to sales by auction, both to voluntary and forced sales, but we are of opinion that the article 2589 is particularly applicable to voluntary sales, as is also the preceding article. The Code of Practice relates to sheriff’s sales, and according to the articles cited an adjudication has the effect of transferring to the purchaser all the rights of the party in whose hands the property was seized, and the sheriff is allowed three days, within which he must make an act in form. . This transfer of rights does not, in our opinion, take place, and consequently lhe officer is not bound to perfect the sale by an act translative of them to the purchaser, unless the latter has complied with the conditions of such sale. The condition of the adjudication in the present instance was, that the purchaser should pay cash,” etc. 4 La. 395; 3 La. 475. The plaintiff has made no offer to comply with his hid, and the sheriff did not have to put him in default. C. P. 689; Branner & Co. vs. Hardy et al., 18 An. 537. But the evidence shows that the sheriff told him he was ready to make him a title when he paid the price. We think the equitable remedy of injunction has been abused in this case, and the defendant is entitled to damages.

It is therefore ordered and adjudged that the judgment of the lower court be amended so as to give the defendant judgment against the plaintiff and John Bogan, in solido, for three hundred dollars, attorney’s fees and costs of this appeal.

Wyly, J.,

dissenting. The plaintiff, Losee, bought at sheriff’s sale under the writ of W. H. Letchford & Co. vs. William J. Beatty, the undivided half of a plantation in the parish of Rapides, for $36 '6 66; but the sheriff refused to make him a formal deed, notwithstanding he tendered to him the price of adjudication. Losee then took a rule on the sheriff to compel him to make the deed, and in April, 1871, this court made the rule absolute, deciding that Losee was the lawful purchaser, and requiring the sheriff to make him the deed. For some cause the sheriff has neglected to make the deed, and Losee to pay the price. After several months had elapsed, L. A. Sauton, tutor, issued execution and seized the property which had been adjudicated to Losee under W. H. Letchford & Co.’s writ against Beatty, the common debtor. Losee enjoined the sale on the several grounds stated in the petition.

The court dissolved the injunction, and Losee appeals.

Losee contends that Sauton, tutor, who intervened and claimed the proceeds in the sale of Letchford, under which he bought, can not ignore his title, and seized the property as the property of Beatty; that he has never refused to pay the price, and has often urged the sheriff to make the deed pursuant to the decree of this court, being himself always ready and willing to pay the price.

On the other hand it is contended that since the return of the decree of this court requiring the deed to be made, the sheriff has always been ready to make the formal transfer to Losee, but that Losee has never tendered him the price.

The question is: can the title of the adjudicates be treated as an absolute nullity, because for several months he has failed to tender to the sheriff the price, notwithstanding he did so immediately after the adjudication, when the sheriff refused to accept it and make him the deed, and notwithstanding the fact that since the rule has been made absolute requiring the sheriff to make the deed, the latter has never offered to do so, nor demanded the price 1

Has the obligation of the buyer to pay the price, and the obligation of the seller to make the title, perished ?

Can it be said that the adjudieatee who tendered the price and was refused a deed, and who subsequently obtained the decree of this court recognizing his title and commanding the sheriff to make the formal transfer, is-bound again to make another formal tender Of the price, and again to put the sheriff in default for the deed within a reasonable time, or else'his title will be lost, notwithstanding it is shown that he has always been willing to pay the price whenever the sheriff shall tender him the deed in accordance with his duty and pursuant to the decree of this court 1

It is well settled that the adjudicates is not bound to make a formal tender of the price to the sheriff and put him in default for the deed, in order to preserve his rights under the adjudication. It is enough that he does not refuse to pay the price when called upon to do so by the sheriff.

The sheriff must offer to make the deed and put the adjudieatee in default for the price, in order to defeat the rights of the latter, resulting from the adjudication. The law is very clear on this point: “ If the person to whom the property lias been adjudicated-shall refuse to pay the sheriff the price, or offer the proper securities when the sale has been made on credit, the sheriff may expose to sale anew the thing seized, and adjudicate it to another person.” C. P. 689. “ When the highest price offered has been cried long enough to make it probable that no higher will be offered, he who has made the offer is pubJ liely declared to be the purchaser, and the thing sold is adjudicated to him.”- C. C. 2585. “ This adjudication is the completion oi the sale; the purchaser becomes the owner of the object adjudged, and the contract is from that time subject to the same rules which govern the ordinary contract of sale.” C. C. 2586. “If the adjudication be made on condition that the price shall be paid in cash, the auctioneer may require the price immediately, before delivering possession of the thing sold.” C. C. 2587. “If the object adjudged is an immovable, or slave, for which the law requires that the act of sale shall be passed in writing, the purchaser may retain the price, and the seller the possession of the thing, until the act be passed.” * * * C. C. 2588» “ In all cases of sale by auction, whether of movables or slaves, or immovables, if the person to whom the adjudication is made does not pay the price at the time required, agreeably to the two preceding articles, the seller, at the end of ten days and after the customary nolices, may again expose to public sale the thing sold, as if the first adjudication had never been made.” * * * C. C. 2589.

Now, whether a sale be made under article 689 C. P., or under the articles of -the Civil Code just quoted, the rights of the adjudieatee can not be defeated, unless he “ shall refuse to pay the sheriff the price,” or if Jie “does not pay the price at the time required.!’ Here the adjudicatee, Losee, has never refused to pay the price, ñor has he- ever been required by the sheriff to do so.

The effect of an adjudication under a fieri facias is to transfer to the purchaser all the rights and claims of the party-in whose hands it was seized; and the sheriff is bound thereupon to pass an act of sale to the purchaser, and to put him in possession of the property sold.” 6 E. 100; C. P. 690, 691; C. C. 2589; 6 E. 107; 10 E. 30.

It was the duty of the sheriff charged with the execution of the writ under which the sale was made, to call,upon Losee for the price. Until that is done, it can not be said that the latter has refused to pay the price, and that his rights resulting from the adjudication are lost.

This question was recently before the court in the case of Heirs of Doll vs. Katham, 23 An. 486, where, after a full examination of the authorities on the subject, it was held that a purchaser of property at judicial sale acquires an indefeasible title by complying with his bid. In case of an active violation of the contract of purchase by the purchaser, or in case of open refusal to comply with his bid after demand, default is not necessary as a condition precedent to the action for the recission of the sale and the recovery of damages. But if no demand has been made on the purchaser to comply with the terms of the sale, then and in that case a putting in default would seem to be a condition precedent to recovery.”

Losee was examined as a witness, and he testified that “the sheriff never made a demand on me for the money, never put me in default in any manner ; I have always been ready to pay that money, and am ready still. * * * Immediately after the final decision of the Supreme Court was reported back to the clerk of the court in suit No. 1552, I went into the sheriff’s office and said to Mr. De Lacy, sheriff, that the decision was back, aud it was against him. I then requested Mm to make out the title papers as soon as he could make it convenient; that I was ready and willing to comply with the terms of the bid. * * * Afterwards, on another occasion, I asked him whether he would prefer the money or a sight draft, and asked him if he had his papers made out, and he said no. I urged him to make them out and to let me know whether he wanted the cash for the bid or whether he would take-a draft — to let me know so that I could send to the city and have the money brought up. He said he would seé about it. I several times urged him and his deputy, Mr. Clements, to make out my title. * * . * I told him I was ready to comply with my bid, and wanted my papers. He said he did not know what he had to do in it until he saw Judge Eyan, counsel of Sauton. I called his deputy, John Clements, and showed him in the clerk’s office the order of the Supreme Court,- and urged him also to make out the title.”

On cross examination he said: * * * “I never actually showed the sheriff the money, or made a tender. When I first purchased the land, three years ago, I actually tendered the money to the sheriff, and he reiused to make the title, but never since the Supreme Court decided he should make a title.”

It is not pretended that the sheriff ever made out the title for Losee, although urged to do so; nor is there a particle of evidence showing that he ever demanded of Losee the price, and that the latter refused to pay it. Nor is it disputed that Losee tendered the price immediately after the sale, before he took the rule to compel the sheriff to make him a title. If article 2586 C. C., and article 690 C. P., mean what they say — that the adjudication completes the sale, and of itself alone has the effect to transfer all the rights and claims of the party in whose hands the thing was seized; and if this adjudication can not be defeated unless the purchaser “shall refuse to pay” the price, I do aot see how the plaintiff, Losee, has lost his title, because he was undoubtedly the adjudicatee, and there is not a' particle of evidence to show that he has refused to pay the price. Having tendered the price immediately after the adjudication, he was not bound to do so again. It was the duty of the sheriff to make him the deed, as commanded by this court. This he has never done, nor has he demanded the price. In view of the facts of this case, and the authorities to which I have referred, I do not believe that Losee’s title should be treated as an absolute nullity, and I therefore dissent.

Rehearing refused.


author: Wily, J..

text:
    No. 3776.
    Heirs of Jacob Hoover v. York and Hoover et als.
    The omission of a notary public in-writing a nuncupative will by public act, to use the expressions “as dictated,” is not good ground ior annulling the will. These expressions are not sacramental, and if the nofary uses other language which conveys the same idea, . the will is not void because these expressions are not used.
    -An illegal disposition in a will to a legatee by parti .ular title does not destroy or impair the Tights ot the legatee by universal title.

      A. particular legacy that has lapsed, because of the incapaci.y of the legatee to take, enures to the a 1 vantage of the universal legatee.
    A PPEAL from the Thirteenth Judicial District Court, parish of Con-TI. cordia. Hough, J.

      George 8. Sawyer, for plaintiffs and .appellees. •€. Boselius, Ogden, Sparrow and Henry B. Shaw, for defendants and appellants. Mayo & Spencer, lor Ober & Atwater.
   Wily, J..

The motion to dismiss this appeal is denied, because, if the bond is not sufficient for a suspensive ajipeal, being for the amount fixed by the judge, it is good for a devolutive appeal.

In August, ■ 1859, Jacob Hoover died, leaving a large estate; and having no forced heirs he instituted Ze iulon York and E. J. Hoover-his universal legatees, bequeathing to them his entire property, in a nuncupative will by public act executed before - G-ottschalk, notary, in the city of New Orleans, on the twenty-sixth of January,. 1859. The will was duly proved and ordered to be executed, and the-said universal legatees were recognized and put in possession of all the-property left by the deceased.

The estate consisted mainly of the White Hall, the Home and the Marengo plantations in the parish of Concordia, together with some five hundred slaves and the movable property employed on said plantations.

. The said universal legatees sold, the Marengo plantation to James T. Organ in January, 1866; he subsequently conveyed it to Wm. Shorter. In 1866 they mortgaged the balance of the property to Ober, Atwater & Co., to Alexander Allen and to the firm of Wright, Allen & Co.,, for sums amounting in the aggregate to upwards of $200,000.

On the twenty-seventh of May, 1868, Zebulon York and E. J. Hoover-were declared bankrupts by the United States District Court. They surrendered as their property the White Hall and Home plantations,. This property was sold by order of the Bankrupt Court, and was adjudicated to Albert G-. Ober, who is now in possession as owner, jointly with Frank D. Atwater.

On the thirteenth of December, 1859, the plaintiffs claiming to be the legal heirs of Jacob Hoover, deceased, brought this suit against-York and Hoover, the universal legatees, to recover the property left, by the deceased, and to annul his will.

The grounds of nullity are, that the will was not executed with the-formalities prescribed by article 1571, Civil Code; especially there is-no express mention that the testament was written by the notary “ as dictated ” by the testator, and also that the recitals of the notary are untrue.

The testimony of the notary, and also of the three attesting witnesses, shows beyond doubt that the recitals ot the will are true.

Article 1571, Civil Code, provides that, “The nuncupative testaments by public act must be received by a notary public, in the presence of three witnesses residing in the place where the will was executed, or of five witnesses not residing in the place.

This testament must be dictated by the testator, and wiitten by the-notary as if is dictated. It must then be read to the testator in the presence of the witnesses.

Express mention is made of the whole, observing that all those formalities must be fulfilled at one time, without interruption and without turning aside to other acts.

It must appear by the act itself that the formalities required by law have been complied with.

The main ground of the plaintiffs is, that there is no express mention that the will was written “ as dictated.”

There is no particular virtue in the words “ as dictated;” they are not sacramental; any language conveying plainly the same idea is just as good.

The will before us declares that Jacob Hoover, in the presence of the witnesses, appeared before the notary, and did require of me,, notary, to receive his last will, which he thereupon immediately die tated unto me in the presence of the above named witnesses, in the following words to wit: My name is Jacob Hoover. I am a native of Jackson county, in the State of Georgia. * * * My father and mother are both dead. -I was never married and have no children.. I give and bequeath unto Elias J. Hoover and Zebulon York, both residing in the parish of Concordia, all my real, personal and mixed estate, and property of whatever nature or kind, and wheresoever situate ; the whole consisting of * * . * * ■ * * * Moreover, I nominate and appoint the said E. J. Hoover and Zebulom York to be my testamentary executors and detainers of my estate,, with full power to regulate the same without the intervention of justice. I hereby revoke all wills and testamentary dispositions heretofore made, holding these presents alone for valid. Thus the foregoing will has been dictated to me, notary, by the said testator, in the presence of the above named witnesses, and T have written the same in. their presence immediately, without interruption or turning aside to other acts, and in my proper handwriting, and having read said will to said testator in a loud and audible voice, in the presence of said witnesses, he declared unto me in their presence that he perfectly and fully understood the same, and persisted therein.” This done and passed * * * * * *■* *

We think the formalities required by article (C. C.) 1571, are fully complied with in the will before us.

Here the notary states that the testator appeared and “did require of me, notary, to receive his last will, which he thereupon immediately dictated to me * * * in the following words to wit':'1'1

The dispositions of the testator are then written, and the notary concludes as follows:

Thus the foregoing will has been dictated to me, notary, by the said testator, * * * and 1 have written the sume immediately.”

If i he will was dictated by the testator and written in his own word& immediately, it must have been written as dictated.

There is no force, therefore, in the position that the formalities of law have not been observed in making the will. On this ground alone its nullity was sought in the original petition.

But after York and Hoover, the original defendants, had mortgaged White Hall and Home plantations for more than they were worth, and finally surrendered them in bankruptcy, and after they had been purchased by Ober &. Atwater, mortgage creditors of said York and Hoover, Elias J. Hoover informed the attorney of plaintiffs that he .and York never had a valid title to the property left by Jacob Hoover, because there was a counter letter, which is now lost, which contained •the real purpose of the testator. It was his real purpose to put the property in the hands of York and Hoover, as trustees. They were to hold the property for the real beneficiary heir, James Hoover, an illegitimate son of the deceased by his colored concubine and slave, Lydia; that this child, about two years old at the death of Jacob •Hoover, was to receive all the property from said York and Hoover on arriving at twenty-one years of age, and they were merely parties interposed.

On the eighth of May, 1870; the plaintiffs amended their petition, propounding this new ground of nullity, and citing Norton, the asignee of York and Hoover, and. also Ober & Atwater, the purchasers of White Hall and Home plantations.

No one ever saw or heard of .the pretended counter letter but York and Hoover. '

We have no hesitatancy in saying that the witness, Elias J. Hoover, .'from his acts and his contradictory oaths contained in the record in reference to the property in dispute, is utterly unworthy of credit in a court of justice. He obtained a large amount of money from the defendants, Ober & Atwater, and also from other parties on the faith of his deliberate declarations in acts of mortgages that he was the -joint owner of the property; and finally, to get relief from his creditors he ■voluntarily goes into bankruptcy with York, placing White Hall and ¡Home plantations on the schedule as their property, and swearing to ithe correctness thereof.

■He has made two contradictory oaths as to the missing counter letter, one of which he voluntarily furnished the counsel of the plaintiffs when they amended their petition on the eighth of May, 1870, and the -other at the trial. He is evidently anxious for his relatives and co-, heirs now to recover the property, after realizing himself all he could •out of it, and after practicing a deliberate fraud upon Ober & Atwater, .and other parties.

But assuming the statements of York in reference to the counter, letter to be true, let us inquire what effect it liad upon the title of York and Hoover to the property in dispute, to which Ober & At-water have succeeded, so far as concerns White Hall and Home plantations, and to which Wm. Shorter has succeeded, so far as concerns the Marengo plantation.

York gives the following as the substance of the missing counter letter, viz.:

“ The counter letter contained, as near as I can recollect, the following words, to wit: *1, Jacob Hoover, do desire and wish that the proceeds resulting from the annual sales of my cotton crops shall be disposed of: First — In purchasing servants, slaves and mules, to cultivate all the vacant land or uncultivated lands on White Hall and Home Place; and further, to build houses for said servants, and stables for said mules, and generally to improve said plantations by putting them in the best possible repairs. Second — After White Hall and Home Place have been put in the best repairs as above stated, then the annual net revenues shall be at the disposal of Z. York and Elias J. Hoover, as they may decide in their own judgment, either in purchasing city lots, Texas land, or desirable plantations in this State. Should the said. Z. York and E. J. Hoover find it, in their opinion, necessary to mortgage any of my property, I wish them to do so, to jprocure money, at a low rate of interest, from any bank or commission .merchant, to carry out their investments or perfect their purchases. Third — My boy Jimmy, or James Hoover, I wish and do desire to have sent to school, and-no means or expenses spared in having him thoroughly educated. And when he shall arrive at the age of twenty-one years, I desire and wish that said Z. York and E. J. Hoover shall turn over and put him in possession, of his own right, White Hall and Home Place; that is, should he be capable of protecting and not squandering the same. Should he, James Hoover, at the age of tweuty-one, be a reckless man or an imbecile, I request that none of my property be put in his possession ; but Z. York and E. J. Hoover ■shall amply provide for his support and maintenance. In case of the ' death of my son, James Hoover, and my woman Lydia shall be the mother of no more children during my lifetime, all my property shall belong absolutely to Z. York and E. J. Hoover. Agreed to and signed this twenty-seventh day of January, 3859.’ ”

This witness also states that neither he nor E. J. Hoover ever exerted any influence on Jacob Hoover to make' his will; he “don’t think any body on earth could have influenced him to do otherwise than he desired.” He also states that “Elias J. Hoover and witness were to .judge, when the boy came of age, whether he was capable of taking ■and managing the property.

There was no event or contingency mentioned in that counter letter upon which the boy James was to receive from us other property than the White Hall and Home places.”

It will be observed that by the counter letter the testator did not intend that his illegitimate son by his slave Lydia should be his universal legatee, because “ there was no event or contingency mentioned in that counter letter upon which the boy James was to receive from us. (the universal legatees) other property than the White Hall and Home Place.” If the disposition in favor of this illegitimate child had been embodied in the will (and it can have no greater effect in the counter-letter) it would be no cause to annul the will. The lapse of a particular legacy by reason of the incapacity of the party to take, enures to the advantage of the universal legatees. An illegal disposition to a legatee by particular title does not destroy the will; it can not defeat the right of the heirs by universal title. That Elias J. Hoover and Zebulon York were the universal legatees of Jacob Hoover, deceased, there can be no doubt.

The value of the property left by the deceaséd- exceeded a million of dollars. By the terms of the will Elias J. Hoover and: Zebnlon York were instituted heirs by universal title. They were not merely parties interposed. They were to be the owners of this vast estate, except, perhaps, the White Hall and Home Place, which they were to turn over to the boy James when he arrived at the aga of twenty-one years, provided “he be capable of protecting and not squandering the same,” and of this the said universal legatees were to-be the sole judges.

Whether James was to get White Hall and Home Place depended! on several conditions, viz.:

First — That he should live to be twenty-one years of age.

Second — That he be judged by the universal legatees on arriving of age to be capable of protecting and not squandering it; and of this said legatees were to be the sole judges.

All the other property was bequeathed to York and Ploover unconditionally, and the part intended for James was also to be theirs, provided certain conditions should not happen.

“Every disposition in favor of a person incapable of receiving shall be null, whether it be disguised under the form of an onerous contract or made under the name of persons interposed.” C. C. 1478.

“ The testamentary disposition falls when the instituted heir or the. legatee rejects it, or is incapable of receiving it.” C. C. 1696.

“The legatees under a universal title, and legatees under a particular title, benefit by the failure of those particular legacies which they were bound to discharge.” C. C. 1697.

Whenever a legacy falls for incapacity^ of the legatee, the universal' legatee takes it to the exclusion of the collateral heirs at law.”

* *■ * Prevost vs. Prevost, 10 R. 513.

The lapse of the particular legacy in favor of the boy James by reason of his incapacity, inured, therefore, to the advantage of York and Hoover, the universal legatees, and not to the plaintiffs, the collateral heirs at law of Jacob Hoover, deceased.

Our conclusion is that York and Hoover acquired by the will of Jacob Hoover a good title to all the property lett by him.

We think the court a qua erred in giving judgment for the plaintiffs and against the defendants, Albert Gr. Ober and Prank D. Atwater, the ■owners of White Hall and Home plantations, and that it did not err in giving judgment against the plaintiffs and in favor of Wm. Shorter, the owner of the Marengo plan'ation.

It is therefore ordered that the judgment in favor of Wm. Shorter and against the plaintiffs be affirmed with costs ; it is ordered that the judgment in favor of the plaintiffs and against the defendants, Albert G-. Ober and Prank D. Atwater, be annulled; and it is now ordered that there be judgment for these defendants recognizing them as the legal owners of White Hall and Home plantations, and rejecting the demand of the plaintiffs with costs of both courts.

Rehearing refused.


author: Howell, J.

text:
    No. 3653.
    Byron Johnson v. Stephen Duncan.
    A purchaser of mortgaged property at judicial sale is bound to retain in his hands the proportion of the price coming to a concurrent mortgage note, not embraced in the judgment under whi h. the sale is made, and to deliver such proportion to the holder of suehnote. As to the purchaser no reinscription of the mortgage is necessary, because he has by the purchase assumed the debt to the extent of the proportion of the purchase money, which he must retain. The plea of poremption will not therefore, avail him in a suit by the holder of the note to compel him to pay, because, having assumed the debt, reinscription of the ' mortgage is unnecessary. ^
    from the Fourth District Court, pariah of Orleans. Théard, J.

      A. S., H. N. aud W. F. Ogden, for plaintiff and appellee. William, Grant, for defendant and appellant.
   Howell, J.

The main facts in this case, essential to its proper de- ■ cisión, seem to he the following :

In 1867 the plaintiff was the owuer and holder of a mortgage note for $2000, with some years arrears of interest, secured on a plantation in the parish of Concordia. This note was one of a concurrent series secured- by the same act, and amounting in capital to the sum of $31,000.

On the second of March, 1867, the mortgaged property was sold under foreclosure at the suit of S. Duncan (the elder), the holder of those other notes, and purchased by S. Duncan (the younger), the defendant in this action, for the appraised price of $33,395 75, an amount somewhat less than the sum due on all the notes in principal and interest.

The defendant was hound to retain in his hands for the benefit of the plaintiff’s note, the pro rata of the price coming thereto by law, and to pay the same with interest when demanded. 21 An.. 499; 14 An. 149.

We do not think he was bound for any more than this, but judgment to this extent may be properly given under the pleadiugs and evidence; and this view renders it unnecessary to pass upon many technical points presented in the argument.

The principal defense urged is that of peremption. The defendant contends that the mortgage was first recorded in 1859, and was not re-inscribed, and that the plaintiff, whose suit was not instituted till 1871, lost his rights against defendant by peremption. This, we think, an error. The obligation of defendant springs from his purchase, and the duty of retaining in his hands the proportion of price coming to a-concurrent mortgage note not embraced in the judgment under wliick the sale was made, and to deliver such proportion to the holder of such note. An hypothecary action is provided against him. C. P. 909; 16 La. 163; 5 An. 306. As to him, the mortgage of the concurrent creditor requires no reinscription, for lie has assumed the debt to the extent of its proportion of the purchase money, which he must retain. .4 Rob. 44, Noble v. Cooper.

The court a qua gave judgment in favor of plaintiff for the whole amount of his note with interest. Upon the principles quoted above,, it should have been for the pro rata of the price bid by defendant.

It is therefore ordered that the judgment appealed from be amended, so as to reduce the same to the sum of two thousand two hundred and nine dollars, with eight per cent, per annum interest, from March 2,. 1867, and costs of the lower court, and that plaintiff pay costs of appeal.


author: Howe, J.

text:
    No. 3831.
    William A. Elmore v. Florence A. Ventress, Administratrix, and James A. Ventress, Executor. (Consolidated).
    The prayer of oyer of a promissory note, and for general relief by an executor in a suit against the estate he represents, interrupts prescription on the note.
    A citation that is defective by being addressed to a person individually in a suit where such-person occupies the representative capacity of admin strator, is cured by such person* appearing in his representative capacity and answering to the merits.
    The estate of the payee and indorser of a promissory note is not liable thereon, unless legal' notice of the dishonor of the note has been given.
    Where real property uelonging io an estate is covered by a special mortgage which containa the pact of non-alienation, it may be seized and sold under executory process, without the delay of awaiting the due course of administration.
    from the District Court of Iberville. Posey, J.

      Elmore <& King, for plaintiff and appellee. Barrow & Pope, for defendants and appellants.
   Howe, J.

These consolidated suits were instituted to recover from ■ the estates of John M. Brown and James N. Brown the amount of certain notes due for the unpaid price of a plantation and slaves, in the - parish of Ascension.

John M. Brown was maker of the notes, and James N. Brown was payee and indorser of one of them.

There was judgment for the plaintiff, and defendants appealed.

I. The plea of prescription is not well taken. The petitions of plaintiff were filed before prescription occurred, and were directed against the defendants in their representative capacity. Citations-were also issued and personally served, with copies of these petitions, on the defendants personally. James A. Ventress, as executor of J. N. Brown, appealed and praye ! oyer and for general relief before the time when it is pretended that prescription accrued, which disposes-of the question as to that estate.

The citation to the estate of John M. Brown was informal, being-addressed to Florence A. Yentress, instead of to Florence A. Ventress, administratrix; but without excepting she- afterwards appeared as administratrix and answered to the merits. The curative power of this answer we think related back to the time when- she was personally served with the petition containing a demand on the estate, and with a citation which, though informal, plainly required that plaintiff’s-demand should be answered by such estate.

II. There is no proof, however, of any notice of dishonor to J. M. Brown, and as he was payee and indorser of the note in respect to-which his estate is pursued, notice should have been given. The judicial averment by his executor that he was a surety does not change-this rule, which was plainly recognized in Breaux v. Leblanc, 10 An. 97, and Ball v. Greaud, 14 An. 303. As to the estate of J. N. Brown there should be a non-suit.

III. The relative proportion between the value of land and slaves-sold seems to have been correctly fixed by the judge a quo.

IV. The questions raised by the answer as to the disquieting of possession by a suit of Mrs. Gaines were correctly disposed of, as we had' occasion to decide lately, in the case of Sigur v. Ventress et al.

Y. The mortgage contained the pact of non-alienation, and executoryprocess might have issued. A fortiori, then, the court» qua did not err in giving judgment in this ordinary action in suplí way that it may be-executed against the property mortgaged, by writ from the District Court, without the delay of awaiting the due course of administration.

It is therefore ordered that the judgment appealed from be affirmed,, except as to the estate of J. N. Brown; that as to the claim against the latter, as indorser, there be judgment of non-suit, and that the costs of appeal be divided between the plaintiff and the estate of' John M. Brown.

Rehearing refused.


author: Howe, .J.

text:
    No. 2616.
    J. F. Thompson v. New Orleans Coast and Lafourche Transportation Company—John J. Brown, Garnishee.
    A person who bought a steamboat from a person within the rebel lines of military occupation during the late war, for a certain price in unlawful currency, and afterward sold the vessel to another party within the Federal lines, and received the price in lawful currency, can not be compelled by garnishment) process to pay the price he thus received to the original owner, on the ground that the original sale was made in violation of the laws of war, and was therefore void. Nor can the plaintiff recover on the theory that the proceeding was a revocatory action by garnishment, because such action can not be maintained in that form.
    from the Seventh District Court, pariah of Orleans. Gollens, J.

      J. Ad. Bonier, for plaintiffs and appellee. G. Schmidt, for garnishee and appellant.
   Howe, .J.

There was judgment in this case in the court below, maintaining the traverse to the answers of garnishee Brown, and condemning him to pay to plaintiff the sum of $8584 60 with interest,' .and the garnishee has appealed. '

A large number of points have been made and discussed, of which it'is necessary to notice but one.

The theory of the plaintiff’s claim against the garnishee seems to be this: that in 1863 the defendant’s company was owner of the steamboat Lafourche; that in. that year the Board of Directors in New Orleans authorized a sale of the boat, which was then outside the lines of military occupation of the United States forces; that an agent was thereupon sent through the lines, who sold her to the garnishee for $50,000 in Confederate notes; that the garnishee, in January, 1867, sold her to the Bayou Sara Packet Company for $32,000 in lawful ' money; that the s ,le in 1863 by the defendants’ company to the garnishee was null and void, as in violation of the laws of war and the restrictions on commercial intercourse; that when the garnishee, five years after, sold her to the Bayou Sara Packet Company she was still the property of the defendant’s .company, and the price he received was due and owing by him to the defendants.

It appears that from the time of the sale to him in 1863 to the time of the sale by him in 1867, the garnishee (Brown) was in quiet possession as owner, the bill of sale to him being recorded in the New Orleans Customhouse.

The garnishee excepted to the right of the plaintiffs to attack him by a process of garnishment, which is really a revocatory action in disguise, and he also pleaded the prescription of one year.

• If this be a revocatory action in the disguise of a garnishment, the exceptions of the garnishee should have been maintained. 19 An., page 16.

If, on the other hand, we proceed upon the theory of the plaintiff, that there was no sale to Brown by the company; that he sold their property in 1867, and owes them the price, and that this debt can now be seized by plaintiff, we find that the facts of the case will not support the theory.

There was a quorum of the defendant’s directors when the sale was determined on in 1863. The sale, after being made, was ratified by a meeting of the stockholders. It was made as matter of fact, and recorded in the Customhouse;, and the garnishee never heard any objection to it until March, 1868, when he was cited to answer the additional interrogatories in this case. The dealings across.the lines may have been unlawful, but the defendants, the vendors, could not plead their own unlawful conduct, nor can the plaintiff,'seizing their rights merely, plead it. Melior est conditio possidentis. If creditors are permitted, on behalf of their debtors, to disregard every sale made since 1861, which may have been concluded in contravention of the laws of war, the regulations of the United States Treasury, or the public policy of the country, a vista of litigation would be opened which it would be melancholy indeed to contemplate.

It is ordered that the judgment appealed from be reversed, and the traverse and other garnishment proceedings dismissed with costs in both courts. •

Rehearing refused.


author: Howell, J. Paul O. Hebert, Lddemng, C. J., JAMES G. TALIAFERRO.

text:
    No. 3859.
    P. O. Hebert, Tutor, etc., v. J. G. Winn et als.
    A person addicted to intemperance and subject to consequent fits of mental derangement, may make a will, if lie be compos mentis at tlie time, and tlie Irard6n falls upon those who assail such a will to show the existing insanity or incapacity of the testator at the time.
    A capricious bequest in a will does not constitute proof of insanity in the testator.
    Where a will has been made by a citizen of this State, while in another State of the Union, and has been admitted to probate there, or elsewhere before a court of competent jurisdiction, the presumption is that the will was executed and probated in accordance with the law of such State or place, and the party who attacks it, whether directly or indirectly, must defeat such presumption by sufficient proof.
    APPEAL from the Parish Court of Iberville. Adonis Petit, Parish. Judge.

      Mathews & Robertson, for plaintiff. Sims, Barrow & Pope, and A. & JS. B. Talbot, for defendants.
   Howell, J.

A motion to dismiss this appeal, on several grounds, accompanies tlie record, but does not seem to be urged by the movers. An examination of the grounds, however, satisfies us that they are insufficient. The delay in filing the transcript arose from tlie necessity of the appellants to take out a mandamus upon the clerk of the lower court. Tlie parties are all properly before the court, the appeal brought up having been taken on motion in open court at the same time when the judgment was rendered, and the appeal bond is in due form and signed by the security.

Motion refused.

On the Merits.

Paul O. Hebert,

tutor of his minor children, sues to annul the will and the probate of the will of George C. Vaughan, their maternal uncle, on the grounds of imbecility, insanity, and the want of capacity to dispose, arising from habitual drunkenness, and of the want of requisite legal forms.

I. It is contended that the testator was of unsound mind and notoriously insane on the sixth May, 1861 (the date of the will),, and incapable of disposing of his propperty by will or otherwise, and that Everard G. Winn, his maternal uncle, for the purpose of evading the laws of Louisiana, and with a knowledge of his incapacity, took him to another State, among strangers, where he extracted the pretended will from him.

The evidence is abundant that during the last ten years of his life Vaughan was an habitual drunkard, and subject to not infrequent attacks of mania apotu, but it does not satisfy a majority of the court that he was drunk and of unsound mind on the day when the will was executed. The four members of the family at whose house it was made, are xiositive as to this point, and the circumstances do not countervail their testimony. One addicted to intemperance, and subject to consequent fits of derangement may make a will, if he be compos mentis at the time. 15 La. 88. ' It is incumbent on those who assail such a. will to show the existing insanity or incapacity at the time,- whieh has not been done in this case. It is shown that Vaughan was a man of at least fair education, and when sober exhibited ordinary intelligence and good deportment. He was in the habit of hunting and fishing, and of visiting in the neighborhood where he was raised, and in the. State of Tennessee. Some of the young men among whom he grew up, and with some of whom he was at school, speaic of him in very favorable terms, when sober. As said in the case of Hart v. Thompson’s executor, above cited, in whieh drunkenness was a ground for •action: “The impression made on our minds by the whole testimony on this head is, that even admitting the general insanity of the deceased, which is by no means satisfactorily proved, there is abundant evidence that he was compos mentis and fully competent to make a will at the time he made it.”

Nor is there proof of any undue influence or fraudulent practices one the part of his uncle, E. G. Winn, to evade the laws of this State and extract the will from him as alleged. The circumstances of their leaving Louisiana together, the making of the will while absent, and their return to the State, as detailed in the record, are rather inconsistent with design, and are not sucli as to invalidate a will. Winn was the brother of Vaughan’s mother, a wealthy lady, had managed her large property for many years, and was kind and attentive to his intemperate nephew. While it appears that the relations between the testator and his brother-in-law, P. O. Hebert, were not of the kindest. The testimony of the Gillens shows that the making of the will was Vaughan’s voluntary act, when Winn does not appear to have been present. “ The influence to vitiate the act must amount-to force and coercion destroying free agency$ it must not be the influence of attachment or affection ; it must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground in support of a testamentary act; further, there must be proof that the act was obtained by this coercion — by importunity which could not be resisted.” Jannin on Wills, 114.

The fact that the will was made while the two were out of the State and after the testator had recovered from one of his attacks of delirium tremens, is no proof of an intention to evade the laws of this State. The dispositions of the will are not in conflict with our laws, the dictates of nature or the attachments of the testator.

It is urged, however, that the will itself contains internal evidence of his insanity, in that he left a legacy of $5000 to Miss Missouri Gillen, a stranger of but two days acquaintance. On this point the father of the legatee says: When he, the testator, said he wished to give Missouri Gillen $5000, I stopped writing, and told him she was not entitled to $5000. He then said that my family had been very kind to him, and that it was none of my business, for he was able to give her $10,000 and not hurt him. Then I wrote the clause.”

This may be evidence of caprice or a sudden generous impulse of gratitude, but not of insanity. Very many wills would be annulled ii such capricious bequests are proof of insanity. The law does not enter so suspiciously into the motives for every bequest in order to set aside a will.

II. The said will should be governed by the laws of Louisiana; it has not been proved as required by Louisiana law, and it is not shown tobe executed or probated according to Arkansas law, which, not being offered in evidence, must be presumed to be like our own.

By art. 1596 R. C. C. testaments made in foreign countries, or in the other States or Territories of the Union, take effect in this State, if they be clothed with all the formalities prescribed for the validity of wills in the place where they have been respectively made.

In the succession of McCandless, 3 A. 580, the benefit of this provision of law was accorded to a citizen of this State, who made his will in another, during his temporary absence from this, and after-wards returned and died here — there being no dispositson made contrary to our law and the policy, of our State. And it seems to be settled that, when a will is once admitted to probate in a court of competent-jurisdiction in this or another State or country, it creates, prima fade, a presumption that the will was executed and probated in accordance with the law of such place, and the party who attacks it, whether directly or indirectly, must defeat such presumption by some sufficient proof. 5 N. S. 48; 6 R. 239; 13 An. 575; Const. U. S., art. iv. § 1.

By arts. 1688 and 1689 R. C. C. testaments made in foreign countries and other States of the Union, can be carried into effect on property in this State, upon being registered in the court of proper jurisdiction and its execution ordered by the judge; and this registry or order will be authorized by the production of a duly certified copy of the proceedings and evidence in proof of the will and probate. 13 L. 221; 17 L. 4, 846; 2 R. 427. All this seems to have been done in this instance.

Our conclusion is that plaintiffs have not successfully assailed the will, and the probate of the will, of George C. Vaughan, and that the judgment appealed from should be reversed.

It seems that Missouri Gillen, the special legatee, did not prosecute her appeal, and being an appellee we can not correct the judgment as to her and her co-appellees.

It is, therefore, ordered that the judgment appealed from be reversed, and that there be judgment in favor of the heirs of Edward G. Winn herein, the universal legatees of George C. Vaughan, deceased, dismissing and rejecting the demand of plaintiffs; that the will of the said George C. Vaughan be decreed to be valid, and the said heirs of Winn, to wit, Independence G. Winn, Mary Winn wife of Henry Davis, and Alexander Winn and Cordelia Winn, represented by their natural tutrix, Mary Montgomery, widow of Edward G. Winn, be recognized as the universal legatees of the said George C. Vaughan, and entitled to the possession of all of his estate under said will. Costs of the lower court to be paid by the plaintiffs — those of appeal, by the appellees.

Lddemng, C. J.,

dissenting. I dissent from the opinion of a majority

of this court in regard to the capacity of George C. Vaughan to make a will on the sixth of May, 1861.

In my opinion the proof greatly preponderates in favor of the position that George C. Vaughn was an imbecile at the time, before and after he made the will, if he made it.

It is proved that for years before his death he was almost always drunk, and that he had several attacks of mama apotu; and the effort of the defendants in the court a qua seemed to be to find some one who had ever seen him when not under the influence of liquor. It is proved that in the latter part of the month of April, 1861, he had a violent attack of mania a jpotu, while in the city of Memphis, and that he was attended then by Doctors Tandell and Erskin. They state that after his recovery from said attack he was weak, mentally and physically, and that up to the period when they last saw him, the first of May, 1861, lie was not capable to make dispositions of his property. The will was made on the sixth of May.

Dr. Hall, who had been the family physician of Vaughan’s mother, says he attended Vaughan several times when he had mania apoiu, that he had known him many years before his death, and that for years before his death he was an imbecile, incapable of attending to any business. This evidence is corroborated by the testimony of Crowell, Cocker and Mrs. Cocker, Hebert, Besson and others. And several of the witnesses mention acts done by Vaughan, when apparently sober, which indicated want of capacity to transact the most ordinary business.

The evidence further shows that, after the death of the mother of Vaughan, E. Winn, the maternal uncle of Vaughan, said he would see to it that George C. Vaughan’s share of the mother’s property should go to his own children. The Gillen family testified that they did not know George C. Vaughan before he was brought to their house; that they had never heard of him until their uncle told them he was going to Memphis to bring him to their house. They testify that he was brought to their house on the third of May. Mrs. Gillen says she can not tell whether he was then drunk or not; that he was nervous and was sick, and that he remained nervous for three or four days after his arrival at their house. The will was made on the sixth of May, and Vaughan appears to have left their house shortly afterwards, for he is shown to have been in New Orleans about the fourteenth of May, drunk, dirty and ragged, and to have continued drunk until the attack of sickness of which he died, in June. The only witnesses who attested the will who testified in this case, are the members of the Gillen family, in favor of one of whom a legacy of five thousand dollars is made in the will. All the other witnesses are said to be dead or to have left the country, and the original will itself could not be found in the office in Arkansas,,where it should have been if in existence. Why was George C; Vaughan taken from Memphis, in the condition he was in, to Gillen’s landing, an obscure place, where a few wood-choppers and levee builders were staying? And why should he have' employed Gillen to write his will when it appears from Gillen’s own testimony that he was instructed by Vaughan as to the requisites of the will by the laws of Louisiana ? And why the bequest of five thousand dollars in favor of Missouri Gillen, whom he had never met until a day or two before? It requires more credulity than I possess to believe that the will was the voluntary act of George C. Vaughan. While, on the other hand, the evidence satisfies me that he had not the necessary capacity to make a will on the sixth of May, L861.

JAMES G. TALIAFERRO.

I concur in the dissenting opinion of the Chief Justice in this case.

Rehearing refused.


text:
    No. 2623.
    J. N. Shawhan v. J. J. Clarke.
    A person owning a horse and buggy is not responsible to anothez- for the dazaago caused by his horse running away with the buggy and running agaizist another horse and buggy, if the running away of his horse was not caused by his carelessness or negligence, but was caused by some other person or agency over which he could.exercise no control.
    APPEAL from the Sixth District Court, parish of Orleans. Cooley,. J.

      Hornor & Benedict, for plaintiff and appellee. Budd & Grover, for defendant and appellant.
   Howell, J.

Plaintiff' claims one thousand dollars as the value of a horse which died of injuries inflicted by a buggy and horse belonging to the defendant, and through his negligence. The defendant, besides the general issue, averred that at the time his team was properly secured and attended to, and that a runaway horse and buggy came into collision with his, breaking his buggy and causing his horse to break loose and run.

The evidence shows that each party had placed his horse and buggy not more than twelve or fifteen feet apart in the place allotted for such purposes in. the Fair Grounds, and each in charge of a boy or lad — the defendant having his animal also tied to a tree; Not long afterward, and while each of said teams was stationary and quiet, a third party, driving a horse and buggy rapidly, ran against the buggy of the defendant, injuring it and the harness, and causing the horse to break his fastenings, and in the fright ran suddenly against the plaintiff’s horse, inflicting a wound with the shaft of the buggy, which resulted fatally.

Under this state of facts the defendant was not guilty of negligence or fault, and he does not, .therefore, come within the application of articles 2315 and 2316 of the R. C. C. His animal was not vicious or unruly, was not running at large, but was fastened with at least ordinary care in the usual place, and where the plaintiff and others had put theirs. The collision produced by the horse and buggy of the third party, as asserted, was well calculated to frighten the defendant’s horse, and we do not think he can be held as guilty of negligenoe or fault in not having a horse that would not act as his did under the circumstances. The striking against defendant’s buggy, the breaking loose of his horse and running against that of plaintiff’s, are described as all occurring so suddenly and quickly that the persons nearest by could not prevent the injury complained of. The unknown driver of the horse and buggy which struck defendant’s seems to have been the cause of the disaster, and the defendant, it seems, endeavored to discover this person without success.

This case does not come within the provisions of article 2321 R. C. C. cited by plaintiff ’s counsel.

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

Rehearing refused.


author: Wyly, J.

text:
    No. 2661.
    Hulda L. Stanton, Administratrix, v. Henry S. Buckner.
    One partner of a commercial firm can not maintain an action against another partner for a specific sum of money alleged * to be due on account of partnership transactions. The remedy in such a case is to suo for a liquidation of the partnership. 13 An. 576.; 21 An. 582; 22 An. 429.
    from the Fourth District Court, parish of Orleans. Théard, J.

      Sernmes & Mott, for plaintiff and appellee. Lea, Finney & Miller, and Jamies B, Fustis, for defendant and appellant.
   Wyly, J.

The plaintiff, the administratix of the succession of Thomas H. Stanton, sues the defendant, Henry S. Buckner, for $13,000, alleging :

That said Thomas H. Stanton was a member of the commercial firms of Buckner, Stanton & Newman, of New Orleans, and of Stanton, Buckner & Newman, of Natchez, Mississippi, from the first September, 3859, to the first September, 1861. That said firms were composed of Henry S. Buckner and Samuel B. Newman, who reside in New Orleans, and attended exclusively to the business there, and of said Stanton, who resided and attended exclusively to the business in Natchez.
“ That the interest of said Stanton in said firms was one-eighth part of the whole. That he died in September, 1860. That on or about, or after the thirty-first August, 1861, the said Henry S. Buckner and S. B. Newman, the surviving partners of said firms, took possession of all the assets of said firms, treated them as their own, and as the sole proprietors thereof, settled with some of the debtors, gave time to others, ■usid the whole as capital in their business for their own account and profit, and regarded them its- so much cash on the thirty-first August, 1861, the day on which the interest of said.T. H. Stanton, as a partner, ceased, and to a proportion of which he was entitled, without reference ■to future liquidation, and therefore they passed to the credit of said T., H. Stanton’s ‘ new account ’ as a sum due his estate, from the profits of the business, thirteen thousand dollars, which with interest, now at the rate of eight per centum per annum, from the thirty-first August, 1861,. is due to petitioner in her aforesaid capacity of administratrix of' the succession of said T. H. Stanton.
That long subsequent to the death of said T. H. Stanton, the said Henry S. Buckner dissolved his connection in business with said S. B. Newman, and took into his possession as owner all the effects and assets of said firms, including the said balance of thirteen thousand dollars, which was set forth as one of the liabilities of their then firm; and the said Buckner then assumed all the liabilities and responsibilities of the said firms of Buckner, Stanton & Newman, and Stanton, Buckner & Newman, and is liable to petitioner for said sum of money, * * * * for which judgment is prayed.”

The defendant excepted to the action on the ground that the claim of the plaintiff is one growing out of the unliquidated transactions of the commercial firms of Buckner, Stanton & Newman, of New Orleans, and Stanton, Buckner & Newman, of Natchez, and that the affairs of said commercial firms have never been, finally liquidated and closed, but that they are now in process of liquidation and settlement, and that it is not competent for said plaintiff to have and maintain the-present action for the specific sum by her claimed in advance of the final settlement and liquidation of the affairs of said partnerships.

Reserving the benefit of this .exception, and without in any manner waiving it, the defendant answered; pleading a general denial, and a special denial that he owes the plaintiff any thing, and averring that upon a final settlement of the affairs of the commercial firms aforesaid, the estate of said Thomas H. Stanton will be fouud indebted to the respondent in a sum far exceeding the amount claimed by the petitioner.

The coui t referred the exception to the merits, and finally rejecting’ it, gave judgment for the plaintiff for $5562 70, the .balance found to be due the said Thomas H. Stanton at the dissolution of the partnership on the thirty-first August, 1861.

The defendant appeals, and the plaintiff prays that the judgment be increased to the full amount claimed in the petition.

That Thomas H. Stanton was a partner and owned an interest of. one-eighth in the commercial firms of Buckner, Stanton & Newman, of New Orleans, and' Stanton, Buckner & Newman, of Natchez, which firm ceased to exist on thirty-first August, 1861, is not disputed. .Nor is it disputed that his share of the assets at the dissolution amounted to $12,991 45. But the defendant contends, and the evidence shows, that this was not cash, but. only his part of the profits, .consisting of' claims believed to be good, belonging to said firms.

It is also shown that at the time of the dissolution said Thomas H.. Stanton owed the firms an individual debt of $7428 75.

After the death of Stanton his partners continued business, taking S. D. Stockman as a partner; and the new firms took charge of all the assets and have been liquidating the affairs of their predecessors.

The legal representative of the deceased has never demanded a partition, nor has she ever taken part in the settlement of the business of said firms. It is shown that over $300,000 of the assets, believed to be good at the close of the partnership in August, 1861, are now worthless ; and that said partnership was then largely involved in debts.

We think the exception of the defendant should be maintained, because there never has been a settlement of the commercial partnership of which the said Thomas H. Stanton was a partner. It is well settled that one partner has no action against another for a specific sum; he must sue for a liquidation of the partnership. 13 An. 576 ; 21 An. 582 ; 22 An. '429.

That the defendant “ took possession of all the assets of said firms, treated them as his own and as sole proprietor thereof, settled with some debtors, gave time to others, used the whole as capital in busi.ness,” might be a good cause for damages in the settlement of the partnership, if any resulted therefrom ; it is no ground to maintain the present action. That one partner became the negotiorum gestor might impose on him the obligation to use due diligence; it would not compel him to insure the validity of the claims he had undertaken to-collect; nor would it bind him to pay his associates if he was unable to collect them. Pratt v. McHatten, 11 An. 260.

That the defendant received the assets and assumed the liabilities of the firms of Buckner, Newman & Co., and. Buckner, Newman & Stock-man, in the final settlement with his copartners, does not concern the plaintiff, as the succession of Thomas H. Stanton was not a creditor of said firms for any specific sum. The rights of the latter can only be ascertained by a settlement of the partnership of which the deceased had been a member.

That the surviving partners, on the thirty-first of August, 1861, “passed to said T. H. Stanton’s new account, as a sum due his estate from the profits of the business,” $12,991 45, is of no consequence f it does not justify the present suit, because it was only a nominal credit, subject to a future liquidation, entered up in order to balance the books, as is explained by the evidence in the record; and of this-the executor of Thomas’H. Stanton was duly advised when the state-: ment of the account was rendered.

We find in the record the following letter, dated August 31-, 1861, from the surviving partners to the executor of Thomas H. Stanton, viz.:

As you are aware, the interest of our lamented friend and partner, Thomas H. Stanton, .ceases in our -business from this date. We have carried to the credit of his estate, nexo account with our Nathez firm, $12,991 45, which is his full distributive share of all profits for the year ending this date, including a reserve balance which stood over from the former year to credit of profit and loss.
“ This transfer is but a nominal credit for the purpose of balancing up our books, and will be paid over as we make collections, subject to Ms proportion of bad debts which may result against us in winding up our business. All our profits are outstanding, besides our half a million of dollars in bills receivable and open accounts of our customers, and we can not account for these profits until we realize them.
“ Our late partner had no capitalin our business, while both survivors have a large cash capital employed', and are also unable to realize now, which we name to show that all our interests are in the same position. ”

Newman, a witness of the plaintiff, states that at the dissolution of the partnership the actual state of Stanton’s account was a real debit •of $7428 75, and a nominal credit of $12991 45.” He further explains why Stanton’s whole account was not balanced; it was because “ he •could not .balance a real balance against a fictitious credit * * * .”

No fraud or bad faith is alleged against the defendant.

There is nothing presented in this case to justify a departure from ■the well-settled doctrine that one partner has no action for a specific •sum against the other; he must sue for a settlement of the partnership.

It is therefore ordered that the judgment appealed from be annulled and that this suit be dismissed at the costs of the plaintiff in both courts.


text:
    No. 3783.
    F. B. Lambeth, Widow, et als., v. F. B. De Bellevue, Collector, et als.
    ‘Questions in relation to tlie validity of judgments rendered against a parisli, and appropriations made by tlie police jury to pay tliem, with other accounts of the receiving and disbursing officers of the parish, cannot be inquirod into in an injunction suit taken out by a tax-payer against the tax collector of the parish. Nor can the right to the office of tax collector, or any other officer in the parish, be tested in such a proceeding.
    from the Seventh Judicial'District Court, parish of Avoyelles. Miller, J.

      Cullom & Walsh, for plaintiffs and appellants. A. H. Bordelon and L. J. Bucote, for defendants and appellees.
   Wyly, J.

The plaintiffs enjoin the collection of their State and parish taxes, amounting to $1378 69, alleging that the collector, De Bellevue, is not the duly qualified collector of State and parish taxes; that as to the parish tax, it is '“ exorbitant, oppressive and illegal;” that it was made to cover sums the parish does not owe; that those who made the appropriation were unauthorized to do so, being usurpers and not legally elected and qualified members of the police jury ; that they could not stand in judgment as a police jury, and all the judgments rendered against Evariste J. Joffrion and Armand D. Lafargue, as presidents of the police jury of Avoyelles, at different periods, are not and can not be made executory against said parish, because they were not presidents of any legally constituted police jury ; that the appropriation allowed is extravagant and unjust, because the account allowed Ducote, sheriff, for his services, is exorbitant, and is without precedent in the history of the parish j that the account of Edwards for printing parish warrants is also unjust, illegal and oppressive, and should not have been allowed; that the entire appropriation of $10,433 is illegal and oppressive, because the said usurpers had no authority to make it¡ and because the amount thereof has not been expended for the benefit of the parish; that the amount for which the vaiious judgments have been rendered against the parish should not be collected, ■because the parish is not liable, as the forms of law were not observed by the police jury in authorizing the undertaking,” in virtue of which the debts were contracted to be paid ; that the items of expenditure for which the taxes were assessed were not published according to law; that said judgments against the parish are void, because the usurpers, pretending to be police jurors, did not, when contracting the debts for which the judgments were rendered, provide for the raising of funds to pay said debts; that the subsequent attempt to raise money to pay them is unconstitutional and void, and those who sought to bind the parish by said judgments are without recourse upon said parish j that said judgments are void, and all the appropriations by said illegal and unauthorized persons styling themselves police jurors are null and of no effect.

The prayer of the petition is that the judgments against the parish be annulled, and also the appropriations to pay the same; that the account of Ducote, sheriff, be declared extravagant, unjust and illegal; that the account of Frank and Edwards be also declared unjust, exorbitant and undue; that the commissions allowed the collector be declared exorbitant, and the sum appropriated therefor be disallowed, it having been allowed by individuals who were without authority to bind the parish; that the assessments be declared null; that the office •of assessor of the parish of Avoyelles be declared vacant, and that De Bellevue, the tax-collector, be enjoined from collecting the various assessments for State and parish taxes against them, amounting to $1378 69, and for general relief.

The answer is a general denial.

The court rejected plaintiffs’ demand and dissolved the injunction,, and they have appealed.

The evidence shows that the tax collector is a legal officer and entitled to collect the taxes.

The title of the members of the police jury to the offices administered by them can not be inquired into in this form of proceeding. That they are bad financiers and have made extravagant appropriations are questions that this court can not determine. As they are to a limited extent a branch of the political department, they necessarily have some discretion in administering parochial affairs. If they have displayed little discretion, and have not administered the business of 'the parish prudently and economically, it is a misfortune incident to every species-of' legislation. The courts will not undertake to exercise a supervisory control over these organizations.

It is only when they have violated some special provision of the law, or where they have acted without authority, that the court in a proper proceeding will interfere and correct the evil.

The police jury in the case before us seems to have complied substantially with the law in making the appropriations; and although some of the aecoitnts which it has allowed and proposed to pay may be extravagant, they are, nevertheless, debts due by the parish, and such as the police jury may legally pay.

* As to the judgments against the parish, they have the force and effect of the thing adjudged, and, their validity can not be questioned in this collateral attack. No pretext whatever is set up or shown for enjoining the collection of the State taxes.

Indeed, the whole proceeding shows a palpable desire on the part, of the plaintiffs to avoid the payment of taxes. There are several questions argued in the brief which we will not notice, because n'O issues of the kind are made in the pleadings or stated in the petition as grounds-for the injunction. It is shown, however, that the collector added twenty-five per cent, to the amount which he was ordered by the court to collect, in order to pay the several judgments against the parish; and that he added this sum to cover the expense of collecting, which was ten per cent., and also to allow for delinquencies, there being many persons on the tax rolls who would not be able to pay their part of this special tax. It is shown that the police jury has been in the-habit of allowing this extra sum to cover delinquencies. It would be impossible for the collector, when making the assessment under the judgments of the court, to know the exact amount to collect from each person, so that when the collection is over there will remain no surplus in his hands. - He can not know how many will prove delinquent, and how promptly others will pay, while the interest on the judgments is increasing in the meantime. Under the circumstances we think the collector was not unreasonable in adding the twenty-five per cent, to cover expenses of collecting and the deficiency resulting from the delinquent list. If there shall be any sum remaining from this special assessment to pay the judgments against the parish, of course it must. be returned to the owners thereof. The collector thinks, after all the, collectable tax claims are enforced, there may be a surplus of $2700 of the fund to pay judgments. If so, the surplus ought to be returned to the several tax-payers, in proportion to the amount overpaid by each. Whether there will be enough without collecting the taxes from the defendants is no ground for them to urge in support of the injunction.

That others have been more honest is no reason for them to refuse' to pay taxes.

It is therefore ordered that the judgment herein be affirmed with .costs, without prejudice to the defendants to claim any surplus- that may be due them out of the special tax, it any shall remain after the' collection is completed, and the judgments, interest and costs, and also the costs of collecting the tax, are all paid.

Behearing refused.