author: McEnery, J.

text:
    No. 10,457.
    Madame Félix Montégut vs. Paul A. Bacas, Executor.
    The wife inherits from her husband who has left no lawful ascendants or descend - ants, or lawful collateral relatives, to the exclusion of his natural collaterals. There is no law authorizing the aunt to inherit from her illegitimate nephew. “ Collaterals,” as used in Act 917, O. C., means lawful collateral relatives.
    An illegitimate person having no lawful ascendants can not have lawfuleollateral relations.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightorj J.

      W. S. Benedict and J. J. E, Blanchard for Plaintiff and Appellant:
    •1. "When a person claiming a succession as heir of the deceased, announces a state of fact which fails to disclose any right in her to the inheritance under existing laws, her demand must be dismissed for want of cause or right.
    2. Whore the expressions in the French text of the Code are more comprehensive than those in the English, or rice versa, the more enlarged sense will he taken, as thus full effect will Ido given to both clauses. 2 N. S. 582; .34 An. 1280.
    3. Legal succession is that which the law has established in favor of the nearest ir~ legitimate relation of the deceased. C. 0.877 (878); sec French text, O. O. SS6 (882).
    4. “ Legitimate relations are those issued from marriages valid in laic, or contracted in good faith, either by tlic'two spouses or by one of thorn alone.” Ohabot, Des Successions, 5th Edition, Vol. I, id. 8, No. li. Therefore the legitimate child of a natural aunt of the deceased is not his legitimate relation.
    5. “No statute authorizes the legitimate descendants of a natural aunt of the deceased to set up such an illegitimate relationship as a basis of inheritance, which is the creature of positive law.” O. O. 917 (911), read French text; O. O. 921 (915); Succession of Fletcher, 11 An. 59, quoting 5R.9; 6 L. 644.
    6. In our legislation, sustained by a un iform jurisprudence, the surviving wife is preferred. to all the natural relations of the lutsbamd, and he to all her natural relations except those in the descending line. O. 0.924 (918), 917 (911), 929 (928), and French texts; Victor vs. Tagiaseo, Executor, 6 D. 646; Succession of Miller, 27 An. 575; Succession of Ducloslangc, 2 An. 98 and 99.
    7. The articles It. O. O. 917, 922,923, 924 and 929 being all included in the same chapter under the title of “ Irregular Successions,” and having for object to regulate the manner and order in which tlicriglit of inheritance is to be exercised, must be regarded as one continuous act of legislation in pari materia, and construed in reference to each other, so as to give effect to each. They therefore must be read as if written as set forth in this brief (at pp. 7 and 8), with the interpolations therein contained in italics. 11 An. 120; 5 It. 211; 11 An. 180.

      Jme. Meunier for Defendant and Appellee.
   The opinion of the court was delivered by

McEnery, J.

This is an appeal from a judgment sustaining an exception of no cause of action to plaintiff’s petition. Petitioner alleges that she is the sole and only heir of the marriage of her mother, Seraphine Meulion, to Jacques Perrand; that her mother had a natural sister named Marie Joseph LeDue, who cohabited with one Philip Ross, and had by him one natural child, called Philip Ross, Jr. He acquired property and married Eugenie Alza. He died intestate and without issue on the 9th of February, 1864. His widow was recognized as his heir and placed in possession of his property. Mrs. Ross made a will giving the property she inherited from her husband' to her sister, Adele Faure. She made a will appointing Paul A. Bacas executor, and he was also the executor appointed in the will of Mrs. Ross.

Both wills were probated and letters testamentary issued to Bacas. All the parties to the late will are made defendants and the prayer ■of the petition is that all the proceedings had in the successions of Ross, Mrs. Ross and Adele Faure be decreed null and void, and the petitioner be placed in possession of the property purely and simply, in the succession of Philip Ross, Jr., as the petitioner is the sole and ■only heir of Philip Ross, Sr.

The plaintiff alleges that under Art. 9P7, C. 0., natural collaterals inherit, and that she is the nearest collateral and is entitled to inherit from Philip Ross, Jr., as he died without leaving lawful ascendant or ■descendants, to the exclusion of his surviving widow.

The article is free from ambiguity.

Lawful collaterals only can inherit, except where the law under certain conditions has favored the natural brothers and sisters and designated them as heirs and directs that the estate of the natural brother or sister deceased shall pass to them or their descendants. O. O. 928.

A natural child can not have an illegitimate ancestor and collateral relatives capable of inheriting from him other than the brother and ■sister or their descendants under the conditions prescribed in Art. 928, O. O.

An illegitimate child has no relatives in a legal sense in the ascending or collateral line.. C. 0.288.

He has no heritable blood, and therefore can not share in the estate ■of his legitimate relations. O. O. 921.

And he can only transmit his succession to such irregular heirs as the law designates.

The Civil Code mentions three kinds of succession — testamentary, legal and irregular; and there are three kinds of heirs eoiTesponding to these successions — testamentary or instituted heirs, legal heirs or heirs of the blood, and irregular heirs. C. C., Art. 875, 879.

The nearest blood relative capable of inheriting is the heir in a legal succession.

An irregular succession is that which is established by law in favor of certain persons or of the State, in default of heirs, either legal or instituted by testament. O. C. 878.

In Art. 917, C. C., therefore, “collateral relations” refer to legal or lawful collaterals.

In the Code, Chap. Ill, “Of Irregular Successions,” there is no disposition made in favor of any natural collateral kindred except the brother and sister and their descendants.

Under the Code the wife is preferred to all the natural relatives of the husband, who are called to his succession and designated in the chapter of Irregular Successions.” Victor vs. Tagiasco, 6 L. 646; Succession of Ducloslange, 2 An. 98; Sayre vs. Pasco, 5 R. 9; Succession of Fletcher, 11 An. 59; Duplessis vs. Young, 11 An. 120.

The right of inheritance is created by law. There is no statutory provision authorizing the uncle or the aunt of an illegitimate person to inherit from him. 11 An. 59; Succession of Miller, 27 An. 374.

In this ease — Succession of Miller — the facts presented and the issue decided are identical with those in instant case.

Miller was illegitimate. He married and died intestate without issue, leaving a surviving widow. His uncle and aunt brought suit to be placed as his sole heirs in possession of his estate. Their pretensions were dismissed, and this court said in offering the judgment appealed from, “the surviving wife was left without competitors for the kinship and was properly decreed entitled to the property.”

Judgment affirmed.


source: Caselaw Access Project

author: McEnery, J. Roché, J.,

license: Public Domain

text:
    No. 10,362.
    Mrs. Margaret McClendon vs. James L. Bradford.
    An- agent can not acquire an interest adverse to his principal. II he purchases property of which he has the management and which belongs to his principal he must be considered as holding it as a constructive trust tor his principal. He can not deny the title ot the principal to the property of which he has the agency. Nor can he dispute the capacity of the principal to sue.

      A counter letter retained by an agent who sells property for Jiis principal showing that a less sum was received than that actually expressed in the deed can have no effect against the principal, not a party thereto,'who sues to recover the price of the properly.
    PPEAL from the Civil District Court for the Parish pf Orleans. Ellis, J.

      W. S. Parkerson for Plaintiff and Appellee.

      Singleton, Br&wne & Choate and Henry C. Miller for Defendant and Appellant.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff sues as the administratrix of her husband’s succession to recover from the defendant the sum of $8,000, the value of certain lands illegally sold by defendant as the agent and attorney of said succession.

The defence is a general denial, the prescription of five and ten years. He specially denies that the plaintiff is the administratrix of the succession of McClendon, and has any authority to bring this suit. He also alleges that he purchased the scrip with which the land was located at the succession sale of Rosanna Harris for the benefit of the law firm of R. H. & J. L. Bradford, of which the defendant was a member; that patents for said land issued to said firm, who had a right to dispose of said land, and that said firm sold the same, and is in no way accountable to the succession of McClendon for the proceeds of the sale.

The following facts are conclusively established by the record:

R. H. Bradford, an attorney at law and land agent, and the brother of the defendant, had for collection in' scrip, the land claim against the Federal Government of the heirs of Rosanna Harris and G. B. McClendon, each for 640 acres.

In 1870 the defendant formed a partnership with his brother, R. H. Bradford, and this firm undertook the collection and location of the scrip for the succession of McClendon, which had become the owner of the same through the purchase by J. B. McClendon, in his lifetime, of the interest of the heirs of Rosanna Harris.

Although it is denied with vigor and earnestness and with apparent sincerity, we are satisfied by the correspondence of the defendant with the heirs of Rosanna Harris, the Widow McClendon, and her attorney O. B. Arnicas, that he had been informed of the purchase of the Rosanna Harris claim by J. B. McClendon, and that said law firm of R. H. & J. L. Bradford engaged to obtain the scrip and locate the same for one-half thereof for the successson of Mc-Clendon. The contract of R. H. Bradford with the heirs of Rosanna Harris and J. B. McClendon was for 25 per cent.

The authority of said, firm went no further than to locate the scrip. It had no authority to sell the land selected and upon which the scrip was located. The selections were made in Nebraska and the land sold by the defendant for §5 per acre, patents for the same having issued to the firm of R. H. & J. L. Bradford in pursuance of their purchase of the land eiaim of Rosanna Harris at succession sale.

The claim of McClendon was satisfactorily adjusted and executed for to the succession of McClendon by the defendant.

There had been protracted delays in settling the Rosanna Harris land claim, caused in some measure by the parties in interest failing to communicate with each other, and the failure on the part of the succession of McClendon to furnish proof of ownership of the Rosanna Plarris claim, so that patents for the selected land could issue to said succession.

Under these circumstances it was but natural for the defendant to become impatient. His firm had expended labor, time and money in the prosecution of the claim, and to save his firm for these expenditures he, no doubt, thought it expedient to purchase the claim of Rosanna Harris at her succession sale. But as the agent and attorney, at first of the heirs of Rosanna Harris, and afterwards of the succession of McClendon, the law firm of R. H. & J. L. Bradford could not acquire any title adverse to the interest of either.

The title they obtained to said Rosanna Harris land claim, and through which they obtained patents issued to them as the owners of the same, must inure to the benefit of the parties whom they represented. It was a constructive trust which they held for the benefit of their principal. Ringo vs. Benos, 10 Peters, 270; Michaud vs. Girod, 4 How. 503; Meehan vs. York, 13 An. 18; Downward vs. Hadley, — Ind. —; 18 N. E. R. 457.

The deed in the record shows that the land was sold by defendant for $5 per acre. A counter letter was retained by R. H. & J. L. Bradford, stating that the land sold for a less sum than that expressed in the deed as its price. This was offered in evidence by defendant and rejected. This letter could have no effect against the succession of McClendon, which was a stranger to the sale.

This suit is for the purpose of obtaining the price of the property illegally sold, and the firm of R. H. & J. L. Bradford cannot be heard to allege a different price from that stated in the deed.

There is no evidence in the record that the land was worth any more or less than that for which it was sold. The price stated in the deed must therefore be accepted as the value of the property.

Since the demand made upon the defendant, and the institution of this suit, the necessary time for prescription has not run.

There is no error in the judgment appealed from, and it is therefore affirmed.

On Application for Rehearing.

Roché, J.,

Dissenting. A second and a very thorough examination of this case has led me to the conclusion that we erred in our opiuion in denying to defendant the right of proving the actual price which he had obtained for the lands which he had sold and for which he is held accountable to plaintiff.

Through that refusal he is condemned to¿pay a much larger sum than the amount which he received for account of his principal, who should have been held bound for all the acts of her agent, which she had not repudiated.

Finding it unnecessary to further elaborate my views, I think that the case should have been reopened and remanded for the purpose of taking evidence on that point.

I therefore dissent from the decree refusing a rehearing of the ease.


author: Bermitdioz, C. J.

text:
    No. 10,458.
    Hermann Newgass vs. City of New Orleans.
    In the absence of express legislative authority, a municipal corporation lias no power to utter unconditional obligations to pay money.
    It may', however, issue evidences of liability' for consideration received, for ultimate payment, depending upon contingencies, which must have happened before any right of action can accrue.

      Oort ¡lientos oí indebtedness, filled in the name oí municipal creditors or bearer, by certain authorized city oflicials, are not unconditional obligations to pay, and. are not negotiable or transferable instruments, which pass title by mere delivery, particularly where the ordinance sanctioning their issue and which is printed on the reverse thereof, requires, as a condition precedent for their utlerance, that a receipt be signed therefor by the parly therein named, and when such signature has not been furnished.
    The manner in which the certificates left tin* city’s possession, whether fraudulently or not, and the good faith of the holder for value, and in due course of business, are no factors in the case.
    Such instruments, even when signed for, previous to delivery by the city, are not obligations to pay. They are simply evidences of transferable ownership under the ordinance, and do not entitle the just owner to any money, but only to a warrant for money to lx* paid out of funds, when any in the treasury.
    A PPEAL from the Civil District Court for the Parish of Orleans. Ix Monroe, J.

    IF. S. Benedict for Plaintiff and Appellant.

      Francis B. Lee, Assistant City Attorney, Oarleton Hunt, City Attorney, and Walter H. Rogers for Defendant and Appellee.
   The opinion of the court was delivered by

Bermitdioz, C. J.

The question to be determined in this case involves the right of the plaintiff to recover from the City of New Orleans, as holder of certain certificates of indebtedness, issued by the Comptroller and Mayor, in the name of the city, under a certain ordinance, in favor of parties named therein, or bearer, and which on their face purport to be evidences of liability; in other words: whether such vouchers can be assimilated to ordinary promissory notes, State or municipal bonds, and such as can be recovered upon by holders in good faith and for value, etc.

Substantially, the answer is a denial of ownership in plaintiff and of the right to sue and a declaration of the worthlessness of the instruments', and the assertion, under any contingency, of the right of setting up equities destructive of the rights of plaintiff.

From a judgment of dismissal plaintiff appealed.

In April, 1881, and in June, 1888, Ordinances Nos. 6968 A. S., and 347 C. S., were adopted by the City Council of New Orleans, authorizing the issuance oí certificates of indebtedness to certain creditors of the city, to be signed by the Comptroller and the Mayor.

They are to the effect:

1. That any creditor of the city to whom the appropriation has been made, but in whose favor the Comptroller can not draw a warrant until there be money in the-treasury to the credit of the appropriate account, nor otherwise appropriated, shall be authorized, upon demand, to receive a transferable certificate of ownership entitling him or bearer to receive a cash warrant.

2. That the creditor shall sign a receipt therefor, stipulating that the cash warrant shall be claimed only on the surrender of the certificate, and the acceptance of the warrant shall be an acceptance of the conditions of the ordinance.

3. That the warrant shall issue strictly in the order of the promulgation of the appropriating ordinance.

4. That the certificate shall not novate or affect the nature of the claim, but shall be simply an evidence of transferable ownership. . . .

5. That the certificate shall state upon its face the nature and effect of its issue, with numbers, dates and names, and that upon its reverse the ordinance shall be printed.

Ordinance 347, O. S., contains the form of the certificate mentioned in it and which reads as follows:

“ Office of the Comptroller.

Certificate of Ownership of Appropriation.

“ Issued under Ordinance No. H47, C. S., .approved Jwne 26', hSti.f.

“ New Orleans,-, 188 — .

“This is to certify that under Ordinance No. —, adopted---188 — , the sum of §— has been appropriated to-for and on account of-, and the said-, or bearer hereof, shall, upon the surrender of this certificate (and not otherwise) be entitled to receive in the order of the promulgation of said ordinance a cash warrant on the Treasurer on any fund in the treasury to the credit of the appropriate fund, and not otherwise appropriated.

“ It is herein specially agreed to by the holder of this certificate that it bears no interest-, and shall not novate, nor in any manner affect, the nature of the claim against the city under the ordinance referred to, but shall be simply an evidence of transferable ownership thereof: and whenever the ordinance, or that portion of it to which this certificate applies, is paid or canceled by being tendered and received in payment of taxes when authorized by law, then this certificate shall be surrendered to the office of the Comptroller.

“..............., Comptroller.

u..............., Mayor.”

The certificates sued on are in that form and bear on their reverse a copy of the ordinance. Naturally the blanks are filled up.

The right of municipal corporations to borrow money and to issue negotiable securities has frequently been questioned, and although judicial adjudications on the subject may have considered it from different standpoints, recognizing or denying it according to circumstances, it may now be admitted as settled that they can do neither without express legislative sanction or irresistible implication.

After reviewing all the authorities on the subject, Mr. Dillon says that he regards it as the true doctrine, that, as incidental to the discharge of its ordinary corporate functions, no municipal or public corporation has the right to invest any instrument it may issue, whatever its form, with that supreme and dangerous attribute of commercial paper which insulates the holder for value, from equities which attach to its inception, and he adds that this point should be guarded by the courts with the utmost vigilance. Sec. 126, Mun. Oorp.

The consequences of recognizing such a power, in the extravagance it will stimulate, in the frauds it will engender and in the ruinous indebtedness it will^inevitably produce, are alarming to contemplate. Paragraph 2 of Sec. 125.

Further on he says, that although warrants or orders, negotiable in form, may be made by the proper municipal officers, and, in many States, may be transferred by delivery or indorsement, and the holder may sue thereon, yet they are not commercial or negotiable paper in the hands of holders, which exclude inquiry into the legality of their issue, or preclude defence thereto. They are not bills of exchange. See. 487. Such warrants and orders are not intended to have the qualities of negotiable paper; but are instruments authorized for convenient use in conducting the current or ordinary business of the corporation and as a means of anticipating its ordinary revenue. It would overwhelm municipalities with ruin, to hold that they protect an innocent holder for value from defences of which he has no notice, actual or constructive. All holders of such orders even when payable to bearer, stand in the shoes of the payee, and the rights and remedies are essentially different from those of the holders of authorized [negotiable municipal bonds. Such is the sound doctrine and such the authorities, almost without exception. See. 508.

In the case of Mayor vs. Ray, 19 Wall. 477, it was said that vouchers for money due, certificates of indebtedness for services rendered or for property furnished for the uses of the city, orders or drafts, drawn by one city officer upon another, or any other device of the kind, and for liquidating the amount legitimately due to public creditors, are of course necessary instruments for carrying on the machinery of municipal administration and for anticipating the collection of taxes; but to invest such documents with the character and incidents of commercial paper as to render them in the hands of bona fide holders,absolute obligations to pay, however irregularly or fraudulently issued, is an abuse of their true character and purpose. It has the effect of converting a municipal corporation into a trading company, and puts it in the power of corrupt officials to involve a political community in inevitable bankruptcy. No such power ought to exist, unless conferred by legislative enactment, either express or clearly implied. Every holder of a city order or certificate knows that, to be valid or,'genuine at all, it must have been issued as a voucher for city indebtedness. It could not lawfully .issue for any other purpose. He must take it, therefore, subject to the risk that it has been lawfully and properly issued. His claim to be a bona fide holder will always be subject to this qualification.

The face of the paper itself is notice to him that its validity depends upon the regularity of its issue.

The officers of the city have no authority to issue for any illegal or improper purpose, and their acts can not create an estoppel against the city itself, its tax payers, or people. Persons receiving it from them know whether it issued and whether they receive it for a purpose and a proper consideration. Of course, they are affected by the absence of these essential ingredients, and all subsequent holders take cum onere, and are affected by the 'same defect.

This ruling is in perfect accord with what the same court had shortly before held. See Police Jury vs. Britton, 15 Wall. 566; see also Parsons vs. Monmouth, 70 Me. 262.

In this State, instruments of such character have been declared not to be commercial or negotiable paper. State ex rel. Board vs. Hernandez, 31 An. 161; State ex rel. Daunoy vs. City, O. B. 52, folio 289; State ex rel. Newman vs. Lusher, O. B. 50, folio 571.

It is therefore patent that whatever the form be, the certificates sued on, they are not negotiable and transmissible, as is claimed by the plaintiff.

A simple inspection of them suffices to justify this conclusion.

They are instruments consisting of face and reverse, which must be read as one, in each instance, from the eight corners.

Although they purport to be certificates of indebtedness in favor of creditors of the city, in whose favor an appropriation has been made by a designated ordinance, they are not unconditional obligations to pay money. They refer to the ordinance under which they were prepared and which, printed on the back, forms part of them; they give the name of the creditor entitled to receive same, whose name must be on the city’s books; they show that they can not be uttered unless the receipt mentioned in the ordinance be first given; they are simply, under the terms of the ordinance, evidence of transferable ownership; they do not call for money on presentation; they fix no time for maturity; they are merely convertible into a cash warrant and subjected to other contingencies, useless to specify. They are not indorsed by the party whose name they contain, or by any agent or transferee of his. They are not even conditional obligations to pay any amount. How then can it be claimed, with any sincerity, that they can be assimilated to ordinary notes and bonds?

Por the purposes of this controversy it is immaterial how they left the hands of the city officials who signed them, whether fraudulently or otherwise, and whether the plaintiff is or not holder in good faith, for value and in due course of business.

Prom the very language of the ordinance, which forms part of them, they could not have been uttered by the city officers authorized to emit them unless the parties to whom they accrued had previously signed therefor, as a condition precedent for delivery, a specific receipt containing certain stipulations, as parts of a new contract.

There is no evidence that such receipt was ever signed by the parties named in the certificates, their agent or transferee; so that, even if the certificates were obligations to p'ay, which they are not, their emission to the creditor could have vested title in him, to them, only on his signature of the receipt, and this formality having been imposed as a prerequisite by the ordinance printed on the back of the certificates and forming part thereof and not having been observed, the ownership of the certificates would not pass to plaintiff.

To all intents and purposes, those certificates are in legal contejnplation still in the possession of the city, subject to the order or receipt of such parties, their agent or transferee; so much so, that, if the city were to satisfy the-demand of'plaintiff the original parties might have cause to complain and require another payment to themselves.

Surely, the plaintiff in this case has no greater rights than the parties whose names the certificates bear. Oonceding that those parties have either signed the receipt in question, or indorsed over the certificate in blank to the plaintiff, it does not follow that the plaintiff would be entitled to the money judgment which he seeks, for the obvious reason that the parties named in the certificates could not themselves have obtained it, inasmuch as, under the ordinance which forms part of the certificate, all that the creditor could claim would be a warrant on the Treasurer, to be paid out of the appropriated fund in the city coffers, in the order stated in the ordinance.

The demand is not for any such warrant, and if it were it could not be allowed, as there is no evidence that there is money in the treasury appropriated to the payment of the debt or claim for which the warrant would have issued.

Judgment affirmed.


author: Funner, J.

text:
    No. 10,509.
    J. M. O. Cadiére vs. Adolphe Gaidry. Philip Thompson, Intervenor.
    1. In questions oí IrimcUilont simulations, Rilé relations between the parties, such as those oí brotlier-in-law and employee, are circumstances entitled to due weight, but they are not inconsistent with the honest relation of debtor and • creditor, nor do they deprive the creditor of legal recourse for the enforcement of his debt.
    . In this ease the evidence circumstantially explains the origin and nature of the debt, and the motive of the proceeding is uncontradicted, and is supported not only by the testimony of the parties, but by numerous collateral facts proved by other witnesses.

      APPEAL from the Nineteenth District Court, Parish of Terrebonne. Allen, J.

      Walter J. Southern and Leonard C. Moise for Plaintiff and Appellee.
    • W. S. Parkerson tor Intervenor and Appellant.
   The opinion of the court was delivered by

Funner, J.

On January 21, 1889, the plaintiff, Oadiére, brought suit against Gaidry on two notes, one for $2,100 the other for $500, and attached the property of defendant. This was followed by numerous other attachments at the suit of other creditors, and, .amongst them, one of Philip Thompson, the present intervenor and .appellant. Thompson, after having instituted his own attachment proceeding, intervened in this suit by a petition in which he averred, substantially, that Oadiére was not a creditor of defendant, that the notes sued on by him, which purported to have been executed in 1886, were not executed at that time, but were issued only a few days before the suit “withthe view of instituting said suit under a . scheme concocted between said Gaidry and said Oadiére to cover up the property of said Gaidry and to defraud his creditors.”

He prayed for judgment decreeing that Oadiére was not a creditor, that his claim was fraudulent and simulated, the result of a fraudulent conspiracy, that Cadiére’s attachment should be set aside and that intervenor’s attachment be ranked as the first privilege on the property.

These allegations were denied by Oadiére, and on these issues the case went to trial.

The judge a quo rejected the demand of the intervenor and maintained Cadiere's attachment.

We have critically examined the evidence.

Oadiére is the brother-in-law of Gaidry, and had been his employee prior to the suit. These are circumstances which have their weight in controversies of this nature; but they are not inconsistent with the honest relation of debtor and creditor, nor do they deprive the creditor of legal recourse for the enforcement of his debt. There is no other circumstance that we have been able to discover in the evidence that throws the slightest suspicion upon the verity of Cadiére’s debt and the honesty of his proceeding. On the contrary, the evidence circumstantially explains the origin and nature of the debt and the motive of his proceeding, sustained not only by the testimony of the parties, but by collateral facts fully proved by other witnesses.

We need not detail this evidence; it is uncontradicted and fully satisfies us that intervenor’s charges are unfounded.

Intervenor’s counsel quotes Judge Manning’s epigrammatic expression that “simulation is sometimes difficult of detection, but dunderheads are sure to furnish the means for unveiling their awkwardly concocted schemes.” 86 An. 199.

We are convinced there is no simulation in this case, but if there be, the parties to it are certainly not dunderheads.

Judgment affirmed.


author: Poohé, J.

text:
    No. 10,526.
    Meyer Weill vs. L. A. Trosclair et al.
    The holder of accommodation paper acquired before maturity, without notice or knowledge of any equities or agreement existing-between the maker and tlie. payee of the note, is entitled to the same protection which is extended to the holder of negotiable paper acquired before maturity.
    The defence, in a suit on the note, that the. maker is not liable thereon, on the ground that tlie note was executed as an accommodation for the payee and tlie suing- holder, must be clearly proved in order to prevail.
    In such a case1 tlie burden of evidence is on the maker urging that defence.
    PPEAL from the Twentieth District Court, Parish of Lafourche. Beattie, J.

      Knobloeh & Moore for Plaintiff ,and Appellee.

      O’Sullivan & Knobloeh for Defendants and Appellants.
   The opinion of the court was delivered by

Poohé, J.

Defendants resist the payment of a promissory note executed by them jointly in December, 1884, payable ten months after date to the order of, and endorsed by, the agricultural firm of Ooulon & Bernard, and now held by plaintiff.

Their defence is that they received no consideration for the note, which they executed as an accommodation “ for the purpose of assisting the payees thereof, Ooulon & Bernard, and the plaintiff herein, of which fact the said plaintiff was fully cognizant, and received said note fully aware at the time the said note was transferred to him and became his, that your defendants received no consideration therefor.” The words herein italicized are transcribed from their answer. They prosecute this appeal from a judgment in favor of plaintiff.

The undisputed facts of the case are: That in 1884, plaintiff, who was the commission merchant of Ooulon & Bernard, sugar planters, having made advances on their crop of that year, and being called on for an additional loan, refused to make the same without security. Whereupon the note now sued on was produced by Ooulon for his firm, for whose account it was discounted by plaintiff, who placed nett proceeds to their credit.

It is in proof that Ooulon represented to the defendants that the note which they executed at his urgent request, was purely an ae - cómmodation, to be used by Weill in borrowing money thereon, with the full and distinct understanding that Weill would never look to the makers for payment.

The testimony is very conflicting on all other points in the case, principally on the alleged knowledge of and ratification by plaintiff of the representation made of the matter by Ooulon to the defendants. As the note was acquired by plaintiff long before maturity, proof of that knowledge on his part is a legal requisite to defeat his right of recovery on the note.

He admits that he knew that the note was an accommodation, and he states that he advanced his money on that very consideration, but he disclaims any knowledge of any equities or agreement which might have been stipulated between the makers and the payees of the note, as contended for by the defendants.

In such cases the rights of the holder of accommodation paper are settled as follows:

“A defendant may, in general, make the defence of want of consideration against a remote party, if he could have made it against a nearer party, and the remote party took the paper from the nearer partj- with a knowledge that it was open to this defence. But a very important exception to this rule prevails in the case of accommodation paper. The plain reason of this is that the accommodation maker, acceptor or indorser, intends to lend his credit, and does it as a favor to some party who pays him nothing. This party therefore can never sue him, or if he does, the want of consideration will be a perfect defence. But if this accommodated party uses the credit he has borrowed by selling the note or getting it discounted, the holder may say: I bought the note or discounted it for the very reason that you had lent your credit on it, and I took it on the faith of your credit.’ We must therefore understand the legal definition of an accommodation party to negotiable paper to be one who puts his name there without any consideration, with the intention of binding his credit to the accommodated party.” Parsons on Notes and Bills, page 183; Edwards on Bills and Notes, Sec. 316; Bank vs. Cason, 39 An. 865; Sadler vs. White, 14 An. 177.

After a careful study of the record, we conclude that defendants has not only failed to prove that plaintiff knew and acted on the knowledge that the note was executed and intended as an accommodation to himself, but that the preponderance of the evidence goes far to establish the reverse or negative of that proposition.

From the testimony of one of the defendants himself, it appears that, after several conversations with Weill, in which he understood the latter to have released him and his brother and partner from any liability on the note, in the last interview on the subject, Weill had offered to “knock off” the sum of $500 on the amount of the note in capital and interest.

Such an offer clearly and conclusively negatives the idea of any intention on the part of plaintiff to entirely release the makers of the note from liability thereon. And that fact in connection with the proof that he discounted the note himself; that he never used it, either as a pledge or collateral security, either to boi’row money or to secure any indebtedness of his; that he never parted with it at any time; that on account of the crop of 1884 Ooulon & Bernard remained his debtors in a sum exceeding $3,500, all contribute to satisfy us, as it did the District Judge, that the note had been executed solely and exclusively for the accommodation of Coulon & Bernard, .and that plaintiff is entitled to the protection which law and jurisprudence extend to the bona fide holder of negotiable paper, acquired before maturity and without notice or knowledge of any equities which might or did exist between the parties to the note. Cochrane vs. Dickinson, 40 An. 127.

We understand that the firm belief in defendants’ minds that they are not, and never were, bound for the payment of the note in suit, results from an honest misunderstanding of the contract which they had entered into and an unfortunate misconception of the obligation which they had thereby incurred.

But we leave the case with a clear conviction that plaintiff had no connection, directly or indirectly, with any deception practised on them, or any misrepresentation made to them in the premises. It may be a hard case on the defendants, but courts must apply the law, even though they may regret consequences.

Judgment affirmed.

Fenner, J., absent.


author: Poché, J.

text:
    No. 10,451.
    John Klein vs. The State Treasurer.
    Holders of State warrants drawn against tlio general fund of any year, out. of the Slate Treasury, under tlio general appropriation act of that year, have a standing in court to contest the validity of oilier warrants issued under a special appropriation act, drawn against tire same fund, if said fund is shown to bo in - sufficient to pay and satisfy all warrants drawn against the same.
    Under the provisions of Article, »:i of t he Constitution, the general appropriation bill alone may embrace several items or objects of expenditures of state revenues. All otlior appropriations shall be made by separate bills, each embracing but one object.
    Act No. 51 of 1888, entitled an act making appropriations to pay deficiencies due by the. State for the years 1885, 1880 and 1881, not being a general appropriation bill, and embracing in its body four different and distinct objects, is unconsl it utional, null and void.
    A PPEAL from the Civil District Court for the Parish of Orleans. IX Ellis, J.

      Charles Carroll for Plaintiff and Appellee.

      Walter H. Rogers, Attorney General, for Defendant and Appellant.
   The opinion of the court was delivered by

Poché, J.

This controversy involves a question of the validity or of the proper rank of certain warrants drawn by the Auditor on the Treasurer under the provisions of Act No. 51 of 1888, entitled “An Act making appropriations to pay deficiencies due by the State for the years 1885, 1886 and 188V.”

The contention on the part of plaintiff, who is joined by three intervenors, is that, as holders of warrants drawn against and payable out of the general fund of the general appropriation act of 1886, their prospect of being paid is affected by the plan adopted by the State Treasurer who places the warrants drawn under Act 51 of 1888-on the same footing with theirs.

They allege that the Treasurer thus erroneously construes the-meaning and effect of said Act of 1888, which does not purport such a parity; and they further charge that the act in question is unconstitutional, hence they pray that the warrants issued thereunder be declared null and void.

The defence is practically a general denial.

The judgment below is in favor of plaintiff and of intervenors, sustaining the injunction which they had prayed for, to the extent that their warrants be given preference over the warrants issued underAct 51 of 1888.

The Treasurer appeals, and the plaintiff and intervenors pray for an amendment with the view to a decree pronouncing the unconstitutionality of said Act of 1888.

By the terms of the general appropriation act of 1886, the Treasurer is required to pay warrants drawn against the general fund in the following order:

1. “Warrants issued for salaries of officers, employes and office expenses of the various departments of the government, including assessors.

2. “Warrants issued for Agricultural and Mechanical College, university for education of persons of color and State printing.

3. “Warrants issued for miscellaneous purposes.”

It is in proof that all warrants belonging to the first two classes as hereinabove enumerated have been paid for in full, and that the warrants held by plaintiff and by the intervenors, as well as those-, which have been drawn under the provisions of Act 51 of 1888, belong to the third class.

It also appears from the records that the revenues to be credited to the general fund of 1887 will not be sufficient to pay more than the warrants issued under the general appropriation act of 1886, which are yet outstanding, and hence it appears that ranking with them the warrants issued under Act 61 of 1888 would injuriously affect them and would have a tendency to depreciate their value.

That is the source of the cause of action which plaintiff and intervenors set forth in the premises.

Among other grounds of unconstitutionality, they charge that Act 51 of 1888 is in violation of Art. 53 of the Constitution, which reads:

“The general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the Government, interest on the public debt, public schools and public charities, and such bill shall be so itemized as to show for what account each and every appropriation shall be made. All other appropriations shall be made by separate bills, each embracing but one object.”

The contention urged by appellees is that the act in question, which is not a general appropriation act, contains several objects embraced in one and the same bill, in direct violation of the last clause of the article of the Constitution hereinabove transcribed.

As indicated by its title, the act was intended to make appropriations to pay deficiencies due by the State for the years 1885, 1886 and 1887.

It then proceeds to appropriate $11,057.28 for four different and distinct purposes, as follows:

1. To pay the salaries of certain registrars of voters for services rendered in connection with a congressional election held in November, 1887, the sum of $2,600 out of the revenues of 1887.

2. To pay for transporting State troops in the field during the labor strikes in November, 1887, the sum of $7,657.28 out of the revenues of 1887.

3. To pay expenses of a special election in June of 1885, $600 out of the revenues of 1885.

4. To pay expenses of a special election held in August, 1885, $200 out of the revenues of 1885.

A mere comparison of the constitutional requirement, with the terms and purposes of the act under discussion, is sufficient to demonstrate the fatal constitutional defect of the statute.

It is too plain for argument that the act is not, that under the very nature of things it could not, and that it never was intended to be, a general appropriation act. Hence, it can not be shielded under the first clause of Art. 53, which has reference exclusively to a general appropriation bill, which, under its very nature, must embrace a large number and a great variety of objects and items, as numerous as the many and various purposes of government requiring expenditures of money are themselves.

But in so far as all other appropriations are concerned, the framers of the Constitution have deemed it wise to provide and to require that they be made by separate bills, each embracing but one object.

By another article (29) the Constitution applies the same rule to all laws enacted by the General Assembly.

The reason of the rule is found in long experience in legislation, and has for objects “to obviate confusion in legislation by mingling in the same act entirely distinct and heterogeneous provisions (Walker vs. Caldwell, 4 An. 298) ; to prevent hodge podge or log rolling legislation, bringing together in one bill diverse subjects with a view to combine in the support of the entire bill the advocates of each particular provision (People vs. Mahoney, 13 Mich. 494) ; to prevent surprise or fraud upon the Legislature or the people by smuggling provisions into bills of which the title gave no intimation, and which might, therefore, be carelessly and unintentionally adopted.” State vs. Henderson, 32 An. 780.

Experience has demonstrated that the rule is a wise one and that it has prevented much mischief in general or ordinary legislation; and it must commend itself to greater favor when the object of the act is to disburse the revenues of the State, the people’s money.

Should it be conceded that Act 51 was intended to be a supplement to or an amendment of a general appropriation act, it would yet be unconstitutional as a legislative attempt to amend two distinct appropriation bills by one act, because Act 51 proposes to appropriate revenues of 1885, covered by the general appropriation bill of 1884, and it also disposes of revenues of 1887, covered by Act 47 of 1886. The act would thus embrace two objects, neither of which is expressed in the title, and would then present a double violation of Article 29 of the Constitution, which is also invoked by appellees in their pleadings.

As the purposes contemplated in the act under consideration appear to be reasonable and equitable, it is perhaps to be regretted that the law maker in drawing this bill did not comply with the constitutional requirement, as he did in several other appropriations made at the same session of the General Assembly, embracing objects apparently not more meritorious than each of the four separate and distinct purposes which were carelessly blended together in Act 51.

But our plain and paramount duty is to obey and to enforce the Constitution, in the face of which all other considerations must yield, .and carry no weight.

The foregoing reasons lead us to conclude, without making any comments as to the correctness of the views of the learned judge of the District Court, which however appear very doubtful, that appellees are entitled to a decree annulling the entire act and cancel-ling the warrants issued thereunder.

It is therefore ordered that the judgment of the lower court be amended by declaring that Act No. 51 of 1888 is unconstitutional, and that all warrants issued under its authority are null and void; and that as thus amended said judgment be affirmed at the costs of .appellant in both courts.


text:
    No. 10,522.
    J. Albert Webre vs. P. E. Lorio, Sheriff, et als.
    There is nothing in the jurisprudence of this State which prevents the surviving spouse from disposing of his or her part of the community property, subject to 1 lie debts and charges of the community.
    The personal creditor of either can subject it by seizure and sale to the payment of his debt, subject to the debts of the community.
    Tlio death of either spouse terminates the community and the succession is seized of one undivided hall' of the community property absolutely. The law fixes the title of the succession to the property. The amount of community debts ean not determine the. extent of the title, make it more or less than one-lialf of the property.
    ■The surviving spouse receives the property just as any other proprietor receives title to property burdened with debts.
    It is, absolute, yet it may be divested by the creditor who had claims upon it, and may be seized and sold to satisfy the same.
    •The law provides the mode for the settlement and liquidation of the community, and when the heirs or creditors require it the succession must be administered.
    No one can interfere with the administration of the* succession by selling its property, so as to take it away from the control of the administrator.

      Tlio sale of the wife's community property transfers all of lier rights and interests to said property. The purchaser, however, acquires no greater right to said property than the willow in community hail to the same. It passes subject to community debts and tlio right of the creditors, through an administrator, to manage, the same for the payment of their debts.
    The property must be left, when the succession is under administration,with the succession effects, until final settlement, when thepuroliaser will receive the property if the incumbrances have been paul, or what remains, in money, if it has been necessary to sell the property to pay the debts of the community.
    APPEAL from the Twentieth District Court, Parish of Lafourche Beattie, J.

      L. P. Gaillouet for Plaintiff and Appellant.

      Knobloeh & Moore for the Defendants and Appellees.
   The opinion of the court was delivered by

McEnery, J.

F. Hollander & Co., judgment creditors of Mrs. D. R. LeBlanc, the surviving widow of G. Rosemond LeBlanc, issued an execution on their judgment, seized and advertised for sale the undivided half of certain real estate as the property of the defendant in execution.

The sale was arrested by an injunction taken out by J. Albert Webre. In the petition for the injunction it is alleged that the plaintiff in injunction is a creditor of the succession of G. R. LeBlanc, who died in 1887, in the sum of $500, and that there are other creditors of the succession of LeBlanc and of the community which existed between him and the surviving widow, and that there are no assets to meet said claims except the property, the undivided half of which was under seizure and about to be sold by the personal creditors of Mrs. LeBlanc; that the said Mrs. LeBlanc is not the owner of the undivided half of said property by an absolute and indefeasible title, but has only a residuary interest therein, dependent on the settlement' of the community; . that, all the said judgment creditor can seize and sell is the right, title and interest in and to the undivided half of said property; that, as the community was greatly involved, the sale of the undivided half of the community property to pay the individual debts of the surviving spouse would greatly injure and depreciate the value of the property; that he had applied for the administration of the succession of LeBlane, which was pending, awaiting legal delays, before his final appointment. The application to administer was made after the execution issued on the judgment and the seizure of the property. The injunction-issued on the day of sale.

The defendants in injunction filed a motion to dissolve on the face of the papers, “for the reason that plaintiff is without any warrant-of law so far as disclosed on the face of his petition, to invoke the equitable writ of injunction.”

This motion was sustained by the District Judge, and from a judgment thereto dissolving the injunction, the plaintiff appealed.

The question presented is: Has the surviving wife such an ownership in the undivided and unliquidated community property that it can be seized and sold for her individual debts?

There is nothing in the jurisprudence of this State, in the Code, or the decisions of the courts, to prevent the surviving spouse from disposing of his or her part of the community property, subject to the debts and charges of the community.

Therefore, the individual creditor of either can subject it by seizure and sale to the payment of his debt, subject of course to the debts of the community.

After the death of the husband or wife the community is terminated, and the surviving spouse and the heirs of the deceased each become seized of one undivided half of the property, subject to the payment of the debts. The law fixes the title to the community property of the surviving spouse. It is an absolute and indefeasible-title to one-half of • the community property. This title can be divested by the creditor of the community in the manner pointed out by law, by its sale, to pay debts and to settle the community. The amount of the debts can not determine the extent of the title, make it more or less than one-half. The surviving spouse receives the property just as any other proprietor receives title burdened with debts. The title may be absolute and indefeasible, yet it may be divested by the mortgage creditor by seizure and sale of the property, resting on it when he acquired it, either by inheritance or purchase.

In the instant case, Mrs. LeBlane is the owner of one-half of the community property acquired during her marriage with her deceased husband. Gayle vs. Davis, 4 M. 653; Hart vs. Toby, 1 R. 378; Dickson vs. Dickson, 36 An. 453.

As stated in Dickson vs. Dickson, referred to, “the widow and heirs take the estate absolutely, subject to the debts and charges against it, and all that. is meant by residuary rights is that the property is thus encumbered.”

In the same case this court announced these propositions as having been fully recognized by our jurisprudence, and said “in either ease the widow and heirs can mortgage their interest in said property if it be real estate, and the creditor acquiring such mortgage is entitled, in case of non-payment, to have it seized and sold to satisfy his claim, subject to be expropriated or out ranked only by creditors of the community and of the succession of the deceased spouse, and where the mortgage was recorded anterior to his own, the succession creditors, however, to be paid out of succession property.”

The law provides the mode for the settlement and liquidation of the community, and where the heirs or creditors require it the succession must be administered. The succession of LeBlanc and the community owed debts, and an administration of the same was necessary. Chap. 6, See. 3, Revised Civil Code; Succession of Scott, 41 An. 068.

No one can interfere with the administration of the succession by selling its property and taking it away from the control of the administrators. Sage vs. Price, 30 An. 93; Colac vs. Florence, 31 An. 493; Durham vs. Williams, 32 An. 162.

In the case of Dreyfous vs. Richardson & May, 33 An. 602, we understand that the injunction was sustained so as to prevent the property from being taken from the possession of the administrator.

The court said:

“Whether the holder and owner of such claim and security, however legal the same may be, can proceed via exeeutiva and have the property composing the security, seized and sold, while the succession, of which the property forms part, is still under administration, so as to strip the succession representative of the possession to which he would otherwise be entitled for the liquidation of the succession affairs. The law negatives the question. It is manifest that what the heir himself could not do his transferee or creditor can not.”

And to the same effect is the decision in the case of Deblieux & Co. vs. Hotard. In this case the executor answered as garnishee that he “ had in Ms possession property and effects belonging to the judgment debtor, Hotard, one of the heirs.” The motion of plaintiff was that, as the garnishee had answered that he had property and effects belonging to the judgment debtor, ‘‘ that the said executor be ordered to turn over into the hands of the sheriff all the property rights and credits and money now under his control when same shall become due, and that same be applied to satisfy as far as it may the writ of fi.fa. in the hands of said sheriff against Joseph Hotard.” “It is manifest,” said the court, “that until said succession is advertised and its debts and legacies paid, the executor can not be compelled to surrender the property or any part thereof.” 81 An. 194.

The question as to the validity of the seizure by garnishment was not raised. In the instant case, from what we have said, we are of the opinion that the seizure was legal and valid, as it was of the undivided half interest of Mrs. LeBlanc to the community property, and a sale of the same under the seizure would transfer all of her rights and interest in said property to the purchaser. But he could acquire no greater rights than Mrs. LeBlanc had to said property. She acquired it at the dissolution of the community subject to community debts and the right of the creditor to settle and liquidate the community.

The creditors have asserted their rights by an application to administer the succession of Le Blanc and the community, and to settle and liquidate the same. The creditors of Mrs. LeBlanc can not interfere with the administration by taking the community property from the administrator. If sold it must be left in the succession under the control of the administrator until final settlement and the ascertainment of Mr. LeBlanc’s interest, either in money or property. The purchaser would occupy the same relation to the community as Mrs. LeBlanc.

The creditors through an administrator administer the succession for their benefit. He is their agent or trustee. If the community debts are paid the widow will receive her half of the community property, and if it has been necessary to sell the same to pay debts she will receive in money the half of the excess of the proceeds of sale devoted to this purpose.

From the views we have expressed we conclude that the sale of the property seized in this case should be proceeded with, but the property to remain with the succession effects, to be administered according to law. To make our decree the more explicit we find it necessary to set aside the decree of the lower court, and enter such a decree as will conform to our views. It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed; and it is now ordered, adjudged and decreed that the injunction herein be perpetuated only so far as to prohibit the defendant or the purchaser at the judicial sale from taking the property under seizure from the control or possession of the administrator of the succession of G. Rosamond LeBlanc, the same to remain with the succession effects, to be administered according to law. In all other respects the injunction is dissolved, the appellee to pay costs of appeal.


author: Bermudez, C. J.

text:
    No. 10,443.
    J. K. Small vs. Bertrand Saloy.
    A regular transfer ol shares of stock will remain undisturbed, unless satisfactory evidence is adduced showing that it was conditional, designed to serve as-collateral or pledge to secure a payment, or was simulated and not intended to transfer the ownership.
    It stands until demolished. This was not done in this case.
    PPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Buck, Dinkelspiel & Hart for Plaintiff and Appellee.

      Charles Louque for Defendant and Appellant.
   The opinion of the court was delivered by

Bermudez, C. J.

The plaintiff seeks to be recognized as the owner of twenty-six shares of bank stock standing in defendant’s name.

The allegation is that the stock was pledged to the defendant to secure payment of plaintiff’s note for $3,400, as is shown on the face pf the note; that subsequently, “for reasons of convenience,” the stock was transferred to defendant; that interest has been paid on the note up to a certain tune, as well by money disbursed by plaintiff as by dividends received on the stock .by defendant and applied to such interest; that plaintiff, being desirous to take up Ms note, has offered to pay the same on the transfer back to him of the .stock, but that defendant refuses to receive payment and to transfer the stock.

The prayer is for the stock, or the value thereof, less the amount of the note and interest.

The answer is a denial of ownership in plaintiff, and an averment of title in defendant, under a valid and absolute transfer by plaintiff to Mm.

From an adverse judgment the defendant appealed.

Since the case was submitted the defendant died, and his widow and universal legatee made herself a party.

During the trial below exceptions were taken by defendant’s counsel to several rulings of the District Judge; but, as our attention was not drawn to them, and it would be unnecessary to pass upon them in view of the conclusion which we have reached, we will not notice them.

The record shows that the plaintiff, being indebted to the defendant in the sum of $3,400, executed Ms note for that amount on December 20, 1883, payable on demand, bearing 8 per cent, interest from date, to Ms own order and by him endorsed, for value received, with the stipulation that it was secured by pledge of the twenty-six shares, which are described on the back, and that in case of nonpayment, the holder would have authority to sell the security and apply the proceeds to the payment of the note.

Endorsements show that interest was paid on June 20 and on December 20, 1884.

On December 17, 1885, it appears that under a formal power of attorney, one Bier transferred the stock on the books of the bank in the name of the defendant.

A further endorsement on the note shows that interest was acknowledged to have been paid on it on the 20th of December, 1885.

It also appears that from the date of the transfer to December 30, 1887, inclusive, five dividends, each for $130, were paid on the stock and received by the defendant.

The. question presented is simply: whether the transfer effected was conditional or absolute.

There is nothing on its face to show that it was effected on any contingency.

Under the stipulation expressed in the note, the holder, in case of non-payment, could have sold the stock and applied the proceeds. On the day of the transfer, December IV, 1885, the note was due and remained unpaid and the event under which the holder could have sold had happened. He did not sell, but on that day an agent of plaintiff made the transfer to the defendant, who, it would seem, became apprised of the fact shortly after.

From plaintiff’s statement the transfer-was authorized by him in apprehension of a suit which had been brought against him and to save defendant from trouble in consequence of it.

From defendant’s testimony it results that the transfer was made in furtherance of a previous undertaking with plaintiff, who, acknowledging his inability to pay the note, had proposed to defendant to take the stock in payment, the latter assenting, the stock being then worth about the amount of the debt.

It appears that it was after-the transfer had taken place that defendant credited the note on December 20, 1885, .with interest up to that date, and canceled it by erasing or crossing the name of the drawer, placing back the note in his bank box in that condition as a warning of its worthlessness to his heirs. Defendant says that he did not return the note to plaintiff owing to his absence at the time in the country.

It does not appear that plaintiff, who is dealer in stock, after the transfer, felt any uneasiness about the note. He merely inquired about it, and on being answered that it was worthless, rested satisfied. It is only some two years and a half after the transfer, the shares having gone up considerably, that the plaintiff called on the defendant for a transfer back to him, expressing a readiness to take up the note, without, however, making any tender of the money.

The claim has the characteristics of a stale demand, and appears to be an afterthought.

The seriousness of the transfer, which is patent on its face, corroborated by defendant’s unequivocal and unimpeached testimony, unassailed by any counter letter or equivalent proof, has not been affected by it.

An examination of the evidence and a consideration of all the surrounding circumstances lead us to the conclusion that the case is with the defendant. Melior est conditio possidentis.

It is therefore ordered and decreed that the judgment appealed from be reversed, and it is now adjudged that plaintiff’s demand be rejected, with judgment for defendant, recognizing title in him or his estate to the twenty-six shares of the Germania National Bank,, old No. 265, transferred on the 17th of December, 1885, and that the plaintiff pay costs in both courts.


author: Poci-uí, J.

text:
    No. 10,506.
    The State of Louisiana vs. Jake Brownson.
    Ina criminal prosecution, evidence, to show what the accused, testifying-in lii.-f own behalf, had stated on a previous trial on the same charge, in which the jury had failed to agree, is irrelevant and inadmissible, unless it be to prove a confession or admission of guilt, if it appears that the defendant did not testify at all on the second trial at which he was convicted.
    It can not bo allowed to impeach a witness before he has been heard, and under Act 29 of 1886, which allows an accused party to testify, his testimony must be weighed and considered according to the general rules of evidence.
    APPEAL from the Eleventh District Oourt, Parish of Natchitoches, Pierson, J.

      Walter II. Rogers, Attorney General, and D. C. Scarborough, Dis trict Attorney, for the State, Appellee.

      Jack & Dismukes for Defendant and Appellant.
   The opinion of the court was delivered by

Poci-uí, J.

Under an indictment for rape, the defendant was convicted without capital punishment. His appeal brings up for discussion two bills of exception, which are both taken to the rulings of the trial judge in admitting testimony over his objections.

I.

It appears that a previous trial of the accused on the same charge had resulted in a mistrial, and that on the first trial the defendant had offered in evidence, with a view of showing intimacy between himself and the prosecutrix, a certain written order in her favor, executed by himself, addressed to a country storekeeper, and calling for the delivery of certain merchandise to the prosecutrix on his account. In connection therewith the accused, had testified with the view of showing that the order had been drawn by himself and delivered to the prosecutrix, and that he had subsequently obtained possession of the same from the storekeeper on whom it had been drawn.

Now, on the second trial, resulting in this appeal, while the District Attorney was introducing his testimony in chief, and of course before the accused had offered the order or any other evidence, and above all, before he had offered to testify, the State was allowed,, over the objection of his counsel, to prove, by a witness who was-present at the first trial, the statements which the accused had made in connection with the order in question.

It also appears that the accused did not testify at all on the second trial, and it does not appear that he ever offered the order in evidence during that trial.

The District Judge rests his ruling on the ground that the testimony was relevant and competent, in connection with other testimony and circumstances, to show that the order had no real or genuine existence, but that it had been manufactured by the. prisoner in view, and for the purposes, of his trial.

We can not agree with the trial judge.

Had the order been offered with the avowed purpose of seeking-any advantage therefrom, and had the accused testified on the point, as he had done on the first trial, it would, beyond a doubt, have been competent for the State to have attempted to rebut the effect of both the order and of the testimony of the prisoner.

If the latter had testified on the second trial it would have been competent to contradict him or weaken his testimony by proving his. statements made either on the previous trial or at any other time- or place on the same subject matter.

Conceding now that on his previous trial the accused had had recourse to unfair means or to false witnesses to meet the evidence offered against him, we fail to discover any law or authority which would justify the introduction of testimony to that effect, to prove his guilt of the only crime with which he was charged. And while. we recognize the right of the State to introduce in evidence any •statement previously made by the accused tending to show his guilt under the indictment against him, we can not recognize the relevancy of testimony covering statements which he had previously made in his own favor, for the purpose of showing bjr other testimony that his statements were untrue and false.

As the accused had not yet testified, and as in such matters his testimony when given must “be weighed and considered according to the general rules of evidence” (Act 29, 1886), the State could not be allowed to impeach his testimony before he had been heard. State vs. Chevalier, 86 An. 81.

We therefore conclude that there is error in the ruling complained •of and that the accused must have been injured thereby.

We find no error in the ruling complained of in the other bill of exception contained in the record; but we deem it unnecessary to elaborate our views on the subject.

It is therefore ordered that the sentence appealed from be annulled and reversed, that the verdict of the jury be quashed and set aside, and that this case be remanded to the District Court for further proceedings according to law and according to. the views herein ..expressed.


text:
    No. 10,280.
    New Orleans Gas Light Company vs. The City of New Orleans et als.
    1. A limo contract between a municipal corporation ami a gas or other-lighting-company lor a supply of gas or light for several years, does not evidence the contracting of a debt within the scope of See. 2448 of the Revised Statutes, if it -appears that the gas or light to be furnished in the future is to be paid for from month to month.

      ~l. A stipulation in the. contract by which the city binds herself to make an annual appropriation out of her current revenues in an amount sufficient to cover the provisions of the contract, is sufficient as a provision to meet tlio pecuniary liability to be thereby incurred within llio requirements of said Pec. 2448 of the Revised Statutes.
    3. In the absence of a special statutory limitation or restriction, the power given to the City of New til-leans to make contracts lor lighting its streets, landings, ele... is sufficient to authorize a contract for more than one year for such commodity. *
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Buck, Dinkelspiel & Hart for Plaintiff and Appellant.
    Farrar, Jonas cSb Kruttsehniti for the Louisiana Electric Light and Power Company, Defendant and Appellee.

      Oarleton Runt, City Attorney, for Defendant and Appellee.
   The opinion of the court was delivered by

Poohé, J.

Plaintiff brings this suit in its capacity as a tax payer for the purpose of setting aside a contract made .between the city and the Louisiana Electric Light and Power Company, in May, 1887, to light the city with electricity for four years, beginning on the 1st of January, 1888. The grounds of attack, to be considered on appeal, are the following:

1. That the contract is null and void, because it violates the prohibition contained in Sec. 2448 of the Revised Statutes, which provides that “the police juries of the several parishes, and the constituted authorities of incorporated towns and cities in this State,, shall not hereafter have power to contract any debt or pecuniary liability without fully providing in the ordinance creating the debt the means of paying the principal and interest of the debt as. contracted.”

2. That the City of New Orleans had no power in law to enter into such a contract. The defence is 'practically a general denial, and the judgment on appeal'rejected plaintiff’s demand.

I.

A statement of the principal features of the contract is necessary to a proper understanding of the grounds of attack.

After the adoption of an ordinance on the subject and after public advertisement calling for sealed proposals to light certain portions of the city, therein designated, with electricity for a term of five years, and the lowest bid having been made by the Louisiana Electric Light and Power Company, the contract was executed between the city and that corporation, containing numerous stipulations not necessary to enumerate in this opinion. After fixing the rates to be paid for each light to be established and operated under the contract, the following stipulation was agreed upon:

“And the said City of New Orleans hereby binds and obligates itself to make and set apart in its budget of expenses for each and ■every year during the continuance of this contract, a special appropriation, sufficient in amount to cover the provisions of this contract, ■and to set the same aside and to dedicate the same to the purposes .aforesaid.”

It would seem to us that a mere comparison of the language just transcribed within the terms of the prohibition contained in Section 2448 of the Revised Statutes, is the best as well as the shortest argument to show that the contract under discussion does not fall within the scope of the prohibition contemplated by the statute.

There is no stipulation or expression either in the contract or in the ■ordinance on which to ground the contention that the city thereby intended to contract a debt.

The agreement imports no absolute and binding obligation on the part of the city to pay any sum of money for a consideration preexisting or executed on the part of the obligee, which is of the essence of a debt. The obligation of the city for future disbursements in favor of the company is conditioned on the performance on the part of the latter of its part of the contract, a fact to be ascertained, under the terms of the contract itself, from month to month.

Although the eventual disbursements to be made by the city may amount to several hundred thousand dollars, it is certainly not correct to argue that the effect of the contract was to place it in debt to that amount.

If under the terms of the contract the company furnishes and operates in quality and quantity the lights contemplated and agreed upon, and if payments are made therefor by the city from month to month, as stipulated in the contract, the city would certainly never be in debt to the company. Hence we conclude that no indebtedness was contemplated to flow from or was created by the contract.

These considerations find their support not only on reason and logic, but also on authority derived from adjudications of courts of last resort. Weston vs. Syracuse, 17 New York Reports 110; Valparaiso vs. Gardiner, 7 An. and Eng. Corporation Cases 626.

Of course, in thus contracting the city incurred pecuniary liability, just as a natural person becomes liable in purchasing goods or commodities, or in securing the privilege by use or consumption of any needed object, thing or commodity. And the liability becomes ex-igible from month to month, as the lights contracted for are shown to have been furnished and operated by the company. But the very stipulation which creates the liability is in itself a provision of the means of paying the same.

As it appears from the stipulation hereinabove transcribed, the city obligates itself to annually provide in its budget the means of discharging its pecuniary liability under the contract for each ensuing year.

How else could the city have possibly provided for the means •necessary to pay for its annual supply of gas or of any other needed and indispensable commodity but out of its annual revenues and by means of a budget framed in accordance with the positive mandate •of the law?

We know of no other mode, and we have been referred to none. It is useless to refer to, or to analyze, for the purpose of distinguishing the difference existing in the decisions quoted by plaintiff’s counsel on this point of the case. They refer to bonds, notes and other obligations, evidences of indebtedness, not part, but clearly outside, of annual expenditures of city revenues for necessary annual costs of municipal governments. They can have no possible application to a case involving a contract for lighting a city, and the mode •of paying for the same. Hence we feel safe to conclude that the contract under discussion is not amenable to the prohibition contained in Sec. 2448 of the Revised Statutes. Oole vs. Shreveport, 41 An.

II.

On the question of the alleged legal incapacity of the city to make the contract herein assailed, the contention seems to be restricted to its want of power to make, what is known in jurisprudence as a time contract, or a contract for its supply of light for more than one year.

The municipal authority to contract for a supply of light is derived from the charter generally designated as Act No. 20 of 1882.

See. 7 reads:

“ The council shall have power, and it shall be their duty to pass such ordinances, and to see to their faithful execution, as may be necessary and proper, * * * to light the streets, wharves, landings and public squares.”

That clause of itself contains no limitation or restriction to the’ power therein conferred in general and sweeping terms. But the argument is that the restriction is to be found in Secs. 63 and 64 of the charter. . The first of these sections requires the council to meet in December of §ach year for the purpose of levying an annual and' uniform tax, and of regulating licenses.

The other clause has reference to the annual budget of revenues, and expenses, and prescribes the time and mode of making and publishing the same.

It is clear that neither can be fairly construed as importing or . even inf erring the prohibition contended for by plaintiff’s counsel. It is evident that the contract under discussion was framed with special reference to the legal requirements contained in these very sections.

By entering into a contract for more than one year for a commodity or other supply, the Oity Council is not amenable to the charge that it restricted its legislative power.

The power to legislate conferred to the city by its charter has reference to its authority to legislate for governmental functions, such as passing and enforcing ordinances to govern itself and others,, under what is known as its police power; and it is distinct from the power to contract, which is similar in its effects to the right of contracting as exercised by natural persons. Hence the rules of law and the principles settled in jurisprudence, which prohibit municipal corporations from legislating future restrictions to its own legislative-power, are not applicable to a time contract entered into by such a corporation.

These views find sanction and ample support from the numerous-decisions rendered by courts of last resort in our sister States on precisely similar questions. See Indianapolis vs. Gas Light Co., 66 Ind. 396; Weston vs. Syracuse, 17 New York 110; City of Valparaiso vs. Gardner, 97 Indiana 1; Atlantic Water Works vs Atlantic City, 15 Am. & Eng. Cor. Cri. 327.

The rule as established by jurisprudence seems to be that, in the-absence of special legislative prohibition or restriction, a municipal corporation, vested with a general power to make a contract for the supply of gas or any other commodity has the right to make it according to its own discretion as to its prudence or good policy, within the limits of its franchise, including the power to make it for more-than one year, if by thus contracting it believes that better terms or lower rates can be obtained.

After a thorough examination of our legislation on the subject, and an exhaustive study of our own reports, we find no law, reason or authority which would justify us in removing the present case from the effect of this general rule.

Great reliance is placed by plaintiff’s counsel on the decision in the ease of Garrison vs. City of Chicago, 7 Bissell, p. 480, in which the court refused to enforce a time contract for gas, made by the City of Chicago. But the law governing that contract affords an easy mode of distinguishing the leading features from the case now under discussion.

That decision was considered in the Indianapolis case herein -quoted, in which a time contract for gas also was judicially recognized as legal. We can make no better answer to the contention here than by quoting the following language from the Supreme Court of Indiana: “That ease, relied upon by the appellant’s counsel, does not seem to us to support their views. That was upon a contract made by the gas company with the city of Chicago to furnish the city gas for ten years. At the time that the contract was made * * * the charter of the city contained a provision that no contract should be made by the city involving any expense, unless an appropriation was previously made to meet it; and the comptroller was required in May of each year to submit an estimate of the amount necessary to defray the expenses of the city for the current fiscal year. No such appropriation was previously made, and the court puts the case expressly on that ground in the following words: “The question to be determined is whether there was a reasonable necessity on the part of the City Council to extend the contract in controversy here, and which will now be mentioned, for ten years of its date, there being no appropriation made commensurate With the obligations of the contract.”

We note the warning, by way of argument of plaintiff’s counsel, against the danger of such power in the hands of a city council, and of the imminent abuse of the same. But when the the power is once shown to exist in the municipal corporation, courts are powerless to regulate its exercise or to dictate what particular contract should or not be made or justified. It was under that rule that this court dedined to examine the wisdom or reasonableness of the contract assailed in the recent case of Conery et al. vs. New Orleans Water Works Company and City of New Orleans, not yet reported.

The necessity of restrictions to the contracting power of municipal corporations is of the province of the legislative, and not of the judicial, department of the State government.

Judgment affirmed.