text:
    No. 7911.
    Succession of John B. Schiller.
    A testator has made his will in the following words, viz: “ It is my will and desire that my debts be paid and that iny estate be distributed among my legal heirs, according to the laws now in force in Louisiana.”
    He left at his death a widow in community and three children.
    Has he, by such a will, disposed of his share of the Community property and thereby deprived his widow of the usufruct of the same?
    Decided affirmatively.
    APPEAL from the Second District Court, parish of Orleans. Tissol, J.

      Miller, Finney & Miller and Joseph Brewer for Plaih^iffs and Appellants.
    The words “It is my will and desire that my estate be distributed among my legal heirs, ■ according to the laws now in force in Louisiana,” used by the testator in his act of last will, are clearly disposable words in favor of his heirs, in this case, his' children j and the will must be held to be a testamentary disposition, in their favor, of his estate.
    The statutory usufruct of the widow, to the one-half of the community, belonging to the deceased spouse, exists only when the testator has not by his will disposed of that share*

      Thos. J. Semmes for Defendant and Appellee.
    Such a will contains no disposition of property, because there is no determinate legatee. The word “heirs ” describes no fixed class of persons so long as the party using it is alive.
    The testator not having disposed by will of his share of the Community property, his widow is entitled to the usufruct.
   The opinion of the Court was delivered by

Bermudez, C. J.

John B. Schiller died, leaving a will containing, among other provisions, the following disposition :

It is my will and desire that my debts be paid, and that my éstate be distributed among my legal heirs, according to the laws now in force in Louisiana.”

Shortly after his death, his widow, contradictorily with his executor, obtained a judgment recognizing her as the owner of the undivided half of the property composing the community between them, and as usufructuary, during her widowhood, of the remaining half, the naked ownership thereof accruing to their three children, then minors.

One of these becoming of age, brought this suit to annul this judgment, claiming that as Schiller has, by such will, disposed of his share in the community, such share cannot be so held in usufruct, and that the entirety of such share, ownership and right of enjoyment have, from the time of his death, absolutely vested in his legal heirs, that is, his three children, share alike.

Judgment having been rendered defeating plaintiff’s action, she has appealed therefrom, and now prays for its reversal and for the recognition of her rights.

The question presented simply is :

Whether, by the phrase used, Schiller has, or not, disposed of Ms share in the community. If he has, his three children have inherited Ms half therein, free from their mother’s usufruct. If he has not, they have inherited it, subject to that usufruct during her widowhood.

It is perfectly clear that Schiller has made a will; for it is patent that he has disposed of his property, in view of death, and in proper form. R. C. C. 1571, 1570; C. N. 967; 15 A. 209.

It is manifest that he has disposed of his estate, that is, of all the property belonging to him at his death, in favor of certain persons and in a pertain proportion. That property consisted of his half in the community between him and his wife ; those heirs are their legal issue, three in number; that proportion is one third to each. R. C. C. 887, 1606, 1607; C. N. 1003, 1004; 12 R. 645.

The disposition does not indicate, in any degree, any condition or restriction. It is peremptory. It is clear and unambiguous: It violates no law.

Property passes by succession, as well by the effect of law as by the effect of a will, which has the force of law whenever it contravenes no prohibitory legislation. When a person owning property dies, leaving no will, the law is to be considered as his will. .The property which he leaves passes as the law provides, as to persons and proportion. When a person owning property dies, leaving a will, the presumption arises instantly that such person has designed thereby to dispose, after his death, of his property, in a manner which the law would not, in the absence of such will, have made of it; in other words, that such person has intended to confer a benefit which, in the absence of such will, would not have accrued.

Legation est delibatio hereditatis qua testaterr, ex eo quod universum heredis-foret, alicui collaium velit. D. L. * * * L. 116; L. 11 Inst.

It cannot be supposed, where a person declares intentions, mortis causa, that such person does so for the mere purpose of confirming the disposition which the law would have made of his property in the absence of a will, for that would be doing a vain thing. A person that makes a will is to be presumed to own property, and to be desirous of disposing of it in a manner in which the law would not convey it, in the absence of such will. The presumption is, therefore, that such person designed to substitute bis will to the provisions of the law, and so to derogate, entirely or partially, from the disposition which the law would have made of his property without such will. This is true, also, even as to the title of the bequest, or testamentai’y disposition.

Testators, like all other donors, are subject to human weaknesses. They know that they have a right to dispose of their property, in any case, to a certain extent, due regard had to creditors and forced heirs ; and they often desire to impress upon their preferred ones that they inherit from them, not by effect of law, but by the power of their will, because it is their pleasure to benefit' them, when they could have legally avoided doing so — quia placet.

In this case, it is evident that Schiller intended to dispose of his property in a manner in which the law would not have disposed of it. in the absence of a will.

He says that it is his will and desire * * * that his estate be distributed among his legal heirs, according to the laws then in force in Louisiana.

By using this language, and particularly, the word distributed, he clearly intended that his wife should not have the usufruct of his half in the community, and that such half should accrue unburdened, and be delivered at once, to his three children, at his death, to be partitioned and distributed, share alike, among them. 7 L. 230.

He had a right to do so; he has done so. His will must be executed. 13 L. 7; R. S. 629; R. C. C. 1493.

The children inherit the naked ownership of two-thirds of the half of their father in the community property by the effect of law; they inherit the remaining third, and the enjoyment of the entire half, to the exclusion of their mother’s usufruct, by the effect of the will of their father, who, by abstaining from making any will, could have permitted his wife to enjoy such half as usufructuary during her widowhood ; or who, by making a will, could have disposed of one-third of his estate in favor of any one he pleased.

The judgment attacked should be admitted, and the rights of the plaintiff recognized.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be reversed and set aside; and, proceeding to render such judgment as should have been rendered, it is ordered and decreed that the judgment described in the petition be annulled and avoided, and that the rights of the plaintiff, as stated in the prayer of said petition for an account and for a liquidation and partition of the succession of the deceased, in due course of law, be recognized and enforced, the defendant and appellee to pay costs in both courts.

Oar Application eob Rehearing.

The distinguished counsel of the widow of the deceased concedes that J. B. Schiller has made a will valid in form, but he denies that Schiller has thereby disposed of his estate, that is, of all the property belonging to him at.his death, in favor of certain persons, and in certain proportions. He contends that there was no disposition of property, because there was no determinate legatee, and asks what heirs, what proportion, the testator meant. Practically, he demands the nullity of the will.

The undisputed facts of the case do not justify an interpretation of the will of the deceased, which on its face, is perfectly unambiguous and •clear, and requires no construction.

On the third of July, 1865, when the will was made, on the twenty-ninth of December, 1869, when Schiller departed this life, his only presumptive heirs were the issue of his marriage with his surviving 'wife. *

The laws, which were in force at the date of the will and at the death of the testator, on the subject of the successions, legal and testamentary, and of the disposable portion, were the same, not having been changed in the interval.

The testator, at the date of his will, considered that his three-daughters, who were then his presumptive heirs, and whom he termed in the instrument his legal heirs, should be the recipients of all his favors, and should inherit from him what property he would leave; and he continued to his death so to view them, as he has not altered his will.

The words “ legal heirs,” used by him, have a legal meaning, and clearly indicate those who were to inherit his fortune. 7 A. 267; 14 A. 639; 5 A. 146; Abbott L. D. vo. Heir, 556; Wigram on Wills, 2 vol. p. 297, § 2; Journal du Palais, 1811, p. 4.

We are referred to the decision in the Succession of Mrs. Walker,, 32 A. 323, to show that, where a parent institutes his forced heir his universal legatee, there is no testamentary disposition. The Court did not so rule. What was there decided is, that in such a case, when there are no debts and no legatees to satisfy, the appointment of an executor was cumbersome and inoperative.

We find the intentions of the testator couched in unequivocal language, and the disposition which he has made of his property authorized by law.

At his death one half of the community assets accrued to his-widow under the law ; two-thirds of the naked ownership of the remaining half accrued to his three forced heirs, also, under the law, which the-testator, far from overriding, confirmed.

, The remaining third, and the right of usufruct, or enjoyment of the' two first thirds, which otherwise would have accrued to his surviving; wife, the testator bequeathed absolutely to his three daughters, his-' forced, his “ legal heirs,” who take the same, unrestricted by the power of his will.

The law does not favor the dismemberment of real estate.

In justification of our refusal to construe.the will of the deceased' differently from what we have, we can only repeat the language used by Chief Justice Martin on a similar occasion:

“Candles are not to be lighted when the sun shines brightly.’" Theall vs. Theall, 7 L. 230.

Rehearing refused.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 6825.
    M. L. Byrne & Co. vs. L. H. Gardner & Co.
    On the fiissolutiou of an Attachment issued on the ground that the debtor was about to dispose of his property with intent to defraud his creditors, when the attaching creditor acted without malice and solely under the legal advice of an experienced attorney, the Defendant shall recover the damages actually sustained and no more.
    Damages actually sustained, comprise not only pecuniary loss and actual expenses incurred, such as costs and counsel fees, but also the'mortification, annoyance and vexation caused .to the Defendant by the Attachment.
    APPEAL from the Fourth District Court, parish of Orleans. Houston, J.

      Albert VoorlAes for Plaintiffs and Appellees.

      Kennarcl, Howe & Prentiss for Defendants and Appellants.
    "When defendants attached the property of plaintiffs, on a just claim, and the attachment was set aside, and the seizure is shown to have been merely nominal, and no damages are proved to have been suffered by defendants, and plaintiffs acted without malice and with probable cause, no damages can be recovered.
    In no event can vindictive or exemplary damages be recovered, when defendants acted without malice and with probable cause. The measure of damages in such a case is the amount of the actual loss proved to have been the direct and proximate resulto! the attachment.
    The action for alleged damages beyond the amount of the attachment bond, arises ex delicto, and is barred by the prescription of one year.
    *When a party claims less than the amount due to him, he shall lose the overplus.
    The judgment of a court should be based upon the verdict of the jury, and when the jury allows no interest, none should be allowed in the judgment.
    The law does not authorize interest from judicial demand on an amount awarded as damages in a suit on an attachment bond.
   The opinion of the Court was delivered by

Todd, J.

On the 9th of January, 1872, the defendants instituted suit against the plaintiffs, accompanied by an attachment, taken out on the ground that the debtors were about to dispose of their property with intent to defraud their creditors, as provided by statute of 1868, amendatory of the articles of the Code of Practice on the subject of attachment.

Judgment was rendered in favor of the defendants for the debt sued on, but the attachment was dissolved as having illegally issued.

Thereupon the defendants in that case and plaintiffs in this, brought suit against L. H. Gardner & Co., the defendants herein, and Albert Baldwin, their surety on the attachment,^or damages, alleged to have been caused by the attachment.

The damages claimed against L. H. Gardner & Co. are ten thous- and dollars, and against the surety four thousand dollars, the amount of the attachment bond.

It was alleged in substance that the plaintiffs were doing business in the City of New Orleans as dry goods merchants ; that they enjoyed the public confidence, wherever they were known, as honorable and punctual business men ; that their store and goods were seized under the said writ, and possession of the same held for two weeks by a keeper appointed by the sheriff. It was further alleged “ that said proceedings by attachment were illegal, arbitrary, unjust, intended and' calculated to harass, annoy and injure petitionersand that they were entitled to the damages claimed for the expenses incurred by them on account of the proceedings, and for “ the moral and pecuniary injury sustained by them.”

The defendants pleaded the general issue, and specially denied that they took out the attachment proceedings “ with the intention to harass, annoy and injure the plaintiffs.”

The case was tried before a jury, who returned a verdict against the defendants for two thousand dollars, and from the judgment rendered thereon they have appealed.

The correctness of the judgment dissolving the attachment is not before us for review. It is res judicata.

We are to inquire, therefore :

1st. Whether the proceeding was resorted to maliciously, with the intent to annoy and injure the defendants.

2d. If any damages were sustained by plaintiffs; and, if so, the nature and extent of the same.

First. We have carefully examined the evidence in the record, and .are satisfied that the charge that defendants, L. H. Gardner & Co., instituted the proceeding maliciously or wantonly, to harass, annoy and injure the plaintiffs, is not sustained. The claim sued on was a just one, as shown by the judgment rendered for the debt. It must be taken into consideration, too, that at the time the suit was instituted the grounds of attachment proceeded on were comparatively new, being those .added by a then recent statute, upon which there had been no authoritative construction by this Court. Added to this, it is shown that the plaintiffs proceeded on the advice of an experienced attorney, and acted solely on his judgment. In the execution of the writ, care seemed to have been taken to relieve it of all unnecessary harshness and inconvenience to the debtor. The store was permitted to remain open, and the defendants in the writ to continue their usual business. In other words, the seizure, beyond the presence of the keeper in the establishment, was nominal. • These circumstances rebut the - charges of malice in the proceeding, and the intent to harass and injure the plaintiffs thereby.

Second. The attachment issued illegally, and the plaintiffs were damaged thereby. What damages are they entitled to recover ? In the case of Moore vs. Withenburg, 13 A. 22, which was a suit on an attachment bond, this Court said:

“ The rule which governs in this kind of action is, that plaintiff shall recover the damages actually sustained, and no more, unless in a ease utterly unfounded and malicious.”

And in the case of Carter vs. Tufts, 15 A. 16, it was said:

“ It appears to be now settled that damages will not be allowed, in Louisiana, against a party for asserting a right by the compulsory processes allowed by our laws, beyond the damages actually sustained, unless the circumstances of the case disclose a want of probable cause for action instituted by such party, and malice in the resort to compulsory process.”

But what is meant by the the term “ damages actually sustained ? ” We ñnd much uncertainty in the elementary works and decisions of the Court on this subject; Must actual damages be confined strictly to an absolute pecuniary loss ?

Blackstone defines damages as the money “ given to a man by a jury as compensation, in satisfaction for some injury sustained. 2 Bl. Com. 438.

Sedgwick, in his work on “ Damages,” p. 35 says :

“ Injury resulting from the acts or omissions of others, free from any taint of fraud, malice, or willful wrong, consists:
“ 1st. Of the actual pecuniary loss sustained.
“ 2d. Of the indirect pecuniary loss sustained in consequence of the primary loss; profits that might have been made ; * * loss of credit; loss of business, etc.
“ 3d. Mental suffering, produced by the act or omission in question; vexation, anxiety.
“ 4th. The value of time consumed in establishing the contested right.
“ 5th. Actual expenses incurred; * * costs and counsel fees.”

Another eminent' writer on the same subject (G-reenleaf) has said:

“The plaintiff would not be confined to the proof of actual pecuniary loss ; for it has been always held that the jury might take into consideration every circumstance of the act which injuriously affected the plaintiff, not only in his property, but in his person, his peace of mind, his quiet and sense of security in the enjoyment of his rights; in short, his.happiness.” , Appendix to Sedgwick, p. 609.

This doctrine closely conforms in its spirit to the declaration of our Code, which declares that every act whatever of man that causes dámage to another, obliges him, by whose fault it happened, to repair it.” C. C. 2315.

Measuring the damages to plaintiffs, caused by the attachment in question, by the rules laid down in the authorities cited, they would be entitled to recover the expenses they incurred, or for which they are liable in effecting the dissolution of the writ, such as counsel fees. In this regard, the entire record of the suit, in which the attachment issued, is before us, showing the amount involved, the proceedings under the writ, and the services rendered in procuring its dissolution, thus enabling us to estimate the value of such services.

Though, as we have stated, the execution of the writ was not characterized by that harshness and disregard of the interests of the plaintiffs as if prompted by malice, yet it was executed and illegally executed, and the mode of its execution, though of the mildest kind, was sufficient to have caused great mortification, annoyance and vexation to the plaintiffs, such as the enforced presence of the sheriff’s keeper, for two weeks, in their business establishment, serving as a constant reminder of their being under legal restraint and surveillance, unwarranted though it was. These were proper subjects for the consideration of the jury in estimating the damages.

We fail to discover in the testimony that the credit of the plaintiffs suffered by the attachment proceeding per se; that is, that this proceeding of itself inflicted additional injury to the credit of the plaintiffs, to that the suit, apart from the attachment, was calculated to do. The defendants had a perfect right to bring the suit. Their debt was due, and payment of it had been refused; and in thus suing, they but exercised a legal right. If there was any direct and immediate injury to plaintiffs’ credit, caused by the entire proceeding, which the evidence leaves in some doubt, it grew out of the suit, and not from the attachment alone.

It would equally have resulted from the protest of plaintiffs’ note, which defendants could have had protested, but which, at the request of the plaintiffs, they refrained from doing. Nor was any loss to their business proved as resulting simply from the attachment.

The jury allowed two thousand dollars damages. We think the amount excessive; and from a full and thorough consideration of the case, and the peculiar circumstances connected with it, as shown by the record, upon which our action is distinctly based, we feel constrained .to reduce the amount allowed to seven hundred and fifty dollars, which, we think, would be a fair compensation for the damages sustained.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended by reducing the amount of the same to seven hundred and fifty dollars, with legal interest from the 29th of April, 1875, to be recovered of the defendants iíi solido; the costs of the lower court to be paid by the defendants, and of this appeal by the plaintiffs.

Chief Justice Bermudez having been of counsel in the case of L. H. Gardner & Co. vs. M. L. Byrne & Co., in which the attachment issued, recuses himself.

Levy, J., absent.


author: Levy, J.

text:
    No. 7923.
    City of New Orleans vs. Virginia Fire & Marine Ins. Co.; Same vs. Norwich Union Fire Ins. Co.; Same vs. German American Ins. Co.; Same vs. Home Fire Ins. Co.; Same vs. Ætna Fire Ins. Co. (Consolidated).
    foreign insurance companies taking risks through insurance agencies or insurance brokers in the City of New Orleans and issuing policies from their own domicils, are not subjected to the Ordinance of the City of New Orleans, which imposes a license tax of Five-hundred dollars on insurance companies incorporated in another or a-foreigu. State and doing insurance business in said City by an agent. Decision in 31st An. 781, affirmed.
    ^PPEAL from the Third District Court, parish of Orleans. Monroe,

      Sami. P. Plano, Assistant City Attorney, for Plaintiff and Appellant.
    First — A foreign insurance company which causes its policies to be put in circulation within the municipal limits, taking risks and deriving profit from among the community, obtains thereby all the advantages and performs all the necessary acts within those boundaries , usual to the insurance business of companies domiciled in the city, and is, hence, doing an insurance business in the place.
    Second — It matters not whether such foreign company does such business directly itself from the home office, or through the medium of a special agent or a general agency, it is nono the less the company’s business an,d not the less done within the city.
    Third — “When such foreign company appoints an agent under Act No. 21 of 1877, who then operates for it, it publicly avows its purpose to insure in the State, and cannot reasonably pretend the contrary.
    Fourth — "When such foreign company reimburses or pays the municipal license tax imposed on insurance business done or to be done in the city, it cannot reasonably be said that such company is not paying on its own business. It is not to be thought that any person pays the license tax except on his own business.
    Fifth — The business of the agent, through whom the company works in the city, as distinguished from that of the company he represents, is that of an employee receiving pay contingent on the amount ot the company's business done by him. His business is not the insurance business, for he insures nothing, takes no risks, incurs no losses and obtains no profit except a commission deducted from the company’s pt emiuras, which he is authorized to collect, and is bound to account for.

      Sixth — As it is not denied that somebody’s insurance business is done in the city through these agents, and it is certainly not they who insure, it is not their business, but that of the companies they represent.
    Seventh — It is no defense to a suit against such a foreign company for.doing insurance business in the city, for an agent, who insures nothing and takes no 'risks, to call it Ms business. If it was, then no foreign insurance company could be held to pay.
    Eighth — The case of the City of New Orelans vs. The Rhenish Westphalian Idoyds, 31 An. 781, cannot be cited as stare decisis, for the facts now known were not brought out in that cause, and the license imposed by Ordinance 6253, of the City of New Orleans, is different from that formerly interpreted. In the present case, the license is imposed on the company, but in the former instance, it was levied on the agency. A difference clearly marked in the decision in the 31st Annual.

      Breaux & Hall for Defendants and Appellees.
    “ Insurance agencies” are recognized as a distinct occupation or calling, and when they place risks in foreign companies, such placing does not bring the companies into this State as transacting business here, nor does it subject the said company to a license tax. 31 An. 781.
   The opinion of the Court was delivered by

Levy, J.

The same question being involved, the five suits against the Insurance Companies named above, have, by consent of parties, been consolidated, and the decision herein rendered will be applicable to each of the cases thus consolidated, the evidence being the same in all of' them. The City of New Orleans, in its petition, alleges that, it is authorized and empowered to impose a license on "all trades, professions and callings, carried on in said city; that said licenses are required to be taxed, annually, in the month of December; that they expire on the 31st of December in each year for which they shall be obtained, and are due and payable from the 1st day of January to the 28th day of February, inclusive, of each year; that the City Council, on the 23d of December, 1879, adopted an ordinance, No. 6253, to establish the rates of licenses for “ professions, callings and other business ” in said city for the year 1880 ; that by said ordinance the license tax imposed upon the profession, calling, trade or business of insurance (except life or accident insurance), when carried on by a foreign insurance company, is fixed at five hundred dollars ; that the companies, enumerated in this consolidated suit, since the lstof January, 1880, domiciled and created outside of this State, but doing business in the City of New Orleans, through the medium of the agents respectively named, these agents residing in said city, have been and are carrying on and conducting the profession, calling, trade or business of insurance (other than life or accident insurance) in said city, without having paid a license tax, and without having obtained a license as required by law and the aforesaid ordinance. It further alleged that this conduct of the defendants, not ■only deprives the city of a certain revenue required to meet its expenses and liabilities, but seriously interferes with the proper police of said city, and if permitted, will be productive of insubordination and unlawful resistance to the laws and the ordinances of the city; further, it claimed a privilege and lien in the nature of a lessor’s privilege upon the personal property of defendants with right to seize and sell the same, and a right to enjoin defendants from continuing to carry on the business aforesaid until they shall have paid the license tax and all costs and charges for the recovery thereof.

The city prayed for a writ of injunction for the above mentioned purpose, for citation and for judgment for the sum of five hundred dollars for license tax (in each case), with ten per cent interest thereon from the 1st of March, 1880, until paid, with lien and privilege and right of pledge, according to law, for costs and for perpetuation of the injunction. An affidavit as to the truth of allegations, sworn to by the Administrator of Finance, was annexed to the petition. The injunction prayed for was issued and duly served.

The defendants in the several suits in their answers averred: 1st. That they are not engaged in any profession, calling trade or business in the City of New Orleans; that they had no office and transacted no business there; that they transacted their business exclusively at the places of their domicil and issued their policies there alone; that their business was received from public insurance agents or brokers in New Orleans and other cities; that they did not, themselves, solicit business in the City of New Orleans, otherwise than as they solicit good business from all parts of the world; that in accordance with the laws of Louisiana they have appointed agents, in this State, through whom they could be sued, and to enable them to receive business through public insurance agents in the city; that they are under no obligation to confine their business to applications forwarded to them through any particular agent or broker, and no agent or broker is under any obligation to solicit business for them, except so far as it suits their own interest. 2nd. That, Ordinance No. 6253, A. S., of the City of New Orleans, is illegal, null and void, because the licenses imposed on persons doing business during the year 1880, whether imposed before or after the promulgation of the Constitution of 1879, must conform to the provisions of said Constitution; that by article 206 of said Constitution, the City of New Orleans is prohibited from levying a greater license tax than is imposed by the General Assembly for State purposes,” and that no license tax having as yet been imposed by the General Assembly, the said city is not competent to impose or collect any such license. 3rd. That said ordinance is illegal, null and void, because it violates articles 206 and 217 of said Constitution, in that, it is not in any manner graduated as required thereby. They therefore prayed for rejection of plaintiff’s demand, etc.

Ordinance 6253 reads as follows: “ Each and every insurance company organized and incorporated by or in another or a foreign State, and doing an insurance business (life and accident insurance business excepted) in the City of New Orleans, whether directly or through the medium of any firm, or person, or agency, five hundred dollars.”

The question of fact to be determined, in order to subject the defendants to the license tax thus imposed, is: Do these companies do an insurance business in the City of New Orleans ? In the case of City of New Orleans vs. Ehenish Westphalian Lloyds et al., 31 An. 781, the Court practically decided this question, and held that foreign insurance companies issuing policies from their own domicils, who do not carry on business here, who have no agent here, and who only agree to accept risks placed for them by a person residing here, cannot be compelled to pay a license tax to the City of New Orleans, in virtue of an ordinance which imposes a license on every agency doing business for foreign insurance companies; and that the business thus done through or by insurance agencies, was not to be construed to the effect that the companies, with whom these agencies did such business, brought the companies with whom the risks were placed in the category of doing business themselves here. In that case the city sought to recover a license tax from a number of companies represented by agents residing in the city, and after a full discussion, the Court decided that they did not do business here in the sense which would render them liable for the tax. The evidence contained in this record, shows that in accordance with Act No. 21 of the General Assembly of Louisiana, approved February 26th, 1877, the companies defendant have constituted agents in this State on whom service of legal process should be made, which service should be binding upon the companies; or, in other words, bringing them for certain purposes within the jurisdiction of our State Courts. The powers thus conferred upon these agents are specific, and solely for the purposes above named. The companies domiciled out of this State accept risks placed with them by insurance agencies or insurance brokers residents here. Insurance agency is declared in the case above citéd to be a distinct, separate and individual industry or occupation. The persons engaged in that calling place risks in many companies, placing their policies of insurance and re-insurance as suits themselves; they are not confined in their business exclusively to any one company, and the business which they transact with the various insurance companies is their business. The insurance effected is solicited by the agencies themselves; and the party insured might, if he chose, make direct application to the company located out of the State and obtain his policy. There is nothing to prevent this from being done; and if a resident of the City of NeW Orleans chose to pursue this course, it would hardly be contended that the company issuing a policy to such person would be subjected thereby to the payment of a license tax for doing an insurance business in New Orleans. Is the case any stronger when the foreign company issues the policy through the medium or vehicle of a public insurance agency ? We think the reasoning of the Court in the case of the City of New Orleans vs. Rhenish Westphalian Lloyds et al., 31 An. 781, is applicable to and virtually covers this, and'we are not disposed to overrule that authority. The case would be different i£ a foreign company had established its own agent here, such agent not carrying on a public insurance agency, but conducting under special authority the business of his foreign principal, and confining himself thereto, and instead of falling under the distinctive class or calling of insurance agency, doing the general and indiscriminate business distinguishing that occupation, acting as the special agent and representative of a particular company. Under that condition, the company which would be doing business here through its own agent, whose solicitation of business would be that of his principal, would be liable to the payment of the license tax; while such individual agent could not be regarded as falling within the distinctive class of insurance agency.

The judgments appealed from are affirmed with costs.

Mr. Justice Fenner recuses himself'in this case, having been of counsel.

The Chief Justice takes no part in this decision.

Rehearing refused.


author: Poché, J.

text:
    No. 8023.
    State of Louisiana ex rel. B. R. Forman vs. Recorder of Mortgages et al.
    Under 'tlie present Constitution, this Court has no jurisdiction when the matter in dispute exceeds $1000 only by adding interest to the principal.
    ^PPEAL from the Sixth District Court, parish of Orleans. Bightor,

      B. B. Forman for the Relator and Appellee.

      Sami. P. Blanc, Assistant City Attorney, for Defendants and Appellants.
   Motion to Dismiss,

The opinion of the Court was delivered by"

Poché, J.

The Recorder of Mortgages, 'having been ordered by judgment of the lower court, rendered on July 31st, 1880, to cancel and erase the inscription of certain tax mortgages in favor of the City of ■New Orleans and against relator’s immovable property, the city has appealed. 'Relator moves to dismiss the appeal; and among other grounds he urges our want oí jurisdiction, for the reason that the matter in dispute does not exceed one thousand dollars, exclusive of interest.

From the showing of the City, Attorney himself, it appears that the principal of the city’s claim in this case amounts to only $584 88, but he contends that the interest accrued at the time of suit, amounting then to $440, must be added to the capital in determining our jurisdiction. He quotes with apparent confidence several decisions of this Court in support of his theory; but he evidently lost sight of the fact that the case on which he relies originated under the constitution of 1868, which provided that the jurisdiction of the Supreme Court should extend to all cases when the matter in dispute exceeded five hundred dollars,” and made no mention of interest.

Under such a provision, the Court very properly ruled that interest, accrued at the institution of the suit, was part of the matter in dispute, and should be considered, together with the principal or capital of the demand, in determining its jurisdiction.

But under the present constitution, it is provided that the. jurisdiction of the Supreme Court “ shall extend to all cases when the matter in dispute shall exceed one thousand dollars, exclusive of interest.” The difference between the two provisions is striking and glaring, and presents a self-evident proposition. In.one case, interest forms part of the matter in dispute; in the other, interest must be specially included in determining the jurisdiction of the Court.

It follows, therefore, that the matter in dispute, in this case, does not exceed one thousand dollars, exclusive of interest, and that we have no jurisdiction.

It is, therefore, ordered that this appeal be dismissed-at appellants’ costs.

Levy, J., absent.


author: Bermudez, C. J.

text:
    No. 8121.
    State of Louisiana ex rel. Zuberbier & Behan vs. Judge First City Court.
    A party who has sanctioned the proceedings he complained of, cannot have the same avoided through a writ of Certiorari. C. F, art. 864.

      A. B. Philips for Relators.

      3. P. Dart for Respondent.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for .a Certiorari, to test the validity of the proceedings by which the relators were condemned, as garnishees, to pay the amount of a judgment rendered in May last, by a justice of the peace in this parish, and now sought to be enforced by the First City Court, whereof the respondent is judge, and which has succeeded said justice’s court. Act 1880, No. 44.

The proceedings are before us. We have carefully examined them) and find that, if the relators once had a right to contest their regularity, they have formally abandoned it by sanctioning and thus validating them.

The complaint is, that as the service of the interrogatories and citation to answer was made by a deputy constable, beyond the bounds of his bailiwick, the relators were never legally cited. If such were the case, the garnishees might have excepted to the mode of service. The defense was a purely personal one, which the garnishees could legally have waived, without thereby contravening any prohibitory law. They did not so except. They cannot say that they did not know of the proceeding, for the service, however irregular it may be claimed to have been, was made in person on one of the firm, at the place of business. They allowed judgment, taking the interrogatories pro confessis, to be entered against them, and afterwards applied for a new trial, praying to be permitted to answer, which was refused. Their objection comes too late. 31 A. 88. It would seem that an appeal was taken from the judgment against the garnishees, and the inference, from the prayer for a Prohibition, ancillary to that for a Certiorari, is, that the judgment was affirmed.

In an application for a Certiorari, we are not permitted to go behind the proceedings attacked, so as to pass upon the intrinsic correctness of the order, decree or judgment, or proceeding complained of, but we are restricted to an inquiry into its extrinsic validity. We clearly announce that we will not entertain applications in which our action will be asked to review the correctness, in point of substance, of judgments rendered by inferior courts in unappealable matters. See State ex rel. Wintz vs. Judge Criminal District Court, recently decided.

Article 864 C. P., which serves as a guide in such matters, provides: “ If, upon examining the certified copy thus sent, it shall appear to the court issuing the mandate, that the proceedings are null, and have not been sanctioned by the party complaining of them, it shall avoid the proceedings and direct the inferior judge to try the cause anew, in conformity with the provisions of the law.”

Finding that the relators have sanctioned the proceedings, the validity of which is assailed, we can render them no relief. C. P. 93; 26 A. 587; 29 A. 195; 15 A. 184; 31 A. 88; 32 A. 552.

It is, therefore, ordered that the petition for the nullity of the proceedings mentioned, be refused at relators’ costs.

Eehearing refused.


author: Bermudez, C. J. Bermudez, C. J.

text:
    No. 7563.
    W. B. Schmidt et al. vs. City of New Orleans.
    XVhen the sureties have not pointed out property of the principal debtor and advanced the sumnecessary for the discussion, and said principal debtor is notoriously insolvent, they cannot enjoin the execution of the judgment against them, on the plea of discussion.
    The sureties of the sheriff cannot plead compensation against debts of the latter, for which they are responsible and which, by law, are not compensable, such as claims.against him for moneys officially received and not accounted for.
    Judgments against the City of New Orleans, which are made inexecutory by law, cannot be compensated against. If they were compensable, they would be executory.

      k BPEAL from the Third District Court, parish of Orleans. Monroe, A J.

      Breaux & Hall, Jas. H. Grover and T. W. G. Ellis for Plaintiffs and Appellees.
    Pirst — The liability of the surety on the official bond of the sheriff is not fiduciary, and totally different from that of the sheriff, which arises from the law and independently of the bond. Bev. Statutes, Sec. 3538; C. C. Art. 3035; Troplong, du Cautionnement. Ed. de Paris, 1846, Tome XVTE, Ho. 51, p. 59.
    '•Second — Liability on bondmust be strictly construed; Troplong, du Cautionnment, p. 135 ; XT. S. vs. Boyd et al., 15 Peters, 208; Miller vs. Stewart, 9 "Wheaton, 702.
    Third — The suit of the city being for the satisfaction of injury inflicted upon her by the default of a principal against the surety on his bond, is not privileged under the exceptions of Article 2210; and compensation takes place by law whenever she is seeking to enforce such claim against her judgment creditor. C. C. 2207, 2210 .

      Sami. P. Blanc, Assistant City Attorney, for Defendants and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiffs, as sureties of a defaulting sheriff for the parish of Orleans, have enjoined the execution of a judgment against him and themselves, rendered for an amount of municipal taxes •collected by him, with due authority, but not turned over by him to the •City of New Orleans, to whom they rightfully belonged.

As grounds for the injunction, they averred—

1st. That by the very terms of the judgment, on which the writ issued, the property of the principal was to be first discussed;

2d. That the claim of the city against the sureties, is compensated by a larger claim which they hold against it, and which is liquidated by an executory judgment.

The suit by the city against the sheriff and his sureties was instituted in March, 1878, and ultimated with a judgment against the defendants, in this Court, in March, 1879. The sureties did not plead compensation at the time, as they were not then creditors of the city. In June following, the city issued execution to coerce payment of her judgment, but, on the same day, the sureties acquired a judgment against the city, notified it of the fact, and shortly after obtained an injunction to arrest the process against them. The case was tried, and the lower court decreed the claim compensated. From the judgment so rendered, the corporation appeals.

On the first ground.

By discussion is meant the seizure and sale of the property of the principal to satisfy the demand against him, before proceeding against that of the surety; but the surety who insists upon such discussion, must first point out property of the main debtor, and furnish a sufficient sum to carry the discussion into effect. R. C. 3045, 3047, and numerous decisions.

It is not claimed by the plaintiffs that they have complied with those essential prerequisites.

Evidence, in the record, establishes the hopeless insolvency of the defaulting sheriff, and the possession by his sureties of whatever assets he may own. These, however, do not appear to have been delivered to the executive officer in charge of the writ, for reduction into money, towards satisfaction of the city’s judgment.

Because of such failure to point out property and to advance the sum required for discussion, and the notorious and, as it were, admitted, bankrupt circumstances of their principal, the plaintiffs cannot be heard to press their first ground of objection, which is, therefore, considered as untenable.

On the second ground.

The official obligation assumed by'the sheriff, when he entered upon the discharge of his functions — as well towards the city as a State functionary, as towards all other litigants — was that of a public agent, necessarily, virtute officii, fiduciary. It was three-fold, in a pecuniary point of view.' It consisted: in collecting amounts called for by writs in his hands, or which he was otherwise authorized to receive in keeping the same; in turning over the same to those entitled thereto; the whole to be done “well and faithfully.” It was an obligation for the specific performance of official duties. It existed primarily,' independent of any bond. Its essence and nature were neither restricted nor amplified by the giving of the bond furnished under the statutory requirement. The bond is the evidence of that obligation, relative to the payment of • moneys received and not paid over by the sheriff, or of sums due by ■ him, in consequence of acts of commission or omission, misfeasance or nonfeasance, in office, which prescription may extinguish. That obligation was incorporated in the bond, and became its heart and soul, both by operation of law and covenant of parties, for. the benefit of all concerned, in exacting a specific performance by the sheriff of the duties incumbent upon him for the restitution of moneys coming officially to his hands. From the moment that this incorporation was effected, and the bond was signed and accepted, the sheriff and his sureties obligated themselves expressly by a common tie: the former, to do and perform faithfully all his official duties, without any undue exception; the latter, to do and perform faithfully the same duties, in the same manner, to the same extent, even unto accessories (B. C. C. 3040), in case of any dereliction on his part, to discharge them properly. So that all the obligations to pay money, of whatever nature, of the sheriff, as*such, became thé several obligations of each surety (up to the stipulated limit, concerning amount in the bond), and each surety, at the same time, entitled to oppose, eventually, all the means of defenses, except those personal to the sheriff, which the sheriff could urge, for his own exoneration, against parties asserting adverse pretensions; but they did not then acquire rights which the sheriff did not and could not possess.

' The obligations of the sheriff, as such¿ are indivisible. Either they were all inserted in the bond, or they were not. If they were,'the sureties cannot escape liability. If they were not (and they should have been), then only part of those obligations was embodied in the bond, and part was left out, and two sets of obligations were recognized — a consequence which is wholly repugnant. What were the obligations incorporated; what were those omitted ? No one can tell. They are determined by law, either specifically or generally, as the face of the bond itself shows. The law under which it was given forms part of the bond. There was no authority for any such distinction of the same. If any was attempted to be effected, it was an abortive attempt, which the law cannot sanction; but we do not discover that any division was sought, and are satisfied that none was made. The .obligations of the sheriff are, therefore, to be considered as transported into the bond in their entirety; and so being, they bind, conclusively and absolutely, his sureties for specific performance, in the same manner that he is himself bound by law.

. The law, in its jealousy and vigilance for the safeguard of litigants, to whom it has assigned a public agent, has surrounded and secured the fulfillment of the duties imposed upon such functionary with unusual high pains and penalties; In this instance he is bound to give bond; he is subjected to civil arrest, to removal from office, to infliction of damages, to a deprivation of the benefit of the laws for the relief of insolvent debtors, to imprisonment at hard labor. C. P. 730, 767; B. S. 905, 907, 1809, 3538.

Under the terms of the law under which bis bond was furnished, he bound himself to “well and truly pay over all sums of money that shall come into Ms hands as sheriff to the person entitled by law to the same.”

The sheriff, for certain purposes, is constituted by law a public ■agent Of the litigants in the several courts of which he is the executive officer. It is his duty safely to keep, as a public trustee, funds collected, •or otherwise received by him, for account of such litigants. It is not ■necessary that he should open a separate account in favor of each in■dividual for whom he has collected the money. In many cases this would be impracticable. * * * , It is sufficient that he keep ■a separate account, as a public officer, for the benefit of the several suitors whom, in his official capacity, he represents. 11 A. 727.

He is not to be viewed as a banker, for the ordinary relations of •debtor and creditor do not exist between him and the litigants, for whose account he receives and keeps money on hand. The moment •that an ordinary customer leaves his money, as an ordinary deposit, with his banker, the latter, under the tacit pact, consecrated by usage and ■custom in the financial world, becomes the owner of it, acquires the ■right of using it, of converting it to his own purposes, remaining nothing moré than an ordinary borrower, bound, in a civil action only, to restitution, and in no way subjected to criminal prosecution; but this is not the case with the sheriff. He is bound to retain and keep the money on deposit for account of those entitled to it. He has no power to use it for his individual purposes, but holds it subject to disbursement, on the order of the court by whose process it was recovered; or, when the case is clear, subject to- the order of the party for whose benefit it was realized. R. O. C. 3189.

The sheriff, being an agent, is bound by the same rules which con-trol other mandataries, and compel them to restore to their principal what they have received for him, even unduly. R. C. C. 3005. His official character, far from weakening, rather aggravates that responsibility and duty, the fulfillment of which is secured by his solemn oath ■and by his official bond. In case of a violation of that trust, he is ranked among unfaithful depositaries. 1 M. 347; 3 A. 514; 6 A. 207, 40; 10 A. 47; 12 A. 527; 7 A. 531; 11 A. 73.

It is clear that, as a depositary, he could not plead compensation ■on a demand for restitution of the money, so, on deposit, in his hands. R. C. C. 2210, | 3.

He could not assign to a third person a claim against him who has made the deposit, and which he could not set up in compensation, in order to have the deposit seized to satisfy such .claim, for this would be 'doing indirectly that which the law, for consideration of public and private good, commands shall not be done directly at all. Eenet Discours et Motifs, xiii. p. 283; Journal du Palais, 1818, p. 166; Marcadé, 4, 832, 3°; Troplong’s Oautionnement on Art. 2034, C. N., No. 470.

The character of moneys collected and not returned to the city by the defaulting sheriff is not to be lost sight of, and cannot be ignored by the sureties, plaintiffs in injunction, who were co-defendants with the sheriff in the case of the city. Those moneys formed part of the revenues of the city, under legislative directions; they were appropriated, in anticipation, by law for the purpose of meeting the public indebtedness and the necessary public expenditures. They constituted the alimony of the municipal government, and were not liable to seizure, or other diversion from the object for which they were intended. The ordinary, and even the privileged creditors, if such exist, are not permitted to levy any judgment on such revenues or alimony, in satisfaction of legal, just, and equitable claims due them, even though liquidated by judgment, or for salaries due them as municipal officers, and which those very revenues were raised to discharge, so necessary and indispensable were those sources of public income deemed for the very life and well being of the government. Under Act 59 of 1870, no writ of fieri facias can issue against the city. The judgment offered in compensation could not, therefore, be enforced by seizure of city property; but, even if it, could, it certainly could not bo directed against property or assets of the city, which the law declares shall not be seized at all; such, for instance, as the proceeds of taxes and licenses. Hilliard on Tax. 17; Cooley on Tax. 13; Domat, 2299; 65 Penn. St., 9; 5 Monroe, Ky., 318; S. C. 21 Am. Rep. 569; 31 Ark. 571; 6 A. 570; 7 A. 192; 21 A. 292; 27 A. 459; 28 A. 836; 30 A. 541.

That which the sheriff could not do, that which he was legally forbidden from doing, his sureties cannot claim the right of doing in his-place, as the prohibition which affects him affects them, their obligations, and rights being commensurate. To allow the claim of the city against, the sheriff and his sureties to be compensated by the judgment which; the latter have acquired by assignment, since a liability has been fixed upon them, would clearly be to sanction a diversion of public moneys from the legitmate objects for which they were to be applied; a seizure and absorption of indispensable municipal revenues by parties not entitled to them, an undu & preference of an ordinary judgment creditor over ordinary creditors similarly situated. The application of moneys realized by taxation to the purposes for which they were intended, is entrusted to the officers of the government, and the laws relative to it must be maintained, and firmly enforced in their integrity.

The rules established by law in that regard are precise and unusually strict, and must be observed;

Act No. 7. E. S. 1870, sec. 19; Act No. 38,1879. secs. 1. 4. 5.

This last section requires the taxes and licenses to be kept sacred in order that they be applied to the object of their appropriation, until the liability or debt, thus provided for, shall have been extinguished. Officers violating their trust, in that respect, are visited with examplary punishment.

The sheriff was bound to return money for the money which came officially to his hands. He has failed to comply with that obligation. His sureties, bound equally with him, to that end, must meet the obligation which he has not fulfilled, and must pay money. They cannot be permitted to set off the judgment of the city against the sheriff for moneys collected by him for municipal taxes by a judgment in favor of an ordinary creditor of the city, on an ordinary claim against the corporation. The mode of payment of this judgment is regulated by the Act of-1870, No. 5, with the requirement of which the plaintiff, in the case in which it was rendered, appears to have complied.

The practice of setting off one judgment against another, between the same parties, is said to be ancient and well established; but they must be due in the same right. The articles of our Code of Practice seem to contemplate, however, that the defense in compensation should exist pending 'the demand, and should be then set up; but they provide that, if it be not urged, there shall be relief for the creditor, in a direct and independent suit, to be subsequently brought.

At common law, it has been held that an assigned judgment is not a proper subject of set-off in the hands of the assignee, and even that a judgment obtained and transferred, after the commencement of a suit, cannot be set-off in the suit; in such cases a discretion in equity being vested in the court. 3 N. J. 751; 44 N. H. 125; Haw (Ky.) 75; but we are not inclined to consider that such restrictions exist in our system, to such modes of extinguishment of reciprocal obligations, due in the same 'right, where the causes of the judgment are of equal dignity. We will nevertheless keep a watchful eye on the revendication of such claims, when asserted against public moneys due to political corporations, and necessary for public purposes.

While rejecting the compensation set up., and deciding that the injunction improperly issued, this Court do not feel themselves authorized to award damages, under the circumstances of this case.

The question presented was a novel one, for which no exact precedent-can be found. The plaintiffs were advised conscientiously, and honestly thought they could resort to the remedy which they obtained; and the judge of the lower court was of the same opinion.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be reversed; and, proceeding to render such judgment as should have been rendered, it is ordered, adjudged and decreed that the injunction herein issued be dissolved, and that the execution of the writ herein enjoined be proceeded with in furtherance of the judgment upon which it issued, and according to law; the plaintiffs and appellees paying costs in both courts.

Mr. Justice Fenner recuses himself as having been of counsel.

In this case a rehearing is granted, the attention of counsel being specially directed to the question, whether a surety can or not plead compensation, when the principal is prohibited from pleading such, as against the creditor.

The case will be called and fixed as a summary case, and oral argument will be allowed..

On Rehearing.

Bermudez, C. J.

The sureties no longer dispute their liability under their bond for the defalcation of the principal. A final judgment has set that question forever at rest. They claim that this indebtedness, judicially liquidated, is compensated by a judicial liquidation of a money claim which they hold against the city.

We have attentively listened to the argument on the rehearing, and reviewed the authorities again referred to, as well as additional ones, and remain satisfied that our previous solution of the question ought not to be altered.

A surety is liable in the same manner that the principal himself is, and is bound with him, and can be held to a specific performance, in his place, of all his obligations, the execution of which has been secured, whenever such specific performance was agreed to and can be enforced.

If a principal assumes to make a fine artistic portrait from his own brush, and it is agreed, that in ease of his failure to do so, a surety will pay a sum of money, it is quite clear that the surety could not be held to specific performance by making the picture, from the very nature and terms of the contract, which was merely personal, and which provided for a fixed or determined money penalty in the event of inexecution; but had the penalty been that the .surety, himself a painter, would, in case of failure on the part of his principal to do the work, himself make the portrait, the surety would be bound to conform with his obligation, and the power of the law, as far as it could enforce specific performance, would have to be exerted to accomplish that purpose.

The bond in this ease affords an illustration of the impossibility of requiring specific performance by the sureties of all the obligations of the principal. The bond provides, that if the sheriff shall. well and faithfully execute and make true returns, according to law, of all writs, orders, process, as shall come into his hands as sheriff, * * * then the obligation to be void, otherwise to remain in full force and virtue.

It is patent that, if the sheriff had failed in those particulars, the sureties could not be held to perform the official functions to which he may have proved derelict, because citizens cannot be transformed in that manner into public officers.

We consider that the sureties cannot oppose compensation, as it is offered to be done, for two reasons: first, because the principal could not have pleaded it, and they have no greater rights than he has; second, because the two debts and judgments are not of equal dignity.

Suretyship is an accessory promise by which a person binds himself for another, already bound, and agrees with the creditor to satisfy the obligation, if the debtor does not. R. C. C. 3035; Troplong, Cont., p. 4.

The obligation of the surety is the same as that of the principal debtor, with the exception that it may be alternative, though solidary, idem esse fide jubeo. By a necessary consequence, his obligation cannot exceed the principal’s, nor can it be contracted under more onerous conditions, and the means of defense which protect the principal debtor against exigencies of the creditor are common to both, whether the debtor has used them successfully, or has not employed them at all, neglecting or refusing to do so; but this rule is subject to the restriction, that the surety cannot avail himself of the exceptions merely personal to the debtor. R. C. C. 3036, 2098, 3060; Pothier, Obl., 274, 595; Domat, 1836; Troplong, Cont., 84, 494.

Article 2210, R. C. C., enumerates the only cases in which the debtor cannot plead compensation, and naturally omits mentioning those in which he can do so. It cannot be claimed that the cases not enumerated are to be considéred as enumerated among those in which compensation can be pleaded.

Among the former are the cases of a demand for the restitution of a deposit, and of a debt which is declared not liable to seizure.

The following article, 2211, enumerates the cases in which the surety may oppose compensation. Can it not be said, with reasons equally potent, that the surety can plead compensation only in the cases mentioned, and in none other ?

The surety is allowed to oppose in compensation what the creditor owes to the principal debtor; but the latter cannot oppose the compensation of what the creditor owes to the surety. The debtor in solido is not allowed to oppose compensation of what the creditor owes to his co-debtor. (C. C. 2211). It is not there mentioned that the surety can plead in. compensation when, and what, the debtor cannot. By legal and logical intendment the reverse is the law.

Article 3060, R. C. C., clearly sets that question at rest, when it says that the surety may oppose to the creditor all the exceptions belonging to the principal debtor, which are inherent to the debt, but he cannot oppose those which are personal to the debtor. The defense must be •one inherent to the debt, in order to be susceptible of plea by the surety. Inherent means, that which exists inseparably, — which naturally pertains to. How does the judgment pleaded by the surety against the city, on the claim upon which it is founded, which is its consideration, exist inseparably, or pertain to the debt claimed by the city from the sheriff and his sureties? They are in no way connected'or dependent. They have distinct natures and characteristics.

The claim, or debt, upon which the judgment opposed in compensation was rendered, was a supply of gas to the city by the Gas Com-' pany. The claim, or debt, upon which the city recovered judgment against the defaulting sheriff and his sureties, is for taxes and licenses, public moneys, received by that officer as a legal deposit, and not returned by him; one against which he cannot plead compensation.

The judgment opposed in set-off was recorded under Act 5 of 1870, and is not executory against the city, otherwise than in the manner provided by that law. Were it to be permitted to extinguish, as compensable, the judgment enjoined, the consequence would be that a judgment not executory would be executed; and, even then, would be satisfied out of diverted funds, which could not have been levied upon to satisfy the same judgment; would be doing indirectly that which cannot be done directly.

We think that the obligations of the sureties in this case are identical with those of their principal; that they cannot plead defenses which he is prohibited from setting up; that, as he is bound to pay back money, so they must be held to pay money to the city to replace that received and not returned by their principal.

It is, therefore, decreed that our former judgment herein remain undisturbed, and that the judgment enjoined be accordingly executed, as the law provides

Levy, J., absent.


author: Fenner, J. Fenner, J.

text:
    No. 6744.
    Hugo Redwitz vs. E. Waggaman, Sheriff, et al.
    Plaintiff having acquired certain movable property, partly in payment of a debt due him, partly for cash, and having received possession of the same and then hired it to the transferror, the creditors of the latter cannot attach it by a direct seizure as his property.
    Art. 240, O. P., Ko. 4, is not intended to enable the attaching creditor to dispense with the revocatory action when there has been a real sale of the debtor’s property, even if fraudulent, and to seize said property directly, as if the sale were simulated.
    The fact that, in the attachment suit, the said purchaser signs the bond of the defendant to release the property, does not preclude him from asserting his ownership.
    On the mere quantum of damages, this Court will not disturb the judgment of the Court below, unless the amount is manifestly excessive or clearly unsupported by evidence.
    ^PPEAL from the Eifth District Court, parish of Orleans. Rogers,

      Fdw. Phillips for Plaintiff and Appellee.

      Singleton & Browne and J. H. Ferguson for Defendants and Appellants.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff avers that, in a certain suit brought by defendants, E. C. Palmer & Co., against R. H. Benners & Co., the said Palmer & Co. caused a writ of attachment to issue, and caused to be seized thereunder property belonging to plaintiff herein, and in no manner liable for the debts'of Benners & Co.; that by reason of said unjustifiable seizure, he suffered damages in deprivation of possession and use of his property, in injury to the same and deterioration in its value, and otherwise, for which he prays for judgment.

The defendants filed an exception of Us pendens, averring generally the pendency of another suit between the same parties, and growing out of the same cause of action, without any identification of the suit referred to by any description whatever. The exception was regularly fixed, tried and submitted, and it does not appear that any record or any other evidence was offered in support of the plea. The court overruled the exception. This disposes of that defense, as the record furnishes no basis for reviewing the action of the court.

Defendants then answered, reserving the benefit of the exception, pleading the general denial, specially averring that the property seized was in the possession of Benners, their debtor; that it had formerly belonged to him, that, if transferred by him to plaintiff, the latter never took possession; and that such transfer was, in any event, illegal and in fraud of the creditors of Benners, who was insolvent. The evidence satisfies us, that in February, 1874, Benners did sell the property in question, being certain printing presses and other apparatus of a printing office, to Redwitz for $2500 — a full and fair price; that the price was paid to the extent of $1500, by a debt then due by Benners to Redwitz, and that the balance was then paid in cash, used in taking up notes of Benners for rent then due his landlord, and bearing privilege‘on the property; that Redwitz received delivery and took possession of the property, and removed it from the building in which it was to another building rented by him, Redwitz, for the purpose, and there set it up and established it for the purposes .for which it was intended, to wit, the carrying on of a printing office; that, not being a printer himself, he then rented the establishment to Benners, at a fixed rent of sixty dollars per month, and that such was the title by which it remained in the possession of Benners. There is absolutely nothing in the record to sustain the question of the perfect genuineness and bona fldes of this whole transaction.

It is evident that property so situated, was not, on any theory, subject to direct attachment at the suit of a creditor of Benners.

Palmer & Co., however, caused this property to be attached, and refused to permit its release upon the demand of Redwitz. It was taken into actual custody by the sheriff and removed to his warehouse, and remained under seizure from December, 1874, to July, 1875.

Exempting Palmer & Co. from charges of malice or want of probable cause, they are, nevertheless, clearly responsible for the actual damages caused to Redwitz by their attachment of his property, unless the latter has, in some manner, estopped himself from claiming them.

It is charged that he is so estopped by reason of certain proceedings had in the attachment suit of Palmer & Co. vs. Benners, viz.;

First. It is said that Redwitz intervened in the case, joined Benners in a motion to dissolve the attachment, and after trial, said motion was denied and the attachment maintained; and that said judgment is final as to the validity of the attachment. We do find a motion to dissolve made in the joint names of Benners and Redwitz; but the grounds assigned do not involve the question of Redwitz’s ownership — evidence offered by him in support of his title was objected to and ruled out by the court, on the ground that his ownership was not involved; and the reasons of the judge overruling the motion show that it was decided on grounds not, in any manner, affecting that question. He never intervened; his joinder in the rule to dissolve was quite irregular; his connexion with the case terminate with the decision thereof; and that decision settled nothing as to his ownership. We, therefore, think it has no effect on his rights as presently urged.

Second. It is said that when Benners subsequently bonded the property, Redwitz became surety on his bond, and thereby judicially admitted his ownership. No such admission logically results from such action. Benners had the right to bond, and bonded, not as owner, but as defendant. C. P. 259. He had the right to bond, whether he was-owner or not. And Redwitz, though the owner, even i£ he had intervened and asserted his title, could not, as the law then stood, have-bonded.

No doubt the bond was given in order to enable Benners to return the property to Redwitz, as was done. I£ in order to effect this purpose, Redwitz was willing to become surety on the bond, we can see therein no waiver of any right. The bond may have rendered Redwitz personally responsible for the judgment rendered against Benners; but if that were true, it would only furnish additional reason to protect and enforce his rights of ownership of the property.

Third. It is urged that the attachment was never quashed, but that final judgment was rendered by the court against Benners for a certain sum of money — though without expressly recognizing any privilege on the property attached. However Redwitz may be affected by this judgment as surety on the bond of release, it is clear that, as owner of the property, he is not affected by it.

What concern had he, as such owner, with the further proceedings in that cause, after his property had been released on bond, and restored to his possession? No judgment therein could affect his property, but would operate, if at all, only on the bond. His case, as owner, is not different from what it would have been, had another person been surety on Benners’ bond. We are not concerned here with his liability as surety. He was not a party to that suit, and after the release of his property, no judgment therein rendered could affect either his property, or himself personally, except as surety on the bond.

As to the quantum of damages allowed in the judgment, it does not seem excessive under the evidence — and we do not think, all things considered, the allowance more than replaces the plaintiff in the position in which he would have been, had his property never been seized.

On the more quantum of damages, in a case like this, we are not disposed to interfere with the judgment of the court which heard the evidence and was familiar with all the facts, unless the allowance appears manifestly excessive or clearly unsupported by evidence.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed at appellants’ costs.

On Arflioation for Rehearing.

Fenner, J.

All the points suggested in this earnest application were carefully considered before forming our original opinion.

1st. The inconsistency suggested in the testimony of Benners and Redwitz, is. not real but only apparent, arising from confusion in the use of the word “ office.” The testimony is clear that Redwitz rentéd the building, No. 68 Camp street, for the express purpose of removing to it the materials purchased by him, and of establishing there a printing office; and that he actually removed them. He thereby accomplished an actual and complete delivery. This printing office, including the whole establishment, he rented to Benners, and Benners, under said lease, conducted the printing business as his own; and it is in this sense that he uses the word “ office ” in his testimony, when he speaks of it .as Ms office.

2d. The questions as to the insolvency of Redwitz, the sale out of the usual course of business, the unjust preference given to Benners, cannot be considered in this ease. The transaction was real, and not simulated; and whatever objections might be urged against it in a proper revocatory action, none such has been brought. A real sale, translative of property, and not revoked, cannot be disregarded by a creditor of the vendor, by direct seizure, under execution or attachment, •of the property so transferred to, and in possession of, the vendee.

This is elementary.

3d. Counsel, we think, misapprehends the meaning of paragraph No. 4 of Art. 240 of the Rev. Code Practice, if he contends that the effect thereof is to subject to direct attachment property actually sold .and delivered for a real consideration, though with intent to defraud or prefer creditors. The effect of such dispositions is simply to furnish a ground for attaching the;property of the debtor — not to dispense with the revocatory action and authorize the direct attachment of property so .really transferred.

The rehearing is refused.

Levy, J., absent.


text:
    No. 8003.
    State of Louisiana ex rel. Josiah Fisk vs. Police Jury of Jefferson, Left Bank.
    ' The Petition for a Mandamus must be sworn to, as required by Art, 840, C. P., and the omission of the Petitioner’s oath cannot be subsequently cured by means of a suppemental Petition.
    APPEAL from the Twenty-sixth Judicial District Court, parish of Jefferson. Hahn, J.

      J. Fislc in person.
    TFm. Mithoff, Jr., for Defendant and Appellee.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff seeks by mandamus to compel the defendant to assess and collect a tax of a rate sufficient to pay and satisfy the sum of $4130 96, the aggregate amount of five judgments, which he has obtained against the police jury.

Defendant excepted, on the ground that the petition for mandamus was not sworn to, as required by Art. 840 of the Code of Practice.

The writ of mandamus is one of the most potent remedies known to our law, and its effect in a case like this would result in' an additional impost on a whole community; and, hence, the applicant should be held to a strict compliance with all the requirements of the law.

The petition, when filed, was not supported by the oath, which is imperatively required by the Code, and that omission is fatal to the proceeding. 10 A. 415.

After the filing of defendant’s exception, the relator presented a supplemental petition, praying for leave to annex his oath of the truth of the facts recited in his petition. But the record does not disclose what, if any, action was taken by'the Court on the supplemental petition.

At all events, it came too late, and could not deprive the defendant of the rights acquired by his exception, based on relator’s omission, and urged in due time.

The judgment of the lower court refused the mandamus, and dismissed relator’s petition at his costs ; it is correct, and is affirmed with costs.

Levy, J., absent.

Rehearing refused.


text:
    No. 8020.
    Succession of Henry Kuntz. On Motion to Rescind Order and to Dismiss.
    Repeated applications for further time liad been, made by Appellant, supported by the Certificate of the Clerk of the lower Court, that it was necessary to complete the Transcript of Appeal; and the additional time asked for, was granted by tbis Court j wben Appellee showed by the Certificate of the Clerk of the lower Court, that the Record to he transcribed, was in the hands of Appellant’s Counsel all the time that application was being made for further delay. Appellee moved, in making this showing, that the order for further delay be rescinded and the Appeal dismissed.
    Held that the order should be rescinded, but, as there is no Transcript and, therefore, no Appeal before this Court, there is none to dismiss.
    ^PPEAL from the Second District Court, parish of Orleans. Tissot,

      Sambola & Bucros and Brauglm, Buck-& Binkelspiel for Appellant.

      Henry B. Kelly for Appellee.
   On Motion to- Rescind Order and to Dismiss.

The opinion of the Court was delivered by

Poché, J.

On the 16th of July, 1880, the late Second District Court, of the parish of Orleans, granted to John Ponstein a suspensive appeal from a judgment rendered in this succession, and on the twenty-eighth of July of the same year the same court discharged a rule taken against appellant for the purpose of setting aside his appeal, which then became • absolute, and was made returnable to this Court on -the first Monday of November, 1880.

On application made by appellant’s counsel, on the 1st of November, 1880, supported by a certificate of the clerk of the Civil District Court of the parish of Orleans, to which the cause had been transferred on the 29th of October, 1880, which certificate stated that the transcript had not yet been completed for want of time, a delay of thirty days was granted by this Court to appellant for the completion of the transcript.

On the first of December following, a similar application, supported by a similar certificate, was made by appellant, and an additional delay of fifteen days was granted by this Court; and on the sixteenth of December following another application for an extension of fifteen days was again urged in a similar manner by appellant, and on this no action has yet been taken by this Court.

In the meantime, appellees filed in this Court, on the thirteenth of December, a motion setting forth the above facts, and annexed thereto a certificate of James T. Clark, clerk of the Civil District Court of the parish of Orleans, in which he states that from the fifth of November to the tenth of December last, the original papers in this cause had been continuously in the possession of appel'int’s counsel, and that the transcript had not yet been begun on the eleventh of December, the date of his certificate; and appellee’s motion concludes with the prayer that our orders granting delay for the filing of the transcript be rescinded, and that the appeal be dismissed.

The mere statement of the foregoing facts and occurrences shows that our order, granted on December first, allowing an extension of fifteen days, was predicated on an alleged cause of delay, which is materially contradicted by the certificate of the clerk, under date of the eleventh of December, and that the order was, therefore, wrongfully obtained.

The absence of the original record from the clerk’s office, and its detention by appellant’s counsel, not want of time, were the causes which delayed the completion of the transcript.

In their sworn motion for an additional delay, under date of De- . cember sixteenth last, appellant’s attorneys offer an explanation which screens them from any imputation or suspicion of unfairness in their detention of the papers ; but it is not sufficient to protect them from the legal effect of their neglect or omission in not producing the transcript in due time.

The order granting the additional delay having improvidently issued, must therefore be rescinded; but as we have no transcript, and therefore no appeal-before us, we do not feel authorized to dismiss the appeal.

It is, therefore, ordered that our order of December first, granting appellant an additional delay of fifteen days, within which to file his transcript of appeal, be rescinded, and that his application for further delay, filed on December 16th, 1880, be refused, and that he pay the costs of these proceedings.

Levy, J., absent.


author: Fenner, J.

text:
    No. 6361.
    David R. Fox vs. C. V. Thibault et al.
    The Recorder of Mortgages Is responsible for the amount loaned on mortgage, on the faith of his Certificate that the property mortgaged was free of previous encumbrances, when, in point of fact, the said property was mortgaged for more than its value, and the money loaned is thereby lost to the lender.
    Such an action against the Recorder of Mortgages is on his official bond and, therefore, ex contractu, and not prescribed by one year.
    ÁÍPPEAL from the Second Judicial District Court, parish of Plaque-mines. Tar dee, J.

      IS. Howard Me Caleb for Plaintiff and Appellee.

      A. & M. JE. Livaudais for Defendants and Appellants.
   The opinion of the Court was delivered by

Fenner, J.

He brings this action upon the official bond of Thibault, setting forth the foregoing facts; averring that Trufant was insolvent and without any other estate; that his loan was made upon the faith of the mortgage security; that, but for the false and imperfect mortgage certificate, he would not have parted with his money; that he has lost his money through the defendant’s breach of his official duty, and is thereby damaged to the full amount thereof; and tendering to defendant the unpaid note of Trufant, he prays for judgment against Thibault and his sureties for the amount of his loan and interest. The judgment of the court below condemned Thibault to pay the said damages, but discharged the sureties, against whom no appeal is taken, upon a defense personal to them, and with which we have no concern.

The condition of the bond sued on is that the principal shall, “well and faithfully perform all the duties imposed by law upon him.”

Amongst the duties specially imposed by law on Recorders, is the duty of delivering to all persons who demand them, certificates of recorded mortgages and privileges; and the law makes them answerable for injury resulting from their omission to mention in their certificates any such acts existing on their registers.

Rev. C. O. 3393, 3394.

The defenses urged by the defendant are the following, viz:

1st. The prescription of one year, based on the hypothesis the action is one for damages resulting from a quasi offense.

We are not concerned here with the question as to whether defendant’s breach of duty was, or not, technically a quasi offense. The action is on a bond, and therefore, ex contractu, to which the prescription invoked is not applicable.

Brigham vs. Bussey, 26 A. 676.

2d. Defendant urges that plaintiff cannot recover, for three reasons, which rest on the same principle, and may be considered together, viz: (1) that he did not demand and enforce payment of the note against Trufant at its maturity; (2) that he has not established that Trufant was insolvent at the date when the note matured; (3) that he cannot now subrogate defdhdant to his rights against Trufant, as they existed at the maturity of the note.

The answer to all this is, that plaintiff did not discover the falsity of the mortgage certificate, on the faith of which he loaned his money, until a considerable time after the maturity of the note. After this discovery, with sufficient promptness, lie brought the present suit; and he proves that, at that time, Trufant was insolvent, had no property or means, and that it would then be useless to sue him; and he tendered Trufant’s note, which was negotiable by delivery, to- defendant. This is all that could be required of him. So long as he was ignorant of defendant’s breach of duty, of the damages accruing to him therefrom, and of his consequent claim on defendant for reparation, he owed no duty whatever to defendant; was entitled to indulge his debtor as he pleased; and, the note being intact and unpaid in-whole or in part, defendant could claim nothing but subrogation to his rights aá they existed at the date of the discovery.

• Other defenses were set up in the court d qua, but they are without merit, and are not even urged in the argument here.

We are satisfied plaintiff would not'have parted with his money to Trufant had the mortgage certificate recited the omitted mortgages, and thus revealed the utter and hopeless worthlessness of the security offered. His money, thus parted with, is absolutely and completely lost; and its amount, with legal interest thereon, is the clear and certain measure of his damages, which he is entitled to recover.

■ Such was the view of the District Judge.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed at appellant’s cost.

Levy, J., absent.


text:
    8089.
    State of Louisiana vs. Willis Hopkins.
    A Motion in arrest of judgment should Tie denied when made on flie ground, that the charge to the jury was given orally hy the judge after Counsel for the accused requested it should he in writing, though the request was withdrawn before the charge was given, and though the judge had announced his readiness to grant the request.
    APPEAL from the Sixth Judicial District Court, parish of West Carrol, Brigham. J.

      J. C. Egan, Attorney General, for the State, Appellee.
    A motion in arrest of judgment, on the ground that the judge delivered his oharge to the jury orally after being requested to'-write said oharge, will be overruled, when the counsel for the accused withdraws his request for a written oharge.
    Defendant not represented.
   The opinion of the Court was delivered by

Fenner, J.

The errors charged by defendant are presented in a bill of exceptions, a motion for new trial, and a motion in arrest of judgment..

First. The bill of exceptions and motion in arrest are based on the same ground, viz.: the failure of the judge to deliver his charge in writing after having been requested to do so by counsel for accused, though, before the charge was delivered, the counsel withdrew the request.

Although the counsel states in thd'bill that “he withdrew the request for the reason that it might prejudice the jury against the accused,” it appears that, in so doing, he acted freely and voluntarily, without any suggestion from the judge, who promptly acceded to the request and announced his readiness to comply with it. He had the right to withdraw the requirement, a matter entirely within his discretion, and the judge was not concerned with the motives of his action.

The judge should not, and in this case did not, exhibit any unwillingness to comply with such request, or say or do any thing tending to throw upon counsel any blame for the inconvenience to which the jury might be subjected.

This is as far as the Court went in State vs. Swayse, 30 An. 1323, where the judge said that, “if the counsel insisted, he would adjourn court and prepare the charge.” The Court said “ he should have given the written charge without requiring the counsel to insist upon it. We doubt the soundness of that decision, and certainly shall not extend it.

Second. The motion for new trial is made on no other ground than that the verdict was “ contrary to the law and the evidence.” It is impossible for us to say that the judge erred in overruling it.

It is, therefore, ordered and adjudged and decreed that the judgment appealed from be affirmed.

Levy, J., absent.