text:
    No. 1815.
    Mansfield’s Assignee et al. v. McLearn & Church.
    A contract of charter of a steamboat, during the late war, made at New Orleans after the city came under tlio lawful control and power of the United States, to carry on trade with the city ot Shreveport and surrounding country then under the control and power 01 the insurgent forces, is null and void, and no action lies to enforce it.
    rormits given by the military commander of the Gulf Depaitmenb to carry cn trade with tho-insurgents and transport the respective commodities of commerco through the lines of military occupations, were without any legal lorce or effect. The a*t of Congress of July 13, 1361, gave to the President of the United States power, in his cUecrciion, to license commercial intercourse between citizens residing within those sections of the country where the lawful authority prevailed and those districts where the insurgent forces held control. Under this statute, licenses or permits giveu by any other authority were nullit c?.
    APPEAL from Sixth District Court of New Orleans. JDuplantier, J.

      O. Bodncy May and W. JET. Hunt, for*plaintiffs and appellants. Walter II. Boyers, for defendants and appellees.
   Taliaferro, J.

Tho defendants are sued for nine thousand dollars, alleged to ho for the charter of the steamer Arizona and for four thousand dollars damages to the boat while under the control of the defendants.

Tho answer is a general denial. The defendants afterwards filed a peremptory exception in bar of the action, on the ground that the-pretended charter of the steamer, if made at all, was for the purpose of carrying on an illicit trade with the so-called Confederate States, at that time enemies to the United States, and this .to the knowledge of the owners and their agent, who were interested therein; that, in this respect, the chartering of the boat, if chartered at all by the defendants, was contra hongs mores and utterly null.

The case was tried before a jury and the verdict was in favor of the defendants. From the judgment of the court below the plaintiffs appeal.

In the early part of March, 1865, Mansfield and another, then owners-of the steamer Arizona, chartered her through their agent, Bloomer, to certain parties to carry supplies of various kinds to Shreveport, and on the return to bring a load of cotton. There was no written instrument showing the character and terms of the contract. There is a singular discrepancy in the testimony of the witnesses in several very important points. The agent of the owners swears that he chartered the boat to McLearn, Clmrch, Irwin and Carroll, and that the owners-were to have a fair compensation for the use of the boat to make the trip. Irwin swears that he chartered the boat for himself and McLearn, and that he (McLearn) and Bloomer were to settle the amount to be paid for the boat on her return. He states that no-settlement was ever made. McLearn and Church, in their testimony, deny that they had anything to do in chartering the boat. The length of time the boat was to be used was not definitely agreed upon, neither-was the compensation fixed.

Bloomer says: “ They thought it would require about thirty.days to make the trip. Considering the scarcity of boats at that time, I consider she was well worth three hundred dollars per day.”

It seems that the expedition proved to be an utter failure. The boat left the port of New Orleans, proceeded a short distance up the river and returned the next day in a leaky condition. The cotton bagging, groceries, etc., put on board, were damaged; and we find in the-evidence the record of a suit of McLearn and Church against the Arizona and owners for damages to the amount of $2249. This suit was filed twenty-sixth of April, 1865. The testimony in regard to the condition of the boat at the time she left port seems to establish that she was in good order. She encountered a storm the night after leaving, and in consequence lay to until next day, when it was found that she was leaking, and that there was a good deal of water in the hold. This suit is brought upon a contract of charter. A pretty careful examination of the record does not satisfy us that there was such a contract entered into. There is certainly some difficulty in determining from the evidence who were the parties who chartered the boat, if such a contract was made. No price that we can find was fixed, and we see no basis upon which a judgment could be pronounced.

Lastly, the peremptory exception, we think, is conclusive against-the plaintiffs. At the time these transactions took place a state of wax ■existed in this country. All the northern part of Louisiana was then' ■under the power and control of the rebel government. Commercial intercourse between those sections of the country, where the lawful authority of the United States prevailed, and those where the insurgents held rule was interdicted. New Orleans was then under the United States authority, Shreveport within the Confederate lines. It is shown that the parties who got up this adventure had obtained permits from the military department of the Gulf, and that a courier had been dispatched to Shreveport to obtain permission to go up the Red river. This was unavailing. No one except the President of the United States had authority to grant such permits. See on this ■subject the decisions of the Supreme Court of the United States; ■3 Wallace’s Reports, 617; ib. 5 vol. 631, and 6 Wallace, p. 531.

It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed and that this suit be dismissed at plaintiffs’ costs.


source: Caselaw Access Project

author: Ludeling, C. J.

license: Public Domain

text:
    No. 1340.
    J. Viosca, Jr., v. C. A. Weed & Co. and C. A. Weed.
    .After a certificate of discharge lias been obtained by the debtor from the bankrupt court of the * United States, in conformity with the bankrupt act of 1867, section 81, no judgment can be rendered in the cause by the State court except one of dismissal.
    APPEAL from Third District Court of New Orleans. Eellowes, J.

      E. 0. Mix and C. S. Kellogg, for plaintiff and appellee. Sullivan, Billings & Hughes, for defendant and appellant.
   Ludeling, C. J.

The defendants having been duly discharged from their debts, by decree of the United States District Court of Louisiana, sitting in bankruptcy, this court can render no judgment in the case •except of dismissal. United States bankrupt act of 1867, section 34; :2i An. 58.

It is therefore ordered that the appeal be dismissed at the costs of the appellants.

Rehearing refused.


text:
    No. 2717.
    Keep & Hogan v. Mrs. Martha M. Harrison.
    An appeal will not lie from a judgment for the exact amount of five hundred dollars. Consfcistitution, article 7i.

    from the Seventh District Court, parish of West Feliciana. Cooley, J.

      Collins & JOeaTce, for .plaintiffs and appellees. W. J). Winter, for defendant and appellant.
   Ludeling, C. J.

The motion to dismiss must prevail. Suit was instituted for the recovery of five hundred dollars, with, interests, in the parish court. An exception to the jurisdiction of the court having been filed, the plaintiff remitted the interest on the trial, and there was ‘judgment for five hundred dollars. An appeal was taken to the district court. Judgment was again rendered in favor of the plaintiff for five hundred dollars, and defendant has again appealed. The amount in dispute does not exceed five hundred dollars.’ This court is, therefore, without jurisdiction. Constitution, art. 74; 14 An. 114.

It is ordered that the appeal be dismissed,


author: Wrr.r, J.

text:
    No. 1814.
    Succession of Jesse W. Wilder.
    Where two parties, the one residing in Louisiana and the other in Mississippi, enter into an antenuptial contract of marriage in the State of Mississippi, and immediately after marriage remove to and establish their domicile in Louisiana, the capacity of the parties, as well as the form of the contract, must be tested by the laws of Mississippi, where it was made, while its effect must be governed by the laws of Louisiana, where it is to be enforced.
    A marriage contract made in Mississippi, by a minor on the one part, is not absolutely void, but is voidable only, unless the contract shows on its face that it is not to the advantage of the minor.
    Where the marriage contract confers upon the minor privileges and rights over her separate property, that she could not exercise under the law of the place where it is made, without the contract, it can not be said-not to be to her advantage.
    In determining the question whether the contract was for the advantage of the minor, and whether it is void or voidable, the lex loci contractus must alone be consulted.
    A minor who has made a marriage contract, whereby the community oí acquets and gains are stipulated not to exist during coverture, may bring suit to. avoid such contract, on the ground of her minority at the time it was made, at any time within five years after her majority. If suit is not brought within five years after majority, the action is prescribed. C. 0. 3507.
    It seems that, in a suit for a partition by one heir against the widow and the other heirs, where the plaintiff relied on a marriage contract executed in another State as a bar to the widow’s right to one-half of the community, and the widow contests the validity of the marriage contract, the plaintiff may successfully plead the prescription of five years in bar of the widow’s right.
    APPEAL from Second District Court of Now Orleans. Thomas, J.

      Buchanan & Gibnore, for George Wilder, appellant. Face, Foster & F. T. Merriclc, for Mrs. Jordan, appellee. Franh Haynes, for under tutor, appellant.
   Wrr.r, J.

George Wilder instituted this suit against Mrs. Jordan, his stepmother, and her two children (his coheirs), for partition of the property of the succession of his father, Jesse W. Wilder.

The various issues presented hy the pleadings, hy agreement of counsel, are reserved until the action of the court is had upon the main one, to wit: “The question whether Mrs. Harriet A. Bartholomew, late widow of Jesse W. Wilder, deceased, and now wife of the said William Jordan, has been barred of her right to a community of acquets and gains between herself and her predeceased husband, hy an ante-nuptial contract.” * * * * * *’ *

In November, 1854, Jesse W. Wilder, of New Orleans, married Harriet A. Bartholomew, of the county of Hancock and State of Mississippi, at the residenee of her father, in said county- and State, and in a few days thereafter removed to New Orleans, where they continued to reside till the death of Wilder, in January, 1862¡ On the day and at the place of the marriage, and just before its celebration, the ante-nuptial agreement, or marriage contract in - question, was executed. The plaintiff,- George Wilder, the issue of a former marriage, was then a minor. A witness, who was present at the marriage, describes Jesse W. Wilder as old and infirm, and Ms bride as a charming girl of about seventeen.

The marriage contract declares: "That whereas, a marriage is intended presently to be solemnized between said Jesse and Harriet, and they are desirous, prior to that event, to settle their respective estates according to purposes, uses and limitations .intended and desired, so that the right, title and interest may be defined, and not to be affected by the contemplated union; and whereas, the said Wilder is engaged in business iu the city of New Orleans, with a capital of $5,000, or more or loss,- which (as well as any other property in which said capital, and the profits accruing therefrom, may be now or hereafter invested) lie desires to keep free from and unaffected by any claim, right, restraint or contingency arising out of his marriage with said Harriet; and whereas, said Harriot A. Bartholomew is the owner of a slave woman named Lucinda, conveyed to her by notarial act of record in the office of E. L. Lewis, notary public, in the city of New Orleans, which said slave and her issue, together with any other estate, real or personal, to which she is now entitled or which she may hereafter acquire or receive by gift, devise or inheritance, she desires to render subservient to her own comfort and control during the conte mplated coverture, with the power of alienation, devise or bequest beyond the interference or restraint of her intended husband. Now, therefore, said Harriet relinquishes and abandons all right, title, claim or interest whatever which she might otherwise have acquired in the real and personal property of said Jesse W. Wilder, and he renounces all right, title or claim of, in or to the property, real or personal, of said Harriet, leaving her free to sell, incumber, devise or bequeath the same, or any part of it, according to her own pleasure, as though she was femme sole. And said Lewis Bartholomew is charged to make under her order any and all proper conveyances, assurances, etc. Said Jesse W. Wilder and Harriet A. Bartholomew, respectively, do hereby reserve and retain the entire and absolute control in and over their respective estates and property as now owned by each, ancl which may he acquired during their coverture, with the right and power to each from and after the contemplated marriage, and at any and all times during the coverture, by deed, will or otherwise, to dispose of the same, or any portion thereof, according to their own will and pleasure, respectively, without the interference, consent or claim of the other.” * * *

The district judge came to the conclusion that the terms of the marriage settlement did not preclude tlie existence of community between the spouses, and rendered judgment for the defendant, Mrs. Jordan, and the plaintiff has apjiealed. We can not agree with the learned judge on the ground on which he based his decision. We think a fair interpretation of the antenuptial agreement leaves no room to doubt the exclusion of community. If full effect be given to the stipulations of the marriage contract, no community can exist. It would bo impossible; because, under that instrument, each spouse retains “absolute control in and over their- respective estates and property as now owned by each, and which may he acquired during-thei/r coverture,” with the right of disposition reserved to each, to be exercised at any and all times during coverture without the consent or interference of the other.

We have found more difficulty, however, in the other grounds taken by the learned counsel of the defendant, Mrs. Jordan; but alter a full examination of the authorities bearing on the- case and the evidence contained in the record, have come to a conclusion adverse to him. The contract was made in Mississippi, -where the bride, Miss Bartholomew, then within the age of minority, resided; it was, doubtless, intended to have effect at the domicile and place of business of the husband, in this State. The capacity of the parties, as well as the form of the contract, must be tested by the laws of Mississippi, while its effect must be governed by the laws of this State. - -

The question is as to the capacity of Harriot A. Bartholomew to make the contract. Was it voidable on account of - her minority, or was it absolutely void ?

Tested by the rule stated by the counsel himself, to wit: Where the contract is not to the advantage of the minor, it is absolutely void; wo do not think the marriage contract in question is void. Suppose the parties had settled in Mississippi, making that their business and matrimonial domicile, and that Jesse W. Wilder had died there, and his succession had been opened, and the issues now raised were presented to a Mississippi tribunal for adjudication, could it be said that a court of that State would decree the marriage contract under consideration void, where the succession was under its jurisdiction, and where it could apply the common law prevailing there, as well to the effect as to the form of the contract and the capacity of the parties ?

With the matrimonial domicile in that State, where the common law is administered, can it be said that the wife did not derive any greater rights over her property, the slave, during marriage, with the ante-nuptial contract, than she would have had without it 9 Surely not. By the common law, the wife has not the right to administer her paraphernal property as she can under the civil law. We deem it proper to remark that the statutes of Mississippi were not introduced in evidence, and we assume, as a matter of history,, that the common law prevails there.

The error, we think, the learned counsel of the defendant has made .is, that when examining the validity of the act as affected by minority, according to the laws of Mississippi, he looks to the effect of the contract, not as tested by the same laws, but as tested by the laws of this State, which allow the community of acquets and gains, and which permit the wife to resume, at pleasure the administration of her paraphernal property.

When the effect of the contract is looked to merely to ascertain whether it is valid and binding on the minor who made it, the laws of the State regulating the validity of the contract must alone be con-suited. To ascertain whether the contract was for the advantage oí the minor, in order to see whether it is void or voidable, the lex loci contractus alone must be considered.

The laws of this State, which was the domicile, and the laws of the place of contract, Mississippi, can not both be applied to ascertain the validity of the instrument. We can not say that the contract is not .valid in Mississippi, because it gives nothing more to the minor wife than she would have without it under the laws of Louisiana.

The opinions of the witnesses, Goode and Dillingham, experienced lawyers of Mississippi, were received as evidence in the case j they are positively of the opinion that the marriage contract under discussion was not void, but only voidable, by the laws of Mississippi, where it was made. Their opinions are entitled to great weight in determining the case, because they were received by the parties as evidence. We think, however, the authorities bearing on the case do not sustain the rule, that where a contract is not for tho advantage of the minor it is absolutely void, and not voidable, as announced by the counsel of the defendant to be the test to ascertain the validity of the ante-nuptial contract under consideration.

It appears to us .that the weight of authorities and the decisions of the courts of the States of the Union where the common law is administered, establish a different rule from that stated by the learned counsel of the defendant, to which we have adverted. We take it to be the general rule that the acts and contracts of minors, under the common law as administered in the United States, are voidable only, and not void; and the exception is, where the contract on its face appears necessarily prejudicial to the minor.

We discover nothing on the face of the marriage contract necessarily prejudicial to the minor, and we regard it as merely voidable.

The question before us was elaborately examined by the SiipremeCourt of the United States, in Tucker et al. v. Moreland, 10 Peters 65 , after a thorough review of the. English authorities, Mr. Justice Story, the organ .of the court, arrived.at this conclusion. He says: “ It is apparent, then, upon English authorities, that however true it may be that an infant may so far bind himself by deed in certain cases, as that in consequence of the solemnity of the instrument it is, voidable only, and not void ; yet that the instrument, however solemn, is held to be void, if upon its face, it is apparent that it is to the prejudice of the infant.” The same eminent jurist, after carefully reviewing the American decisions on this question, declares that: “ The result of the American decisions has been correctly stated by Mr. Chancellor Kent (2 Com. Sec. 31) to be, that they are in favor of construing the acts and coritracts of infants generally to be voidable only, and not void, and subject to their election, when they come of age, either to affirm or disallow them; and that the doctrine of Zouch v. Parsons, has been recognized and adopted as law. It may be added that they seem generally to hold that the deed of an infant conveying lands is voidable only, and not void, unless, perhaps, the deed should; manifestly appear on the face of it to be to the prejudice of the infant,-, and this upon the nature and solemnity, as well as the operation of the instrument.” 10 Pet. 71.

Considering the solemnity of the act before us and the main object of the parties to contract a marriage, to define their rights of property, and to stipulate for the regulation of the same during the contemplated coverture, we can see nothing prejudicial to the interest of the minor; and, tested by the laws applicable, we believe the contract in. question was only voidable, and that it was binding on the minor,, unless disaffirmed by her afterwads, when having the capacity to do-so. We find in the record no evidence of the disaffirmance thereof by-Mrs. Jordan, although many years have elapsed since she has arrived! of age, and has had the capacity to do so. It is now too late for her to. demand the rescission of the contract, as the prescription pleaded by the plaintiff is applicable thereto. C. C. 3507. The other questions-are not of a serious character.

It is therefore ordered that the judgment of the cburt a qua be avoided and annulled, and that there be judgment forbidding Mrs. Jordan to participate as partner in community in the succession of Jesse W. Wilder, and that this case be remanded-to the court a qua. for decision of the other issues herein, and to bo proceeded in according to law, and that the defendant, Mrs. Jordan, pay costs of this appeal.

Argument of Hace, Foster & FI. T. Merrick, for rehearing. — The court will see, by examining the plaintiffs’ petition, page two, that the plaintiffs set up and claim the whole of tlm property acquired during the second community as belonging to the estate of Jesse W. Wilder.

The petition prays that Harriet A. Bartholomew, wife of William Jordan, and said William Jordan (these appellees) be cited individually ; and a partition is prayed for, in the proportion of one-third to petitioners, and one-third to each of the minors, thus evicting the defendant, Mrs. Jordan, from all ownership in the property. See page 4. The answer of the defendant denies the validity of the marriage contract pleaded. This answer is annexed to page 1, and conies up in original.

The agreement itself (record, page 39) shows that the parties still occupied the same position. It commences, after giving the title of the suit and court: Petition of George W. Wilder for partition ; ” and throughout, showing that he was plain tiff, and the appellees defendants. It was agreed that the plaintiff in partition shall be permitted, without amending the petition, to offer a copy of the contract in evidence, and that Mrs. Jordan and her husband shall be at liberty to setup and urge any and all objections they may have to the validit.yand effect of said instrument, without amending her answer or specially pleading s'uch defense. It is, wo think, therefore, certain that the appellees are really defendants, and have the same right that any other suitor as defendant would have.

Now, the plaintiff pleads, for the first time in this court, the plea of proscription of five years against us as defendants, notwithstanding our right to oppose, as a shield, the validity and effect of said act.

The defendant has filed no reconventional demand. She stands on lior defense which she was allowed by the agreement to set up, without amending her “answer,” “ or specially pleading such defense.”

Now, let us look, for a moment, to the position of the minor in relation to the marriage contract. We find that it was made in Mississippi, with the intention that the parties should immediately betake themseWes to the husband’s domicile, and submit themselves to the la%vs of Louisiana. The law, therefore, of Louisiana, whore Wilder continued to reside up to the time of his death, and the widow lias continued to reside, is the law regulating the prescription. The Code of Practice is explicit-, and is in conformity with the law's of, we believe, ail countries, where the common and civil laws prevail. It says : “ Tile forms, the effects and prescriptions of actions are governed by the iaw of the place where they are brought.” C. P. 13.

“ Husband and w'ifc can not prescribe against each other.” C. C. 3489.

Prescription is equally suspended, during marriage, among others “in every case where tiie action of the wife may be prejudicial to iler husband.” 0. C. 3491, last clause. See also 2 An. 757, McIntosh v. Smith.

The foregoing provisions of the Civil Code are cited for the purpose only of showing how careful the laws of Louisiana have been not to jeopardize the right of the wife where a suit might be needed to render the husband’s estate liable to the wife.

We now t.urn to the case we have in hand, embodied in the maxim of law, “ Quae sunt temporalia ad agendum sunt perpetua ad excipiendum.” The principle is embodied in article 20 of the Code of Practice, the English text of which was a bad translation. The French text is, “ He wdio has a right to institute an action to recover what belongs to him, can, byr a much stronger reason, oppose an exception, to pre-serve his right.” There is no article of the Code which limits this right. There is no proscription to it. This principle of law was recognized in Nichols v. Hanse & Hepp, 2 L. R. 385, where it was held that a claim barred by prescription might be set up as a defense to an action. The same principle is recognized in 12 Rob. 437, The Orleans Theatre v. Lafferanderie. The court say: “We believe, however, that when a remedy may be sought by action, the party entitled thereto may avail himself of it by exception.” Minority and coverture may always be pleaded under our law. The wife must reside with her husband. Being under his power, she was not bound to go to Mississippi to sue her husband. If she had gone there, she had no capacity to sue, and there could have been no defendant to her suit, and it was certainly sufficient for lier to abide in her husband’s domicile, and await events.

Redhibitory defects may be set up, by way of defense, though the redhibitory action be prescribed. Thompson v. Milburn, 1 N. S. 468. So of the action quanti minoris. 3 N. S. 695, 698.

A party may use as a shield, what he can no longer use as a weapon. Bushnell v. Brown’s Heirs, 4 N. S. 500; Lafiton v. Doiron, 12 An. 165.

In Marshall v. The Grand Gulf Railroad Company, 12 Rob. 202, the court says: “Now, although the direct action might be prescribed and barred by one year, yet, at whatever period the party seeks to enforce such contract, the exception will avail him against whom it is sought to be enforced.” See 6 An. 687.

Even where there is a reconventional demand, the defendant may, so far as she stands on her defense against the plaintiffs’ demand, oppose such facts as would have sustained her action, after prescription is acquired. 3 N. S. 698. So also this court held in Riddle v. Kreinbiehl. The court said: “The article expressly provides, that the redhibitory action must be instituted, at farthest, within one year, commencing from the day of sale. So far, however, as the defendant •seeks to resist the payment of the unpaid balance due upon the priee, she may invoke the doctrine quae temporalia; so, though the redhibitory action is barred by the lapse of time, yet she may invoke, as a matter of defense, any facts which would sustain a redhibitory action.” 12 An. 297.

In 13 An. 250, the court says: “ When Richardson commenced the action of redhibition, he had two modes of proceeding; either to wait until the maturity of the notes, and set up the redhibitory vices of the thing sold as a defense to the notes, or assume, as he did do, the position of plaintiff. Had he chosen to stand on the defensive, his action would have been prescribed, and ho would have lost the payment which he had made in cash. He could have used only his exception as a shield.”

There is no law in Louisiana, as far as counsel remember, declaring a prescription of the subject matter of answers,' exceptions and defenses to actions. Actions alone are prescribed. Arts. C. C. 3499, 3501. The prescription which the court has inadvertently, as we think, applied to this case, is to the action of nullity or rescission of •contracts, etc. 3507. The grounds of defense are not declared to be prescribed, and we have neither brought an action nor a demand in reconvention. Wo stand on our defense. We use our shield. The law presumes all the property community, and we have held, and are holding, the position of the widow in community. C. C. 2374. The plaintiff sues, and says the widow has no interest in the estate, because she executed an instrument, which he sets up, debarring herself of .such interest. She replies that the instrument is void, and does not bind her, for the reasons which she assigns. Now, at common law, she could avoid such contract when set up against her, by the same plea -which she opposes here. The Supreme Court of the United States says: “ There is no doubt that an infant may avoid his act, deed or contract by different means, according to the nature of this act, and the circumstances of the case, He may sometimes avoid it by matter in pais, as in case of feoffment, by entry, if his entry is not tolled. Sometimes by plea, as when he is sued upon his bond or other contract. Sometimes by suit,” etc. 10 Pet. 71.

The defendant has avoided the supposed contract by entry (if the court will), for she has entered upon and insisted upon her right as widow in community, as this very suit proves, wherein the marriage contract is set up and insisted by the plaintiff against her as defendant. She has, moreover, which is, in the opinion of counsel, still more decisive, pleaded the nullities of the contract, as she unquestionably had the right to do, under the law of Louisiana, her domicile, to which she was bound to submit, and from, which she had no right to escape, as well as by the law of Mississippi, had she gone there; which would have protected her in one-third of the personal property and her dower, and had the contract been set up against her, would have allowed her her defense to the contract.

Rehearing refused.


author: Taliaferro, J.

text:
    No. 2620.
    Edward Moore v. Helen A. Moore et al.
    A purchaser of property at probate sale has tho right to retain, in his hands, an amount of the purchase money equal to the amount of unpaid taxes recorded against the land purchased. "Where heirs, by intervention, seelc to have their rights established against their tutor, and a judgment against the sureties on the tutors’ bond, and the court a qua fails to pass on the prayer against the sureties, the Supreme Court will, on affirming the judgment dismissing the intervention, reserve the rights of the heirs to proceed against the sureties on the tutors’ bond.
    APPEAL from Fifth Judicial District, parish of Iberville. Posey, J.

      Dunn (& Perron, for plaintiffs. TF. P. Robertson,' for defendants. Samuel Matheios, for intervenors, appellants.
   Taliaferro, J.

This suit, with the exception that throughout, tho parties are not the same, is a repetition of fliat of Helen A. Moore et al. v. Edward Moore et al., decided on appeal by this court in February, 1868. 20 An. 159.

In that case two of the four Boissac heirs intervened, contesting the claims of the heirs of Mrs. Moore upon the property of their father, the plaintiff in tho present case. Here the of her two heirs of Boissac intervene, setting up their claims which are founded on the same basis, and are concurrent with those of the other two who intervened in tho first suit. The claims of these Boissac heirs are against Edward Moore, who was their former tutor as well as natural tutor to his own children. They claim legal mortgage on his property. Sostlicno and Ennemond Boissac, it seems, had each obtained a judgment against their former tutor when they became parties by intervention in tho case reported in 20 An., and by the decree in that case were assigned a rank next to that of Mrs. Carter, one of the heirs of Mrs. Moore. It awarded to Mrs. Carter the sum of $3801 60, with legal mortgage, to have priority over that of the Boissac heirs. This amount deducted from $9102 69, the net amount of Moore’s share of the proceeds of sale of tho community property, there is left $5301 09, which, it seems, is all the Boissac heirs can claim of these proceeds. It was found in the court below that tho whole of this sum was received by Ennemond and Sosthene Boissac, and that tho other two intervening in tho present suit have obtained no portion of it. Whether they are entitled to participate with the former is not a question before the court. The intervenors in the case now under review, also pray judgment against the surety on their tutor’s bond; but upon this branch of the case, the lower court did not pass for the want of sufficient evidence.

Pending- the proceedings in the court a qua, Rogers, the purchaser of the property of Moore, intervened by rule taken against all the parties to show cause why he should not be authorized to retain in his hands the sum of $640 for the payment of certain specified taxes on the land purchased by him.

The judge of the lower court, having reference to the decision of this court in the case of Helen A. Moore et al. v. Edward Moore et al., and the facts before him in the present case, rendered judgment dismissing the intervention and third opposition of the Boissac heirs, and sustaining the demand set up by Rogers, to retain out of the price of the property the amount alleged to be due for taxes.

From this judgment the intervenors appeal. We see no reason for disturbing the judgment.

It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed, with costs of this appeal. All legal rights of the intervenors against the surety on the bond of their former tutor is reserved by this decree.


author: Ludeung, C. J.

text:
    No. 2586.
    P. Maspero v. Ernest Pedesclaux, Administrator.
    Where the indorser of a promissory note has died at or about the time of the maturity of the note, but the fact is unknown to the holder or the notary, notice sent through the postoffico to the indorser, at her usual place of residence, will bind the heirs, if it be shown that they were in the habit of receiving letters there, and that they actually received irom the post-office the notice of protest addressed to their mother tuck notice is equally as binding as though it had been directed to the heirs by name.
    APPEAL from the Fourth District Court, parish of Ascension. Beauvais, J.

      S. M. Berault and Bmile Legendre, for plaintiff and appellant. J. K. Gaicdet and John II. Ilsley, for defendant and appellee.
   Ludeung, C. J.

On the eighth day of March, 1863, J. A. Landry made a note for five thousand dollars to the order of Mrs. A. Pedesclaux, payable twelve months after date, at the counting' house of P. Maspero, New Orleans. This note was indorsed in blank by the payee. At its maturity the note was duly protested, and notice of protest was sent through the postoffice, addressed to the indorser at Doualdsonville. The indorsor had died previously to the maturity of the note, but there is nothing to show that this fact was known to the holder or notary.

It seems to be conceded that the notice of protest would have been good if the indorser had been living when it was made. Is it not valid notwithstanding the death of the indorser ?

The evidence shows that the notice of protest was duly received at the Donaldsonville postoffice, whore the indorser was in the habit of receiving her letters during her life. Ernest Pedesclaux, the administrator, says: ‘‘'The letters in the postoffice, when addressed to.my deceased mother, when, withdrawn, wore opened by my sisters and myself. They were generally withdrawn from the office. Witness recollects receiving a notice of the protest of the note sued on. My sisters were equally heirs oí the deceased. Witness received the protest before he was appointed administrator of his mother’s succession.”

The heirs had not accepted the succession, nor had any administrator been appointed to represent the succession, at the time the protest was made and notice thereof sent. Even if the holder were bound to know that the indorsor was dead, under these circumstances, we are not prepared to say the notice was bad. Story on Promissory Notes, § 310 5 Parsons on Notes and Bills, pp. 500, 501; Stewart v. Eden, 2 Caine’s R. 121; 17 John’s R. 25 ; Parsons on Mercantile Law, p. 117.

But in this case the notice actually reached the administrator of the succession, and one of the heirs j and the evidence makes it quite probable that it reached all the heirs in due time. Thus the purpose of the law was attained. 4 An. 483, Louisiana State Bank v. Dumastrait et al.

It is, therefore, ordered that the judgment of the district court be reversed, and that there be judgment against the defendant for the sum of five thousand dollars, with five per cent, per annum interest thereon from the eleventh day of March, 1864, till paid, and costs of both courts, to be paid in due course of administration.


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

text:
    No. 1538.
    Samuel P. Greeves, Administrator of F. R. Brunot v. The Louisiana State Bank.
    A depositary wlio seeks to avoid tlie payment of deposits made and notes collecled, and the proceeds passed to the credit of the depositor, on the grounds that the deposits made, and the notes collected and the proceeds deposited werem an unlawful and worthless currency, commonly called Confederate notes, must estaolish the fact by evidence so conclusive that nothing is left to conjecture or inference. The doctrine in the Chse of Weaver v, Anioux, 20 An. page 1, reaffirmed.
    Tho evidence of witnesses who are unable to tes Iffy from personal knowledge to ihe character of the fmds received on the notes collected by the bank and the deposits made, is not sufficient when not corroborated by the books ol the bank, ihe checks drawn, etc., to establish with the legal certainty required, that the deposits made were in Confederate notes, and the depositary, under such proof, can not be relieved ftom responsibility to the depositor ior the amount thus collected and deposited.
    A bank that acted in the capacity of agent in the collection of notes, without instructions, can not be relieved from the payment of the amount collected in lawful money, uy showing that Confederate notes were in general circulation at the time, and that the hank was in the habit of receiving and paying out such notes indifferently with other currency. To shield itself from responsibility under such circumstances, it must be shown affirmatively, that the depositor was fully aware of, and assented to, the receiving of Confederate notes in payment of his deposits, or that he acquiesced in, and fully ratified the receipt of such notes after they had been received by the bank in payment of notes placed there for collec.ion.
    APPEAL from tlie Fourth District Court, of New Orleans. Théard, J.

      Face, Foster & F. 11 Merrick, ior plaintiff and appellee. W. If. Hunt and J. McConnell, for defendant and appellant.
   Wyly, J.

The plaintiff sues to recover a sum of money deposited in the Branch of the Louisiana State Bank by Mrs. Sophia Brunot in her capacity of administratrix of the succession of Felix R. Brunot, on the twentieth March, 1865, as appears by her bank book.

The answer denies generally the allegations of the petition, and avers that “no such sum in money, as is alleged in said plaintiff’s petition, was or ever has been deposited in said Louisiana State Bank as-alleged, but there was deposited in said-bank to the alleged credit of said succession or estate named in said petition, a large number of the-notes or purported promises to pay, commonly called Confederate notes, which said Confederate notes, were never, at any time, of any legal value whatever.”

The issue thus made up, was that no sum of money, as claimed, was-deposited, but that there was deposited a large number of purported promises to pay, called Confederate notes.

From the view we have taken of the case, it will be unnecessary to examine the bills of exception taken by the plaintiff.

The deposit of the twentieth of March, 1865, is fully established by the bank book and other evidence in the record.

To rebut this, the defendant introduced three witnesses who appear to have but little personal knowledge of the case, and their evidence fails to establish a valid defense. The main witness was W. S. Pike, who, alter testifying of checks drawn by Mr. Brunot, says: “The balance to the credit of Brunot was transferred to the credit of Mrs. Brunot, administratrix; one check of six hundred dollars was drawn by Mrs. Brunot twentieth March, 1865. I am now referring to my books. The $18,472 63, which was to the credit of Mrs. Brunot, administratrix, was transferred on the twentieth March, 1865. This is the way the credit to Mrs. Brunot arose. Mrs. Brunot drew a check on the bank for the balance due and then transferred the amount of the check to her own credit as administratrix. No money passed at all.”

On cross examination, however, he says. On twentieth March, 1865, I was residing in New Orleans ; my connection with the Branch Bank had not then ceased. T aeso transactions on twentieth March, 1865, took place at Baton Rouge. Of my own personal knowledge I knoio nothing of what occurred between Mrs. Brunot and the bank at that day.'1'1 * * '* * ® *

Again he swears: “I know all this matter of my own knowledge because the transaction took place between the estate and my brother, under my directions. I directed how the thing should be done.” * *

Again he says: “ The three notes spoken of (the Allain notes) were deposited for collection on twenty-third April, 1861, and' matured in January, February and March, 1862. 1 know that these notes were collected in Confederate money, because they were payable at the mother bank in Mew Orleans, and no other money was used at that lime at Baton liouge, and, I believe, here also.”

To my mind it is evident that this witness had no personal knowledge of the deposit made by Mrs. Brunot, administratrix, or of the entry-in the bank ^ook on the twentieth of March, 1865; his own evidence discloses the fact that ho was in New Orleans on that day, while the transaction in question occurred at Baton Rouge. Nor does he know any thing, of his own knowledge, whatever, about the collection of the Allain notes by the bank for Brunot in Confederate money. On this point his evidence is only a vague conjecture, based on his general knowledge that that currency was at that time mainly used at Baton Rouge and at this place.

Iiis testimony fails, in our opinion, to establish the fact that Brunot was ever aware that the notes left by him for collection in the bank had been collected in Confederate money. True, he says: “There was a check of $1500 00, one of $150 00, one of $100 00, and one of $17 00 paid between the first January' and first April, 1862, to Brunot in Confederate money-. I don’t know that Brunot had any notice that the funds would be Confederate money'; but his checks wore drawn against what he liad to his credit and were paid in Confederate money.” The witness does not swear that the money was paid to Brunot in person, because, he says, I don’t know that Brunot had any-notice that the funds would be Confedérate money.” * * *

It is manifest that the witness Bernard, also had no personal knowledge of the matters of which he testified. Indeed, on cross examination, he says: “ I know nothing about Brunot’s account. I know ol no agreement with him. His account was kept in Baton Rouge. In taking up the notes spoken of no money -was passed. Allain paid with his checks on our bank. I did not act as receiving teller, but I used to look over the cash every day to see if any thing else was received than Confederate money-. Paul Blanc was receiving teller at the time.” * * s '2 * *

How could this witness in looking over the cash receipts of the day derive a personal knowledge of how Allain paid the notes to the receiving teller or in what particular currency they were paid ?

The receiving teller may have collected the notes left by Brunot with the bank for collection, in good money, and the same not appear in the cash receipts. Why- was he not introduced as a witness? He could have stated precisely the character of the funds received by the bank on the notes left with it by Brunot for collection.

On the vague and conjectural statements of the two witnesses heretofore named and that of another, who admitted he was in Europe when these transactions occurred, the defendant asks to be relieved.

The bank has not furnished any positive evidence that the notes of Allain belonging to Felix R. Brunot, and left by him with the bank for collection, in April, 1861, were ever collected in Confederate money. No authority is shown to the defendant to make the collection in such money. No knowledge of the collection is brought home to Brunot.

Where then is any dealing in a treasonable currency or deposit of Confederate money by E. R. Brunot or his succession ? Where is any ratification by Brunot of the collection, in Confederate money, made for him by the bank ?

There is not a particle of proof that he ever authorized the bank to make the collection in Confederate money or that he was ever informed thereof. Indeed, the witness Pike says, “I do not know that Brunot had any notice that the funds would be Confederate money.” * * * * *■ *

When the notes were deposited by Brunot with the bank for collection Confederate notes had not yet been issued. How can a principal be said to have ratified the illegal acts of his agent when he was never informed thereof? There is no evidence that Mrs. Brunot was informed that the collection was in Confederate notes when she drew out the money standing to the credit of Brunot, in March, 1865, and made the deposit in her own name as administratrix.

Indeed it is quite evident that such was not the case; otherwise why did they permit her to check out funds which they now say was treasonable and never had any value,” and make with them a deposit for herself on twentieth March, 1865 ? Why did they make up for her the bank book showing a deposit of $18,472 66, and also permit her on the same day to draw out therefrom $600 00 in United States currency, and credit her bank account therewith ?

We can not believe that the intelligent officers of a bank would, after Confederate money had ceased to have any value, as on twentieth March, 1865, permit Mrs. Brunot to check against the treasonable deposit of her husband, and upon that check open an account with his succession acknowledging the deposit of a largo sum in dollars, and at the same time ratify that deposit as of good and valid funds by permitting her to cheek out six hundred dollars, of good money, and credit the account therewith?

We can not believe that they could bo so far overreached by an inexperienced woman as to make the chock against worthless paper the basis for opening an account and giving her credit on their books for the large amount of $18,472 68.

The proposition is unreasonable and inconsistent with the ordinary prudence of men, much more so with that of the fiscal agents of a bank.

The whole defense appears to be an afterthought, an ingenious dodge based upon the vague conjectures of witnesses, who were not present and who had no personal knowledge of the transactions between Mrs. Brunot and the Branch Bank on the twentieth March, 1865, for the purpose of evading the consequences of a legitimate transaction.

The obligations of a mandatary and. depositary can not thus bo shuffled off by the defendant.

It is therefore ordered that the judgment of the court a qua be affirmed, with costs.

I concur in the decree rendered in this case.

W. W. HOWE.

Ludeling, C. J.,

concurring: The bank book of Brunot shows that the Allain notes were deposited with the bank in April, 1861.

The notice published by the bank on the sixteenth of September, 1861, announced that the bank had suspended specie payments on its liabilities — that thereafter Confederate money would be accepted in payment and received on dcimsit — parties having paper on collection in the bank were notified to withdraw the same-iwiless they consented to receive Confederate notes or local bank notes in payment of said paper to withdraw the same ; and no paper would, thereafter, be received on collection when the owners required other than treasury or local bank notes in payment thereof.

There is no proof that Brunot ever saw, or hoard of, this notice, or that he subscribed for or read the newspapers in which the notice was published. Its publication was not notice to Brunot.

But even if the evidence had established that this notice was known to Brunot, it simply requested him to withdraw the notes, unless he consented to have them collected in Confederate notes, or bank notes. His failure to withdraw the notes from the bank did not authorize the bank to collect them in unlawful money. If the bank did not wish to keep the notes for collection, unless it was permitted to take'Confederate notes or bank notes for them, it could have returned them to Brunot, but it could not take anything but lawful money for them without the consent of Brunot. This seems to have been the opinion of the bank when it published the notice aforesaid, for it said to its customers, unless you will consent to have your notes collected in Confederate notes or bank notes, take them away.” The consent of Brunot was never given. It is said that Confederate money was paid to Brunot, and that ho must be held to have approved the acts of the bank in receiving Confederate money for the Allain notes. A careful examination of the evidence has satisfied me that there is no proof that Confederate money was ever paid by the bank to Mr. Brunot himself, but that Confederate money was paid to the bearers of the checks drawn by Brunot on the bank, for $1500, $150, $100, and $17. In speaking- of these checks the witness says, “ I do not know that Brunot had any notice that the funds would be Confederate money; but his-checks were drawn against what he had to his credit, and were paid, in Confederate money.”

The evidence does not satisfy me that the Allain notes were collected, in Confederate money. Allain, the debtor, had an account with the bank, and he gave his checks on the bank for the notes, deposited by Brunot with the bank, as they matured. The witness says: “These, checks did not express Confederate money on their face, but it was understood and agreed that all our customers should take Confederate money.”

By whom was this understanding and agreement made ? The evidence does not establish any such agreement between the bank and Brunot, or between the bank and Allain, or between Brunot and Allain.

We have decided repeatedly that an agent will not be released from, responsibility, if he received Confederate money for his principal without authority to do so. Succession of Jesse W. Wilder, 21 An. 37].

We have also decided that one, who seeks to screen himself from liability on the ground that the transaction was based on Confederate money, must prove the fact, and not leave the matter to inferences or presumptions. Weaver v. Anfoux, 20 An. p. 1.

In this case, however, the inferences and presumptions are altogether in favor of the plaintiff.

The bank book in evidence shows that on the tenth of July, 1861, there was to the credit of Brunot, in the bank, $18,473 66. On the twentieth of March, 1865, this amount was passed to the credit of Mrs. Sophia Brunot, administratrix, on her check; and on the same day, as administratrix, she checked against this fund for six hundred dollars, which was paid in United States treasury notes. There were not two amounts to her credit as administratrix, one for Confederate money, and one for lawful money, as contended, but only one amount, $18,473 66, against which she drew.

I think the evidence establishes the right of the plaintiff to recover. I therefore concur in the iudgment rendered by Mr. Associate Justice Wyly.

Eor the reasons given by the Chief Justice, I concur in the decree in. this case.

R. K. Howell.

Taliaferro, J.,

dissenting. It is insisted upon that it is not provecí that Brunot authorized or approved the collection of the Allain notes in Confederate money, nor that knowledge is brought home to him of the-notice of the bank to their .depositors to withdraw their notes, if they were not willing to have them collected in Confederate money. It is-proved that he put the Allain notes, amounting together to $16,939 98, in bank for collection, and that these notes constituted much the larger portion of all lie had in bank. It is proved that the bank gave public notice to its customers to withdraw their notes on hand for coEection, if they refused to receive Confederate money for them. The transactions were with the Branch Bank at Baton Eougo.

Brunot lived at Baton Bouge, or in its vicinity. Ho had been dealing with the bank for many j'ears; ho must have known the officers of the bank. He had a deep interest in the currency; nearly all he had. when realized, was to be in Confederate money; he knew, as well as ■everybody else, that he could get no other money for his Allain notes but Confederate money, and not the slightest gleam of anything is •shown, or pretended to be shown, that he objected. It is an historical fact that this court will judicially notice, that during the time these Allain notes were in process of coEection, that is during the first four months of the year 1802, the current opinion in this country was that the Confederacy would certainly prove a success, and there was, all through that period at least, the utmost confidence in Confederate paper money. Instances in this country, at that time, of an opposite •opinion were very rare.

The record of this case teems with testimony which has been often reiterated in other similar cases before this court, and which shows that after the seventeenth of September, 1862, and up to the following April, when New Orleans was taken possession of by the Federal forces, the only currency, the only thing called circulating medium or money in Louisiana, was Confederate money.

The aggregate testimony in all the preceding cases involvingthe inquiry, and the mass of testimony in this case on the same subject, is overwhelming, that during the period we have in view, with very few and very rare exceptions, every money transaction in Louisiana was consummated by the use of Confederate money.

Now, when I am told that Brunot was ignorant of this state of facts, and expected his Allain notes to be collected in gold or silver, or legal currency, I stand amazed that a gentleman of intelligence, of large business — a man dealing in money, keeping accounts with banks for many years before the war and during the war, and especially with the bank that is defendant in this case, to the end of his life, having lived all his days in Louisiana, should bo so far behind everybody else in a knowledge of the fact of the exclusiveness of the Confederate currency as to expect or require the three notes in question to be collected in any other than Confederate currency. The pretense that he expected gold or silver, or the equivalent in good and lawful money for the notes, is so monstrous that I give no credit to it whatever. From the multitudinous facts we have on this subject, by the testimony of witnesses, and by the teachings of history, I hold the deduction to be logical that Brunot knew, in regard to these subjects, what everybody else knew, and that he knew the bank had collected his Allain notes in Confederate money, and that ho was contented therewith. Most certainly the presumption is violent that such was the fact, and the presumption is not in the minutest degree rebutted. But I shall show, further on, that this matter does not rest solely on presumption or inference. „•

It is pretended that Mrs. Brunot made a deposit of money in the bank on her own account in the month of March, 1865, and drew upon her own check on this deposit $600 in greenbacks, or United States currency. The effort to make something out of this transaction is a very decided failure. Pike, the cashier, speaking from the bank book, shows that, on the tenth of July, 1861, Brunot’s account was balanced, and that there was on that day to his credit $3302 66, and that the next credit was on the sixth of January, 1862. That credit arose from the proceeds of the first of the Allain notes that became due, and amounted to $5646 66. On the --- day of February following, the second note, for the like sum, was collected, and the third, for the like sum, was collected in March following.

On the twenty-fifth of June, 1862, the account was again balanced, and there was to Brunot’s credit $18,472 66. Now, it is perfectly clear that this $18,472 66 is made up of the $3302 66 due Brunot before the suspension of specie payments, augmented by the amount of the Allain notes — $16,939 98 — and diminished by the amount of four checks, amounting in all to $1767, paid to Brunot between the first of January, 1862, and the first of April following. These four checks were paid in Confederate money, as we shall have presently to notice. Taking, then, $1767 from the aggregate amount of the Allain notes — $16,939 98, and wo find the $18,472 66 is composed of $15,172 88 Confederate money and $3302 66 of legal currency. Against the aggregate— $18,472 66 — Mrs. Brunot, as administratrix, drew the $600 check which was paid in United States currency, because the bank owed the estate of Brunot $3302 66 in legal currency.

An to any actual deposit of any sum of money in the bank on the twentieth of March, 1865, or at any other time, either on her own account or as administratrix, there is not a particle of evidence to sustain it. It was arranged that Mrs. Brunot, as administratrix, (and at the instance ot the cashier she was appointed administratrix for the purpose), should check lor the balance due the estate, and that it should then be placed to her credit as administratrix. This check, which was drawn on the twentieth of March, 1865, is placed to the credit of the bank; and on the same day the same amount is placed to her credit as administratrix.

The testimony of the cashier is: “ This is the way the credit to Mrs. Brunot arose. Mrs. Brunot drew a check on the bank for the balance due, and then transferred the amount of -the check to her own credit as administratrix. No money was passed at all.” * * * I can swear, to my own personal knowledge, that no money was paid to Mrs' Brunot on her check on the twentieth of March, hut the credit arises simply from a transfer of the credit to P. E. Brunot, of whom she was administratrix. I know all, this of my own knowledge, because the transaction took place between the estate and my brother, under my directions. I directed how the thing should be done. The letters of administration were sent to me for my approval, and I sent instructions to accept the check and transfer the account of P. E. Brunot to Mrs. Brunot, as administratrix.”

Let it be noted that there wore two checks drawn on the twentieth of March, 1865 — one of them for the amount in bank to the credit of the estate, and the other for the $600 which was paid in United States currency. The attempt is entirely in vain to show that Mrs. Brunot made a deposit on that day, or at any other time, individually, or as administratrix.

The bank book coutains this entry on the debit side of the account with the estate: •' March 20, 1865, $18,472 66.” Now, if Mrs. Brunot deposited that sum at that date, it is confronted by the check of the same date, for the same sum, put to the credit of the bank on the opposite side of the page. It would in that case show that she had drawn the whole amount, and consequently would have nothing now to demand from the bank. There is nothing showing that Mrs. Brunot had a cent of her own money in bank against which this check was drawn. The deposit appears as made by her as administratrix. If she actually deposited $18,472 66, as administratrix, on the twentieth of March, 1865, she must have brought it from some other place, for that sum was, on the twentieth of March, 1865, to the credit of the ■estate, from collections made by the bank. The bank book shows that against the balance struck on the twentieth of March, 1865, as due to the estate of Brunot, the check was drawn. It is entered as a credit to the bank on the opposite side, and as drawn by Mrs. Brunot, as administratrix. Then follows the entry below of $18,472 66 placed to her credit as administratrix, and against it the check for $600 is credited to the bank. All this appéars from the bank book in evidence. The testimony of Pike is only explanatory of the operation — a mere statement of how the arrangement was made so as to place the sum due to the estate under the control of the administratrix. His testimony does not in any manner contradict the bank books. It was introduced to explain and make the matter clear, and it was legally and properly admitted. In my judgment it was unnecessary for that purpose; the record being sufficiently clear without it.

But still, it is alleged that it is not proved that the Allain notes were collected in Confederate money with Brunot’s consent, nor that he ever received the bank notice to depositors to withdraw their notes, if unwilling to receive Confederate money for collections. I ask, then, what is proof ? Mathematics is the only science that can fairly pretend to perfect certainty of evidence. Legal science makes no such pretensions. * Outside of pure mathematics, no process by reason in any other department, of human investigation, pan imssibly equal the .absolute ceitainty of its conclusions. The geometrician uses reason with greater effect than the lawyer. The former demonstrates; the latter, with the utmost tension of his powers, can only establish a strong probability of the truth of the proposition stated, by an array of connected evidence -that leaves no reasonable doubt upon the mind of its reality. This is proof in a court of justice. This record abounds with evidence, all pointing in one direction, and which, in my judgment, raises a very strong probability that Brunot not only knew of the bank notice, but approved the collection of the notes in question in Confederate currency. A very careful examination of, and deliberation upon the entire evidence leaves no reasonable doubt in my mind on the subject. I consider the defendant’s case fully made out, so lar as the amount of the Allain notes is concerned.

But there is something more. I now return to the four checks of Brunot. One of these was for $1500, one for $150, one for $100, and the other for $17, making in the whole $1707. These four checks, the cashier swears, were paid between the first of January, 1862, and the first of April following, and that they were paid to Brunot himself, and paid in Confederate money. A vain attempt is made to ward off the effect of this conclusive evidence by pretending to show a contradiction in the witnesses’ testimony. What immediately followed this statement is referred to for this purpose. All that the witness said on this subject is here reproduced from the record: There is one check of $1500, one of $150, one of $100, and one of $17, paid between the first of January and first of April, 1862, to Brunot in Confederate money.” * ° * “I don’t know that Brunot had any notice that the funds would’be Confederate money; but his checks were drawn against what he had to Ms credit, and were paid - in Confederate money.”

What possible contradiction can be found here? What earthly difference can it make whether Brunot had notice that these checks would be paid in Confederate money or not? They were paid to him in person, and in Confederate money. He received it. He knew what it was, and was satisfied with it. What, then, becomes of all the arguments set up to screen from view the kind of money in wMch these operations were carried on ? The plaintiffs are effectually estopped by this clear, direct and uncontradicted proof that Brunot received Confederate money from, the bank without objection on these four checks, amounting to $1767.

The judgment should be reversed, and one rendered for $3302 66, less the amount of the $600 check.

Rehearing refused.


author: Howell, J.

text:
    No. 2702.
    Hart, Arbour & Co. v. B. T. Beauregard, Tax Collector.
    Section three of tlie revenue act of 1869, authorizing the levying and collecting a fixed amount as a license, makes no provision for a pro rata license, and a person commencing business in the latter part of the year must pay the full amount of the license authorized to be assessed.
    The requiring of every party owing a license to the State to pay the full amount, without reference to the time that ho commences business, is not a violation of the princixile of uniformity established by the constitution.
    A firm engaged in the manufactory of agricultural implements in this State is liable to pay a. license tax, the same as any other manufacturing firm, under the revenue laws of 1869, section 2.
    from the Parish Court of East Baton Rouge. JIustcd, Parish Judge.

      Fuqua & Oallihan, for plaintiffs and appelleesF. W. Knickerbocker, for defendant and appellant.
   Howell, J.

Plaintiffs, a manufacturing firm, composed of four persons, enjoined the teix collector from seizing, closing and selling their factory for a license of one hundred dollars each, for the year 1869,, upon the grounds:

First — Because the revenue act of that year isnotalaw, having been approved by the Governor after the adjournment of the Legislature.

Second — Because, if it be a law, they are liable only for a license tax for the proportion of the year during which they were engaged in their business, to wit: From November 15 to December 31,1869; otherwise it would not be uniform.

Third — Because in no event can they be held to pay for more than one license for their occupation.

1. The first ground has been settled adversely to plaintiffs’ position, in the case of the State, ex rel., Attorney General, v. Fagan, recently decided; and we have no reason to change our views on the subject.

2. The license is fixed at a certain sum for the year. Section three of the act says: “ There shall be levied and collected an annual amount as a license,” and no provision is made for a pro rata license. No authority is given to the tax collector to demand or recover less than the amount fixed by the law. Nor is this a violation of the prinple of uniformity established by the constitution. The amount required of every one in the same occupation is the same per annum, and the time during which the business is conducted is a matter entirely with the person taking out the license. The State prescribes that a certain sum per annum shall be paid by each, who thereby secures the right for the calendar year. Whether he closes before the end of the year or docs not begin business until the year has advanced, rests with him. There was no obligation imposed by the State on the plaintiffs to open their business operations at the time they did; but it required the license to be paid when they did begin, and it was with them to determine whether their interests required them to begin as they did, or wait until the first of January following.

3. A clause in the second section of the act reads: “ Each partner-of any firm doing business in this State, in any line of occupation, whether resident or nonresident, active or silent, shall pay a license as-herein prescribed.” The plaintiffs allege that they entered into copartnership for the purpose of manufacturing agricultural implements, under the firm name of Hart, Arbour & Co. This brings them -within the operation of the foregoing clause. They are a firm whoso occupation is that of manufacturing. They are the proprietors of a. factory, each of whom is required to pay a license. The above special provision of the law controls in this respect the general principle that a firm is an ideal being, distinct from the members composing it. Each is equally a provision of the law, and the special controls the general in the cases to which it applies.

It is also contended by plaintiffs that the sixty-third section of said, act, prohibiting the courts from interfering with State collectors in. making collections, is unconstitutional, because it deprives the inhabitants of adequate remedy against the illegal acts of a collector.

The reply to this is, that plaintiffs have suffered nothing from it, as-they have, without objection, invoked and obtained the interference of the court, and a decision of the question would be of no avail to them; for if their view be sustained they would get nothing more than has been done, the passing on their liability to pay the license as-demanded.

It is therefore ordered that the judgment appealed from be reversed, and that the injunction herein be dissolved, with ten per cent, damages, on the amount of the licenses enjoined, and costs in both courts.


text:
    No. 2679.
    E. Fendler v. M. C. Daigre et al.
    A jewelry merchant sold a lot of costly jewelry to Mrs. Daigio lor llic use oE her daughter,, then a minor, for which she paid a portion of tho price in cash and gave her individual note for the balance. Suit was brought against the maher ot tlio note in her-individual ■ capacity and as tutrix ot her minor daughtor, whom, it was alleged, was the recipient of tho jewelry. Judgment was rendered against her individually, and judgment of non-suit as tutrix. See 19 An. 190. After majority ot tho minor, this suit was brought againsther. to recover the amount of the note, on tho allegation that iho jewelry was purchased for hor use; that she had received it, and still possessed and owned it. Tho evidence given on trial failed to establish the fact that the jewelry was purchased for the daughter, or that she-received it as her individual property. Hold — That the jewe.er could not recover the.price from the minor, nor could he recover the amount ironi the tutrix out of tho minor’s estate; that his only 1 ccourse was against the tutrix m her individual capacity.
    from the Fifth Judicial District, parish of East Baton Rouge. Bosey, J.

      Burgess & Chaney and Fuqua efi Cdlliham, for plaintiff and appellee. Samuel B. Greaves and A. S. Herron, for defendant and appellant.
   Taliaferro, J.

This suit is, to a great extent, the same in character and purpose with the one heretofore before this court, bearing the same title, and reported in 19 An. p. 190. The x>ar-ties are the same. Lucy Daigre, however, during the pendency of that suit being a minor, was subsequently emancipated by public act, and afterwards became the wife of J. C. Beard. The judgment first rendered against the plaintiff by the district court was changed by this court into one of nonsuit as to the heirs of Gilbert Daigre. He now renews the action. He alleges that in 1863 Mary C. Daigre, widow of Gilbert Daigre, and tutrix of her minor children, heirs of Gilbert Daigre, contracted with him a debt amounting to upwards of two thousand eight hundred dollars, of which one thousand dollars were paid, and for the remainder she executed her promissory note with interest. That this indebtedness grew out of a purchase of costly jewelry for her daughter Lucy, who received it and has worn it and appropriated it to her sole use. He avers that upon the death of Gilbert Daigre, his widow caused all the separate estate of her husband, which was of large amount, to be illegally adjudicated to her, together with the half of the community property falling to the minors in right of- then-father. That the account rendered by the tutrix of her tutorship was run up much above her real liability to the minors, in order to interpose their claipis as a shield to iwotect her against the just demands of her creditors. He seeks to have the adjudication annulled and set aside, and to have the indebtedness of Mrs. Daigre reduced to its real amount, in order that her share of the succession may be shown to be of greater amount than that of her indebtedness to the heirs.

In the opinion of this court, rendered in the former case, the xolaintiff failed to make out his allegation of fraud against the tutrix; and it was announced that, as the debt contracted by her with the plaintiff was contracted subsequent to the adjudication and the account he. complains of, he would be precluded from showing their illegality, if it existed. Wo are inclined to concur with the judge a quo in assuming from the pleadings that the whole matter is, in substance, narrowea down to the simple question, whether Lucy Daigre, now Mrs. Beard, having, as is alleged, received and appropriated the jewelry to her own use, shall not be condemned by judgment to pay the plaintiff’s demand, and wo shall confine the investigation to that issue.

The parties defendants put in general denials. Judgment was rendered in the court a qua in favor of the plaintiff, and against the defendant, Lucy Daigre, for the amount claimed, and she prosecutes this appeal.

The testimony, to no small extent, is conflicting. The plaintiff swears that the jewelry was purchased in 1862 for Miss Lucy Daigre. That she came to him several times, requesting that he would speak to her mother to have a diamond necklace made for her.’ To this request, it seems, the plaintiff was not unwilling to accede, and, accordingly, that he did speak to Mrs. Daigre about it, which resulted in his receiving an order for a necklace not to exceed in price $2000. He says, .also, that diamond rings were ordered for Miss Lucy, and that these were for her use as well as the necklace; that these articles wore all received, a part of the price paid, and the note sued on given for tlio remainder.

Bauman, a witness for the plaintiff, states, in substance, about the ■same facts. lie was, at the time these articles were furnished, a workman in tho x>laintiff’s shop. Mrs. Pike says that she was Avith Mrs. Daigre one day when she went to Mr. Fendler’s to order a necklace for Miss Lucy Daigre. That she remembered seeing the necklace only •once, and that was at Mrs. Daigre’s house on the day that the officers of tho Federal gunboats walked through the streets of Baton Rouge. On this occasion Miss Lucy produced a stocking which, she said, contained her jewels, and took from it a necklace, which she placed around her neck, saying: “ This is the necklace I purchased from Fendler.” This witness heard several conversations, respecting the necklace, between Mrs. Daigre, Miss Lucy, and Miss Napp, tho governess, at that time in Mrs. Daigre’s house, and it Avas always spoken of as Miss Lucy’s, and that it had been ordered for her; but did not recollect what Mrs. Daigre said on the subject. Miss Sheppers, the other lady AArho testified on the part of the plaintiff, know nothing of the matter, except that on one occasion in 1862 Miss Lucy stopped at the house of witness’ father, holding in her hand a morocco case, from Avhich she took and exhibited to tho witness a diamond necklace, Avhicli she said came from Mr. Fendler’s store.

This testimony establishes that Lucy Daigre in 18G2, then a girl ■about fourteen years of age, exhibited tho diamond necklace on two occasions — once at her mother’s house and once when she stopped at the house of Mr. Sheppers. On those occasions she called the necklace hers. The testimony, also, establishes that she Avas desirous to •obtain it, and that her mother gave orders to plaintiff to furnish if at a cost not to exceed two thousand dollars. The plaintiff is the only Avitness who testifies to seeing the young lady wear the jewelry. The mother undoubtedly purchased the jewelry, and the OAÚdencc seems strong that she intended it 1 or her daughter, but this is not entirely certain; for in her oavu testimony she swears positively that she bought the jewelry as a good investment, and that she afterwards .sold it on her oato account, and belore tho institution of the suit against her, for tho price of it. This apparent buying for tho daughter, whatever may have been her declarations at the time, that tho purchase was for tho daughter, may have taken place to gratify the AArhim of tlio girl, fostered and encouraged, as it was, by tho jeweler. She may have deemed the jewels more likely to retain a permanent value than the currency then prevailing. There is nothing whatever shoAving that she bought them as tutrix or that the price was to be charged against the minor. On the contrary, it plainly appears that the plaintiff, at the time of the sale to Mrs. Daigre, looked alone to her for payment, and not at all to payment out of the means of the minor. This fact is well established by the testimony of Banm, which he gave on the first trial, and it is corroborated by the plaintiff’s taking the note of Mrs. Daigre in her individual capacity, and not as the representative of the minor. Mrs. Daigre is .undoubtedly bound for the payment of the note, and-.the plaintiff obtained judgment against her in the former suit. See 19 An. 190. But he now prays a judgment against Lucy Daigre, now of the age of majority, on the ground that she gob the jewels, and had the use of them, and has them now in her possession, and that they constitute part of her fortune. I-Iow does his proof sustain these allegations “! Ho propounded interrogatories to this defendant. These wore pointedly answered, disclaiming the purchase of the jewels being made for her, denying ever having had possession of them or of knowing what disposition was made of them. . The answers are not disproved by countervailing evidence. The evidence, on the whole, fails to show any material fact sustaining the allegations now relied upon by the plaintiff as entitling him to recover against Lucy Daigre.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be annulled, avoided, and reversed. It is further-ordered that there be judgment in favor of the defendant, Lucy Daigrc; the plaintiff and appellee paying costs in both courts.

Rehearing refused.


author: Howe, J.

text:
    No. 2597.
    George W. Campbell v. Francis D. Clark.
    A surety on an attachment bond is no party to the suit, and need net bo made a party tj tli& appeal taken by tlio defendant from tbe judgment in the attachment suit.
    Where the evidence in the record leaves the questions in dispute in clo.Vbt and uncertainty, the-Supreme Court will remand the cause for a new trial.
    from the District Court, parish of Iberville. Posey, J.

      Barrow cG Bope, for plaintiff and appellee. Samuel Mathews, for defendant and appellant.
   Howe, J.

This suit was commenced by attachment, and in Ms answer the defendant, Clark, asked for damages against plaintiff and his surety on the attachment bond. He did not ask, however, that the surety he cited, nor was he cited. The motion, made by the plaintiff, therefore, to dismiss the appeal taken by defendant, on the ground that the latter has not made the surety a party to the appeal, must he-denied, the surety being no party to this litigation.

Upon the merits, the important question whether or not the claims of the plaintiff had been settled with the defendant, Clark, prior to the institution of the suit, is left in such doubt by the conflict of testimony, that we have deemed it proper to remand the cause for a new trial. C. P., 906.

It is therefore ordered that the judgment appealed from be avoided and reversed, and the cause remanded for a new trial; appellee to pay the costs of the appeal.

Rehearing refused.


text:
    No. 1883.
    E. Reilly & Co. v. Henry Rodewald & Co.
    The wife, having purchased property with her own paraphernal funds, and administers it independently of her husband, is entitled to have a judicial mortgage resulting from a judgment against her husband set aside, by rule, in so far as it operates as an incumbrance on her separate paraphernal property.
    APPEAL from Second District Court, parish of Orleans. Thomas, J.

      T. Gilmore and J. Magioni, for plaintiffs and appellants. William II. Sunt, for defendant and appellee.
   Howe, J.

The case now before ns arises upon a rule taken by Mrs. Eliza J. Rodewald, the appellee, on the recorder of mortgages and upon the plaintiffs, E. Reilly & Co., to obtain tbe erasure of a judicial mortgage, so far as tbe same affects what she alleges to be her separate and paraphernal property. The mortgage results from a judgment in favor of plaintiffs against the husband of the appellee. The rale was made absolute and tbe plaintiffs bave appealed.

An examination of tbe record has satisfied us, as it did the judge a quo, that the property in question was purchased by Mrs. Rodewald “ out of her own paraphernal funds,” as stated in her act of purchase —that those funds were ample to make the acquisition, and that she administered them independently of her husband. It results therefore that the property thus acquired is her paraphernal property, and that the judgment of plaintiffs against her husband should not he permitted to incumber it. See succession of Wade, 21 An. 343, and cases there cited.

It is therefore ordered that the judgment appealed from be affirmed, with costs.


author: Ludelíng, C. J.

text:
    No. 2670.
    Isaacson, Seixas & Co. v. J. P. Wall.
    Where it is shown on the trial that a sequestration legally issued, the party obtaining it is not liable in damages, on account of the surety, whom the judge has approved, being subsequently ascertained not to bo worth the amount of the bond.

      A PPEAL from Sixth District Court, Parish of Tangipahoa. Sills, J.

      ix. Wilson <£• Perrin, for plaintiffs and appellants. T. & J. SIMs, for defendant and appellee.
   Ludelíng, C. J.

The plaintiffs sue the defendant on an account for articles of merchandise sold to Mm. They alleged they had the vendors’ privilege on the articles in the defendant’s possession-, and had them sequestered.

The defendant filed an answer, alleging that the surety on the sequestration bond was not worth the amount of the bond, denying plaintiff’s privilege; denying that plaintiffs had fulfilled their contract to furnish the amount of goods stipulated, and alleging that the bill was duo only at sixty days from its date, etc. He further alleged that the sequestration was wrongfully issued, and had caused him great damage, for which he prays judgment in reconvention.

The evidence establishes the correctness of the plaintiffs’ claim, and that they have the vendor’s privilege on the goods sequestered. It is evident that they would have been entitled to another writ of sequestration, if the one issued had been set aside on account of the surety not being good for the amount of the bond. 7 N. S. 406; 5 La. 61; 14 La. 277; 2 An. 488; 4 An. 107.

It is not easy to conceive how one, in the exercise of a right conferred on him by law, can render himself liable for damages, because the surety, whom the judge approved, was subsequently ascertained not to be worth the amount of the bond.

It is therefore ordered that the verdict of tlie jury be set aside; that the judgment of the court a qua be reversed and annulled, and that there be judgment in favor of the plaintiffs for $631 10, with five per cent, per annum interest thereon from thirty-first day of May, 1869, with a privilege on the property sequestered, to secure the same. It is further ordered that the defendant pay costs in both courts.


text:
    No. 2713.
    James A. Cobb v. A. Depue, Sheriff.
    Plaintiff, a judgment creditor of Uio husband, caused his property to bo seized under execution. The wife caused execution to issue on her judgment, and the same property was seized, a sale was made under these seizures, plaintiff toolc a rule on the sheriff, to pay .ver the proceeds of the sale in satisfaction of his judgment. The wife intervened in this rule and claimed the proceeds, on the ground of a superior mortgage t j that of th1 soiz ng creditor. Held — That sho should be permitted to do so; that the court wa3 without the capacity t > ■decide on the proper disposition to be made of theproc-eds unless all the parties interested were before it; that to all jw the wife to intervene and establish her right to the proceeds of the sale in this proceeding would avoid a circuity of action and put an end to the litigation.
    APPEAL from Fifth District Court, parish East Eeliciaua. Posey, J.

      Gross & Hardee, for plaintiff and. appellant. McVea & Hunter, for defendant and appellee.
   Ludeling, C. J.

The plaintiff caused two writs of fieri facias to he issued against his debtor, H. C. Williams, which were placed in the hands of the sheriff, with instructions to seize certain property. The property was seized and advertised for sale. Before the sale Mrs. M. L. Booker, wife oí II. C. Williams, caused an execution to he issued under her judgment against said Williams, and the same property, previously seized under plaintiff’s executions, was levied upon;

At the sale, Mrs. Booker purchased the property and directed the sheriff to credit the amount of her bid on her execution, as she had the first mortgage on the property sold, and the sheriff obeyed her directions. The plaintiff then took a rule against the sheriff to make him pay to plaintiff the price of the adjudication.

In this proceeding Mrs. M. L.. Booker intervened,’and asserts her fight to be paid by virtue of the priority of her mortgage on the property sold. The sheriff answers that he has no interest in the contest, except to do his duty, as the court may direct.

The plaintiff contends that Mrs. M. L. Booker can not be permitted to interfere or intervene in this suit. We think otherwise. It would be impossible to pass' upon the rights of all the parties interested, so, as to conclude them, unless they were before the court; and we can see no objection to permitting the intervenor to establish her right to the proceeds of the sale in these proceedings; it certainly will prevent, further litigation.

The evidence sustains the judgment of the district court.

It is ordered that the judgment be affirmed, with costs of appeal.


author: Ludeding, C. J.

text:
    No. 2122.
    Joseph Hernandez et al. v. James Hugh et al.
    The right to proceorl by rule is confined to incidental matters which may arise in the progress' oí a suit, except in summary cases, whore tbi3 form oí proceeding is sanctioned by law. The want of citatiou is fatal io all subsequent xiroceed.ngs m the cause.
    APPEAL from Fifth District Court, parish of Orleans. Beaumont, J.

      T. A. Bartlette, for defendants and appellants. Collins & Wooldridge and B, Bermudez, for plaintiffs and appellees.
   Ludeding, C. J.

This suit was commenced by injunction to prevent the execution of a writ of fieri facias, issiied under a judgment rendered against the plaintiffs as sureties on the official bond of Charles Bienvenu, late sheriff of Orleans.

The plaintiffs allege that the proceedings against them by rule was unauthorized by law; that they were not parties to the suit of Charles Hugh v. Bienvenu, sheriff; that they were never cited; that they never filed an answer or joined issue in said suit, and that the judgment against them is a nullity.

The evidence in the record sustains these allegations.

The right to proceed by rule is confined to incidental matters, which may arise in the course of a suit, except in cases where a summary proceeding is expressly allowed by law. The law has not given this-remedy against sureties on a sheriff’s bond. The want ol citation is fatal, since they did not answer or otherwise waive citation. 14 An. 890 ; 1 N. S. 9 ; 8 N. S. 145 ; 6 La. 577 ;' 2 An. 403; 13 An. 150, 374; 1 R. 30.

It is, therefore, ordered and adjudged that the judgment of the, district court be affirmed, with costs of appeal.


author: Wyly, J.

text:
    No. 2660.
    C. Flint & Jones v. W. R. Peck.
    An appeal will not be dismissed, because the certificaba of the clo'k to the record is informal. Acts of 1866, No. 82, § 16, p. 15*.
    Where the original note sued on has not been offered in evidence, and the defendant s eks a new trial, the case will be remanded.
    from tlie Thirteenth District Court, parish of Madison. Hough, J.

      Thomas H. Clinton and Face, Foster & F. T. Merrick, for plaintiff and appellee. Sparrow & Montgomery, for defendant and appellant.
   Wyly, J.

This is a suit on a promissory noto, a copy of which was annexed to tho petition and made part thereof. The defense is the slave consideration of the note. The plaintiff had judgment below for the amount claimed, and tlie defendant has appealed.

Tho motion to dismiss the appeal on the ground that the clerk’s certificate to tho transcript is not in due form, can not prevail. If tho certificate be informal the clerk should bo required to correct it; the appeal ought not to he dismissed on that ground. Acts 1866, No. 82.

In this case it would bo useless to delay the decision for tlie cleric to correct tho informality under the writ of certiorari, because we see in tho record sufficient reasons, on other grounds, to remand the case.

From the note of evidence taken at the trial it does not appear that the original note was offered in evidence — it was not annexed to the petition; indeed the petition declares that a copy of the note was annexed to and made part of it. We think justice requires this case tobo remanded; tho defendant seeks a new trial,- and the plaintiff appears to have failed to offer tlie note in evidence.

Let tho judgment be annulled, and let this case be remanded to be proceeded iu according to law, appellee paying costs of appeal.


text:
    No. 2659.
    John A. Buckner v. E. H. Masters, Tax Collector.
    Tlie lion and privilege given by Jaw on tho lands in favor of the State and parish ior the taxes, expires by two years from date of assessment.
    Section sixty-three of the revenue law of 1869, which authorizes the tax collectors to seize and sell the property of defaulting taxpayer, and prohibits the courts from issuing any process interfering with tax collectors in the discharge cf their duties, does not apply to taxes that were assessed and became due before tho passage of the law. Acts of 189, p. 1C69, sec. 63.
    from tho Thirteenth Judicial District Court, parish of Carroll.' Hough, J.

      Sparrow & Montgomery and F. M. Goodrich, for plaintiff and appellant. F. H. Masters, tax collector, in person, defendant and appellee.
   Taliaferro, J.

The plaintiff sued out a writ of injunction to restrain the defendant from selling two tracts of land for alleged arrearages of taxes against the property. The grounds stated by the plaintiff for this proceeding against the tax collector are, that the taxes which the defendant is seeking to enforce the payment of by seizure .and sale', are alleged to be for the years 1865 and 1866, when the lands in question belonged to the estate of Oliver J. Morgan; that subsequently these lands, embracing two largo plantations in the parish of Carroll, were sold at probate sale, under an order of court, on the nineteenth of January, 1869, and.that the present plaintiff became the purchaser. lie avers that no assessment had been made of the property for those years; and, further, that the lien and privilege of the State and parish on those lands for taxes was lost by the prescription of two years, or, rather, that the lien and privilege expired after two years. He further urged that the defendant was attempting 1o collect onerous and extortionate penalties unauthorized by law.

The district judge sustained the objection that the lion of the State was lost, and that the penalties set forth in the bill of taxes are illegal. He, however, held that under the revenue law of 1869, courts were expressly prohibited from granting injunctions, or-otherwise interfering with State collectors in the discharge of their duties, in the •collection of licenses and taxes under that law. The judgment of the lower court dissolved the injunction, and the plaintiff has appealed.

We think the provisions of the sixty-third section of the revenue law of 1869 do not apply to cases like the one before us. A fair interpretation of the language used warrants, in our view, a different construction from that which, it seems, was given to it by the judge a quo. The sixty-third section of the act approved ninth of March, 1869, provides: “ That in case of refusal or neglect of property owners to pay their taxes, the tax collector shall, after twenty days notice in any city or corporate town, and thirty days in any parish, to the owner of the property assessed, his agent or attorney in fact, seize and sell any property, real or personal, rights or credits, belonging to such defaulting tax payer, without process of court ,• and all costs of such seizure and sale shall be borne by such defaulting taxpayer; and all courts are prohibited and restrained from enjoining or otherwise •interfering with tax collectors in the discharge of their duties in collecting licenses or taxes under this law.” Acts of 1869, p. 159.

The purpose of the law seems to be to prevent captious and frivolous objections to the payment of taxes by the persons in whose names the ■assessments have been made, for this class of taxpayers are presumed to have had notice of the assessment, and of the time and place of the collection of taxes. It is against property owners who refuse to pay their taxes, after due notice of default, that the stringent provision of section sixty-three seems intended to apply. The terms owner of the property assessed,” “ such defaulting taxpayer,” used in that section of the act, plainly refer to the description of persons given in the beginning of the section sixty-three, viz: to “property owners who refuse to pay their taxes,” etc. Tiiis language can scarcely be taken to apply to taxes imposed on property when it belonged to prior owners, and especially where, as in the present case, it is clearly shovm that no legal assessment had been made, and whore the lien and privilege upon the property had become extinct, if it had ever validly existed.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further-ordered that there bo judgment in favor of the plaintiff perpetuating the injunction, and that the defendant pay costs in both courts.


text:
    No. 2641.
    Stephen Duncan v. Gerard Brandon et al.
    Wlitro judgment has been obtained, against the defendant, with recognition of the mortgage cr¿ the rroperty specially hypothecated, a devolutive appeal will not suspend execution thereon, nor will the fact that a devolutive appeal is pending prevent the plaintiff, as a judgment creditor, from bringing a direct action to annul and set aside a simulated transier of other real estate, alleged to have boen made by the defendant to his children.
    PPEAL from the District Court, parish of Concordia. Sough, J.

      Farrar <£- Beeves and May c£- Speneer, for plaintiff and appellant. A. S. Ogclcn, for defendants and appellees.
   Howe, J.

The plaintiff having obtained a judgment against Gerard Brandon lor a large sum, which likewise made executory a mortgage given upon a plantation as security for the debt, caused the plantation to be sold, and realized a portion of the claim, leaving a balance due him, however, of about $30,000.

The defendant, Brandon, took a devolutive appeal from this judgment.

The plaintiff then instituted this action to set aside, as simulated apt! absolutely null and void, a transfer of other real estate, alleged to have been made by the defendant, Brandon, to his children. He averred himself to be a. creditor as above stated.

The defendants filed their exception that the action was premature, inasmuch as the defendant, Brandon, had taken a devolutive appeal from the judgment in favor of plaintiff. The court maintained the exception and dismissed the suit, and the plaintiff has appealed.

The plaintiff sues in virtue of Ms relation as a creditor. His judgment is the highest evidence of that relation. The devolutive appeal taken by Brandon did not stay its execution by the seizure and sale of Brandon’s property, and we are unable to perceive on what principle it should suspend the right of plaintiff, by such an action as the present, to preparo the way for a seizure and sale, by sweeping away what is alleged to be a simulated transfer, a corpus sine anima, which easts a shadow on the title of the judgment debtor.

It is, therefore, ordered that the judgment appealed from he avoided and reversed, and the cause remanded to be further proceeded with according to law, the appellees to pay the costs of the appeal.

Rehearing refused.


text:
    No. 2577.
    Zenon Naquin, Administrator, v. Dominique Durac.
    A third party who has acquired the interest of a portion of the heirs in a succession, cannot plead such interest in compensalion in a suit brought by the administrator to recover a. note due the estate.
    from Third District Court, parish of Lafourche. Gates, J.

      F. W. Blake, for plaintiff and appellant. Bush <& Goode, for defendant and appellee. - ■
   Ludeling, C. J.

Zenon Naquin, administrator, sues to recover the amounts of two promissory notes due by the defendant to the succession of Mrs. Pierre P. Naquin.

The defendant filed an exception alleging that, since the institution of this suit, he had acquired the interest of two of the heirs, and that lie had a right to collate, and that no action could be instituted against him until an account had been rendered by the administrator, etc.

There was judgment sustaining the exception, and the plaintiff has-appealed.

The heirs have no right to sell any part of the property of the succession under administration. They may sell their interest in the succession or in any part of it, but that interest is only to be ascertained after a settlement of the debts; there may be nothing going to the heirs. And one buying the interest of an heir in a note in favor of an estate can not plead it in compensation when sued on the note; the claims are not equally liquidated.

Nor are we aware of any law which prevents an administrator from suing for the amount of a note due by a third person, who may have-purchased the interest of a portion of the heirs in the note.

It is therefore ordered that the judgment of the district court be avoided and reversed; that the exception be overruled; that the defendant pay the costs of this appeal, and that the case be remanded to the lower court to be proceeded with according to law.