text:
    No. 9028.
    E. H. Samuels et al. vs. Isabella H. Brownlee et als.
    Usufructuaries dispensed from security are entitled to the possession and enjoyment of the property as soon as the debts, and charges of the succession of the testator making the bequest of the usufruct have been satisfied.
    Testamentary executors, who, after the debts and charges have been paid, deliver possession to such usufructuaries, cannot be held responsible in case of waste and damage by the usufructuaries, who are accountabl e only to the owners of the property burdened with the usufruct.

      A testamentary disposition, authorizing executors to administer the succession property does not require them to interfere with such usufructuaries during the course of the usufruct, after such putting in possession.
    The exclusion of the tutor of minors, to whom the naked ownership of part of the property subjected to the usufruct belongs, from interference with the executors, does not pro-vent him from protecting the rights of his wards as against the usufructuaries.
    Executors authorized by the will to administer the portion of the estate bequeathed to such minors, as they may dee.iu proper, until the youngest of them arrives at his majority, cease to have the right to administer after the usufructuary has been put in possession, but may be called upon to resume and continue the administration of that portion, for the benefit of the minors, only should the usufructuary die previous to the attaining of his majority by the youngest legatee.
    A judgment homologating an account of such executors, rendered after putting the usu-fructuaries in possession and discharging them from liability until then, but retaining them conditionally in office, in case events provided for by the will require them to resume the administration ot the property, may help in the construction to be placed upon the will.

      A testator lias a right to confer the usufruct jointly or in divided portions. A bequest of the usufruct of the same property in the last mode, does not require the executors to place tlie usufructuaries separately in possession, when they accept a delivery of the whole to both.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      Egan & MoJEhtery, It. R. Marr and EUis & Ellis for Plaintiffs and Appellants.

      Jos. P. Ho mor and E. W. Baker for Defendants and Appellees.

      Single-ton, Browne ds Ohoate on the same side.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action sounding in damages for upwards of $15,000.

It is brought by the legatees of the naked ownership of one-half of the estate of a testator, against the executors of the latter and the representatives of the usufructuaries of that and of the other half.

The complaint is, that the executors in violation of their trust and of the law, have voluntarily placed the usufructuaries in the undivided possession of all the effects of the succession; that they have permitted those usufructuaries to waste and squander the movables and to dilapidate the real estate; that the usufructuaries, or their representatives, having frilled to return the misused property and to repair the damage done, the executors and such representatives are responsible for the denounced wrongful acts, unlawful conduct and neglect of duty which have occasioned the injury and should be held liable in solido.

Prom a judgment on an exception of no canse of action, filed by the executors, sustaining the defense and dismissing the suit, the plaintiffs liave appealed.

Pox the purpose of the exception all the facts sot forth must be taken as true.

Prom that standpoint the question to he determined is simply:

Whether the plaintiffs are entitled to recover from the executors.

The following is a substantial statement of the averments of the petition.

George Heation died in 1873, leaving a will, by which, after making-several particular legacies, he gave the usufruct of one-half of his estate to his sister, Mrs. Samuels, and the usufruct of the remaining lialf to another sister, Anne Head on, dispensing both from furnishing security.

The naked ownership of the first half lie bequeathed to the plaintiffs, subject to administration from the beginning until after the usufructu-ary’s death and until the youngest of them would become of age.

A like ownership of the other half he gave to his two nieces.

The testator also appointed a number of executors, dispensing them from security; but two only of them accepted the trust and qualified accordingly, Stringer and Middlemiss, who are made defendants herein.

They caused the property left by the testator to be inventoried, took possession of it, satisfied the charges against the succession, delivered the residue to the usufructuaries, that residue consisting in real estate, stock, securities, ready money, etc. They next presented an account which was homologated in 1874, the court discharging them from responsibility up to then and retaining them conditionally in office, in case events provided for in the will would require them to resume the administration of the succession property. Those events never arose, the first named usufructuary, Mrs. Samuels, dying in April, 1882, and the youngest, child, joint legatee of the naked ownership of the half subjected to Mrs. Samuels’ usufruct, attaining Ms majority in March, previous to her death.

The claim is, that, under the terms of the will, which the executors had accepted, they were bound to take and continue in possession of the entire estate, and administer the same, from the moment of the death of the testator to the putting in possession of the naked owners, which was to be, as concerned the plaintiff, when the youngest of them would have attained the age of majority, if the usufructuary, Mrs. Samuels, was then dead; and that as the executors have without authority delivered undivided possession to the usufructuaries, and injury has in consequence resulted, they must be held responsible.

The defense is that, under the terms of the will and the law, the executors were enjoined and bound to put the usufructuaries in possession, as they have done, that when they did so, their administration and responsibility ended, subject to resumption in the event that Mrs. Samuels would die before the youngest of the plaintiffs became of age, a circumstance which did not occur, as that youngest legatee attained his majority before his grandmother, Mrs. Samuels, had departed this life.

In order to determine that issue, it is necessary to consider the terms used by the testator, in order to ascertain his intention and test the construction put upon it by the plaintiffs.

The particular clauses relied upon, read as follows :

“ I give and bequeath to my sister, Elizabeth Iieatiou Samuels, the usufruct and enjoyment, for and during the term of her natural life, of the one-half part of the remainder of all my estate, and dispense her from security therefor.”
“Igive and bequeath, in full ownership, the one-half of the residue of all my estate (the usufruct of which half is hereinbefore bequeathed to iny sister, Elizabeth Heation Samuels) to Elizabeth Heation Samuels, aged about 1G years, George H. Samuels, aged 14 years, Sarah Jane Samuels, aged 12 years, Wilhelmine Samuels, aged 10 years, all the children of my late nephew, William Samuels,” * * (these legatees being the plaintiffs herein) * * * “to be divided between them by roots, and to be enjoyed by them from and after the, time the youngest of them shall have attained the age of majority and after the death of my said sister, Elizabeth Heation Samuels. And I hereby empower my testamentary executors to administer the said half of my estate, as they may deem proper, until the youngest of the surviving of the above named minors arrives at the age of majority, free from all or any control, or interference on the part of the tutor of said minors, or of such of them, as^shall have become of age, previous to the happening of the majority of the youngest of them.”
“ I give and bequeath to my two nieces, Isabella Brownlee and Carolina Gale, in full ownership, to be enjoyed by them, from and after the death of my above named sister, Anne Heation, the other half of the remainder of my estate, be the same what it may (the usufruct of which is hereinbefore bequeathed to my said sister, Anne Heation).”
1 hereby nominate and appoint for my testamentary executors and detainers of my estate, Messrs. Frederick Stringer,” * * “Peter B. Middlemiss,” * * * (and others named, who did not qualify) * * * “to act jointly and severally, and 1 hereby request and empower them to fully and finally carry out the provision of this will, and I hereby dispense them with furnishing security as such testamentary executors.”

Tt is manifest that the intentions of the testator were:

1. To provide for his two sisters during their life. To that end he gave them the usufruct, each of half of his estate, dispensing both from a security which otherwise could have been exacted from them by the naked owners.

2. To provide for the grandchildren of one of those sisters, Mrs. Samuels, the plaintiff herein, who were at the time minors. For that purpose, he bequeathed to them the naked ownership of the half subjected to their grandmother's usufruct, with the condition that it should not be under the control of their tutor.

3. To provide for his two nieces named. To accomplish that object, he bequeathed to them the naked ownership of the half subjected to the usufruct of his second sister.

So that at the death of the testator, his estate was dismembered; the usufruct accrued to his sisters, the naked ownership to the plaintiffs and to his nieces, in the proportions specified by him •, they each and all becoming seized according to their respective titles, possession primarily, under the mandate conferred by the will, vesting in the executors named.

The duty of those executors under the will and under the law was to take all proper conservatory measures, to inventory the property, to collect assets, to pay debts, to discharge special legacies, and otherwise to carry out the will.

That they did. The usufructuaries were entitled to demand possession of all the estate. The executors could have set no justification in resisting such demand. In their anxiety to execute the last intentions of their departed friend, they anticipated the demand, they tendered the delivery of tile estate to the usufructuaries, who accepted it and who went into possession of it as such.

it was no concern of the executors whether the legacy of the usu-fruct was joint or divided. Had they made an equal division of the estate subjected to the usufruct, at the time of the delivery to the usu-fructuaries, nothing could have prevented these beneficiaries from uniting their tenure and enjoying the property in common. The executors would have done a vain thing.

The testator could legally confer the usufruct jointly or in divided portions. 10 L. 246 ¡ R. 0. 0. 539. But he would not and did not confer it in common or jointly, for the obvious reason that it was not his desire to subject all his estate first to the usufruct of both and next to the usufruct of the survivor, which would have been the case had the legacy been a conjoint one. His intention was that, at the termination of the usufruct of each half, by the death of the usufructuary, the right of use and enjoyment should at once unite with the naked ownership and accrue to the legatees of the fee of each half. It was his intention that, at the death of Mrs. Samuels occurring prior to the majority of the youngest of the minors, Samuels, the half bequeathed to them should then be under the exclusive control of the executors, free from any interference on the pari of tlieir tutor. It was his intention that, at the death of his sister, Anne Heation, the use and enjoyment of the other half, subject to her usufruct, should accrue to his nieces, who would then become the absolute owners of the same.

From the fact that the testator dispensed his sisters from furnishing security, as he had a perfect right to do, as he left no forced heir, 15 A. 588; 2. A. 30, it cannot but be. inferred that it was his will that Ms executors should place them in possession of the estate, as soon as practicable after his death — a thing wliich certainly they could not have, done had not those beneficiaries been thus exempted. R. C. C. 558.

It is only where the usufructuary does not give the security required by law, that j>ossession of the things subject to the usufruct can be withheld from him. R. C. C. 563-4; 13 A. 143, 157; 18 A. 601. Had not the testator formally relieved usufructuaries from security a different case would have been presented. By thus exempting them, the testator has manifested some indifference as to the possible fate of the property susceptible of consumption and remained satisfied with the idea that after all, the real estate remaining, when the usufruct would determine, might still be a handsome and sufficient liberality in favor of the naked owners.

A usufructuary is one who enjoys a thing, the ownership of which belongs to another, with the right of drawing from it all the advantages of which it is susceptible and even of altering its substance in some cases, R. C. C. 533, 541, 536, but subject to certain obligations. R. C. C. 567; 3 A. 496; 8 A. 138; 17 A. 325; 20 A. 504.

The right of the sisters of the testator as usufructuaries under the will and the law, was to demand possession and on obtaining, to enjoy the property subject to their usufruct, under the obligations imposed by law. They could not have enjoyed that property .as usufructuaries unless they actually had that possession.

The duty of the executors was, therefore, after payment of the debts and legacies, not to wait for a demand of delivery, but to turn over to the usufructuaries the residue of the succession assets, however composed.

They were not required to withhold that possession and to administer the property to be enjoyed by the usufruct. Had the testator, who has expressed bis intentions throughout with remarkable clearness, thus designed, he would have used unambiguous language and said so; but he has not done it. *

The executors have faithfully accounted to the court which had confirmed them and ordered the execution of the will, and that court has discharged them from all responsibility, up to that time incurred, retaining them in esse for a contingency.

When they turned over the mass of the succession property to the usufructuaries, they ceased to be under further obligation to administer it. The naked ownership had vested in the plaintiffs and in the testator’s nieces. If any conservatory acts subsequently became necessary for the preservation of the rights of the plaintiffs, as naked owners of the half subjected to their grand mother’s usufruct, the duty of taking proper steps to that end devolved on their tutor or guardian, as the representative of the owners 2 A. 897. The exclusion, by the will, of that functionary, from control or interference, related only to the case of possession and administration of the half of the executors and, in no way, to that by the usufructuaries.

Under the spirit and letter of the will and the law, the executors were again to have possession of the half bequeathed to the plaintiffs and to administer the same for their benefit, only had Mrs. Samuels, the usufructuary, died before the youngest among them had attained his majority.

As that foreseen event never was realized, it follows that the seizin, possession and administration which the will and the law conferred on the executors, terminated when they placed the usufructuaries in possession, and that their official responsibilities likewise ended at that moment.

The executors having, therefore, faithfully carried out the last will of George Ileation, were properly exonerated, by the lower court, from the liabilities sought to be saddled upon them.

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

Poché, J. takes no part, not having heard the argument.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 9111.
    James M. Stanbrough, for the use, etc., vs. S. B. and J. T. McClellan et als.
    The legatee who sues for the nullity of a sale of succession property adjudicated to the executor of the will of the testator, hy means of a third person, cannot he successfully met hy the exception of want of previous tender of the price of adjudication. If the funds thus received had heen used to extinguish the debts of the succession, the executor could recover the same in due course of administration. He would he entitled to no other relief.

      The fact that the sale had been provoked by a creditor of the succession does not alter the legal effect of the purchase by the executor.
    A PPEAL from tlie Eighth District Court, Parish of Madisou. ri Deloney, J.

      A. L. Slack and ii; P. Wells fox Plaintiff and Appellant:
    1. A minor alleging that through a fraudulent conspiracy entered into between the executors of the estate to which he is a legatee, whereby said executors, through a party interposed, purchase at a sheriff’s sale the property “ entrusted to their administration. ” to his damage and far below its value, and in violation of law, does set forth a cause of action, ft. C. Ü. 1146, 1790; Story’s Agency, §§ 210, 211; Story’s JSq. Jur. §§ 316, 322, 323; 1 H. D. 853; 2 H. D. 1497-8, and cases cited.
    2. Tlie rule of restitution applies only to parties in good faith. 31 A. 372; 33 A. 746. It is not applicable to heirs suing to rescind a sale, unless they had knowledge at time of the sale of the nullities. "Wood vs. iiloolls, 33 A. 746. The rule is not applicable to minors. Self vs. Taylor, 33 A. 771 It is purely an equitable rule and not a shield to be used by wrong-doers. 31 A. 372 ; 30 A. 174; 26 A. 188, 343; 24 A. 272.
    3. An executor who buys property “ committed to his charge, ” is a purchaser in bad faith and liable for revenues.
    4. When the plaintiff, as in this case, does not pray for the possession of the property, but that the sale be decreed null and the property be held still to belong to the succession, a tender of the purchase price under no circumstances could be a condition precedent, because such purchaser is in bad faith and owes revenues. The only way the question of revenues could be settled would be in “due course of administration.” Chaff© vs. "Farmer. 34 A. 1017; 14 A. 605.

      A. W. Spencer and J. T. Lane 'for Defendants and Appellees.
   The opinion of the Conrt was delivered by

Poché, J.

Plaintiff brings this suit in the interest of Ms minor son, a legatee under the will of the minor’s paternal uncle, Josiah Stan-brough, and his object is to obtain a judgment annulling the sale of a plantation once the property of the latter’s succession. He charges that, at a sale made of said plantation under executory process, the defendants, S. B. and J. T. McClellan, who were the executors of the testator, became the purchasers through and by means’ of a third person, one Thomas B. Adams, to whom the property was ostensibly adjudicated. But he charges that the two executors above named were really and truly the purchasers, iu violation of a prohibitory law; bence, he prays that said sale be declared null and that said property be brought back to tbe succession.

The defendants excepted:

1. That the petition disclosed no cause of action.

2. Want of tender of the price of adjudication, which had enured to the benefit of plaintiff.

The exception was sustained and plaintiff appeals.

If the evidence on trial was to show that the defendants, McClellan, were the executors of the testator, that the property had been entrusted to their administration, and that at a judicial sale thereof they had bought it by means of a third person, the sale would inevitably be annulled. The petition contains full allegations of all these elements of nullity; hence, it discloses a most serious cause of action. C. C. 1146.- This proposition is elementary and flows from the textual provisions of the article of our Code.

The executors could not be shielded from the charge of nullity by showing that the sale was not procured by themselves, but that it had been provoked by a creditor of the succession. The property was none the less under their administration. John Chaffe, admr, vs. W. W. Farmer, 34 A. 1017.

II.

The object of plaintiff was not to obtain the ownership or possession of the property, but merely to bring it back to the succession. Hence, lie was not bound to make tender of the price of adjudication. If the purchase price had been used to extinguish any of the debts of the succession, the executors would be entitled to be reimbursed in due course of administration and no more.

This point is also settled in the case of Chaffe vs. Farmer, quoted above.

Under the allegations of this petition the executors would be purchasers in bad faith, and as such not entitled to advance and sustain the plea of want of tender of the purchase price.

Jurisprudence has also settled that heirs who seek to recover property bought by the administrator of a succession in violation of law, cannot be met by such a plea. Wood vs. Nicholls, 33 A. 745; Self vs. Taylor, 33 A. 769.

The judgment sustaining the present exception is therefore erroneous, and hence it is annulled, avoided and reversed, and this cause is hereby remanded to the lower court to be proceeded with according to law and the views herein expressed.


author: Todd, J.

text:
    No. 8844.
    J. S. Ikerd vs. Mrs. B. E. Postlewhaite and Sheriff et al.
    Before dismissing a suit "by consent of parties thereto, one asserting an interest in Cbe matters involved in the suit should not be denied the right to intervene therein and file his petition of intervention, subject to the right of either party to suit, to cause the dismissal of the intervention ky the proper exception. A delay of fifteen minutes asked for to procure the petition of intervention already prepared should have been granted.
    APPEAL from the Eighth District Court, Parish of East Carroll. Deloney, J.

      E. E. Farrar for W. G. Wyly, Appellant.

      F. F. Montgomery and J. ill. Kennedy for Defendants and Appellees.
   The opinion of the Court was delivered by

Todd, J.

W. G. Wyly, a third person, appeals from a judgment dismissing this suit by the consent of the parties thereto.

The bill of exceptions found in the record shows that before the decree of dismissal was rendered, the appellant offered to file an intervention in the cause and, at the same time, stated that he had already prepared his petition of intervention, which was then in his office, and asked a delay of fifteen minutes to go to his office and procure the same, which request was refused him and the dismissal of the suit thereupon followed.

The bill also shows that the appellant alleged a substantial interest in the litigation embraced in the pending suit, to further which, was the object of his proposed intervention; but with the nature of this interest and whether sufficient or not to entitle him to intervene, we, at present, have nothing to do, as this is a question which was not jrassed on by the lower court — that court refusing to allow the intervention substantially on the ground that the application came too late and that the parties were then present in court desiring to dismiss the suit.

We think the court should have granted the short-delay asked for to enable the appellant to procure and file his petition of intervention. Whether it should have been thereafter dismissed on an exception as to the character of the- interest shown, or other cause, was a matter for the judge’s subsequent determination.

If the application to intervene is seasonably made, the judge cannot refuse to permit the petition to be filed, C. P. 394. Tf for any cause it should not be allowed, or the intervenor has no right to be heard upon his demands, his petition, as in other cases, should be dismissed, upon a proper f-xception urged against it by the party opposing it.

Tt is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and, it is further ordered, adjudged and decreed that- the case be remanded and reinstated on the docket of the court below, and the appellant, W. G. Wyly, allowed to present and file his' petition of intervention, and the case to be proceeded with according to law, appellees to pay cost of appeal.


author: Fenner, J.

text:
    No. 9154.
    G. V. Halliday vs. Henry F. Bridewell.
    As between tlie parties, consent is essential to establish, a partnership, by which is meant, not that the parties should qualify their contract as a partnership co nomvne, but that such consent should appear either from the terms or the nature of the contract. Where, as in this case, it affirmatively appears that pne party employs the other and agieos to pay him a stipulated proportion of the net profits as compensation for services, that does not constitute a partnership inter sese.

    The fact that plaintiff earned on business in the name of Halliday <& Go., without any partner, cannot relieve defendant from paying him what he justly owes,
    Defendant being the manager of the business in New Orleans, in the absence of plaintiff, who resided in St. Louis, and having control of the book-keeper and books, the books are proper evidence against him, being, properly speaking, his own statements of the business to his absent principal. Other defenses are without merit.
    APPEAL from the Eighteenth District Court, Parish of Tangipahoa. Thompson, J.

      J. M. Wright, Marr & Reid for Plaintiff' and Appellee.

      H. 3$. TJpton for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

On December 17, 1878, plaintiff and defendant entered into written contract, substantially as follows :

“ G. V. Halliday, now doing business under firm style of G.V. Halliday & Co., in St. Louis, Mo., hereby agrees to commence a separate and distinct business in New Orleans, La., in January, 1879, with stock of safes, locks, etc., and office fixtures aggregating say $3000, at list prices, etc. * * He further agrees to furnish the capital necessary for payment of freight, drayage, rent, clerk hire, traveling and petty exi>enses during the year L879, said stock and fixtures to he and remain the property of G. V. Halliday until s.-ld to bond fide purchasers and accounted for to him, until December, 1879.
He further agrees to employ Mr. Henry F. Bridewell to assist in managing the New Orleans business on the following terms, viz:
H. F. Bridewell is to devote Ms whole time and attention to the New Orleans business, traveling, soliciting- orders, etc. For compensation therefor, G. V. Halliday agrees to allot <md bestow on H. F. Bridewell, one-half of the net profits which shall accrue to the said business in New Orleans, during the year ending December 31, 1879, after all expenses have been duly charged to profit and loss and after a credit of ten per cent interest has been allowed to G. V. Halliday, on his average capital invested during- the year.
“ On December 31,1879, G.V. Halliday shall withdraw his investment with ten per cent interest, from the available assets, and the remainder shall, on January 1, 1880, be equally divided between Halliday and Bridewell, and form their joint stock in business at New Orleans, as equal partners in the continuance of the same, if rmtualh/ desired. Bridewell further agrees to make daily report of sales and full reports of business whenever requested and at least every three months; not to withdraw more than $100 per month for personal use; and to remit to Halliday, receipts, in cash and bills receivable, as fast as received, except so much cash as is necessary for current expenses. * * *
“ The true intent and meaning of this agreement is herein set forth and each party signing hereto, binds himself to enhance the general welfare of G. V. Halliday & Co., New Orleans, La., which shall be the name and firm style.”

At the end of 1879, the following additional agreement was entered into: “By mutual agreement, this 31st December, 1879, the terms of this contract are continued to December 31,1880, excepting that Halli-day waives his credit of ten per cent interest on average capital invest-^ ed, and Bridewell is allowed to use not more than $150 per month, etc., otherwise to remain in full force and effect.”

Under these agreements, the business was carried on during 1879 and 1880, and then terminated.

The plaintiff alleges that defendant, as his agent and emplomé, drew from the funds of the concern an amount of $3070 beyond what he had a right to draw, under the contract, for the recovery of which, or of such sum as may be found due on a duo accounting of his agency, he brings this suit.

The defendant files three exceptions and, afterwards, a general denial.

The first exception to the jurisdiction of the court is frivolous.

The second exception is that the contracts established a partnership between plaintiff and defendant which had not been settled and that plaintiff could not sue for a specific sum but only for liquidation and settlement of the partnership.

The contract explicitly declares that “ the true intent and meaning of this agreement is herein set forth.” If this be true, it is difficult to see how the conclusion resulting from its express terms, can be avoided, that Halliday, alone, established and carried on the business in New Orleans; that he employed Bridewell to manage the business and to render certain stipulated services; and that he agreed, in compensation for said services, to “allot and bestow” upon the said Bridewell, one-half the net profits. The other stipulations are appropriate as fixing the facilities which H alii day bonnd himself to furnish in order that profits might be. earned and as settling the basis upon which net profits were to be ascertained.

Our Code expressly provides that “ partnerships must be created by the consent of the parties.” Article 2805. We are not here concerned with the modifications of this, applicable to third persons. See City vs. Gauthreaux, 32 A. 1126.

As between the parties, consent is essential. By this, is not meant that they must in terms qualify their contract as a partnership eo nomine; but it must appear, either from the terms or from the nature of the contract, that it is a partnership; and in determining the question, both the terms and the nature of the cohiract must be considered together. It would be perfectly competent for parties to form a contract with each other, which, ordinarily, would constitute a partnership and produce all the effects of partnership, and yet to stipulate with each other that it should not produce such effects; and such stipulation, as between themselves, would -be valid.

Nothing, however, is better settled than that a contract bj- which one party receives a part of the profits as a compensation for services, does not, necessarily, constitute a partnership, especially inter sese. Bulloc vs. Paillos, 8 N. S. 174; Cline vs. Caldwell, 4 La. 140; Hallett vs. Desban, 14 A. 529; Horgrave vs. Conroy, 4 C. E. Green, 281; McMahon vs. O’Donnell, 5 Id. 306.

Where, in such a case, it clearly appears that the party so remunerated, is an employó and not a partner, the presumption of partnership as between the parties is conclusively rebutted.

Such is the case here. It is obvious, to our minds, that this contract was not intended as creating an immediate partnership, but was entered into with a view to an ultimate partnership at the end of the year, “if then mutually desired.” That it was not then desired or contemplated sufficiently appears from the supplemental agreement.

The exception was properly overruled.

The third exception is of no cause of action, based on the ground that plaintiff alleges that he had transacted business in the name of G. V. Halliday & Co., without having any actual partner interested, in violation of a prohibitory law. R. S. §§ 2668-9.

There is nothing in the, exception. It is true the code provides that “ whatever is done in violation of a prohibitory law is void,” article 11; but what is it that defendant claims should be avoided-? Plaintiff sues, in his individual name, under a contract made by himself, individually, for the recovery of moneys received by defen dent as his agent and not accounted for. Them is no room for the application of the principal here, even if, in any case, a debtor of an individual who has violated this statute could invoke it as a shield to protect him from paying-what he justly owes. See Kent & Co. vs. Mojorrier, decided this day.

On the merits, we find no reason for disturbing the judgment of the lower court.

The. plaintiff supported his claim by the books of the business and by statements rendered by defendant and his letters aecompar^ing them.

Defendant had the entire management of the business in New Orleans; he employ-ed the book-keepers and the books were kept under his supervision. As the judge a quo well says : “these books are, in reality, Bridewell’s own statements to his employer, of the business in New Orleans.” The objection that they are not competent evidence against Mm has no foundation.

The pretension that the amount which he was allowed to draw out monthly, for personal use, was a compensation over and above Ms share of the net profits, finds no support in the terms of the contract.

The attempt to supplement the books and statements by an alleged private memorandum kept by defendant and never exhibited until the trial of the case, cannot be countenanced.

The claim for half of stock on hand is obscure and stale. He made no such claim when he was discharged or afterwards, nor even in his pleadings, where it should have been specially urged, if relied on.

Judgment affirmed.

Rehearing refused.


author: MANNING, J.

text:
    No. 9107.
    The State ex rel. The Board of School Directors of the Parish of Orleans, vs. Edwin H. Fay, Superintendent of Public Education.
    "Where a mistake has "been made by the State Treasurer in announcing to the Superintendent of Public Education the amount of funds for apportionment among the eduoable children of the State, but before the apportionment could be cancelled the school directors of Orleans had received their quota undor it, when the true sum has been ascertained and announced to the superintendent, and a revised apportionment is to be made, it is proper that the superintendent should take into account, when apportioning to Orleans, the sum already improperly paid to her UDder the mistake, and which payment bad been made in consequence of that mistake.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Sherburn, J.

      Olías. F. Bvelc, S. M. Parrot, and Fcmrot <& La/nson, for Plaintiffs and Appellants.
    Defendant a,nd Appellee unrepresented in this Court.
   The opinion of the Court was delivered by

MANNING, J.

This is a proceeding by mandamus coupled with a.n injunction, the object of which is to compel the defendant to apportion to the relators twenty-one per centum of the amount appropriated for the support of public, schools throughout the State, and to prevent the payment of warrants drawn on that fund to the prejudice of their claim.

The allegations are that there are 290,036 educable children in the State, and that 01,436 of these are, in Orleans parish, which entitles her to twenty-one per centum of this fund, and that it is the duty of the. superintendent to apportion it quarterly on the first Monday in March and each quarter thereafter — that from the school revenues of 1882, up to February 12,1883, the State Treasurer had reported to the superintendent for apportionment $32,410 25, and that on March 6th following the same officer reported the further sum of $15,000 for apportionment, and that Orleans parish is entitled to the above mentioned proportion of them, viz: $10,003 56 — that no apportionment of the funds of 1882 had been made to the relators, but that the superintendent had issued to them in February, 1883, a certificate of apportionment of $1997 32 of the revenues of 1882, which they had refused to receive.

The brief of the plaintiffs (there is no appearance in this Court for the respondent) states that

Mr. Fay assigns, in his answer and in Ms testimony, his reason for an unequal distribution of the school funds for the year 1882, to the advantage of the country parishes and to the prejudice of the parish of Orleans, which reason is, that some mistake had occurred by which the parish of Orleans had received more than its pro yata share of the funds appropriated for school purposes for the year 1881, and that he deemed it to be his duty to make up the losses thus sustained by the country parishes, by giving them appropriations from the school funds of 1882, sufficient in amount to accomplish that end. The letter addressed by E. A. Burke, State Treasurer, to the superintendent, dated 3d July, 1882, introduced in evidence by Mr. Fay, explains tbe wliole matter, and shows that if the school board of the parish of Orleans at any time received more'than it was entitled to, the amount so received was from the revenues of the year 1881.”

An examination of the answer and testimony of the respondent exhibits his statement to be, that on June 16, 1882, there was subject to apportionment $65,015 47, and that he apportioned that sinn to the several parishes, and the share of Orleans was $13,520 32, her full quota, which was paid to the relators June 27, 1882 — that two or three days thereafter the treasurer reported to him a mistake had been made, and that the entire apportionment must be cancelled as there was not money in the treasury to pay it, and thereupon he sent circulars to all the country parishes with this information, and cancelled their appor-tionments. The information came too late for the same action on the Orleans apportionment. It had already been paid. No parish save (Irleans received any part of that apportionment — that the $15,000 mentioned in the petition is not required to be apportioned until June (this suit was filed in March), and that he did not apportion to Orleans any part of the fund which he liad for distribution in December, 1882, because all she was then entitled to did not amount to the sum she had already improperly received, as above detailed. That in February, 1883, he apportioned the sum then on hand so as to give to the country parishes what was withheld from them by the mistake recited already, and the quota of Orleans was $1997 32, the amount of the certificate which they rejected.

It would be an extraordinary state of things if a mistake, such as that committed here, could not be rectified by the officers, who made it. The discovery of it by the treasurer was not immediate, so that the relators who were on the alert got the money before the order to pay ijt could be countermanded, but no other parish received its apportionment because the cancellation was made in time to prevent any payment to them. If the warrant, improvidently issued under a mistake, had not been presented promptly by the relators, before the mistake was discovered, and before the cancellation of the apportionment, it would not have been paid, and Orleans would have been in the same situation as the other parishes. When these subsequent school revenues came in, the distribution or apportionment would have been then made proportionally to the educable children throughout the State, and Orleans would have then received her quota, and not till then.

That is exactly what she has received. She has received her proportional share, only she received a large part of it, in consequence of the mistake, sooner than she should have received it. She does not feel thankful for the early dole, hut on the contrary is striving to take a full share of what remains away from her hungrier sisters. This is ungracious, and what is more to the purpose, is illegal. The lower judge so ruled and we affirm his judgment.


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

text:
    No. 9104.
    Mrs. Sallie C. Day and Husband vs. The New Orleans Pacific Railway Company.
    The burden, of proof in a suit in damages for the hilling of animals by a railway company rests on the plaintiff to show negligence. Stevenson’s case, 35 A. 498. affirmed.
    A company which is induced to build its road through certain lands, which does so, and which is permitted to ran its trains regularly through the same, cannot be considered as a trespasser.
    A company is not at fault for not fencing in its track, although the same runs through a pasture ground, in the absence of contract or law requiring that protection.
    APPEAL from the Twelfth District Court, Parish of Rapides. Blackman, J.

      White & Thornton for Plaintiff aud Appellants.

      Kennard, Howe & Prentiss aud Andrews & Foster for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action in damages for the killing by the defendant company of a jack and mule of plaintiff’s on the night of November 11, 1882, the animals being valued at twelve hundred dollars. The charges are that the company had no right of way on the Experiment plantation where the accident occurred and-that the injury was sustained in consequence of the negligence of the company’s agents in charge of its trains and cars.

The defense is a general denial, coupled with averments of the right of the company to the use of the road, as derived from formal concession and acquiescence on the part of plaintiff’s authors and herself, and the lapse of time.

From a. judgment rejecting her demand the plaintiff appeals.

In the suit between the same parties for the same object, the plaintiff was non-suited, this Court holding that her supplemental petition alleging trespass, filed on the second day of the trial and under which evidence had been adduced, should have been stricken out and no evidence admitted under it. 35 A. 694.

The present is, therefore, a new suit, incorporating as above stated the charge that the company had no right of way and was a trespasser, which the rejected petition had previously set forth.

On the trial the original testimony admitted on the first trial was introduced by consent and two additional witnesses were heard.

The killing of the animals is abundantly proved, but that it happened through the negligence or fault of the company’s employees is not even presumably established.

It appears that on the night mentioned, two trains ran through plaintiff’s pasture, a freight train and a passenger train. The train was running about twenty miles an hour, the fireman and the engineer at their proper place, watching, and the light in front of the locomotive burning. All at once an animal, which had not been noticed previously, jumped from one of the sides of the road upon the track, in front of the engine, and was struck and thrown aside. As the animal had not been seen, it could not have been frightened off and the train could not have been slackened.

The other animal was killed during the same night, but earlier. The night was dark; there was no fog, however. The lights were burning on the locomotive, which had whistled and stopped, probably both at the same time, as far as practicable.

Nothing shows that the accidents could have been prevented. The burden was upon the plaintiff, in both cases, to prove negligence on the part of the company. We have thus held in the case of Stevenson, 35 A. 498, and see no reason to depart from the ruling there made on the question of omis.

Plaintiff’s main and ostensible hope for recovery seems to be based upon the assumption of a legal presumption of fault and negligence on the part of the defendant company, arising from the fact that it was a trespasser on plaintiff’s lands and should have fenced in its tracks running through the pasture grounds where the animals killed were kept and grazed.

The plaintiff earnestly insists upon the weight of the ruling of the Supreme Court of Minnesota (18 Minn. 434) to show that the company, being a trespasser, is prima fade liable; but that was a case in which the company had commenced to expropriate and had not been invited, encouraged and permitted to build its road and run its trains; in other words, bad' not obtained any voluntarily conceded right of way, formal or implied. (

The Court, nevertheless, there distinctly said; If, indeed, the company was there by plaintiff’s consent, by his leave, it was no trespass, no injury to plaintiff. * * * We do not think the defendant proved the license set up.”

Tn the Vermont case (33 Vt. 314), the Court said that, if the plaintiff had given the company, by express assent or silence, to understand that he did not intend to object to its proceeding with its construction and operation, he could stop neither the work nor the trains.

In the case specially invoked (Minnesota), the fact that the company had commenced proceedings to expropriate repels the idea that the plaintiff had given the authority, or that he had acquiesced in their right of way, and leaves no room for conjecture that if such right had been clearly conceded the matter would not have gone to law.

It is abundantly established by the evidence in the case before us, which was not considered in this Court when the first suit was tried, that the road-bed of the defendant company on which the accidents complained of have occurred, was laid and graded, in other words was built, with the authority, nay, at the instance, of plaintiff’s father, who owned the land at the time and who imposed no restriction on the privilege allowed; further, that since Ms death, which took place in 1880, tracks have been laid and trains run through the same land to the knowledge and without any objection on the part of the plaintiff' and of her legal representatives or agents.

Those circumstances are amply sufficient to clear the defendant company from the charge of trespass preferred against it.

The authorities on this point are indisputable. See St. Julien vs. Morgan’s R. R. Co., 35 A. 924; also, Bourdier & Bellesein vs. Morgan’s R. R. Co., 35 A. 947; Kanaya vs. St. Louis, L. & D. R. R. Co., October, 1882; Reporter XV, No. 7, pp. 213, 214; Mathews vs. St. Paul & S. C. R. R. Co., 18 Minn. 434; 33 Vermont, 314.

As to the other ground, that the company is at fault for not fencing in its track, the authorities likewise show it to be untenable. 15 A. 105; 23 A. 154; 35 A. 499, 696.

The district judge concluded rightly in setting the differences of the litigants forever at rest by a final decree.

Judgment affirmed, with costs.

Manning, J.,

dissents from the approval of the decision in the Stevenson case, and assents to the principle announced in the St. Julieu case.


text:
    No. 9128.
    Board of Councilmen of Baton Rouge vs. C. Crémonini
    louder tho ordinance of the city of "Baton Bouge, authorizing the prosecution and punishment of the owners of houses, after conviction of their tenants for keeping disorderly houses therein, and due notification thereof to such owners or their agents, no prosecution can be maintained against such owners, before conviction of their tenants and previous to notice of the same to them.
    The council of a municipal corporation can provide modes of punishment of offenders against its police ordinances, "by general ordinances affecting all persons alike, hut it is powerless to single out any individual and denounce his trade, occupation or conduct.
    Proceedings against offenders against municipal ordinances must he instituted before a competent tribunal — contradictorily with the accused — and not ewpcvrte by resolutions of the council.
    An appeal from a mayor’s court will not be dismissed for irregularities and deficiencies in the transcript, if the latter contains the ordinance on which the judgment complained was predicated. Such defects cannot be attributed to the fault of the appellant.
    APPEAL from the Mayor’s Court of Baton Rouge. Booth, J.

      G. 0. Bird, City Attorney, for Plaintiff and Appellee.

      Knox & haycock for Defendant and Appellant.
   Motioh to Dismiss.

The opinion of the Court was delivered by

Poché, J.

Defendant has appealed from a sentence of the mayor condemning him to pay a fine of $25, or in default, to an imprisonment of fifteen days.

Appellees urge tlieir motion to dismiss on the ground that the transcript does not contain the ordinance under which the defendant was sentenced. Proceedings intended to secure a revision of this judgment are now before ns for the third time.

In March of last year, we dismissed the suspensive appeal taken therefrom by the defendant, on the ground that the transcript did not contain the city ordinance or resolution of the council on which the judgment apparently rested. 35 A. 367.

Subsequently, we issued a mandamus compelling the mayor to grant to the defendant a devolutive appeal from the judgment complained of.

The present appeal has been returned in obedience to our writ, and the hoard of councihnen of which the mayor himself is a component part, complains of the insufficiency of the transcript. With what grace can the mayor, whose duty it was both under the law and under our writ to return a complete transcript, pretend to attribute the fault to appellant?

In point of. fact the transcript does contain the city ordinances, the resolution of the council and the petition of citizens, on which the mayor founded his proceedings, and rested his judgment against the defendant. The pith of appellee’s complaint is that those documents had not been introduced in evidence or tiled in the trial before the mayor’s court. If it be so, the whole proceeding- was irregular and oppressive. But, be that as it may, the documents in question were called for in our writ of mandamus, and are so certified by the mayor. As we remarked in the opinion dismissing the suspensive appeal, we cannot require as full and complete transcripts from mayor’s courts, as we exact, according to law, from courts of record; as this transcript furnishes the ordinance and other- documents which form the basis of the prosecution instituted against the defendant, and as the laches of the mayor in the confection of the transcript cannot be possibly attributed to the appellant, it becomes our duty to review the proceedings, which were predicated on the documents which are now before us. The motion to dismiss is, therefore, denied. Borde vs. Erskine, 33 A. 873.

On the Mejjits.

The appeal involves the investigation of the alleged illegality of a tine or penalty imposed by a municipal corporation, and it falls under our jurisdiction irrespective of the amount involved.in the contestation. Cons. art. 81.

The charge, under which the defendant was punished, was for setting at defiance and refusing to comply with a resolution of the city council prohibiting him from renting a certain house to women of lewd and abandoned conduct.”

The record shows that, in furtherance of a petition of several citizens, the city council adopted a resolution on the 5th of September, 1882, declaring that a certain house on North street, occupied by lewd women, was a nuisance, and directing that said women be notified to remove from said premises and to abandon their purpose of keeping thereon a disorderly house.

The petition of citizens and the resolution were both silent as to Crémonini, the defendant herein, and the owner of the house in question.

Hence, there was no resolution of the council prohibiting him from renting his house for the purpose denounced in the petition of citizens. It follows, therefore, that the notice communicated to him by the chief of police, under the mayor’s directions, had no foundation in law, and could bear no legal effect.

The city ordinance, on the subject of disorderly houses, authorizes the prosecution and punishment of offenders, by fine or imprisonment, and by closing their establishments.

The ordinance further authorizes the prosecution and punishment, by fine or imprisonment, of the owners of such houses, after the conviction of the inmates thereof, as keepers of disorderly houses, and after notification of such conviction to said owners or their agents.

We understand that the proceedings, thus authorized, must be instituted before the mayor’s court or other competent tribunal, and contradictorily with the accused.

In this case, the persons who are denounced by the citizens in their petition, as keepers of a disorderly house, had not been prosecuted and had not been judicially condemned when the defendant, Crémonini, was arrested and traduced before the mayor’s court. Hence, it'follows that there was no foundatian, such as is imperatively required by the city ordinance, for his prosecution. We, therefore, hold that the penalty imposed against him was absolutely unauthorized and is glaringly illegal.

The city council has the undoubted power to prescribe modes of punishment for the violation of its ordinances and we understand that such power was exercised in adopting the ordinance as to disorderly houses, to which we have hereinabove referred.

But the council can legally pass no ordinance which proposes to single out one individual and to specially prohibit him from doing- any act, under penalty of fine or imprisonment. No one can be condemned withorrt a hearing.

The oppression of this defendant, by the proceedings now under consideration, is even more palpable than the outrageous prosecution, so severely denounced by our predecessors, in the case of Municipality of New Orleans vs. Blineau, 3 A. 688.

We abstain from any expression of opinion touching the constitutionality or legality of the ordinance on disorderly houses, in so far as it purports to affect the owners of property which may be occupied by tenants keeping thereon disorderly houses.

Admitting its full legality and binding effect for the purposes of this case, we find that the mode of proceeding, which it prescribes, has not been followed in the premises by the mayor; that the prosecution against this defendant bad not been jneceded by a judicial condemnation of bis tenants and that, necessarily, be bad not been previously notified of such action; all of which was indispensable to a legal prosecution against him.

The judgment or sentence appealed from is, therefore, annulled, avoided and reversed, and the prosecution against the defendant is, therefore, dismissed at appellee’s costs of the trial below and of the present appeal.


text:
    No. 9115.
    Mrs. M. L. Proctor vs. Mrs. P. L. Hebert, Executrix.
    Where a minor has been emancipated under the provisions of article 385 of the Code, prescription against his right of action against his tutor for a settlement begins from the date of his emancipation and not from his majority.
    APPEAL from the Twenty-third District Court, Parish of Iberville. Talbot, J. ad hoc.

      T. E. Grace and Alex. Hebert for Plaintiff and Appellant.

      Demid N. Barroiv for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

The plaintiff appeals from a judgment sustaining a plea of prescription against her demand for the rendition of an account of tutorship by the legal representative of her deceased tutor.

The only question presented by the appeal is, whether the prescription in question (four years) began to run from majority, or the date of emancipation, the plaintiff having been emancipated under the provisions of Article 385 R. C. C.

Article 362 C. C. prescribes that prescription begins to run from majority. This is a general law and the reason why, under .this law prescription should begin to run from majority is obvious, almost too much soto require explanation. It is because at this period, when the minor reaches the age of twenty-one years, he emerges from all the disabilities that had attended his minority and for the first time becomes clothed with full contracting powers and subjected to all the correlative responsibilities that flow from the attainment of such powers and the possession of such rights and privileges. The law grants him four years within which he has full and ample authority to provoke a settlement with his tutor, touching the administration of his property and the charges of maintenance. If he waits longer than this term, and fails to exercise the right thus accorded to him, the right becomes forever lost to him.

But emancipation, under the article referred to, works a dispensation from the legal disabilities of minority as full and complete as the attainment of the age of majority under the general law. It places the minor, thus freed, on the same plane with the major under the general law and invests Mm with identically the same rights, and subjects him to equal responsibilities. In' other words, instead of leaving the minor to the operation of the general law and making him wait till he is twenty-one years of age, it virtually and in effect fixes and establishes Ms majority at an earlier period of life, that is, at any time when he shall have passed the age of eighteen years. A perusal of the law and the judgment rendered under its authority, leaves no doubt on this point.

For instance the judgment of emancipation in this case reads:

“ It is therefore, ordered, adjudged and decreed that the said Mary Letitia Hebert be and she is hereby fully emancipated and relieved Horn all the disabilities which attach by law to minors, with power to do and perform all acts as folly and completely as if she had attained the age of twenty-one years.”

The question very naturally arises upon reading tMs, why should tin. right of a person who has attained his majority to bring his tutor to account be limited to four years from this event and a longer .time be granted for this purpose to one upon whom, under an exceptional provision of the law, majority has been conferred with all resulting rights by a judgment of a court 9

After due reflection we have reached the conclusion that the law is not guilty of such a solecism. That in fact the operation of the two provisions or articles of the code above cited, afford the most striking illustration of the forced meaning and effect of the trite maxim whose pith is only preserved in the vernacular of ratione cesscmte eessat ipsa lex, for we may reasonably ask why should prescription be governed by the provisions of Article 362 in a case where its very foundation has been removed by the practical operation and working of the special provision of Article 385 of the Code f

Under these views we think the plea of prescription was properly sustained.

•The record shows that the sMt for the account was filed on the twenty-fifth of August, 1882, and that the plaintiff was emancipated on the tenth of January, 1876.

Judgment affirmed.


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

text:
    No. 9124.
    Succession of Joseph Anger.—On Opposition of Richard Humble, Tutor.
    "When there are two distinct immovables in a succession, hotli of which are subject to the same first mortgage, and each subject to diflorent second mortgages, the administrator cannot, by provoking a sale of one immovable before the other, benefit the second mortgagees on the immovable unsold, to the prejudice of those on that sold, by the distribution of the entire price of the latter to the extinguishment of the first mortgage.
    Although the right of the first mortgage creditor to take the proceeds is absolute, order will be made, when the other immovable shall ho sold, to make such distribution of the proceeds thereof as will leave the respective second mortgage creditors in the same position as if both immovables had been sold and the proceeds of both marshaled for simultaneous distribution.
    APPEAL from the Twenty-third District Court, Parish of Iberville, Pope, J.

      Samuel Matthews for the Tutor, Appellant.

      David N. Barrow for the Executrix, Appellee.
   The opinion of the Court was delivered by

Fenner, J.

This succession owned two plantations, known as “Forlorn Hope ” and “Hermitage,” both encumbered by mortgages.

With the exception of a vendor’s mortgage and lien upon the undivided half of “ Forlorn Hope,” P. S. Graves held the first mortgage for about $16,000 on both plantations, constituted by the same authentic acts.

C. P. McCan and others held second mortgages on the “Forlorn Hope,” while opponent, Richard Humble, tutor, held the second mortgage on “Hermitage.”

The widow of Anger and executrix of his will, petitioned for sale of all the property to pay debts, and botli plantations were ordered to be sold.

Pending the advertisement of this sale, it ajipears that certain parties filed a suit claiming ownership of one-half of “Forlorn Hope,” and in view of the damaging effect which this cloud upon the title would produce upon the bidding, the executrix applied for and obtained an order of court staying the sale of “Forlorn Hope.”

The sale of “Hermitage,” however, proceeded and was effected for the price of $12,100, of which $4033 33J was paid in cash and the balance in interest-bearing notes maturing respectively on March 5, 1884, 1885 and 1886.

Thereafter the executrix negotiated an agreement with the mortgage creditors upon “Forlorn Hope,” including P. S. Graves, by which they hound themselves to stay proceedings for foreclosure until December 1, 1883, and to permit her to cultivate the plantation under order of the court, upon conditions:

1. That the proceeds of “Hermitage,” after satisfaction of prior privileges, should be applied to the reduction of the Graves mortgage; and,

2. That the net proceeds of the crop of 1883 should be applied to reduction of the mortgage indebtedness.

In accordance with this agreement, the executrix has filed a provisional account, in which -she has distributed the cash portion of the price of “Hermitage,” $3000, to P. S. Graves and the remainder to law charges and other special privileges, and has also placed thereon the whole of the credit portion of the price, amounting with interest to $9034 62 “to be- applied to payment of mortgage of P. S. Graves.”

The tutor, Humble, opposes this account on the grounds:

1. That his security having failed by the sale of the property and consequent extinguishment of his mortgage, he is entitled, though his debt be not due, to exact good security or immediate payment under Article 2055, C. C.

2- That the proceeds of the mortgaged property cannot be appropriated to payment of general privileges until the movables and other unencumbered property are exhausted.

3. That tile whole proceeds of “Hermitage” cannot be appropriated to the first mortgage of Graves, which affected “Forlorn Hope” equally, but the proceeds of sale of both properties should contribute ratably to the acquittance of said first mortgage.

The judge a qxio sustained the first ground of opposition in so far as to give the opponent tutor an immediate judgment for the amount of his debt, payable in the course of administration, and rejected his opposition in all other respects.

From this judgment the opponent has appealed, and the executrix has also filed answer in this court praying for a reversal of that part of the decree which awards the tutor an immediate judgment for his debt.

The solution at which we arrive of the third ground of opposition will aid in the disposition of the other two, and we will, therefore, consider it first.

It is obvious that if the course of the executrix in attributing the whole proceeds of “Hermitage” to the satisfaction of the Graves mortgage be approved without reserve, a most gross injustice will be done to the opponent tutor.

If the sale of the two plantations had proceeded, as originally ordered, simultaneously, no one would dispute that the proceeds of both would have been marshaled together and the. first mortgage of Graves would have, found satisfaction ratably from the proceeds of of each, leaving the surplus of either to go to the satisfaction of the subsequent mortgages bearing on it.

Can this just and equitable result be altered by the mere fact that, on the prayer of the executrix and for the advantage of the estate, the court saw fit to postpone the sale of “Forlorn Hope? ”

What reason could exist for permitting such a vital change in the rights of parties as to allow the whole proceeds of “Hermitage” to be absorbed by the first mortgage, to the entire destruction of the second mortgage thereon and to the exclusive aggrandizement of the second mortgages on “Forlorn Hopo,” merely because the sale of the latter was postponed ?

We are aware that, under our Code, Article 3404, the plea of discussion cannot be opposed to a special mortgage creditor; a,nd that it has been held by this court that, though the creditor holding a special mortgage bearing on two properties, belonging to different third possessors, remit or release his mortgage on one of the properties, that will not prevent him from enforcing Ms entire mortgage against the other property. Powell vs. Hayes, 31 A. 789.

But no such state of case is presented here.

The Graves mortgage was and remained in full efficacy on both plantations at the date of the mortgagors’ and owner’s death.

The rights of creditor are fixed at the debtor’s death, and no one can, by superior diligence, or by dealing with the executor, or by the executor’s own course, get an advantage over others. Board vs. Lemée, 12 Rob. 243; Boyce vs. Escoffie, 2 A. 872.

It is not a question of discussion opposed to the special mortgage creditor. He is undoubtedly entitled to be paid in full before any part of the proceeds of either property can be touched by any second mortgage creditor. It is a mere question of distribution between second mortgage creditors.

It was the duty of the executor, under ordinary circumstances, to sell both plantations simultaneously and to satisfy the first mortgage, according to law, out of the joint proceeds, thus preserving the rights of the second mortgage creditors on each to the extent of the proceeds remaining for their benefit.

The rights of the latter cannot be affected by the fact that one plantation was sold before the other.

The opponent asks that we should order the proceeds of “Hermitage” to be held by the executor and distribution deferred until all the property be sold, and the creditors shall be ranked and classed according to their legal rights. The difficulty in the way of this lies in the absence of right to restrain the first mortgage creditor in his absolute right to receive the proceeds of sale of the mortgaged property. He has no concern with the older of sale. His mortgage is tota in toto, tota in quaMbetpa/rte. Bagley vs. Tate, 10 Rob. 45.

The proceeds as fast as reduced to cash belong to him and he has the right to take them until his debt be discharged.

We shall effect the same purpose, however, so far as the rights of opponent are concerned, by reserving and recognizing his right, when the “Forlorn Hope” plantation and other property shall be sold, to require such a distribution of the proceeds as will award to him the same amount in satisfaction of his claim as he would have received had the proceeds of “Hermitage” been present for simultaneous distribution.

This clisxioses of the opposition based on Article 2055 C. C. since it does not appeal' that there will be any failure or insufficiency of security; and necessitates the reversal of the immediate moneyed judgment in his favor.

The general privileges and administrative expenses allowed in the account are entitled to payment. It is not made to appear that there are movable or unencumbered property for their payment, undisposed of. They are not, however, entitled to payment exclusively out of the proceeds of “Hermitage,” to the prejudice of opponent; and we shall reserve his rights as to these also in the final distribution.

It follows that the actual distribution of present funds made by the account is not to be disturbed, but without prejudice to opponent’s ultimate rights in the final settlement.

For these reasons as well as for those assigned in the concurring opinion of the Chief Justice, it is, therefore, ordered that the judgment appealed from, in so far as it awards to Robt. Humble, tutor, an immediate judgment for the sum due to him, payable in the course of administration, be now annulled, avoided and reversed, without prejudice to his rights to recover his said debt when the same shallbecome due, or to his mortgage rights, that the said judgment be further amended by reserving and recognizing the right of said Robert Humble, tutor, when the “Forlorn Hope” plantation and other properey of the succession shall be sold, to. require such a distribution of the proceeds as shall secure to him the same amount in satisfaction of his claim as he would receive if the present distribution had not been made and if the proceeds of “Hermitage” and other property distributed in the present provisional account had been present for simultaneous distribution; that in other respects said judgment be affirmed, costs of this appeal to be equally divided between said Humble, tutor, and the succession.

OongukRing Opinion.

Bermudez, C. J.

It cannot be doubted that, where it is sought to enforce a mortgage granted on two or more pieces of real estate, and in the absence of stipulation to the contrary, it is optional with the mortgagee who represents the entire claim, to have the property sold, either in block or separately, for the reason that he can subject one piece only to his claim and if he chose, release the others entirely, and that subsequent mortgages, if any have become such, exposed to that eventually.

It is likewise clear that the mortgagor has also the right to require that the real estate encumbered be divided as described in the act of mortgage and sold accoi dingly, as he has the privilege of pointing out to the sheriff which of his property shall he first seized and sold.

But the exercise of such a right by the mortgagor necessarily must be subordinate to the condition, that no injury or damage shall thereby result to other creditors. Were it not so, it would lie in the power of the mortgagor to benefit a subsequent mortgagee on one piece to the detriment of another mortgagee on other property.

That which the mortgageor himself is powerless to accomplish, neither his syndic, his executor nor his heirs can be permitted to do. They have no greater power to harm his creditors than he himself possesses.

Particularly must this be the case in the present instance, as the tutor could neither resist the orders of court nor give any consent which a mortgagee swi juris could have given, so as in the least to impair the validity and solidity of the conventional mortgage which he claims to have as the representative of the minors. 11 R. 533; 3 A. 664; 6 A. 61, 361; 9 A. 602. I, therefore, concur in the decree.

Note — The other Justices concur in this opinion.


author: Manning, J.

text:
    No. 9144.
    John Chaffe & Sons vs. M. DuBose.
    The pledgee of notes secured by mortgage can enforce the collection of them by executory as well as by ordinary process.
    The pledgee does not need the consent of the pledgor to institute proceedings for the collection of notes pledged.
    Injunction will not lie to restrain executory process for want of authentic evidence of the endorsement of the notes. The remedy in that case is by appeal from the order of seizure and sale.
    "Where the injunction is by the maker and endorser of the mortgage notes, and he alleges, admits, and swears that he did sign and endorse them, and recites that the act of mort • gage expressly enures to the benefit of any future holder of them, it does not lie in his mouth to set up that the endorsement of the notes has not been proved by authentic act.
    PPEAL from the Eighth District Court, Déloney, J. Parish of East Carroll.

      J. M. Kennedy for Plaintiffs and Appellees.
    Defendant in propria persona.

   The opinion of the Court was delivered by

Manning, J.

This is an injunction by DuBose restraining executory process of Chaffe & Sons, and therefore the suit is misnamed. The title should have been reversed.

DuBose owes V. M. Purdy two thousand dollars, divided in equal notes, the last one. maturing in December, 1881, which are secured by mortgage in favor of any future holder of them. The notes are drawn by DuBose in favor of himself and are endorsed in blank.

Purdy owes Chaffe & Sons twenty-seven hundred dollars, divided into three notes, due respectively November 15 and December 15,1882, and January 15, 1883, and to secure them pledged the DuBose notes.

Chaffe & Sons, thus in possession of these notes as pledgees, sued out executory process upon the DuBose mortgage, on November 2, 1882.

The grounds of injunction are four in number:

1. The Purdy notes were not due when the order of seizure and sale issued, and the executory process is therefore premature.

The Purdy notes are not in controversy. The process is to foreclose a mortgage made by DuBose in order to effect payment of his notes, the last maturing note having been overdue nearly a year before the date of the process. But when this injunction was filed on January 17, 1883, the last Purdy note liad matured, and therefore this ground of prematurity did not exist even as to these notes when the injunction issued.

2. That Chaffe & Sons aro not the owners of the DuBose notes, hut merely pledgees.

It is no longer open to question that the pledgee of a promissory note can sue upon it in Ms own name. Bank Lafayette vs. Bruff, 33 A. 624 and oases there cited. The contention here appears to he that the pledgee cannot enforce the collection of the pledged note by ex-ecutory process.

The pledgee of a note is expressly authorized to “take measures to recover it.” Rev. Civ. Code. art. 3170. Whatever suit or process is allowed to óthers for that purpose is permitted to him. For all practical purposes he is the owner of the obligation, Mec. Build. Asso. vs. Ferguson, 29 A. 548, bound to account to Ms pledgor for the surplus, but free to use any legal process for its collection. No textual prohibition of the use of any kind of process exists, and reason does not supplement any. He may proceed via execwtima, all other conditions being-fulfilled, equally as via ordinm'ia.

3. That the process was not instituted by Purdy’s instructions, but rather against his consent as the petitioner was informed and believed-

Tt is of no consequence what Purdy’s wishes were in the matter. If he did not wish measures taken to collect his pledge, he could easily have prevented it by paying his own debt, to secure which the pledge was made. If the pledgor could control his pledgee and prevent his collecting the pledge, or disposing of it after the time permitted, or restrict him in the mode of collecting it, the value and utility of this form of security would vanish.

4. That there is no authentic evidence of the endorsement of the notes.

If this be so, the remedy was by appeal from the order of seizure and sale. Injunction will not lie to restrain the collection of a judgment on the allegation that it is based on insufficient evidence. Taliaferro vs. Steele, 14 A. 656; Abbot & Wilbur, 22 A. 368; Shreveport vs. Floarnoy, 26 A. 709.

But there is the same authentic evidence of the endorsement as of the signature, and DuBose’s petition of injunction expressly alleges and admits that he executed and endorsed the jiotes, and gave the mortgage to secure them in favor of any holder.

The distinction between this state of facts and that in Chaffe vs. Carroll, 34 A. 122, as well as that in Miller vs. Cappel, just decided, is apparent.

The case went off on a general demurrer, or exception of no cause of action, which was properly sustained. The appellant invokes the equity of this Court to uphold him in preventing the wrong about to be done him. He is without equity. He admits his notes are over-due, and that his property is mortgaged to pay them, and confesses he has not paid them. There is no wrong done to a man when his property is sold to pay his just debts. One of the great uses of property is to have wherewithal to pay whatever one owes.

We will not inflict damage for a frivolous appeal. The creditor has his action on the injunction bond.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 9082.
    J. R. Kent & Co. vs. J. F. Mojonier.
    An appellee, personally cited within the year, cannot he heard to say that he was not legally cited and to ask a dismissal of the appeal.
    Sections 2668 and 2669 of the Revised. Statutes, are intended to prevent the use of the name of a person not evidently interested in a Arm and thus inducing a false credit to which it was not entitled. "While they aro designed to prohibit the obtcwiing. they do not forbid the giving of credit. A debtor cannot repudiate a contract of which he retains the fruit.
    Questions of fact only are presented on the main and on the reconventional demands.
    ■\ PPEAL from the Twenty-sixth District Court, Parish of St. .IfL. Charles. Halm, J.

      8. 8. Carlisle for Plaintiffs and Appellees,
    i?. H. Marr for Defendant and Appellant.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff and appellee moves for the dismissal of the appeal on two grounds:

1. That no legal and proper citation of appeal has been served in this cause and that the fault or omission is attributable to the appellant.

2. That there exists no valid legal order of appeal to this Court.

In answer to those objections, it suffices to say, that the judgment appealed from having been signed on March 3, 1883, and the petition for a devolutive appeal having- been filed, the order granted, the bond furnished and the citation personally served — all before the 12th of January, 1884, a mouth and some twenty days prior to the expiration of the year allowed — plaintiff has surely no reason to ask the dismissal of the appeal. Motion denied.

Pleadings.

This is an action for the recovery of the price of a boiler, pump and engine sold defendant, as also for the payment of advances and supplies furnished him, to raise his rice crop; interest, commissions and penalties included; the claim amounts to $3318 19. On the averment of a privilege,_ the plaintiff sequestered the machinery and part of the crop, which defendant attempted in vain to release.

The defendant excepted on the ground, that there did not exist a Arm by the name of J. R. Kent & Co.; that J. R. Kent, as the only representative of such firm, has transacted business under its title, in violation of a prohibitory law and has no standing in court.

The exception having been overruled, the defendant answered, denying any liability and, reconvened, claiming the price of labor furnished and damages alleged to have been sustained, mainly by reason of the loss of his crop for want of proper irrigation, by the fault of plaintiff'.

Called upon to elect between the demand for the price of sale of the machinery and the ownership of the same, for which provision had been made in the alternative, in the prayer of the petition, plaintiff elected the ownership, to credit defendant with the sum aslced for the pump and accessories.

After a protracted trial the district judge gave plaintiff a judgment for $916 19, with interest, at different rates on two fractions of that amount and dismissed the reconventional demand.

From this judgment the defendant has appealed. The plaintiff, far from complaining, by asking an amendment, prays for its affirmance.

On Exceptions.

The law upon which the defendant relies to show that J. R. Kent has no standing in court, to sue in the name of the firm of J. R. Kent & Co., in which no one besides himself is interested, is embodied in sections 2668 and 2669 of the Revised Statutes, which it is not urgent to reproduce here.

Their provisions are borrowed from the New York legislation on the same subject. (Ch. 281, S. S. Laws 1833).

The highest court of that State has had, twice at least, occasion to consider and expound the purpose and scope of the statute and has emphatically announced, that its intent was to prevent the use of the name of a person not interested in a firm and thus inducing a false credit to which it was not entitled and this, on the strength of a name which had been withdrawn or which there was no authority to nse. It was against fraud and imposition which might be practiced upon innocent parties who dealt with the person who transacted business in the name of a party whose interest had ceased, or who never had any in the same, that the statute was directed. Beyond .this, the statute cannot be extended by implication or even by a liberal construction. 83 N. Y. 74; 72 N. Y. 198; 50 N. Y. 314; also, 5 Wheat, 56; 7 Wall. 486; 12 How. 83.

We fully concur with that able court and hold that the object of the law was to prevent the obtaining and enforcing of credit, secured by fraudulent representations, and that it was not designed to prevent the innocent infringer of its prohibition from giving credit and, after it was given and the day of settlement had come, Horn demanding reimbursement, or satisfaction, to the full extent of his rights, from the benefited obligor. It would be, in the highest degree, inequitable and unjust to permit a debtor to repudiate a contract, the fruit of which he retains.

The penalty attached to an infraction of the law could be inflicted, in a criminal prosecution, only at the instance of one wronged by the obtaining of an unfair or undue advantage, procured by false and fraudulent representations, by one clearly in contravention of law.

Whatever the statute and the penalty affixed to its violation may be, we are clear that the penalty cannot be extended to a civil case, where the action is to recover money from one to whom it was lent, or to whom credit was given, who was not deceived and, who lost nothing by his dealings wiih his creditor. J. R. Kent, dealing under the name of J. R. Kent & Co., could induce no one to believe that he was not concerned in the firm. Dwarris on Statutes, 248; Sedgwick St. and Const. Law, p. 73, 250; 9 A. 251; 10 A. 346.

The exception was prop only overruled.

ON THE MERITS.

The claim of plaintiff for $3318 19 was reduced by three items by the district judge: the discount of a note of $2250 furnished for the machinery ($52); the value of thirty-two sacks of rice, received by Kent and not accounted for, ($100), and the cost of the engine and pump taken back by Kent in place of the note ($2250), aggregating $2402, which left a balance of $916 19, for which judgment was rendered.

The appellant contends that the district judge should have credited Mm with four other items, which ought not to figure in plaintiffs’ account.

1. He complains that the item of $78 18, of interest on balance of account, should be reduced to $25 18.

2. He next urges that the item of $15 50, discount on a note of $750, should not be allowed as the note was never discounted and did not pass out of Kent’s possession.

3. He further objects to another item of $112 20 for commission on advances, interest having been charged.

4. Finally, he opposes the last item of $331 02, represented as a penalty or forfeiture of five per cent on 1207 barrels of rice, which should have been and were not shipped; claiming that the judgment appealed from should be cut down by the total of theso different amounts, $512 62, so as to leave, in plaintiffs favor, a balance of only $403 57.

The defendant, as plaintiff in reconvention, avers that plaintiff is indebted unto him in the sum of $432 46, as the price of labor furnished to put up the pump and machinery; as damages sustained by the failure of Kent to enable him to save his crop, to account for part of the crop seized and to take proper care of the articles sequestered. He superadds a counter claim of $16 21 for improper charge to him of the registry against him and his crox>, of the two acts according to which the two notes of $2250 and $750 were issued, the two items aggregating $448 67 — thereby remaining, from his stand point, a creditor of plaintiff for $45 10, and thus extinguishing, entirely, the balance on the judgment.

1. It is clear .that as the note of $2250 must be considered, in consequence of plaintiff’s election, to have had no consideration, the interest of $43 50 claimed should not be alhwed. We fail to perceive how interest should not be charged, however, on the other note of $750, of which that much cannot be said.

2. The item of $15 50 should not be allowed, as the last mentioned note was not discounted by Kent, but remained in his possession and as he claims interest on it.

3. The charge of $112 20 for commission at two and one-half on advances ($44 88) should likewise be denied. The plaintiff cannot be permitted to charge both interest and commissions. 34 A. 895 (7); Succession of Rhoton and authorities there cited.

4. The claim for the penalty or forfeiture should not be countenanced. It does not appear from the contract between the parties* that the defendant was, under any circumstance, bound to ship the 1207 barrels of rice, but only such as would be harvested, gathered, threshed and conditioned for market. The defendant shipped and the plaintiff received, tlxe only rice (393 barrels) coming within the intent of the agreement, which should not be construed and enlarged beyond its real purpose and compass.

We, therefore, find that the defendant is entitled to have stricken from plaintiff’s account the four items aforesaid, which aggregate $503 12, with which the judgment appealed from should have been credited, so as to be for $413 07 only, on the main demand.

As to the claim set up in reconvention, we think that the defendant should not recover, for the obvious reason that, if it be true that Kent was dilatory in furnishing the pump, the defendant has waived what right he might have had by procuring assistance in putting it up. As a necessary consequence, the claim for damages lapses. Nothing shows that plaintiff can be held responsible for the other damages said to have been sustained, by reason of the sequestration. We think the plaintiff is entitled to the cost of registry of the two acts which were designed to secure his privilege on the machinery and on the crop. Such costs are always paid by the obligor.

It is, therefore, ordered and decreed that the judgment appealed from be amended by striking therefrom the allowance of nine hundred and sixteen dollar's and nineteen cents ($916 19) with eight and five per cent on different amounts thereof, and substituting thereto the allowance of four hundred and thirteen dollars and seven cents ($413 07) with eight per cent interest thereon, per annum, from October first, 1879, till paid, as the only amount which plaintiff is entitled to recover from defendant, in this suit, and that thus amended, said judgment be affirmed, the costs of the lower court on the main demand to be paid by defendant Mojonier and those on the recoilventional demand; and those on appeal by the plaintiff and appellee.

ON Application i?oe Reheaiíing.

The last portion of the decree apportioning the costs is misconstrued.

It should, therefore, be made more explicit to dispel all doubts, as to its precise meaning. This can be done -without granting a rehearing.

It is, therefore, amended so as to read as follows:

“ The costs of the lower court, on the main and on the reconven-tional demands, to be paid by defendant Mojonier, and those on appeal to be borne by plaintiff and appellee.

Rehearing refused.


text:
    No. 9114.
    Miller, Lyon & Co. vs. Joseph Cappel and Dudley A. Curry.
    In the proceeding by executory process, the order of seizure and sale must be supported by authentic evidence exclusively.
    Hence, the order issued in favor of a holder of a note made payable to the endorser and transferred by the latter, by blank endorsement, mil be sot aside in the absence of authentic evidence of such transfer.

      A liter if the notarial act recites that the note was made to the order of the drawer and by him endorsed in blank, in which case the note becomes payable to bearer.
    PPEAL from the Twelfth District Court, Parish of Avoyelles. aTsl. Karlin, J.

      Cullom & Coco and F. D. King for Plaintiffs and Appellees.

      Thorpe, Peterman & Thorpe and Thos. Overton for Defendants and Appellants.
   The opinion of the Court was delivered by

Poché, J.

Defendants have taken this appeal from an order of seizure and sale issued on a mortgage note of $4000, executed by them to the order of A. A. Mouton and endorsed .in blank by the latter.

Their complaint is that no authentic evidence was furnished of' the transfer of the note by the payee or endorser and that, therefore, the order was issued without sufficient evidence.

The point is well taken and it must prevail. There is authentic evidence of the execution of the note and of the mortgage, but none to show the transfer of the note and of its accessory, the mortgage. In fact the record contains no evidence whatever in proof of the signature of the payee, A. A. Mouton, without which, even in the via ordi-naria, the plaintiff could not recover judgment on the note.

To justify the order of seizure and sale every mumiment of title, and every link of evidence must be in the authentic form. In such a proceeding the judge can entertain no matter in pais.

Our Code defines the requisites of an authentic act (C. C. 2234) and offers a complete refutation to the argument of plaintiffs’ learned counsel, who confound in their brief, authentic evidence of an endorser’s signature, with proof of the genuiness of the signature.

The question to be met is not whether the signature in the blank endorsement is that of A. A. Mouton, but whether the judge was furnished with authentic evidence of that fact.

That principle of our jurisprudence has been uniformly expounded in that sense, in an unbroken line of decisions running as far back as the earliest days of our judicial history.

In the case of Wray vs. Henry, 10 Martin 222, the court held that the affidavits of the holder of the note and of another person of the signature of the original payee, could not supply authentic proof of such signature so as to justify the order of seizure and sale.

the doctrine which we now reaffirm, with the reasonable hope that the profession will thoroughly understand it, has been recognized in the following cases bearing on the issue herein presented:

French vs. The Mechanics and Traders’ Bank, 4 A. 153; Commercial Bank of New Orleans vs. Susan Poland, 6 A. 477; Tufts vs. Beard, 9 A. 310; Ricks vs. Bernstein, 19 A. 141; Burns vs. Naughton, 24 A. 476; Wood & Roan vs. Wood, 32 A. 801; Chaffe, syndic, vs. Carroll, 34 A. 122; Chaffe, syndic, vs. Carroll, 35 A. 115.

Relying on the case of Mattoe vs. McCrystol, (11 A. 14) plaintiff’s counsel quote the following language from that opinion:

“The execution of the note, its endorsement in blank, and the act of mortgage, importing a confession of judgment in favor of the holder of the note, were all proved by authentic evidence. The exhibition of the note and mortgage by the plaintiff, identified him, as the holder, who by the terms of the contract, was entitled to the order of seizure and sale.”

But we are at a loss to conceive what relief they can expect from that decision, which is one of the leading cases in support of the views which we here announce. The notarial act recites that McCrystol executed the note to his own order and endorsed it in blank. Hence there was authentic evidence of the endorsement or transfer, under which the note became payable to bearer.

In the case of Marionneaux vs. Dardenne, 28 A. 457, the court sustained an order of seizure and sale without authentic evidence of the capacity of the tutrix of the payee’s minor children, and to that extent the case favors the views of plaintiff’s counsel in this case.

But this is an isolated instance, and the opinion of that case is practically overruled in the two cases of Chaffe, Syndic vs. Carroll, 34 A. 122, and 35 A. 115; in which proof was required of the capacity of the syndic, before he could proceed by executory process on a note executed to the order of the insolvent, whose estate he claimed to represent. We find the correct doctrine contained in the dissenting opinion of Justice Howell, and we distinctly overrule the contrary doctrine as announced in the majority opinion of that case.

The zeal and sincerity with which plaintiff’s counsel have pressed their views on this important branch of our practice, and the apparent support wHoIl was afforded them by the case last mentioned and just disposed of, have induced us to mate an extensive review of our jurisprudence on a question of great practical importance, and to thus reaffirm a doctrine which is calculated to greatly enhance the value of commercial paper aud to efficiently facilitate moneyed transactions of daily occurrence.

Our conclusion is that the order of seizure and sale issued in this case was not supported by the kind of evidence which the law requires.

It is, therefore, ordered that the order of seizure and sale rendered in this case be annulled and set aside, and that plaintiffs’ petition be dismissed as in case of non-suit, at their cost in both courts.