text:
    No. 3621.
    William A. Glass v. Alexander Wheeliss.
    Ia this aotiou to recover on a judgment rendered in the city of New York, the defendant set . up a reconventional demand, to which the plaintiff urged‘the plea of res judicata, the same defense having been pleaded before the New York court. The evidence offered, and the law of New York in reference to the judgment showed that the reconventional demand set up here was not before the court of New York, and was not passed upon in the rendition of the judgment. Held that if the reconventional demand set up here was notpassedupon by the court in New York, it was not res judicata there, and could not be so here.
    from the Sixth District Court, parish of Orleans. Oooley, J.

      Wooldridge & Thomas, for plaintiff and appellee. Breaux <& Benner, for defendant and appellant.
   Howell, J.

This suit is brought on a judgment obtained by plaintiff against defendant in the city of New York for the sum of $4609 82, to he paid in silver coin, and $141 80 in legal currency. The answer contains a general denial and a reconventional demand for $1083 75, as compensation for services rendered and expenses paid and incurred in the custody, transportation and recovery of certain specie committed by plaintiff to defendant for safe keeping in Nashville, Tennessee, in February, 1862.

To this reconventional demand the plaintiff opposes the plea of res judicata, the same demand having been pleaded as a counter claim in tbe New York suit. Upon this question the lawyers who represented defendant in said suit testify that at the time thereof the said'claim of defendant was not litigated before, submitted to, non passed on by the court, or any evidence offered, in support of or in opposition to the same; the plaintiff having taken an inquest as apoma default, no evidence of any kind being offered by the defendant; that by the Code-of Procedure of New York in such a case the counter claim is not regarded as before the court, and the judgment upon the merits of the plaintiffs demand is not res judicata as to the counter claim. If not res judicata there, it will not be here. The plea should not therefore prevail.

It is contended, however, on behalf of plaintiff, that the said judgment, construed with reference to the pleadings in said suit, has condemned the defendant as a broker for the amount due on an irregular deposit, and his status as a simple debtor is fixed by the judgment, and he will not be allowed to impeach it and set up a claim for compensation as depositary or mandatory. Admitting the legal proposition here implied or presented, it can not avail, as there is evidence without objection, showing that the coin was delivered in boxes to defendant to be protected from capture by the Federal forces, and that in the effort to do so, he removed it with his own effects to New Orleans, where eventually it was taken possession of by the general commanding, and that in its recovery as well as removal, expenses to the’ sum of $586 25 were incurred and actually paid by the defendant. To-this sum he is entitled. But to the charge for personal services he is not entitled, ño stipulation therefor being proven. B,. C. C. 2960, 3022.

It is therefore ordered that so much of the judgment as rejects the reconventional demand of defendant be reversed, and that on said demand there be judgment in favor of defendant against plaintiff for $586 25 with interest thereon from judicial demand thereof, to be deducted from the sum of $4609 82 in favor of plaintiff, and that in other respects said judgment be affirmed. Costs of appeal to be paid by plaintiff.


source: Caselaw Access Project

author: Wyly, J. Howis, J.

license: Public Domain

text:
    No. 2073.
    Levy & Dieter, in Liquidation, v. Du Bois, Lowe &. Foley.
    Parol evidence that has hoen offered by the creditor and received by the judge a quo without objection, to prove that a third person has promised to pay his debt, will be disregarded by the Supreme Court in examining the case on appeal.
    from the Sixth District Court, parish of Orleans. Ooolexj,. J.

      Boselius & Phillips, for plaintiffs and appellees. B. & R. Marr, for defendants and appellants.
   Wyly, J.

The plaintiffs allege that the defendants, joint owners of the steamship Minnetonka (a vessel engaged in carrying personal property for hire), and commercial partners so far as the transactions of said steamship are concerned, are jointly and severally indebted to them $20,808 52, the amount of advances made'to said vessel by Alpheus Hardy & Co., of Boston, at the instance and for the benefit of the defendants, which said sum the plaintiffs were compelled to pay as sureties of tlie defendants, who neglected to pay said debt. They prayed; judgment against each of the defendants in solido for said amount, with legal interest thereon from the twentieth December, 1867, and costs.

The defendant Foley answered separately, pleading a general denial.

He pleads, also, that the Merchants’ Towboat Company of New Orleans, a corporation established in accordance with the laws of the-State of Louisiana, was the owner, in its aggregate and corporate capacity, of one undivided third of the steamship Minnetonka, of which the other two-thirds were owned by Lowe and Du Bois. '

That the stock of the Merchants’ Towboat Company was divided into sixty shares, oí $500- each, of which respondents’ firm, Thomas & Foley, owned originally twenty-two shares; and plaintiffs, Levy & Dieter, owned fifteen shares; the other shares being owned by other parties, all living in New Orleans, whose names and the number of shares held by them respectively are set "out in detail.

That after the date of the act of incorporation, Thomas & Foley sold seven of the twenty-two shares originally owned by them, and thenceforth said firm owned fifteen shares, the same number aB held and owned by Levy & Dieter; and this was the condition and ownership of the stock at the date at which the Company became the owner of the one-third of the Minnetonka.

That when it became necessary to register the vessel at the Customhouse at New Orleans, respondent, whose firm of Thomas & Foley were managers of tiie Merchants’ Towboat Company, desired to have the registry made in the names of Lowe and Du Bois and the Merchants’ Towboat Company; but for convenience, and after the matter had been canvassed and was well understood at the Customhouse, the registry was made in the names of Lowe and DuBois and respondent, respondent representing and acting for the company, all of which was well known to and understood by the stockholders and by Levy & Dieter specially.

That Levy & Dieter have sold the Minnetonka and received the price, and have also collected and received all the earnings of the vessel, for no part of which have they accounted to the Merchants’ Towboat Company. That respondent has no knowledge whatever of the account upon which the present action is brought, nor of the state of accounts between Levy & Dieter and the owners of the Minnetonka. But he alleges that Levy & Dieter can in no event claim of him individually, nor is he liable in any manner whatever to Lievy & Dieter in solido, for any claim or demand which they may have or pretend to have against the steamship) Minnetonka ór her owners.

The court gave judgment against the defendants in solido for the amount .claimed, and the defendant Foley has appealed.

Our attention is directed to two bills of exceptions taken by the defendant, Foley, to the ruling of the court in rejecting a certified copy of the notarial act of incorporation of the Merchants’ Towboat Com-. pany, and certain parol testimony offered by him to prove that one-third- of the steamship Minnetonka belonged to the Merchants’ Towboat Company; that Levy & Dieter were stockholders, holding as many shares of stock of said company as Thomas & Foley; that Thomas & Foley were managers of said company; that the registry of the Minnetonka at the Customhouse, in the name of Foley for one-third of said vessel, was for the Merchants’ Towboat Company, and it was so registered for convenience by him as manager; and that the liability of the defendant Foley toward plaintiffs was only such as results legally from the fact that the firm of Thomas & Foley were stockholders and managers of said Merchants’ Towboat Company.

The court refused this evidence for the reason that the plaintiffs sue as subrogees of Alpheus Hardy & Co., claiming all their rights; that as to Alpheus Hardy & Co., the defendant, Foley, having registered the vessel in his,own name, could not deny the fact. He held himself out to the world as one-third owner, and Alpheus Hardy & Co. acted upon the information contained in the registry. That testimony diminishing the liability of the defendant Foley, which would not be admissible against Alpheus Hardy & Co., can not be admissible against the plaintiffs asserting the rights of Alpheus Hardy & Co., to which they claim to be subrogated by operation of law.

We think the court did not err in rejecting the evidence.

In. advancing to the vessel, Alpheus Hardy & Co. gave credit to the owners ; they had the right to presume that Foley was the owner of one-third, because he appeared as such in the registry at the Customhouse; besides, they held his power of attorney authorizing them to sell his undivided third of said vessel.

If the allegation of the plaintiffs be true, that they were the sureties of the defendants and were compelled to pay the debt due by the latter to Alpheus Hardy & Co., they ought to receive the amount owing by the defendants, and which they were compelled to pay.

From the evidence, we are satisfied that defendants were liable in solido on the twentieth of December, 1867, to Alpheus Hardy & Co. for $20,656 85, for advances to the steamer Minnetonka, a common carrier; and that the defendant, Foley, having- held himself out to them as part owner, was liable as owner.

A fair interpretation of the evidence of Alpheus Hardy, Joshua W. Davis and A. D. Dieter, which was received without objection, leaves no doubt that the plaintiffs were bound to Alpheus Hardy & Co. as the sureties of the defendants. Having advanced a large amount, for which they held a bottomry bond on said vessel, signed by the defendant, Foley, as part owner, they consigned it to Alpheus Hardy & Co., and we are satisfied they guaranteed the payment of such advances as Alpheus Hardy & Co. might make in behalf of the owners.

There is no doubt that the owners were advised of the advances made by Alpheus Hardy & Co., and that they assented thereto.

As to the objection that, under the act of 1858, parol evidence shall not be received to prove any promise to pay the debt of a third person, we will remark that if this statute were applicable to this case, the parol evidence was received without objection, and we will give it effect.

We are satisfied that the plaintiffs, paying the debt due Alpheus Hardy & Co.,. as sureties of the defendants, became thereby subrogated to the rights of the former against the latter, and that they are ■entitled to judgment for $20,656 85, with five per cent per annum interest thereon from the twentieth of December, 1867.

This amount is proved to have been paid. The plea of usury was not set up in the answer, although it is urged in the brief.

The other defenses, set up only in the brief of the appellant, we will not notice.

It is therefore ordered that the judgment herein as to the defendant Z. Foley be reduced to $20,656 85, and as thus amended that it'be affirmed.

It is further ordered that the plaintiffs pay costs of this appeal.

On Rehearing.

Howis, J.

In the case of Merz v. Labuzau, 23 An. 747, we had occasion to decide that the law of 1858, which declares that parol evidence ■shall not be received to prove any promise to' pay the debt of a third person (R. S. 1870, s. 1443) must prohibit the court from giving any effect to such evidence, even if received without objection.

The plaintiffs in this case alleged that Alpheus Hardy & Co. made ■ advances and furnished supplies to the vessel of defendants, but were unwilling to do so, except upon the previous agreement of plaintiffs to be securities for the reimbursement of the same; that they became, such securities, and as such were obliged to pay the debt, and having paid it, they claim to have been legally subrogated and to have a right to recover it from defendants.

There is no written evidence in the record to prove this promise by the plaintiffs, and therefore nothing to support the allegation that they were bound to pay the debt, and being bound, were by the fact of payment legally subrogated. .And see also Graves.a. Scott, 23 An. 690.

We think that justice requires the cause to be remanded; and we will take occasion to say that we do not think the appellant, Foley,, can be held in any event for premiums of insurance not specially authorized to be paid for his account.

It is ordered that the judgment heretofore rendered by ns be set aside. It is now ordered that the judgment ot the lower court be reversed and the cause remanded for a new trial, appellees to pay-costs of appeal.


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

text:
    No. 3658.
    Succession of Marie E. Bernard, Widow of Andre LeBlanc.
    I'lie parish court is without jurisdiction, rations mater ice, to pass upon a claim against an. estate for supplies furnished, whore the amount claimed is above live hundred dollars.
    A document required to bo stamped with an internal revenue stamp is not admissible iffi evidence if it lias not the amount of stamps upon it at the time it is offered. In such a case the judge is prohibited, by the act of Congress of 1865, from allowing the stamps to be placed upon it; but the revenue collector of the district may cause it to bo stamped... provided tho penalty of fifty dollars is paid, which the law imposes in such cases.
    PPEAL from the Parish Court of Lafourche. Josh Nicolas, Parish Judge.

      A. F. and Olay Knohloch, lor opponent and appellant j F. W. Blalce and Louis Bxish, for the succession.
   Ludeling, C. J.

Mario E. Bernard died in the year 1868, leaving-three heirs, viz: Mrs. Modeste Aubert, Miles T. Bernard and Mrs. J. T. Ledet.' On the third of December, 1870, the administratrix filed a final account and a proposed distribution or partition of the funds among the heirs. Oppositions were filed by heirs and creditors.

We think the several sums, which it is contended should be collected by the lieirs, were not donations, but dations en pai&ment, made-by their mother on account of the succession of their father. But, whether donations or not, it would seem that like amounts were given-to eaoli of the heirs.

The claim of Mrs. Ledet against the succession for moneys and supplies furnished and services rendered to the deceased, amounting to-$1270, being disputed by the succession, the parish court had no jurisdiction, ratione material, to act on the claim, and the plea to the jurisdiction siiould have been maintained.

The share of M. T. Bernard is claimed by Mrs. Aubert, under & private act, not recorded and unstamped at the time it was offered in evidence. The same interest is claimed by Xavier jMeyer, who had it. seized and sold under an execution against M. T. Bernard, subsequent, to. the transfer, made to Mrs. Aubert. Xavier Meyer opposes the account, and proposed distribution of the funds,.on the ground, among others, that the share of M. T. Bernard thereto should be paid to him-

When the unstamped private act was offered in evidence, it was objected to,'on the ground that it was utterly null and void, being unstamped. The court a qua permitted the attorney to place a stamp upon the document, in the presence of the court, and then admitted it in evidence.

We think the judge a quo erred' in permitting the stamp to be affixed, and in receiving the document in evidence. The act was dated eleventh of May, 1868. The act of Congress, dated thirtieth of June, 1864, decares that “ no deed, instrument, document, writing or paper, required by law to be stamped, which has been heretofore signed or issued without being duly stamped, or with a deficient stamp, nor any copy thereof, shall be recorded or admitted or used as evidence in any court, until a legal stamp or stamps, denoting the amount of duty,shall have been affixed thereto, etc.; * * * and the person desiring to use or record any such deed, instrument, document, writing or paper, as evidence, his ageut or attorney is authorized, in the presence of the court, etc., to affix the stamp,” etc. Brightly’s Dig. 265, s. 257.

This section of the act.of 1864 only applies to instruments made or executed belore the thirtieth of June, 1864, and therefore could not apply to the act iu question; which is dated eleventh of May, 1868. The provisions of the act'of 1865, s. 1, declare that each’“instrument or paper, bill, draft, order or note, shall be deemed invalid and of no .effect;” * * provided that the party having an interest in the same may have the stamp affixed by applying to a collector of the revenue and paying the penalty of fifty dollars and the necessary stamp duty, with six per cent, per annum interest thereon from the date of the instrument; aud then the instrument shall be deemed valid as if originally stamped. This the party offering the act has failed to do ; and we think the creditor had a right to seize and sell his interest in the succession, inasmuch as the private act had no legal effect until the stamps were affixed according to law.

Besides this, the act specifies no price or consideration. It states only “for value received.” And further, Mrs. Aubert is estopped from attacking the sheriff’s sale, as she assented to the same by her silence and acquiescence, when she should have asserted her rights if she had any. The notice of the seizure of the interese of M. T. Bernard was served upon her, as administratrix of the succession of Mrs. Bernard, and she took no steps to stop the sale or to notify the sheriff or purchasers that she owned said interest.

. The judgment of the lower court' seems to have done substantial justice between the parties.

It is therefore ordered and adjudged that the judgment be affirmed, and that the' appellants pay the costs of appeal.

On Rehearing.

Taliaferro, J.

A review of the case does not induce us to change the decree already pronounced. The principal point urged in the application for the rehearing is, that there are errors of calculation to the prejudice of Mrs. Ledet, in the estimate, forming the basis of the judgment in the court below amending and approving the account of the administratrix. We think the opponent has not shown that there are such errors of calculation.

It is therefore ordered that the judgment rendered by this court remain undisturbed.


author: Wyly, J.

text:
    No. 2756.
    Henry Peychaud, Commissioner, v. Everett Lane.
    The general denial admits the capacity of the plaintiff. A stockholder in an insurance company can not bo heard to urge as a defense to a suit brought against him on his stock note, by the creditors through their representative that the charter has been illegally changed, because no act on the part of the stockholders can defeat the rights of the creditors of the corporation.
    * PPEAL from the Fourth District Court, parish of Orleans. Théard, XX J..

      A, & P. Robert, for plaintiff and appellee. Lacey & Putter, for defendant and appellant.
   Wyly, J.

The defendant appeals from the judgment for $750, being twenty per cent, on his stock note obtained against him by the plaintiff as commissioner appointed to liquidate the affairs of the corporation known as the Great Southern and Western Life Accident, Marine and Fire Insurance Company, the defendant being a subscriber for fifty shares of its stock.

The defense is the general denial, and the averment that since the defendant became a subscriber to the , capital stock of the Great Southern and Western Life and Accident Insurance Company, and without his Icnowledge and consent, the charter of said company had been - illegally altered and amended; that the property and assets of the company had been improperly disposed of, and that by these and other unlawful acts of the company he had been forever released and discharged from all liability on the note aforesaid, and as a stockholder of the company. ■

Defendant also filed a supplemental answer, and therein set up for further special defense that the stockholders’ meeting, held on the eighteenth May, 1866 (at which it is pretended that the charter of the Great Southern and Western Life and Accident Insurance Company was amended), was absolutely null and void, for the following reasons, to wit: no notice of such meeting was given to the stockholders. If notice was given, it failed to set forth the object of the meeting; the notice was not servedpersonally or .at domicile, in accordance with law; a reasonable time was not given, nor was a majority of the stockholders present; the votes cast at the meeting by proxy were null and void, and the meeting illegal and. without effect, because the law did not authorize a proxy to vote for an amendment of the charter, and no .authority was ever given to said proxies by any special power ot attorney or otherwise; and furthermore, and finally, that thp number of votes required to effect a valid change of the original charter was not given. '

The general denial admits the capacity of the plaintiff. That the defendant owes the corporation the stock note, upon which the contribution of twenty per cent, is demanded to pay debts, is not disputed > besides this, the note is in evidence. No act or contract on the part of the stockholders can defeat the rights qf the creditors of the corporation, who are represented by the plaintiff in his fiduciary capacity. So far as the creditors are concerned, it is not in the power of the stockholders to liberate any one of their number from his obligation to pay the full price of the shares subscribed for by him. 10 Rob. 440.

So far as the irregularity of the amendments to the charter are concerned, we will remark that if such a defense could be entertained in the present action, it would not benefit the defendant; because in a notarial act he formally ratified and approved of the last amendment, and if any objection be had to the prior amendment it should then have been urged. We agree with the learned judge a quo that this ratification of the last amendment amounted to a tacit recognition of the one preceding it.

This case is like the one presented by the same plaintiff against J. B. Hood, lately decided, where the latter was condemned to pay the amount demanded.

There is no force in the other objections set up by the defendant.

Judgment affirmed.


text:
    No. 2762.
    City of New Orleans v. Robert P. Smith and Thomas L. Maxwell, Sheriff.

      Á. judgment creditor who accepts a warrant on the treasury of the city of $Tew Orleans, which, when paid, is to operate an extinguishment of the judgment, must return, or offer to return, the warrant before he can proceed farther in its execution. If the judgment creditor has failed to return the warrant, hut has attempted to collect it, then and in such case an injunction will lawfully issue, restraining the execution of the judgment.
    from the Fifth District Court, parish of Orleans. Leaumont, J.

      Geo. S. Lacey, City Attorney, for appellee; Alexander Walker and James Lingan, for defendant and appellant.
   Wyly, J.

This is an injunction sued out-by the plaintiff to restrain the-execution of the writ issued by the defendant, Robert P. Smith, to enforce the collection of a balance of $1416 57 alleged to be due on a judgment which he recovered against the city of New Orleans. The ground for the injunction is, a warrant has been given to the defendant for this balance, which novated the debt, and if the warrant has not been paid, the defendant has not returned nor offered to return it to the plaintiff.

The court perpetuated the injunction, and the defendant appeals.

Novation being never presumed, it can not be implied, from the fact that the city gave her judgment creditor a check or warrant for the balance due on the judgment. It appears, however, that when payment of the warrant was refused by the treasurer, the defendant never returned or offered to return it to the city.

On the contrary, it is shown that he transferred it to one Charles W. Frost, who sued out upon it and other warrants a mandamus in the Sixth District Court against Mount, treasurer, and obtained judgment in his favor, making the mandamus peremptory. Having thus disposed of the' warrant, the defendant has no right to execute the judgment for the satisfaction of which it was given.

In order to exercise his rights resulting' from tile judgment, he must return or offer to return the check or warrant given in satisfaction thereof.

He will not be permitted to transfer the warrant, and after judgment has been rendered thereon against the city in favor of Frost, to proceed to the execution of the judgment, in satisfaction of which the warrant was given to him.

In addition, we will remark that, since the appeal has been taken, the Legislature has passed a law prohibiting the issuance of the writ offi. fa. against the city, providing another mode of satisfying judgments against it. Act seventeenth of March, 1870, City v. George Ruleff, 23 An. 708.

Judgment affirmed.


author: Wtly. J.

text:
    No. 2415.
    D. W. McCranie et als. v. M. N. Wood.
    ‘In this cause the evidence shows that defendant made a contract with plaintiffs, all residing within the rebel lines of military occupation during the late war, whereby he was, with his steamboat, to transport their cotton from the different plantations where it was then, lying, to such other place as the defendant might deem safe from the casualties of the war, for which ho was to have one-fourth of all the cotton saved. Defendant performed his part of the contract by transporting large quantities of cotton to other points then deexnod safe. But in the progress of the" war the cotton thus removed to its new locality fell directly within the lines of active military operations, and was cither stolen or destroyed by fire. The owners now bring suit against "Wood, the contractor to remove it, either for the cotton or its value.
    Held, that it being shown that Wood had performed his part of the contract as far as it was in his power; that the cotton was destroyed or stolen by an overpowering force in time of war, which he was unable to resist, he was not legally liable for the cotton, nor its value.
    from the Fourth District Court, parish of Orleans. Théard, J.

      Edward Phillips, for plaintiff and appellant. Clarice <& Bayne, for defendant and appellee.
   Wtly. J.

The plaintiffs allege that in May, 1862, they shipped oh the steamboat Red Chief, of which the defendant, Wood, was master and owner, one hundred and six bales of cotton, which the said Wood agreed to deliver at the port of New Orleans, “or such other port as the said shippers might think, as soon as the war which was then raging should terminate, until which time he was to take care of and keep said cotton safely, for which service he was to retain one-fourth of said cotton;” that said cotton was taken by said Wood on board of said boat in the Atchafalaya river and carried away by him, and he has failed to return the same at the port of New Orleans, as they have requested him to do, or to account for the same in any way; that lie has fraudulently disposed of it for his own benefit and advantage; and that the value of said cotton' at the time it should have been delivered "was $250 per bale.

. The prayer of the petition is for judgment against the defendant for ■$19,875 and interest.

The defendant pleads the general denial, admits that lie was master ■of the steamboat Red Chief at the time said cotton was taken on board, but avers that it was exposed to imminent danger of loss and destruction by burning, which was then extensively carried on in that region by parties acting, or pretending to act, under the authority of the so-called Confederate government j that plaintiffs and others desired this respondent to receive their cotton on board said steamer, and to convey it to such place or places of safety as in his judgment might be found, agreeing to give him one-fourth of said cotton that might be ■saved; that he did, to the knowledge, request and satisfaction of said plaintiffs, carry the same to Cow Island, in Bayou Flagon, a secluded place, and there store the same according to his best ability; that he ■exercised all the care and diligence of which he was capable in preserving the same ; that it was taken by overpowering force, and either run off or destroyed.

The respondent specially denied that he ever used or converted a single pound of said cotton, and he avers that the charge is maliciously made against him by the plaintiffs.

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

We think the evidence fully sustains the defense.

The plaintiffs were anxious to save their cotton from being burned ; they gave it to the defendant to be conveyed to such place of safety as he might find, and there to be kept till the war terminated, and then to be brought to New Orleans, he receiving one-fourth thereof for his .services.

Owing to the condition of the country in 1864, we think the defendant could not have prevented the parties who got the cotton from ■taking it.

The place where it was stored was at the time probably as safe as any other — at least the defendant thought so. It is proved that he never converted or appropriated the property, and that all the cotton, in that region was burned or stolen during the war.

The defendant, who was examined as a witness, states: “ I was-captain of the Eed Chief in May, 1862; was in the Atchafalaya with the Eed Chief at the time when Bennet B. Simmes came to me and proposed to give me a load of cotton to take to some secure place wherever I chose, and to keep it until the close of the war, and then (if saved) to be delivered to merchants as per bill of lading. I received from various parties five hundred and ninety-four bales upon the same terms. I was to receive one-fourth of the cotton, if I saved it and succeeded in getting to New Orleans with it, there to be delivered to different consignees. I carried the cotton into Catahoula parish, on an island in Catahoula Lake, named Cow Island, on Bayou Plagon, which empties into the lake. This was as secure a place as I knew of in the-State, and the cotton would have been kept safe had it not been stolen.

‘‘1 employed a man to look after it as long as the state of the country would permit. His name was Wilson, and he wrote to me occasionally concerning it. I went once to see it with the steamboat, with the intention oí removing it, but after getting there and seeing the condition of things, I changed my notion; because Cow Island was a secure place, and the bagging being loose, the cotton might have been destroyed in removal. At the time I took this cotton bn board, cotton was -being-burned in the neighborhood. I had three hundred bales of cotton ob Little Eiver about twenty miles below Cow Island. This cotton was. my own property, and was burned by order of General Walker of the Confederate forces. I had other lots above, on Little Eiver, all being-my individual property ; one of these lots was burned and the other two were stolen.
“ I carried a great deal of cotton up Little Eiver for other parties, none of which was saved, so far as I know.
“Very little cotton on Little Eiver was burned; most of it was stolen about the time of General Banks’s raid.
“The cotton in controversy was stolen about the time of this raid, as no one could get,into the country, and if I had had a thousand men they could not have protected this cotton ; there was a great deal of burning and stealing at this time. It was unsafe to travel through the country jayhawkers and thieves abounded. I have never sold nor taken away, nor received a pound of this Cow Island cotton. I exercised all the-care in my power for its protection. * * * * I was asked to take the cotton on board the Eed Chief to save it from destruction. A portion of the load was to have been burned the next day — a. portion having been hauled out for that purpose.”

Judge Merrick was also examined as a .witness. He states : “ That he was on the Atehafalaya at his plantation, in April and May, 1862. Knows that there was great anxiety on the part of the cotton planters relative to the burning of their cotton, as Captain Brown, in that heat, and Captain-, in the adjoining beat, said they had instructions to burn cotton. Witness conferred with Brown to induce him to defer burning cotton, and planters were very anxious to get their cotton removed by steamboats to some safe place. Witness saw the Red Chief lying in the Atehafalaya; thinks he saw her when she caitíe up from Gen eral B. B. Simmes’. Witness sent off some cotton, say twenty-six bales, by the Red Chief the same trip. It was to be taken up Little River by Captain Wood, and he was to take it to some place which he considered safe, and to be kept till the close of the war, when he was to bring it to New Orleans for sale; and he was to have one-fourth for his trouble in taking it to a' place of safety and bringing it to New Orleans after the war. I understood he was to-take my cotton on the same terms he took the cotton for the other parties. * * * My understanding, however, was that my cotton was to be taken on the sam'e terms as that engaged by General Simmes for, I think, McRea and others; this I feel quite sure of. My understanding was that Captain Wood was to take the cotton to some place which he thought safe, and take reasonable care of it. I did not suppose him responsible for casualties, and I have made no demand on him for payment. A great deal of cotton was burned in the adjoining beat about this time, or a little later, and some in this beat.”

. After fully examining”the evidence, we have concluded that the facte stated by these two witnesses disclose the true state of the case. The country was in a state of war, and the port of New Orleans was occupied by the national forces at the time the contract was made between the plaintiffs and the defendant in relation to the cotton, which was in rebel lines. The services of the defendant and his boat were employed in the desperate effort to avoid the loss and to save, if possible, the cotton from the casualties of the war — the defendant, by the contract, being made a partner to the extent of one-fourth of what he might save.

From the evidence we are satisfied he acted in good faith, and did for the plaintiffs the best he could under the circumstances, it being no part of his contract to insure against the casualties of the war. As all the cotton in that region of country was destroyed or stolen ; as lawlessness and violence prevailed, we believe- it was -impossible for the defendant to save the cotton in. which he was interested as a partner to the' extent of one-fourth; and therefore conclude it will' be against law and good conscience to condemn him to pay what is demanded by the plaintiffs.

The principles of the law of common carriers is not applicable to 'a. case like this.

Judgment affirmed.


text:
    No. 4016.
    State of Louisiana, through S. Belden, Attorney General, on the information of Wm. George v. Board of State Assessors, Jack Wharton and others. State of Louisiana ex rel. Wm. George et als. v. James Graham, Auditor. State ex rel. Jack Wharton v. James Graham, Auditor. (Consolidated.)
    'TIi© commission of a tax collector who has not been confirmed by the Senate within the time proscribed, expires on the third Monday after the meeting of the next General Assombly, and the office becomes vacant, and such person so appointed, imt who has not been confirmed, can not thereafter maintain a suit under the Intrusion act against another person who has been appointed by the Governor to fill .the the vacancy. Nor can such person whose office has become vacant by tlio non-action of the Símate maintain a mandamus against the Auditor of Public Accounts to compel him to warrant in l'avor of such defunct officer for an advance allowed by law to tlie Assessor, because the office which he holds is vacant as to him, and he has no right to the advance allowed the lawful officer.
    from the Eighth District Court, parish of Orleans. Dibble, J.

      JE. Mlleul and J. D. Howard, for relators. S. Belden, Attorney General, for respondent.
   Wyly, J.

The first case is a proceeding under the intrusion act to have Jack Wharton, J. W. Swords, II. Harris, B. P. Blanchard, J. W. Fairfax and C. W. Ringgold declared usurpers and intruders into the offices they occupy, to wit: the offices of State Assessors for the city of New Orleans, and to have Wm. George and the other persons named in the petition declared lawfully entitled, to said offices. The court rejected the demand and decided that the respondents were entitled to the offices in dispute. It appears that Wm. George and his associates were appointed State Assessors in March, 1871, for a term expiring on the first of January, 1873, according to section 10, act No. 42 of the session of 1871 — the Legislature not being in session at the time of said appointments.

It also appears that the succeeding session of the General Assembly, the session of 1872, adjourned without confirming said appointments.

Article 61 of the constitution provides that: “The Governor shall have power to fill all vacancies that may happen during the recess of the Senate by granting commissions, which shall expire at the end of •the next session thereof, unless otherwise provided for in this constitution j but no person who has been nominated for office and rejected by the Senate, shall be appointed to the same office during the recess of the Senate.” “Whenever a vacancy occurs in any office, State parish or municipal, in this State, now existing or which may hereafter be created, from death, resignation, or from any other cause whatever, the mode of filling which is not provided for in the constitution, all such vacancies shall he filled, if they be State or parish offices, by appointment by the Governor, with the advice and consent of the Senate, which appointment shall bp for the entire unexpired term of such vacant office. If the Senate he not in session at the time the appointment is made, the vacancy shall be filled by appointment by the Governor, which appointment shall expire on the third Monday after the meeting of the next session of the General Assembly thereafter, unless the time for which the vacancy exists expires sooner; and if the time of such vacancy has not expired, it shall then be the duty of the Governor to fill such unexpired vacancy by appointment, by and with the advice and consent of the Senate; and if it be a municipal office, the vacancy must be filled by appointment by the Governor for the unexpired term of the person whose office is so vacated.” Revised Statutes of 1870, section 2606.

The office in dispute was not created by the constitution. The ■section of the Revised Statutes of 1870, just quoted, must, therefore, ■determine the duration of an appointment to. a State or parish office made by the Governor during the recess of the Senate. In express terms the law provides that such appointment shall expire on the third Monday after the meeting of the next session of the General Assembly thereafter.”

Before the first day of February, 1872, the third Monday of the next General Assembly had passed; consequently, the appointments of Wm. George and the other persons named in the petition expired. The Governor had the right to fill the vacancies in these offices by the appointment of Jack Wharton and the other respondents in March, 1872.

These respondents are not intruders and usurpers as alleged in the petition.

Whatever right Wm. George and the other persons named in the petition had to these offices ceased with the expiration of their appointments, on the third Monday of the session of the General Assembly of 1872. The judgment in this case is therefore affirmed.

The second case is a proceeding by mandamus to compel the Auditor to issue to Wm. George, H. Heidenhain, J. Mansion, H. L. Rey and J. J. Gutierrez, each a warrant for $1000, pursuant to the forty-ninth section of act No. 42 of the acts of 1871, these relators alleging that said amount was, on the first of April, 1872, due them as State Assessors for the city of New Orleans, by the provisions of said act.

The statute relied on does not support the demand of the relators. It allows an advance on the salary of each of the Assessors of $1000 on the first day of April, and also a like advance on the first day of July of each year, to be credited on the final settlement of their accounts for the assesment of that year. It is not pretended that the relators have undertaken the assessment of- the city of New .Orleans for the year 1872 ^ and we have just shown that their appointments expired and their successors were appointed before the first of April, 1872. Why they have seen fit to claim the advance provided by law for the assessmentof 1872, under the circumstances stated, we can not imagine. Not having made the assessment of 1872, and not being authorized to make it by reason of the expiration of their appointments, the relators are wholly without right to collect any part of the salary therefor. To contend that they are entitled to the advance allowed by section 49 of act No. 42 of the acts of 1871, on an assessment which they have not attempted to make, and which they were wholly unauthorized to make, is simply absurd.

The judgment dismissing the demand of the relators is therefore affirmed.

The third case is a mandamus sued out by Jack Wliarton, State Assessor for the city of New Orleans, to compel the Auditor to issue, to him his warrant for $1000, an advance on the assessment of 1872, pursuant to section 49 of act No. 42 of the acts of 1871.

The court made the mandamus peremptory, and we think the judgment is correct. We have seen that the relator, Wharton, was legally appointed State Assessor for the city of New Orleans in March, 1872. As such, he is charged with assisting in making the'assessment of 1872. The plain provision of section 49 of act No. 42 of the acts of 1871, on which his proceeding is based, allowed .the relator an advance on his salary on the first of April, 1872, of $1000.

The court did not err in rendering the mandamus peremptory. The judgment is therefore affirmed.


author: Howe, J. Wyly, J.,

text:
    No. 3690
    Thomas McKnight v. The City of New Orleans.
    The city of New Orleans having acquired the Waterworks hy purchase from the Merchants’ Bank, under a provision of the charter ot the bank, has now full control of the hydrants in the streets; and as she has full control of the streets as public highways, she may manage, the distribution and disposition of the water that flows through the hydrants and thoroughfares in such a way as to he of the greatest advantage to the inhabitants'of the city. *
    A person who has heretofore had the exclusive privilege from the city of using water from the hydrants for the purpose of sprinkling the. streets, can not complain if this privilege has been (in a regular way) taken from him and given to another who paid more for the water than he had paid, "because it is within the power ol‘ the city, through her- adminis- • trators, to withhold altogether, and from all persons, the use of water from the hydrants for the purposes of street sprinkling. An action in damages will not, therefore, lie in favor of such person who has lost the occupation of street sprinkling hy the city conferring it upon another.
    from thé Sixth District Court, parish of Orleans. Oooley,. J.

      Richard Shaelcelford, for plaiBtiff and appellee. George Laeey, City Attorney, for defendant and appellant.
   This case was tried by a jury in the court below.(

Howe, J.

In the year 1869, the plaintiff being the highest bidder,, obtained from tlie waterworks of New Orleans the exclusive privilege-. of using water from the hydrants in the streets for the purpose of street sprinkling, for which he paid the sum of-nine hundred dollars; and in the same year he enjoined one Casserly from infringing this exclusive privilege.

In 1870 he was again- the highest bidder, and again received and and enjoyed the same exclusive right.

In.1871, the city having become owner of the waterworks, the plaintiff was again a' bidder, but not the highest one, and the privilege was awarded to Joseph Elliott for the .sum of two thousand dollars.

The plaintiff' at this point seems to have changed his views in regard to the legal propriety of such an exclusive privilege. He applied to the city for a supply of water to be used in the business of street sprinkling, but was refused, on the ground that the right had already been granted for one year to Elliott, a higher bidder. He thereupon commenced this action, alleging that his business of sprinkling streets, for which he was compensated by subscriptions of individual owners of property, had been broken up by this unlawful refusal, and claimed damages in twenty thousand dollars.

The cause was tried by a jury, who rendered a verdict in favor of plaintiff for the sum of five thousand dollars, and from a judgment .rendered thereon the defendant has appealed.

At a first glance at the evidence in the case it might be a matter of grave doubt whether the plaintiff has sustained any such damages as can form a basis for a judgment against the city. It appears that he sold his carts at “ what he asked for them,” and it would not be a violent presumption to suppose that he found a ready market for his mules in the spring of the year. ' At least it does not appear that they were sacrificed. He then went into business as a merchant, and, perhaps, he was a gainer by the change of pursuits. The verdict seems to be composed entirely of speculative profits which, lie thinks, he would have realized if he had continued the business of drawing water from the hydrants of the city and sprinkling it about the streets, and had been successful in such business.

We prefer, however, passing this point to inquire at once whether the acts of the city in the premises were of that unlawful character which would bring the corporation within that broad rule of law which declares that every act of man which causes damage to another, obliges him by whose fault it has been committed to repair the damage resulting therefrom. Was the city legally in fault?

By section thirty-eight of the act incorporating the Commercial Bank of New Orleans, it was provided that “the corporation of New Orleans shall' be supplied by the said company, free of charge, with all water necessary for the extinguishment of fires and other public purposes, nor shall the City Council be subjected to any charge of water furnished to supply the gutters of the said city and faubourgs; and-that the said company, as they progress in laying aqueducts, shall place, free of any charge whatever, two hydrants of a proper construction, in front of each square, ata suitable distance from each other, from which a sufficient quantity of water may be conveniently drawn, for extinguishing fires, for wetting, washing and watering the streets- and gutters, and any other public purposes; that, on the squares which do not front the river, the hydrants shall be placed on opposite sides of the streets, at an equal distance from each other, and the corners; that the said hydrants shall be of a proper size, and made so as at all times to furnish water for the fire engines, and purposes herein mentioned ; it shall further be the duty of said company to supply water for all the purposes herein mentioned, at all times during the continuance of this charter, unless prevented by some unavoidable accident; and in case such shall occur, the repairs shall be made and the water again furnished, at the expiration of the necessary delay; and the said company shall supply a sufficient quantity of .clear, pure and wholesome water for the use of the inhabitants within the limits aforesaid, at the elevation of fifteen feet, when the same may be required; provided, however, that said hydrants shall be under the control of the Commercial Bank.”

Under the provisions of law the city became the owner, by purchase, of the waterworks prior to the events which gave rise to this action. So far, then, as any obligation of the bank to the city was concerned, it might perhaps be said t'.iat the latter became by this transfer at once debtor and creditor, and the obligation was extinguished by confusion.

“L’exfmotion qui en resulte est commune a toute espece d’obligations. * * Les expressions de débiteur et de créancier employées par notre article ont un sens tres é endu qui embrasse tous les engagements de quelques nature qu’ils soient. * * Larombiére on art. 1300, C. N. No. 16.

But the plaintiff insists that there was a legal obligation on the part of the bank, and so on the part of the city, as transferree, to supply him with water for use by him in his business. We are unable to perceive this. The duty of supplying water for watering the streets was imposed on the bank in favor of the city, and, even if it still exist, is a matter in which the plaintiff has no special legal interest. The duty of supplying water to the individual inhabitant is evidently for domestic and other purposes upon private premises. A sufficient quantity of clear, pure and wholesome water, for the use of the inhabitants, is to be supplied, at an elevation of fifteen- feet. The relation of this obligation to the business of street sprinkling is not perceived.

The city of New Oileans owns, the waterworks; she has full control, especially, of the hydrants in the streets; she has full control of the streets as public highways. Her administrators have a large discretion in the management of her property and the police of her thoroughfares. The water that flows through her hydrants is pumped up from-the river at great cost, and it is matter of public notoriety that the supply for more important purposes than laying dust is frequently inadequate. She might declare that it was better that her citizens should' .suffer from dust - than from conflagration, and decline to furnish any water for street sprinkling; she might, probably, prohibit the business of street sprinkling as a private pursuit, which she now merely tolerates, if it seemed, as it might, to be an interruption to the free use of the thoroughfare; and we see no good reason why, in the exercise of a similar discretion — which the judiciary should be careful not to question or infringe — she may not lawfully dispose of the privilege of drawing water for sprinkling streets to the highest .bidder, and thus pro tanto lighten the burden of the tax-payer.

In the recent case of the Eclipse Towboat Company v. the Pontchartrain Railroad Company, 24 An., p. I, we had occasion to decide that when a railroad was under no legal obligation to “pro rate”' through freight with any one, a refusal to pro rate with the plaintiffs was not illegal, nor did it become illegal, because the railroad had made an arrangement upon sufficient consideration to pro rate with some one else. This case seems to be one in point.

It is therefore ordered that the judgment appealed from be reversed and the verdict set aside, and that there be judgment in favor of defendants, with costs in both courts.

Wyly, J.,

dissenting. The plaintiff alleges that he has been engaged for several years in the business or occupation of sprinkling tlje streets "of New Orleans; that in conducting it he has been compelled to keep a large number of mules, carts, drivers and stables, in which he has a large capital invested; that the city of New Orleans has heretofore furnished him the necessary water for said business from the waterworks; that he would not have engaged in, Dor invested his capital in,, said business except for the facilities afforded by said waterworks, and the inducements held out by the habit of furnishing water for that purpose; that the city of New Orleans furnished him water for said business during the whole of the year 1870, for which he paid punctually ; that lie applied for water for said purpose during the year 1871, and was absolutely and illegally refused it by the city.; that he applied for and proposed to use ten thousand gallons per day in his said business, which is the customary amount, and tendered-the city the money, for that quantity for the whole year, 1871, according to the regular-tariff ior water established by said city, but was refused without any lawful cause; in consequence of which, his business was entirely broken up, and he was deprived of a legitimate occupation, worth to him fifteen thousand dollars annually. He therefore prays for twenty thousand dollars damages. The defendant pleaded the general denial; specially denied the right of every citizen, upon tendering the payment of the public water rates, to obtain daily from the waterworks water to sprinkle the streets of New Orleans, the said waterworks being established to accommodate the citizens for ordinary purposes sufficient for the use of families, etc. The defendant also denied that the plaintiff ever had any serious purpose of paying the water rates in such quantity, but believes he merely so pretended with the view of being refused, and then bringing his action for damages.

The case was tried by a jury, and resulted in a verdict and judgment in favor of plaintiff for five thousand dollars damages. It appears that the business of sprinkling the streets, for such compensation as the owners of property might voluntarily agree to give, is an ancient occupation in this city, and that the plaintiff pursued it in 1869 and 1870, obtaining the water from the public waterworks ; it is shown that he had considerable capital invested, and that it was becoming very profitable, yielding a net income in 1870 of eight thousand dollars; that early in 1871 he made contracts for sprinkling the streets, having many new subscribers, but that the city of New Orleans refused to allow him to get water for the purpose of continuing his business from the public waterworks, although he tendered the money to pay the public water rates; and in consequence his business was broken up.

Early in 1871, the Administrator of the Department of Waterworks wrote the following letter to the plaintiff: The city of New Orleans having disposed of the privilege of water from the plugs of the city waterworks, for street sprinkling purposes, for one year from first of' January, 1871, unto Joseph Elliott, Esq., the application made by you this day for similar privileges can not be entertained.”

I think the plaintiff had the right to get the water necessary for his business from the public waterworks, on paying the usual tariff or water rates; that the Aministrator of Waterworks Department was wholly unauthorized to refuse it when the money was tendered; and that he had no right to create the monopoly in favor of Elliott, by giving him the exclusive use of the plugs of the city waterworks for the purpose of sprinkling the streets.

For over thirty-five years various persons have pursued the occupation of sprinkling the streets for such compensation as the occupants of dwellings and business establishments might agree to pay them, the privilege of getting water from the waterworks being free to all who were willing to pay the regular water rates.

It was not till after the city purchased the waterworks from' the •Commercial Bank,- in 1868, that the monopoly complained of was -established.

Now, -because the plaifitiff enjoyed the exclusive “privilege of water from the plugs,1' in 1869 and 1870, and also bid for it in 1871,. is no reason why he should not complain of the monopoly, if it is wrong in principle, and if it is unauthorized by the charter granted by the State to the Commercial Bank of New Orleans, from whom the city acquired it. Of course the plaintiff had no cause to complain as long as he could get the water; and, besides, it seems he was willing to pay the sums he did in 1869 and 1870 for the exclusive privilege. But when he was denied it he had cause to complain, provided the monopoly was wrong. An illegal and arbitrary exercise of power may be inquired into at any time the person or persons affected thereby may feel aggrieved.

Because the city or its official abused a trust in 1869 and 1870, is no reason why it should do so with impunity in 1871.

What was the object of the charter, the contract between the State and the corporation, called the Commercial Bank of New Orleans, granted in 1833 ? It was obviously to supply the city of New Orleans and its inhabitants amply with water, at a fair price, not only for the ordinary use of families, but for every purpose necessary for the health, convenience and safety of the city and -its population. The thirty-eighth section of the charter requires said company “.to place hydrants at a suitable distance from each other, from which a sufficient quantity of water may conveniently be drawn for extinguishing fires, and for wetting, washing and sprinkling the streets.” The fourth section provides that-alter thirty-five years New Orleans may purchase the waterworks from the company; and this was done, as before remarked, in 1868.

Now, I think it will not require serious argument to prove that this perpetual charter or contract between the State and the Commercial Bank has not been altered, so far as the rights ot the inhabitants of New Orleans are concerned, by the transfer thereof to the city in 1868. The city has, by the purchase, merely succeeded to the rights and obligations imposed on the original incorporators by the charter or contract between them and the State. Under the purchase, which was anticipated when the charter was granted, the city is-bouud to carry out the contract and perform all the obligations thereof in favor of the inhabitants, the real parties for whose benefit the charter or contract was made by the State.

New Orleans as a legal entity, had no interest in the contract whatever. The inhabitants own the city, and are the'parties intended to be benefited by the stipulations in the charter. They are the obligees of the contract, and, in my opinion, can compel the city to perform the obligations thereof which she assumed when she became the purchaser of the waterworks.

There is no force in the objection that the stipulation of section thirty-eight is in favor of the city, and therefore the inhabitants can not complain if they are not furnished water to extinguish fires and to sprinkle the streets. This is a mere fallacy. The provision is really in favor of the inhabitants, who alone are interested in preserving their property from fire, and whose health and comfort would be advanced by sprinkling the streets. New Orleans, as a juridical person, or legal entity, needs no water. The consumers of water are the people who inhabit the city. The stipulation, therefore, of section thirty-eight of the charter, requiring the incorporators to place hydrants at suitable distances in order to furnish a sufficient quantity of water for extinguishing fires, and for “ wetting, washing and sprinlcling the streets,” is for the benefit of the inhabitants; and they have the right to complain if they are denied the privilege of getting water freely from these publie hydrants.

The charter would cease to be a contract if the city, by the purchase, acquired all the rights and privileges of the waterworks company, and incurred none of the corresponding obligations. The State might at once incorporate another company, and would not, in doing so, impair the obligation of a contract.

The right of the city to control the waterworks would cease, because the basis of her title, the contract made by the State with the incorporators can not exist without reciprocal obligations. So, therefore, if the city has the rights of the Commercial Bank, resulting from the ■ purchase, to administer the public waterworks, it also is bound to perform the corresponding obligations of its vendor.

The contract being a perpetual one, made by the State for the benefit of the inhabitants, their rights were not destroyed by the transfer from the original incorporators to the city of New Orleans in 1868.

The inhabitants of New Orleans are not deprived by it of their rights; and they have just cause to complain, if they are not amply supplied with all the waternecessary.for their comfort and convenience, as well as their actual necessities.

They have the right to demand from the waterworks sufficient water to sprinkle the streets in front of their houses; they'have the right to employ the plaintiff to perform this service for them ; and the Administrator of the Department of Waterworks had no right to refuse to supply him the necessary water, when the usual price thereof was-tendered.

Id is not pretended that there was not sufficient water to supply the plaintiff; the defense, is simply a general denial; a special denial of the right of the citizen to demand more than is necessary for family purposes ; and an averment that the plaintiff was not serious in tendering the money and demanding the water from the waterworks. If the plaintiff was not serious, why refuse him 9 Why decline to take the money 9 But the evidence shows that the plaintiff was building up a very profitable business; it yielded him a net profit of eight thousand dollars in 1870, and he was already employed by numerous persons to sprinkle the streets in 1871, having many new subscribers.'

The actual loss he sustained was not only that resulting from the sale of his carts and mules, but the loss resulting from the breaking up of his business.

If the defendant had no right to refuse him water from the public waterworks, and in consequence thereof the business which he had built up was destroyed, he has a just ground to claim remuneration for the loss of that business. The jury found the actual loss sustained by the plaintiff was five thousand dollars, and I think the evidence in the record fully sustains their verdict.

If the position of the defendant be true, the provision of section thirty-eight of the charter of the waterworks is meaningless. For it would be useless to require the incorporators to place hydrants at suitable distances to supply ample water to extinguish fires and for “wetting, washing and sprinkling the streets,” if the people would have no right to use the water in those hydrants for that purpose.

What is the use of providing the hydrants if those to be benefited thereby have not the right to use them 9 If the people have no right to sprinkle the streets, why cause hydrants to be erected for the purpose 9

But defendant contends that it has conferred this duty upon Elliott for the year 1871, and he paid it two thousand dollars for the privilege.

Here is another fallacy. Elliott has made no contract with the city binding him to sprinkle the streets. He is not required to cast a single drop of water on the streets. He has simply purchased “the privilege of water from the plugs of the city waterworks’’ for the year 1871. He gave the pittance of two thousand dollars for the exclusive privilege, and he is not bound to use it; he can refuse to sprinkle the streets; and yet the inhabitants are forbidden from getting water from the public fountain for that purpose for a whole year. If the administrator had the right to sell Elliott the exclusive “privilege of water from the plugs" for one year he could do so for any number of years; and thus “ the plugs ” might be permanently closed, and the inhabitants deprived of one of the main objects of the waterworks.

Where is the right of those entrusted by the State with the administration of the public waterworks to sell out and destroy the rights they were charged to protect and to administer 9 Are the duties and obligations imposed by the State in the act of incorporation upon the Commercial Bank and its transferree thus to be disregarded ; the object of the charter thus to be defeated, and the rights of the citizens iutended to be preserved, thus bargained cmay by those intrusted with ■the administration of a public institution? Suppose- the Gas Com.pany, another public institution, or an institution established for the benefit of the inhabitants of New Orleans, should pursue the same course adopted by the Administrator of the Waterworks, and sell out the privilege of gas from its reservoir to a single person for a year, would the citizens have no cause to complain? Are the citizens to be shut off from the waterworks and to be shut off from the gas works according to the whims or caprices of those administering these public institutions? Surely not. The incorporators have contracted with the State;, they acquired certain rights and privileges, and they incurred corresponding obligations to be performed for the benefit of the inhabitants of New Orleans.

In Scudder v. Paulding, 4 Robinson 429, where the gas company refused to supply the lessee of the Planters’ Hotel because the former tenant had failed to pay his gas bill, this court held — that the lease entitled the plaintiff to call on the company for gas on offering to pay for it; and if he -was improperly refused, his “remedy was against the company.”

Here the plaintiff called upon the Administrator of Waterworks and tendered him the price for water to sprinkle the streets; he was improperly refused, as I believe, and his remedy is against the defendant, who by the purchase of 18(>8 succeeded to all the duties and obligations, as well as the rights of the original incorporators.

But the defendant contends that New Orleans had the right to refuse the plaintiff the water, in the exercise of its police power. If the use of 'the water at the time was detrimental to good order, to the safety and health of the public, or if the wa.y it was used was a nuisance, of course the city in the exercise of its police power had the right to do so; it has the right to regulate the use of the gas also in the proper exercise of police power ; it had the right to regulate the use of water while the waterworks were administered by the original incorporators.

But the best answer to this objection is : the city has not seen fit t.o' impose any restriction on the plaintiff in the exercise of its police power. The plaintiff was not refused on accdunt of the exercise of police power by the city. The right of the city in relation to the exercise of police power is not involved in this case ; it is not an issue raised by the pleadings or an issue upon which the parties went to trial in the court below. It is an after-thought, a mere dodge suggested by the ingenuity of counsel. It can not avail to confuse the real merits of the controversy, and to bolster up a defense which, in my opinion, rests upon no solid foundation in law or equity. For the reasons stated I deem it my duty to dissent.

Rehearing refused.


author: Taliaferro, J.

text:
    No. 3967.
    Marie Mathilde, Countess de Bethune, v. Levy & Scheuer.
    If two witnesses testify to a verbal contract of loase, one being a party to tfte lease and tlxe other not being a party, and has no interest in the lease, and their testimony is conflicting, in such case the weight of the evidence will be given in favor of the witness who lxas no interest in the result of the suit.
    from the Fourth District Court, parish of Orleans. Lecmmont, J.

      T. Gilmore <& Son, for plaintiff and appellant. Gotton & Xevy, for defendants and appellees.
   Taliaferro, J.

The plaintiff sues on a contract of lease. She alleges that by her agent she leased, in the year 1871, to the defendants for the term of one year, to commence on the first of October, 1871, the house or premises No. 1, southwest corner of Canal and Magazine streets, in New Orleans, for the sum of three hundred and fifty dollars per month. The plaintiff sues for five months rent, or $1750, due at the time of filing her supplemental petition. The defendants deny that they entered into the contract declared upon by the plaintiff. They had judgment in the-lower court, and the plaintiff has appealed. In deciding this case, we have to determine from the evidence whether there was a valid binding contract between the parties verbally made by them, notwithstanding the defendants failed or refused to sign a written instrument of lease and to execute notes for the payment of the rent monthly as they agreed to do. Downing, a witness whose testimony was taken under commission, says: “ All that I know about the lease of said store is, that Mr. Ernest, the agent of the plaintiff, told me that he had rented the store from the expiration of my lease to Levy & Scheuer, and that on my calling on them, as I have already stated, to see them about my fixtures, they admitted to me that they had rented the store from Mr. Ernest. I think they said their lease was for the period of a year, but I am not positive about that.” This witness had been the tenant of the leased premises the previous year, and wanted to sell to Levy & Scheuer his fixtures', which they declined to purchase. In relation to these fixtures the witness, in answer to one of the interrogatories, said: “ Subsequently, on being informed by them (Levy & Scheuer) that they were trying to sublet the store, I requested them in case they should succeed in doing so, to try to sell my fixtures for me to the next tenant, which they promised to do.” Ernest, the agent of the plaintiff, said in his testimony :, “1 closed the lease with them on the eighth of J uly at the rate of $350, per month from the first of October, 1871, to first of October, 1872. In answer to a cross interrogatory, he said the lease was to he in writing, and notes to he given; that on separating with Mr. Scheuer on the morning of the eighth of July, I told him that the notes and lease would be sent to him.some time for his signature. He said to send them to him and he would sign them ; we parted in that way.” Frederick Ernest, nephew of the plaintiff’s agent, testified “that about three days before the lease was closed Scheuer, I think, of the firm, came to Ernest, Sr., and asked for the refusal of the two houses until he could see which one he could take. At the same time there were other applicants for it; the refusal was given to him for three days ; he came back at the expiration of the time and closed the agreement for No. 1, the corner house ; the understanding was that he was to sign the lease and notes and pay the revenue stamp for the lease whenever it was presented to him; that is about the whole transaction.” In reply to the question, “ was the bargain concluded ? ” the witness answered: “It was undoubtedly concluded in my presence.” He stated that in September lie presented the lease and notes to be signed and the parties refused to sign them. This witness, under cross-examination, was interrogated as to whether he did not, in September, advertise the store for rent, and his attention was directed to an advertisement to that effect that appeared in the New Orleans Times of the twenty-fourth September, 1871. He answered : “ Mr. Scheuer came to me and asked if he could make a compromise to be released from the rent. I told him positively, No! that no sum would induce me to do it, acting as agent. He then asked me to put a notice in the paper that the house was for rent, at his expense and his risk, and my letter to Mr. Montgomery will show that. I did that; I wrpte .that it had been done at the risk of Levy & Scheuer.” Re-examined by plaintiff’s counsel. To the question, please state particularly why you advertised, he answered: “ I did it at the request and as a matter of accommodation to the firm of Levy & Scheuer, purely out of courtesy, and nothing else.” To the question was there any time stated during which the notes and lease were to be signed, he replied: No, sir; he said to send them around any time. 1 usually make them out the latter end of June for the ensuing year ; the lease commences on the first of October ; the lease and notes are made out and handed to the tenants, and they take their time by the first of October ; they lie very frequently in the hands of the tenants for two months; I am not importunate about it.” Scheuer, one of the defendants, and a bookkeeper of the firm of Levy & Scheuer, are the only witnesses examined on behalf of the defendants. The testimony of the bookkeeper is unimportant. He states that on the twenty-eighth of September a man came into the office and handed him some papers, which he found, upon opening, to be a lease and some promissory notes to be signed; these he handed to Mr. Scheuer, who' refused to sign them, and they were given back to the person who brought them. An hour later Mr. Ernest came in and presented the same papers to Mr. Scheuer, who again refused to sign the lease, saying that he had been released from the lease. On the first of. October the keys of tlie store were presented at the store and were refused by Mr. Scheuer. Scheuer denies having asked Ernest if he could be released by paying a certain amount. He also denies authorizing him to advertise. He said the bargain was not completed, because he might have objected to some clause in the lease when he was to sign it. Here is a conflict of evidence in regard to material facts, and the evidence must be scrutinized closely. It must be borne in mind that Sclieuer is his own witness ; that he is testifying for himself and for his partner. The two Ernests have no interest in the case. Scheuer has a large interest in the result. If his testimony is to prevail, his firm would be released from the payment of a large sum. Much is to be taken iuto consideration regarding the manner in which a witness makes his statements.. There is a marked contrast in this respect between the witness in this case who testifies in his own favor and those who have no personal interest. 'The testimony of the former is manifestly devoid of that distinctness, fullness and clearness which characterize that of the latter. It is tobe noted, also, that the evidence of three witnesses disinterested is in array against that of one who is' interested, and we must conclude that it preponderates against the defendants. Downing, the previous lessee, heard the declarations of both parties- that they had made a contract of lease. He swears that he was’informed by Levy & Scheuer that . they were trying to sublet the store. The statements of the other two are clear and positive of the completion of the contract verbally. It is shown, we think, satisfactorily, that it was not the meaning and intention of the parties that the signing of the notes and the instrument -of lease should be necessary to the completion of their contract. We «an not but consider the evidence as establishing that both parties believed the verbal contract complete, and that they were bound by it without signing written acts; that the signature of these acts was not in any manner a condition precedent to the completion of the contract. If the defendants did not consider themselves vested with the rights of lessees, why were they trying to sublet the premises 9 This statement of one of the witnesses that they told him they were trying to make a sublease, is not denied by Scheuer in his evidence. Why should they aim to effect a Compromise to be released if they did not believe they were bound 9 -And why authorize Ernest to advertise the letting of the premises at their expense and risk, if it were not to avoid the .effects, as far as they could, of their non-compliance with the contract iby getting other tenants for the plaintiff? An effort was made by the introduction of the advertisement in the Times newspaper of the premises for lease to show that the plaintiff’s agent considered the agreement with Levy & Scheuer as of no effect. But we think there was a failure in the effort. The clear and direct statement of the witness, reiterated as it was, that the advertisement was made at the special request of one of the defendants, and through courtesy to them, must be taken as carrying greater weight than the less consistent statements of the witness having an interest in procuring a different interpretation of the cause of the advertisement. We think, upon the whole, the judgment of the lower court is erroneous, It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that the plaintiff recover from the defendants the sum of seventeen hundred and fifty dollars, with legal interest on each of the five installments-thereof of three hundred and fifty dollars each from the falling due respectively of each installment. It is further ordered that defendants pay costs in both courts.

Rehearing refused.


author: Hówe, J.

text:
    No. 4030.
    State ex rel. Simonds v. Judge of the Sixth District Court.
    A third party, whose property has been taken out of his possession by a proceeding under a judgment for a less amount than five hundred dollars, has the right to appeal, if the amount of property taken is above five hundred dollars; and in case the judge a quo refuses the appeal, a mandamus will issue from the Supreme Court, on the application of such third party, directing the judge a quo to grant the appeal.
    for writ of mandamus.

      Bentinclc Egan, for relator j W. E. Cooley, Judge of the Sixth District Court of the parish of Orleans, respondent.
   Hówe, J.

.Choppin, a judgment creditor of Wilson for $175, issued execution and seized the alleged interest of his debtor in the firm of Jf S. Simonds & Co. He then filed a petition, to which he made Simonds and the firm parties, in which he alleged that Wilson was a partner in the firm, that the seizure of his interest operated a dissolution, and that a liquidation of the firm was necessary; and he asked for the appointment of a receiver. A receiver was appointed, to whom the assets of the firm were to be turned over. Simonds having departed' this life, his administratrix, within the legal delay, applied for an. appeal, which was refused on the ground, as stated in the respondent’s, answer, that the amount in dispute was only the $175 due by Wilson, to Choppin.

We think the judge erred. The matter in dispute is not the amount of the debt due by Wilson to Choppin. The defendant Wilson is not arresting the judgment. The firm of Simonds & Co. and Simonds’s estate are not in the position of the garnishees in Gustine v. The New Orleans Oil Company, 13 An. 510, cited by respondent. The matter in dispute is the possession and control of the whole assets of the firm of'Simonds & Co. The question is whether they shall be turned, over to; a receiver or not, and it appears they amount to over $10.00i.

In Gustine’s case the court admitted that an appeal would lie where a third person in possession of property finds himself deprived of it by the unlawful action of the sheriff” in seizing it. And so in the case of Mills, 12 An. 48, it was held that the value of property seized under execution, the sale of which is enjoined by a third person claiming to be owner, and not the amount of the writ, determines the right-of appeal. The same was held in Gogreve v. Windhorst, 21 An. 296,. and a similar doctrine in the Succession of Rennebey, 15 An. 661.

The same principle governs this case. A judgment is rendered directing the transfer to a receiver of the assets of a firm. The administratiix alleging herself to be in possession and control of these assets; that Wilson has no interest in them, and that her interest in them exceeds $500, declares this judgment erroneous and irreparably injurious, and claims an appeal. She seems to have a constitutional right thereto, for, if the judgment be erroneous, she will be unlawfully deprived of property exceeding $500 in value. ¥

It is ordered that the mandamus heretofore issued be made peremptory.


author: Wyly, J. Taliaferro, J.

text:
    No. 2737.
    P. O. Fazende v. William W. Flood—Mrs. Thomas J. Friend, Appellant.
    In case of an appeal from an order of seizure and sale, tbe only question that can be examined by the appellate court is the sufficiency of the evidence before the judge a quo to authorise the issuing of the writ.
    Costs incurred in protesting a mortgage noto should be taxed as such by the judge who issues the order of seizure and sale on the note, and authentic evidence thereof is not essential.
    APPEAL from the Second Judicial District Court, parish of Jefferson. Pardee,

    J. B. Bermudez, for plaintiff and appellee; J. Q. A. Bellows and B. L. Preston, for defendant and appellant.
   Wyly, J.

This is an appeal by the third possessor of mortgaged property from an order of seizure and sale.

The only inquiry is, had the judge who issued the order sufficient .evidence before him to authorize the fiat? 18 An. 626; 21 An'. 32,, 52; 21 An. 626.

It appears that the plaintiff presented a certified copy of, the act of mortgage, importing a confession of judgment, and also the note.

The evidence was sufficient to justify the order.

The cost of protest was an expense incident to the collection of the claim, and it may be recovered as part of the costs in the executory proceeding.

The appellant purchased the property incumbered with the mort gage which contained the. non-alienation clause. She certainly occupies no better position than the mortgagee. The other objections are of no force.

The appellee prays damages for frivolous appeal, and they should be allowed him.

Let the judgment be affirmed with costs, and let the plaintiff recover from the appellant ten per cent, damages on the amount of the decree appealed from.

On Motion to Dismiss.

Taliaferro, J.

Fazende, the vendor of real estate to Flood, retained a mortgage by authentic act, with the pact de non alienando, to secure the payment of the price. To enforce the payment of the first note, due January 1, 1870, he proceeded, via exeeutiva, to foreclose his mortgage upon the property then in possession of Friend, to whose wife Flood had sold it. From the.order of'seizure and sale obtained by the plaintiff, Mrs. Friend, aided by her husband, prayed for and obtained a suspensive appeal, alleging in her petition that she has an interest in the proceedings, and that her rights are affected injuriously by the order; that there is error therein to her prejudice; that the ■order is not authorized by the record nor warranted by law.

In this court the plaintiff moves to dismiss the appeal, on three several grounds:

Mrst — The appellant has no interest in the subject matter in dispute.

Second — That the defendant, who has an interest in the proceedings, has not been cited.

Third — No assignment of errors has been filed, the proceedings being regular and valid on their face.

*******

The mere averment of interest by a third person who appeals from a judgment rendered between other parties, has been heljl to be insufficient to authorize an appeal. 7 N. S. 345. In that case Porter, Judge, said: This court has already decided that when persons not parties to a judgment appealed from it, they must allege and prove in the court of the first instance their right to do so — that is, that they were aggrieved by it.” In the case before us there is nothing whatever, even alleging specifically, in what that interest consists. We think, on this ground, the motion to dismiss should prevail. 6 An. 529; 13 An. 199. '

It is therefore ordered that this appeal be dismissed at the intervenor’s costs.


text:
    No. 2500.
    Thomas C. Hills v. Mrs. S. T. Upton and Mrs. E. Hough.
    'The authority of an agent to bind his principal by giving a promissory note and of fixing the signature of his principal thereto must be express and special. But in a cause like this, where the agent is authorized to settle a debt, the principal is not bound on the note which the agent gives in settlement of the debt, because the authority of the agent to sign the name of his principal to the note was not expressly given.
    from the Fourth District Court, parish of Orleans. Théard, J.

      Brice & Mitchell, for plaintiff and appellant-. J. McOotméll and JBuddecIce & Upton, for defendants and appellees.
   Taliaferro, J.

The plaintiff sues the defendants on a joint promissory note signed by Mrs. Hough, one of the defendants, and by C. E. Whitney, who signed Mrs. Upton’s name to it as her agent.

The separate answers of the defendants are general denials. Mrs. Hough admits she signed the note, but denies that any consideration was ever given or paid for the note by the plaintiff. The other defendant, Mrs. Upton, specially denies having authorized Whitney to sign the note sued on. There was judgment in the court a qua in favor of the defendants, rejecting the plaintiff’s demand and the plaintiff appeals. It appears from the evidence that the two defendants are •sisters, and own a plantation jointly in the parish of Iberville. The note was given to one Parker for his services as superintendent and manager of the plantation during the year 1867, and who transferred ihe note to Hills, the plaintiff. The plantation, it seems, was leased the next year to Kelly. At the close of the year 1867, or early in 1868, it became necessary, prior to delivery of the place under the lease, -to make settlements with the owner and the laborers for their services during the year 1867. The settlements were made by Mrs. Hough, who was on the plantation, and by Whitney, the son-in-law of Mrs. Upton, who was residing in New Orleans, but at that time was unable to go up to the place. Whitney proposed to go and attend to the business of the plantation for her, and he states in his testimony that Mrs. Upton told him to settle the matter as. well as he could and get as much time for payments as possible. It is not shown that Whitney was in any manner authorized to make or sign any obligation to bind her for the payment of money. There is nothing to show that she ever ratified •the act. An instrument, signed in the same manner that the note is •signed, showing the contract with Parker for his services for the year 1867, is in evidence. It is dated February 11, 1867. A letter is also in evidence dated fourteenth January, about a month previous, written by Mrs. Upton to Parker, expressing her desire to engage him again as manager for that year (1867), Parker having been on the plantation in the capacity of manager for several years previous.

The note sued upon is for $603, and drawn payable to the order of William E. Parker. Mrs. Upton says in her own testimony that she never knew until a short time before the institution of this suit that such a note had been given, and we find nothing to discredit that statement, and the evidence does not satisfy us that she authorized' Whitney to sign the note. The agent, if authorized to sign the uote. in the name of Mrs. Upton, rendered himself bound; but as he is not made a party defendant in this action no judgment can be rendered in this case in its present aspect. We think the case should be remanded for further pi'oceeding.s. It is therefore ordered that the judgment of the district court be annulled, avoided and reversed. It is further ordered that this case be remanded to the court of the first instance, with leave to the parties to amend their pleadings, to the end that the. proper parties may be made, and further to be proceeded with according to law — the defendants and apitellees paying costs of the appeal.


author: Howell, J.

text:
    No. 2799.
    William Terrill v. Harry T. Hays et al.
    Liquor or spirits that has been conditionally sold and its quality or character has been obanged by the vendee from rum to that oi neutral spirits, is liable in its changed condition to be seized by the creditors of the vendee, although it liai not been paid, ior or actually delivered — the changing the liquor from one thing to aiiotliei by the vendee being considered such a delivery as would protect the creditors who were without notice of the claim of the vendor.
    from the Fourth District Court, parish of Orleans. TMard, J.

      G. Campbell and J. M. Cooney, for plaintiff and appellee. J". JS. New and Hyams <& Jonas, for derendants and appellants.
   Howell, J.

Plaintiff enjoined the sale of “ two hundred and sixty-six gallons of rum, converted into neutral spirits,” seized iu the suit of Block v. Wallenberg, on the ground that he was the owner thereof. Haj s, the sheriff, filed a general denial and called Block and his surety on an indemnity bond in warranty. From a judgment against Hays for the value of the property hé has appealed.

The facts are, that about the fourteenth March, 1867, plaintiff agreed to sell to Wallenberg seven barrels of rum on the condition that they were to be paid for before they were used, and were delivered under-this condition at the' rectifying establishment of said Wallenberg. Some days afterwards Wallenberg caused the barrels to be emptied into his rectifier and the contents converted into neutral spirits.. During the time plaintiff made several demands for payment, Wallenberg telling him on one occasion after the conversion that on the arrival of a certain schooner he would pay for the property. Prior to this event the establishment of Wallenberg and its contents were seized in the suit of Block — the liquor, as neutral spirits, still being in the cistern. The plaintiff, as a witness, says “ the whole of theliquorI sold to Wallenberg was put into his rectifier.”

Although he repeatedly asserted that he was the owner of the liquor at the time of the seizure, we think it is shown that as to third persons without knowledge there was such a delivery to Wallenberg as to subject it (a movable) to seizure for the debts of Wallenberg, and particularly so, as it had been so materially altered as to its nature and packages or condition. The article sold by plaintiff was not the article seized. It had undergone a change and been enhanced in value. The bad faith of W alien berg, the conditional vendee,- will not shield the property from his creditor, who was ignorant of the facts when the seizure was made.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendant H. T. Hays, with costs in both courts.


text:
    No. 3472.
    State of Louisiana ex rel. Geo. Alban et als. v. James Graham, State Auditor.
    In a caso where tli© Legislature lias by law authorized tlic making of a contract to improve and clean out a nayigable stream, and has made an appropriation therefor, the Au litor of Public Accounts is not authorized to issue certificates of indebtedness for such work or parts thereof, as may appear to have been done in conformity with the requirements of the act authorizing it. Section 187 of the Revised Statutes of 1870, which authorizes the Auditor to issue his certificates for all just indebtedness against the State, which is not provided for by law, does not apply to such a case, because its payment is provided for by appropriation of bonds- of the State. A mandamus will not therefore lie against the Auditor to compel him to give certificates of indebtedness in such a case.
    from the Eighth District Court, parish of Orleans. Dibble, J.

      Wooldridge & Thomas, for relators and appellees. Hornor & Benedict, for the Auditor. S. Belden, Attorney General, for the State.
   Wyly, J.

The defendant appeals from the judgment rendering-peremptory the mandamus sued out in this case, to compel him to issue to the relators $50,000 of State certificates as an alleged indebtedness resulting from a contract which they say they made for improving the navigation of Red River, pursuant to act No. 59 of the acts of 1868.

The defense is:

First — There is no ground for the mandamus, as the act No. 59 provides for the issuance of bonds for the payment of the contemplated work, and the Governor having refused to sign them the respondent can not deliver them to tlic relators j and as the law has made a special appropriation of bonds for the payment of the contemplated work, the respondent is without power to issue certificates of indebtedness.

Second — That act No. 59 of 1868, violates article 111 of the constitution.

Third — The respondent specially denies that any valid contract was made, or that the provisions of said act have been complied with, or' that .the certificates of the commissioners called for by said act were ever presented to him. He also pleads the general denial.

Act No. 59, authorizing certain works to be done to improve the navigation of Red River, provides—

Section 2. “That in order to have the above works completed during the present low water, ffm. S. Mudgett, M. H. Crowell and Charles W. Keeting be and are hereby appointed commissioners on behalf of the State, and hereby authorized to employ a competent engineer, and to-have him without delay to examine said work and prepare plans and specifications of the work to be done, and to make the same so as to-show the proposed and necessary work in convenient sections, with estimates of the proper cost of each section and of the whole work.

Section 3. “ That as soon as said estimates, plans and specifications-are prepared, said commissioners shall and they are hereby authorized, to contract in • the name of the State of Louisiana, with a competent person or persons, to do said work according to such plan and specifications, payable in installments at the completion of each section, and upon .the certificates of said commissioners that the section has been completed according to contract.”

Sections 4, 5 and 6 relate to the bonds to be issued to the contractor in payment Of the work.

Section 7 provides that the commissioners mentioned in the act shall turn over the management of the work to the Board of Public Works as soon as they organize, and they “ shall do all things required to be done by said commissioners by this act.”

It will be observed that the debt for the contemplated work is only payable on “ the certificates of said commissioners; that the section has been completed according to contract,” and that the Board of Public Works, when organized, shall supersede the commissioners named in the act, and “shall do all things required to be done by said commissioners.” * * * Therefore, in order to obtain the bonds according to the act, the contractors must produce the certificate of the commissioners, or of the Board of Public Works, “ that the section has'been completed according to contract.”

This has not been done ; and without it the relators would not be entitled to the bonds appropriated by the act under which the work was authorized. There is no satisfactory evidence in the record that, the relators ever made a contract pursuant to the requirements of the statute, or that they have completed the section for which they demand payment, according to the contract.

The relators have not presented a case entitling them to be paid, according to the express terms of act No. 59 of the acts of 1868.

Where the law has made an appropriation of bonds as in the statute ■ before us, tbe Auditor is not authorized to issue certificates under the general mandate mentioned in see. 187 of the Revised Statutes of 1870.

We think he very properly refused to comply with the demand of the relators, and the cou,rt a qua erred in granting the mandamus and in making it peremptory.

Let the judgment appealed from be annulled, and let the mandamus be disallowed and the petition be dismissed at the costs of the relators in both courts.

Rehearing refused.


text:
    No. 3891.
    Succession of John H. Williams.
    Ia this caso the community property of the succession was sold on the motion of tbe creditors to pay the debts. The purchasers failed to comply with their bids, and the creditors moved to have it again sold at their risk. In answer to the rule against the purchasers, they alleged that the deceased left three daughters by a former marriage, who claim to-be the owners of one-half of said property as the heirs of their mother, who is dead. It not appearing that the mother of these parties was dead, and the property being community, the rule was made absolute, and the purchasers appealed.
    Held — Tlia it was incumbent on the defendants in the rule to show that the mother died since the acquisition of the property, and that the debts for which it was sold were contracted' since her death.
    APPEAL from the Second District Court, parish of Orleans. Duvigneaud, J.

      Dirrhammer & Kennard and T. Gilmore, for appellants. Budd <& Grover, for appellee.
   Howell, J.

Rule on purchasers. Upon the motion of a creditor- and the petition of the testamentary executrix, all the real estate of this succession was sold to pay debts. The purchasers at said sale-having refused to comply with the adjudication, a rule was taken on them to show cause why they should not do so, or in default, why the property should not again be sold at their risk. In answer - to the-rule, they alleged that the deceased left three daughters by a first marriage, who claim to be the owners of one-half of said property as the-heirs of their mother, who is dead. Those persons'were mere parties to the rule, and from a judgment making it absolute they and the purchasers have appealed.

The district judge was not satisfied from the evidence that the mother of these daughters is dead, and a careful examination of the evidence has not convinced us that he erred. It was incumbent on-the defehdants in the rule to show that this mother did sign the acquisition of the property, and that the debts for which it was sold' were contracted since her death. This they have not done. The sale, under all the presumptions, was of community property to pay community debts, and these presumptions not being overcome, the sale-was valid.

Judgment affirmed.