text:
    No. 3231.
    Thomas H. Patterson v. Hiram Litton.
    If tlie possession of tlie defendant to real estate is of date anterior to tlie title under which tlie plaintiff claims, then and in that case the plaintiff can not recover unless he show a.. perfect title. 15 An. 454.

    Prior to the act of 1847, the parish judge or his clerk could alone make a valid sale of succession property. C. O. 2600. Therefore a sale made of succession property prior to that. date, by an auctioneer, convoyed no title whatever.
    APPEAL from the Ninth District Court, parish of Sabine.

      Orsborne,. J. D. 0. Davidson and J. F. Smith and Pierson á Levy, for plaintiff' and appellant.

      0. 0. Chapman & Son, for defendant and appellee.
   Ludeling, C. J.

The plaintiff alleges that he is the owner of a tract of land, described in the petition as a Rio Hondo claim, No. 314; that, he acquired the same from S. D. Bossier, who derived title at a probate sale of the succession of John Litton, the grantee, and defendant’s-father.

The evidence shows that the defendant took possession of the land in 1837, as an heir of the grantee, John Litton; that he has been in possession ever since that period, and that the plaintiff purchased from S. D. Bossier, on the second June, 1858. The plaintiff must show a perfect title, therefore, to recover.

We think he has failed to do this. Previous to tne act of 1847, the-parish judge or his clerk alone could make a valid sale of succession property. C. C. 2600. In this case the succession sale was made by an auctioneer.

The adjudication appears never to have been completed. The sale was made on a credit, and S. D. Bossier, who bid $250 for the property, failed and refused to comply with his bid. This fact is stated in the account of the curator of the estate, who was the father of S. D. Bossier. And thejproees verbal of the sale made by the auctioneer was never recorded by the judge, nor was any deed ever made to the purchaser. Bossier, therefore, had no title, and he could convey none to his vendee. C. C. 2427.

The evidence shows that the plaintiff was informed before he bought from Bossier that he had never complied with his bid.

Even if the defendant could be regarded as a naked possessor, the plaintiff would fail, for he has not established a title anterior in date, to the possession of the defendant. 8 La. 246, Bedford v. Urquhart; 15 An. 454, Young v. Chamberlin.

It is therefore ordered that the judgment be reversed, and that there be judgment rejecting plaintiff’s demand, with costs of both courts.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 3234.
    Charles K. Byrne v. The Citizens’ Bank.
    If a mortgage is not reinscribed within ton years, its rank becomes postponed to those mortgages which were placed of record subsequent thereto, but which wore not perempted at the time of the reinscription. Therefore, if the property mortgaged be itold under the mortgage which has lost its rank for want of reinscription within ton years ¿fe can only be sold subject to the mortgages having priority of rank. This priority of rank is to be determined by the date of registry, allowing to a mortgage which has perempted before reinscription to date only from the date of registry of the reinscription.
    APPEAL from the Thirteenth Judicial District, parish of Madison.

      Hough, J. W. W. King, for plaintiff and appellant.

      Farrar & Aroni, for defendant and appellee.
   Taliaferro, J.

The Citizens’ Bank having a mortgage on á tract of land lying in the parish of Madison proceeded via exeeuiwa to enforce it. An injunction was obtained by tbe plaintiff to prevent the sale on the ground that he is the owner of the land, having, as he alleges, purchased it at sheriff’s sale, holding under the deed of the sheriff, dated third of October, 1868. He shows a judgment, a sale under execution issued upon it, and a sheriff’s deed. He shows also that he took out subsequently a monition and that the same was duly homologated by judgment of a competent court, after due notice and proceedings bad in conformity with law. A motion to dissolve was filed by tbe defendant, but tbe grounds therein taken will come under consideration on tbe examination of the merits and we omit a notice of them here. The defendant, in answer, avers that the sale under which plaintiff sets up title was gotten up in fraud of the rights of creditors and is null; that the Citizens’ Bank holds the first mortgage on the property and that it could only have been sold legally, subject to that mortgage; that the judgment under which the pretended sale was effected was predicated upon an obligation which was prescribed and a mortgage which had become extinct. The defendant expressly charges fraud and prays a dissolution of the injunction, with five hundred dollars damages and costs.

The judgment in the court below was in ravor of the defendant. The injunction was dissolved with two hundred dollars damages decreed against the plaintiff and his surety on the injunction bond.

The plaintiff has appealed.

Daniel Byrne, father of the plaintiff, on the seventeenth day of April, 1856, executed in favor of Catesby Barnes four several promissory notes, each for the sum of two thousand dollars, the last one of the series maturing on the first of January, 1860. To secure the payment of these notes he gave a mortgage on the land in controversy, which was recorded on the same day the notes were executed, seventeenth of April, 1856. This mortgage was reinscribed on the twenty-ninth of June, 1868. On the twenty-seventh of February, 1866, in settlement and liquidation of a large indebtedness to Gordon & Castillo, of New Orleans, Daniel Byrne executed a mortgage upon the same land to secure to them or to any future holders thereof fifty-six promissory notes drawn by him, payable to his own order and indorsed by him, dated first of June, 1865. This mortgage was recorded in the parish of Madison on the sixth of March, 1866. On the eleventh of January, 1866, Daniel Byrne waived prescription on the last note of the series given by him on the seventeenth of April, 1856, to Catesby Barnes, and which, as we have seen, fell due on the first of January, 1860. Suit was brought upon that note by Barnes on the twenty-seventh of October, 1867, and it appears that Daniel Byrne, on the same day, waived citation, accepted service and confessed judgment. The petition in this case recites the mortgage given to secure the payment of the notes of the seventeenth of April, 1856, and prays that it be enforced against the property mortgaged. The j udgment rendered in the case recognized the mortgage and directed the land mortgaged to be seized and sold. After the usual proceedings the sale was made on the third of October, 1868, and Charles If. Byrne, the plaintiff in this case, became the purchaser. The certificate of mortgages read at the sale recited as the first the mortgage of Daniel Byrne to Catesby Barnes, giving the date at which it was recorded, seventeenth of April, 1856, and the date of its reinscription, twenty-ninth of June, 1863. The mortgage in favor of the Citizens’ Bank is placed as second in order on the list of mortgages recited. This mortgage contains the pact de non alienando. It is shown by the evidence that Daniel Byrne, the father, has continued to reside on the land sold since the sale, and that Charles If. Byrne has possession and control of the premises.

We think there is no error in the judgment. The certificate of mortgages read at the sale of the property was clear and distinct as to the dates at which the two mortgages were recorded. It showed that the mortgage to Barnes had perempted and that its reinscription postponed it to the mortgage of the Citizens’ Bank, which, being first in rank, the property sold tinder the junior mortgage could only be sold subject to that of the Citizens’ Bank.

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

Rehearing refused.


author: Howell, J.

text:
    No. 3191.
    Mrs. C. Caulk v. Mrs. C. Picou and Husband.
    Tlie law provides that whenever, owing to the mismanagement of the husband, the dowry of the wile is in danger, or when the disorder of his affairs induces the wife to believe that his estate may not be sufficient to meet her rights and claims, she may petition the court for a separation of property. Civil Code, 2425. In such a case, the judge must hear evidence to show that the belief of the wife that her rights are in danger has a rational basis, before he grants the order, but no particular kind or quality of evidence is required. Evidence that the husband is possessed of a large estate, sufficient in amount to cover the wife’s claims, if it bo shown on the other hand that he has met with heavy losses, and is indorsor, etc., for large amounts, will not justify the court in rescinding or annulling an order which has been granted separating them in property.
    APPEAL from the Fifth District Court, parish of Iberville.

      Posey, J. Barrow & Pope, for plaintiff and appellant.

      Andrew. 8. Perron, for defendants and appellees.
   Howell, J.

On the third of August, 1865, Mrs. Carmelite Picou, the defendant, obtained a judgment against her husband, Isaac Irwin, for the separation of property, the possession of her paraphernal effects, and the sum of $48,327, with a privilege on the movables and mortgage on al'1 the immovables of the husband to the extent of $10,000 as dotal funds, and a mortgage for the balance as paraphernal from the following dates: For $26,612 from first June, 1858; for $5000 from seventeenth October, 1857; for $400 from first May, 1832; for $500 from twenty-sixth March, 1836; for $615 from twentieth June, 1839; for $2300 from eighteenth May, 1853; for $700 from tenth January, 1854; for $1100 from twenty-second February, 1855; for $1100 from twenty-seventh July, 1856

Under this judgment the wife was put in possession of certain movable and immovable property, and the landed estate was sold at sheriff’s sale, and bought by her, on seventh October, 1865, at the price of $13,500, a little above the appraisement.

On twelfth August, 1867, the plaintiff, Mrs. Caulk, obtained judgment against Isaac Irwin for $6676 36, with eight per cent, interest and mortgage from seventeenth February, 1859, subject to certain credits on March 1, 1860, and February 14, 1861.

The present suit was brought by said Mrs. Caulk in April, 1868, to annul the above judgment in favor of, and sheriff sale to Mrs. Picou, wife of Irwin, on the ground that they were fraudulent and collusive, the judgment having been rendered on the confessions and receipts of the husband, and not upon evidence binding on creditors, the husband not having been shown to be embarrassed at the time, and the separation being voluntary, and hence the wife acquired no title to the property at the sheriff’s sale.

The district judge rendered judgment against the demand for nullity, but reduced the amount in favor of the wife to $31,016 57, with mortgage for different sums, respectively from twenty-second June, 1858, to fifteenth October, 18C0, giving priority to $13,073 74 over the plaintiff’s mortgage, and sustained the validity of the separation and sale. From this judgment plaintiff has appealed.

The first point pressed on our consideration relates to the validity of the decree of separation. There is abundant evidence that Irwin was indebted in some amount to his wife, and the question arises as to the legal cause for a separation of property — the danger to the wife’s rights. The law does not fix the degree or quality of proof, but simply-provides that the wife may petition for it whenever her dowry is in danger, owing to the mismanagement of her husband or otherwise, or when the disorder of his affairs induces her to believe that his estate may not be sufficient to meet her rights and claims. C. C. 2425. The judge must have evidence that this belief has a rational basis, before granting her prayer. In the case of the defendant, she was claiming $48,327 from her husband immediately after the war, when the pecuniary condition of most persons in the State was at least uncertain, and when, as was shown, her husband had lost many slaves; she besides showed that there were two mortgages on his real estate, amounting to ten thousand dollars, and he was indorser to the extent of $40,000. She also introduced her marriage contract for a dowry of $10,000, and the assessment of her husband’s property in 1864 at $48,300.

The plaintiff in this suit contends tnat tms last vact is sufficient to annul the decree of separation, because it shows that the husband could not have been so embarrassed as to endanger the wife’s rights-We are not prepared to concur in this position. We think the circumstances show that the wife had a reasonable ground to believe that her rights were in danger, and the appraisement and public sale of the same property in about two months after, at the sum of $13,500, justified her belief and the conclusion of the judge as to the cause for a separation. It is true plaintiff alleges that this sale was far below the real value of the property at that time. The evidence, however, does not sustain this allegation, and there is no averment or proof that there were any devices or efforts to prevent a fair sale. Several witnesses, introduced on the trial of this case, show that the appraisement and-sale were not far from the true value at the time. We, therefore, are mot disposed to interfere with said decree. It is not a consent judgment or voluntary separation as urged, for the husband denied the -alleged embarrassment, and there was proof introduced.

AS to the amount allowed the wife in the judgment appealed from, .-and that to which priority is given over the plaintiff, we think the .judge is fully sustained by the evidence and the ruling iu Eager v. Brown, 14 An. 684, 7.

Judgment affirmed.


author: Howedl, J.

text:
    No. 3315.
    State ex rel. J. M. Kane v. The Judge of the Seventh District Court, Parish of Orleans.
    Hlie judgment of tbe court below setting aside a suspensive appeal on tlie ground that tbe surety on the bond is not good and solvent, will be reviewed by the Supreme Court on .an application for a writ of prohibition, and if the surety is found to be good, the writ of •prohibition will issue. A surety on the appeal bond need not show that he possesses iroal estate to an amount sufficient to cover the bond, nor need he show that he will be worth the amount of the bond at the time it becomes exigible. It is sufficient for him to ;show that he is worth in personal property, over and above his liabilities, an amount • above that of the bond at the time of signing it.
    Application for a Writ of Prohibition.

      JBentindc jzgan, for relator. T. Wharton Oollens, Judge, respondent.
   Howedl, J.

The relator asks for a writ of prohibition to restrain ■the judge of the Seventh District Court for the parish of Orleans from proceeding any further in the case of James M. Kane v. John Robinson, from a judgment in which he had obtained a suspensive appeal.

The judge answers that he set aside the appeal as suspensive ¡because the security on the bond was not good and solvent for even two hundred dollars, the amount thereof.

The testimony of said security is brought up and it shows that he is 'worth the amount of the bond over and above all Ms liabilities; that Ms property, all movable, is estimated by him at about six hundred •dollars and is within this parish, where he resides, and that he does not owe more than twenty-five or thirty dollars, to pay which he has ■the money.

This seems to answer the requirements or tne iaw. A surety is not ■required to own immovable property, but to have property sufficient, ■at the time of signing the bond, to answer for the amount of the ■obligation assumed by him. There is nothing in the record which leads us to suppose or conclude that his property, as described by him, is insufficient in value and amount to meet the obligation signed by Mm. The theory that the property may deteriorate or be disposed of before-the termination of the litigation would render most sureties doubtful, at least, if made the test of sufficiency. The law rather presumes that every man will endeavor to increase than lessen his possessions.

It is therefore ordered that the writ of prohibition herein be made perpetual.


text:
    No. 2202.
    P. Dufort. v. L. Abadie.
    Injuries done to one’s feelings by slanderous words used toward him by another in public, such as “thief and rascal,” furnish legitimate ground for an action in damages, and the amount of damages will be measured by the aggravated character of the language used. 17 An. 64; 19 An. 322.
    APPEAL from the Seventh District Court, parish of Orleans.

      Oollens, J. Sambola & JDuoros, for plaintiff and appellee.

      E. Ocmlrray, for defendant and appellant.
   Howell, J.

The plaintiff claims $5000 damages for slanderous words uttered by the defendant, and the court a qua having allowed $500, the defendant appealed.

His counsel avows that the object of the appeal is to obtain a reduction of the damages assessed, as excessive, and relies on the case of Miller v. Roy, 10 An. 231, to support his demand. In that case, $5000-were claimed for having been called a thief, etc., as in this case; $300' were allowed, and on appeal the judgment was affirmed. The court, said: There is evidence tending to show that the plaintiff’s good repute suffered in some degree from the charges brought against him in-such intemperate language by the defendant, and it is not pretended that the charges had any foundation in truth; ” while in this case,, counsel contends there is no evidence tending to show that the plaintiff’s good repute suffered in any degree. As said in the case quoted: “ Injuries to the feelings and to one’s social standing are not susceptible of a precise admeasurement. Still, in a very limited class of cases, such injuries are recognized as a legitimate ground of action.” We-think the evidence in the record shows this to be one of that limited class of cases, and that the damages awarded by the district judge are not excessive. The defendant was emphatic in denouncing plaintiff, in his presence and before a crowd, as a “thief and rascal,” and several times repeated the epithets, notwithstanding the remonstrance of plaintiff and a friend, and it is shown that the charges were the subject of frequent comment among plaintiff’s acquaintances as calculated to have-an injurious effect on his standing. The circumstances bring the case-within the ruling in those of Bonnin v. Elliott, 19 An. 322, and Mohrman v. Ohse, 17 An. 64.

Judgment affirmed.


text:
    No. 3150.
    H. Kendall Carter v. S. C. Williams, Administrator.
    Defendant owed plaintiff $8008. To secure this debt he sold to plaintiff three-fourths of his plantation, and gave liis throe notos, each for one-third of tho debt, due at one, two and three years, with a stipulation in tho agreement that if the debtor should promptly pay the notes at their maturity, the land was, to revert to him again; but if he failed to pay the notes at maturity, then the right to recover back the plantation or tho portion he had tints disposed of was forfeited. Held —That this transaction was a sale with tho right of redemption, and not a mortgage given by the debtor to secure the debt.
    APPEAL from tho Ninth Judicial'District, parish of Natchitoches.

      Orsborne, J. Pierson & Levy, for plaintiff and appellee.

      Jaelc & Pierson, for defendant and appellant.
   Taliaferro, J.

Freeborn Gr. Bartlett and the plaintiff, on the eighteenth of February, 1868, entered into a contract, the substance of which is as follows: Bartlett acknowledged to owe Carter $8008, and declared, that for the purpose of securing unto the said Carter the said sum of money, I do hereby sell the undivided three-fourths part of my plantation,” etc., describing the premises, and adds, “which sale I hereby make for and in consideration of said indebtedness to said Carter. In evidence of which indebtedness I this day furnish three promissory notes, each for $2669 43, dated this day and payable in one, two and three years after date, with eight per cent, per annum interest from maturity. Said notes are made payable to said Carter, and are not negotiable, and are also subject to all the stipulations contained in this act.” The act then recites: It is hereby agreed by and between the parties that in case' the said Bartlett shall well and truly pay unto said Carter the said notes, according to tlieit tenor, then he shall he entitled to the redemption of the property which he does hereby convey, and by absolute right, by reason of the payment of the notes.”

It is then agreed that if the first note is not paid at its maturity, the right of redemption ceases if Carter so elects, and he takes the prop- . erty as absolute owner. If, however, he should not so determine, the payment of the first note is thereby postponed to the maturity of the second note, when he lias the same option; but in this ease Bartlett •lias priority of choice, for it is one of the express stipulations that he also has tho right at the end of the second year to terminate the right of redemption, and render Carter perfect owner of the property, “in case he should find at the end of two years that he can not pay said notes.” It is clearly expressed that a failure to pay the notes was to operate a loss of the right of redemption, Carter taking in full ownership the property and restoring the notes to the maker of them, whose indebtedness became extinct. In the event the right of redemption should lapse by neither party taking action in regard to it, an amicable partition in kind was to take place between the parties. During the term agreed upon for the payment of the debt, Bartlett was to remain upon the plantation and. use the stock, working animals, etc., without the payment of rent or anything for the privilege, and the crops grown on the place to be exclusively his own property and to inure to his ' benefit alone. They were, however, to be shipped to Carter, as a commission merchant, and sold by him. The taxes and other charges on the plantation to be paid by Bartlett.

In the month of July following, about five months after this contract ■ was entered into, Bartlett died. The present defendant, Williams, became his administrator. An inventory was made, and the land, plantation, stock, etc., were entered upon it as belonging in undivided ownership to Bartlett and Carter, an undivided fourth part only of the ■entire property being treated as belonging to the succession of Bartlett. On the seventh of May, 1869, the administrator filed a provisional ■account of his administration and a schedule of the debts of the estate, but the notes held by Carter for the $8008 owing to him under the ■contract referred to were not mentioned among the debts. An opposition was filed on the part of Carter to the administrator’s accoun t. It is alleged in this opposition that Carter is a creditor of the succession in the sum of $8003, evidenced by the three notes we have already ■described, which, it is alleged, are secured by mortgage by the act of •eighteenth February, 1868, the one just recited.

These proceedings were first instituted in the parish court o£ Natchitoches, and a judgment was rendered in that court rejecting the ■opponent’s claim. An appeal was taken to this court at the term at Natchitoches for August, 1869, and dismissed for want of jurisdiction in the parish court. The controversy was subsequently renewed in the district court, where it was concluded iu January, 1871, by the rendition of a judgment in favor of the plaintiff and opponent, recognizing the act of eighteenth February, 1808, as a mortgage to secure the payment of the notes therein specified, and ordering their payment in due course of administration. From this judgment of the ■district court the administrator has appealed.

The character of the instrument forming the basis of this litigation, .and the intention of the parties in executing it, are the principal inquiries in this case. A mortgage is a secondary obligation entered into to secure the performance of a principal or primary obligation. Is the act under consideration a secondary obligation 9 If secondary, what is the principal obligation? Can the notes be so considered? They are not negotiable, and were expressly made so. They are, moreover, expressly subordinated to the stipulations of the written act. The language of the written agreement is: "Said notes being payable to said Carter and are not negotiable, and are also subject to all the stipulations contained in this act.’’ It is not declared that the property mentioned is mortgaged to secure the payment of these notes. •On tlie contrary, the act in the outset recites, that “for the purpose of securing unto the said Henry Kendall Carter the said sum of money, the said Freeborn G-. Bartlett does hereby sell the undivided three-fourths part of his plantation, containing six hundred acres,” etc. .After a description of the land and appurtenances sold, the act continues: “It is hereby agreed by and between the parties that in case the said Bartlett shall well and truly pay unto the said Carter the said notes according to their tenor, then he shall be entitled to the redemption of the property' which he does hereby convey, and by absolute right, by reason of the payment of the notes.” That is, he is to get back the land if he pays the notes. It is nob stipulated that if the notes are not paid the creditor shall have the right to sell the land •by judicial process, and apply the proceeds to the payment of the ■notes in the manner of proceeding to enforce a mortgage. No such proceeding is contemplated. The creditor is already the owner of the ■property, and if the notes are not paid they are to be returned to the maker, and the debtor loses the right of getting back the property. This discharge from his indebtedness is the consideration for which he •sells three-fourths of his plantation. The contract is So far complete that the creditor can not pursue the debtor on the notes. The notes in this transaction represent no indebtedness of Bartlett to Carter. They are mere memoranda indicating sums of money, which, if paid according to their tenor, the creditor is willing to receive in lieu of the property he has already taken in payment of his debt, and which he is bound to permit the debtor, by paying these sums, to redeem. They are not subsisting obligations upon which the creditor can found .an action. We conclude, therefore, that the notes do not constitute the primary obligation. If this be true the act is not a mortgage. That it is a sale with right of redemption we think there can be no doubt. It has all the elements of a contract of that kind. The property is declared to be sold ■, the price is the $8008 which the debtor owed. A term is stipulated within which he may redeem the property ■on paying certain sums of money in annual installments. A failure on the part of the seller to pay the first installment enables the buyer, if he thinks proper, to preclude the seller’s right to redeem. If the buyer fails to give notice of his refusal to extend the term, it becomes thereby extended for another year. At the end of the second year both parties are empowered to declare the right of redemption at an -end, and either may so declare. The party having the right of redemption expressly stipulates for himself the right to declare and elect that the said Carter is the absolute owner of the said property, now transferred to him in full release and extinguishment of said indebtedness of said Bartlett, “in case said Bartlett should find at the end of two years that he can not pay said notes.”

It is argued that the act is a mortgage having the faculty of becoming a sale, if at the end of two years from the date of the act Bartlett should be unable to pay the notes, and should elect to declare Carter to be the owner of the property in lieu of the debt; and that Bartlett having died before the expiration of that time, and Carter not having declared the forfeiture of the right to redeem, no formal and final action has been taken in the matter. And it is, therefore, further held that the act is still a mortgage, and should be so enforced, as decreed by the district court.

We do not see the force of this reasoning. It is shown that the administrator has throughout disclaimed all right of the succession of Bartlett to three-fourths of the property in question, and that he has-constantly resisted the claim set up by the plaintiff upon the notes. There is, therefore, now no remaining right of redemption or will to, exercise that right if it remained.

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 opposition to the administrator’s account by the-plaintiff be overruled and dismissed; that the notes upon which the opposition is founded be canceled and annulled, aud that the adiuintrator’s account, so far as relates to the opposition of the plaintiff, be approved and homologated, the plaintiff paying costs in both courts.

Rehearing refused.


text:
    No. 3221.
    Lucy G. Beard and Husband v. J. V. Duralde, Jr., Sheriff, et al.
    Materials that aro for the first time collected together for the purpose of erecting a building do not form a part of the realty, nor do materials that result from the demolition of a building any longer retain their character of immovables and form a part of realty; but whore a building is torn down with the view and intention of remodeling and repairing, and in doing which the same materials are to be used, then and in such case, the character of immovables which the materials have acquired by being used in the construction of the first building is not lost, and they are still immovables by destination, because they are intended to be used in the repairing or reconstructing the old building.
    APPEAL from the Fifth Judicial District Court, parish of West Baton Rouge.

      Posey, J. Samuel P. Greves, for plaintiffs and appellees.

      Parroio <& Pope, for defendants and appellants.
   Taliaferro, J.

Archinard, administrator of the succession of Giquel, having obtained a judgment against Mrs. Beard, issued an execution and seized a lot of lumber and bricks on her plantation. She enjoined the sale on the ground that the articles were being put to the use for which they were intended, that is in the erection of a framed sugarhouse, at the time they were seized by the sheriff, and were immovables by destination, and could not be seized separately from tha land on which the building was in progress of construction.

This ground was considered by the judge a quo as sufficient to warrant the plaintiff in staying the execution by injunction, and rendered judgment perpetuating it. The defendant appealed.

Article 468 of the Civil Code is relied upon to support the position assumed by the plaintiff. That article reads thus: “ Materials arising from the demolition of a building, those which are collected for the purpose of raising a new building are movables until they have been made use of in raising a new building. But if the materials have been separated from the house or other edifice only for the purpose of having it repaired or added to, and with the intention of replacing them, they preserve the nature of immovables, aud are considered as such.”

The evidence is that a portion of the bricks had been used in building the foundation for the sugarhouse; that about half the foundation had been laid; that the workmen were putting up the building at the •time the bricks and lumber were seized. But, as appears from the ■evidence, the sheriff seized only the bricks and lumber that were lying ■around convenient to be used as the work progressed, and not any of the material which was already worked into or attached to the new structure. A part of the lumber seized was still lying at the landing where it had been delivered, having been brought there by water, as had also the bricks.

We do not see the parity of reasoning oy which it is maintained on tiie part of the plaintiff that building material intended to be used in ¡the construction of an edifice, although never having been so used, becomes immovable by its distinctive quality like materials are which, having formed part of a house, have been separated from it only ior the purpose of having it repaired or added to, and with the intention of replacing the materials. In the latter case, the materials had acquired their, character of immovables by having previously constituted part of the fabric, and they retain that character where the intention exists of replacing them in repairing or enlarging the edifice. In the former case, the materials have not that character because they have never constituted a part of any structure or work of any kind to give them that character.

We think the court below errea m the conclusions it aimed at in supposing the facts of this case analogous to one in which materials are detached from a building with the intention of using them in repairing or enlarging that building. The first paragraph of article 468, already quoted, seems explicit on the subject. Two classes of materials are enumerated in that paragraph, and both classes are declared to be movables: First, materials arising from the demolition of a building. This is where the building or work is destroyed. Its component parts are permanently separated, and they lose their character of immovables because the destination which was imparted to them and which gave them the character of immovables is at an end.. Second, materials which are collected for the purpose of raising a new building are movables until they have been used in raising a new-building — tbe very case presented here. We see from the second paragraph that it treats of materials having a different condition from that of those spoken of in the first paragraph. The materials in this category are not those of a demolished building, nor such as are collected, for the purpose of raising a new building. They are such as have been separated from a building temporarily, and to be again attached to it, in the operation of repairing or enlarging it. The cases in 2 An. 451,. 4 An. 127, and 6 Rob. 424, harmonize with the views here taken.

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 injunction be dissolved, and that the defendant in-injunction recover of the plaintiffs and their sureties, in solido, eight, per cent, interest per annum on the amount of the judgment enjoined, ten per cent, thereon general damages, and seventy-five dollars as. special damages, and all costs of suit.

Rehearing refused.


text:
    No. 2816.
    J. Foley v. Mary F. Hagan
    A privilege given by private contract confers no preference over a mortgage on the same • property, if it is not recorded in the parish where the property is situated on the same day on which the act or other evidence of the debt was made. C. C. 1870,3274.
    APPEAL from the Fifth Judicial District Court, parish of Iberville.

      Posey, J. MeGloin & Klein/peter, for plaintiff and appellant,

      liousseau & Pstevan, for defendant and appellee.
   Howell, J.

The plaintiff claims a privilege for making and repairing a levee, on the plantation of the defendant which was seized and sold under a mortgage in the suit of G-. W. Murrell v. Mrs. Hagan, and the amount claimed was ordered to be retained by the sheriff. The privilege was denied, and the plaintiff appealed.

He neither alleged nor proved that the work was adjudicated to him in accordance with existing laws and ordinances, but relies upon the registry of a private written agreement or contract with the proprietor. This registry, however, was not made in compliance with article 3240, C. C. of 1825, and by article 3241 the privilege was lost, admitting that, a privilege could so be acquired, under existing laws, to the prejudice-of Murrell’s mortgage created in 1860.

This view of the case renders it unnecessary to pass on the bill of exceptions and other points referred to in plaintiff’s brief.

Judgment affirmed.

Rehearing refused.


author: Wyly, J.

text:
    No. 3173.
    Harvey S. Losee v. John De Lacey, Sheriff—William J. Beatty, Intervenor.
    A judgment creditor who has caused the seizure of a plantation can not "be required to-release his seizure because an injunction has been granted against the sale of one undivided half of the place. In such a case he may cause the other undivided half, not enjoined, to be sold, and if the sale is to be made with benefit of appraisement, the one-half of the estimated value of the entire property is the proper basis on which the sale should be made. If the sale be made in this way the sheriff, on refusal, will be compelled by mandamus to make formal title to the one undivided half thus sold and put the purchaser in possession thereof.
    APPEAL from the Ninth Judicial District Court, parish of Kapides.

      Orsborne, J. Win. A. Seay, for plaintiff and appellant.

      J. G. White, for defendant and appellee. T. 0. Manning, for intervenor, appellee.
   Wyly, J.

The plaintiff alleges, that at sheriff’s sale, under three writs of fieri fiadas against the defendant in execution, William J. Beatty, he beeame the purchaser of an undivided half of a tract of land belonging to the latter for the sum of $3666 66, an amount exceeding two-thirds of the appraised value thereof; that being the highest and last bidder, the property was adjudicated to him. He also avers that the sheriff refuses to make him a title to said property, although he duly tendered the price of the adjudication, and is ready, and always has been, to pay the money to him. On these averments he prayed for a rule on the sheriff, and at the trial thereof that he he ordered to make him a title to said property and put him in possession on paying the amount of his said hid, etc. -

William J. Beatty, the defendant in execution, intervened and complained that his property had been adjudicated without a full ohserv-anee of legal formalities; that the whole of his plantation, containing one thousand acres, was seized, advertised and appraised, notwithstanding whioh the sheriff offered for sale an undivided half thereof, and the plaintiff having hid two-thirds of the one-half of the appraisement, claims to have title made to himthat if the sheriff offered and adjudicated the undivided half of the plantation seized and advertised, he did an unlawful act, and discovering the illegality, he rightly refused to make title to the adjudicatee.

The prayer of the intervenor is, that the demand of the plaintiff he dismissed; that the sheriff he sustained in refusing to make title, and that the pretended sale he declared a nullity.

In answer to the rule of the plaintiff the sheriff states, that under the writs in his hands he seized the whole of the plantation and advertised it as an entirety for sale ; hut subsequent to these proceedings, to wit: on the fifth of November, 1869, and a few hours before the sale, “he was enjoined from making the sale of the plantation according to the seizure and adveitisement and appraisement then already made, by virtue of a writ of injunction from and by this honorable court in the suit of L. A. Sauton, tutor, v. William E. Levericli and John De Lacey, sheriff, No. 1548 on the docket; that by this writ of injunction the sale of the undivided one-half of the plantation thus seized and to be offered for sale was inhibited; that your respondent, without reflection and ignorant of the legal consequences' of this writ of injunction as affecting the said' seizure and sale, and taking the appraisement of the whole plantation, which had been previously made as above stated, as the basis for the appraised value of the one undivided half thereof not enjoined as aforesaid, he did at the time and the plaee set forth in the advertisement above referred to, offer for sale under the seizure, the advertisement and the appraisement, the undivided one-half of the plantation, when the plaintiff herein appeared and made the last and highest bid, which bid exceeded two-thirds of the one-half of the appraised value of the property or the whole plantation ; that immediately after these steps were taken your respondent was notified by parties in interest that the sale of the undivided one-half of this plantation could not be legally and rightfully made; that he could not legally sell the half when he had seized, appraised and advertised the whole, without commencing his proceedings anew;” that his refusal to comply with the plaintiff’s demand, as set forth in the rule, was because he believed the sale was illegal and he did not wish to commit a wrong knowingly.

The court gave judgment rejecting the demand of the plaintiff, annulling the sale and sustaining the sheriff in refusing to make title to the adjudicates.

The plaintiff has appealed.

We And in the record a copy of the appraisement, dated on the sixth of November, 1869, instead of on the fifth of the same month, as stated by the sheriff. This instrument shows that the defendant in execution, the intervenor in this proceeding, appointed one of the appraisers, and that the whole plantation, with its improvements, was appraised at eleven thousand dollars ($11,000), one undivided half being five thousand five hundred dollars.”

From the evidence we regard the appraisement as substantially correct.

The only question is, can the sheriff who has seized .and advertised the whole of a plantation, after being enjoined from selling one undivided half, proceed to the sale of the other undivided half without making a new seizure and advertisement? We think that lie can. We know of no law compelling a seizing creditor to release his seizure because part of the property seized by the sheriff has been enjoined and can not be sold pending the injunction. Besides, in this proceeding, neither the sheriff nor the intervenor has alleged and proved an injury; nor has it been shown that the property was adjudicated to the plaintiff for less than two-thirds of its appraised value or for less than its real value.

The authorities cited by the intervenor and the sheriff are not in point, and the judgment of the court below is manifestly erroneous.

It is therefore ordered that the judgment of the court a qua be avoided and annulled; and it is now ordered that there be judgment for the plaintiff, making his rule absolute and requiring the sheriff to make to him a formal transfer of the property adjudicated to him and put him in possession thereof, on his paying the price of adjudication; and that the sheriff pay costs of this proceeding. It is further ordered that the intervention herein be dismissed and that there be judgment against the intervenor for the costs of the intervention; and that appellees pay costs of this appeal.

Rehearing refused.


author: Ludeling, C. J.

text:
    No. 3186.
    James J. Powell v. Catherine S. Daniel.
    A contraot to remove slaves and other property to Texas and take care of them, during the late war and before emancipation, by the sovereign power, the United States, was legal at the time it was made, and is, therefore, binding on. the parties by and between whom it was made.
    APPEAL from the Thirteenth Judicial District, parish of Tensas.

      Hough, J. A. A. <& H. A. Ogden, for plaintiff and appellant.

      ■Julius Avoid and Farrar & Beeves, for defendant and appellee.
    This case was tried by a jury in the court below.
   Ludeling, C. J.

The plaintiff sued the defendant for services rendered in carrying her slaves and other property to Texas, and managing and taking care of the same for her, etc., under a written contract.

The defense is a general denial, and that the contract “is illegal and invalid, and is reprobated as immoral and opposed to all laws human and divine,” etc.

The plaintiff has proved the written contract, and that he faithfully performed the services undertaken. The defendant has failed to convince us that the defense has any merit; the contract was lawful at the time it was entered into.

It is therefore ordered that the verdict of the jury be set aside; that the judgment of the district court be reversed, and that there be judgment in favor of the plaintiff against the defendant for thirty-six hundred and thirty-four dollars and forty-seven cents, with five per centum interest thereon from judicial demand, and costs of both courts.


author: Howe, J.

text:
    No. 2333.
    Succession of the Misses Morgan.—On the petition of Ellen Stewart and others, claiming as representatives of Thos. A. Morgan.
    ■ Representation is a fiction of law, which places the representative in the position, degree- and rights of the person he represents. The representative of the deceased does not receive hy transmission from the person he represents, hut he is endowed hy the law with the rights to the succession of such person. He is not, therefore, by the fact of representation merely, rendered personally liable for the debts of the person whom he-represents.
    "Where parties have died, leaving a succession which falls exclusively to the collateral heirs,, there being no heirs in the direct line, either ascending or decending, and one of the branches of the collateral line claims hy representation, such representative branch can not ho compelled to collate a debt which their ancestor owed to the deceased, nor are> they hound to collate gifts made by the deceased to their ancestors. C. C. 1313.
    APPEAL from the Second District Court, parish of Orleans.

      Duvigneaucl, J. li. Stmt, for appellants.

      Win. O. Denegre, for appellees.,
   Howe, J.

The Misses Morgan, four sisters, perished in a common calamity on the twenty-eighth November, 1867. Dying intestate, and leaving neither ascendants nor descendants, their succession was claimed hy a sister, Mrs. Mary Harrod, and a brother, William H. Morgan, to the former of whom letters of administration were granted. Thomas A. Morgan, a brother of the half blood of decedents, died in 1858, leaving seven children, his heirs, whose claim to one-sixth of' this succession, hy representation, is the subject of controversy before-us. The succession is valued at about $52,000.

It is admitted that Thomas A. Morgan died insolvent, that he was-indebted at the time of his death to the Misses Morgan in the sum of $12,850, an amount largely exceeding what would have been his distributive share in their succession had he survived his half-sisters j, that no part of this sum has been paid; and that the claimants hy representation, his children, long since renounced his succession.

The judge below decided in iavor of the claims hy representation of the children of Thomas A. Morgan, and decreed them to-be heirs for-one-sixth of the succession of the Misses Morgan, that is to say in the Imposition of one forty-second part to each. From this judgment Mrs. Harrod, individually and officially, and William II. Morgan have appealed.

The appellees contend that as representatives of their father, T. A.. Morgan, they are collectively entitled to one-sixth of the estate of their aunts without regard to the larger debt he owed those aunts j. because, having renounced the succession of T. A. Morgan and their-rights of inheritance not being- acquired by transmission through him,. hut conferred by the law in the form of a representation of him, they can not he compelled to discharge his obligations or collate his debts.

The appellants, on the other hand, contend that, as the children of T. A. Morgan do not, and indeed can not, claim a share in the estate of tlieir aunts in tlieir own right, but only by representation of their father, they can have no greater rights than ho himself if still alive could exercise; that is to say, the right to one-sixth of the estate, less the sum of $12,850; and that as this admitted debt is larger than the distributive share the claim of his representatives must be dismissed.

Representation is a fiction of law, the effect of which is to put the representative in the place, degree and rights of the person represented. C. C. 890; C. N. 739; Inst. 1. 3, t. 2; Nov. 18, cap. 4,118,127.

A dead man can neither get nor give; he can neither inherit nor transmit. The representative of the deceased person does not receive by transmission from that person and jure alieno; he receives by designation of law and jure suo. It follows therefore that the representative is not by the fact of representation merely rendered personally liable for the debts of the person whom he represents. He is endowed by the law with the rights of the latter in a certain succession, but is not laden with the obligations of that latter to the rest of the world. He is not an accepting heir, but a designated representative. This doctrine is elementary, and we do not understand that its correctness is questioned by the appellants.

But to reach the exact question in this case we have to go one step further, and inquire, not merely if the appellees are liable for tho debts of T. A. Morgan to the outside world (if we may use tho expression), but if their share in the succession of the Misses Morgau must be reduced by the amount of debts due by their pre-deceased parent to the Misses Morgan. The question is not free from doubt; much may be said on principle for each side, and either view may be copiously illustrated by analogies drawn from the jurisprudence of France. But after a careful examination, both of our own books and the French authorities, we have decided to follow the rule indicated in the case of Destrehan, 4 N. S. 557. That case was hotly contested. The court (Judge Matthews delivering the opinion) held that the share of a grandchild, coming by representation to the succession of his grandfather, should not be reduced by the amount of a debt due by the pre-deceased father to that grandfather. The eminent counsel against whom the decision was pronounced made an earnest application for a rehearing, in which they urged the same views substantially as those now pressed upon us by the appellants. The rehearing was granted, and after argument the opinion of the court, adhering to its former decision, was delivered by Judge Porter, who gave the subject an elaborate review. He admitted that if the article of the Code above quoted, which defines representation to be a fiction which places the representative in the place, degree and rights of tho person represented, stood alone, it would go the whole length for which the appellants at bar contend; but he proceeded to show that it did not stand alone, and that there were several cases in which, in a certain sense, the representative had greater rights .than the person he represented. The most striking perhaps is that provided for in O. C. 148, article 26, and in article 897 of the present Code, which declare that “when a person has been disinherited by his father or mother, or excluded from his succession for unworthiness, his children can not represent him in the succession of their grandfather or other ascendants, if he is alive at the time of the opening of the succession; but they can represent him if he died before.’’

Now, the case at bar is rather stronger than that of Destrehan in favor of appellees. In that case it was admitted that the share of the grandchild must be reduced by any gift made to the father, the thing given being collated. C. C. 1318. Rut in this case the appellees, collateral relatives, are not hound to collate either gifts or debts. C. C. 1313.

It is urged by appellants that the effect of tne judgment of the court below is inequitable. If must be remembered, however, that there is no question of natural right in the case. The right of property terminates with the death of the proprietor. We brought nothing into this world, and it is certain that we can take nothing out. The right of succession is not a natural hut a civil and social right. Succession is a civil institution, by which the law transmits to a new proprietor, designated in advance, the thing that the preceding proprietor has just lost. Especially is this true of the succession of collaterals, ab mtestato, under the provisions of law which create and control the fiction of representation. The parties to this controversy are all collaterals, the succession is intestate, its distribution is regulated by rules that are purely artificial, and the question in controversy is one purely of law.

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

Rehearing refused.


text:
    No. 3109.
    Succession of Cypkien H. Labranche. Contest involving the Validity of a Will.
    Tlie parish court lias exclusive original jurisdiction in tlie matter of receiving proof of last wills and. testaments. Therefore, if the validity of a will lie attacked on the ground of mental unsoundness of the testator at the time it purports to have boon made, the parish court has exclusive jurisdiction to try the issue.
    APPEAL from the Parish Court, parish of Sfc. Charles.

      O. J. Flagg, Parish Judge. J. I). Augustine and J. Mielwl, for appellants.

      O. T. Semis, for appellee.
   Taliaferro, J.

A question of jurisdiction is presented in this case. The appellants, claiming the succession of the decedent as collateral heirs, presented a petition, to the parish court for an inventory, which was made in conformity with the order rendered.

A day or two afterwards an instrument purporting to be an olographic will, was presented with a petition to the court for its opening and probate. The will was proved and ordered to be recorded and executed. Tbe appellants filed an opposition to tbe probate of the will, alleging themselves to ho tbe legal heirs of C. H. Labrancbe, averring tbe will presented to have been obtained by collusive and indirect means; that tbe deceased, at tbe time tbe will purports to be dated, was, by means of mental incapacity, unable to make a will; that it contains a fidei commissum reprobated by law, and for that réason is null and void.

Subsequently tbe defendant, who, claiming as universal legatee under tlie will, filed an exception to the jurisdiction of the court so far as it relates to the question of mental alienation. The exception was sustained, and the suit in relation to the contest about the will dismissed. The opponents have appealed.

We think the court erred. The suit is not brought for or against the succession. It is not a money demand, nor is it brought for a specific thing. The controversy involves only the validity of the will. Courts of probate, having exclusive original jurisdiction over the matter of receiving- proof of last wills and testaments and ordering' their execution, have jurisdiction to examine into their validity and to deskre them void, or to refuse au order for their execution. C. P. 924 ; 5 La. 395; 17 La. 4; 10 Rob. 193.

It is therefore ordered, adjudged and decreed that the judgment of the parish court dismissing the opposition of the appellants, be annulled, avoided and reversed. It is further ordered that this case be remanded to tbe court of tbe first instance to be proceeded with according to law, tbe appellees paying costs of this appeal.

Rehearing refused.


text:
    No. 3200.
    Citizens’ Bank v. Bouvard St. Amans.
    Stocks pledged to and in tlie possession of a "bank as security for money loaned, constitute a standing acknowledgment of the del)t, and prescription is interrupted during the time of tlie pledge. 21 An. 128; 22 An. 107.
    jf the appellant fails to make an assignment of errors in an appeal from an order of seizure and sale, the appellate court will only examine the case in so far as to ascertain whether the fiat oi the judge a quo is sustained hy authentic legal e-videnco.
    APPEAL from the Ninth Judicial District Court, parish of Natchitoches.

      Orsbm'ne, J. Pierson <& Levy, for appellant.
    Chaplin, Morse & Chaplin, for plaintiff and appellee.
   Howell, J.

This appeal is taken by third persons, tbe heirs of Mrs. St. Amans and creditors of tbe husband and father, tbe defendant, by virtue of a judgment against Mm in tlieir favor, and is taken from an order of seizure and sale against property mortgaged to the Citizens’ Bank in March, 1838, by the said Mr. and Mrs. St. Amans.

The appellants, who allege themselves to be third possessors of the property under their said judgment, file the plea of prescription of five years in this court against the obligations dated twenty-fifth May, 1838, on which the order of seizure and sale was granted. It appears, however, that the stock of the defendant was pledged to the bank as security for the payment of these loans, and according to the ruling in Citizens’ Bank v. Johnson & Bogan, 21 An. 128, and Police Jury of West Baton Rouge v. J. V. Duralde, 22 An. 107, this operated a suspension of prescription.

There is no assignment of errors annexed to the record, and we have only to see whether or not the fiat of the judge is sustained by legal authentic evidence.

The order was granted upon two stock notes signed by the defendant and identified with the act of mortgage, also an authentic copy of said act, executed by the defendant and his wife, containing her renunciation in due form; also an act of acceptance of said mortgage.

We find no error in the granting of the order of seizure and sale. Any irregularities subsequent thereto can not bo corrected on this appeal.

Judgment affirmed.


text:
    No. 2031.
    Succession of Pierre Pereuilhet.—On Opposition of Mrs. Doria Hautuo.
    Services rendered a person during liis last illness, as nurse and housekeeper, are not deemed to he gratuitous, hut, on the contrary, there is an implied contract that the party receiving such services is to pay a fair compensation tlierotor. The fact, if it were shown, that the nurse or housekeeper lived with tlie man she was nursing and taking care of as his concubine, does not impair or lessen her claim for wages, unless it he alleged and shown that concubinage was the motive and cause of their living together in the first instance and the services rendered were merely incidental to that mode of living.
    APPEAL from the Second District Court, parish of Orleans.

      Duvignemd, J. G. Schmidt, ior opponent and appellant,

      jEdward C. Guillet, for curator and apjiellee.
   Howe, J.

The opponent claimed $2875 for services as house servant and nurse. Her claim having been rejected, she has appealed.

The record shows that the deceased was a bachelor of some means, and that the opponent, with her children, resided in the house with him for some years prior to his death, which occurred Juiy 4, 1 67. He kept no other servant, and had no other nurse. The opponent kept house, did the marketing, cooking and housework, and ior some months prior to his death nursed him night and day. He died of consumntion; his disease was distressing and protracted, and he was an exacting patient. The opponent was assisted by her daughter, fifteen years old, •and her son, a boy of twelve. One of the attending physicians speaks in great praise of the patience and assiduity with which she performed her duties of nurse, and concludes:

“I can not estimate the value of the services rendered so delicately, ■and rendered in circumstances requiring so much patience. I can only ■state that if I were placed in the same circumstances, the probability is that I would leave to the person who had thus comforted me in my last days all what I possessed of worldly goods, and my blessing as a ■true Christian.”

We think it well settled that services rendered under circumstances like these will not be deemed to be gratuitous. No one is readily presumed to give such useful and tedious labors except under a quasi contract for a fair compensation. “It must be remembered,” as this court said in Camfranc v. Pilie, 1 An. 198, “that according to the elevated. morality of the civil law, no one ought to enrich himself at the expense of another, and that where a party calls upon another to do a thing, the law, in the absence of contrary proof, supposes an obligation to pay for what is done. For actions without words, either written or spoken, are presumptive evidence of a contract, where they are done under circumstances that naturally imply a consent to such a «contract.

It is clear, from the record in this case, that the estate of Pereuilhet was considerably enriched by the industry and the patient care of the ■opponent. If he had hired other servants and nurses, the amount coming to the heirs who now resist her claim would have been considerably reduced.

We gather from the record, as a whole, a quasi contract on the part •of the deceased to compensate the opponent for the services mentioned.

In their answer to the opposition, the appellees made the following •allegation: “ That said Doria Hautho for several years next preceding the death of P. Pereuilhet, lived with him as his concubine, and was •so living with him at the time of his death; ” and some testimony on this subject was introduced.

In the first place, the evidence on this point does not make the truth •of the averment very clear; and in the second place, if it did, the fact -as alleged would not, in itself, vitiate the claim of opponent. An employer can not pay off a female employe by robbing her of her virtue. Such a method of extinguishing an obligation is not known to the law. If concubinage had been alleged and proved to have been the motive and cause of the parties living together in the same house in the first instance, and the services in question to have been merely incidental to such a state of living, our conclusion might have been different; but such, is nbt the allegation, much less the proof; and we certainly will not presume that such was the fact.

''In Viens v. Brickle, 8 M. 7, where concubinage, though proved, did not appear to have been the motive of the association out of which the claim arose, the court, Martin, J., said: “We can not view this circumstance as preventing or destroying any right which she may have on the defendant for a remuneration, and perhaps it increases his obligation, in a moral point of view, of doing her justice, instead of lessening it in a legal,”

We think the opponent entitled to recover, and we fix the amount at $900, with interest from judicial demand.

It is therefore ordered that the judgment appealed from be avdided and reversed; that the opposition of Mrs. Doria Hautko be maintained for the sum of nine hundred dollars, with interest from December 17, 1867; that the tableau be amended by placing her as a creditor thereon for the said sum, and that the appellees pay the costs of both courts.

Rehearing refused.


text:
    No. 2929.
    A. J. J. Barus v. H. Bidwell et al.
    TIig effect of a judgment as between codefendants must be construed with reference to the pleadings and the nature of the obligation declared upon. Therefore, if the obligation sued upon be not solidary as to the drawers, yet if the acceptor is bound unconditionally for the whole debt, he can not maintain an injunction to restrain the sale of his property to pay the same on the; ground that his codebtors are not being pursued tor their share, even though they be not bound in solido.
    The husband can not maintain an injunction to stay the sale of his property, seized to satisfy a judgment rendered against him, on the ground that before the seizure he had transferred the property seized to his wife in payment of a debt which he owed her. In such a case, if the wife, whom it is alleged by the husband is the owner of the property seized, does not complain, the husband can not.
    APPEAL from the Fourth District Court, parish of Orleans.

      Theard, J. BigMor dé MeGollam, for plaintiff and appellee.

      J$. Billeul, for defendants and appellants.
   Wyly, J.

The plaintiff enjoined the execution of the judgment of the defendant, H. Bidwell, against him on several grounds. The most important is that the judgment was a joint one against him and two other judgment debtors, notwithstanding which the execution issued against him for the full amount of the judgment.

On this ground the court perpetuated the injunction, and the defendant, Bidwell, has appealed.

We think the court erred. The plaintiff was sued as the acceptor of a draft, and the prayer of the petition was that the said acceptor and the drawers of the draft be condemned solido to pay the said. Bidwell the amount of said demand, with costs, etc.

Although the judgment was against the acceptor and the drawer® for the amount of the draft, the words in solido being omitted, we think the plaintiff, the acceptor, is bound in the decree for the full amount thereof. It is an established rule that judgments, as between the parties, must be construed with reference to the pleadings and the nature of the obligation declared on, and although the obligation of the plaintiff was not solidary with the drawers, yet as acceptor he was bound for the whole debt, and the judgment against him must be construed as binding him for the full amount thereof. 14 An. 831; 15 An. 679; 16 An. 365; 3 L. 283.

As to the ground set up in the petition for injunction that the property seized did not belong to the plaintiff, but to his wife, to whom he had conveyed it by an act of giving in payment, we will remark that it is no ground for him to enjoin; if the owner of the property did not complain, he should not. The other grounds for the injunction are unworthy of serious consideration.

As the answer of the defendant to the petition for injunction asks for the dissolution thereof, with damages against the plaintiff and his surety on the injunction bond, we think, under the circumstances, the amount of damages should be fixed at three hundred dollars.

It is .therefore ordered that the judgment of the court a qua be avoided and annulled, and that the injunction herein be dissolved; and that the plaintiff in injunction and the surety on the injunction bond be condemned in solido to pay the defendant, II. Bidwell, three hundred dollars damages and costs of both courts.


text:
    No. 2896.
    Succession of E. Cordeviolle.
    Several appeals from different judgments, rendered in tlie settlement of a succession, may be cumulated in one record, if all the parties interested enter into an agreement to that effect. In such a case, if the bonds given in such case are sufficiently identified with the judgments from which appeals have been granted, and the respective amounts correspond with the amounts fixed hy the order of the court in each case, and be signed by the proper parties, the appeals will not he dismissed for irregularity.
    A judgment homologating an administrator’s account and tableaux, before the lapse of ten days alter citation, is a nullity.
    By a sale of succession property, mortgages existing thereon become transferred to the proceeds of the sale, and the purchaser of the property may have the mortgages erased from the records of the mortgage office hy rule to that effect on the recorder of mortgages.
    A judgment recognizing the widow as legatee under the will, must conform to those provisions in the will which award the legacy.
    APPEAL from the Second District Court, parish of Orleans.

      Duvigneaud, J. L. Castenau and Carleton Hunt and M. A. Dooley, for appellants.

      A. D. Tissot and Charles Louque, for appellees.
   Howell, J.

Two appellants are before us with appeals taken by them respectively from several judgments rendered in the progress of the mortuary proceedings herein, and made returnable on the same day, third Monday of May, 1870.

John Dawson, who was superseded in his office by the appointment of Mrs. Commagere, the sister of the deceased, as dative testamentary executrix, and Mrs. Cordeviolle, widow of the deceased, appealed from. ■ a judgment amending and homologating the account rendered by Dawson to his successor. The widow also appealed from a judgment ordering the erasure of the mortgage appearing on the records by the recording of her marriage contract; one amending and homologating | an account filed by the dative executrix, and one recognizing her as legatee for an annuity under the will, but refusing to recognize a mortgage resulting from the said marriage contract.

A motion is made to dismiss those appeals on grounds not well taken. That in regard to the appeals being in one transcript is cured by agreement. The bonds are for the amounts fixed by the judge, and, taken with the petitions for appeals, sufficiently identify and describe the judgments appealed from, and the one signed by the widow maintains the appeals in her individual capacity. Her interest as legatee is sufficient to authorize an appeal.

On the Merits.

We find no error in the judgment on Dawson’s account which he was ordered to render to his successor. 19 An. 22; 3 An. 624. The judgment which he obtained homologating it before the expiration of the legal delay was a nullity, and the opposition of the executrix was within time, having been filed before the lapse of ten days from service of citation to her.

The judgment ordering the recorder of mortgages to erase the mortgage resulting from recording the contract of marriage, and reserving to the widow u all her rights and privileges on the proceeds of the sale of said real estate for the payment of the annuity donated to her by the deceased in her marriage contract,” is one of which the said widow has no good cause to complain. The sale of the property raised the mortgage therefrom and transferred it, if it legally existed, to the proceeds. But, besides this, the court had already decreed that said mortgage did not legally exist on the real estate of the succession, and no appeal was taken therefrom.

We think, also, the judge a quo deemed correctly upon the oppositions to the account filed by the dative executrix, who does not complain of the items rejected, and the evidence seems to sustain those allowed.

As to the judgment recognizing the widow as legatee under the will for the sum of twelve thousand five hundred francs, a correction should be made to conform to the provisions of the will, which make it cm annuity to be paid out of the interest of the securities in which the proceeds of the estate are to be invested for the purpose. We do not undertake to order the proceeds to be transmitted and invested as contemplated, but simply to declare the widow to be entitled to said .annuity according to the will.

Tlie appeal from the judgment appointing the dative testamentary ¡executrix is not now before us.

It is therefore ordered that the motion to dismiss be overruled; that tbe judgment amending and homologating the final account filed by John Dawson, late curator, and signed on twelfth April, 1870, the one ordering the erasure of the mortgage claimed by the widow as resulting from the recording of her marriage contract, and signed March 28, 1870, and the one amending and homologating the provisional account filed by the dative testamentary executrix, and signed April 1, 1870, be respectively affirmed. It is further ordered that the judgment rendered on March 31, 1870, and signed on the thirteenth April, 1870, recognizing the widow Cordeviolle as legatee under the will for the •sum of twelve thousand five hundred francs, be so amended as to recognize her as legatee under the will for an annuity of twelve thousand five hundred francs, to be paid in accordance with the provisions ■of the said will, and that as thus amended said judgment be affirmed. Costs of appeal to be paid by the succession.

Rehearing refused.


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    No. 2205.
    Felicite Kohler v. J. P. Walden et als.
    'Tlie prescription of one, tlireo and five years does not apply to actions against a sberiJÍ' and bis sureties on liis official ‘bond, for misfeasance or malfeasance in office; such action is proscribed by two years, beginning from the date of default. Revised Statutes of 1870, p- 688.
    APPEAL from Fourth District Court, parish of Orleans.

      Théard, J. A. G. Semmes, for plaintiff and appellant.

      Fellows & Mills, for defendants and appellants.
   Howell, J.

This is an action upon a sheriff’s bond to recover tbe sum of $1000, which the defendant Walden, then sheriff of Orleans, was ordered on twenty-eighth September, 1861, by tbe Sixth District Court of New Orleans, on the demand of the plaintiff herein, to retain in his hands until the further order of said court; being a part of tbe proceeds of property sold in tbe suit of Brinkman v. The Succession of Frederick Kohler in said court. The writ in said suit, issued in August, 1861, and the said amount was paid to the sheriff on second December, 1861, and on seventh July, 1864, a judgment was signed awarding to the plaintiff in this action the said sum under the homestead act. The defense is that the sheriff had ample funds in bank out of which plaintiff might have made her claim, hut she has lost it by her own laehes ; that the sheriff was forbidden by military orders to pay this or any other claim, and that the sureties are not bound in solido. Judgment was rendered against the defendants in solido, and the ex-sheriff and two of his sureties have appealed.

In this court they have filed the plea of prescription of one, three and five years. Neither of these prescriptions applies to this action. The cases cited by defendants were suits against sheriffs personally for damages and not on their official bonds for breaches thereof. The prescription in favor of sheriffs and their securities, against their acts of misfeasance, non-feasance, etc., is two years from the day of the omission or commission of the acts complained of. Acts 1855, p. 366, § 10; Revised Statutes 1870, p. 688, § 3546. This prescription is not pleaded, and we can not supply it. If it were, there is nothing in the record to fix the day of default, from which prescription would begin to run, to wit: the date of demand by the judgment creditor (plaintiff herein) and non-jiayment by the sheriff, admitting that this prescription can apply to this or similar cases. See 14 An. 216.

The defense is not sustained by the evidence or the law. Plaintiff has received $350 on account, and the judgment was rendered for $650. This case differs somewhat from the one of Harvey, syndic, v. J. P. Walden et als., recently decided.

Judgment affirmed.

Rehearing refused.


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    No. 2021.
    Dennis Cavanaugh v. John Coleman & Co.
    In this case two members of the firm of John Coleman & Co. "bought out the interest of a third member and assumed all the liabilities of the firm which had been dissolved. Dennis Cavanaugh was a creditor of the firm, for which he brought suit; Dennis Cronan, the retiring partner, was a creditor of Cavanaugh to an amount equal to the debt of the firm to Cavanaugh. By an agreement of parties the matter was left to arbitrators selected by them, who examined and adjusted the accounts, and awarded to Dennis Cronan the amount which the firm owed to Cavanaugh. This award of the arbitrators was shown on the trial of the case to have been agreed to by all parties. Held — That by this settlement confusion took place, and the debt of Cavanaugh against the firm was extinguished by the payment hy the firm to Dennis Cronan, the same as if it had been paid to Cavanaugh and by him paid to Cronan; that the transaction was completo, and that Cavanaugh could not recover from the firm.
    APPEAL from the Sixth District Court, parish of Orleans.

      Oooley, J. J. Ad. Bonier, for plaintiff and appellee.

      O. Boselius and Alfred JPMMps, for defendants and appellants.
   Ludeling, C. J.

The plaintiff claims the sum of eight hundred and eighty dollars, balance due him for flagging materials furnished and labor done for account of said firm, according to settlement had in the year 1861.

The firm of John Coleman & Co. was dissolved about six months^ before tbe institution of this suit, and John Coleman and GeorgeCronan, two of the members, bought the interest of the other member of the firm, Dennis Cronan, with its assets, and. assumed the payment of the debts. In the act of settlement between the partners it is stated that an amount stated to be due by the firm to Thomas Cavanaugh is not included in the sale, and that the receiver of the firm shall retain the amount in his hands and pay it to Cavanaugh or Dennis Cronan, as the court might thereafter order.

The defendants severed in their defense. Dennis Cronan filed first a general denial and he called in warranty his former partners. They admitted the plaintiff’s claim against the firm and their assumption of the debts of the firm; but they aver that in the act of settlement, whereby they agreed to pay the debts of the firm, it was agreed that they should retain in their hands the amount due said plaintiff by the firm, until such time as there should be an order of court obtained for the payment of the same, as Dennis Cronan claimed that he was a creditor of said plaintiff to the amount of the plaintiff’s claim against the firm, and they express a readiness to pay the sum to whichever party the court may adjudge the debt to be due.

Then Dennis Cronan filed a peremptory exception to plaintiff’s demand, alleging that the claim of plaintiff had been extinguished by a settlement made between them on the third August, 1861.

The evidence shows that Cavanaugh had a debt against the firm, of which Dennis Cronan was a member; that they agreed to adjust and settle these two claims; that the plaintiff selected J. N. De Pouilly and Dennis Cronan selected John Lynch, who examined the respective accounts, adjusted them and reported that on settlement it appears that there is a balance of $445 81 due to D. Cronan.” This memorandum was offered in evidence, and the gentlemen who made the settlement testified in this case that both parties expressed themselves satisfied with it. If we regard this settlement as an agreement between Cavanaugh and Cronan to mutually transfer the claims of each to the other, then the claim of Cronan^gainst Cavanaugh, to the extent of the latter’s debt against the firm, was extinguished by confusion and Cronan owned the debt against the firm. The settlement was, in effect, the same as if Cronan had taken this money and paid the partnership debt.

It is therefore ordered that the judgment of the district court be avoided and annulled, and that there be judgment rejecting plaintiff’s demand, with costs of both courts.

Rehearing refused.


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    No. 2520.
    A. Marrero v. Jacob Barker et al.
    An appeal will lie from an. interlocutory decree dismissing a rule taken to dissolve an injunction wliicli has been grantod to stay proceedings by executory process, if the petition for injunction puts at issue the validity and correctness of the order of seizure itself. In. such a case an irreparable injury might follow, and an appeal will therefore lie.
    If the act of mortgage has been partially destroyed by fire, by the destruction by fire of the office of the notary who was the custodian thereof, but the original document is sufficiently preserved so that its purport and extent is easily comprehended, words used by the notary in his certificate explaining how certain defects occurred will not so change its character from that of an authentic document to that of an act under private signature that the judge can not issue executory process thereon.
    APPEAL from the Second Judicial District Court, parish of St. Bernard.

      Pardee, J. Sanibola & Pueros, for plaiutiff and appellant.

      Preston & Pabatt, for defendants and appellees.
   Howell, J.

The plaintiff having enjoined an executory process on several grounds, the defendant, Barker, moved to dissolve the injunction with damages, and from the judgment dismissing his rule, this-appeal is taken.

It is urged in argument by plaintiff that this is a mere interlocutory decree, from which no appeal lies. As a rule, this position is correct, hut where the judgment practically decides the issue, and has the effect of maintaining the grounds of the injunction, which go to the marrow of the executory process, irreparable injury may result, and in consequence an appeal lies from the judgment refusing to dissolve the injunction.

In this case, the petition for an injunction is virtually an opposition to the executory proceeding, and the rule to dissolve may he viewed as an answer, putting at issue all the grounds in the petition, and in disposing of the rule, the district judge passed on all those grounds, and decided that the executory process did not issue upon authentic evidence. Ilis judgment leaves nothing more to be decided in the injunction suit, and operates a perpetual bar to any further proceedings in the executory suit. It is really a decision of the injunction upon its merits. In the case of Riley v. Lynd, 3 M. 229, an appeal from a similar decree was maintained. We quote the language of tho court on this point as appropriate here: “A previous question is. raised by the appellee as to the jurisdiction of this court. He contends that this is not a case of which we can take cognizance, inasmuch as the order complained of is not a final judgment. The law has, indeed, limited the jurisdiction of this court to appeals from final decisions and judgments, and this court, in conformity thereto, has already refused to take cognizance of appeals from interlocutory decrees; hut at the same time they have declared that, as to what shall he considered as a final decision or judgment, each case must speak for itself. When an order, not strictly in the form of a final judgment, is-in its effect tantamount to it, this court has and will exercise jurisdic— tion. That this is such a case, needs not to be demonstrated. On the one hand, the judgment rendered in favor of appellant is a dead letter if the decree complained of is suffered to subsist; on the other, the appellant is barred from bringing any other action for the same cause against the appellee, for his case is already adjudged. No decision can be more effectually final,- it is therefore a proper subject for the jurisdiction of this court.”

The district judge considered the copy of the act of mortgage in this case unauthentic because to his certificate that it is a true copy, the notary has added exceptions and limitations showing that it is not a true copy. It reads:

“I, John Bendernagle, a notary public in and for the parish of Orleans, and custodian of the records of Hugh Madden, (notary, deceased,) duly commissioned and qualified, do certify the foregoing to-be a true and correct copy of the original act in the records of Hugh Madden, (notary, deceased,) except such parts as are obliterated by being burned by fire, which destroyed said notary (Madden’s) office, which parts are marked on the copy thus (*).”

This means that the certified copy is a true copy of the original as. it now exists, but that the original itself is injured, or to some extent defaced by the fire, which destroyed the notary’s office, and the only proper question is, is it an authentic act of mortgage for the debt evidenced by the notes accompanying it or identified with it, affecting the property ordered to be seized, and available in the hands of third holders of said notes? It is authentic, because it is passed or executed before a notary and two witnesses, and the obliterations are not such as leave any doubt about the debt secured, the notes evidencing the-debt, the description of the property mortgaged, and effect of that mortgage as importing a confession of judgment in favor of any holder of the notes. These, the material and essential recitals, being contained in the act, the unessential and immaterial words defaced do not affect the validity of the act. We can not concur in the opinion of the district judge that the additions” in the certificate of the notary, as-they appear, destroy the sufficiency of the certificate or authenticity of the evidence on which the order of seizure and sale was granted. The copy certified by him is not an exact, literal copy of the original as it was when first executed, but is of that now existing, and this original is an authentic act. He used words in his certificate to show how certain defects appeared, and how they occurred. If he was not authorized to certify to this last fact, it may be considered as surplusage,, and will not affect the validity of the act as making proof of the original as it really exists.

We are satisfied that the injunction should be dissolved, and the defendant, Barker, permitted to proceed with his executory process.

It is therefore ordered that the judgment appealed from be reversed, and it is now ordered that the rule taken by defendant be made absolute, and the injunction herein be dissolved, with a judgment against the plaintiff, Marrero, and his surety, in solido, for ten per cent, on the amount of the judgment enjoined, as damages, and costs in both courts.

Rehearing refused.


author: Howeix, J.

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    No. 2267.
    J. R. Jones v. C. J. Jones and J. Levois & Co.
    A judgment tliat has been, rendered on default on a citation that has been served on a third party, whom it is neither alleged nor shown was the agent of the defendant at the time, is null and void, and the nullity will bo so declared on appeal.
    Appeal from the Fourth District Court, parish of Orleans.

      Théard, J. James McConnell, for plaintiff and appellee.

      M. B. BuBuisson, for defendant and appellant.
   Howeix, J.

The defendant, J. Levois, asks that the judgment herein rendered on default be reversed as to him for want of legal •citation. The return of the sheriff is that he served a copy of the citation and accompanying petition on J. Levois by leaving same in the hands of D. Jamison, his agent, said Levois being absent from the city at the time of service.”

There is no allegation or proof that D. Jamison was the agent of Levois, and the service is illegal, and no appearance was made by appellant. But plaintiff contends that the evidence shows that citation was received. The following is the evidence relied on. Plaintiff, sworn, says: “The defendants admitted the signature to the lease sued upon. They have paid $200 on account of the claim sued for since the suit. The claim sued for is just and due, subject to the above credit. The signature of the surety to the lease is made by the agent of the surety, Mr. Porteous, who informed me to make the act of suretyship.”

This by no means proves that J. Levois paid anything on the claim or had been served with citation. C. J. Jones is the lessee, and J. Levois & Co. are his surety through the agency' of Mr. Porteous (and not D. Jamison), according to the above statement of plaintiff. There is nothing else in the record to connect Levois with the contract of lease or the suit, until a copy of the judgment was served upon him, when he took this appeal. The judgment against him is without legal foundation. The petition, however, having been filed, the plaintiff is entitled to an opportunity to have the Sureties cited.

It is therefore ordered that the judgment herein against J. Levois, appellant, be reversed, and the cause remanded to the lower court to be proceeded in according to law. Plaintiff to pay costs of' appeal.


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    No. 2260.
    Mrs. Gayarre v. B. L. Millaudon et al.
    "Wliero tli© record shows that the plea of prescription was filed in the court below after the case had been argued and submitted to the judge, and the judgment of the court maintains the plea, the judgment will be annulled on appeal, and the case will be remanded to be proceeded with according to law. The rules of practice are well settled that all pleas of whatever description must be made before the case is submitted for decision.
    Appeal from the Seventh District Court, parish of Orleans.

      Gollens, J. Elmore <& King, for plaintiff and appellant.

      E. Bermudez, for -defendants and appellees.
   Taliaferro, J.

The plaintiff having obtained- a final judgment against a former sheriff of the parish of Orleans for the sum of $365 70, issued execution, which was returned nulla Iona. Some timé after-wards she brought suit against the defendants in this suit as sureties of the sheriff on his official bond, and t-lie defendants set up the prescription of two years in bar of her action. The plea was sustained, and the defendants had judgment in their favor. The suit now before us was instituted to annul that judgment, and to recover from the defendants $520 84, with interest, made up of the sum recovered by judgment against the sheriff, viz: $365 70, and various items of costs, interest, etc., amounting to $155 14, which, superadded to the amount ■of the judgment sought to be annulled, make up the sum of $520 84.

To the form of this action the defendants excepted, on the ground that the proceeding taken to annul the judgment referred to can not be cumulated with the demand for the judgment sought for in the former case against the sureties, and on the further ground that so far as plaintiff claims the nullity of the judgment described, the petition discloses no cause of action. The exception was sustained and the plaintiff’s suit dismissed. The plaintiff thereupon appealed.

The plaintiff avers in her petition that the plea of prescription, by which her action against the sureties was defeated, was brought into the case without her knowledge, and by indirect and fraudulent means; that the plea of prescription was indorsed, “filed sixteenth of December, 1868,” and the case argued and submitted to the court for decision by both parties on the fifteenth of December, 1868. The plaintiff alleges that had she had knowledge of the filing of the plea and an opportunity to introduce evidence, she could have shown that the plaintiff was not authorized to recover on the plea. That neither she nor her counsel had any notice whatever of this plea of prescription until some days after the judgment in the case was signed.

This was a grave irregularity in practice, and one which should not be tolerated. We deem it proper, therefore, to remand the case. See Code of Practice, art. 607.

It is ordered, adjudged and decreed 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 to be proceeded with according to law.


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    No. 3272.
    Alexander McKee, Use, etc., v. William H. Brown.
    The charter of the late City of Jefferson required a petition signed hy the owners of one-fourtli of the land on the entire length of the street to authorize the Council to cause-a banquette to he constructed thereon, and to impose the burdens thereof on the front proprietors. Under this statute it was held that if the Council gave out a contract for* banquetting a portion of the street, on the basis that more than one-fourth of the land owned by the proprietors on the part of the street which was improved had petitioned the Council therefor, that then and in that case the front proprietors of the part of the street so improved could not be compelled to contribute to the expense thereof, because-the contract had been given out by the Council in violation of law.

      Appeal from the Fifth District Court, parish of Orleans.

      Jjeaumont, J. Felloios á Mills, for plaintiff and appellee.

      W. J3. Koonta &~ Flliott, for defendant and appellant.
   Howe, J.

The only question involved in this case is the construction of the following clause in paragraph twelve, section seven, of the charter of the late City of Jefferson; act of 1867, p. Ill: “When the proprietors of land fronting on any public street or avenue, comprising-one-fourth of the front on said street, shall petition the Council therefor, the Council shall cause the streets to be opened,, widened or-improved with -banquettes, sidewalks, shell or plank roids, or paved streets, if after thirty days’ notice a majority similarly constituted of front property owners shall not object thereto.”

It was decided by the court a qua that these proceedings might be-provoked by the proprietors of one-fourth of the land fronting on a portion of the street, in such a way as to compel the Council to improve that portion only, and force the proprietors of the throe-fourths fronting on the same portion to contribute. In this case the work done was flagging on nine squares of Peters avenue, a street which is shown» to be forty squares in length. The petitioners, by whom the proceedings were initiated, owned and signed for about one-tenth only of the-entire front, but more than one-fourth of the front improved.

The appellant contends that the provision cited must be strictly complied with before he can be compelled to contribute, and that by its terms it plainly requires the proceedings to be provoked by the request of the owners of one-fourth of the front on the whole street. We think his views correct. The language of the statute is plain; its object is to confer a power similar in character to that of expropriation,, and it ought not to be extended by implication.

The language being plain, the argument from inconvenience, urged' by appellee, is not satisfactory. The fact that a large portion of Peters, avenue lies in the swamp, and that the front proprietors on that portion would not be apt to join in the necessary petition for banquettes,., while it might help to explain doubtful language, could not confer on. the City of Jefferson any powers beyond those expressly given, nor on the plaintiff any right against the defendant beyond that which springs, from a strict compliance with the statute.

It may be remarked that the charters of New Orleans have used different language on this subject. Thus the charter of 1856 said: “That whenever one-fourth of the owners of real property, fronting upon any unpaved or unbanqruetted street in the city of New Orleans, shall by petition, signed by petitioners and addressed to the Common Council of said city, ask for the paving or for the banquetting of said street, or for any portion thereof, said Common Council shall cause said petition to be published; and if a majority of the owners of real property fronting on said street, or said portion thereof, shall not, by memorial addressed to said Common Council, object to the same, said Common Council shall order said paving or banquetting to be made,’7 etc. Acts 1856, p. 164, sec. 119, 120. And the charter of 1870 h'as similar provisions.

There is no reason to suppose this difference between the powers conferred on New Orleans and those conferred on Jefferson to have been accidental, and the fact seems to justify our conclusion.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment for defendant with costs.


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    No. 3274.
    State of Louisiana v. Mechanics’ and Traders’ Bank.
    The free banking law of the State which exempts banks organized under its provisions from the payment of a license, does not exempt such banks from the imposition of a tax on capital. On tbe contrary, the statute expressly provides for such a tax.
    A taxpayer who fails to make complaint of excessive valuation within the time allowed by law for that purpose, can not afterward bo heard unless he first show some valid reason for not having made such effort; second, he must show some grave error to his prejudice; and third, its precise amount, failing in which, judgment will bo given against him for ' the amount of the assessment
    Appeal from the Third District Court, parish of Orleans.

      Emerson, J. S. Eelden and Eornor & Eenediet, for the State, appellee.

      Randolph, Singleton Browne, for defendant and appellant.
   Howe, J.

Suit for State tax on capital and real estate. Defendant pleaded a general denial, an exemption from taxation under the banking laws of 1853 and 1855, and an exemption of its capital as being nearly all composed of bonds not taxable.

First — The free hanking laws which, according to the decision in — An. p. — •, inhibit tbe imposition of a license, do not inhibit tbe imposition of a tax on capital; on the contrary, they especially provide for such a tax. Acts 1853, pp. 311, 335.

Second — The defendant, on the trial, offered to prove that a part of its capital consisted of bonds exempt by law from taxation. The court refused to receive the testimony, and the defendant excepted. The statement offered, and annexed to the bill of exceptions, showed that if the testimony had been received, the capital still liable to taxation would have amounted to $262,000, while the amount assessed was $300,000. The whole capital is $750,000. Prom this, it is claimed, must be deducted bonds not taxable, $398,000, and real estate already taxed, $90,000, which leaves the $262,000 above mentioned. The discrepancy is hardly so groat as to support the allegation of the answer “that nearly all its capital consists of bonds specially exempted from taxation.” Again, the item of $398,000 is composed of city bonds and Jackson Bailroad bonds. It may well be that the assessors estimated these at their real, and not their nominal value, and that their estimate was correct, and that there really was a balance of $300,000 of capital left subject by law to he taxed. The hill of exceptions does not inform us that the Item of $398,000 bonds is a statement of their real market value. It may bo their face value, and they may he worth less than par.

We do not think the court erred iu excluding the testimony. In New Orleans w. Lesseps, 11 An. 251, and State v. Southern Steamship Company, 13 An. 497, the rule seems to have been settled that one sued for taxes, when lie has made no effort in the way pointed out by law to correct the assessment, can not go behind it to show that-if is excessive, unless he show: First, some valid reason for not having made each effort; second, grave error to his prejudice; and third, its precise amount. No such showing is made in the ease at bar. On the contrary, the impression left by the record is that the assessment was correct. We see no error in the judgment in favor of plaintiff.

Judgment affirmed.