text:
    No. 7114.
    Louisiana Board of Trustees of the American Printing-House for the Blind vs. V. J. Dupuy et al.
    The affidavit of an appellee that liis interest in the suit is less than $500 will not defeat the appeal, when it appears by the allegations of the plaintiff’s petition, or his subsequent affidavit, that the amount involved is more than $500.
    Whore a number of persons constitute a common agent for a common purpose no one of them lias a right to compel the agent to render a separate account to himself. There should be but one proceeding to which, all persons in interest should be made parties, and. their rights determined in concursu.

    ^PPEAL from the Sixth District Court, parish of Orleans. Eightor,

      John A. Campbell and Merrick, Eace & Foster for plaintiff and appellant.

      Eicharclson & Magruder and Tlios. I-Iimton for defendants and appellees.

      F. Fvariste Mo'ise, curator ad hoc, for the American Printing-House for the Blind.
   On Motion to Dismiss.

The opinion of the court was delivered by

Spencer, J.

Plaintiff alleges in substance, that it is a legal corporation, organized in conjunction with similar corporations in other States, for the purpose of printing or procuring books for the blind ; that it is possessed of a fund, which by careful management has been more than doubled, and amounts now to something over ¡¡¡>32,000; that it was organized in 1859, and that the fund in its custody and control has been derived from donations of many charitably disposed persons who contributed sums ranging from five dollars to one hundred dollars in amount.

That the defendants, Dupuy, Hunton, Magruder, Richardson, and others, pretending that petitioner has failed to carry out the objects and purposes of its incorporation, within the time prescribed by its charter, claim that petitioner is bound to pay back to the original donors the sums, with accumulated interest, received from them ; that said Richardson & Magruder claim to represent as agents and attorneys in fact about one hundred of said donors; and to own, by right of reversion as aforesaid, over ten thousand dollars of petitioner’s said funds ; that said attorneys have entered into contracts with said donors, whereby they are to have one half of the amounts they may recover of petitioner, said attorneys agreeing to pay all costs and expenses of suits, etc.; that a Kentucky corporation, not in existence at the time of petitioner’s incorporation, but claiming the rights of a former corporation in said State, with which petitioner was to have acted in conjunction a.s aforesaid, has brought suit iu the United States Circuit Court for Louisiana against petitioner, and claims that petitioner is bound to pay over the whole of said fund to it; that in said suit the said parties represented by Richardson & Magruder and by Thos. Hunton are made defendants ; that said parties so made defendants claim by answer in said cause that they are donors of a large part of the funds in petitioner’s hands and entitled to recover it for the reasons stated.

Further represents that said Richardson & Magruder have instituted numerous and sundry suits against petitioner in different courts— some in justices’ courts and some in district courts, in behalf of and as representing various persons claiming to be donors as aforesaid ; that petitioner believes that said Richardson & Magruder bring these numerous and separate suits in different tribunals under the hope that they may find some judge who will sustain their pretensions, in which event all the suits would be brought before him ; that said Magruder & Richardson obtained a half interest in said claims by sending out circulars to the donors to which was a printed form of receipt and agreement to be signed, giving them one half the amount to be recovered as aforesaid ; that they claim to have such agreements with about one hundred donors, and a consequent interest of more than §10,000 in petitioner’s funds ; that they have disclosed the names of only a few of these donors represented by them; that much the larger portion of the donors of the said fund desire, as petitioner believes, that the same be devoted and applied to the purposes originally intended, and that the fund has now accumulated to an amount sufficient for effectively doing so ; petitioner charges collusion between the said Kentucky corporation and the said parties bringing said individual suits, and that there is an agreement between them to share the results of the suits in the circuit and State courts.

Petitioner further represents that if the donors of said funds have the right to withdraw them from petitioner, the same must be done in concursu, in a proceeding to which they are all parties, and upon rendition of account by petitioner; that the prosecution of said separate suits by individuals in different courts, without making the others interested in said funds parties, is illegal and oppressive, intended and calculated to waste and consume in useless litigation the fund, and to prevent its application to the charitable purposes contemplated; that petitioner is advised that the circuit court is without power to protect petitioner against said vexatious proceedings in the State tribunals, and that an injunction ought to issue to prevent the despoiling of said fund of $30,000 in petitioner’s possession, and to compel said defendants to litigate in some single form and contradictorily with all parties in interest the question of ownership and distribution of said fund. Wherefore petitioner prays an injunction against said parties restraining them from prosecuting against petitioner said separate, individual, and vexatious suits, until the termination of the suit in the United States Circuit Court, or some other suit with'proper parties, etc. Prays for such damages as may be proven.

The court a qua refused the injunction and dismissed plaintiff’s suit. From that judgment this appeal is taken.

Appellees move to dismiss the appeal for want of jurisdiction in this court ratione materias, and because the appellees “ have not separately or conjointly” any interest in this cause to an amount sufficient to give this court jurisdiction.

Messrs. Hunton, Richardson & Magruder supplement this motion by their several affidavits, to the effect that'they “have no present interest in any matter or thing set up in the petition of plaintiffthat upon certain conditions and contingencies they will be entitled to fees, etc., “but have no other or further interest in this litigation.” Per contra, the plaintiff and appellant makes oath that the matters involved exceed $500 in amount, etc.

Of course the jurisdiction of this court must be determined by the demands and allegations of plaintiff’s petition, which may be supplemented by affidavit as to the amount involved, etc. Of course the affidavit of appellees that they have no interest in the suit, or an interest less than $500, can not defeat the appeal, if the demands against them give this court jurisdiction. It will be time enough when the case is heard on its merits to decide what is the nature and extent of appellees’ interests, and of their responsibility to plaintiffs. If the defendant in a suit can defeat plaintiff’s appeal by simply swearing that he (defendant) has no interest in the suit, the right of appeal by a plaintiff would be a very vain and illusory one.

We think the subject matter in controversy in this suit is shown by the petition to be over $500, and within our jurisdiction. The gist of plaintiff’s action is this: That it is the possessor and custodian of a charity fund exceeding $30,000 in amount; that the defendants by illegal acts and conduct in interfering with and disturbing its possession and control of said fund will destroy it; that it is entitled to protection of said fund from the illegal acts of defendants, etc. These allegations, supplemented by plaintiff’s affidavit, certainly give us jurisdiction.

The motion to dismiss is overruled.

On the Merits.

The allegations of plaintiff’s petition are set out in substance in •our opinion on the motion to dismiss, and need not be here repeated.

The fifth section of plaintiff’s charter provides that when the sum of $25,000 is raised by it and the co-operating organizations in other States, the funds collected by the Louisiana Board shall then be remitted to the Kentucky corporation at Louisville, to carry on said printing-house for the blind ; “provided that should said sum of $25,000 not be raised within seven years from date of this incorporation, or said publishing-house-not be established within nine years from said date, then the donations and contributions received, together with the interest thereon accrued, after deducting' expenses of the corporation, shall be returned to the contributors and donors thereof.”

Under this act of incorporation contributions were solicited and some $16,000 raised by the Louisiana Board in sums ranging from $5 to $100. The fund thus raised in 1859, 1860, and 1861, has been kept at interest by the Board, and has now more than doubled itself.

A number of suits have been commenced by different persons in different courts, against the plaintiff, to compel it to return their contributions, on the ground that the time has expired for building said printing-house according to the charter, and it has not been built, and that by the terms 'of the act the contributors are entitled to a return of their donations with the accrued interest. A Kentucky corporation, claiming to be the organization referred to in the Louisiana charter, has commenced suit against plaintiff in the United States Circuit Court, to compel the delivery of the whole fund to it. Interventions and cross-bills have been filed in said suit by Dupuy and other contributors asserting their rights upon the fund in plaintiff’s hands. Plaintiff truthfully alleges that it is literally being torn to pieces by suits — some in magistrates’ courts, some in different district courts, and some in the Federal courts. It alleges that such proceedings are oppressive and illegal, and asks that the plaintiffs in said various suits in the State courts and Richardson & Magruder, who claim to be the agents and attorneys of said parties and of about one hundred others, be enjoined and restrained from such proceedings and be required to proceed in this or some other single suit, contradictorily with all parties in interest. It is said in reply by defendants that there is no privity of contract among the various contributors to this fund, and that each has a separate distinct and independent demand against the plaintiff, and therefore a perfect right to sue it separately.

We can not concur in this view of the case. The charter by its very terms, and as the suing donors themselves allege, constituted a contract of mandate between the contributors and the corporation. Those who gave their money did so for the uses and purposes and upon the terms and conditions therein written. The corporation became the common mandatary of the donors, and the rights and obligations of all the parties are to be ascertained and determined by reference to its provisions. As we have seen, the fifth section expressly provides that in the event of a failure to carry out the objects of the mandate, the corporation, “ after deducting its expenses,” shall return the fund to those who gave it. This clearly requires and demands an account; and surely it will not be contended that where a number of persons have constituted a common agent for a common purpose each of them can compel a separate accounting to himself. In such a case the agent owes but one account. In the nature of things, it would be impracticable to determine the pro rata of the numerous claimants otherwise than in concursu. They all have a common interest in the expense account of the corporation, and a like interest in testing the reality and amount of their respective claims upon the common fund. Any other course would consume the fund in costs of litigation; for the corporation would have to establish its expenses account in every suit, and for its own protection, and that of other contributors, would have to employ counsel to scrutinize each separate claim in the hundreds of suits that would be brought. We have seen that the Louisville corporation is claiming the whole fund ; while numerous suits are brought in different State courts by different persons claiming small and fractional amounts thereof. This court, in the absence of express legal provision, has the power to proceed and decide according to equity. C. C. 21; 1 An. 133. We think the plaintiff’s petition discloses a cause of action, and that the facts in this record entitle it to relief.

But while the plaintiff has rights entitled to protection, it has also obligations which it is bound to fulfill. The donors of the funds in its hands have an undoubted right to demand and require an account of its stewardship ; and if by the terms of its charter the corporation has failed to accomplish the object of the trust, it must restore the fund to those who gave it. We shall therefore remand this cause.

It is therefore ordered, adjudged, and decreed that the judgment appealed from is reversed, and plaintiff’s injunction is reinstated. It is further ordered that this cause be remanded to be proceeded with as follows: That the plaintiff, “the Louisiana Board of Trustees of the American Printing-House for the Blind,” do within sixty days from the filing of this decree in the court below render a full account of its receipts and expenditures of the fund in its hands ; that notice of the filing of said account be advertised in two daily papers of New Orleans for sixty days, and calling upon all persons claiming rights to or upon said fund to come forward and assert the same within said delay ; that at the end of said delay the court a qua proceed to try and determine the rights and claims of all parties appearing, and to render judgment as their rights shall require; costs of this appeal to be paid by appellees.


source: Caselaw Access Project

author: Spencer, J.

license: Public Domain

text:
    No. 7262.
    City of New Orleans vs. Metropolitan Loan Savings and Pledge Bank.
    A license to conduct a banking business does not authorize the carrying on of a pawnbroking business.
    The sixth section of the act 31 of 1876 known as the “ premium bond” act limiting the taxing power of the city of New Orleans refers to taxes on property, and not to those imposed by way of licenses on occupations, etc.
    APPEAL from the Sixth District Court, parish of Orleans. Bightor, J.

      Sam. P. Blanc, City Attorney, for plaintiff and appellee.

      Braughn, Buck & Binlcelspiel for defendant and appellant.
   The opinion of the court was delivered by

Spencer, J.

This is a suit to recover of defendant two licenses — one for $1000 for its banking business, and one for $400 for its business as pawnbroker. There was judgment below for plaintiff, and defendant appeals.

It is admitted that the defendant in connection with its banking “loans money on pledge or pawn of personal property, such as watches, jewelry, etc., and issues pawn tickets according to the custom of pawnbrokers.”

Defendant contends, in substance—

First — That its pawnbroking business is legitimate banking, and that it is carried on as part of its banking business. In other words, that under a license as a bank, it has the right to deal as a pawnbroker.

Second — That the authority of the city to levy the licenses claimed under its charter is repealed by the premium bond act limiting the taxing power of the corporation to fifteen mills on the valuation of property.

As regards the first proposition, we are unable to concur in the views of appellant’s counsel. The business of banking, properly so-called, and that of pawnbroker, are as distinct and well defined as that of wholesale and retail merchant, or any other two recognized lines of business. There can be no doubt of the right of the defendant to carry on the double business of banking and pawnbrokering, just as a retail clothier may carry on the tailoring business. But the two occupations are, in commerce, and in law, regarded and treated as distinct. There is no doubt of the power of the Legislative authority to establish these distinctions. It has done so, and in so doing has simply recognized a well known commercial classification. The ordinances of the city require any person or corporation carrying on two trades or occupations to pay a license for each.

Second — The sixth section of act 31 of 1876, commonly known as the “ Premium Bond ” act, limits the taxing power of the city to fifteen mills on the dollar of the assessed value of property. This clearly refers to taxes on property, and not to these imposed by way of license on occupations, trades, and professions.

We see no reason to doubt the correctness of the judgment appealed from, and it is affirmed with costs.

Rehearing refused.


author: Manning, C. J.

text:
    No. 7441.
    Succession of W. R. Stone. Opposition of Creditors.
    An administrator who allows the money of the succession to remain in the hands of a commission merchant becomes personally liable for the money if it is lost by the failure of the commission merchant.
    The lessor has a right of pledge on promissory notes that are the property of the lessee, and found on the leased promises.
    The succession of a deceased person is bound for the rent due for the unexpired term of a lease made by the deceased.
    The mere assent of a lessor to a sublease made by the lessee does not have the effect of releasing the lessee and substituting the sublessee in his place.
    The lessor is entitled to recover from the succession of the lessee, on account of rent due for the unexpired years of the lease, only what balance of that rent shall remain after deducting from it eight per cent per annum thereof.
    The principal has no privilege on tho property of his deceased agent’s succession on account of money of the principal collected by the agent and not paid over.
    The language of the Code of Practico reauiring the administrator of an insolvent succession to call a meeting of creditors to decide on the mode of selling its effects, is permissive, and not mandatory.
    The bond of an administrator is an entirety, and is not to be canceled in part until the whole gestión is completed.
    ^PPEAL from the Palish Court of Madison parish. Dennis, J.

      A. L. Slack for administrator and appellant.
    <?. L. Hall for tutrix and appellee.

      Seale & Morrison and Farrar & Spencer for opponents and appellants. ,
   The opinion of the court was delivered by

Manning, C. J.

James A. Stone, as administrator of W. R. Stone’s succession, filed his account, and tableau of distribution of its assets, which is opposed by the assignees of the Bank of Louisiana and of Dudley & Nelson, on various grounds, some of which have been abandoned. Those now insisted on are the following ;

1. The administrator debited the succession with $174.22, the sum in the hands oí R. T. Buckner & Bro. in March 1878, which was lost by their failure.

In July 1877 there was a balance in the hands of the Buckners, due the succession, of $382.17, which was transferred to the credit of J. A. Stone, administrator, who permitted it to remain there. Thereafter, it was at his risk. Persons holding money in a fiduciary capacity, are not permitted to leave it with commission merchants merely because it is convenient, or because as individuals they choose to deal with their own money in that way. The administrator must be charged with $174.22 the sum thus lost in March 1878.

2. A claim in favour of Joseph Noland for $2,400.00 was placed on the tableau as a debt, privileged upon certain notes amounting to $2,504.65.

Noland had leased to ~W. R. Stone the Omega landing and contiguous grounds for ten years, commencing January 1, 1875, at a rental of $300 per annum, there being a stipulation, withholding the authority to sublet save with the lessor’s consent. On February 3,1877, two days before his death, the lessee sold to John B. Stone his storehouse and fixtures on the Omega landing for $1,200.00 — his dwelling-house and outbuildings on same grounds for $1,500.00 — the Noland lease for its unexpired term, ending Dec. 31,1885, “ for the price and sum of $300 per annum, amounting to $2,500.00 ” — horses, mules, waggons, etc. for $1,210.00 — and his stock of goods, at inventory prices, for $1,839.00 — amounting in the aggregate, the bill of sale reads, to $8,149.'00. The correct aggregate is $8,249.00, which countenances the conjecture that the price of the lease should have been stated at $2,400.00, as it would be for eight years at the rental mentioned, and this being corrected in that way, the aggregate of the whole purchase is properly summed up. Notes were given for this sum total — nine notes for varying sums, the smallest of which is for $75.00, and the largest for $500.00, all aggregating $2,504.65 and payable January 1,1878, and three notes for $1881.45 each, payable on the first days of the years 1879,1880, and 1881.

The privilege of the lessor upon the nine notes is recognised as being movable effects of the lessee, found on the property leased) and the opponent contends that the concluding paragraph of art. 2675 of the Civil Code (new no. 2705) restrains the application of the privilege and right of pledge to the furniture or merchandize in the house or apartment, if it be a store or shop. The contrary was expressly held in Mathews v. Creditors, 10 Annual, 718, where it was said that the clause which confers the privilege is absolute and unambiguous, and the words 'movable effects’ were too comprehensive to admit of doubt or discussion with reference to their application, and that the concluding clause of the article appears rather illustrative than restrictive in its character. It was also said, there was no good reason why the assets of a banker, so far as they are susceptible of .being pledged, should not be subjected to the same right of pledge as merchandize in a store, and Bazin v. Segura, 5 Annual, 718, is cited as a correct exposition of the article.

As a matter of fact, it must appear by proof that these notes were found on the leased property, and opportunity will be given to supply that proof.

There is some discussion in the briefs upon the questions, whether the succession is not entirely relieved of the debt for the future rent, and whether Noland, in assenting to the lease, did not accept the new lessee, or the purchaser of the unexpired term, as his debtor in the place and stead of the original lessee. We do not think either position is tenable. The succession of the deceased is bound to fulfill the contract for the payment of the rent, and it is doubly bound so to do in the present case, since the price of the unexpired term of the lease has gone into its assets. Noland’s assent to any subletting was merely a stipulation to prevent a sub-lessee, whom he was unwilling to occupy the premises, from acquiring the contract. It is also contended that the price of the lease, recited in the act of sale, was a premium on the lease, upon the authority of Daquin v. Amant, 14 Annual, 217. The ruling in that case was confined to a judicial sale of the lease, and it may also be said, that the price mentioned in the sale is the same sum the original lessee was bound for.

But what is the present amount of the debt which the succession owes for the lease ? The annual rental is $300.00, payable each year to 1885. It is very clear that the succession does not owe now the whole rent. The death of the lessee does not alter the maturity of his stipulated annual payments, and cause the whole rent for eight future years from his death to be at once exigible. Nor can his succession be kept open during all those years, waiting for the annual payments to mature. In the absence of positive law upon this matter, we must be guided by equitable considerations, and we can revert to the rules established for other matters somewhat analogous to it.

The Code provides that where property of a succession is sold partly for cash, and partly on a credit, on a partition of the proceeds of the sale, the whole amount shall be reduced to its cash value, by deducting from the whole sum to be paid eight per centum per annum, and those heirs who require their portion to be paid in cash shall receive it ón the whole amount thus reduced, art. 1264 new no. 1342. The creditor of this succession, who is only entitled to the annual payment of $300.00 for several years to come, must have his claim reduced to its present cash value, by deducting therefrom the same per centum per annum, calculated as is provided in the case of heirs.

3. Mrs. Harvey is recognised as a creditor for $1,025.20. Her counsel admits it should be reduced by $32.25. The deceased Stone acted as her agent, and received this sum of money for her — collected her rents and accounts. The administrator admitted it as a privilege. Upon what? It appears the privilege is supposed to rest upon any money in Stone’s possession. There was none found there so far as this record informs us. It is not alleged that he kept her .money separate and apart, labelled and capable of identification. It is clear that his succession is liable for the sum he collected for her, and it is equally clear that she has not a privilege upon any special funds for its payment. There is no evidence of the existence of any special fund. The debt is an ordinary one. Longbottom v. Babcock, 9 La. 44. Whatley v. Austin, 1 Rob. 21.

The opponents and appellants have filed an assignment of errors on two points of law, apparent on the face of the record, as they allege.

1. That the succession was insolvent, and the administrator was bound to apply for an order convening the creditors to deliberate on the most advantageous mode of selling the effects. The inventory of property and assets amounted to $26,450.70 and the debts were $26,-716.61. The language of the Code of Practice is permissive and not mandatory, art. 1038.

2. The judgment of homologation directs the cancellation of the administrator’s bond to the amount of $13,316.84, that being the portion of his account which was homologated.

This is error. The bond is a whole, an entirety, and is not to be cancelled in part until the whole gestión is completed.

3. A claim of R. T. Buckner & Bro. for $6,552.03 is said to have been secured by ‘ mortgage’ of a life policy of $10,000.00. Probably a pledge is meant. In either case proof should bo supplied of that fact, and if any portion of the policy belongs or belonged to the succession, such portion must be accounted for.

Another claim for $635.75 is said to be placed on the account as a privileged debt. There must be supplied proof, both of the existence and validity of the claim, as well as of the privilege.

The sale of the three notes of $1881.45 each, for the meagre sum of $350.00, and the purchase of them by the maker, needs explanation and justification. Unless explained and justified, the administrator may be responsible for their actual value. It does not escape observation, that while the nine matured notes are recognised as subject to a privilege for the payment of nearly as many unmatured instruments of rent, the non-maturod notes are sold for a paltry sum. In the next trial, the administrator and the opponent will have an opportunity to subject this part of the gestión to a more satisfactory examination than has yet been done.

It is ordered and decreed that the judgment of the lower court is avoided and reversed as to the several matters or items set forth and adjudged in this opinion, and the cause is remanded to the lower court for the amendment of the Tableau of Distribution and the Account, so far as definitively passed on herein, and for a new trial of the same as. to those left open for further examination and proof. It is further ordered that the succession pay the costs of appeal.


author: Manning, C. J. DeBlanc, J. White, J.

text:
    No. 7422.
    Succession of Ella Roth—Probate of Will.
    The fact that there are witnesses to an olographic will does not invalidate it, nor deprive it of its olographic form.
    The declarations of two credible persons, that they recognize the handwriting of a will as that of the testator, and who derive their knowledge that it is his handwriting from having often seon him write and sign during his lifetime, are essential to the probate of an olographic will.
    But if the probate of a will is contested, and the testimony of two. persons thus, deriving their knowledge of the handwriting of the testator is supplied, such testimony may be supplemented and strengthened by the production of original writings and the evidence of experts by comparison.
    Women are absolutely incapable of being witnesses to testaments, but they are competent witnesses to prove the handwriting of a testator, when that fact has. to be established on the probate of a testament.
    ^PPEAL from the Parish Court of Iberville. Cole, J.

      A. & B. B. Talbot for Gustave Roth, appellee.

      George Wailes and Barrow & Pope for opponent and appellant.
   The opinion of the court was delivered by

Manning, C. J.

Ella Roth died on September 5,1878, and a few days afterwards her husband presented her will for probate. It is in these words;—

Iberville Aug 22nd 1878
him
I this day make my will in favor of my husband. — I giveAall of my property that the allows me.
ELLA ROTH.
"Witness
Bettie C. Gourrier
Clay Gourrier

The deceased was childless, and her only heir is her mother, who having been cited at the probate, appeared and opposed it, alleging that the paper was not a will, being null and void for want of the requisites and formalities prescribed by law for an olographic testament.

The will was written on a blank page of an old account-book. The yellow fever was prevailing, and Mr. Roth and his wife shared the general apprehensions which the malignity and fatality of its attacks had inspired. They spoke together of making their wills. He went to his desk, and wrote his, his wife being in the same room, and asking him to bring it to her when he was done. Having finished the writing, but not yet having signed it, he took the book to her, and she wrote hers lower down on the same page, evidently copying his, and only substituting the word ‘husband’ for that of ‘wife’. Mr. and Mrs. Clay Gourrier were the guests of the Roths at that time. They were called in and told what had been done. Mr. Roth then signed his will, and Mrs. Roth signed hers, in the presence of the Gourriers, both of whom attested both writings. Mr. Roth carried the book out of the room, and discovered a few minutes afterwards that the word ‘ him’ was omitted. He took the book back to his wife, and called her attention to the omission, when she immediately inserted that word above the line, by an interlineation. It does not appear whether the Gourriers were then present.

This is the account of the manner in which the wills were made, as .narrated by Mr. Roth and the Gourriers, the latter speaking only of those incidents that were personally observed by them. An attempt was made to prove that the writing was a forgery, and some of the witnesses said as much, while others thought that only the word ‘ him ’ was forged. A large number of witnesses were examined, and' we have gone over the whole testimony more than once, and are satisfied that the imputation upon the husband is as unfounded as it is cruel. Nor can we participate in, or approve the observation of .the opponent’s counsel that, “ when a will in favour of the husband is produced, it cannot be wondered that all persons look with doubt at its genuineness and expect unequivocal proof.” This is said, after reciting the testimony of Mrs. Marionneaux, the mother; but, neither as a general proposition, nor a special one, elicited by and founded upon that testimony, when compared with that of the other witnesses, can we wonder at the provision of the will. Mrs. Roth was a young wife, and a young woman of only nineteen years, and being childless, it would have been wonderful if she had desired to give what little she had, and it was not much, to any other than her husband. Neither do we attach any importance to the interlineation, because the first sentence indicates the person whom she is making her universal legatee, and the word interlined is not absolutely essential to the designation of that person, when the will is read as a whole.

These questions are subordinate in importance to that of the mode of proof, which is presented by tlie opponent’s bill of exception to the admission, by the lower court, of original writings and signatures of the deceased, and the testimony of witnesses, sworn as experts, comparing these writings and signatures with the will. The question thus presented for solution is; — can an olographic will be proved in any other manner than by the declarations of two credible persons, who recognise the will as being wholly in the handwriting of the testator, and as being dated and signed by him, and who derive their knowledge of his handwriting from having often seen him write and sign his name ?

The fact that the names of witnesses are appended to the will neither invalidates it, nor deprives it of its olographic form. Andrews’ case, 12 Mart. 714. And the probate of it must be that required for an olographic will.

Reasons db inconvenienti and db absurdo crowd upon us against the propriety and necessity of requiring the knowledge of a testator’s handwriting to be derived exclusively from having often seen him perform the manual act of writing, when his will comes to be proved. An olographic will of a woman can rarely be proved in this way, and the handwriting of very few men is known from having often seen them write. Take an illustration that naturally suggests itself to us. The lawyers practicing in this court become familiar with the handwriting of the Justices from reading their Opinions in manuscript, and could swear to its genuineness with undoubting certainty, but very few of them have often seen either of us write or sign our names. In the probate of the will of either of us (any early need of which may Heaven forefend) those who have the most certain knowledge of our handwriting could not testify to its genuineness, because their knowledge was not acquired by having seen the manual act of writing often done. The absurdity too of requiring a particular mode of proof for the purpose of obtaining certainty is repulsive, when it is apparent that such particular mode is less certain than several others. Knowledge of handwriting is not acquired as readily, or as accurately, by seeing one write, as it is by inspecting what one has written. A long-continued epistolary correspondence with one, or frequent inspection of his books or accounts or other writings through a series of years, affords a more reliable basis for judging of his handwriting than the mere act of seeing him write. The act of looking at one writing is short. A glance, and you turn away. But the act of reading one’s letters, or of inspecting one’s accounts or other writings, is long and protracted. The testimony of handwriting by comparison is also more reliable than that acquired in the way we are treating of, and our law wisely favours that mode in a manner that presents a striking contrast to the suspicious look with which the common law regards it, and not only favours but expressly authorizes its adoption in the aid, or the absence, of other modes, except when one of these latter is essential. Civil Code, art. 2241 new no. 2245. Code Prac. art. 325. Yet, this mode and all others, save the single one of often seeing the manual act of writing, is excluded, for the purpose of probate, by ■the unequivocal language of the Code, thrice repeated, as we shall presently shew, in as many several redactions.

If any liberty of interpretation were permitted, we might disregard ■the letter of the law, and infuse into it a more liberal spirit. But laws touching the making of wills, and their proof, have ever been held rigorously siricii juris. Sir William Blackstone says, a man has not a natural right to make a will, for because he has kept all other people out of the possession of certain property during his life, constitutes no reason why he should be allowed to designate who shall be its exclusive possessor •after his death, but rather the contrary. Certainly, all formalities of wills are universally required to be strictly observed. The difference between the laws of different countries is, that some require more formalities than others. So, the mode of proof is equally obligatory. In ■some of the States, a will of personalty is good with two witnesses, but a will of realty requires three ; and therefore a testamentary disposition of both kinds of property in one paper, having only two witnesses, would be a good will of the one, but would be entirely void as to the other. These rules are arbitrary, and like that of our Code touching •the kind of proof of olographic wills, unreasonable.

The Travaux Préparatoires for the Code of 1825, consisting of additions and amendments to the old Code, proposed by those who had been charged with that work under the resolution of the General Assembly of March 14, 1822, suggested an alteration of the Code of 1808 as to olographic wills. The articles of the Code of 1808 provided that the •olographic testament must be made by the testator himself, without the ■presence of any witness, and should not be valid unless it be entirely ■written, signed, and dated with the testator’s hand, and is subject to no other form. c. vi. s. 2. art. 103. It must be acknowledged and proved 'by the declaration or affirmation of two credible witnesses, who must ■•attest that they recognise the testament as being entirely written, dated, and signed in the testator’s handwriting, as having often seen him write and sign during his lifetime. Ibicl. art. 160.

The amendment proposed to the first article was, that it should be ■necessary to the validity of an olographic testament, not only that it be •written, signed, and dated entirely by the hand of the testator, but that it have besides the signatures of two witnesses, to whom the testator shall declare that the paper, that he offers to them to sign, is his testament.

The reasons given for the alteration were, that the art of counterfeiting writings had attained such perfection, that certainty was no longer possible if the only proof of the verity of a testament was proof of the handwriting of the testator. Travaux Préijaratoires, p. 215. The suggestion was not adopted, and the article of the Code of 1808 was simplified and condensed in the form we now have it in art. 1581, new no. 1588.

But there was no suggestion of any alteration whatever in the other article, (Trav. Prép. p. 220) although that proposed to the first related not only to the proof, but to the kind of proof, and it was literally transcribed as art. 1648 of our present Code, new no. 1655. The first article relates to the confection of a will — the second relates to its probate, and requires the knowledge of the handwriting of the testator of the two credible persons who are offered to prove it, to have been acquired by having often seen him write and sign during his lifetime.

This court held such evidence essential in Buc. of Eubanks, 9 Annual, 147, where it was said — -'the appellee contends that the testimony of witnesses, that Mrs. Eubanks had told them the will was entirely written by her, satisfies the law. We think otherwise. Art. 1648 of the Code is express, that the only proof of olographic testaments is the testimony of two witnesses, that they recognise the handwriting as having often seen the testator write and sign during his lifetime. And this has been reiterated in Lucas v. Brooks, 23 Annual, 117 and Fuentes v. Gaines, 25 Annual, 85.

The proof of this will may be epitomised as follows. Mr. and Mrs. Gourrier each saw the testatrix sign the will. It was written entirely, and dated, out of their presence. He never saw her write except on the single occasion when she signed this will, but has seen orders that were written by her, and also her writing in her books. Mrs.. Gourrier is acquainted with her handwriting only from seeing her sign the will. She knows the will was written by Mrs. Roth because she told her it was written by herself. Alice Porter saw the testatrix write, and sign her name, about five or six times, and that is ‘ often ’ — saw her write notes and songs, and a piece of poetry — received letters from her about twice a month for a year — and recognises the will as being dated, signed, and written in the handwriting of Mrs. Roth. Linda Porter saw the testatrix write her name — received letters from her about once a month, for how long is not stated — saw her write a list of articles for purchase, and saw her write her own name, the name of witness, and of some friends, to pass away the time — cannot state the number of times she saw the testatrix sign her name, but saw her do it often, and recognises the will as being written, dated, and signed by her. These last two are the witnesses that testify of the handwriting from personal knowledge, derived from having often seen her write and sign her name.

Some of the letters to Alice Porter were preserved by her and were offered in evidence, as was also the piece of poetry, and a notarial Act signed by Mrs. Roth, the original of which is brought up with the record. Witnesses were sworn as experts, some of whom, on comparison of the signatures and handwritings, testified that they were the same and were written by the same person, while others swore the contrary. All of this testimony of experts and the writings submitted to them, was objected to by the opponent on the ground that such mode of proof is not permissible for the probate of an olographic will, but only the testimony of persons who derive their knowledge of the handwriting of the testatrix from having often seen her write and sign her name.

We think the testimony was admissible, as supplementing the proof already adduced of two persons who had derived their knowledge of the handwriting in the manner, and from the source, indicated by the Code ; and in rebuttal-of the testimony of the opponent, impugning the authenticity of the will, as being forged. Such testimony cannot by itself prove an olographic will, but when the handwriting has been established in the mode prescribed by the Code, and an Opponent controverts the fact thus established, by an allegation of forgery or other want of authenticity, the declarations of the two witnesses as to the handwriting may be supported by any other mode of proof, but otherwise, it is inadmissible.

The due probate of the will therefore rests primarily upon the testimony of the two Misses Porter, since neither Mr. nor Mrs. Gourriersaw the testatrix sign her name except when slie signed' the will, and never saw her write except on that occasion. The opponent has not raised any question oE the admissibility of the testimony of these witnesses, on such an issue as this, because of their sex. But we are necessitated to consider it.

Women are absolutely incapable oE being witnesses to testaments, says the Code. art. 1584 new no. 1591. Are they also incapable thereby of being witnesses, when a testament is offered for probate, and on the trial of the issue presented by the opposition thereto ?

The laws touching the capacity of witnesses underwent a sweeping alteration in 1867, (Sess. Acts, p. 143) and again in 1868. Sess. Acts, p. 269. The act of this last year was incorporated bodily in the Civil Code in 1870, and was substituted to art. 2260 of that Code, new no. 2281. It enacts that the competent witness of any covenant or fact, whatever it may be, in civil matters, is a person of proper understanding. The same Code contains the prohibition of women being witnesses to a will, and the two articles must be construed together, or if iireconcileable and naturally repugnant, the last must alone stand. They are not irreconcileable.

The act of 1868 removed all those restrictions and prohibitions, touching the capacity of witnesses which formerly prevailed, and which were adhered to with pertinacity and enforced with rigorous precision. It leaped with a single bound to the very front of those speculations with which Mr. Bentham had startled the legal and legislative world: and imitating what had been done in other countries and other of the States, accomplished with one stroke the emancipation of the law of evidence from the thrall which had impeded the ascertainment of truth.

Any person of proper understanding, without regard to age or sex, is made a competent witness, in a civil matter, of any fact whatever it may be. The verity and genuineness of the handwriting of a testator is a fact, and the probate of a will wherein such fact is to be proven, is a civil matter, and therefore a woman of proper understanding is a competent witness thereto and therein.

Judgment affirmed.

Dissenting Opinion.

DeBlanc, J.

The olographic testament is valid, when entirely written, dated and signed by the hand of the testator. How must it be acknowledged and proved ? According to the directory provision of the Code, it must be acknowledged and proved by the declaration of two credible witnesses, who must attest that they recognize the testament as being entirely written, dated and signed in the testator’s handwriting, as having often seen him write and sign during his lifetime.

In the matter of the succession of Daniel Clark it was correctly held that “the rules for the opening and proof of testaments — commencing at article 1649 of the Code, do not pronounce the penalty of nullity for their non-observance, and they nowhere say that other cases may not arise in which the strict letter of these rules may not be inapplicable, and the judge may not receive, in extraordinary cases, other equally satisfactory proof that the requirements of the law have been fulfilled.” 11 A. 128.

. In “ State vs. Ames,” the opinion of experts was taken as to the genuineness of the will, and the court said: “ We have had, presented for our inspection, the act itself with letters acknowledged to have been written by Joseph Field — the testator — and also the checks proved to have been signed by him. We have compared the handwriting and the signatures, and — after full consideration of the whole — we think the validity of the act established, and that it should be maintained.”

23 A. p. 75.

I believe that any proper evidence, calculated to convince the court and to conclusively establish that the testament was entirely written, dated and signed by the testator, should be heard and admitted. Otherwise, many a testament, valid in substance and valid in form, uncontested and incontestable, would — nevertheless—remain among the archives of the court, a mute confident of the last wishes .and legitimate dispositions of a deceased party.

Were one — impelled by the apprehension that the proof and execution of his testament might be objected to and opposed — to carry it himself to the judge of the probate court, declare in his presence and in presence of his clerk, that it was entirely written, dated and signed by him, ask the judge and the clerk to read it, and, after having read, to sign it; and this done, leave it — until his death — in the possession of those officers. Under these circumstances, could the judge — when asked to acknowledge it and. order its execution, justly answer : this — • beyond any doubt — is the testament of the deceased ; it was handed to and kept by me : my signature, that of my clerk are attached to it; I have read it before, I recognize every word which it contains, I know from, the testator’s own declaration that it was entirely written, dated and signed by him, but I have not often seen him write and sign during his lifetime, and, on that account and for no other reason, I cannot acknowledge it; the letter of the law — -blind and inflexible sentinel — stands between the will and its execution.

It cannot be successfully contended that a court is powerless to enforce that which it expressly authorizes, and to receive — as proof of the genuineness of an act which is valid in form and valid in substance, the evidence which — under other circumstances — it would consider as sufficient to deprive one of more than any right created by human law, his liberty — of more than his liberty, his life.

Of the sacred duties of a court, the most sacred is to protect, against the petty interests of this world, the last will of the departed, and a too rigid construction of the articles of the Code which relate to the proof of olographic testaments, would — often—impede the performance of that duty and defeat the most lawful dispositions.

For these reasons, I respectfully dissent from the opinion read by the Chief Justice, but concur in the decree rendered by the Court.

Concurring Opinion.

White, J.

I concur in the decree in this case, but not in the opinion. Inasmuch as the Court finds that the proof required by C. C. 1655 has been adduced I do not join in-the opinion because it expresses views as to what would be the rule were such testimony not in the record, thereby passing on a purely hypothetical issue — not necessary to be decided— not involved in the conclusions leading to the decree. In my judgment a safe rule for courts is to express opinions only as to indispensable matters, and not by anticipation to put of record opinions to govern cases which may arise.


author: JDeBlanc, J.

text:
    No. 7411.
    Succession of S. O. Rhea.
    A probate judge is disciualified to pass on the homologation of an executor’s account when he is put down on the account as creditor even of a paid debt.
    j^PPEAL from the Parish Court of East Feliciana. Brame, J.
    Succession not represented.

      W. F. Fernán for opponent and appellant.
   The opinion of the court was delivered by

JDeBlanc, J.

On the 20th of December, 1878, D. C. Hardee, the executor of the last will of S. O. Rhea, filed — in the parish court of East Feliciana — the final account of his administration of the succession of said deceased, the whole of which was absorbed by exclusively those of its creditors, whose claims were secured by mortgages and privileges.

On the 20th of December, the clerk of the parish court prepared a notice which — on the 21st — was published as prepared, and in which— instead of D. 0. Hardee — D. 0. Harden is represented as having filed the final account of his administration of the succession of S. O. Rhea.

On the 7th of January 1879, the account thus filed by D. 0. Hardee was homologated by a decree of the parish court, which appears to have been rendered, and which was signed at that date. During the term at which said decree was rendered and signed, but fourteen days thereafter —on the 21st of January — William R. McKewen, a creditor of the deceased, whose acknowledged claim is not carried in the homologated account, moved for a new trial of the case, on the grounds :

1. That — as required by law — notice of the filing of the executor’s account, was not published during ten days.

2. That, if any notice was published during the required term, it was insufficient in form.

3. That there was no legal proof that the notice of the filing of said account has ever been published.

4. That the parish judge, who rendered the judgment of homologation, was placed on the executor’s account as a creditor of the sue-cession, and that, being personally interested, he was incompetent to render that judgment.

The applicatioft for a new trial was overruled, and McKewen appealed. He urges, here, and against the validity of the decree of homologation, the■ identical objections which he urged in the lower court. Such as it is, that appeal is before us.

The appellant did not oppose the executor’s account, nor does he now even allege that any one of the claims thereon classed is incorrect in amount or inferior in rank to his own; but he is a creditor of the estate, this is acknowledged; and though — from his own pleadings and the vouchers introduced in evidence — he can, it seems, derive no advantage from the reversal of the decree which he assails, we are, nevertheless, constrained to reverse it.

That decree is invalid, and for only one reason : the parish judge was — apparently—interested in the matter upon which he passed. It is true that his claim against the estate was not carried in the executor’s account as due, but as paid — that his satisfied claim, which appears to be as reasonable as just, was a privileged one- — that it was not and — in all probability — -shall never be contested ; but the judge had, however, to decide, or rather to recognize that it had been properly paid, and — to so decide or recognize — -he had to do that which — when personally interested — the judge is — by an imperative clause of the constitution— commanded not to do.

The decree of a court should be, not only impartial, but no pretext should — as a stepping-stone — be allowed to stand between its impartiality and even the most unreasonable suspicion — for, as well said, praise is without feet and the wings of blame are swifter than the winds.

We.entertain no doubt that — in this case — -the parish judge felt as disinterested as we do, and — were it not for the constitutional prohibition already referred to, and the apprehension of establishing a dangerous precedent, one which — hereafter—-might be invoked by less disinterested judges, we would not hesitate — with the evidence now before us-— to concur in the decree rendered by the parish court: but, in the proceedings instituted by the executor, and on which he — the executor — was a plaintiff, the parish judge was one of the defendants, and he should have called upon his colleague of the district court, to try and determine the tacit issues created by the institution of those proceedings.

It is — therefore—ordered, adjudged and decreed that the judgment appealed from is annulled, avoided and reversed, and this cause remanded to the lower court, to be proceeded with according to the views herein expressed and according to law: the costs of the appeal to be paid by the succession of S. O. Rhea.


author: Spencer, J. Manning, O. J.

text:
    No. 7338.
    George Hammett vs. Wm. Sprowl et al.
    In a suit to revive a j udgment the defendant can not set up any grounds of defense which would not, if true, have rendered the j udgment absolutely null and void.
    Where an exception filed by the defendant was treated by the court, the plaintiff and himself as an answer, and on that assumption the ease was tried, and judgment rendered, he can not afterward, in a suit to revive the judgment, complain that no default against him was onter-ed.
    Where a suit instituted in the court of one parish and there prosecuted to a judgment, is removed by an act of the Legislature to the court of another parish, which is invested by the act with full jurisdiction of the case, the latter court has jurisdiction of the suit to revive the judgment in said suit.
    One who has a judgment against several persons jointly, or in solido, has a right to sue for the revival of the judgment against one only of his judgment debtors.
    In a suit to revive a judgment in solido against several persons, service of citation on one of the debtors will interrupt prescription of the judgment as to all.
    APPEAL from the Seventeenth Judicial District Oourt, parish of Red River. Pierson, J.

      J. F. Pierson for plaintiff and appellee.

      L. B. Watkins for defendant and appellant.
   The opinion of the court was .delivered by

Spencer, J.

Plaintiff brought suit in the district court of Natchitoches parish on his tutor’s bond, whereon Wm, Sprowl'and Peyton R. Bosley'were sureties in solido. The latter being dead, his sons John R. and H. S. Bosley were sued as his unconditional heirs. Said suit resulted in a judgment, in 1867, in favor of plaintiff for some $12,000 against Sprowl for the whole and in solido with the two heirs of Bosley, who were each condemned to pay one half, his virile share of said debt. At that time H. S. Bosley was cited as residing in Bossier parish, and was served there personally with citation, the other parties as residing in Natchitoches.

Judgment was made final on default. In 1871, the parish of Red River was created out of the territory taken from Natchitoches, Bossier, and other parishes.

It is shown that the defendants in said suit resided within the territory thus now embraced within Red River.

By act 78 of 1873, the clerks of district and parish courts of Natchitoches and the other parishes named, were directed to transmit forthwith to the clerks of the district and parish courts of Red River all petitions, answers, documents and papers appertaining to suits wherein the defendant or defendants reside within the parish of Red River, whether said suits be settled or unsettled.” “ That the district and parish courts of Red River shall have as full and complete jurisdiction over the suits so transferred, as the said courts of the different parishes from whence the same were transferred, as now under the law.”

The suit now before us is one to revive the judgment above mentioned, and is brought in the district court of Red River. In this suit to revive Vm. Sprowl lias not been cited, being dead and his estate shown to be utterly insolvent. John R. Bosley made no appearance, no default was entered against him, and he has not appealed. H. S. Bosley appeared and, reserving his right to answer, filed numerous “peremptory exceptions” and the plea of prescription of ten years, and prayed that plaintiff’s suit be dismissed and for costs and general relief.

The grounds of the exception are—

First- — Want of jurisdiction in the court.

Second — -That two of the defendants are cited as a firm, “ J. R. & H. S. Bosley,” instead of individually.

Third — That the suit can not be maintained without citation to Sprowl or his heirs.

Fourth- — That the petition does not disclose in what court the judgment sought to be revived was rendered.

Fifth — -That the court which rendered the judgment alone has power to revive it.

Sixth — Prescription of ten years.

The case was thereupon set down for trial, evidence introduced, and judgment rendered for plaintiff as prayed for. H. S. Bosley filed a motion for new trial on the ground that the judgment rendered was “contrary to law and evidence,” and appeals. In this court he has filed an elaborate assignment of errors, which so far as not a repetition of the peremptory exceptions are in substance as follows :

That no default was entered against him or other defendants in this cause. That the judgment sought to be revived was predicated on a previous one against the tutor, which last was prescribed when the former was rendered. That the judgment sought to be revived was rendered on insufficient evidence. That H. S. Bosley at the date of said judgment was resident of Bossier, as shown by the citation, and could not be sued in Natchitoches.- That his obligation to pay his father’s debts was a personal obligation, enforcible only at his domicile, and that said suit was not an action on the bond, but on his personal obligation as heir. That the original judgment against the tutor has never been revived, and is now barred.

We will dispose of this assignment of errors, so far as it attacks the original judgment sought to be revived, by simply saying that the grounds stated were all matters which should and could have been urged by way of defence thereto. That such matters can not be set up as defence in an action to revive. None of them, if true, would render the judgment absolutely null. Besides, appellant admitted on the trial below that at the date of said judgment in December, 1867, he resided in Natchitoches parish. He was personally cited. Connery vs. Rotchford, Brown & Co., 30 A. 692.

As regards the non-entry of default, so far as H. S. Bosley is concerned, it amounts to nothing. His exception was treated by the court, by the plaintiff, and by himself as an answer. The case tried, evidence adduced and decided. He moved for a new trial, and said nothing about there being no default against him. It is too late now to urge it.

This brings us to the case as presented below by the peremptory exceptions. The first and fifth grounds are substantially one — -want of jurisdiction in the district court of Bed Biver to revive a judgment rendered in Natchitoches. We have quoted the statute, which expressly gives to courts of Bed Biver jurisdiction over the suit sought to be revived in this case. It puts the Bed Biver court in the-place and stead of the Natchitoches court; vesting it as regards this judgment, with the jurisdiction of the latter. Now what was under existing laws the power of the Natchitoches courts as regards this judgment? It was the exclusive right io enforce and to revive it. After the passage of that statute the court of Natchitoches could no more revive that judgment than it could enforce it by ft. fa. We regard a proceeding to revive a judgment not as a new suit, but simply asa proceeding in the same suit, to continue and keep alive a judgment rendered therein, and to furnish proof that it has not been satisfied or extinguished. But if it were conceded to be a new and substantive suit, it is manifest that it would have to be brought in Bed Biver, where all the defendants reside. So taking either horn of the dilemma, the result is the same.

Second — The second ground is that the defendants “ J. R. & C. S. Bosley ” are cited as a firm. This is not true. The title of the suit at the head of the citation is, “ Geo. Hammett vs. Wm. Sprowl and J. R. & H. S. Bosley.” But separate citations, one addressed “ to H. S. Bosley” and one “ to J. R. Bosley,” issued and were served.

Third — The petition states that the judgment was rendered by W. B. Lewis, judge of the parish of Natchitoches.

Fourth — Where a party has judgment either in solido or jointly against several persons, we know no rule of law that compels him to revive it against all. In the absence of such rule of law, we see no reason to enforce it as a rule of reason or equity. Why compel a judgment creditor to incur the delay, vexation and expense of citing insolvent and irresponsible parties, from whom lie can never hope to obtain payment ? Why require him to do this, any more than require him to sue all the makers of a solidary or joint obligation ?

Sixth — The appellant also pleads the prescription of ten years in bar of this action. As we have seen, this judgment was in solido. Service of citation was made on H. S. and J. B. Bosley before the ten years had expired. This interrupts the prescription as to the co-obligor in solido, Wm. Sprowl, who has not been cited. C. C.

The theory upon which appellant pleads prescription in this case, is not developed in the pleadings or argument. But we presume it to be this ; payment of one co-obligor in solido discharges all the others. Prescription is a conclusive presumption of payment. Hence prescription, acquired by one co-obligor being a conclusive presumption of payment by him, inures to the benefit of all the others and discharges them.

It is not necessary for us to go into- this vexed question, since as we have seen, no prescription has yet been acquired by any of the solidary debtors.

The judgment'is affirmed at the costs of appellant.

Manning, O. J.

Upon the question of jurisdiction, I rest my concurrence upon the phraseology of the special act, which provides for the transfer of causes to Rod River parish, “ whether the suits be settled or unsettled.” Withouj; that sweeping provision, I think the Natchitoches court would have jurisdiction of the action to revive the judgment, because of the requirement that the citation for revival must proceed “from the court which rendered the judgment.” And I think this is true, whether the defendants reside in the parish or not. The special law for the revival of judgments fixes the forum for that class of actions, and a removal of the defendants, or any of them, from the parish where they were sued in the original action, does not in any manner affect the jurisdiction of the court of that parish quoad the suit for revival.


text:
    No. 5866.
    Nicholson & Co. vs. Succession of N. R. Jennings.
    Where a ease has been remanded for the sole purpose of ascertaining whether prescription was interrupted, the lower court may nevertheless entertain an inquiry into the fact, (then for the first time put at issue) whether the plaintiff was dead before the institution of the suit; and if the fact is sustained by proper evidence the suit must be dismissed.
    APPEAL from the Sixth Judicial District Court, parish of Tangipahoa. Kemp, J.

      Hornor & Benedict for plaintiffs and appellants.

      B.’B,. Forman for defendant and appellee.
   The opinion of the court was delivered by

Manning, C. J.

This suit was instituted for the purpose of recovering payment for square block pavement’ in front of the property of Jennings in this city. A judgment was rendered by default, and was confirmed, and an appeal by petition was taken therefrom, which was heard in 1873. In January of that year, the defendant executrix, appearing for the first time, filed in this court the plea or objection that she had never been cited in this case at any time, or in any manner ; and if this should be overruled, she then pleaded prescription.

The court said, " these pleas are inconsistent. Pleading prescription is an appearance. The plea of prescription seems to be well founded, but as it was filed for the first time in this court, and the plaintiff requesting it, the ease will be remanded for the purpose of allowing plaintiffs to prove an interruption.” Opinion Book.

When the trial came on again in the lower court, the defendant made an exception of defective citation, or rather no citation, and another of no plaintiff, Nicholson being dead when the suit was filed, whereupon the plaintiff moved to strike out both exceptions, for the reason that the case was remanded for one purpose alone, viz, to try the plea of prescription. The lower court struck out the pica touching citation, and refused to strike out the other, and testimony having been heard thereon, it was proved that Nicholson was dead before the suit began. This plea was sustained, and the suit was dismissed. The plaintiff then asked leave of the court to offer proof shewing the interruption of prescription, but the defendant objected that the case was closed, and judgment entered, and so it was. An appeal was taken, and is now before us.

The defendant had never been cited. A careless clerk had issued the citation, without filling the blank where the name or other designation of the defendant should be, and afterwards some one attempted to supply the omission, but did it so clumsily that it was detected. We are inclined to think that the expression — the two pleas of defective citation and prescription are inconsistent — is not what was really meant, but rather that by pleading prescription as a defence, the party waived his right of exception of ^o citation. But the correctness of that decision is not before us. We may observe however, that there seems to be no good reason why the defendant should not have excepted for want of citation, and reserving the exception, in case it be overruled, have pleaded prescription, and this was what he did.

The judgment we have to review is one of dismissal because of the death of one of the plaintiffs before the institution of the suit. A judgment cannot be rendered in favor of a deceased person, nor against Mm. If either the plaintiff or the defendant had died after the institution of suit, of course it could have been revived in the name of or against his representative. The plaintiff’s counsel, we presume, does not controvert this position, but he insists that nothing could be inquired into under the order remanding the case, except the particular matter, for the ascertainment of which, it was remanded. To which we answei’, that inquiry touching the fact whether there is any plaintiff at all, is always permissible. After an appeal is lodged in this court, a suggestion of the death of one of the parties to a suit always provokes an order staying the hearing until a representative of the deceased has come in, or been brought in, in his stead. When therefore an exception was filed in the second trial below of the death of the plaintiff, anterior to the institution of the suit, it was properly considered, and being sustained by proof, a dismissal necessarily followed.

The plaintiff cites State ex rel. Livingston v. Graham, 25 Annual, 629, as authority for his view of the restricted scope of the lower court’s inquiry under the order to remand. An examination of that case shews that that point was not ruled on.

The judgment is affirmed.


author: White, J. Manning, O. J.

text:
    No. 7373.
    Montgomery & Deloney vs. N. Burton, Sheriff.
    A mortgage creditor may redeem from a tax sale the property on which his mortgage rests, either in his own name, or in the name of his debtor, the former owner, and when the purchaser at the tax sale refuses to accept the sum necessary to redeem when tendered in the name of the former owner by the mortgage creditor, the latter may seize and sell the property to satisfy his debt.
    APPEAL from the Thirteenth Judicial District Court, parish of East Carroll. Hough, J.

      Henry C. Miller for plaintiffs and appellees.

      J. W. Montgomery for defendant and appellant.
   The opinion of the court was delivered by

White, J.

Tucker, Carter & Co., being holders of a note of R. T. Keene, secured by mortgage, obtained on the second of June, 1873, a judgment thereon with recognition of mortgage. On the fourth of April, 1874, the mortgaged property was sold for taxes and bought by plaintiffs. In May, 1874, Tucker, Carter & Co. seized under fi. fa. and the plaintiffs enjoined, claiming ownership under their tax title.

Many questions have been raised in argument of counsel as to the validity of the tax sale as to whether before the expiration of the delay for redemption it was sufficiently inchoate so as to compel the creditor to attack it directly, upon all of which we need express no opinion, as our conclusion on one point alone is decisive of the case. On the third of October, 1874, J. W. Montgomery, Esq., the counsel for Tucker, Carter & Co., called on Messrs. Montgomery & Deloney and tendered an amount adequaté to redeem the property. He was asked whom he represented in making the tender, and upon his answering that he made the tender in the name of Keene, he was told that if he represented Keene he could redeem, and to use the language of one of the plaintiffs, “it being our opinion that he did not represent Keene, the matter went over.” We think the tender should have been accepted, and that being made in the name of Keene was no objection to its validity. True, the mortgage creditor might have offered to redeem in his own name, but it is equally true that as such creditor he was for the purposes of the tender invested with the rights of Keene, was in fact his implied legal mandatary to that end. We understand from the conduct of the parties that the tender was practically refused if made in the name of the mortgage creditors, because although the plaintiffs knew when the tender was made that the one making it was the attorney of the mortgage creditors, who were then seeking to enforce their mortgage, the tender was refused unless made as the representative of Keene. The intention must have been'to refuse the tender if Keene was only represented in consequence of the rights of the mortgage creditor as such, because although these rights were known the tender was refused because in the opinion of the holders of the tax title the mortgage creditor did not as such represent the divested owner for the purposes of redemption. These conclusions are made manifest when it is noted that the offer and refusal were made before this court had recognized the right of a mortgage creditor to redeem. The tender having been improperly refused, of course it was for all the purposes of the defendant’s rights just as if it had been accepted, and the only question remaining for our conclusion is the consequences of the tender upon the rights of the parties. Whether a tax title is inchoate or not until the delay for redemption need not, as we have said, be now examined, because whatever may be the law on that subject, there can be no doubt that the right of redemption sprang into being from the very fact of the sale, and became attached to it as a dissolving condition. O. C. 2045. This being the case, every obstacle, if any existed, to the execution of the mortgage, was removed, and as the evidence of the tender after the seizure was received without objection, we consider that at least from that date the seizure was valid.

The defendant has both orally and by brief urged all his other defenses only in case the tender should be found insufficient, and we are therefore dispensed from passing on the many claimed absolute nullities in the tax sale as well as on the right to seize prior to the making of the tender.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be and the same is hereby reversed, and, proceeding to render such judgment as should have been rendered by the lower court, it is ordered, adjudged, and decreed that the validity of the tender made by defendant of the amount required to redeem the property sold at tax sale be and the same is hereby recognized, and it is further ordered that upon payment by defendant herein of the amount required to redeem, with five per cent interest thereon from the third day of October, 1874, the injunction be dissolved; the costs up to the third of October, 1874, to be paid by the defendant herein, those subsequent thereto to be borne by the plaintiff.

Dissenting Opinion.

Manning, O. J.

Tucker, Garter & Oo. had obtained judgment in 1873 against R. T. Keene for $5,500 with interest on a mortgage note, and the mortgage was decreed to be executory. In April, 1874, the mortgaged property was sold for taxes, and was purchased by the plaintiffs, and the deed of the tax collector was executed and recorded. In May the Tucker firm caused execution to issue to enforce their judgment, and the property (a plantation in Carroll parish) was seized. Its sale was arrested by an injunction, in which the plaintiffs claim title to the property under the tax collector’s deed, and possession as owners.

The seizing creditors, who with the sheriff are defendants, answer that the plaintiffs’ title was inchoate, and could not be complete until six months had elapsed from the date of the tax-deed and the Auditor had executed his confirmatory title, and during this period the owner had the right of redemption, and they as his creditors could exercise his right. They allege a tender made by them to the plaintiffs on behalf of Keene of the sum necessary to redeem the property which was refused, and aver that Keene has fraudulently colluded with one Tibbetts, who was the payee of the note and from whom they obtained it, to defeat their rights. They then attacked the tax sale for alleged in-formalities. This answer was filed in August 1874.

In fact, no tender or offer to redeem had then been made as alleged, but early in October following, one day before the expiration of six months from the tax sale, an offer to redeem was made by the counsel of the Tucker firm in the name of Keene. The plaintiffs replied to this offer, that if the counsel who made it really represented Keene they would accept it and reconvey the property to him, but they disputed the fact of such representation, whereupon the counsel admitted that he did not represent Keene, but only the mortgage creditors and one Sprague. In truth, the allegations that Keene was offering through him to redeem the property, and that Keene was fraudulently colluding with Tibbetts to prevent a redemption, and thus cut off the creditors’ mortgage, are inconsistent.

It does not appear to mo to be a proper construction of the legislative acts concerning tax titles, that the purchaser’s deed from the tax collector is inchoate in such sense as to authorize it to be disregarded, and a seizure to be lawfully made of the property as if it belonged to the former owner. Where a purchaser has such title and has judicial possession, the same rule applies in my opinion as in judicial sales. Such purchasers are expressly declared by the law to be the owners of the property, and the sale is to have the same force and effect, and be as binding to all intents and purposes on the former owner as a sale made in any j udicial proceeding to enforce the payment of a previous debt. Sess. Acts 1873, p. 180 ; Jurey v. Allison, 30 Annual, 1234. The title from the tax collector is to be held and recognized by the courts as valid in law, and upon its presentation in court it is the duty of the judge to order the sheriff to put the party in possession. Ibid. p. 100. The fact that the owner has a given time in which to redeem makes the title precarious in this, that it is liable to be divested by a redemption, but if not redeemed before the Auditor gives the confirmatory title, the right of redemption is lost.

The mortgage creditor has the same right to redeem the property that the owner has. It is true that the law conferring that right in express terms was not passed until after the time when these proceedings were had. Sess. Acts 1875, p. 34. But the right existed independent of that enactment. It would be monstrous that a debtor, by refusing or neglecting to pay the taxes upon his property, should be able to rid it of mortgages through a tax sale, and refusing to redeem it, could debar Ms creditor who had a special lien upon it from redeeming it also. The debtor might have no interest in redeeming it. The incumbrances might exceed in amount the value of the property. The mortgage creditor has a right to prevent the loss of the security for his debt by re-imbursing the purchaser what he has paid out with the additional charges sanctioned by the laws.

There does not appear to be any .question made as to the kind of offer made by the creditors, whether it was a tender in the sense of the Code or not. It was made within the time allowed for redemption, and therefore the creditor should not lose the benefit of it, but I think he was not authorized to disregard the tax sale and proceed against the property as if no sale had taken place, and therefore such proceeding ■was rightfully injoined. He has the right to avail himself of the tender, made within time, in other proceedings to compel its acceptance, and make bis offer of redemption effectual for the preservation of his mortgage.

In my opinion the judgment of the lower court maintaining the injunction should be affirmed, reserving the defendants’ right to proceed in another form to compel the plaintiffs to permit them to redeem the property, if they be legally entitled thereto.

Rehearing refused.


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    No. 7341.
    Louis A. Gerodias vs. T. H. Handy, Sheriff, et al.
    If the petition of appeal contains no prayer for a citation, and the record fails to show that a citation was ordered, issued, or served, the appeal must be dismissed.
    APPEAL from the Third District Court, parish of Orleans. Monroe, J.

      Simeon Belden for plaintiffs and appellants.

      Lacey & Bailer for defendants and appellees.
   On Motion to Dismiss.

The opinion of the court was delivered by

Manning, C. J.

This appeal was taken by petition. The defendants move to dismiss on the grounds, that the petition contains no prayer for citation, and none was ordered and none served. . The motion is sustained by the record, and must prevail.

If the petition of appeal contains no prayer for citation, and none has been issued or served, the appeal must bo dismissed. Bolling v. Anderson, 10 Annual, 650.

It is the duty of the appellant to see that the necessary steps are taken, which are required by law, to bring up his appeal, and if he fails to cause citation of appeal to issue, he will not be entitled to relief under the Act of 1839, now Rev. Stats, sec. 36. Walker v. Martolo, 16 La. 50.

If a party, seeking an appeal by petition, fails to pray for citation, and none is ordered or issued, and the record fails to shew that any has been served, these omissions will be imputed to the appellant, and not to the clerk.

The appeal is dismissed.

Rehearing refused.


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    No. 7218.
    In re John Wallace, praying that Award of Arbitrators be made executory.
    In a proceeding to make the award of amicable compounders executory it may be shown that the compounders acted beyond the authority with which they were invested. Any award of theirs not authorized by the terms of the agreement to submit, is void, and may be resisted.
    The award of amicable compounders within the scope of their authority is conclusive as to the parties who have agreed to submit, and is notreviewable by the courts.
    APPEAL from the Fifth District Court, parish of Orleans. Rogers, J.

      F. II. Farrar for plaintiff and appellee.

      Kennard, Howe & Prentiss for appellants.
   The opinion of the court was delivered by

Spencer, J.

The firm of Wallace & Co. having failed some years ago, obtained under the bankrupt law a composition with their creditors. David Wallace, of the firm, was made liquidator, and after paying off the creditors under the composition there remained a large surplus belonging to the late firm.

Suit was brought in the Fifth District Court by Wilder and Banker of the firm, in which they charged David Wallace with infidelity and mismanagement in liquidating its affairs. . Among other things it is charged “ that said David Wallace has, in order to increase his apparent capital in the firm of Wallace & Co., entered on the books thereof, as so much capital contributed by him, $15,000 of stock in the Louisiana Savings Bank and Safe Deposit Company, and $5000 of stock of the Security Bank of New York, neither of which is of any value, and he illegally claims and will claim that by reason of these credits so made to him he must first be paid the sum of $20,000, as capital, before their share of profits can be paid to petitioners.” They pray for an injunction and for the appointment of a receiver “ to liquidate said firm in accordance with law and the agreement of said parties, that a proper accounting and settlement may be had of the said partnership of Wallace & Co.; that they may have judgment against him for such sums as ■may be found due from him,” etc.

Pending this litigation, and before answer thereto, all the members of Wallace & Co. entered into an agreement, wherein it was recited that ■they were “now engaged in a litigation in the Fifth District Court, with reference to the settlement of the partnership that formerly existed between them under the style of Wallace & Co.,” and that “ all the parties, in advance of the decision of the court on the questions now submitted to it, are desirous of submitting all their differences to arbitrators and amicable compounders.” They thereupon agree “ to submit all their differences and all questions arising out of the settlement of the partnership of Wallace & Co., and all disputes which may arise between the parties in the course of the arbitration with reference to said partnership affairs, to arbitrators, who shall have the power of amicable compounders, to be appointed as hereinafter designated.” They then provide for the appointment of the arbitrators, and for that of two experts who are to assist the arbitrators — declaring that the .experts shall report any points of difference to the arbitrators, “ who after due proceeding shall finally decide the sarde, and shall finally state and settle the accounts of said partnership and award to each party whatever may be his right and due.” They then agree to enter into bonds each in favor of the other in the sum of $15,000, conditioned as follows: “ That they will abide by the award as made by the amicable compounders, and will pay the sum adjudged against them, within sixty days from the date of the award, the bankruptcy of the parties not excepted, otherwise they and their sureties to be liable for the amount of the award, and the amount of the penalty fixed in the bond.”

It is further provided that on the signing of this agreement, and the giving of the said bonds, Banker and Wilder are " to dismiss all proceedings now pending in the Fifth District Court, and this arbitration shall take the place of and be substituted for these proceedings, and shall be the mode of determining the rights between the parties.”

The arbitrators rendered their award, declaring in substance that the Wallaces had furnished all the capital of Wallace & Co.; that the surplus remaining after the payment to the creditors, under the composition, must, as far as it went, go first to replace and restore said capital; that Banker and Wilder were entitled to no part of said surplus; but on the contrary largely indebted to David Wallace, liquidator; and they therefore awarded that Wilder pay him $13,059 15.

The proceeding before us is one to have this award made executory. The only dispute is as to whether the arbitrators transcended the authority given them in the submission — it being conceded on all sides that their award, within the limits of the submission, is final, and not reviewable, as to questions of law or fact, in this or any other court. C. C. 3110 ; C. P. 459, 460; 4 An. 148; 7 An. 171; 13 An. 37.

We think that a party against whom an award of amicable compounders has been givpn may, on a proceeding, to have it made executory, show as caüse against it that the compounders acted beyond and transcended their authority, as given in the submission. Any award thus given outside of the terms-and scope of the submission is void, and its execution may be resisted when it is sought to be enforced. Otherwise, the aggrieved party would be without remedy against the most extravagant usurpation of tlie amicable compounders. C. C. art 3121; C. P. 608-9 ; 10 An. 642.

We proceed therefore to consider the only question before us. Did the submission authorize the compounders not only to reject Wilder’s claims to a share of the said surplus, but also to condemn him to pay-in addition a sum of money ? We are constrained to answer this question in the affirmative. If we were to adopt the defendants’ theory, that the submission only embraced the matters involved in their suit in the Fifth District Court, we have seen, by extracts therefrom, that they themselves put the question of the amount of Wallace’s capital at issue, by demanding that certain items credited thereto should be disallowed. As we have seen, Wallace had not filed an answer in that suit at the time of the agreement to arbitrate, and the terms of that agreement were evidently intended to give him the right to set up before the arbitrators every defense and claim that was open to him in that suit. The terms of the agreement are as broad and unqualified as language can make them. Besides, it is manifest that the parties contemplated that the arbitrators were to render awards for money, for they formally agreed to and did give bond, each of them, not only to “abide by the award,” but to “pay the sum adjudged against them within sixty days,” notwithstanding their bankruptcy. If there was to be in no event a judgment for money against Wilder, why did he give bond and agree to pay such a judgment? We think the compounders acted clearly within the terms of the submission, and that the judgment of the court a qua rendering and making their award executory is correct, and it is affirmed at costs of appellant.

Rehearing refused.

Mr. Justice White takes no part in this decision.


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    No. 7414.
    S. W. Hammond vs. E. Lesseps et al.
    Whore the title o£ an aet is “ to change the boundary of the parish pf St. Bernard,” it sufficiently indicates the purpose of the aet when that purpose is to take from another parish a part of its territory and add it to the parish of St. Bernard. The title need not set forth the means by which the purpose of the act is to be accomplished.
    APPEAL from the Fifth District Court, parish of Orleans. Bogers, J. Sambola & Bucros and Chas. E. SchmicU for Mrs. Lesseps, defendant and appellant.

      Bichará Shackelford for John Thorn, in rule and appellee.

      E. H. Earrar for city of New Orleans, appearing as amicus curies.

   The opinion of the court was delivered by

Spencer, J.

Defendants being sued in the Fifth District Court of the parish of Orleans, excepted to the jurisdiction thereof on the ground of domicile in the parish of St. Bernard. They live within the territory lying between the-'-Fishermen’s Canal,” the United States Barracks, and " Florida Walk,” which by act No. 23 of 1875 was taken from the parish of Orleans and added to that of St. Bernard.

Plaintiff claimed and the court held this act to be unconstitutional, in so far as it added said territory to St. Bernard, for the reason that the title of the act did not sufficiently indicate its purpose.

The title of that act is “to change the boundary of the parish of St. Bernard.”

The courts in this and other States whore similar constitutional provisions exist have always construed them liberally, to avoid the consequences of a too rigid interpretation. Laws enacted by the Legislature are not to be declared void by the courts unless clearly and manifestly unconstitutional. Cooley’s Constitutional Limit, p. 146 ; 6 A. 608 ; 20 A. 198.

The rule is well stated by Mr. Pomeroy in his notes to the second edition of Sedgwick on Statutory and Constitutional Law, p. 520. “The title should fairly indicate the general subject of the statute, but need not give an abstract of its contents; nor need it mention the means, methods, or instruments by tohich this general purpose is to be accomplished; nor need it express matters which are merely incidental to this subject.”

■A change in the boundary of St. Bernard necessarily implied a change in the boundaries of one or more contiguous parishes. It was not necessary to set forth in “ the title ” of the act the means by which this purpose, this change, was to be accomplished. We think the general purpose expressed in the title, of changing the boundaries of St. Bernard, is generic, and that the extension of the boundary so as to include the territory in question is germain to that purpose.

The rule is that whatever is germain or incidental to purpose expressed in the title is embraced within it.

This is the spirit of our own adjudications. N. O. vs. Cazelar, 27 A. 156 ; N. O. vs. Bright, 28 A. 873 ; 28 A. 38.

The fact that the act in question is inconsistent with and repeals by necessary implication act No. 7 of extra session of 1870, extending and fixing the boundaries of the parish of Orleans, is no reason for holding the former unconstitutional. The last expression of legislative will repeals all laws in conflict with it, whether this intent be expressed in the title or body of the act or not expressed in either.

The judgment is reversed, defendants’ exception maintained, and plaintiff’s suit dismissed as of nonsuit at his costs.


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    No. 7169.
    John Kirwin et al. vs. Hibernia Insurance Company.
    Where in a particular ease this court has decided that the Superior District Court of the parish had jurisdiction, the parties to that case can not re-open the Question of jurisdiction.
    •On the trial of the peremptory exception that the plaintiff has not made proper parties to the suit, the allegations of his petition are taken to bo true.
    APPEAL from the Third District Court; parish of Orleans. Monroe, J.

      JS. B. Forman for plaintiffs and appellants.

      T. Gilmore & Sons for defendants and appellees.
   The opinion of the court was delivered by

Spencer, J.

This case was before this court in March, 1876, and is reported in 28 An. 312.

On filing the mandate of this court in the court below (to wit, Third District Court, to which the records of the late Superior District Court had been transferred) the defendant filed as peremptory exceptions :

Eirst — That the court is without jurisdiction to annul and set aside the proceedings and j udgments of the Sixth District Court and to annul the sale thereunder, or to perpetuate the injunction.

Second — Proper parties to the suit have not been made.

The judge of the Third District Court sustained these exceptions and dismissed plaintiffs’suit, and they appeal. The sole question before us is as to the correctness of that ruling.

There is no dispute that the Third Distriet Court is tlie successor of the Superior District Court, and therefore has the same right of jurisdiction in this case as had the latter. The case must therefore be treated just as though still pending in the Superior Court. Now one of the principal questions raised and decided by this court, in 28 An. 312, was as to whether the Superior District Court had jurisdiction to annul what was contended to be decrees and proceedings of the Sixth Court. This ■court decided that it did have jurisdiction, and remanded the case to be proceeded with therein. We do not wish to be understood as approving that decision, either on that or other points discussed therein. But it has been adjudged that the Superior Court, and therefore its successor, had jurisdiction; and it is not permissible for the same party in the same court to call again in question the same matter. Otherwise, there never could be an end of lawsuits where the lower court differed in opinion with the appellate court, and was inclined to adhere to its own. views. The cause could, in such circumstances, be bandied about from the one court to the other any number of times upon the identical same question. Interest reipublicce ut sit finis litium. We can not, therefore, nor could the lower court, re-open or re-examine that question.

Second — Of course John Kirwin and Kate Kirwin have no authority or mission from the law to represent their minor brothers and sisters or their insane mother, unless they have been appointed tutors to former and curators of the latter; which they do not pretend to have been. But the petition purports to be, not only that of John and Kate Kirwin in their own behalf and in behalf of their minor brothers and sisters and mother, but also that of the mother individually and as tutrix of the said minor children.

It seems to us, therefore, that all necessary parties are before the court, if the petition be taken as true, which for the purposes of this case must be done.

The judgment appealed from is therefore reversed, and this cause remanded to'be proceeded with according to law, appellee paying costs of appeal.


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    No. 7200.
    The State vs. E. Frappart.
    The owner of a restaurant and liquor saloon on board of a vessel plying on navigable waters between this and an adjoining State, and touching at intermediate places in the course of her voyage, can not be compelled by the local authorities of any of those places to pay a license tax for selling spirits, when it appears that he sold liquors only on board the vessel.
    APPEAL from the Sixth Judicial District Court, parish of St. Tammany. Duncan, J.

      Jas. M. Wright, district attorney, for the State.

      Ellis & Ellis for defendant and appellant.
   The opinion of the court was delivered by

Spencer, J.

The defendant, who is the manager of the restaurant and bar on the “Camelia,” a steamboat owned and enrolled in New Orleans and running regularly as a packet between the port of New Orleans and Bay St.- Louis in Mississippi, touching at various points on the Lake shore in Louisiana and Mississippi, was indicted, tried, and convicted in the parish of St. Tammany on the charge of keeping a grog and tippling shop, and retailing spirituous liquors without license from the police jury of said parish.

The question is, did the police jury o'f St. Tammany have the right to demand payment of a license from the defendant, who it is conceded only sold liquor on board of said steamer in the course of her voyage on the lake and navigable streams through which she passed? We think not; for the reason that a boat plying upon navigable waters between different States can not be considered as conducting or doing a business at each and every point where she touches, so as to become subject to taxation at each of said points. Such a proposition would give the local authorities power not only to regulate but to destroy commerce between the States ; which power by the constitution belongs exclusively to Congress.

If we recognize over vessels in transitu the existence of such power in the local authorities in cases like this we do not see how it could be denied in other cases. After a vessel has completed her voyage, and is at her port of destination it is perhaps competent to enforce on board of her such local police regulations as are necessary to the good order of society. • But when on her voyage she is not within the jurisdiction of State tribunals for purposes like this.

The defendant is entitled to his discharge from the fine imposed.

It is therefore ordered that the judgment appealed from be annulled and reversed at costs of appellee.