author: Wyly, J.. Taliaferro, J.

text:
    No. 4831.
    Caroline Richardson, Wife of A. Piseros v. E. R. Chevalley et als.
    Tlie surety on tlie injunction bond being condemned to pay no damages, has manifestly no interest in tlie appeal which the plaintiff has taken, the court a qua, having dismissed the suit on the exception of no cause of action, and the injunction being dissolved without damages, reserving to defendant the right to claim the same on a separate action on the hond.
    'The decision of this court in this appeal can in no manner affect the surety on the injunction bond, wherefore it would be a vain thing to make him a party to the appeal.
    It appears from the record that the property claimed by plaintiff was seized and sold at the suit of Marie Jeanne Piseros and bought by Chevalley, one oí the defendants. It was originally purchased in the name of plaintiff, but this was done during her marriage, as her husband appears as a party to the act authorizing the purchase. The property so purchased must, in the absence of anything being shown to the contrary, be.considered community property, and liable for the community debts.
    It is moreover shown that the wife was a party to an act of mortgage by her husband of this same property in favor of Marie Jeanne Piseros, to secure the payment of the purchase price of the same, and fully renounced her rights on the property.
    Appeal from tlie Sixth District Court, parish of Orleans. Saucier, J.

      Tí. King Cutler, A. J. Steele, for plaintiff and appellee. K. Howard MeCaleb, Octave Morel, for defendants and appellees.
   On Motion to Dismiss.

Wyly, J..

The plaintiff sued to set aside the adjudication to the ■defendant E. R. Chevalley of the property described in the petition, and to be decreed tlie owner thereof. She also injoined the 'defendants from dispossessing her of said property.. On the exception that the petition discloses no cause of action, the court dismissed the suit and dissolved the injunction without damages, reserving to the defendant in a separate action the right to claim damages on the injunction bond. From this judgment the plaintiff appeals.

The defendants now move to dismiss the appeal, because the surety ■on the injunction bond is not made party thereto, the fault being imputable to the plaintiff who only-prayed in his petition for appeal that the defendants be cited. In support of this motion they cite the cases of Pecoul v. Perret, 20 An. 70, and Avegno v. Johnston, 22 An. 400.

The case at bar is different from those cited. Here the suit was dismissed on the exception of no cause of action, and the injunction dissolved, reserving to the defendant the right to claim damages in a separate action on the bond'.

The surety condemned to pay no damages, has manifestly no interest in the appeal which the plaintiff has taken with a view to have the judgment reversed which dismissed her suit. The decision of this court in this appeal can in no manner affect the surety on the injunction bond. Therefore it would be a vain thing to make him a party to the appeal.

The motion to dismiss is therefore denied.

On the Merits.

Taliaferro, J.

The plaintiff injoins the defendant from taking possession of certain lots of ground seized and sold under execution issued on a judgment rendered against her husband in favor of Marie Jeanne Piseros. She alleges that the property seized belongs to her as her separate, paraphernal estate; that the said property was under execution by the sheriff without notice to her, and the first knowledge she had of its having been sold was a notice served upon her by the defendant Chevalley to vacate the premises as he had purchased the property at the sheriff’s sale. She prays citations to the parties in interest and that the sale and adjudication of the property be annulled and avoided, that she be decreed the owner of the two lots and buildings thereon so illegally seized and sold, and that she be maintained in the possession of the same. The plaintiff.sets up numerous grounds on which she alleges her right to have the proceedings thrown out in-relation to the illegal sale of her property.

The defendant excepts that the plaintiff has no cause of action, and prays that all her allegations set forth in the petition be stricken out and set aside, and that he be dispensed from answering, and that so much of the plaintiff’s petition as prays for judgment forbidding the further execution of the judgment under which the property was seized, be also set aside, dismissed and stricken out; and he prays for general relief. The exception was sustained, and the plaintiff’s suit dismissed. Judgment was in like manner rendered against the plaintiff dismissing her suit on exception of Marie Jeanne Piseros, made a party defendant. From these judgments the plaintiff appeals.

It appears from the record that the property in question although purchased in the name of the wife was purchased during her marriage, as the husband appears as a' party to the act authorizing the purchase; and the property so purchased must, in the absence of anything being shown to the contrary, be considered community property, and liable for the community debts.

It is moreover shown that the wife was a party to an act of mortgage by her husband of this same property in favor of Marie Jeanne Piseros to secure the payment of the purchase price of the same, and formally renounced all her rights upon the property. The plaintiff has failed to make out her case.

Judgment affirmed, with costs in both courts.

Rehearing refused.


source: Caselaw Access Project

author: Wyly, J.

license: Public Domain

text:
    No. 5269.
    Succession of John K. Elgee. E. T. Parker, Public Administrator v. Bessie Elgee Gaussen, Executrix.
    The court below having made an order, in a proceeding to which the defendant was not a party, appointing the plaintiff provisional administrator of the succession of defendant’s father in the place of said defendant, the executrix thereof, and putting him in possession of the property thereto belonging, the defendant took a rule against the plaintiff to set aside this interlocutory order on the ground that it was improvidently granted and not warranted by law. The plaintiff appeals from the setting aside of the ordor.
    The plaintiff can suffer no irreparable injury by the decree from which he has appealed. It simply revokes an order disturbing the defendant’s possession of the property of her father’s estate, and permits her to continue to discharge the duties of executrix of the succession until the suit is tried, and it is determined whether she shall be removed from office or not. Whether her administration pending the suit will be beneficial or injurious, is a question which concerns the heirs and creditors, but it is a matter in which the public administrator has no interest. The appeal must be dismissed.
    Appeal from the Second District Court, parish of Orleans. Tissot, J.

      W. O. Denegre, for plaintiff and appellant. Alfred Philips, Finney <& Miller, for defendant-and appellee.
   Wyly, J.

In a suit by the public administrator against the defendant to destitute her of the office of executrix of the succession of her father, John K. Elgee, the court made an order, in a proceeding to which the defendant was not a party, appointing the plaintiff provisional administrator and putting him in possession of the property. The defendant then took a rule against the plaintiff to set aside the interlocutory order on the ground that it was improvidently granted, and that it was unwarranted by law. From the judgment on this rule setting aside the order alleged to have been improvidently granted, the plaintiff appeals.

The appellee moves to dismiss the appeal on several grounds, the most important being that the judgment appealed from is an interlocutory order that can not work the plaintiff an irreparable injury.

The plaintiff, the appellant herein, is neither a creditor nor heir of John K. Elgee. What interest he can have in complaining that the defendant, the executrix of the succession of her father, has not faithfully- performed the trust confided to her, and therefore should be destituted of office, it is difficult to imagine. But the precise question is, what irreparable injury can the plaintiff suffer by the interlocutory order from which he has appealed.

We can see no injury that can result to the appellant from the order of which he couqfiains. It simply revokes an order disturbing the defendant's possession of the property and permitting her to continue to discharge the duties of executrix of her father’s succession until the suit is tried and it is determined whether she shall be destituted of office or not. Whether her administration pending the suit will be beneficial or injurious, is a question which concerns the heirs and creditors; but it is a matter in Which the public administrator has no interest. The order can not work him an irreparable injury.

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

See the ease of succession of Walter WinD, 26 An. 162.


author: Howell, J.

text:
    No. 4080.
    Henry T. Sorrel v. Henry Laurent.
    This is a suit on a promissory note secured by pledge. It is brought against the defendant, as a resident of the parish of Iberville, and was served on him personally in the parish of Orleans. As it is a personal action, unattended with any conservatory writ, the court a qua, was clearly without jurisdiction against defendant.
    Appeal from the Seventh Distiict Court, parish of Orleans. Oollens, J.

      Ilornor & Benedict, for plaintiff and appellee. Breaux, Fenner & Ball, for defendant and appellant.
   Howell, J.

Plaintiff, a resident of the State of Ohio, sued the defendant, as aresidentof the parish of Ibervillein this State, and served him personally in the parish of Orleans, on a promissory note secured by pledge of movables in possession of their attorneys in New Orleans for plaintiff, and prayed for judgment with privilege on the property held in pledge, and that it be sold to satisfy the judgment. From a judgment confirming a default the defendant lias appealed.

The judgment is erroneous. See C. P., 162 and the case of-.

It is a personal action, unattended with any conservatory writ. The court a qua was clearly without jurisdiction over defendant.

It is therefore ordered that the judgment of the court a qua he annulled and the suit dismissed at plaintiff’s costs in both courts.


author: Taliaferro, J.

text:
    No. 3474.
    Mrs. Lizzie Clara Davis, wife of Frank E. Mumford, and her minor child, R. E. Smith, v. Bradley, Wilson & Co.
    This suit is brought- on a bill of exchange. The fact that the plaintiffs acquired the instrument after its maturity must determine the case against them. This rule seems to admit of no exception, that a party, taking a bill or note after its maturity, takes it subject to all the equities and exceptions that might exist between the original parties.
    It is a principle of the commercial law that the bare fact that a negotiable instrument is unpaid at its maturity is a circumstance sufficient to raise the presumption of fraud, and that there exists some solid reason why it was not paid.
    The law of merchants being the law of honor, all bills and notes, the instruments of commercial transactions, will, it is presumed, be promptly paid when due.
    A negotiable instrument, unpaid at its maturity, shows upon its face that it was dishonored, and a person who takes it can not be allowed to claim the privilege of a dona fide holder without notice. v
    The plaintiff in this case acquired the bill long after its maturity. The circumstances under which the owner thereof was deprived of its possession, precludes the inference that the captors acquired by the rules of war a legal title.
    The want of tille in any of the parties acquiring the instrument after its maturity, could therefore be set up by the defendants against the holder.
    Appeal from the Fifth District Court, parish of Orleans. Leaumont, J.

      Jury trial. Fellotvs & Mills, J. JR. JBeclciviih, for plaintiffs and appellants. Lea, Finney & Miller, for defendants and appellees.
   Taliaferro, J.

In this case suit is brought upon a bill of exchange for $22,140, drawn at Huntsville, Alabama, on the second of April, 1862, by Joseph C. Bradley, on Bradley, Wilson & Co., of New Orleans, to the order of and indorsed in blank by Thomas W. White,, due seventeenth — twentieth of July, 1863.

The answer is that neither the plaintiffs nor any of them have or ever had any lawful title to the instrument sued upon, or that R. W. Smith, from whom it is pietended plaintiffs derived it, ever had any lawful title to it, or that any of them gave any value for the same. The defendants aver that the bill of exchange was first issued to the State Bank at Charleston, South Carolina, and continued to be the property of that bank until it was extinguished, long alter its maturity, by the defendants paying it in full to the said bank on the twenty-seventh January, 1866.

There was a verdict of a jury and judgment of the court a qua in favor of the defendants, and the plaintiffs have taken this appeal.

During the late war, we gather from the evidence that the assets of the State Bank of Charleston were removed for safety to Camden, South Carolina. In February, 1865, as General Sherman was marching through South Carolina, and two days before he captured Columbia, the assets of the bank (among them the bill of exchange in controversy) were packed in a box and carried off from Camden by the cashier and his brother. Three days after the taking of Columbia, these persons, endeavoring to escape witli the property of the bank and many valuables besides, were overtaken and despoiled of the whole by an armed force belonging to the Fifteenth Army Corps, United States Army, under command of General Logan, the soldiers taking forcible possession of the box, breaking it open and destroying part of its contents and carrying off the remainder.

There is nothing that we find showing how or when R. W. Smith, now deceased, the former husband of Mrs. Mumford and father of the minor, came possessed of the bill sued upon, or how the plaintiffs came by it. They seem to consider that the naked possession of the instrument suffices to enable them to recover. The defendants set up specially that the State Bank of South Carolina, to whom they paid the amount of the bill, was the first and only holder for value j that it never parted with its title or ownership, and that it lost its possession by unlawful violence long after the maturity of the paper. They specially deny any legal title in the plaintiffs, or that they or those they derived it from ever gave value for it.

This case is warmly contested, and numerous authorities are invoked by each party. The plaintiffs show that the alleged settlement of the defendants with the Bank of Charleston was long subsequent to their knowledge of the plaintiffs’ possession of the b’ll and the demand of the latter on defendants for its payment. This is known to have taken place in September, 1865, while the payment to the bank by the defendants did not occur until twenty-seventh of January following. We think the fact that the/plaintiffs acquired the instrument after its maturity must determine the case against them. The rule seems to admit of no exception that a party taking a bill or note after its maturity, takes it subject to all the equities and exceptions that might exist between the original parties. It is a principle of the commercial law1 that the bare fact that a negotiable instrument is unpaid at its maturity, is a circumstance sufficient to raise the presumption of fraud, and that there exists some valid legal reason why it was not paid. The law of merchants being the law of honor, all bills and notes, the instruments of commercial transactions, it is presumed, will be promptly paid when they become due. A negotiable instrument unpaid at its maturity shows upon its face that it was dishonored, and a person who takes it can not be allowed to claim the privilege of a bona fide holder without notice. The plaintiff relies strongly on the authority of the case of Murray v. Lardner, 2 Wallace 118. But we do not see how it covers the case at bar. In Murray v. Lardner the controversy was between a party who in good faith had bought, in the regular course of business for their full market value, three coupon bonds of the Camden and Amboy Railroad Company, not due, as it seems from the tenor of the decision, payable to bearer, and the party from whom they had been stolen. The court seems to have assimilated the bonds to ordinary commercial paper, and to decide that they are subject to the law of commercial paper. Speaking of the bonds in that cnse the court says: “The possession of such paper carries the title with it to the holder. The possession and title are one and inseparable. The party who takes it before due for a valuable consideration, without knowledge of any defect of title and in good faith, holds it by a title valid against all the world.” We are referred to no case where the original holder had been deprived of his possession after maturity. It is clear the plaintiffs acquired the bill long after' its maturity. The circumstances under which the bank was deprived of its possession, preclude the inference that the captors by the rules of war acquired a legal title. The want of title in any of the parties acquiring the instrument after its maturity; could, therefore, be set up by the defendants against the holder.. We conclude that the defense is made out.

It is therefore ordered that the judgment of the district court be affirmed with costs.

Rehearing refused.


author: Morsas, J.

text:
    No. 4374.
    Mrs. Emilie Hoa v. Mrs. Mary Clancy.
    "When the district court had before it sufficient authentic evidence to justify an order of seizure and sale, if there were irregularities in the advertisement of the property, they are not to be corrected in an appeal from said order.
    Appeal from the Seventh District Court, parish of Orleans. Oollens, J.

      Frank McGloin, for plaintiff and appellee. Hornor <& Benedict, for defendant and appellant.
   Morsas, J.

The only question for us to consider in an appeal from an order of seizure and sale, is whether the district court had before it sufficient authentic evidence to justify the issuing of the order. 6 R. 58; 21 An. 52. In the case under consideration, we have the note and the mortgage imputing a confession of judgment. This is sufficient. If there were any irregularities in the advertisement of the property, they are not to be corrected in an appeal from the order of seizure and sale.

It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed, with ten per cent, damages for a frivolous appeal.

Rehearing refused.


text:
    No. 5167.
    State of Louisiana v. A. A. Maginnis.
    The objection that the assessment of defendant’s property is excessive, is a matter that can " not be examined in the present action for the amount of his State taxes.
    The Auditor merely calculates the proportion that each payer must pay. The discharge of this duty in no manner involves the levying of a tax by the Auditor. It is the State which levies the tax and not the Auditor.
    The building of levees in Louisiana is a public enterprise or work which concerns directly at least half of the people of the State, and indirectly the whole State. Of the propriety of constructing levees the General Assembly is the exclusive judge. They have the right to assess a tax and to expend the money arising therefrom in the construction of levees, or in the.erection of such public works as they may deem beneficial. Ho individual taxpayer has the right to resist the exercise of a discretionary power confided to the Legislature.
    The law making power can certainly assess a tax to pay the capital and interest of a debt which it had at the time authority to contract.
    The objection raised in this case, that acts Ho. 4 and 27 of the session of 1871, under which the assessments were made, are unconstitutional and void, and that it is a violation of article 10 of the constitution of this State and of article 5, section 1, of the fourteenth amendment of the constitution of the United States to attempt to impose upon the whole people of the State the burden of building and protecting levees for the benefit of the owners of property in a section of the State by way of taxation on the whole State, has become res judicata in the case of State ex rel. Levee Company v. Charles Clinton, Auditor, 25 An. 401.
    It is no ground to resista tax because the State debt has reached the constitutional limitation, unless the object for which the tax is levied or the law authorizing it is unconstitutional and void.
    That the Legislature has improperly diverted a trust fund, is a question that may concern the owner or owners of that fund. It is a matter in which the respondent has no interest.
    This court can not presume, in the absence of proof on the subject in the record, that the Hew Orleans, Mobile and Chattanooga Railroad Company has failed to fulfill the conditions on which the State has issued her bonds as an indorsement for said company, and that thereby the State is released from an obligation incurred before the adoption of the constitutional amendment limiting the State debt to twenty-five millions.
    Appeal from the Superior District Court, parisli of Orleans. HawJdns, J.

      A. P. Field, Attorney General, and Henry 0. Dibble, Assistant Attorney General, for plaintiff and appellee. Fellows & Mills, for defendant and appellant.
   Wyly, J.

The defendant appeals from the judgment against him for the amount of his State taxes for 1871, with attorney’s fees and damages and costs.

The first objection is, that the assessment of defendant’s property is excessive. This is a matter that can not be examined in the present action.

The next is, that the item for six and one-half mills per dollar for interest on the State debt, one and one-half mills per dollar for levees, and two and one-half mills per dollar for special levee tax are illegal, null and void, because the levying of a tax is a legislative act and can not be delegated to the Auditor. This court has frequently held that the Auditor merely performs the duty of an accountant or an arithmetician in fixing the rate of taxation after the return of the assessment rolls, so as to raise the amount assessed by the State to pay the interest on the State débt. The discharge Of this duty in no manner involves the levying of a tax by the Auditor. The tax is levied by the State, and the Auditor merely calculates the proportion that each taxpayer must pay.

The next objection is, that the two items of one and one-half mills and two and one-half mills for levee and special levee purposes, the two mills levee construction fund tax, and the two mills levee repair fund tax, and the one mill special tax, called the funding expense tax, are unconstitutional, null and void for this: They are levies for an illegal purpose, and such as the State of Louisiana had no right to levy; that the purpose or object for which the said two items of tax of one and one-half and two and one-half mills and the two items of two mills each were levied, was for raising money to pay the interest and reduce the principal of a debt created for the avowed object of building levees on the banks of the Mississippi and .other water courses in Louisiana subject to overflow, or to pay the costs of levees already built or constructed or proposed to be built or constructed; that said levees were solely for the protection and consequent increase of the value of the property of individuals, and only incidentally beneficial to the State and the respondent, and in which neither had a direct interest; that the consideration of the debt aforesaid was exclusively for the benefit of a section of the State, and resulted only incidentally for the general welfare; that the Legislature had no right to create a debt, or levy a tax beneficial to the owners of property of a portion or section of the State, and the statutes authorizing the tax complained of violate the constitution of this State and the constitution of the United States.

The building of levees in Louisiana is a public enterprise or work which concerns directly at least half the people of the State, and incidentally the whole State. Of the propriety of constructing levees, the General Assembly is the exclusive judge, because we find in the constitution no limitation upon the right of the people, through the General Assembly, to exercise the power. They have the right to assess a tax and to expend the money arising therefrom, if they choose, in the construction of levees, or in the erection of such public works as they may deem beneficial. No individual taxpayer has the right to resist the exercise of a discretionary power confided to the Legislature. Having authority at the time to contract the debt, the law making power can certainly assess a tax to pay it, capital and interest.

The respondent, further answering, objects that the levee taxes of which he complains are assessments or levies made for the benefit of the Louisiana Levee Company, a corporation created by the State of Louisiana, with whom, he alleges, the Legislature has contracted a debt after the debt of the State had already reached the constitutional limitation of twenty-five millions; that acts No. 4 and 27 of the session of 1871, under which the assessments were made, are unconstitutional and void; that the attempt to impose upon the whole people of the State the burden of building and protecting the levees as aforesaid for the benefit of the owners of property in a sect.on of the State, by way of taxation on the whole State, is violative of article 10 of the constitution of this State, and article ■ 5, section 1, of the fourteenth amendment of the constitution of the United States.

In the case of State ex rel. Levee Company v. Charles Clinton, Auditor, 25 An. 401, this court expressly decided adversely to the respondent herein, the precise question raised in this objection.

And lastly, the respondent in his answer objects that the one mill tax added to the tax bill sued on violates the constitution because it increases the amount of the State debt, and that the statute creating it is void, in that it diverts a trust fund not belonging to the State.

It is no ground to resist a tax because the State has reached the constitutional limitation, unless the object for which the tax is levied or the law authorizing it is unconstitutional and void. That the Legislature has improperly diverted a trust fund is a question that may concern the owner or owners of that fund; it is a matter in which the respondent has no interest. These are the main defenses raised in the answer.

In the elaborate brief filed by the learned counsel of the respondent many interesting questions are discussed, but we regard the important points as settled in the cases of the State ex rel. New Orleans, Mobile and Texas Railroad v. James Graham et al., 23 An. 622, the State v. The North Louisiana and Texas Railroad Company, 25 An. 25, and the State ex rel. the Louisiana Levee Company v. Charles Clinton, Auditor, 25 An. 401.

The respondent, however, insists that act 95 of the acts of 1871 is unconstitutional, because the bonds issued under it virtually created a debt in contravention of the constitutional limitation of twenty-five millions; that the debt in lieu of which they were given had lapsed, that is, the obligatio'n of the State to indorse the second mortgage bonds of the New Orleans, Mobile and Chattanooga Railroad Company was conditioned upon the performance of certain work by said company which they failed to perform.

There is no proof in the record that the company failed to comply with its contract. We can not presume they have, and thereby released the State from the obligation given in exchange for an obligation incurred by it, before the adoption of the constitutional amendment limiting the State debt to twenty-five millions.

Judgment affirmed.

Rehearing refused.


author: Howell, J. Ludeling, C. J.

text:
    No. 4619.
    State of Louisiana v. Charles Clinton, Auditor, and A. Dubuclet, Treasurer. G. A. Sheridan, intervenor.
    The objection to the validity of the bonds issued, under act 32, approved February 25,1870, to pay for work on the levees of tlie State, has no force. Said act is not in conflict with articles 110 and 118 of the constitution of the United States.
    The payment by the State in the form of bonds, for work on the levees of the State, is not taking private property, or divesting vested rights in the meaning of the constitution, State, or federal. The question as to whether a tax shall be levied on all the taxable property of the State, or only on the particular localities where the work is done, is a question of policy to be determined by the Legislature and not by the courts, there being no constitutional regulation on the subject. . ,
    ■Whether the original proprietors were bound or not to keep up the levees, do.es not affect the power or right of the State to do so, and, in this proceeding, the court can not pass on the question of consideration if it be a matter for judicial inquiry.
    Whether these were the necessary parties to institute a suit or not in this instance before the intervention of Sheridan, the holder of some of the bonds in question, it is quite sure that, after he intervened, to the extent of liis interest in the bonds, there was a plaintiff in injunction, the State; and a defendant, Sheridan; and there was thus a joinder of issue.
    The act, Ho. 32, called in question, was approved on the twenty-fifth of February, 1870, about two months before the adoption of the constitutional amendment referred to. It is impossible therefore to imagine how that law can be affected by said amendment.
    The construction of levees can not J)e called a local work in Louisiana, but even should pucli a work be local in its character, there is no prohibition against the General Assembly authorizing local improvements to be made and providing for the payment thereof.
    Taxes should only be levied for those purposes which properly constitute a public burden. But what is for the public good, and what are public purposes and what does constitute a public burden, are questions which the Legislature must decide upon its own judgment, and in respect to which it is vested with a large discretion, which can not be controlled by the courts, except perhaps when its action is clearly evasive, and where, under pretense of a lawful authority, it has assumed to exercise one that is unlawful.
    If the theory of the plaintiff be correct, that the appropriations for levees and railroads are for private purposes and not legitimately the subjects for legislation, and therefore, that the debts created for such purposes are unconstitutional — a fortiori'vrovlS. bonds, issued in aid of the property banks of this State be void — and thus, all the bonded debt' of the State, created during thp last forty years, would be null and void. Courts, whoso duty it is to deal with facts and laws, can not seriously be expected to adopt such vagaries. ‘ .
    Ho provision of the constitution has been cited, which.forbade the State to contract the debt in question, and if there be none, as is believed to be the fact, the debt is valid.
    Appeal from the Superior.IMstrict Court, parish of Orleans. Hawkins, J.
    A, P.. Meld, Attorney General, J. Q. A. Fellowts, J. B. Oofton, J. S._ Whitaker, B. Madison Bay, for. plaintiff .and appellant. W. O. Benegre, for the Auditor. Kennard,,, Howe & Prentiss, for.inter-
   Howell, J.

This appeal presents the intervention, of one G. A. Sheridan, as holder of certain levee, bonds,” in the injunction suit of the State against the Auditor and Treasurer, a branch of which we have just decided. The matter involved.in this proceeding is the validity .of the bonds .issued under act 32, approved February 25,(1870, to pay for] work on the levees of the State, th.e payment .of the coupons attached thereto having been injoi.ned by the State on the grounds:

First — That the Legislature had no power to create said, obligation.

Second — That the proprietors of property fronting on the water courses of Louisiana subject to overflow, had contracted in the original purchase of the property to keep up the levees in front of their lands, and had purchased the same by reason of said condition at a much reduced price.

Third — That the property in the State not subject to overflow can not constitutionally be taxed for the protection of lands which are so subject, that is, the property of the whole State can not be taxed for the benefit of a part of the State.

Fourth — That there is no valid consideration for said bonds.

First and third. It is urged that the law 32 of 1870, authorizing the bonds, is in conflict with articles 110 and 118 of the constitution of the State and the fifth amendment of the constitution of the United States, which prohibit the divestiture of vested rights, or the taking of private property, except for public purposes and for just and adequate compensation, and require taxation to be equal and uniform, and therefore the Legislature was without authority to create the debt or impose the tax, as is done, for its extinguishment. We are unable to perceive the conflict. The payment by the State, in the form of bonds, for work on the levees of the State, is not taking private property or divesting vested rights, in the meaning of the constitution, State or federal. The State simply caused certain work or improvements of a public character to be done or made, which, in the opinion of the Legislature, was for the benefit of the State and some or all of its inhabitants, which the Legislature had the power and authority to do, as it is not prohibited by the constitution. The question as to whether a tax shall be levied on all the taxable property of the State, or only on the particular localities where the work is done, is a question of policy to be determined by the Legislature and not by the courts, there being no constitutional regulation on the subject.

The other grounds are equally untenable. Whether the original proprietors were bound or not to keep up the levees, does not affect the power or right of the State to do so. And in this proceeding we can not pass on the question of consideration if it be a matter for judicial inquiry.

Judgment affirmed.

On Rehearing.

Ludeling, C. J.

This suit was'instituted by the Attorney General against the Auditor and Treasurer of the State, to restrain them from paying the interest on certain bonds of the State, etc. The alleged grounds for the injunction were: that the said bonds were illegal, unconstitutional, null and void; that they were issued in violation of the constitutional amendment limiting the State debt; that they had no legal consideration, and were issued to persons who had no legal claim against the State, to be paid out of the revenues derived from taxation.

In addition to the above objections it was urged that it was the duty of the front proprietors to keep up the levees, as they had acquired their lands burdened with that obligation, and that the State could not levy a tax on all the property of the State to keep up the levees, because that would be taking private property for the benefit of private individuals, and not for public purposes and without any consideration, which would be in violation of the constitution of the United States as well as of the State.

George S. Sheridan, the holder of some of the bonds, the payment of the accrued interest whereof was injoined, intervened in the suit, moving to have the injunction dissolved, on the grounds that the injunction was issued without any affidavit to the truth of the alleged reasons for the injunction; that the Attorney General, ex proprio motuu or by direction of the Governor, had no authority to bring this suit; that there is no party defendant to the original injunction, the State being both plaintiff and defendant; that the Attorney General can not cause to be injoined a State officer, in the executive or legislative department, to prevent him from doing an official act which the law commands him to do; and lastly, that all the alleged reasons to show the illegality of the bonds are not true.

Pretermitting the expression of an opinion as to the regularity of the proceedings by the Attorney General against the Auditor and Treasurer, who by law can not appear in court to defend themselves but must be represented by the Attorney General, and passing by the other serious questions raised in the motion to dissolve the injunction, we will consider the questions on the merits of this controversy, as that course will better subserve the ends of justice.

Whether these were the necessary parties to constitute a suit or not, before the intervention of Sheridan, it is quite sure that after he intervened, to the extent of his interest in the bonds, there was a plaintiff, the State; and a defendant, Sheridan; and that there was thus a joinder of issue. There was judgment dissolving the injunction and the State has appealed.

It is admitted that Sheridan holds a number of the bonds issued under act No. 32, approved February 25, 1870, entitled “An Act to provide means for work done or to be done, on the levees of the State, under contract with the Board of Public Works, by the issue of bonds of the State to the amount of $3,000,000, and to provide for the redemption of said .bonds.” It is alleged in the petition .that the amend-: ment of the constitution, limiting the State debt, was promulgated on the fifteenth December, 1870. It is also alleged that the act No. 32, called in question, was approved on the twenty-fifth of February, 1870, about ten months before the adoption of the amendment. It is impossible, therefore, to imagine how that law can be affected by the constitutional amendment.

The other questions raised are, whether or not the building of the levees of the State is a, proper subject for legislation, and whether a general tax can be levied by the Legislature to build and maintain the. levees of the State 9 The plaintiff insists that the General Assembly can not undertake to build levees, because the front proprietors acquired their title subject to the burdens of keeping up the levees. If the statement, were strictly accurate, we do not perceive the force of the argument, for if, in the judgment of the General Assembly, the, public interests required that the levees should be built and maintained under a general.system or otherwise by the State, we know of no .good reason, and none has been furnished, in the briefs, why the Legislature should not command it, and thus shift the burden from, the front proprietors. See Tardos v. Jefferson.

It is contended that the levees are local works for the benefit of individuals in. particular localities. A work which extends along the banks of tba.Missii-ssip,pi.river, through the whole length of the State, along the banks of Red river, Black river, the Atchafalaya and Teche, and other streams in this State can not seriously be called local in, Louisiana. Sad experience has taught the people of Louisiana that the building and maintenance of; the .levees is a work too gigantic for even the State to successfully complete, and they are no,w addressing their prayers to the general government to .come to their relief.- It is an erroy. to . say .that , the levees benefit- only the front proprietors, or even only those,whose land? are. subject to inundation, for, the profyperity of one part of. the. State affects beneficially all the parts thereof by. lessening the proportion of,the burden of. each. But if the work bad been .local in,its character, we know of no, prohibition .against the ■General Assembly,, authorizing, local improvements ,to be m,ade and providing.foy.the payment thereof. But whether the work be local or <not; whether the tax. shall ,be levied upon all the property of the State, •or only upon the property supposed to be benefited; whether,the policy of taxing,the whole State to build;tbe levees be go.od or,bad; whether the purpose of the, tax be, foy, the public good oxynot, are all question? for the legislative, discretion, over, which courts..have, no. control. In ■Cooley’s Constitutional-Limitations, p„ 12$, when treating ,of,the-.limRations on the power of the Legislature to expend money in public-.improvements, the author says:

Some of these are prescribed by the constitution, but others spring from the very nature of free government. The latter must depend for their enforcement' upon legislative wisdom, discretion and conscience. The legislature is to make laws for the public good and not for the : benefit of individuals. It has control of the public moneys ánd should; provide for disbursing them for public purposes. Taxes should only be levied for those purposes which properly constitute a public burden. But what is for the public good, and what are public purposes, and what does constitute a public burden, are questions which the Legislature must decide upon its own judgment, and in respect to which it is vested with a large discretion, which' can not be controlled by the courts, except, perhaps, where its action is clearly évasive, and where, under pretense of a lawful authority, it has assumed to exercise one that is unlawful. When the power which it excercises is legislative in its character, the courts can enforce only those limitations which the constitution imposes and not those implied restrictions, which, resting in theory only, the people have been satisfied to leave to the judgment, patriotism and sense of justice of their representatives.”

And this is the settled jurisprudence of this State on that subject. In the State v. Volkman this court said: “That the Legislature in its sphere is supreme in all respects, save when restricted by the constitution of the State or the United States.” See also State ex rel. Attorney General v. Fagan, 22 An. 350, and case there cited.

If the theory of the plaintiff be correct, that the appropriations for levees and railroads are for private purposes, and not legitimately the subjects for legislation, and therefore, that the debts created for such purposes are unconstitutional — a fortiori, would bonds issued in aid of the property banks in this State be void — and thus, all the bonded! debt of the State, created during the last forty years, would be null and void. This may be a pleasant dream for overburdened taxpayers to indulge, but courts, whose duty it is to deal with facts and laws, can' not seriously be expected to adopt such vagaries. The question of erdinent domain does not arise in this ease; no private property has been expropriated by the law in question.

'The real question in this suit is, had the General Assembly the power to contract the debt evidenced by those bonds? We have not been cited to any provision of the constitution which forbade it, and if there be none, which we believe is the fact, the debt is valid. We therefore adhere to the decree heretofore made in this case.


text:
    No. 3317.
    William Mithoff v. Auguste Bohn.
    This suit is brought on a judgment in which the original obligation was merged. In the authentic act by which the defendant acquired from Byrne, Vance & Co., his title to the real estate subject to the plaintiff’s judicial mortgage, the defendant bound himself expressly to pay whatever amount Mithoff, the plaintiff, might recover against Byrne, Vance & Co., in a suit then pending and not finally determined. Thus, it was a condition of the sale to Bohn, that he should pay whatever judgment, if any, Mithoff should obtain in the court of last resort. The amount of such judgment, if finally obtained against Byrne, Vance & Co., was to constitute part of the consideration to be given for the property by Bohn.
    This court is not able to see what interest or right the defendant can have in protracting this litigation on the pretense that confederate money was the basis of the contract originally entered into between Mithoff and Byrne, Vance & Co., and which culminated in a judgment.
    Appeal from the Fourth District Court, parish of Orleans. Théard, J.

      0. Boselius and Alfred Philips, for plaintiff and appellee. Finney & Miller, T. J. Oooley, JS. Phillips, for defendant and appellant.
   Taliaferro, J.

The plaintiff having obtained a judgment against Byrne, Vance & Co., for $22,950 with interest, acquired, by the recording thereof, a judicial mortgage against their property.

Subsequently, the defendant purchased of Thomas Byrne, the property subject to that judicial mortgage. The plaintiff in this case brings suit against Bohn as third possessor to enforce the judicial mortgage against the property.

The defendant answered, denying the existence of the judicial mortgage, and alleging that if any such mortgage is found recorded in the office of recorder of mortgages the same ought to be canceled and annulled

He further alleges that Mithoff the plaintiff had been perpetually iujoined from executing the judgment against Byrne, Vance & Co., by a decree of the Sixth District Court. And, lastly, he sets up the objection in that the original judgment of Mithoff against Byrne, Vance & Co., was based on an obligation, the consideration of which was confederate money. There was judgment in favor of the plaintiff and the defendant has appealed.

Mrst — The defense that Mithoff had been perpetually injoined against executing his judgment against Byrne, Vance & Co., by a decree of the Sixth District Court, we do not find is made out by the evidence. On the contrary, it appears that the matter was decided adversely to the pretensions of the defendant by the judgment rendered by the Sixth District Court and confirmed on appeal. 24 An. p. 297.

Second — This suit is brought on a judgment in which the original obligation was merged. By the authentic act by which the defendant acquired title to the real estate subject to the plaintiff’s judicial mortgage, the defendant bound himself expressly to pay whatever amount Mithoff, the plaintiff, might recover against Byrne, Vance & Co., in the suit then pending, but not finally determined. It was a. condition of the sale to Bohn, that he should pay whatever judgment, if any, Mithoff should obtain in the court of last resort.

The amount of such judgment, if finally obtained against Byrne, Vance & Co., was to constitute part of the consideration to be given for the property by Bohn. We are not able to see what interest or Tight he can have in protracting this litigation on the pretense that ■confederate money was the basis of the contract originally entered into between Mithoff and Byrne, Vance & Co., and which culminated in a judgment.

The decree rendered in this case by the lower court we think correct.

Judgment affirmed.

Rehearing refused.


text:
    No. 5180.
    Succession of Edmund Hogan. On opposition of Jeremiah Hogan to account filed by Peter Gallagher, Executor.
    'The delinquent executor, who abandoned his trust and appropriated the funds confided to him, stands without equity before the court. He is in no position to complain of the penalties prescribed by law for not depositing the funds in bank.
    Appeal from the Second District Court, .parish of Orleans. Tissot, J.

      Gilmore <& Sons, for executor and appellant. M. A. Dooley, for opponent to account and appellee.
   Wyly, J.

In October, 1836,‘Edmund Hogan died in this city, leaving a last will by which he instituted Jeremiah Hogan, his son, his universal legatee, and named Peter Gallagher his testamentary executor. The will was duly proved, and on 'fifteenth December, 1836, letters testamentary issued to said Gallagher.

In 1840, Gallagher left the State permanently, going to Texas to reside, without rendering an account. On seventeenth February, 1869, .Jeremiah Hogan was recognized as sole and only heir and universal legatee of Edmund Hogan, deceased, and ordered to be put in possession. In May following the universal legatee filed a petition, .which was served on the executor personally (he being temporarily in the ■city), requiring him to file an inventory and render an account according to law.

In bar of the proceeding certain exceptions were pleaded, which were properly overruled for the reasons assigned by the judge.

The case is now before the court on an opposition to the account which the executor was required to render.

fhe court condemned the delinquent executor to pay over $742, the amount in his hands found to belong to the succession, and also gave juágment against him for twenty per cent, per annum damages on said amount from fifteenth September, 1840, for failing to deposit said money" in bank, as required by law.

Prom this judgment the executor appeals.

The proof fully sustains the judgment. The delinquent executor, who abandoned his trust and appropriated the funds confided to him, stands without equity before the court. He is in no position to complain of the penalties prescribed by law for not depositing the funds-in bank.

Judgment affirmed, appellant paying costs of appeal.

Rehearing refused.


author: Ludeling, C. J.

text:
    No. 3471.
    State of Louisiana ex rel. H. C. Warmoth v. James Graham, Auditor.
    The absence of the Governor from the State for a few hours, Or a few days, creates no vacancy in the office, and does not authorize the assumption of the duties, prerogatives and emoluments thereof by the Lieutenant Governor during said absence. It must be, under a proper construction of article 53 of the constitution, such an inability to discharge the duties of the office, as well as such absence from the State, as would affect injuriously the public interest.
    It is'manifest that the absence of the Governor from the State is to be ascertained on some-proof accessible to the public, from which they may with certainty derive the knowledge-as to who is authorized to act as Governor of the State. There being no provision of law for the mode in which tho Governor is to manifest to the public his absence from the State, it is necessarily left to his discretion, subject to his responsibility to the people.
    This court does not think that it was ever contemplated that the movements of the Governor should be watched, with the view that the Lieutenant Governor or Speaker of the House of ^Representatives should slip into his seat, the moment he stepped across the borders of the State.
    APPEAL from the Eighth District Court, parish of Orleans. Ohas. M. Emerson, Judge of the Third District Court, acting in the absence of Judge Dibble.

      Semmes & Mott, Wm. Grant, for relator and appellee. Mornor & Benedict, for respondent and appellant.
   Ludeling, C. J.

The relator avers that his salary as Governor of the State was due him ior the periods from the sixth to the nineteenth of May, 1871, and from the twenty-sixth of June to the seventeenth of' July, 1871 j that he drew his warrant therefor, on the Auditor of Public Accounts on the twenty-second of September, 1871; that payment of this warrant was refused on the grounds that the relator was absent from the State during said periods, and that the duties and prerogatives-of Governor devolved on the Lieutenant Governor, to whom the salary of Governor for Said periods had been paid. There was judgment'in favor of the relator and the defendant appealed.

The question to be decided is, does the absence of the Governor from the State for a few hours or a few days create a vacancy in this office,- and authorize the assumption of the duties, prerogatives and emoluments thereof, by the Lieutenant Governor, during said absence 9

The constitutional provisions on the subject áre contained in articles 53 and 54 of the constitution.

Article 53 says : In case of impeachment of the Governor, his removal from office, death, refusal or inability to qualify or to discharge the powers and duties of his office, resignation, or absence from the State, the powers and duties of the office shall devolve upon the Lieutenant Governor, for the residue of the term, or until the Governor, absent or 'impeach'ed, shall return 'or be acquitted, or the ’disability be removed,” etc.

Article 54 declares that the officer discharging the duties of Governor during his'administration, shall receive the'compensation to' which the Governor would have been entitled.

It 'is evident, if the Lieutenant Governor be authorized to exercise the functions of the Governor‘during any'temporary absence of the Governor from the State, he may also, whenever the Governor is unable to attend to the duties of his office on account of sickness — incase “of inability to discharge the powers and duties of his office.” We’do not believe this to be the meaning intended by the framers of the constitution. ’The inability to discharge the duties of the office as well as the absence from the State, spoken of in the article, are such as would affect injuriously the public interest. The mere absence, at Pass Christian, within a few hours’ run of the Capital, could not, by any possibility, affect the public interest.

How is tlie absence of the Governor to be ascertained 9 It is manifest, that there ought to be some certain proof, accessible to the public, from which they may with certainty derive the knowledge as to who is authorized to act, as Governor of the State. As the law makes no provision for the, mode in which the Governor shall manifest to the public his absence from the State, it necessarily is left to his discretion, subject to his responsibility to the people. If the interests of the State should suffer in consequence of his prolonged absence, he would be amenable to public sentiment and to the control of the impeaching power of the State.

Some public record should be made of the intended absence, or the Governor should publicly place the Lieutenant Governor in charge of the government, so that the timé of absence shall appear of record, and during such absence the acts of the acting governor would be of unquestionable validity. Anything less than this might create confusion and uncertainty. We do not think it was ever contemplated that the movements of the Governor should be watched, with the view that the Lieutenant Governor or Speaker of the House of Representatives should slip into his seat, the moment he stepped across the borders of the State.

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

Rehearing refused.


author: Morgan, J. Ludeling, C. J.

text:
    No. 3360.
    Heirs of E. A. Johnson v. Bradish Johnson.
    In tliis case, it is shown that the heirs of Georg© *W. Johnson ratified, and. confirmed his wifi; that they were recognized and put in possession of their respective shares; that his succession has been fully administered; that the dispositions of the will were carried* into execution as fully as it was possible, and that his executors have been discharged. After all these proceedings, and in the face of these solemn acts, none of the heirs can now be heard, when they seek to annul the will in any of its parts.
    Appeal from the -Sixth District Court, parish of Orleans. Cooley, J.

      Leovy, Monroe & Mart, for plaintiffs and appellants. Lea, Finney & Miller, J. A. Campbell, for defendant and appellee.
   Morgan, J.

George W. Johnson died in September, 1856. He owned large estates in New York and in Louisiana.

Forming part of his possessions in this State, was a tract of land known as the Woodland plantation, situate in the parish of Plaque-mine, of which he owned the eleven-sixteenths. The other five-sixteenths, belonged to his brother, Bradish Johnson. He also owned twenty-five slaves in his own right, twelve slaves in common with his brother Bradish, and the eleven-sixteenths of one hundred and sixty-one others.

He died without leaving any forced heirs, and bequeathed his property to his brothers. To Bradish he gave the Woodland plantation and all the improvements thereon. Upon this bequest he imposed a charge. This was, that after enjoying the fruits and revenues of this plantation with the result of the labor of all the slaves thereon, for five years, he was to liberate them all, send them to Liberia, and give them each fifty dollars.

His will was accepted by his heirs as a just disposition of his property, and in two separate deeds, made at different periods, they ratified the same. Under the will and in virtue of these acts, each heir was put in possession of the share which was coming to them.

His heirs were three brothers.' It is the heirs of one of these brothers who are the plaintiffs in this suit.

In 1857, the Legislature of Louisiana passed a law prohibiting the emancipation of slaves.

In 1858, J. D. Johnson and E. A. Johnson (father of the present plaintiffs) instituted suit against Bradish Johnson, in which they alleged that the provisions of George Johnson’s will by which he directed the emancipation of his slaves were null and void, the same being prohibited by law. They prayed that all of the provisions of his will relating to the Woodland plantation and the negroes thereon might he declared null and void, as contrary to the laws and policy of the State, and they prayed to be decreed to be the owners each for one-third thereof. This suit was decided by the Supreme Court to be premature. The opinion was read on the fifteenth of June, 1859. It has not been reported. 1 ' ‘

Subsequently, John Johnson instituted another suit in which he declared that Bradish Johnson, in defiance of the laws of the State, contemplated the emancipation of the slaves mentioned in George Johnson’s will, and, averring that he feared they would be removed out of the State, applied for and obtained an injunction directed against him prohibiting him from so doing. This suit remained on the docket until twelfth November, 1861, when it was dismissed.

The slaves were never sent to Liberia, and they were not emancipated by Bradish within the five years as required by the will. The heirs of E. A. Johnson, claiming through their father, ask that they be decreed to be the owners of the one third of the eleven-sixteenths of the Woodland plantation, and that Bradish Johnson may be compelled to account to them for the revenues thereof since he has been in possession of the same under the will. By a special agreement the rents and revenues are disconnected from this suit, and the only question before us is, the title to the land.

^Plaintiffs contend that inasmuch as the terms of the will were not complied with, and inasmuch as the terms of the will were the conditions of the legacy, the legacy lapses and the property falls into the mass of the succession, to be divided equally among the heirs.

Every one who was in Louisiana at the time knows, that it would have been impossible for any one to have emancipated a slave in September, 1861, and that it would have been equally impossible to have sent one, much less one hundred and ninety-eight to Liberia.

Late in April, 1862, the United States forces took possession of New Orleans and the neighboring country. By a military order, issued in May, 1863, the statute of 1857 was declared never to have been in force during the occupancy of the country by the federal troops, and owners of slaves were authorized to manumit them on presenting a petition to that effect, to any court of record.

In March, 1864, Bradish Johnson filed a petition in which he prayed leave to emancipate the slaves mentioned in his brother’s will. The application was granted. The slaves were freed.

It is contended that this proceeding'was unnecessary, inasmuch as two months before, General Banks, the then military commander here, had declared’all slavery laws null and void. This does not follow, but it is not necessary that the matter should be inquired into.

In the construction and application of testamentary dispositions, the object of the testator is one of the first things to be ascertained. What was the object of George Johnson with regard to the slaves which he owned? Was'it to send them to Liberia ? In our opinion this was a mere incident to the bequest, and made simply in what he considered might be the interest of those to whom he desired to be bountiful. His main'object we think Was the emancipation of those whom he' had held in bóñdage' and whose labor had contributed to his wealth. His principal end was to make them free; the place where they were to enjoy their freedom was a very secondary consideration. They were freed, and thus his object was accomplished. They'were freed also by the act of his legatee, and thus the provisions of his will were carried out. They were not sent to Liberia, it is true, but this' is hot the fault of the legatee. ‘ In this regard he tendered to those who wished to go, the means stipulated in the will, which they declined. Besides, this was a stipulation in their own behalf, and not one in' which the heirs have" any interest; for it would hardly be contended, we think, that if they could Have been emancipated under the laws of Louisiana when they would have been entitled to their freedom under the will, with permission to remain in Louisiana, and they had been emancipated and had refused to go to Liberia, that this portion of the will would have been set aside. The first privilege of freedom is the right to choose a home from out the world ; it' might have been worse than slavery to them to force them from the place of their birth, to break up their associations and to sunder even such weak ties as were socially known to them, and to drive them across the seas, among strangers, and in a distant land. Being free to go or not to go, was the question which their own choice alone could determine, and whether they went or staid was not a matter in which the heirs of their liberator had any say. It is their ground of action against the legatee to force a compliance with the terms of the will, if they choose to occupy it,.but it is no reason why his bequest should be set aside.

Beyond this, all the heirs of George Johnson ratified and confirmed his will, as has been seen; they were recognized and put in possession of their respective shares ; his succession has been fully administered, and his executors have been discharged. After all these proceedings, and in the face of their solemn acts, the heirs can not, we think, be heard, when they seek to annul the will in any of its parts.

Judgment affirmed.

On Application for Rehearing.

Ludeling, C. J.

In the brief filed in support of the application for a rehearing in this case, it is suggested that Mr. Justice Morgan, who pronounced the judgment of the court, should have recused himself, and reference is made to the statute (Sec. 1922 R. S.), which declares that whenever, in any case before the Supreme Court, or any other court having appellate jurisdiction, the judgment appealed from shall have been rendered, in the first instance, by any judge of said appellate court, at a time when he was judge of the court of original juris diction, it shall be the duty of said judge ex officio to recuse himself, without it being necessary that a motion be made to that effect by any of the parties.”

The statute has not the remotest bearing in the case before the court.

The judgment appealed from was not rendered by Judge Morgan, but by Judge Cooley, judge of the Sixth District Court, of which Mr. Justice Morgan never was judge. While judge of the Second District Court, Judge Morgan decided a case growing out of the will of George Johnson, but that case was decided by this court years ago, and it is a totally different case from the one now under consideration; the causes of action and the things claimed in the two suits were different.

The other grounds for a rehearing have even less reason to support them than the foregoing, for if it be conceded that the agreement of fifteenth of December, 1857, did not embrace the Louisiana property, still, having decided that the testament was valid and that Bradish Johnson had discharged the obligations imposed on him by the will, it is of no consequence what the said agreement embraced.

The rehearing is therefore refused.


text:
    No. 4516.
    E. Newman & Co. v. L. H. Levy.
    The defendant’s petition of appeal prays that E. Newman & Co. he cited through Raoul Jumonvillo, liquidator, to answer the appeal, and accordingly citation was only served on Jumonville. E. Newman was not cited, although he had an interest in sustaining the judgment. The fault is imputable to the appellant. Of the court’s own motion the appeal is dismissed.
    Appeal from the Sixth District Court, parish of Orleans. Ooolcy, J.

      I). 0. Labatt, for plaintiffs and appellees. Cotton & Levy, for defendant and appellant.
   Wyly, J.

In his petition for appeal, the defendant prayed that “E. Newman & Co. be cited through Raoul Jumonville, liquidator, to answer the appeal.”- And, accordingly, citation was only served- on Jumonville. E. Newman was not cited. He had an interest in maintaining the judgment. The fault is imputable to the appellant.

Of our own motion, it is ordered that the appeal herein be dismissed, appellant paying costs.

Rehearing refused.


author: Wyly, J. Howell, J. Wyly, I.,

text:
    No. 3011.
    A. P. Field and Jesse R. Ponder v. W. N. Rogers et als.
    A certain sum. was deposited in the hands of Rogers by Mrs. Williams to induce him to sign a bond for the release of her husband, who was prosecuted for the embezzlement of funds belonging to Ponder — which money thus 'deposited Rogers was to return to her or to her order as soon as he became released from his bond. The prosecution was discontinued, the release from the bond was thereby effected, and an assignment of the funds deposited was made by Mrs. Williams to the plaintiff's, who sued Rogers on his refusal to pay the same.
    Such an agreement on the part of the prosecuting witness, one of the plaintiffs, is one which a court of justice should not recognize and enforce. The agreement was that, if the money embezzled should be returned, he would not prosecute the offender. This can not be the basis of an action in a court of justice to compel one of the contracting-parties to comply with the contract; and, as set out in the petition, the demand of the counsel of the accused is so connected with this illegal contract, that it can not be granted.
    The plaintiffs had a legal remedy by which their civil demand against the defendants could have been enforced. The action here is not against the depositary on the simple assignment of the depositor; for both the depositor and the depositary are sued vn solido, and the effect of the suit is to enforce the consideration for the discontinuance of the prosecution.
    Appeal from the Fifth District Court, parish of Orleans. Leau~ Mont, J.

      Ootton & Levy, William H, Hunt, for plaintiffs and appellants. J. JR. Heclcwith, for defendant and-appellee.
   Wyly, J.

John L. Williams was convicted of embezzling four thousand dollars from the plaintiff, Jesse R. Ponder. His attorney, A. P. Field, obtained a new trial and an order for his release on a.bond for $2500. On the sixth May, 1867, he was released on bond, the defendant, Wilbam N. Rogers, going security. In order to get Rogers as security on the bond, Mrs. Williams, the wife of the accused, deposited with him as collateral security $2500 cash. Shortly after his release,. Williams left the State, with a view not to appear at the trial and answer to the charge against him. His wife, who remained a few days-after he left, was anxious to get the prosecution settled or compromised, Ponder having employed counsel to assist in the prosecution. In order to accomplish the object she was willing to give up the $2500 deposited by her with Rogers, agreeing that whatever remained after settling with Ponder, A. P. Field might retain for his services. She therefore made the following conditional assignment of her funds in the hands of Rogers:

“ New Orleans, May 14, 1867.

"Mr. W. N. Rogers, Gravier street:

Sir — Upon your release from the bond in the district court, given there by you for the appearance of my husband to stand his trial, you will pay over to Col. A. P. Field tue twenty-five hundred dollars given you by me as collateral security should he fail to appear when called on, and thisyvill be your receipt for the same.

“ MRS. C. WILLIAMS.”

Rogers was promptly notified of this assignment. Field subsequently effected a compromise with Ponder, agreeing to pay him out of said fund fifteen hundred dollars, and the prosecution was discontinued by the State. Rogers, however, refused to pay over the money, and on August 22, 1867, Field and Ponder brought this suit against him and also Williams and wife. Rogers alone was cited, and for answer pleaded the general issue. Williams and his wife having left the State could not be cited. They are, therefore, not before the court. There was judgment in the court below dismissing their demand as of non-suit, and the plaintiffs have appealed.

From the evidence we are satisfied that Rogers had the twenty-five hundred dollars belonging to Mrs. Williams on deposit at the time he was notified of the conditional assignment of May 14, 1867; and from that moment the funds belonged to the plaintiffs, subject to the condition expressed in said assignment. Edwards v. Daley, 14 An. 384 ; Marshall v. Morehouse, 14 An. 690; Ayles v. Hawley, 9 An. 362. Therefore on the eleventh July, 1867, when the prosecution against Williams was discontinued, by reason of the compromise with Ponder, Rogers should have delivered the twenty-five hundred dollars to the plaintiffs because the condition, mentioned in the assignment, had happened, he was released from the bond by the discontinuance of the suit.

If Rogers parted with any portion of the funds deposited with him, after notice of the assignment, he did so at his peril. Whether the compromise with Ponder was the compounding of a felony or not, does not concern the defendant, Rogers, who is a.mere stakeholder or depositary. -Besides, the plea of immorality and other special defenses set up in the brief can not be noticed, the general denial being the only defense he saw fit to plead. Rogers could not, in his pleadings, set up defenses which belong to Williams and his wife; and for a greater reason he can not be heard suggesting them in his behalf.

It is therefore ordered that the judgment herein be annulled, and it is now ordered that the plaintiffs recover of the defendant, William N. Rogers, twenty-five hundred dollars, with five per cent, interest thereon from August 24, 1867, and costs of both courts.

On Rehearing.

Howell, J.

The plaintiffs allege that John L. Williams and his wife, C. Williams, and William N. Rogers are indebted to them, in solido, in. the sum of $2500, because that said John L. Williams received from the plaintiff, Jesse R. Ponder, of Texas, the sum of $4000, and embezzled the same; that the said Mrs. C. Williams, with the consent of her husband, placed $2500, community property, in the charge of the said Rogers to be returned to Williams or his wife, when he, Rogers, became discharged on the bond of said Williams to appear and stand trial; that Mrs. Williams, with the knowledge of her husband, and in order to defray expenses of defense, etc , placed the whole of said sum at the disposition of plaintiff, Field, and authorized him to, collect and pay all the professional services due, and to pay the plaintiff, Ponder, a portion of the sum of $4000, to wit, $1500; that Rogers received a note to this effect from Mrs. C. Williams, and then agreed to .pay the same to,said Field, knowing, that said nofice was a transfer from said Williams and .wife; that Rogers treated said money as the money of Field, and bound himself to pay his acceptance; that on one occasion he claimed an indemnity of $250 put of said amount; that he now fraudulently retains the same, notwithstanding his said agreement after the service of .the notice and before and after his discharge from the bond; and they prayed that all the defendants be cited .and condemned insólido to pay them $2500 and interest from judicial demand.

J. L. Williams and wife having left the State were not cited, but a general denial was filed in behalf of the defendants, and afterward an amended answer or peremptory exception by Rogers, setting up, among o.ther matters, the.inability of .tfie wife to assign community property. There was judgment against the plaintiffs as of nonsuit, and they appealed.

The main facts are that John L. Williams was found guilty of embezzling $4000 belonging to plaintiff Ponder, and upon application of his counsel, A. P. Field, obtained a new trial, and was released from custody upon bond for $2500, signed by William N. Rogers as security, with whom Mrs. C. Williams, the wife, had .deposited the sum of $2500 as collateral. Ponder, the prosecuting witness, and Williams, the accused, left the State. Mrs. Williams, on fourteenth May, 1867, gave to Field the following:

“Mr. W. K..Rogers:

“ Sir — Upon your release from the bond in the district court, given there by you for the appearance of my husband to stand his trial, you will pay to Colonel A. P.,Field .the twenty-five hundred dollars given yflu„by me as collateral security should, he fail.to appear when called. on, and this, will bp ypur receipt f<?r, the same,- '

“MRS. C. WILLIAMS..”

This was presented to Rogers by a witness, who says Rogers accepted, it verbally.

On the same day Rogers was called on for a receipt in favor of Mrs. Williams, and he gave the following (in pencil):

“Mrs. Williams — I do not think I am safe in giving a receipt.

“ Yours, respectfully, W. N. ROGERS.

“New Orleans, May 14.

“You will find me all right when the thing is settled.”

After some consultation between the counsel of Ponder and Williams, Ponder was written to and he answered as follows:

“Milligan, Texas, May 31, 1867.

“L. C. Levy, Esq., New Orleans:

“Dear Sir — Yours of twenty-seventh instant is to hand and contents noted. Having left the Williams matter entirely to you, I “hope you will continue it to the best advantage possible. Inclosed I hand the letter you requested me to write C. H. Luzenberg, Esq., but wish you to' secure, before presenting it, the best compromise possible.

“Hoping to hear from you soon, I am very respectfully,

“ J. R. PONDER..”

The letter referred to reads:

“Millican, Texas, May 31, 1867.

“0. H. Luzenberg, Esq., District Attorney, Parish of Orleans, La:

“Dear Sir — I will not prosecute John L. Williams further, his friends having proposed to pay back to me a portion of the money I charge him to have embezzled, and I will wait until he can arrange the balance of the amount. I therefore request that you enter nolle prosequi, as my testimony alone can convict him, and I will not be in your city again during the year.

“Your obedient servant,

“JESSE R. PONDER.”

On producing this in court, the district attorney entered a nolle prosequi on eleventh July, 1867, and Williams was discharged from his bond.

We are of opinion that the foregoing shows such an agreement on the part of the prosecuting witness, one of the plaintiffs, as a court of justice should not recognize and enforce. The agreement was that if the money embezzled should be returned, he would not prosecute the offender. This can not be the basis of an action in a court of justice to compel any of the contracting parties to comply; and as set out in the petition, the demand of the counsel of the accused is so connected with this illegal contract that it can not be granted.

Tlie plaintiffs had a legal remedy by which their civil demand against the defendants could have been enforced. The action here is not against the depositary on the simple assignment of the depositor, for both the depositors and depositary are sued in solido, and the effect of the suit is to enforce the consideration for the discontinuance of the prosecution of Williams.

It is therefore ordered that our former decree be set aside, and that the judgment appealed from be affirmed.

Wyly, I.,

dissenting. Mrs. Williams deposited with Rogers, the only party defendant before the court, twenty-five hundred dollars, to-indemnify him from loss in being security on the bond of her husband to appear and answer to the charge of embezzlement. Rogers, the depositary, incurred thereby the legal obligation to return the money deposited to Mrs. Williams, or to pay it on her order, as soon as he became released from the bond. Mrs. Williams subsequently made a conditional assignment of the money to the plaintiff, A. P. Field, of which Rogers was duly notified and assented thereto. And this condition was the release of the bond which Rogers had signed. The condition happened. The assignment or order of Mrs. Williams on Rogers for the money became absolute. Rogers refused to pay over the money, and this suit against him is the result. The basis of the action against him is the obligation he incurred when he received the money deposited by Mrs. Williams. The obligation of a depositary is-the obligation sought to be enforced against him.

There is nothing immoral in Rogers being compelled to pay over to-A. P. Field, assignee of Mrs. Williams, money which Mrs. Williams deposited with him as an indemnity against liability on the bond which he signed as security for her husband, that bond being discharged by the discontinuance of the suit or criminal prosecution. Now, whether this discontinuance resulted from the compounding of a felony, or any other immoral transaction, is of no consequence so far as Rogers is concerned.

What means were employed to obtain the release of the bond does-not concern him. It was no part of his agreement when receiving the deposit that he should keep the money unless the bond was released in a legitimate manner. He had nothing to do with the means employed to accomplish the release of the bond. It was enough for him to know that the bond was canceled, and his obligation to pay over the money to Mrs. Williams, or the plaintiff holding her order, became absolute. What consideration Field gave to ge.t the assignment or order for the money does not concern Rogers, the depositary. It is no excuse for him that the consideration for the order or the assignment by Mrs. Williams was immoral, or that she gave the order as the consideration for the discontinuance of a criminal prosecution. If Mrs. Williams had appeared and set up the illegality of the consideration for the assignment or order in favor of Field, the question would have been properly before the court. If the defendant is compelled to pay over the money on the order of Mrs. Williams, the obligation he will discarge in doing so will be the obligation of a depositary, the only one he incurred, and that surely was not immoral.

It has frequently been held by this court that the holder of a note given for a valid consideration can enforce its payment whether the consideration he gave for it to the indorser was a slave, or Confederate money, or not; whether the consideration for the indorsement was immoral or not.

For the reason stated and those expressed in the first opinion of this court in this case, I dissent.


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    No. 5115.
    State of Louisiana v. Hamilton Miller.
    Neither injury nor fraud having been alleged or shown, resulting from the venire, or drawing of the jury, or from any other irregularity on the trial of the defendant, no relief oan be obtained by him under the ninth section ol the act No. 94 of the acts of 1873, entitled “ an act relative to juries,” etc.
    Appeal from the Thirteenth Judicial District Court, parish of Tensas. Hough, J. Criminal case.

      Hiram B. Steele, District Attorney, Henry 0. Dibble, Assistant Attorney General, for the State. Thos. P. Farrar, for defendant and appellant.
   Ludeling, C. J.

The defendant was indicted for murder and convicted without capital punishment. From the judgment sentencing him to the penitentiary for life, he has appealed.

On the first day of the term of the court at which he was tried, the accused challenged the array of jurors, on the grounds that the venire was drawn under the provisions of the act of 1873, which does not apply to the parish of Tensas, in which the registration of voters was attainable. And after his conviction, he moved in arrest of judgment on the grounds that the grand jury had been illegally impanneled, for the reasons above stated.

In this court he has assigned as errors that the act of 1873 is unconstitutional, as it does not state that its provisions are not applicable to the parishes in which lists of the registered voters existed, and that the juries were illegally impanneled.

There is no force in the objection relating to the title of the act which does indicate the subjects embraced in the act.

The ninth section of said act of 1873 declares, that it shall not be sufficient cause to challenge the whole array or to set aside the venire because some of the jurors drawn are not qualified jurors, etc., “nor because of any other defect or irregularity than in the manner of drawing the juries as above provided, and no such defect or irregularity in the drawing thereof shall be sufficient cause if it shall appear that the objection is merely technical and it shall not appear some fraud has been practiced or some great wrong committed m the drawing or summoning of the jury that would work a great or irreparable injury.” Acts of 1873, p. 168.

Neither injury nor fraud was alleged or shown. The rulings of the judge a quo was therefore correct.

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


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    No. 3476.
    P. Lyons, Tutor, v. J. C. Dobbins.
    Ln this case, two lots with buildings thereon were owned, and held in common by two different persons, and, at the partition, nothing being said as to the dividing line, the parties (one of whom a minor whose tutor the plaintiff is) must 'have considered the limits to be defined by the buildings on each, which constituted a double cottage, and this state of things continued, without complaint, for about three years thereafter, when the plaintiff assumed to establish a line for himself without notice to his neighbor aforesaid, by tearing down a portion of the buildings which he alleged to extend over the minor s lot some .nine feet, and took an injunction to prevent defendant’s interference. The evidence •does not sustain the injunction, and defendant claims damages. It is not thought, how. ■ever, that the minor should be responsible for tbe illegal acts of his tutor. In such capacity he could have protected and exercised the rights of the minor in a legal manner. As the plaintiff is not before this court individually, all that can be done is to dissolve tbe injunction, reserving defendant’s rights.
    Appeal from the Eighth District Court, parish of Orleans. Dibble, J.

      O. T. t& D. J. Fellowes, for plaintiff and appellee. T. Gilmore ■sis Sons, for defendant and appellant.
   Howell, J.

One P. Ryan and tbe minor child of the plaintiff were the owners in common of two adjoining lots/ By an act of partition in kind, lot A fell .to Ryan and lot B to the minor. Each lot was described in said act as being equal in measurement, and a double cottage stood on the two. Ryan sold to the defendant, and the owners were in possession, each side of the cottage being occupied by them respectively or their tenants.

Some three years after the partition tbe plaintiff, as tutor, instituted ífchis suit to injoin the defendant from interfering with him in the removal of a part of a building which he alleges extends on his lot some .nine feet. After the issuance of the injunction the plaintiff caused a -portion of the tenement, occupied by defendant’s tenant, to be cut down and removed, for which the defendant claims damages in an amended answer.

The evidence does not sustain the injunction. There was no attempt on the part of the plaintiff to have the line between the lots definitely fixed by a regular survey, if there was uncertainty as to its location, and under the doctrine in Riddell v. Jackson, 14 An. 135, the partition wall between the two tenements must, in such case, control and determine the limits of the adjoining properties.

In this case the two lots were owned and held in common, and at-the partition, nothing being said as to the dividing line or the position-, of the tenements, the parties must have considered the limits to be-defined by the buildings on each; and this state of things continued’ without complaint for about three years thereafter, before plaintiff' assumed to establish a line for himself without notice to his neighbor. We do not think, however, the minor should be held responsible for the illegal acts of his tutor. In such capacity he could have protected and exercised the rights of the minor in a legal manner. As he is not before us individually, we can only dissolve the injunction, reserving defendant’s rights.

It is therefore ordered that the judgment appealed from be reversed, and that the injunction herein be dissolved, with costs in both courts, reserving to defendant his right, if any he have, to damages.

Rehearing refused.


author: Morgan, J.

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    No. 3335.
    A. Rochereau & Co., Agents, v. Mrs. Bertha Lewis and Husband.
    Where the suit is brought to recover from defendants the amount of five notes given by them in payment of the lease of certain property and where, when the suit was instituted, there was already an action pending in another court, between these defendants andi plaintiffs, to annul said lease and cancel said notes, the plea of lia pendens is a good one’ and should have been maintained. *
    Appeal from the Fourth District Court, parish of Orleans. Tliéard,, J.

      John jS'. Isley, JE. Bermudez, for plaintiffs and appellees. B, B. Forman, for defendants and appellants.
   Morgan, J.

Plaintiffs sue to recover from the defendant $1000,, amount of five notes for $200 each, given by them in payment of alease of certain property. They excepted, first, that plaintiffs had shown no authority to represent their alleged constituents; and second, lis pendens.

First — In the contract of lease they recognized the plaintiff's’ representative capacity. They can not now be allowed to question it.

Second — In May, 1870, the defendants instituted suit against the plaintiffs in the Sixth District Court to annul the lease which had been entered into between them, and to cancel the notes which they had given therefor, the notes being the same upon which this suit is instituted. This suit was pending when the one now before us was instituted. The plea was a good one and should have been maintained. See Bischoff v. Theurer, 8 An. p. 15.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed; that the exception of Us pendens be sustained and the suit dismissed, plaintiffs to pay the costs in both courts.


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    No. 4843.
    State of Louisiana v. E. A. Giroux and C. Giroux.
    The refusal of the judge to order the separation of the witnesses is a matter within his sound discretion.
    The judge a quo was correct in refusing to charge that, “if from the nature of'the assault, Giroux had reasonable grounds to believe that the life of his wife was in danger, or some felony was about to be committed upon the person of his wife and was at the time of the killing being.infiicted upon her person, then the killing was done in self defense.” This would have required the judge to assume the fact that the assault upon his wife was . without provocation, for if the wife was the aggressor, the killing would not be excusable in self defense.
    The judge a quo did not err when he refused to charge the jury, “that they must take into consideration the crippled condition of the accused.” The cripple was not assaulted, and his being a cripple did not give him any greater right to kill one who assaulted bis wife, than other men possess.
    There was no error in the charge of the judge a quo that the principle decided in the case of Selfridge by the Supreme Court, “was the law of Louisiana, whenever there is any application to the case.”
    The judge a quo correctly refused to charge, in regard to the dying declarations of the deceased, “that the statement must be complete in itself; for, if the declarations appear to have been intended by the dying man to be connected with and qualified by •other statements, which he is prevented from any cause from making, they will not be received.” The defendant’s counsel did not object to the admission of said declarations, but on the contrary used them, and referred to them as evidence in the argument before the jury. ' ,
    Appeal from the First District Court, parisli of Orleans. Abell, J. Criminal case.

      A. P. Field, Attorney General, for the State. H. O. & J. H. Castellanos, for E. A. Giroux, defendant and appellant.
   Ludeling, C. J.

The defendant, E. A. Giroux, having been found guilty of murder, without capital punishment, has appealed.

Besides the questions presented by the bills of exceptions, the defendant urges the following objections : that there is no record of the names of the grand jury, nor does it appear that twelve of said jurors concurred in finding the indictment. These objections are not tenable. See State v. Kennedy, 8 Rob. 591; 12 An. 862; and State v. Thomas, 25 An.; Ray’s Revised Statutes, p. 196, sec. 992.

The first bill of exceptions was to the appearance of George H. Braughn, Esq., to represent the State. He exhibited his authority and under the law of this State was properly allowed to represent the State. See State v. Donnelly, 25 An.

The next bill was to the refusal of the judge to order the separation of the witnesses. This was a matter within the sound discretion of the judge a quo. 1 Greenl. Ev. p. 479 and 432.

The next exception was to the ruling of the judge refusing to charge the jury, “ that if from the nature of the assault Giroux had reasonable grounds to believe that the life of his wife was in danger, or some felony was about to' be committed upon the person of his wife, and was at the time of the killing being inflicted upon her person, then the killing was done in self defense.” This would have required the judge to assume the fact that the assault upon the wife was without provocation, for, if the wife was the aggressor, the killing would not be excusable in self defense. American Crim. Law by Wharton 4 Rev. Edition, p. 1020, and authorities cited in note. The charge as modified by the court was perhaps more favorable to the prisoner than was authorized by the law. The next exception was to the refusal of the judge to charge the jury that they must take into consideration the crippled condition of the accused. The cripple was not assaulted, and his being a cripple did not give him any greater right to kill one who assaulted his wife, than other men possess. The next bill refers to the law of self defense. The counsel for the prisoner asked the judge to charge the jury “that the doctrine laid down in the ease of Selfridge was the law of Louisiana and had been affirmed by the Supreme Court.” The charge given was — “it is, whenever there is any application to the case.” The charge was substantially correct. The judge did not think the principle decided in that case applicable to the case at bar, and while ■stating that the doctrine enunciated in that case had been approved by the Supreme Court of this State, he did not see that the principle was applicable in this case. We concur with him.

The next and last bill is to the refusal of the judge to charge in regard to the dying declarations of the deceased, “that the statement must be ■complete in itself, for, if the declarations appear to have been intended by the dying man to be connected with and qualified by other statements, which he is prevented by any cause from making, they will not be received.” The judge refused to give this charge on the ground that the defendant’s counsel did not object to the admission of said declarations, but on the contrary, used and referred to them as evidence in the argument before the jury. The judge did not err.

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


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    No. 5128.
    E. Rochereau & Co., in liquidation, v. D. H. Delacroix. On third opposition of Mrs. Stephanie de Livaudais, wife of D. H. Delacroix.
    The court below did not err in refusing the intervenor the preference which she asserts, because her legal mortgage was not duly recorded in the mortgage office prior to the first of January, 1870. It was recorded in December, 1869, in the book of donations only.
    The fact that in the month of March, 1871, the book of donations was closed, and the same book was used thereafter as a mortgage book, can not benefit the intervenor, whose mortgage had already perished for want of registry in the mortgage book.
    That the plaintiffs had knowledge of the intervenor'‘s tacit mortgage is of no consequence. Under numerous decisions of this court knowledge is not equivalent to registry.
    Article 123 of the State constitution does not impair the obligations of contract, and is not violative of the constitution of the United States.
    Appeal from the Fifth District Court, parish of Orleans. Cullom, J.

      J3. Bermudez, for plaintiff and appellee. Tissot, for third opponent and appellant.
   Wyly, J.

This is a controversy between the plaintiffs, who are conventional mortgage creditors of the defendant, and the intervenor, the wife of the defendant, who sets up her legal mortgage, in regard to the proceeds of the sale of certain property of the defendant under the foreclosure of plaintiff’s mortgage.

We think the court did not err in refusing the intervenor- the preference which she asserts; because her legal mortgage was not duly recorded in the mortgage office prior to the first January, 1870. It was recorded in December, 1869, in the book of donations only.

The fact that in the month of March, 1871, the book of donations was closed and the same book was used thereafter as a mortgage book, can not benefit the intervenor, whose mortgage had already perished for want of registry in the mortgage book.

That the plaintiffs had knowledge of the intervenor’s tacit mortgage is of no consequence.,

Under numerous decisions of this court knowledge is not equivalent to registry. 21 An. 425 ; 22 An. 402 ; 23 An. 533 ; 24 An. 78.

Besides, article 123 of the constitution expressly declares that all tacit mortgages shall cease to have effect against third persons after the first of January, 1870, unless duly recorded.

The intervenor, however, contends that article 123 of the constitution, impairing her tacit mortgage, violates the obligation of a contract in contravention of section 10, article 1 of the constitution of the United States, and is therefore void.

In the succession of Nelson, 24 An. 25, the precise question was decided by this court, adversely to the view taken by the intervenor$ and we see no reason to change our opinion on the subject.

It is therefore ordered that the judgment herein against the intervenor and in favor of the plaintiffs be affirmed with costs. 20 An. 571.