author: Marr, J. Bbbjiddbz, C. J.

text:
    No. 7536.
    Ulman & Co. vs. Briggs, Payne & Co. and James M. Lewis.
    On Motion to Dismiss.
    TWhen. tlie Appellant prays for citation in bis petition of appeal, the failure of the Clerk to issue it, or of the Sheriff to serve it, shall not he attributed to the fault of the Appellant without proof of some sort of omission on his part, ■which prevented the performance of their «respective duties by these officers.

      "uXhe law which limits the right of appeal to one year after the date of judgment, does not require the Appellee to be cited within the year. The Appeal must he demanded and the Bond he given and filed before, but the Appellee may he cited after, the expiration of the year.
    PPEAL from the Sixth District Court, parish of Orleans. Bightor,

    -Bayne & Benshaw and John A. Campbell for Defendant, Appellee:

      The judgment was signed on May 25th, 1878, and the Citations of appeal are dated respectively the ,28th October and 15th December,, 1879. Appellants could have had the Citation issued, and the-Appellee served within the year. The want of Citation is distinctly imputable to them. 21 An. 618 ; 8 La. 220 ; 8 Martin, N. S. 673 ; 23. An. 207 ; 21 An. 271.
    Ogden & Buckner and A. G-oldthwaite for Plaintiffs and Appellants
    The Petition of Appeal and bond were filed within the year. It is sufficient. The Citation may be served afterward. 30 An. 181; 10 La* 149.
    The Citation was served within the delay granted by this Court, which constitutes an extension of the days of grace. 28 An. 905; 28 An* 790.
    It is sufficient for Appellants to pray for Citation on Appellee. Error,, or neglect in the service of it, cannot be attributed to Appellants Seghers vs. Soulé et al. Opinion Book 45, fo. 15; 22 An. 112.
   The opinion of the Court on the motion to dismiss was delivered by

Marr, J.

Final -judgment in this case was signed on the 25th May., 1878. On the 13th May, 1879, plaintiffs filed a petition for a devolutive appeal, which was granted, returnable on the third Monday, the 19th of May. The transcript was actually filed on the 20th May.

In their petition of appeal plaintiffs prayed for the citation of defendants, and gave their names in full. It appeared of record in the» original petition, that all the defendants were residents of New Orleans* and they were all cited personally to answer the demand. All the ap-pellees were cited to answer this appeal, except James M. Lewis ; and on the 20th May appellants obtained an order of this court, continuing-the cause to the 15th December, on the ground that Lewis had not been, cited because of his absence from the State.

We find filed with the transcript two citations of appeal addressed, to Lewis, and served on him personally, one issued on the 28th October., served 8th November, the other bearing date 15th December, which according to the return was received by the sheriff on the 15th November and served on the 18th November, 1879. The first of these recites that the appeal is returnable on the third Monday of May, 1879, and the-other that it is returnable on the 15th December, 1879.

Lewis moved to dismiss the appeal as to him, for want of proper citation ; and because more than a year had elapsed after the signing of the judgment, before the service was made. He alleges that these defects are attributable to the fault of appellants.

1. We have followed the decisions of our predecessors, that where •the appellant prays for citation in his petition of appeal, the failure of the clerk to issue it, or of the sheriff to serve it, will not be attributed to the fault of appellant, without proof of some act or omission on his part which prevented the performance of their respective duties by these officers. In such cases the appeal will .not be dismissed ; and time will be granted to have the appellee cited. See Borde vs. Erskine, 29 An 822 ; Hearing vs. M. C. Ins. Co. 29 An. 832.

An authentic act of partnership being passed between several persons, in which it is expressly stated that one of them enters the partnership and is accepted as a partner in commendam; that he advances a fixed sum of money, receipt of which is acknowledged; that he is exonerated from participation in the exi)enses and losses of the concern, and, in lieu, of a proportion of contingent profits, is to receive monthly afixed per ceatago on thegross .sales made by the firm;

And such an act being recorded at the Mortgage Office, in a book known and marked as the. “ Society and Partnership Book: ”

IIei/d that it is a sufficient compliance with the law relative to the partnership in oom-mendam, to protect such a partner from the obligations of a general partner.

A partner in commendam, consulting once with one of the general partners, and advising third persons that the firm is “all right,” cannot be considered as having taken an active part in the affairs of the firm and be held responsible for its debts.

Ogden & Buckner, A. Goldthwaite for Plaintiffs, Appellants :

The Defendant, James M. Lewis, cannot legally pretend to have been only a partner in commendam, because :

First — The very day the partnership was formed and he paid in the $20,000, which constituted his share of the capital, lie took back $8196 out of it, as a debt previously due him, by the firm.

Second — The act of partnership stipulated that he should receive monthly in lieu of profits one half per cent of the gross sales of the firm.

Third — The act was not recorded, as the law requires, in the Mortgage Office in a separate book, but in one kepi for recording acts of in-corporations, copartnerships, religious an 1 charitable associations*

Fourth — He took an active part in the affairs of the firm.

2. In Boutté vs. Boutté, 30 An. 181, on the authority of Borremire’s case, 10 La. 150, and upon our interpretation of article 593, of the Code of Practice, we decided that the law which limits the right of appeal to one year after the date of the judgment does not require the appellee to be cited within the year. The appeal must be demanded, and the bond must be given and filed before, but the appellee may be cited after the expiration of the year.

The motion to dismiss is, therefore, denied at the costs of the mover.

Osr the Merits.

C. C. art. 2845, 2846, 2839, 2841, 2843 ; 1 An. 121; 1 An. 138 ; 5 AIL Mass.. 91; 4 Rob. 300 ; 1st Story’s Rep. 373 ; 5 Rob. 172 ; 7 An. 471; 14 St- and R. 434 ; 3 Conn. 534 ; 10 Barr. 47 ; 5 Hill (N. Y.) 30; 6 Hill (EL'S.) 479 ; S. C. 3 Denio, 435 : Cooley, Part. 100-104, and others.

John A. Campbell and Bayne & Renshaw for Defendant, Appellee r Defendant Lewis, after the formation of his partnership in commendam,. could only become liable as a general partner by two acts of indisv-cretion or negligence :

First — A failure to record the articles of partnership in the manner psr&-seribed by the Code, is one of these. C. C. 2846-7-8.

Second — When the partner in commendam holds himself out as- a partner, by actively conducting the business, or introduces his name fisa the partnership style, or by declarations of his connection as sc, general partner. C. C. 2849 ; 21 An. 361.

The penalty is limited to these, and is not to be extended. 9 An. 251;; 10 An. 346 ; 13 An. 376.

The articles of partnership were properly recorded in the Society or-Partnership Book. 4 An. 303; 5 Rob. 172; 1 An. 120,138; 3 Ad. 251; 6 An. 242 ; 13 Ad. 376, 582.

The partnership stipulated by Lewis had all the elements of one in cmm~-mendam.

1 Delangle, Des Sociétés Commerciales, No. 275 ; Pardessus, Droit Commercial, ch. 2, de la Soeiété et Commandite, p. 104 et seq. art. 221; 40."> Dalloz, Jurisp. Gód. p. 603 and notes ; 2 Massé, La Science de» Notaires, 482 ; 5 Rob. 172; Lindley on Partnership, 15-57 ; 3 Miaes; & W. 357 ; 30 An. 636 ; 14 An. 529 ; 27 Ad. 103 ; 27 An. 454 ; 29 An.. 176 ; 28 An. 93, 230 ; 14 Pickering, 192 ; 20 Wendell, 70 ; 7 Rob. 475:-, Parsons on Partnerships, ed. of 1878, p. 574.

Toe evidence shows that Lewis took no part in the affairs of the firm..

The opinion of the Court on the merits was delivered by

Bbbjiddbz, C. J.

This is an action in which the plaintiffs seek tco saddle the liabilities of a general partner on one who claims to hens» more than a partner in commendam.

The contest is really between the plaintiffs and James M. Lewis only,, for a-> regards the other defendants, they were adjudicated bankrupts*., and afterward settled with their creditors by composition.

It is charged that Lewis is responsible:

First. Because the act evidencing the partnership, far from showing him to be such partner in commendam, makes him a general! partner. '

Second. Because, even if the act does not make him such general partner, it was not recorded as the law requires.

Third. Because, even if the act was recorded, he has forfeited the protection of that act.

1. The act is in the authentic form. It expressly says that Lewis enters the partnership and is accepted as a partner in commendam; that he advances twenty thousand dollars, receipt of which is acknowledged ; that he is exonerated from participation in the expenses and losses of the concern, and in lieu of a proportion of contingent profits, is to receive monthly a fixed per centage on the gross sales made in the business in which the firm is engaged.

Our law on the subject of partnership in commendam is derived mainly from French law ; but it differs from it in significant particulars, which it is unnecessary to enumerate in this case. Under both systems, however, the law and the jurisprudence even, the partner in commendam, is a “ bailleur de fonds,” a moneylender, who instead of permitting himself to be swayed by an illusion of cupidity, by embarking blindly in some hazardous enterprise or imprudent speculation, wisely determines not to imperil himself and his property beyond well-defined limits.

Judge Story, 49, on Partnership, says :

“ The true rule ex cequo et bono would seem to be that the agreement and intention of the parties themselves should govern all the cases. If they intended a partnership in the capital stock or in the profits, or in both, then the same rule should apply in favor of third persons, even if the agreement were unknown to them. And on the other hand, if no such partnership were intended between the parties, then that there should be none as to third persons, unless where the parties have held themselves out as partners to the public, or their conduct operated as a fraud or deceit upon third persons.”

No one can imagine, on reading the act in question, that it ever entered the mind of any of the contracting parties that Lewis was to become a general partner of the firm in which he was entering. It is manifest, on the contrary, that his intentions were to the very reverse.

The act expressly declares that he enters the concern as a partner in commendam; that he shall participate neither in the profits nor in the losses ; that he advances twenty thousand dollars ; and that in lieu of profits, as an indemnity for his contribution, he shall receive a per centage on gross sales.

It was not necessary in order to entitle Lewis to the protection accorded by law to partners in commendam that the act should have been explicit on that subject. It would have been sufficient if a limitation of his loss had been expressed ; but the act was minutely particular in that respect. Delangle, Sociétés Com. No. 275 ; Pardessus, Droit. Com. ch. 2, p. 104, art. 221; Jurisprudence G-énérale, v. 40, vo, Société, No. 1094.

The rule is, however, laid down in those authorities, that the party shall be liable as a general partner, i£ the act contain clauses which essentially derogate from this form of partnership, and give it a different -character, such as a reservation of right to co-operate in active, direct, and personal administration of the business and affairs of the same; that the articles shall not be registered ; that the relations of the parties ' shall remain secret; that the party shall be liable for the debts of the concern beyond his contribution.

We do not find such to be the case in the present instance.

The law of Louisiana is to the effect that the act must specify the amount which the partner in commenclam has paid or binds himself to pay, and the advantages which are to accrue from the enterprise, B. C. O. 2839; for it is highly proper that third parties, particularly those dealing with the firm, should be well informed as to those important particulars; but it is not necessary that the benefit which the partner expects to derive from the business should be exclusively in the shape •of a proportion of the profits. A party may be unwilling to advance money on such contingencies, and it may be to the great benefit of the firm that money be advanced by a partner in commendcim on terms different from those on which it could be borrowed, but deemed most advantageous by those most interested. It is sufficient if the nature and extent of the indemnity are defined with substantial precision.

Neither was it required that the partner should participate in the losses. Those are matters which can be settled by the partners among themselves, which concern no one directly, but of which it is highly proper that the public should have due notice.

The loss of a partner in commenclam is limited to the amount by him furnished, and extends no further. He is liable to that extent and t:no more.” R. C. C. 2839 ; 5 B. 172; Lindley on Partnership, 17-57 ; Born vs. Pillow, 3 Mees & W. 357 ; 2 Masse, Science du Notariat, 482.

The partnership in commenclam is somewhat derogatory of, but not at all incompatible with, commercial partnerships, of which it is a mere modification. B. O. O. 2840. There is no reason why, being formally recognized and sanctioned by law, it should not be protected and encouraged, particularly as it calculated to enhance commercial pursuits. Almost every State of the Union has some particular legislation regulating limited partnerships, and the tendency seems to be to liberalize the rules relative to such, as an inducement to bring increased capital into commerce.

It is only to be regretted, however, that the legislative restraint in this State, which forbids the partner in commenclam from taking an active part in the affairs of the concern under certain onerous penalties, has not been somewhat relaxed, for persons who would have engngpd their capital in an enterprise in the management of which they would have had a voice, have studiously avoided doing so, in apprehension of eventual responsibilities. It would seem that third persons would be amply protected by the registry of such articles in the public records of the country.

Where a party intends to become a partner in commendam, all that the law requires him to do, to secure to himself the protection which it allows to persons in that condition, is that there be an act drawn up, showing his intention to become a partner of a stated limited responsibility, the nature and extent of his actual or eventual contribution or liability, the advantages which the concern is to allow him as an indemnity for his advances, that the act be recorded in a particular mode, and that he should abstain from an active participation in the affairs of the partnership, and from using or permitting his name to be used in any manner which would authorize third parties to believe him a partner on an equal footing with the ostensible partners.

When those requiiements are not fulfilled, ho may incur the liabilities of a general partner, with this restriction, however, that the responsibility only attaches in the cases specially mentioned by law, which occur: when the act is not expressive of a specified limited liability, but provides for a general liabilily ; when the act has not been recorded at all, or in such an improper manner that third parties were not bound to know of its registry, as for instance if spread in the wrong book ; when the partner has done or permitted some act to be done, from which it could be inferred that he was a general partner.

C. C. 2816, 7, 8, 9 ; 21 A. 361.

The penalty is limited to those cases, and is not to be extended by implication.

9 A. 251 ; 10 A. 316 ; 13 A. 376.

A scrutinizing examination of the articles of partnership in this case, satisfies us that far from departing from, the parties have strictly complied with all the substantial requirements of the law, so far as the form of the act itself is concerned.

2. The articles of partnership, as found in the record, aro certified by the proper officer to have been duly recorded on the 18th of ]De-ccmber, 1875. The testimony of this officer shows that the book in ■which it was transcribed is the "Society and Partnership Book,” so known and marked. The notary, by whom the act was drawn up, says that lie carried it to the mortgage office, and that it was there recorded.

The law requires that such an act be recorded by the officer authorized to record mortgages in the place where the principal business of the partnership is carried on, R O. C. 2846„ and directs that officer to keep a separate book for the purpose of recording acts of partnership, which shall at all hours be open for the inspection of any person who may choose to consult the same. R 0. 0. 2848.

It is prima facie proved that the act was properly recorded. It was incumbent on the plaintiffs to prove that it was not so, if such was the case; but they have not done so. It is the spirit of the law every where, that men, who have acted in good faith, and have spread their unequivocal agreements upon the public records, where all may see them, be protected. We must maintain the registry as valid.

3. Keeping- in view art. C. C. 2849, wo have carefully considered the evidence adduced to show that Lewis has taken an active part in the management of the affairs of the partnership, and so hold himself out to the world as a common partner, but have failed to be impressed in that sense. All that we find charged against him is, that on his return from the North, on one occasion he consulted with one of the general partners and telegraphed to parties in New York, who desired information, to the effect that the firm Briggs, Payne & Co. were all right.

Surely this is not the kind of participation or interference which the law considers shall make a partner in commenclam liable as a general partner. He did that which any stranger could have done without implicating- himself. It cannot be pretended that if any outsider had done this, it could be inferred and believed from such an act, on his part, that he was on that account a partner in the concern. We do not find that Lewis has held himself out to the world as a partner, and rather think that he has done every thing that he should have done to be shielded by the law on the subject.

Last. It is claimed that he has unduly received from the firm two amounts, aggregating $8196 ; one of $4000, balance due him by the firm of Briggs, Payne & Co., which was dissolved on the 13th of March, 1875, and $4198, as the premium for the use of a sum of $20,000 which he had lent that firm, and on which the balance just stated had remained owing to him at the dissolution of the firm. It is charged that the amount was paid Lewis out of the $20,000, which, as a partner in commenclam, he had contributed.

All this, no doubt, was the case. From the acts and dealings of the parties, it must be inferred that the remaining members had assumed the entire liability of the dissolved firm to Lewis. They had a right to exonerate the retiring members from that liability, and it may be that it was after an understanding to that effect that matters were adjusted and settled, the way they were, among themselves. We cannot consider the payment made to Lewis, of sums due him by the previous firm and for which the new firm acknowledged themselves liable, in the light of a payment of dividend unfairly paid, and which, under the provision of article 2843, can be ordered to be refunded.

This view of the case dispenses us from determining whether the plaintiff could claim the refunding, under the authorities quoted, which would justify a direct demand in their own name. 1 A. 121,138. Desbarride, Sociétós, v. 1, p. 344.

The District Judge who decided this ease wisely endorsed as his the reasons assigned by his brother, the Judge of the Fifth District Court for the parish of Orleans, in a suit like the present one, in which parties asserted pretensions alike to those of plaintiffs in this proceeding against the same defendants.

The opinion so adopted was prepared with great care, and reflects much credit on the judge who drew it up. A construction of the law regulating partnerships in commendam, different from that which ib has received in this case, would be a just cause of alarm to the commercial community.

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

Kehearing refused.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    7453.
    E. Tanneret vs. Merchants’ Mutual Ins. Co. of New Orleans.
    In order to adjudicate upon tlie issue presented in tins Motion to dismiss and tlie Answer thereto, it -would be necessary for this Court to take cognizance of the evidence annexed to those pleadings, which is in pais and dehors the transcript. It cannot constitutionally be done. It makes no difference that evidence is before this Court by consent of Counsel and that the facts are not disputed.
    APPEAL from the Fifth District Oourt, parish of Orleans. Rogers, J.
    Henry Denis and Henry 0. Miller for Plaintiff and Appellee :
    The Charter of the Merchants’ Mutual Insurance Company was passed, on the 31st of March, 1851, under the law of 184S, which provided that the existence.of such corporations shall never extend beyond twenty-five years.

    In obedience to that law, the Charter of said Company provides that the Company shall exist for twenty-five years from the 31st March, 1854.

    'The subsequent Acts of the Legislature of 1855 and 1870, for the organization of Corporations, contain the same provision, that their existence shall never extend beyond twenty-five years.
    At tlie expiration of its Charter, this Company, without any legislative warrant or authority whatever, and in the very teeth of the prohibition emphatically expressed in the law of its creation, has attempted to continue, by its own action, its corporate existence for twenty years more.
    It is clear that the Company went out of its corporate existence on the 31st of March, 1879, and cannot stand in judgment in this Court. C. C. Art. 446. Field on Corporations, p. 548, sec. 481. Angelí & Ames, see. 778. Kent’s 2d vol. p. 306 et seq.; Green’s Ulti'a Tires, p. 646, note ; 11 Rob. 42.
    The Supreme Court will take notice, even ex officio, of the fact that there are no proper parties before it, and dismiss the Appeal on that score. 12 Rob. 205 ; 4 An. 577 ; 11 An. 409'; 12 An. 755, 774, 801.
    There being no contest as to the facts on the Motion to dismiss, and these facts appearing from the Exhibits annexed to the Motion and to the Answer thereto; the issue being one of law entirely, as admitted by both parties, it has been held by this Court, that it would be idle to remand the case, and that the Court wiT adjudicate upon the legal issue thus presented. Planters’ Bank vs. Bass, 2 An. 430.
    Appellant declines a revival of action through legal representatives, and rests upon the ground of its corporate existence and capacity to stand in judgment; the Appeal should, therefore, be dismissed, unless the Court arrives at the condusion that the Company is still a legal corporation.
    Albert Yoorhies and Thomas J. Semmes for Defendants and Appellants :
    First — The dissolution of a corporation by the expiration of its charter, after transcript of appeal filed in the Supreme Court, does not operate a dismissal of the appeal. The appellee’s remedy is under Rule XIII. of the Supreme Court, and O. P. arts. 21,113, 120, 361.
    Secondly — The dissolution of a corporation has for effect to divest the corporators of all corporate advantages and privileges. The juridical person disappears ; the stockholders or corporators remain, sul ject, as individuals, to the action of the Courts. C. C. art. 446 (437); Musscn vs. Riel ardson, 11 B. 37 ; Planters’ Bank vs. Bass, 2 A. 430 ; Bernard vs. Yignaud, 1 N. S. 9.
    Thirdly — Plaintiff, Tanneret, is estopped from asserting the expiration of the company’s charter, by his ac tive participation in the amendment, by which the company’s charter was duly extended for the space of twenty-five years. Chubb vs. Upton, 95 U. S. 667 ; Methodist Church vs. Pickett, 19 N. Y. 485 ; Pascagoula Co. vs. West, 13 An. 545 ; Pochelu vs. Kemper, 14 A. 308 ; Pollock vs. Citizens’ Bank, 12 A. 230; 61 Mo. 251; 62 Mo. 372.

      Fourthly — The charter of the Merchants’ Mutual Insurance Company was duly extended for an additional term of twenty-five years by regular proceedings under their charter, and in accordance with the statutes of this State. R. S. sec. 681, 687.
   Os Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff and appellee moves to dismiss this appeal on the following grounds :

1st. That the charter of the defendant company, the appellant, expired by law and by its own limitation, on the 31st day of March, 1879, the same having been restricted to twenty-five years duration, and being dated the 31st of March, 1851, as shown by the exhibit annexed to the motion;

2d. That the appellant has ceased to have any legal existence as a corporation, and has no legal representatives in this Court, who have capacity to stand in judgment in the premises ;

3d. That there are no legal representatives of said appellant, who can be made parties in this Court;

4th. That the judgment to bo rendered in this case would be invalid for want of proper parties.

The counsel who have represented the defense in the lower court, and whose names are of record in this, have answered the motion, averring distinctly :

1st. That the charter of the defendant, copy of which is annexed to the motion of appellee, was extended by amendments adopted by the corporation and ratified by the stockholders on January 13,1879, a copy of which amendments, together with a statement of facts in reference thereto, is filed as part of the answer;

2d. That the validity of the extension of the charter of the defendant cannot be inquired into collaterally, or at the instance of any one, except the State of Louisiana ;

3d. That the appellee is precluded and estopped by his own conduct from inquiring into the existence of the defendant, as a corporation, or the validity of said amendment, as he has acquiesced in, accepted, and approved said extension of charter and .said amendment, by exchanging his seventy shares of stock, purchased on the 8th of April, 1879, for a new certificate, on June 1st, 1879, for forty-one shares, reduced in pursuance of the terras of said amendment, and voted at elections for directors, and received dividends on said new stock in the manner and under the circumstances set forth in said statement of facts ;

4th. That if the defendant were a dissolved corporation, such dissolution is no valid ground for dismissal of the appeal herein taken.

It is evident from the face of the motion and answer, that the merits of the application to dismiss cannot bo adjudicated upon by us, unless we take knowledge of evidence annexed to those pleadings, and which is altogether in pais and dehors the transcript.

It may be true, that the charter of the company has expired, as is stated by the appellee, but it would not follow from the circumstance that it has ceased to be a “ going corporation,” that it is not represented by parties concerned in the liquidation of its affairs. It may have lost its corporate name, lost its board of directors, lost its other officers, lost a right to sue and be sued, after such dissolution, but all those who must have bad an interest in its affairs — creditors and stockholders— have nevertheless become the quasi owners, en masse, of its assets, of any nature or description, and, in point of fact, unquestionably represent the dofunct corporation. It may be, if it be true that the charter has expired, that they have a common representative, a liquidator or some such functionary, but of this we have and can have no knowledge at this stage of the proceeding and under the showing made.

When a party dies pending an appeal, his legal representatives are to be connected by the proper process with the matter before the Court, and it is not until after this has been doDe that the suit can be proceeded with. An action, it is well settled by law and jurisprudence, does not abate, in this State, by the death of one of the parties, after answer filed. C. P. 120-21. Vide authorities collected on that subject in H. D. 1136, L. D. 532.

There is no good reason why, on the same principle, the rule should not be, in the absence of formal legislation, extended to suits by and against corporations, for indeed, interest reipublicce ut sit finis liiium.

Neither in the case of the death of one of the parties litigant, nor in that of the extinction of a corporation, whether by limitation of its charter, or judicial forfeiture of its charter, or otherwise, does the law require a revival of the suit, or a vivification of the defense. All that has to be done is that the legal representative of the decedent, or dissolved corporation, become a party, voluntarily, or at the instance of the other litigant whose interest may demand such proceeding.

It is well settled that the neglect of corporators to re-appoint officers may suspend the action of the corporation, but that such omission cannot extinguish the organization to the injury of creditors. A corporation cannot be dissolved so as to defeat the rights of creditors. 3 A. 177; 2 A. 573.

If this be true, why should in such eventualities, creditors be permitted to benefit themselves to the injury of others, likewise, and perhaps more deeply interested in the concern ?

On the other hand, it is probable that, although the charter of the company may appear to have expired as averred by the appellee, the fact may not be so in reality. The stockholders may well, in view of such expectation, have provided against the same, and it is reasonable to suppose that they have done so, in some substantial manner, ample and sufficient, in their mind at least. They may long before the date of expiration have thought themselves authorized to extend their charter for a term, which added to that which it had to run, would not exceed twenty-five years, and if such an extension was not strictly regular, it is possible that it may'have been deemed as creative of a new charter of a new corporation, acquiring all the rights and assuming all the obligations of the former organization.

The same counsel who defended the case in the lower court are before us to-day, and affirm that their client is not only not defunct, but is full of life, happy, prosperous, and content, and even sanguine of final success in this very litigation. The Court must look to its officers with trust and confidence, and will lend a favorable ear to their solemn professional answers, as long as the same are not unquestionably overbalanced by counter indisputable evidence.

If such facts have occurred, the course pursued might be sanctioned or discountenanced by law, but with such contingencies wo have no authority to deal presently.

The defense of estoppel, by reason of acquiescence on the-part of the appellee, in the organization which, it is said, represents, or is, the defendant in this case, is one which cannot become operative unless maintained by evidence.

We cannot enter upon an investigation of the matters of fact set up by counsel without assuming an original jurisdiction which properly vests in another tribunal. It makes no difference that a statement of facts was agreed upon and is before us. We cannot transgress the constitutional limitation of our powers.

If we were to dismiss the appeal in this case, because the defendant corporation is extinct and unrepresented here or elsewhere, the embarrassment of the plaintiff in the levy and execution of his writ for money against the assets of the defunct company, which no curator ad hoc could represent, can be easily conceived. It is to the interest of both that he should fail in his attempt here.

The question which we are desired to solve may arise under more proper proceeding in the lower court, for the execution of the judgment in this case and the adjudication made on the issue presented oould be on appeal only revised by this Court.

Leaving the appellee free to inaugurate such course as to him may appear most conducive to the object which he has in view, but without prejudicing him in the least in that direction, we are constrained to decline to entei t tin his application.

The motion to dismiss is refused with costs.

Rehearing refused.


text:
    No. 6592.
    Mrs. A. M. Hennen, Executrix, vs. L. A. Hacker et al.
    under Ai't. 20S3, C. C., -tlic wife may he made a witness against herself, to show that property bought in her name, was bought with her husband's funds, and that her title is simulated and fraudulent.
    j^Pi’EAL from the Fifth District Court, parish of Orleans. Uogers}

    B. R. Forman for Plaintiff and Appellant:
    Article 2281, C. C., expressly permits a wife to testify for or against her separate interest. 23 An. 164.
    Burden of proof is on the wife claiming that property purchased during the Community is her separate property, purchased with her separate funds. 15 An. 33 ; 11 An. 526 ; 12 An. 193 ; and others.
    The evidence shows that Defendant had no property when she obtained a decree of separation, and that her husband had large means at ■ the time that she sued him and alleged that he was insolvent.
    Defendants and Appellees unrepresented,
   The opinio.n of the Court was delivered by

Bermudez, C. J.

This is an action in which the plaintiff, as executrix, seeks to have several pieces of real estate standing in the name of a married woman decreed not to be hers, and to be the property of her husband, in order, when so declared, that the same bo subjected to the satisfaction of a judgment of ancient date, in favor of the decedent, whoso succession she represents.

Tho suit is directed against the wife solely, but the petition asks that the husband be joined to assist her. The allegations of the petition are substantially that the property belongs to the husband, and was purchased by him with his money, but that, colluding and conspiring with Ins wife, in order to defraud plaintiff and his other creditors, he has caused it to be placed in her name ; that she never had any money, property, or resources of her own, nor any separate industry; that the transfer is a simulation, etc.

For the purpose of making out her ease, the plaintiff proposed to have the defendant heard as a witness. On objection, the Court refused to permit her to testify, considering article 2281, R. C. C., as prohibitive of that course. The plaintiff took a bill of exception to the ruling. The judge of the lower court erred.

The article is explicit, that “in any case in which the husband or wife may be joined as plaintiffs or defendants, and have a separate interest, they shall be competent witnesses for or against their separate interest therein.” The plaintiff was entitled to examine the defendant under the very terms of the article, as she and her husband were joined in the same suit, and she had a distinct and separate interest at stake. Had she boon hoard as a witness, it eould not have been said that she •was testifying against her husband. The authorities are, that where creditors of the husband seek to enforce their rights against him, adversely to the wife’s pretensions, she is a competent witness, in her own favor, against them, 24 A. 153; 23 A. 164; but the husband cannot, be allowed to give evidence for or against her. 18 A. 319; 21 A. 651, 681, 343, 422.

To resort to such an extremity, the plaintiff must have considered her ease greatly imperiled. We cannot say that she was mistaken in her apprehension. Of course, wTe cannot pass upon the merits of the case, as the same are now presented by the record.

The plaintiff must be given the opportunity upon which she insists, of having the defendant heard as a witness in the case. It is in our power to afford her tlia-t relief, and we will do so.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed; that this case be remanded to be tried tie novo, and proceeded with as the law provides, the defendant and ap-pellee to pay costs in both courts, from the date of trial.


author: Levy, J.

text:
    No. 7223.
    Summers & Brannin vs. Jas. S. Clarke.
    Although simulation is (lifO-cuU of conclusivo or afirmativo proof, yot it surely requires, in-order to shift the burden of proof upon t-lio defendant, that the circumstances relied upon, to establish the fraud, should bo so strong as to create highly reasonable doubts or suspicions as to the good faith and honesty of the transaction, which is sought to be set
    j^PPEAL from the Sixth District Court, parish of Orleans. Bightor,

    D. C. Labatt for Plaintiffs and Appellants :
    In cases of simulation, it is difficult for the plaintiff to present conclusive evidence. For that reason, the rule of law lias been established, that only a prima facie ease needs be made out, and it shifts the burden of proof on the defendant. 10 An. 691; 6 An. 647 ; 15 An. 42 ; 4 La. 254 ; 6 La, 538 ; 2 La. 16 ; 6 An. 710 ; 2 Vesey, Jr., 155; Hovendcn on Fraud, p. 9.
    ICennard, I-Iowo & Prentiss for Defendant in rulo and Appellee
    The rule is settled in Louisiana, that “it is not enough for a plaintiff to make out a probable case ; he must make it certain.”
    Simpson vs. Powell, 7 A. 555.
    Mr. Hennen, summing up a list of Louisiana cases from 10th Martin to 5th Annual, lays down the rule “ that circumstances to establish fraud must be strong, consistent, and calculated to induce the belief that a fraudulent intent existed.” Dig. vol. 1, pp. 526, 527.
    In an English case decided in October last, Wilson vs. Church, 9 C. L. Jour. 420, Mr. Justice Brett used almost identical' language, saying: “ It seems to me that no man ought to be found guilty of fraud unless you can say lie had a fraudulent mind and an intention to deceive.”
    Mr. Story remarks, Equity § 190, that “ it is equally a rule in courts of law and courts of equity that fraud is not to be presumed, but established by proofs ; circumstances of mere suspicion leading to no certain results, will not, in either of these courts, be deemed a sufficient ground to establish fraud.”
    For example of danger of circumstantial evidence, see Amer. Law Rev. May, 1880, p. 376.
    The maxim of the Code of Justinian, clolum ex indicáis perspicuis pro-bari convenit, is a maxim of universal jurisprudence.
    The rules laid down by Mr. Justice Washington in Conard vs Nicoll, 4 Peters, 295, and affirmed loy the full bench, are always worthy of record:

      1. “ That actual fraud is not to be presumed, but ought to be proved-by the party who alleges it.
    2. “ If the motive and design of an act may be traced to an honest and legitimate source, equally as to a corrupt one, the former ought to be preferred. This is but a corollary to the preceding principle.
    3. “ If the person against whom fraud is alleged should be proved to-have been guilty of it in any number of instances, still if the particular act sought to be avoided be not shown to be tainted with fraud, it cannot be affected by these frauds, unless in some way or other it be connected with or form a part of them.”
    In Marksbury vs. Taylor, 10 Bush (Ky.), 519, and in Young vs. Edwards, 92 Pa. State, 257, it was laid down as settled law that, in order to establish fraud, the true rule in all courts is to require such legal evidence as will overcome in the mind of the tribunal the legal presumption of innocence, and beget a belief of the truth of the allegation of fraud ; and that the existence of fraud is to be proved as any other fact; the evidence being sufficient if it satisfy beyond a reasonable doubt, but not otherwise.
    These are the elementary rules of universal jurisprudence. They came to England and to the United States from the great fountain of the-Roman Law.

      Adore non probante, absolvitur reus.

      Quocl non apparet, non est.

    Plaintiffs have made out neither a certain nor even a probable case.
   The opinion of the Court was delivered by

Levy, J.

The plaintiffs, Summers & Brannin, having a judgment against James S. Clarke, seized under a ft. fa. certain real estate in the city of New Orleans. A mortgage in favor of Albert Baldwin appeared inscribed on this property, to secure the sum of §20,000, and interest on that sum. On motion of plaintiffs a rule was taken in the Sixth District Court, parish of Orleans, ordering the Recorder of Mortgages of New Orleans, and said Albert Baldwin, to show cause why said mortgage should not be canceled and erased, and declared null and void. The exception was filed by Baldwin, claiming lis pendens in the United States Court, between same parties, on a petition to annul this mortgage; and this exception was overruled. Baldwin then pleaded that he had proceeded in the Fifth District Court and obtained a judgment therein, which he held to be a bar to the rule to set aside the mortgage. This-exception was also overruled, and various exceptions being pretermitted to the merits, the rule was tried on the issue of simulation vel non. Plaintiffs’ rule was dismissed, and they have appealed.

We agree with the counsel of appellant that “ the sole question pre■sented is whether this mortgage of James S. Olarke to Baldwin is valid -or simulated.” We shall not disturb the rulings of the lower court on. the pleas and exceptions there presented.

On a careful examination of all the evidence contained in the record, and attributing to it all the weight and consideration to which it can reasonably be entitled, giving to the circumstances connected with the transaction, directly or remotely, and the hypotheses based thereon, patient discussion and a fair construction, we can perceive no sufficient .grounds to sustain the charge that the mortgage which the plaintiffs seek to have erased is tainted with simulation or was given in fraud of these creditors of Clarke.

Wo concur in the proposition set forth in the brief of counsel for '¿lie appellant, that “ simulation is difficult of conclusive or affirmative proofyet it surely requires that the circumstances relied upon should 'be so strong as to create highly reasonable doubts and suspicions as to the good faith and honesty of the trahsaction which is sought to be set aside. The presumptions in favor of the legality and validity of a transaction such as the one now under consideration may be rebutted, and in some instances the burden of proof may bo shifted, in order that suspicious and unusual circumstances shall be accounted for or explained away.

The principal facts or circumstances on which appellants rely to •establish simulation in the mortgage of Clarke to Baldwin, are: The non-payment (as they allege) of the money to secure the payment of which the mortgage was given at the time of the execution of the act; the execution of a simulated act by Clarke, in favor of another party at an antecedent date ; the renewal or extension of “ loans and mortgages” ■on his own city property by Mr. Baldwin, at a similar rate of interest, at the same time that he was making the loan to Clarke ; the insufficiency •of the mortgaged property as a security for the amount loaned.

While the notary and his clerk before whom the act of mortgage was passed testify that they did not see the money paid or handed to Olarke by Mr. Baldwin, on the other hand, Mr. Baldwin testifies that he did pay the money, and describes the mode, manner, and time of handing In to Olarke, and the kind of money, with as much particularity of details •as could reasonably be expected, in view of the length of time between the payment and his examination. Because the notary and his clerk did not see the money paid over, cannot be held as proof that it was not paid, when Mr. Baldwin swears positively that he did pay it. No attempt to invalidate the testimony of Mr. Baldwin, or to prove him unworthy •of belief, was made, and we therefore hold it as unimpeached in this matter on this point. It would be unjust, unfair, and illogical to infer that because Mr. Clarke had been engaged in a simulated transaction) with another party, at another and distant period, ergo his transaction with Mr. Baldwin partook of the same character.

We are to consider the attributes of the distinct act which is assailed* and it must be judged independently of other matters and occurrences* especially when.it is between different parties.

As to the fact that about the time Mr. Baldwin was lending this large amount of money to Mr. Clarke he was obtaining an extension of his own indebtedness, for a much smaller amount, at .about the same-rate of interest, is satisfactorily explained by Mr. Baldwin himself, and1 does not justify any grave suspicions or serious doubts as to the-good ■ faith and honesty of the negotiation with Clarke. So, also, the alleged insufficiency of the mortgaged property as a security for the-amount loaned is in the first place not established by the evidence. On the contrary, we think it rather estimates the property as being of a. value equal to if not greater than the loan ; but hi addition to the property, the pecuniary circumstances or condition of Clarke evidently-operated upon the lender’s mind, and in his opinion rendered his investment safe.

The judgment of the lower court is affirmed at the costs of appellant.


text:
    No. 5154.
    John Moylan vs. City of New Orleans.
    A party contrae ing with the city of Slew Orleans for grading and curbing baniucttos, does-, so at his own risk, audit, owing to some informalities iu the contract, he fails to recover from the front proprietor, the amount of the City Surveyor’s Bills against them, which ho-lms accepted in payment of his work, he has no recourse against the City.
    1 PPEAL from the Superior District Court, parish of Orleans. xjl kins, J. Ilaw-
    R. King Cutler for Plaintiff and Appellant.
    Samuel P. Blanc, Assistant City Attorney, for Defendant and Ap-pellee :
    The points upon which we rely are, then, these:
    First — That all actions against the city of New Orleans, for work or labor done, either under a contract, or for damages, or extra work* are prescribed, unless commenced within one year from the time the-contract was to be performed. R. S. 2822, and Act No. 91 of 1858.

      ■Second — That under twenty-fourth section of the city charter of 1870, Act No. 7, Extra Session of 1870, the city could not contract to improve, pave, grade, or lay banquettes at its own costs, but that the whole of said cost had to be borne by the front proprietor.
    Third — That one who contracts under said section twenty-four, to do work on banquettes, must look exclusively to the front proprietor for the payment, and that the city cannot enter into an engagement to the contrary.
    Fourth — That the plaintiff has engaged with reference to said law, and has expressly contracted to look to the front proprietors, and to pretend to nothing against the city in case of non-payment, recognizes and declares the law, and cannot afterward seek payment at the hands of the city on the bills against the abutting proprietors.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff claims that, under a contract with the -city of New Orleans, entered into in November, 1870, he has filled, graded, and prepared the ground on St. Charles Avenue, between Tole- ■ daño and State streets, to fit it to receive the pavement of Byrnes’ Improved Patent Banquetting, which was to be laid down by the patentees, And that by the labor so done and materials thus furnished, and for other items, he is entitled to recover from the city of New Orleans the .sum of §2205 74.

An examination of the contract relied upon by the plaintiff shows that two modes of payment were provided for.

In the first place, it was understood, that if the appropriation made by the city in the annual budget were exhausted, when a certificate of •compliance with his contract would issue to the contractor, he would not ask a warrant until after a fund was provided for in the budget of ■the following year.

In the. second place, it was agreed that the city would prepare the proper bills against lot owners fronting the -work, deliver them to the ■contractor, and that he would proceed to their collection, even judicially, if necessary, but that, by the delivery of those bills, the city would be released from all obligations to him.

The contract reads:

“ On the completion and reception of the work, payments shall be made by the property-holders in the city surveyor’s bill in conformity with section 24 of the city charter, and, the city shall not be held responsible ■or liable for any of them, should the same not be paid, and said contractor •shall be subrogated to all the rights of the city to seize and sell the property in case of non-payment of any or all of said bids.”

Besides: “Said Mayor promises for and obligates the city of New Orleans to have the proper and legal bills for such work made out and delivered by the city surveyor unto said Moylan, who shall collect said bills according to section 24 of the city charter, at his own cost and expense, hereby releasing the city from any and all responsibility or liability for any part of said bills, and being subrogated to any and all rights of the city of New Orleans in the premises,”

It is impossible to conceive how, under such terms and conditions, the plaintiff ever imagined that the city could be held responsible to him.

We are at a loss to understand -why the first provision, unexplained as it is by the record, was inserted in the contract, for it is evident, from the reading of section 24 of Act 7 of 1870, which is the charter of the •city of New Orleans, that it never entered the mind of the Legislature that the city should be responsible for such improvements. The law is clear that the whole cost of said banquettes so made should be borne by the owners of real property fronting on said banquettes in equal proportions according to the running foot.

As the contractor was to be entitled to payment for his work and materials, it was nothing but jus! that he should become the trans-terree of the claims of the city against such owners. This explains the second provision satisfactorily.

The two modes of payment could not co-exist with the stipulation found in the second provision. Leaving out of view section twenty-four ■of the charter, all that could be said is, that Moylan was left to his •option in the matter.

He received it. He thought it more advantageous not to wait for the budget appropriation, and preferred to take the bills against the front proprietors.

The record shows that he instituted on those bills quite a number of suits against those who refused payment, and whom he treated as delinquents ; but that judgments were rendered in their favor “because, says plaintiff’s brief, the city had failed to give the proper advertisements for bids.”

Moylan contends that he is not responsible for this omission on the part of the muuicipal authorities. This is an error. He dealt with the city at his risk and peril. The omission, if any, was anterior to the date of the contract. By his accepting a transfer and subrogad m from the city, there was a novation of ere .litor, an l the defenses which could have validly existed against the transferrer coul 1 well be urged against the transferree.

From that admission we have authority to infer that the contract upon which he rests his claim]was illegally formed by the city, and is a nullity, on, account of the non-observance of legal requirements prescribed by law as conditions precedent for the validity of any contract, the provision of the law on such subject being prohibitory, and not merely directory. 21 A. 143.

But, be that as it may, it is clear that by accepting the bills under the conditions of release found in the contract the plaintiff has made the claims his own, and has completely discharged the city from all liability toward him.

To make its case still more certain, the city filed the plea of prescription of one year, which the law sustains. R. S. 2822; Act No. 91 of 1858 ; 27 A. 310.

The year began to run after the ten days within which the work was to be begun, viz., on December 5th, 1870. The work was to be completed within three months, viz., March 5th, 1871. The citation in this case was served on March 9th, 1872.

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


text:
    No. 7860.
    George S. Wells vs. City of New Orleans.
    In this caso, Plaintiff having obtained an Injunction “restraining tho City of Hew Orleans from closing or interfering with his business (that of coffee-house with theatrical performances or vocal music), and from collecting the sum of §1500, as license on said busuiess,” tho City reconvened in its Answer, claiming payment of tho license-tax and praying for an Injunction, “restraining Plaintifi from continuing to carry on his business until he shall have paid the said license.” The District Judge refused to grant the Injunction cd for by the City.
    Held that the provisional Injunction granted Plaintiff, was no reason why the Injunction prayed for by tho City should be refused; and that the District Judge is ordered to gran t tho latter.
    APPEAL from the Sixth District Court, parish of Orleans. Bighior, J.
    S. Bolden for Plaintiff and Appellee.
    Samuel P. Blanc, Assistant Oity Attorney, for Defendant and Appellant.
   The opinion of the Court was delivered by

Levy, J.

This is an ai peal.from an order of refusal of ti e Sixth District Court, of the parish of Orleans, to grant an injunetion “re«training the plaintiff, Wells, from continuing to carry on the business of coffee-house with theatrical performances or vocal music,” until he •shall have paid the license-tax imposed by the city of New Orleans for the year 1880. The defendant alleges that this refusal works ineparable Injury to the city of New Orleans, and contains error to the prejudice of the city, and aggrieves it.

On the 27th February, 1880, the plaintiff filed his petition in the 'Sixth District Court, in which he avers, that the city had fixed his license on the business mentioned at one thousand five hundred dollars for the year 1880, and notified him to pay the same. He further avers, that this license-tax is unconstitutional, because under article 206 of the eonsti-•tution of 1879, all political corporations are inhibited from imposing a ■greater license-tax than is imposed by the General Assembly for State purposes. Plaintiff also contends in his petition, that the Revenue Act of 1872, under which licenses had theretofore been collected, was not in ■force, but had been abrogated by the adoption of the Constitution of 1879. For these reasons plaintiff prayed for an injunction “ restraining the city of New Orleans from closing or interfering with his said busi¡ness at 32 Royal street, and from collecting said sum of §1500 as license -on said business.”

The injunction prayed for was issued ; a motion to dissolve, as in. case of giving bond, was denied. The defendant filed an answer on the ■9th of March, in which there is set up a reconventional demand claiming the payment of the sum of §1500 (the license-tax), with ten per cent per annum interest, and §500 damages, and praying for an injunction’enjoining and restraining the plaintiff (Wells) from continuing to carry on the business aforesaid, until he shall have paid the license-tax claimed. The court a qua refused to grant this injunction, and from this order •of refusal this appeal was taken.

The only question presented for our decision, and which will be considered by us, is whether the court erred in refusing the injunction. The case is pending on its merits on the docket of the Sixth District Court, the legality and constitutionality of the ordinance imposing the tax, or rather as to the amount imposed and sought to be collected, is before that court, and it will be time enough for us to pass thereon when it is properly and directly brought before us. We confine ourselves to the single issue : Was the city entitled to the injunction prayed for?

In the case of the State ex rel. City of New Orleans vs. the Judge ■of the Sixth District Court, recently decided by us, in which the city applied to the court for a writ of mandamus to compel the judge to grant the injunction, from the refusal of the lower court to grant which •this appeal is taken, we held “ that this Court would not in such case as was therein presented, issue mandamus to compel an inferior judge to' grant an injunction and in declining to issue the mandamus, the Court held: “I£ there be error, it must.be remedied by appeal.” In ihisr appeal, however, we are not called upon to decide on the merits of the case ; we confine ourselves alone to the refusal of the judge a quo to-issue the injunction sought by the city in its answer and reeonventional demand. The validity and constitutionality of the city ordinance imposing the license-tax is a question involved in the suit now pending in and to be decided by the Sixth District Court.

The judge a quo gave no reasons, appearing in the transcript, for his-refusal to grant the order; we therefore deal with the matter as presented by the record before us. It is not material in the consideration of the issue with which we are now dealing, to inquire into the validity of the injunction against the city, granted on the application of the plaintiff Wells. It is enough for the purpose of an inquiry that this-injunction is in existence, and we must presume that it was granted upon a proper showing justifying the action of the District Judge.. Does the existence of that injunction deprive the city of- its right to the remedy which it seeks? We think not. The city of New Orieans has-the right to avail itself of the remedy which the law gives. If the city had instituted its proceedings in an independent and original action, seeking this writ to aid in the enforcement and collection of the license-tax, it cannot be denied that it would be entitled to such writ, and we-cannot conceive that the same right cannot be exercised in aid of its re-conventional demand, which in its nature is between the parties on original demand countenanced rather than discountenanced by the courts, as avoiding multiplicity of suits. The only argument which can be adduced against the issuance of the injunction prayed for in the-answer, is that the existence of that obtained by the plaintiff restraining and inhibiting the city from “ closing up or interfering with petitioner’s-place of business, and from collecting the sum of $1500 as license on said business, until the further order of court,” prevented the same court from granting the order for injunction sought by the city, because the court would thus nullify its previous action, and having refused to dissolve the plaintiff’s injunction, would, by granting the injunction in behalf of the city, practically do by indirection what it had refused to do directly. It must be observed that the first is only a preliminary injunction ; that it has never been passed upon definitively on its merits, or in any manner perpetuated; non constat, that it will be maintained and if the city’s injunction is granted, how can it be said that on a proper showing on motion it may not be dissolved ? And besides, we cannot perceive how the plaintiff can suffer irreparable injury, when, upon compliance with law and execution of sufficient bond, it may be set-aside. It can hardly be contended, and we surely will not recognize-the proposition, that the judge of the Sixth District Court by granting to Wells the preliminary injunction intended or contemplated to forbid the city a resort to legal proceedings and auxiliary legal remedies, or in other words, virtually enjoined itself from the exercise of judicial powers. It would be an unreasonable construction to place upon the wording of the writ of injunction restraining from closing up or interfering with the business of petitioner,” to stretch its meaning to include an inhibition on the city to bring suit and seek by legal means to enforce in the courts the collection of its claim. If such had been the avowed object of the plaintiff, we do not think his prayer for his injunction should have been entertained.

We construe the injunction issued against the city as being confined in its restraining character to interference by extra-judicial means for non-payment of license-tax.

It is therefore ordered, adjudged, and decreed that the order of the Sixth District Court refusing the injunction prayed for by the city of New Orleans in this suit be reversed and set aside, and the case be remanded for further proceedings according to law, with instructions to the judge of said court to grant the preliminary injunction prayed for by the city in the reeonventional demand, and that the plaintiff, appellee, do pay the costs of this appeal.


author: Berjmudez, C. J.

text:
    No. 7671.
    Interdiction of Joseph Dumas.
    By voluntary absence of two years, a resident of tliis State forfeits both his civil and political domicile in it.
    A suit for interdiction must be brought at the actual domicile, tho domicilium habilationis, of the Defendant, not at his merely legal or constructive domicile.
    A Court of this State cannot issue its process in a personal action, on a person actually residing beyond its territorial limits and within those of a different sovereignty.
    Service of citation issued by a Court of this State, cannot be made in a foreign country by tho American Consul.
    APPEAL from the Second District Court, parish of Orleans. Tissott J.
    J. L. Tissot for Plaintiffs and Appellees :
    Dumas has always had his domicile in the City of New Orleans, where he was born and married, though his residence has been temporarily in Prance. It is only the political, not the civil domicile, which is forfeited by an absence of two years. Dumas never acquired a domicile in Prance. Even if he had forfeited his domicile here, still the suit must be brought befe re the Court of his last domicile.

      Dvery interdiction must be pronounced by the judge of the domicile of the person to be interdicted. O. 0. 392 ; Nap. 0. 492 ; O. P. 162, 924.
    'She' personal statute follows the party into a foreign country. Fcelix, Droit Internal. Privé, vol. 1. Demolombe, vol. 1, Nos. 98 and 99. Wheaton, Internat. Law, p. 172.
    Personal service of Citation was made on Dumas by the American Consul in Paris. Intervenors cannot urge defenses personal to Defendant. 21 An. 118 ; 13 An. 222 ; 8 Eob. 123 ; 8 M. 55.
    C. E. Schmidt and Armand Pilió for Intervenors and Appellants :
    It is the duty and the right of Intervenors, as presumptive heirs of Defendant, to intervene. C. C. 390; C. P. 389.
    Dumas had clearly no domicile in this State. C. C. 46 ; 29 An. 253. Dr. Wharton, Law of Domicile, p. 6 and 8 ; Story, Conflict of Laws, \ 46 and 147 ; 14 How. 423; 16 Wall. 73.
    He might have had a domicile in France though he had taken no steps, under the French law, to become a French citizen. Laurent, vol. 2, pp. 94 and 95.
    If he were one of the class of persons who belong to no country, ex necessitate the French Courts, of the place of his actual residence, would have acted upon the demand for his interdiction. Laurent, vol. 1, l 369.
    The Second District Court could have no jurisdiction, the law requiring that the Defendant should reside or be domiciled in the place where he is sought to be interdicted. O. C. 392,393, 425. No such suit can be brought where he resides out of the territorial jurisdiction of the Court.
    No constructive citation can be made in a suit for interdiction. The law contemplates that the domicile at which the defendant may be sued shall not be a mere domicilium originis, but an actual domicile, domicilium habitationis.

    The Second.District Court could not issue process beyond its territorial jurisdiction. Story, Conflict of Laws, l 539.
    United States Consuls have no authority to serve citations.
   The opinion of the Court on the Merits and on Eeliearing was delivered by

Berjmudez, C. J.

The correctness of the j udgment rendered by the Court a qua, interdicting Joseph Dumas, is questioned in this Court* and its reversal, with a dismissal of the suit, is urged on the following grounds;

1st. That the Second District Court had no jurisdiction of the domicile, or person of the defendant;

, 2d. That if it had, Dumas was not legally cited to appear before that tribunal.

The suit was brought by four of the children of Dumas, under proper averments of mental debility and complete inability on his part to take charge of his person and property. The petition alleges distinctly that, although Dumas be in Paris, France, at the time, his domicile is in New Orleans, the place of his nativity and marriage, and that he is a citizen of the United States and of Louisiana.

Under that representation of facts, the Court assumed jurisdiction-, citation issued, and was served in Paris personally on Dumas. Some two months and a half after notice of the suit had been thus signified to Dumas, it being shown that he made no appearance in person, by counsel, or otherwise, the Court appointed a curator ad hoc to represent him in the proceedings.

The remaining two children of Dumas intervened in the suit, resisting the demand for his interdiction. Exceptions were filed to their intervention, but they were not urged, and were not passed upon by the; lower court. The case was decided on its merits. No motion to dismiss the appeal was made in this Oourt. The exceptions must be considered as abandoned — the more so as there was no judgment in the lower court overruling them, and no amendment was, and could be, asked here in the absence of any judgment touching them which we could be called upon to review. Their legal status does not appear to be at all questioned here. We deem, however, that the children who have thus intervened had a right to make the appearance they did, for the reasons,, that the case was one of public order; one in which the liberty and property of their father were involved ;• one in which questions of great importance to the family were to be agitated and determined, and in which they were justified in feeling a deep'and important, though remote interest, as presumptive heirs. They surely could have brought-the suit; they could have joined the petitioners ; why should they not be permitted to resist an application of such magnitude, which, if granted, might work irreparable injury, as the judgment could not be-suspended by appeal ? B. C. 0. 895.

The case having been put at issue, was tried and judgment was rendered incapacitating Dumas.

1. In order to ascertain whether the'lower court had jurisdiction: over the matter presented, it is necessary to inquire whether Dumas was at the time of the institution of the suit domiciled within the territorial: limits of that tribunal.

Article 392, B. C. 0., provides that “ every interdiction shall be pronounced by the judge of the domicile or residence of the person to be interdicted.”

It is in proof that Dumas first, voluntarily, left New Orleans in 1817, with his family, and moved to Paris, France, where he established himself and lived up to 1862 or 1868, when he returned to New Orleans, sojourning there until 1866, when he again voluntarily left for Paris. He continued to reside in that city afterward up to 1879, when the interdiction proceedings were commenced here, and did not cease to live there subsequently.

Article 46 of the R. C. C., which is a re-enactment of act of 1855, p. 331, provides that a voluntary absence of two years from the State, or the acquisition of residence in any other State of the Union, or else-lohere, shall forfeit a domicile in the State.

We are fully satisfied from the evidence that Joseph Dumas was, from the beginning, unwilling to continue to have his domicile in New Orleans ; that he intended to go and establish himself abroad, and that in point of fact he did do so, most unequivocally, without entertaining the remotest determined idea of returning to Louisiana. I-Iis absence was voluntary, for quite a number of years. The conclusion is irresistible, that lie forfeited his domicile here, even if he acquired none in France ; and that the lower court had no jurisdiction over him, and, therefore, over the suit brought to interdict him.

See State vs. Poydras, 9 A. 167 ; Blake vs. Nelson, 29 A. 263 ; Evans vs. Payne, 30 A. 498, 602.

II. Assuming, however, that he had not lost his domicile here, and that his residence in Paris was only temporary, the question arises, could the Second District Court extend its jurisdiction over him, while he was in Paris, for the purpose of the interdiction suit brought here ? As a rule, courts have no right to issue their process beyond their limited judicial sphere of action, but there are cases in which they may do so within the boundaries of their sovereignty, within which they are established, and the exceptions are well defined. 9 R. 348 ; 8 N. S.; 11 L. 129 ; C. P. 129, and other articles.

It seems to us that when the law requires that “ every interdiction shall be pronounced by the competent judge of the domicile or,residence of the person to be interdicted,” it contemplates that sucii domicile or residence should be, as a rule, the place of abode of such person, the locus habitations, the place where the body can be found and reached, within the territorial limits of the court itself, and, as an exception, the place of the bona fide abode, intentional or accidental, of such person within the national boundaries of the sovereignty which the court rep-’ resents.

The reason of this is obvious, and it is this, that a personal view and inspection of the person whose insanity is alleged is not only proper, but eminently necessary, when practicable, in order that upon -the testimony of the witnesses, the report of the medical experts or ■other suitable evidence, the interrogation of the party, the judge may, •at the very moment of the rendition of the judgment, have it in his power to see and decide for himself whether his decree will or not bear upon a person compos vel non. R. C. C. 417, 423-425. In fact, it is made the duty of the judge, even after interdiction, to visit him whenever he shall deem it expedient. The court is required to appoint a superintendent, who is to have free access to the party, in order to inform the judge frequently of the state of health of the person interdicted, and of the manner in which he is treated. R. 0. 0. 424. The person interdicted is not permitted to be taken out of the State without ■a judicial order granted on the advice of a family meeting, and the sworn opinion of two physicians that they believe the departure necessary to the health of the party. R. 0. O. 423.

If a court, having jurisdiction ratione materice, sitting in New Orleans, has the power of sending its process, in an action essentially personal, beyond its territorial boundaries to be served on a party living within the limits of the imperiam of a sovereignty altogether distinct -•and independent, as in the present instance, in Paris, France, it could on the same principle exercise a similar prerogative touching a person ■established in China, or Patagonia, or any other like country.

“No sovereignty, says Judge Story in his Conflict of Laws l 539, can ■extend its process beyond its territorial limits to subject either person -or property to its judicial decisions. Every exertion of authority of this sort beyond this limit is mere nullity, and incapable of binding such •persons or their property in any other tribunal.”

See, also, xVllard: Chose Jugée, 331.

Eoelix, Droit International Privé, 1.11. 39.

Merlin 2 D. vo. Jugement, \ 14, No. 1, 3d ed., vol. IV., p. 20.

Rorer on Inter. State Law, p. 10, 167, 168, and notes.

Courts should never assume to render judgments which, in any given instance, it would be impossible for them to have executed by their own officers, or officers under their control, or officers of a distinct nationality, by comity. How, in the present instance, could the Second District Court have its judgment enforced in Paris? Assuming that it had jurisdiction over the case, that it could have cited the defendant •there, as was done, its j udgment, until then dormant only, could not be •carried out in France, without being first subjected to revision, and •even then without confirmation by vivification, by the constituted judicial local authorities. In the event of any refusal on their part to -co-operate, in the absence of any comity between the two countries, the '.Second District Court would be powerless to have its judgment enforced in France, whether to have Damas confined in a sanitary institution, or-placed under the control of some designated person, or to have his property there, even if movable, administered upon by a curator, appointed and qualified here.

It appears that the attempt was made to have Dumas interdicted by the competent tribunal -in Paris, but that ex officio it declined jurisdiction, ratione persoimrum, the parties being foreigners, the Court being aware, however, of the institution of the interdiction proceedings in New Orleans.

We understand that the correctness of that ruling is assailed, and that the case is pending before the Court of Appeals in Paris. However singular it may appear to as. whether it shall be reversed or confirmed there, is a question with which we do not propose to deal, as wears not called upon, and have no authority to review it. Had a j udgment been rendered there interdicting Dumas, and were a proceeding-pending before us for the execution ol" such j udgment here, we would then have an opinion to express.

If the ruling of the French court and our own views be correct,, however different or contrary they may appear, it would result that Dumas, although unquestionably insane, would be interdicted neither-by the court having jurisdiction of his person nor by that having jurisdiction of his admitted last domicile, and of his property.

If the case before the court be one for which no legal provision was made, the fault, if there be any, is not with the judiciary, who can expound the laws only as they find them, whatever consequent embarrassment may follow. But there is no deficiency or hiatus in the protection which the law should afford to those who look to it for security in their person or property. It docs not necessarily follow that the creditors, or the presumptive heirs of Dumas, or any one concerned in him, or in his estate, would suffer any injury from, that anomalous condition of things. Before Dumas went to Paris he had left a power of attorney, by which he conferred unlimited rights of administration and alienation on a person in whom lie had placed liis confidence, and the authority thus-delegated, was afterward transferred to one who has appeared as a resisting intervenor in these very proceedings.

The lamentable disability with which, it is alleged that Dumas was-afflicted at the bringing of this suit, and which continued to dement him long afterward, was a mental malady, which could, — no more than-any other infirmity, — produce the effect of revoking the procuration which he had given to his agent. It could be recalled, in a circumstance like-this only by an actual, valid, judgment of interdiction. R. C. C. 3027.. The institution of the interdiction suit did not revoke the powers so entrusted. Gernon vs. Dubois, 23 An. 27.

Even could such mental derangement put an end to the mandate,, the consequence would only have been that Dumas would have ha,d tobe treated as an absentee, and his property taken care of and administered" upon as provided by law in such cases. R. C. C. art. 50 et seq.

IIL- Although the foregoing considerations would suffice to justify our decree, we deem it advisable, in view of the novel nature of this-important case, and of the character of the proceedings required in such matters, to proceed further, and to consider, somewhat briefly, the second point presented for our determination.

Conceding, arguendo, that the court could send its process beyond its territorial boundaries, to be served on a person within the limits of another distinct sovereignty, the question arises : Should not that process, to such person, there, be the same as the law would require it to be,, did that person reside within the undisputed jurisdiction of the court?

It is an unassailable proposition of law that no judgment intended to affect a person in his rights of self-control, or of administration and disposal of his property, can be validly rendered, unless, as a condition-precedent, such person has actually, by the process of the proper court, before which the demand is pending, been cited, as a defendant, in strict legal form, by service on him, either personally, or at his domicile, or by the seizure of his property.

The law has provided certain forms in which such person can be compelled, at his risk, to notice judicial proceedings against him. Unless these forms be fully observed, particularly those which serve as' a> foundation for the suit, such as a citation, the defendant can assume to ignore the steps taken against him, and the plaintiff may proceed, but at his peril, in the prosecution of his suit.

It is settled, beyond the possibility of a doubt, that it is indispensably necessary, in an interdiction proceeding, that the person sought to be declared incapacitated be cited, and that the citation should be served on him personally, if practicable, for such mode of conveying notice is eminently preferable, and that .if such service be not made, it shall take place as otherwise indicated by law. 16 L. 63 ; 1 N. S. 551; 23 A. 26.

The citation in this instance is addressed to Joseph Dumas, without-mentioning the place of his residence. It allows him ten days from service to answer, and does not appear to bear the seal of the court by whose authority it issued. The petition states that Joseph Dumas resides in Paris. Why was not the citation directed to him there ? Why did it not mention the additional delay granted by law to parties residing-at a greater distance than ten miles from the place where the court holds its sitting ? Why was not the seal of the court impressed upon the citation, to fully authenticate it ? This important summons has issued in plain. •disregard of the requirements of law. C. 3?. 179, $¡2, $5, §7; 19 L. 68. The answer, that the defendant was absent from the State, and that citations addressed to absent persons, who may be amenable by the powers of the court, are not required to be made in compliance with those provisions of the Code of Practice, would, if true, obliterate, in personal actions, these wise formalities, and leave the form of the original process to be issued in such cases at the whim and caprice of courts of justice. It is a proposition so evidently self-destructive that we cannot for a moment entertain it. The ruling in 4 L. 220, invoked by the appellees, is entitled to no application, as it was made in an attachment case, in which the proceeding is not in personam, but in rem, and where the place of residence of the defendant is not required to be known and stated. A ■suit instituted, for the interdiction of a disabled person, is essentially a proceeding in personam, as one of its objects is the deprivation of the right of self-control.

TV". Besides the service of that informal and illegal citation was made by the U. S. Consul in Paris, on the defendant. "We know of no law, Federal or State, which vests national representatives with the power of serving judicial process of State courts on parties within their sphere of representative action. "We have, nevertheless, requested ■counsel to inform us on the subject, but they have failed to do so. It ■cannot be conceived that the General Government sends representatives ■abroad for the purpose of acting as the executive officers of the different State courts in the Union. It is true that those representatives sometimes act as the ministerial officers of such courts, as, for instance, to ■execute commissions to procure testimony, and the like; but they do so ■with the special authority of State legislation, providing distinctly for -such cases. The inference, therefore, is, that, even if the citation could have issued and was valid, the service of it did not take place by the instrumentality of one authorized by law to make it.

Finding as we do, that Joseph Dumas had lost his domicile in New 'Orleans by a voluntary continued absence from it during some fourteen years, previous to the bringing of this suit, — that the court could not issue its process to one actually residing not only beyond its territorial' limits, but in a different, independent sovereignty, — that the citation issued to the defendant is informal, and'that the service of it was made by an unauthorized officer, — we conclude that the plaintiffs have brought .and carried on these proceedings and obtained the judgment assailed .here, subject to befalling contingencies.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and the same is hereby avoided, annulled, and re■versed ; and it is now ordered that this suit be and the same is hereby dismissed, at the costs of the petitioners in both courts.

On PiETmeN foe Rehearing.

We have given full consideration to the application for a rehearing, reviewing the original briefs, our own opinion, considering the points in support of the petition, and even the judgment of the Court of Appeals of Paris, filed with the petition, dealing with it, however, merely as with an argument, and in no way as evidence, for it is foreign to the record.

We remain satisfied that the Second District Court had no jurisdiction of the person of Dumas, who had forfeited his domicile here by a voluntary absence and residence in Sh'ance of seven times hoo years, and that the process of the Court was irregularly issued and served.

It is evident, from the reading of the judgment of the tribunal of first instance, in Paris, refusing ex officio to take cognizance of the merits of the suit for interdiction, that it abstained from passing on the case, not so much because Dumas was a foreigner, but chiefly because a suit' for his interdiction was pending before a court in his country. It is likewise clear, from a perusal of the judgment of the Oourt of Appeals ■of Paris, which seems to have been rendered by default, that the finding of the lower court was ordered to have force, effect, and execution for the same reasons, the appellate court assuming knowledge of the judgment of interdiction rendered by the District Court in New Orleans, and presuming its competency in the matter, and fulfillment of all legal exigencies required as conditions precedent for the validity of such proceedings.

It may be plausibly surmised that had not the fact of the pendency ■of the interdiction suit here been made known to the French court, they would not have abstained from -passing on the merits of the petition for interdiction before them, and that in acting with the delicacy which always characterizes them in such matters, they were inspired with a due appreciation of the comity of nations between, tribunals entrusted with the administration of justice within their respective sovereignties. Laurent, vol. 2, pp. 91, 95.

It is a matter of perfect indifference for the determination of this case, whether after forfeiting his domicile in Louisiana, Dumas acquired a domicile elsewhere. He might, as a bare possibility, have been during those fourteen years roaming through the world. That circumstance would not suspend the operation of the law of the State relative to the forfeiture of doth his civil and political domicile within its boundaries. Dumas, by not electing a domicile, permis ele séjonr, in France, w'here be was sojourning as a gentleman of leisure and fortune, in the enjoyment of entertainments and pleasures not to be found in the mother country, bad not the less forfeited his civil domicile in this State. By such voluntary commission and omission he belonged to that numerous-class of persons upon whom prosperity has smiled or adversity frowned,, who leave their native land going from one place to another, having no-country, sans patrie, and therefore no domicile. Laurent, vol. 1, § 369.

In the case of the State vs. Widow and Heirs of Poydras, 9 A. 167, in which the State recovered from the children of Poydras, in the shape of a ten per cent tax on inheritances accruing to heirs residing abroad the sum of fifty thousand dollars, the court expressly held : that, “even if he (Toy dr as) acquired no domicile in France, he had forfeited his residence in Louisiana by a voluntary absence from this State of two years,’7 and that “ if the father had lost his residence, his children born abroad * * * cannot be held to be residents of this State or domiciliated therein.’7

We have not been shaken in our convictions by the considerations again submitted to us on the petition for a rehearing.

It is therefore ordered that said petition be refused, and that our previous judgment remain undisturbed.


author: Fenner, J.

text:
    No. 7904.
    Dan. A. Wilson vs. P. S. Wiltz.
    Articles 258 and. 259 of the Constitution of 1879 construed.
    Under tlieir provisions, the terms of office of incumbents at the time of the adoption of the Constitution, are only continued until their successors are appointed and qualified, and no longer. The Decision in Sigur vs. Crenshaw, 8 An. 401, re-affirmed.
    The Public Administrator of the Parish of Orleans is embraced within the terms “ officers of the State.”
    ^PPEAL from the Sixth District Court, parish of Orleans. Mghtor,
    Spencer & White, Robert Mott, and F. B. Lee for Plaintiff and Appellant :
    The office of Public Administrator is purely statutory, and, in no sense, the offspring of the Constitution.
    The recent Constitution has not proprio vigore vacated the office. It has not in terms repealed any thing but the Constitution of 1868. As to statutory laws, it only repealed such as were inconsistent with the new organic structure. Cooley, Const. Limit, p. 37, chap. 3,1st edit.; 2d Martin, 163; Jamison on Constitutional Convention, sec. 102; Articles 258 and 259, Const, of 1879. There is no conflict between the law creating the office of Public Administrator and the present Constitution.
    The Public Administrator of the Parish of Orleans is not a State but a Parochial officer.
    The Governor cannot any more Remove a public officer eor cause. Under the present Constitution the power to do so is now vested in the judicial department of the Government.
    Breaux & Hall for Defendant and Appellee :
    1. The constitution of 1879 supersedes the former constitution, and intends that all incumbent officers shall hold over only until their successors are appointed, and no longer.
    Constitution, 1879, Acts 257, 259.
    Constitution, 1852, Art. 144.
    Bermudez vs. Ibanez, 3 M., O. S., 3.
    Dufau vs. Massicot et al., 3 M., O. S., 291.
    Sigur vs. Crenshaw, 8 An. 400.
    Baumbac vs. Duroc, 9 An. 237.
    See, also, The State exrel. Oheevers vs. Duffel, just decided.
    2. Where a law has been judicially interpreted, and is re-enacted iisclem verbis, it affords evidence of the concurrence of legislative will in the construction given to it. Art. 259, Constitution 1879, and Art. 144, Constitution 1852, the same.
    King1 vs. Lastrapes, 9 A. 446.
    State vs. Ross, 14 A. 366.
    James vs. Thompson, 12 A. 174.
    La Selle Bros. vs. Whitfield, 12 A. 81.
    (a). Stare Decisis — New Orleans vs. Grailhe, 9 A. 567.
    3. The Governor has the power to remove all officers appointed by him for cause, and the power being discretionary, is not the subject of control or revision by the Courts.
    Act 1877, p. 191, Ex Session. See, also, p. 80, Regular Session.
    25 An. 120, 396 ; 26 An. 537.
    28 An. 49, 466.
    4. The last commission issued is the one legally in force.
    Dubuc vs. Yoss, 19 An. 211.
    25 An. 74.
   The opinion of the Court was delivered by

Fenner, J.

The plaintiff having been appointed, by the last Governor of the State under the constitution of 1868 to the office of Public Administrator for the parish of Orleans, brings- this action against P. S. Wiltz, who has been appointed and commissioned to thg same office by the present Governor of the State under the constitution of 1879. Plaintiff claims that his tenure of office is not abridged by the constitution of 1879, but continues until the expiration of the term for which he was appointed, to wit: four years from the fifth day of March, 1878 ; and he prays for an injunction restraining defendant from attempting to exercise the duties of the office .and from claiming to be in possession o£ said office.

Defendant answers, averring the legality of his own appointment1 and commission; asserting his title to the office; and praying that plaintiff’s claim be rejected, and for a decree recognizing him, defendant, as entitled to the office.

The question presented involves the proper construction of articles 258 and 259 of the present constitution. They are an exact reproduction-of the articles 143 and 144 of the prior constitution of 1852. In the organization of the government under this last-named constitution, precisely the same question arose and was decided by this Court in the case of Sigur vs. Crenshaw, 8 An. 401. The conclusion reached by the majority of the Court was that the proper construction of those articles continued the terms of existing incumbents of offices only until their successors were appointed and qualified, and no longer. The briefs printed with the case in the Reports show that the question received able and exhaustive argument. The several opinions of a divided Court leave no doubt that the subject received the earnest attention of the Court. It is a proper inference, and is, without doubt, a historical fact, that the entire organization of the government under the constitution of 1852 was effected in accordance with the doctrine of this decision. No doubt all pending controversies as to offices were settled in consonance thérewith. The decision may, for aught we know, have been repeated in other cases not reported ; or, if not, it was, doubtless, because it seemed useless to prolong controversies of which the result was certain, and they were abandoned. It is not pretended that the authority of the decision was ever afterward questioned by this Court. In the only case to which we are referred, where' it was ever alluded to, Baumbach vs. Duroc, 9 A. 237, it cannot be denied that is treated as settled doctrine.

Mr. Cooley says that “ where a particular clause of a constitution has been adopted in one State from the constitution of another, after a judicial construction had been put upon it in such last-mentioned State, it is but just to regard the construction as adopted as well as the words;” and in support of this reasonable doctrine he cites many authorities.

Cooley on Const. Lim. p. 52.

How much stronger is the application of this principle in a case like the one at bar, where the clause is taken from a prior constitution of' our own State which had been construed by our own courts !

It must be admitted that the language of the articles referred to is not perspicuous, and the grammatical construction of the sentences is-not artistic; but, knowing the difficulty of so framing expressions as to convey a meaning beyond the reach of artful question, the Convention-might well have thought it safest to adopt the very language of a previous constitution, which had already passed the ordeal of judicial construction.

Ear from considering the construction adopted by the court in Sigur vs. Crenshaw absurd, we are quite sure that, while difficult to answer verbal grammatical criticisms, it gave effect to the true intention of the-framers of the constitution of 1852; and we have not a shadow of doubt that in adopting it we shall not only conform to correct principles in applying the doctrine of stare decisis, but shall also truly appreciate the-intention of the recent Convention.

We think the Public Administrator is embraced within the terms- “ officers of the State,” as used in the article 259. He holds his office-directly from the State under appointment by the Governor of the State, and gives bond in favor of the State. His functions are regulated exclusively by the general laws of the State. He derives no power directly or indirectly from the parish or from the people thereof. He has no connection of any kind with the parish or municipal government,, and exercises no functions having reference to such government, or any connection whatever with parochial or municipal affairs. Although he may only administer upon successions lawfplly opened in the city of New Orleans, his authority over property belonging to such successions is co-extensive with the limits of the State ; and, quoad such property, he-may perform the functions of his office in any parish of the State.

Because he is called Public Administrator of the Parish of Orleans ” is no better reason for calling him a parish officer than would exist for calling our learned brother who decided this cause a parish officer, because he is called “Judge of the Sixth District Court for the-Parish of Orleans.”

It is therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed at appellant’s cost.