author: j Howell, J.

text:
    No. 2277.

    E. W. Blake, Administrator, v. Bank of Louisiana et al.
    After a court lias been ouco vested with, jurisdiction of a cause, the sale of tlie claim to a third party does not operate a divestiture of jurisdiction.
    APPEAL from the Fourth District Court, parish of Orleans. Tliéard, J.

      W. B. Koontg, for plaintiff and appellant. Miles Taylor and James Brewer, for defendant and appellee,
   j Howell, J.

An alias writ of seizure and sale having issued from the Fourth District Court of New Orleans, in the name of the Bank of Louisiana, at the instance of its assignees, David McLeod and the executors of F. G. Nichols, against Williams & Savage, and the sheriff of tlie parish of Lafourche, having seized the property, a plantation in said parish, subject to the mortgage, the plaintiff, as administrator of the succession of Savage, one of the mortgagors, enjoined the sale, on the grounds that the. said F. G. Nichols, as the administrator of the succession of one A. S. Britton, the vendee of the interest of Williams, the other mortgagor, managed said plantation, and received the proceeds of the crops for several years, without accounting therefor; that in purchasing the claim from the bank, lie used the funds then in his hands, belonging and due to tlie succession of Savage, which is entitled to the benefit of said purchase, Nichols, as agent, not being in a position to purchase the claim for himself; that the purchase was one of a litigious right, and the debtors can be discharged by restoring the sum paid; that the bank could not delegate the chartered right to proceed by executory process against a succession, and, finally, in the form of an exception to the answer of the assignees of the bank, that the parish court of Lafourche alone has jurisdiction of the matters in controversy. On the point raised by the exception, it is contended that the right to invoke the jurisdiction of the Fourth District Court of New Orleans was conferred by the charter and is. personal to- the bank, and there being no act importing a confession of judgment, tlie transferrees must proceed, via ordinaria, in the tribunal of the domicile.

In reply to this, it is sufficient to say that the Fourth District Court-of New Orleans was vested with jurisdiction of the cause, when the bank sold the claim to McLeod & Nichols, and this jurisdiction was not thereby divested. The purchasers merely caused an alias writ to-issue in the suit pending, which they had the right 'to do by the express terms of the act of sale. The case of Robb v. Potts, 2 An. 552, was-one in which the rights of Municipality No. 2, against a property holder for contribution in the opening of a street, were involved, and does not sustain the position of plaintiff, that the right to an executory process upon a special mortgage does not pass with the sale of the claim secured by the mortgage. It is unnecessary to decide whether-the bank, in this case, could transfer a purely chartered privilege. The sale by the bank to McLeod & Nichols is not a sale of a litigious right, within articles 2622 and 2623, C. C.; and the record, does not sustain the charge that Nichols used tho funds of the succession of Savage, in making the purchase, or that he was in a position not to buy for himself.

Judgment affirmed.

Mr. Chief Justice Ludeling and Mr. Justice Wyly absent.


source: Caselaw Access Project

author: Howe, J.

license: Public Domain

text:
    No. 2601.
    Victor Buron v. Albert G. Cage, Sheriff, etc.
    In this case a rule is taken by the purchaser of property at public sale to compel the sheriff to make a title. The sheriff answered that the purchaser claimed to be a first mortgage creditor on tho property sold to a large amount, and offered the balance after deducting tho amount of his mortgage; that tho other mortgage creditor had filed oppositions contesting the rank of the purchaser to the first mortgage; that he could not pass the adjudication because he could not determine tho rank of mortgages. Held — That the oppositions never having been tried in the lower court could not be considered on appeal; that a decision on the rule before tho oppositions were disposed of would be premature; that in a case like this the ends of justice and the rules of correct practice require that the case should be remanded and cumulated, and tried with the oppositions.
    APPEAL from tlie District Court, parish of Terrebonne. Train, J.

      J3. D. Burguieres and JS. W. Blalce, for plaintiff and appellee. M. 8. Goocle, for Cage, sheriff. Taylor Beattie, for intervenors and appellants.
   Howe, J.

This proceeding is founded on a rule taken by the plaintiff upon the sheriff of Terrebonne, who, under a writ of fieri facias issued on behalf of plaintiff, had seized and sold certain real estate belonging-to Blanchard and Ranson, the judgment debtors.

Previous to the sale, L. H. Generes, Adolphe Perrin, the Crescent City Bank, and Mrs. Charles Gayarré, filed their respective third oppositions Qlaiming rights upon the property and its proceeds superior to those of the seizing creditor, and obtained orders in the usual form directing the sheriff to hold the proceeds of the sale subject to the trial and decision of the oppositions. These orders were served on the sheriff. When the property was offered for sale, the plaintiff, Buron, made a bid of $10,515, and the property, as appears by the return, was struck off to him. The sheriff then called on the purchaser to pay the bid. The latter refused to pay the full amount, but paid to the sheriff the sum of six hundred and eighty-seven dollars, being the amount by which the plaintiff’s bid exceeded the principal and interest of his judgment. The sheriff, as he further states in his return, “refused to make the adjudication,” and returned the writ after retaining a copy.

The plaintiff thereupon commenced this proceeding to compél the sheriff “to pass a sale of the property adjudged to Mm according to the formalities of the law, and to give the purchaser a clear and unincumbered title thereof.”

The sheriff answered setting up the facts above stated as his reasons for refusing to complete the title. A number of the opponents intervened and joined the sheriff in resisting the demand of plaintiff.

The court a qua gave judgment in favor of the plaintiff and the sheriff, G-enerés and Perrin appealed.

We are of opinion that there was error in the judgment. The third opponents, under the provisions of articles 396, 401 and 402 of the Code of Practice, procured the orders of the court directing the sheriff to retain the proceeds of the sale. The notice of these orders was given to the sheriff before the sale, and he could not comply with them, and with the law, unless the proceeds were paid to him in full by the purchaser. The plaintiff, the highest bidder, contends that, inasmuch as the mortgage to enforce which his judgment was rendered, was first in rank on the property, he is entitled to retain its amount in his hands. It would seem that this involves a petitia principiis. The question whether his mortgage is first or not is the very question in dispute, raised by the oppositions. These oppositions have never been tried, and a decision of the case now before us would therefore be premature. We think the interests of justice and the rules of correct practice require that the case should be remanded and that this proceeding should be cumulated with the oppositions, that they may be determined together, with due regard to the rights of all parties.

It is therefore ordered that the judgment appealed from be avoided and reversed, and the cause remanded to be proceeded with according to law, and that the appellee nav the costs of the appeal.


author: IIowe, J.

text:
    No. 787.
    Succession of Pollock.
    A motion, in tlio nature of an answer to a motion to dismiss an appeal for want of proper parties, which, aslcs that the effect of the appeal he restricted to the parties who have been cited, will not he granted by the Supreme Court.
    APPEAL from Second District Court of New Orleans. Thomas, J.

      Sambola & Dacros, for opponent and apxiellant. A. Robert, for appellee.
   IIowe, J.

The appeal in this case was taken, in 1865, from a judgment dismissing the opposition of Llambias and Dockter to the account filed by the administratrix. The appellants failed to have the creditors who are interested in maintaining the judgment, cited, and a motion has been made to dismiss the appeal for want of proper parties.

In opposing this motion, the appellants have filed a written declaration, accompanied with a motion in which they ask the court to restrict the effect of their appeal, so as to render judgment against the administratrix only (she having been cited as appellee), and confining its operation to the balance left in her hands after the other creditors are paid. In this way they seek to cure what they admit to be otherwise a fatal defect.

• We are not furnished with any precedent for granting such a motion,, and, upon consideration, do not think it should be allowed.

Appeal dismissed.


author: Taliaferro, J. Taliaferro, J.

text:
    No. 1799.
    Mary Riley, wife of Frank Quirk, v. Her Husband.
    In this case tlio wife "brought suit against her husband for a separation from bod and boarcty and for her share in the community. An injunction issued against the husband, restraining him from disposing of or otherwise using the community property pending the suit., The husband gave a bond, with security, conditioned that ho would restore the community property in case it was finally decided that the wife was entitled to a separation from bed and board. On trial, it was decided that the wife have a judgment of separation from bed and board, and that the husband deliver to her, within ten days, her share of the community property, in default of which the husband and his surety on the bondi were condemned, in solido, to pay the sum of eight thousand dollars The defendant and surety took separate appeals'. Held — That, the surety, not being a party to the suit for separation, the judgment rendered against him, condemning him solidarity with the husband to pay the amount of the wife’s judgment, was a nullity as to him. It wa» further held that the judgment against the husband, being fully sustained by the evidence in the record, must be affirmed against him, with a reservation of all the right» of the wife to recourse against the surety on the bond.
    APPEAL from the Fifth District Court of Now Orleans. Heaumont, J.

      Whitaker & Hice, for plaintiff and appellee. JE. W. Huntington, for defendant and appellant. J. JO. Tissot, for Auguste Couturie, surety, appellant.
   Taliaferro, J.

This is a suit of a wife against her husband for separation from bed and board, grounded upon the alleged cruel treatment constantly inflicted upon her by the defendant, and which she avers is insupportable, and renders it impossible for her to continue to live with him. She therefore prays judgment, decreeing a separation from bed and board; for the amount that may be found due her out of the acquets and gains that have arisen during the existence of the community between them; for an injunction restraining him from disposing of any part of the community property during the pendency of the suit, and also for the sum of one hundred dollars per month during the same period, for her maintenance and support.

The court rendered an order granting the injunction prayed for, and also assigning the house of the plaintiff’s mother for her domicile during the progress of the cause, and awarded one hundred dollars per month for her maintenance.

The defendant released the injunction, by entering into bond, with satisfactory security, in the sum of ten thousand dollars, conditioned that he would deliver the property in the same state in which it was at the time the injunction was issued, if a definitive judgment should be rendered against him in the suit.

The testimony introdncecl on the part of the plaintiff most fully sustains her allegations of ill treatment. Witnesses, whose testimony is not impeached or questioned, show the defendant to be a man of low, brutal disposition, passionate, vindictive, obscene in his language, insulting his wife without provocation, whipping her, threatening to kill her, boasting of his reputation of having killed one wife already. One of the witnesses, a female who lived in the house, stated that “ at these whippings, he kicked and struck Mrs. Quirk several times ; ” on one occasion he struck her in the face with his fist, and swelled her face; that he turned witness and Mrs. Quirk out of the house several times, using force when he did it; that, during the month of April, 1866, both the witness and Mrs. Quirk suffered for want of sufficient food; on one occasion, that the defendant took the dinner that was cooking on the furnace and threw it in the slop bucket; that he never ate at home.

On the eighth of November, 1867, judgment of separation from bed and board was rendered, and on the twenty-seventh of March following a judgment was rendered, decreeing that the defendant deliver to the plaintiff her undivided half interest in certain property specified in the judgment, within ten days from the signature of the same, and, in default thereof, that plaintiff recover from Prank Quirk and Auguste Couturie, surety on his injunction bond, in solido, the sum of eight thousand dollars, with legal interest from judicial demand until paid, with the privilege allowed by law to married women, and costs of suit. Prom this judgment Couturie, the surety on the injunction bond, has appealed.

The appellant complains of the judgment, for the following reasons: Pirst, because, from the evidence in the record, it is impossible to ascertain what effects composed the community at the dissolution of the marriage; second, the partition was not preceded by an inventory; third, the plaintiff was not entitled to a judgment for a specific sum, but for the amount found due on a settlement of .the community; fourth, the court should have ordered the mode of effecting the partition of the community; fifth, the property was not susceptible of division in kind, and a sale was necessary; sixth, the community was not charged with the debts of the defendant, nor was his separate property deducted from the common effects.

The defendant took no appeal from the judgment decreeing a separation from bed and board.

The surety, not having been a party to the last judgment, decreeing an assignment to the plaintiff of one-half the community property, or, in default thereof, the payment of eight thousand dollars, for which the principal and surety were held bound solidarily, the judgment is null, as to him.

It is therefore ordered that the judgment of the lower court, as to the appellant, be annulled, avoided and reversed. It is further decreed by this judgment that all the rights of the plaintiff under the bond to recover against the surety, are specially reserved to her. It is further ordered that the plaintiff and annellee pav the costs of this appeal.

On Application for Rehearing.

Taliaferro, J.

In this case, our attention being called to an omission of the court to pass upon the appeal taken by the defendant, Quirk, from the judgment rendered in the lower court against him and his surety, Auguste Couturie, on the first of April, 1868, we now order, adjudge and decree that said judgment, so far as relates to Frank Quirk, the defendant, be affirmed, with costs.


author: Howell, J.

text:
    No. 1835.
    David Akin v. P. A. Giraud.
    A creditor of an insolvent can not urge tbe pendency of the insolvent proceedings as a suspension of prescription, and, at the same time, ignore the provisions of the insolvent laws as to the form of proceeding against his ceding debtor.
    A judicial admission made in an insolvent proceeding whereby the claim of the creditor is allowed, is prescribed by ten years.
    APPEAL from the Third District Court of New Orleans. Emerson, J.

      Thomas Eunton, for plaintiff and appellant. Buchanan & Gilmore, for defendant and appellee.
   Howell, J.

The plaintiff alleges that prior to 1841 Champomier & Giraud, commercial partners, made a cession of their property to their creditors; that he was placed on their hilan as a creditor for two sums, evidenced by notes of Giraud indorsed by the firm and secured by mortgage on certain property which was sold, and the proceeds thereof allowed and paid him as a credit on his claim upon a tableau of distribution, which was homologated on the twenty-eighth January, 1841; that said notes are lost, but are merged in the said judgment of homologation; he is a judgment creditor of defendant for said claim; that the defendant lias come to better fortune and is possessor of a large estate; that in the beginning of the late rebellion defendant promised to pay said claim, if successful in certain cotton operations then pending, in which he was successful; that defendant now resides in France, but has property here, and he prays for a writ of attachment and for judgment for said two sums, with interest, less the credit allowed on the twenty-eighth January, 1841.

The answer is a general denial and the prescriptions of five, ten and twenty years. Judgment was rendered sustaining the plea of prescription, and plaintiff appealed.

No exception was made to the ri»ht, form or uncertainty of action.

If plaintiff bases his action on tbe notes,’it is prescribed by tbe lapse of five years. If npon tbe judicial acknowledgment of the debt in tbe insolvent proceedings, the claim is prescribed by ten years. If be bo a judgment creditor of tbe defendant, there is no basis for another suit, as this is not a suit to revive a judgment, which was. besides long since prescribed, if it ever existed.

The plaintiff can not urge tbe pendency of the insolvent prooeodings as a suspension of prescription, and, at the same time, ignore the provisions of tbe insolvent laws as to tbe form of proceeding against his ceding debtor. See C. C. 2173; 8 R. 205; 10 An. 255.

It is true tbe State insolvent laws are superseded by tbe bankrupt law of 1867; but we are referred to no provision of law, and we know of none, ''by which the plaintiff is in consequence remitted to bis ordinary remedy on the balance of a claim embraced in tbe insolvent proceedings. To grant him such a remedy would be inconsistent with tbe laws of insolvency and prescription.

As set out in the pleadings, plaintiff’s demand is prescribed, and hence the parol proof of a new promise to pay, was properly excluded.

Judgment affirmed.

Rehearing refused.


author: Taliaferro, J.

text:
    No. 2976.
    The State of Louisiana, ex rel. A. & X. Bernard, v. The Clerk of the Sixth District Court of New Orleans.
    Clerks of district courts are not permitted to demand tlie fees from tlie defendant for making a transcript of appeal in a case where judgment lias been given in favor of tbe plaintiff and the defendant appeals.
    The act of 1870, page 161, which regulates the fees of clerks for making transcripts of appeals and authorizes them, upon complying with certain formalities, to issue execution against 'the principal and security for costs, has reference only to the party filing the suit, and applies to all costs to which clerks oi district courts are entitled.
    APPLICATION for a Writ of Mandamus.

      Sambola & JDuoros, for relators. William Woelper, Clerk, respondent.
   Taliaferro, J.

The petition of the relators sets forth that a judgment having been rendered against them as defendants in a snit instituted in tbe Sixth District Court of New Orleans by E. T. Parker, they applied for and obtained from that court an order granting them a suspensive appeal and filed a sufficient bond in conformity with law ,- tbat tbe transcript of appeal was made out in due time and has been for some time ready, but that tbe clerk of tbe court refuses to deliver tbe same to them unless tbe costs for making out tbe transcript be first paid by the relators, who are thus deprived of their right to prosecute tbe appeal taken by them

In answer to the rule served upon tbe defendant to show cause, be-, proceeds at some length to state the practice of tbe clerks of all tbe. courts of New Orleans to look to parties who order copies for any purpose for the costs of such copies, aud to detail the reasons upon which that practice is founded. We are referred to no law which authorizes clerks of district courts to claim the costs of transcripts of appeal in advance from defendants who appeal from judgments rendered against them. We have not to consider the propriety or impropriety of the custom which the defendant refers to, but rather to be governed by what seems to be the meaning and purport of the enactments of the Legislature on the subject of clerk’s fees. The act passed at the regular session of 1870, found at page 161, entitled “An Act to regulate the costs of clerks, sheriffs, recorders and notaries public throughout the State of Louisiana,” etc., prescribes the fees of district clerks for making transcripts of appeal, and authorizes them, upon complying with certain formalities, to issue execution against the principal and security for costs. This obviously has reference to the party filing the suit and applies to any and all costs to which the clerks of district courts are entitled. We find no sufficient reason to depart from the ruling in the case of the State, ex rel. A. Kearny, v. The Clerk of the Seventh District Court of New Orleans, decided in May last.

It is therefore ordered that the rule be made absolute, the defendant paying costs.

Mr. Chief Justice Ludeling and Mr. Justice Wyly absent.


text:
    No. 1970.
    Jacob Hawkins v. B. Wiel and J. Madison Wells.
    The hurdon of showing a failure of consideration of a promissory note falls on the party who alleges it, and if the maker sots up this defense against the holder in a suit to enforce it, the failure to make good his defense, by evidence, on trial in the lower court, is sufficient to authorize the appellate court to give damages against him for a frivolous appeal.
    APPEAL from the Sixth District Court of New Orleans. Cooley, J.

      Kawlcins & Msli, for plaintiff and appellee. Cotton <& Levy, for defendant and appellant.
   Taliaferro, J.

The plaintiff sues Wiel as maker, aud Wells, as indorser, of a promissory note for two thousand dollars, made payable to Wells ninety days after date, being dated twenty-sixth of December, 1866, and stipulating interest at eight por cent, per annum from date. On the petition is indorsed the following :

“ I waive citation and service of petition in this caso — waive domicile and notice of protest.”

(Signed) “ J. Madison Wells.”

The defendant Wiel alone answered. He denies that the plaintiff is the Iona fide holder in Ms own right of the note sued on, which being non-negotiable, he sets up an equitable defense against, averring a failure of consideration.

Judgment was rendered in favor of the plaintiff for the amount sued on as to Wiel, and against him as to Wells, the case in regard to the latter being dismissed as of nonsuit.

The appeal is taken on the part of Wiel.

We see no error in the judgment.

The instrument sued upon expresses upon its face that it was given for borrowed money.

On the part of the defendant, Wiel, there is an entire failure to ■establish the allegations contained in his answer.

The plaintiff prays this court to award him damages for a frivolous appeal, and we think the case warrants us in granting them.

It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed. It is farther ordered that the defendant, Wiel, pay the plaintiff the further sum of one hundred and fifty dollars as damages for a frivolous appeal.

Mr. Chief Justice Ludeling and Mr. Justice Wyly absent.


text:
    No. 2139.
    Jilson P. Harrison v. Esther B. Meyer, Testamentary Executrix, etc.
    An action for rent is prescribed by three years. C. C. 3503.
    A suit that has been eommouced and afterwards voluntarily discontinued by the plaintiff does not interrupt the current of prescription. C. C. 3485.
    A military order which permitted the bringing of suits for rent, but suspended the progress thereof, can not be invoked by the lessor to defeat tne pica of prescription.
    APPEAL from the Second District Court of New Orleans. JDmigneaud, J.
    D. O. Labatt and J. 0. Harrison, for plaintiff and appellant. Boselius & Philips, for defendant and appellee.
   Howe, J.

This action was brought for rent, the last installment of which is alleged to have fallen due August 8, 1865. Citation was served December 7, 1868, and the plea of prescription of three years filed by the defendant was therefore correctly maintained by the ■district judge. C. C. 3503.

The property in question was seized by the government of the United States daring the late rebellion, and the tenant, Miller, of whom the defendant is executrix, was made to pay rent to the United States. An action similar to the present was commenced in November, 1865, to compel Miller to pay over again to plaintiff, but was discontinued by plaintiff. The discontinuance was voluntary and the suit therefore did not have the effect to interrupt the current of prescription. C. C. 3485.

The plaintiff contends that he was compelled to discontinue by military orders, and invokes a modification of the rule contra non valentón, etó. The first of the orders in question was issued in 1864, and merely suspended tlie progress of suits of a similar character then pending. The second, issued in September, 1865, was also general in its scope, and contained nothing which could be held to have compelled the plaintiff to discontinue. It does not appear to have prevented him from beginning his action two months after, in November, 1865, and we find nothing in it which could compel the abandonment of the same.

Judgment affirmed.

Mr. Chief Justice Ludeling and Mr. Justice Wyly absent.


author: Ludeling, C. J. «dlowELL, J.,

text:
    No. 2901.
    The State of Louisiana, ex rel. Southern Bank, v. The Judge of the Eighth District Court, Parish of Orleans.
    Tho Chief Justice of the Supremo Court, or the senior Justice thereof, may, in vacation, on application for a writ of mandamus against a court of inferior jurisdiction, grant a rule nisi against such judge, ordering him to show cause on a day fixed at the next regular term of tho court, why the writ should not isssue.
    A rule nisi or order of the Supreme Court, directing a court of inferior jurisdiction to show causo on a day fixed, why a writ of mandamus should not issue compelling him to grant an appeal in tho case, is not a judgment of tho court. Therefore, such order may he granted in chambers and signod by the Chief Justice or the senior Justice thereof.
    Tho Supreme Court has appellate jurisdiction only, and the right of appeal is seemed to every litigant by tho constitution. It therefore becomes the duty of the Supreme Court to rotect litigants against all encroachments upon this right by inferior jurisdictions.
    APPLICATION for Writs of Mandamus and Prohibition.

      Mays <& New, for Emerson, Judge of the Third District Court, presiding in the Eighth District Court. John M. Msley and Thomas Gilmore, for relators.
   Ludeling, C. J.

In August last, after the Supreme Court had adjourned, an application in the above entitled cause, addressed to the Supreme Court of the State of Louisiana, was made to the Chief Justice for writs of mandamus and prohibition against the judge of the Eighth District Court of the parish of Orleans (C. M. Emerson, judge of the Third, then presiding in the Eighth), to compel him to grant an appeal in the ease of The State of Louisiana ex rel. Jacob Strauss v. Southern Bank, and to prohibit him from executing the judgment rendered, until the final disposition of the application for an appeal.

The application having been made in vacation, the Chief Justice granted the provisional orders and fixed a day for the trial thereof, at the next regular term of the Supreme Court,

On the day fixed, the judge failed to show cause; hut Jacob Strauss appeared by counsel, and for answer said: “The writs herein have not been issued by this honorable court, but by one member thereof in vacation; and that tbe same is not authorized by law.”

In substance, the argument of the counsel for Strauss is, that these writs can only be issued by a court or tribunal, because in the various articles of the Code treating on this subject, the power is not conferred upon the judge or judges, but upon the court or tribunal of competent jurisdiction, and he refers to articles 829, 837, 839, 845, 847, 848 and 184, Code of Practice. And he asks, What constitutes the Supreme Court ? Article 73 of the constitution is not ambiguous; a majority of the parties constitute the court, and no judgment can be rendered except three of the Justices concur. But it is equally clear that no judgment can be rendered by the court except in open court; whereas, the practice has always been to issue these orders nisi, in chambers, the Chief Justice or senior Justice present signing them. It is because they are not judgments, but orders in the nature of citations or summonses, that the practice has grown up. If the position of the defendant be correct, these orders should only be granted in open court.

But an examination of the law will show that the practice of issuing these orders in chambers, under the signature of the Chief Justice, is not in violation of law. Article 829 of the Code of Practice, relied on by the defendant, declares that a mandamus “ est un orcire rendu mi nom de VJEtat par, un juge de jurisdiction competente,” etc., “is an order granted in the name of the State by a judge of competent jurisdiction.” The French text should control.

“ It is a matter of notoriety in the profession, and has been frequently recognized by this court, that the Code of Practice was originally written in French, and that the English translation was very negligently executed, the consequence of which has been many gross faults of translation and perversions of the meaning of the legislator, in the English text.” 9 An. 12, Mills v. Jones. Article 831, Code of Practice, declares this order may be issued at the discretion of the judge. This article is correctly translated.

Article 830, Code of Practice, declares the object of the writ of mandamus to be “to prevent a denial of justice,” etc., and directs that the judges of “ the district and parish courts shall have the right to try a mandamus in chambers during the recess of said court.” Other judges may issue the orders, but not try them, in chambers.

The right to appeal is granted by the constitution, and it is the duty of this court to protect litigants against all encroachments upon this right by inferior courts. The Supreme Court, as well as other courts, possesses the powers which are necessary for the exercise of the jurisdiction given to it by law, in all the cases not expressly provided for by the Code. C. P. 877.

When, in the progress of a suit, a necessity arises for the application of these writs, and the Supreme Court is not in session, ex necessitate rei, the Chief Justice or the senior Justice present should grant the provisional order. Any other interpretation of the law would do violence to the clear intention of the lawmaker and to justice.

It is therefore ordered that the mandamus be made peremptory, and that the prohibition be made perpetual.

«dlowELL, J.,

concurring. I had entertained the opinion, formed after an examination of the articles of the Code of Practice on this subject, that the order for a provisional mandamus must issue from a court, and that, as one of the judges of this court is not the court, he was without adequate authority to issue the order in the absence of the other judges, or enough to constitute a quorum. And I had grave doubts, whether, under existing legislation, the court could act, even for this purpose, in vacation; but as cases of pressing necessity do arise, and I do not see that any serious inconvenience can result from the practice recognized in the present ruling, I yield my views to the more mature opinion of my brethren.

It is very properly inferred that, if a court has the power to issue a writ of mandamus, it is vested with the power to take all neepssary incipient and preliminary steps to accomplish that end, at any time, if not contrary to express law, which it may deem requisite; and it may well be inferred that, as one of the judges in granting the preliminary order, acts in the name of the court, it may be considered the act of the court, until the court formally sets it aside. For this «reason, and without expressing an opinion upon the question, as to whether or not the French text must prevail, I concur.


text:
    No. 2830.
    F. C. Mahan v. Sundry Defendants.
    'The aot number thirty-five, approved sixteenth of March, 1870, which appropriates two thousand dollars for the payment of costs in suits, where the State is a party, and loses the case, does not apply to the payment of costs in suits brought by tax collectors to enforce payment of taxos against delinquents. Therefore, the Auditor of Public Accounts is not authorized, nor can he be compelled, by mandamus, to warrant against this appropriation, in favor of a clerk of a district court for his costs that have accrued in suits brought by tax collectors, to enforce the payment of taxes due the State.
    APPEAL from the Fourth District Court, parish of Orleans. Théard, J.

      Breaux & Fenner, for plaintiff and appellee. Homor & Benedict, for defendants and appellants.
   Howell, J.

The State of Louisiana has appealed from a judgment ordering the Auditor to issue a warrant in favor of the clerk of the Fourth District Court for the parish of Orleans, on the State Treasurer, for $861 78, costs in certain suits, “payable out of the two thousand dollars appropriated by the General Assembly to pay costs in suits, where the State loses the case, per act number thirty-five, approved.. sixteenth March, 1870,” which reads: Appropriation to pay costs in suits, where the State loses the case, two thousand dollars ($2000), or so much thereof as may he necessary.”

The facts are as follows: The State tax collector of the First District, city of New Orleans, filed various petitions in the Fourth District Court, asking for the appointment of a curator ad hoe to represent the parties severally named in the petitions as owners of property, in any proceedings which he may institute or acts done in the enforcement of the collection of the one per cent, tax assessed upon such property. This appointment was made and notice thereof given, after which the clerk took a rule on the collector, Auditor and Attorney General, to tax his costs in the said proceedings, and have a warrant issued for the same, which rule was amended in amount and made absolute.

It is contended in behalf of the State that the court a qua erred in directing a warrant to issue upon said fund, because the costs claimed were not embraced in said appropriation, the State not having lost the cases in which they accrued. That this appropriation was not intended to cover costs in such proceedings seems to us manifest. These were proceedings instituted by only one of the many tax collectors in the State, and the amount ($1355) claimed by this clerk alone, would absorb more than half, and the sum allowed is nearly half of the whole appropriation. It is presumable the Legislature would have fixed an amount more nearly proportioned to the costs which must necessarily be incurred in tax suits. But more than this, these can not, in the sense of the act quoted, be considered cases lost by the State. They seem to be yet pending, and the law authorizing the collection of court costs every six months can not be enforced against the State, because the State can not be sued. The State is, doubtless, responsible for all costs legally incurred in its behalf, but the mode of paying them is to be provided by the Legislature. The appropriation in question is not, in our opinion, the provision made for the payment of the costs claimed in-this proceeding. If the statute authorizing the suits or proceedings in which they accrued does not provide for their payment, or some other special statute, the clerk took the risk of the Legislature’s providing for them when applied to. The Auditor can warrant upon, funds only as authorized by law.

It is therefore ordered that so much of the judgment appealed from as directs the State Auditor to issue a warrant in favor of the clerk of the Fourth District Court, for the parish of Orleans, for $861 78, payable out of the appropriation of $2000, made by act number thirty-five, approved sixteenth of March, 1870, be reversed and annulled, with costs of appeal.

Mr. Chief Justice Ludeling and Mr. Justice Wyly-absent.


author: Ludeling, C. J.

text:
    No. 2898.
    The State of Louisiana, ex rel. Widow J. B. Anseline, v. The Clerk of the Second District Court, parish of Orleans.
    Where an appeal bond has been given according to law, the clerk of the district court can not exact payment of his costs in money, or additional security from the appellant, as a condition precedent to the delivery of the transcript.
    In case the return day for filing the transcript in the Supreme Court has passed, through the fault of the clerk of the district court, in refusing to deliver it, until his costs were paid, after the bond had been given, the time for filing the transcript will be extended, and the t&erk will be compelled, by mandamus, to deliver the record, and pay the costs of the writ.
    APPLICATION for Writ of Mandamus.

      M. O. Tracy, Clerk, respond-
    ent. A. L. Tissot, of counsel. G. Schmidt, for relator.
   Ludeling, C. J.

The appeal bond having been given according to law, the clerk should have delivered the transcript to the appellant. He had no right to exact payment of the cost, or additional security from the appellant, as a condition precedent to the delivery of the transcript of appeal.

As it was owing to the fault of the clerk that the transcript of appeal was not filed, in due time, in the Supreme Court, it is ordered that the return day be extended to the second of January, 1871; that the mandamus be made peremptory, and that the defendant pay costs of this proceeding.


text:
    No. 2149.
    J. H. Lamothe, Administrator, v. Alex. Hausse.
    A purchaser of property at public sale will be held responsible for his bid, unless he show that the vendor has been guilty of such deception or fraud as would mislead a prudent-purchaser.
    In this case the property sold was advertised in the official journal, in the English language, as required by law. It was also advertised in the Erench language, in which an erroneous description of the property was given. Eotli notices were read at the sale by the auctioneer, without objection being made at the time as to the discrepancy. The defendant in this suit bid off the property, and afterwards refused to comply with his bid by paying the amount. The property was re-offered, and failed to bring the amount of the first bid at the second offering. Held — That the bidder at the first sale must be condemned to pay the difference.
    APPEAL from the Seventh District Court, parish of Orleans. Collens, J.

      Ohm-vet <& JDwplantier, for plaintiff and appellee. Hyman, Wallace & Hamdlin, for defendant and appellant.
   Howell, J.

This suit is brought to recover the difference between the first and second adjudications of a house and lot which were sold the second time at the risk of defendant, whose defense is that there was error in the notice, induced by the fraudulent misrepresentation of the plaintiff, by which he was led to believe that there was a passage on each side of the house, leading to the back yard, when, in fact, there was but one. This misrepresentation consists in the advertisement in French, published in the Bee, at the instance of plaintiff, which described the property as having a double passage (“ double passage.”) This proves to have been a mistranslation of the English and official advertisement, in which the original words are “ double pavement,” and was made by some one in the office of the JBee, and the mistake was not discovered by the plaintiff until his attention was called to it, when informed that defendant refused to comply with the terms of sale. The advertisement in English, in the Kepublican, the •official paper, and that in French, in the Bee, were both read by the .auctioneer, and the discrepancy in this particular seems to have •attracted the attention of no one present. After the adjudication, the •defendant wont with a carpenter and examined the premises, to see what repairs were needed, and at that time made no reference to two passages, and no objection to the sale or property. It was apparent to the slightest observation that the property had but one passage. The defendant is a Belgian; has resided in New Orleans since 1853; was cook at the City Hotel for six or seven years prior to the trial of this suit in December, 1868; he speaks the English language, and at the examination as a witness answered questions propounded 'in that language. Under these circumstances, we think the judge a quo did not err in holding defendant responsible for his bid. The law required the ■advertisement to be in English only, and to bo in the official journal. This must be held to control, unless the vendor should be guilty of •such deception or fraud as would mislead a prudent bidder. The evidence in this case does not establish any such conduct on the part of plaintiff. The defendant heard both advertisements read, and he ■should have inquired as to the discrepancy, if really calculated to mislead him, and he considered the fact of a double passage important.

Judgment affirmed.

Mr. Chief Justice Ludeling and Mr. Justice Wyly absent.


text:
    No. 1971.
    E. Thompson v. W. Cullinane.
    'The purchaser of personal property, such as a mule, at a public sale, made under the regulations prescribed for the sale of estrayod animals, gets a good title thereto, even though it may be shown that the animal was originally stolen. C. C. 3474.,
    APPEAL from Seventh District Court, parish of Orleans. Oollens, J.

      J. McKee, for plaintiff and appellant. Hornor & Benedict, for •defendant and appellant.
   Howell, J.

In February, 1868, the plaintiff sequestered, in the possession of the defendant, a mule, which, he alleges, was stolen from him in December, 1866. The defendant set up title by purchase, in good faith, in February, 1867, from one T. McMahon, called in warranty, who bought said mule and a dray from one P. Condon, who had purchased them as estrays on fourteenth January, 1867, at public auction, at a sale by tbe Street Commissioner of New Orleans, under police laws, after due advertisement. The district judge was satisfied that tbe mule was stolen from plaintiff, and under articles 2427 and 3472, C. C., gave bim a judgment for tbe mule or its value, $250, and tbe sum of "$318 for tbe use or hire thereof to tbe institution of this suit, and a judgment in favor of defendant for $225, against McMahon, as warrantor. Defendant appealed, and before us be invokes article 3474, as relieving bim from liability. It reads as follows: “This reclamation on tbe part of tbe owner, even by reimbursing tbe price, is not allowed against a person who has purchased stray animals which have been sold in conformity with tbe regulations of police, or other movable objects lost or abandoned which are sold by authority of law, although be has not possessed them during the time required for tbe prescription of movables.”

Tbe evidence shows that tbe mule in question, with a dray and harness, was advertised during ten days and sold by tbe Street Commissioner, as an estray, in accordance with tbe police regulations on that subject, except that tbe advertisement was not made immediately after tbe expiration of three days from tbe date of impounding, as. prescribed by said regulations; but this delay can not be said to be prejudicial to tbe owner, as it prolonged tbe time for search and recovery before bis title would be divested. Whether tbe mule was stolen or not from tbe plaintiff, it is unnecessary to decide in this controversy, as it is shown that defendant’s title was not derived through tbe alleged theft, bub through tbe acts of public officers in tbe mode prescribed by law j and the article of tlie Code above quoted denies to tbe original owner tbe right of reclamation, even upon refunding tbe price, and confirms tbe title of the purchaser to animals regularly sold as estray

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

Rehearing refused.


author: Taliarerro, J.

text:
    No. 2817.
    The State of Louisiana v. Alexander Graviotte.
    Insanity, when pleaded in defense of a criminal act, sucli as homicide, must he clearly shown to have existed at the time of the commission of the act. Therefore, evidence of a witness, to show such a state of mental excitement in the accused, produced by the insulting language and threats used towards him by the deceased, his wife’s paramour, at the time of the hilling, is not admissible to show insanity.
    APPEAL from the First District Court, parish of Orleans. Abell, J.

      Simeon JBelden, Attorney' General, for tbe State. A. A. Atocha, for defendant and appellant.
   Taliarerro, J.

Tbe defendant, being indicted for murder, was found guilty of manslaughter, and sentenced to bard labor in tbe penitentiary for the term of two years and six months. He has appealed from the judgment. •

The plea set tip in Ms behalf on the trial was that of insanity. A bill of exceptions to the ruling of the court excluding evidence offered to sustain the plea of insanity, embraces the grounds upon which the plea was taken. The defendant offered to prove, by a witness introduced on the part of the defense, that on the night previous to the commission of the homicide, the witness and the accused saw improper conduct between the wife of the latter and a man who was with her in the house of the accused. The character of this alleged misconduct was sought to be elicited by a question put to the witness. The evidence was offered to show such a state of mental excitement in the defendant, produced by what he had witnessed, and the insulting language used towards him by his wife’s paramour, as might become a predisposing cause of insanity. The evidence was objected to on the part of the State, and rejected by the court as irrelevant and inadmissible to prove insanity. We think the ruling correct. Insanity, when pleaded in defense of a criminal act, must be clearly shown to have existed at the time of the commission of the act. Vague conjectures as to a probable existence of mental aberration from supposed predisposing causes are quite too sublimated to possess weight in the inquiry as to the sanity or insanity of an accused party. The counsel of the defendant further asked the court to charge the jury as follows :

First — -There is no presumption of malice in this case, if any proof of alleviation or excuse arise out of the evidence.

Second — -The existence of malice is not presumable in this case, if, on any theory consistent with the evidence, the homicide was excusable.

Third — If, on the whole evidence presented, there is any hypothesis consistent with the conclusion that the homicide was excusable, the accused can not be convicted.

The fourth and fifth points are mere reiterations of the grounds upon which the testimony was offered to show insanity, and which was rejected by the court.

To these requirements, in their order, the judge charged the jury:

1. That if there was alleviation or excuse, there could be no murder; the offense would, at most, be only manslaughter.

2. The court declined to give the charge required under this head, because it could only do so by referring to the evidence, which it has no right to do.

3. The jury was charged expressly, that, if the homicide were excusable, they must acquit.

We find no error in the charges given to the jury. The defendant has failed to present a case requiring this court to grant him relief.

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


text:
    No. 2892.
    State of Louisiana, ex rel. Ann R. Parks, v. Judge of Seventh Judicial District.
    ' Where a judgment of nullity has been rendered at the suit of the creditor against the husband and wife, avoiding the judgment of the wife against the husband, and canceling the sale of real estate by the husband to the wife in payment thereof, the judge a quo must fix the amount of the bond for a suspensive appeal, C. P. 577. And in case of refusal, a mandamus will issue, on application of the relator, compelling him to fix the amount of bond and grant a suspensive appeal.
    In fixing the amount of the bond for a suspensive appeal, where the title to real estate is involved, and no judgment for money has been given, the judge a quo must take into consideration the estimated value of the revenue to be derived from the use of the property, and such further amount as he may determine, as surety for injury or deterioration which the estate may suffer while in possession of the appellant, and fix the bond in an amount exceeding by one-half such estimate.
    APPLICATION for Writ of Mandamus.

      Waddell & JBarbin, for relator. O. Her riele Miller, Judge of Seventh. Judicial District, respondent.
   Howell, J.

The relator asks for a peremptory mandamus directing the Judge of the Seventh Judicial District for the parish of Avoyelles, to fix the amount of the bond necessary for a suspensive appeal granted her from a judgment in the case of Keller v. Parks and Wife, alleging that a bond for costs, or for the revenues .and probable deterioration of the real estate involved, is sufficient. The judge answers that he granted the alternative order for a devolutive appeal upon a bond for one hundred dollars, or a suspensive appeal upon a bond according to law, which, taking the alleged value of the1 property, would require a bond for $22,500; that there his jurisdiction ceased; that this is not a case in which a standard is not fixed by law, and he is without discretion to fix the amount of the bond, and that the relator did not tender a bond in any amount to cover the revenues and deteriorations.

The material facts are, that the plaintiff, Keller, having a judgment with mortgage against M. Vernon, the husband of the relator, obtained a judgment against both, annulling a judgment in favor of the wife against the husband, and a notarial act of sale of a tract of land by the husband to the wife in satisfaction of said judgment, recognizing the mortgage of plaintiff, Keller, on said land, and ordering it to be seized and sold to satisfy Keller’s judgment. In his petition for nullity Keller alleged that the land is worth $15,000,

The reasons assigned by the judge are insufficient. There is no judgment against the relator for a sum of money, but one that avoids her title to property, and subjects it to an execution in favor of another. The possession and title to the property are in question, in which case article 577 C. P. applies. The ground that a bond was not tendered in accordance with said article, can not avail, as the judge considered himself without jurisdiction to change his order after granting it, or to fix the amount.' The offer, by Ms own showing, would have been a vain one. He was mistaken as to the fact of jurisdictidn, which- is not divested until, in this case, at least, the bond was filed.

It is therefore ordered that the mandamus herein be made peremptory, and the Judge of the Seventh Judicial District be ordered to fix the bond for a suspensive appeal allowed herein, in an amount exceeding by one-half the estimated value of the revenue to be derived' ponding the suit, from the real estate involved herein, and such further amount as he may determine as surety for any injury or deterioration which may be caused to the said estate by the appellant while in possession.

Mr. Chief Justice Ludeling and Mr. Justice Wyly absent.


author: Wyly, J.

text:
    No. 1369.
    Coe, Shenehan & Dewitt v. Rocha, Becker & Co.—C. S. Samuel, Garnishee.
    A judgment against a garnishee, rendered on a rule to show cause why he should not be condemned, on his answers filed, to pay the amount of plaintiff’s demand, is erroneous, if the answers do not admit an indebtedness, and the rule contains no averment under which proof could be introduced, and no proof was introduced traversing the answers* In such a case the judgment against the garnishee will be reversed on appeal.
    APPEAL from the Third District Court, parish of Orleans. Fellowes, J.

      Hawes & Grant, for plaintiffs and appellees. Race, Foster & F. T. Herrick, for garnishee, appellant.
   Wyly, J.

The plaintiffs, on their judgment and fieri facias against the defendants, instituted garnishment process against C. S. Samuel-, and required him to answer certain interrogatories.

Subsequent to his answers thereto, the plaintiffs filed the following rule : “ On motion of William Grant, attorney for plaintiffs in this case, and upon suggesting that C. S. Samuel, garnishee in said case, is liable as such on his answer filed therein, it is ordered that said Samuel do show cause on Tuesday, the fifteenth day of January, 1867, at 11 o’clock, A. M., why he should not be held liable, as garnishee, upon his answers filed, and be ordered to pay the full amount of pfiaintiffs’ judgment in accordance with the law in such cases made and provided.”

From a judgment for the full amount claimed against him in this rule, the garnishee, Samuel, has appealed.

It is unnecessary to notice the irregularities in this proceeding suggested by the counsel for the appellant, as an examination of the record satisfies us that on the merits the judgment against the garnishee was erroneous.

The answers do not admit an indebtedness to the defendants, and there is no averment in the rule under which proof could be introduced, and no proof was introduced traversing the answers. It was not averred or shown that the garnishee had answered untruly, or that his answers were evasive. Indeed, there was no evidence introduced on tlie trial of the rule, as the record shows: “After hearing pleadings and argument of counsel of both parties, the court took the same under consideration.” And in his decree, the judge declares r “ The law being considered, and for the reasons orally assigned in open court, it is ordered,” etc.

The judgment was erroneous.

It is therefore ordered that it be avoided and annulled, and that there be judgment in favor of C. S. Samuel, garnishee, and that the plaintiffs pay costs of both courts.


author: ! Ludeling, C. J.

text:
    No. 2000.
    C. C. Sampson v. M. Gillis and Samuel G. Ferguson.
    If more than five years are allowed to elapse from the date of maturity of drafts, to the service of citation, and no interruption is shown, the plea of prescription will be main» tained.
    APPEAL from the Sixth District Court, parish of Orleans. Cooley, J..

      JB. Egan, for plaintiff and appellant. Ciarle, Bayne & Bcnshaw, for defendants and appellees.
   ! Ludeling, C. J.

This suit is upon drafts, due the twentieth of May, 1862. Citations were served on the twenty-fourth of June, 1868. More than five years having elapsed after the maturity of the drafts, before citation, the plea of prescription must be sustained. Smith v. Stewart, 21 An.

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


text:
    No. 2893.
    State of Louisiana, ex rel. Roman, etc., v. Judge Sixth District Court, Parish of Orleans.
    If a suspensive appeal has been granted by the judge of the district court and the bond has-been given and filed in the record, the district judge is not competent to dismiss the appeal without first ascertaining by evidence whether the surety on the bond is good and. solvent. The failure of the appellant to qualify his surety is not sufficient to authorize the district judge to dismiss the appeal and order execution to issue.
    An appeal being a constitutional right given to every litigant, the Supreme Court will, on application for a prohibition against the inferior jurisdiction, examine the evidence offered touching the solvency of the surety on the appeal bond, and review the judgment of the court a qua dismissing the appeal because the surety is not good and solvent.
    APPLICATION for a Writ of ProMbition.

      Julian Michel and Albert Yoorhies, for relator. IF. S. Cooley, Judge, respondent.
   Wyly, J.

In the case of U. Marinoui v. The Pelican Insurance Company, pending on appeal, a rule was taken by the plaintiff therein against the defendant in the Sixth District Court, parish of Orleans, to cause a different and solvent surety to be substituted on the appeal bond for B. L. Millaudon, who, it was suggested, had become insolvent-since said appeal was granted.

Thereupon the defendant in said suit filed a new suspensive appeal bond with S. N. Moody as surety, and asked for time to justify his solvency, making affidavit that he was a material witness to establish that fact; that he was temporarily absent from the city, and that he would not return before the end of the week or Monday following the day fixed for the trial of the rule ; that he had summoned him and used due diligence; that he had not caused the said absence, and the affidavit was not made for delay.

The motion for continuance was overruled, the appeal was dismissed and execution was ordered to be issued.

The defendant then sought and obtained from this court a writ of prohibition against the judge of the Sixth District Court and the plaintiff in said suit. And this forms the subioct of the x>reseiit inquiry.

In answer to the writ of prohibition the district judge says, when the new bond was offered an application for time to prove the solvency of the surety was made, and for that purpose he granted a continuance from the nineteenth to the twenty-fifth of May, 1870; that the application for further time was based on reasons which would doubtless have been urged again had the “ further time ” been allowed;. and that he considered it the duty of the defendant, the moment the new security was offered, to prove his solvency.

We find in the transcript of the proceedings that no evidence was taken either to establish the insufficiency of the old surety or of the new. And in his decree dismissing the appeal and ordering execution to i"-sue, the judge states: “After hearing argument of counsel, the court, for oral reasons assigned, considering the law to be in favor of the plaintiff in the rule, it is ordered,” etc. * * * ' *

The question is, has it been shown that the appellant has failed to give good and solvent security on his appeal bond as required by law Í

Until the insufficiency of the surety on the appeal bond was established by competent evidence, the Sixth District Court was without jurisdiction to set aside the appeal and issue execution on the judgment. If the surety became insolvent after the appeal had been consummated, it was incumbent on the appellant to give another, which seems to have been done by him promptly. It has not been shown that the surety substituted for the one alleged to be insolvent is not good, sufficient — indeed no evidence on this point seems to have been introduced. Without ascertaining the insufficiency of this surety the judge should not have ordered execution to issue.

In the State, ex rel. Johnson, v. The Judge of the Fifth District Court of the parish of Orleans, 21 An. 113, we had occasion to remark that the right to appeal is a constitutional right and its exercise is regulated by law; that the right to determine primarily whether the appellant has complied with the requirements of law is vested in the district judge, but his decision is subject to the revision of this court.

It is, therefore, ordered that the writ of prohibition herein be made perpetual, and that the plaintiff in the suit of U. Marinoui v. The Pelican Mutual Insurance Company pay costs of this proceeding.


author: Wylt, J.

text:
    No. 2429.
    Mrs. Helena Breuning v. Succession of Jacob Weigel et al.
    The parish court is without jurisdiction ratione materice to annul a judgment of the district court, if the amount of such judgment is above five hundred dollars.
    from the Parish Court, parish of Jefferson. Breuning, Parish Judge.

      B. King Cutler, for plaintiff and appellant. W. O. Denegre and W. Scott, for defendant and appellee.
   Wylt, J.

The plaintiff brought suit in the Second Judicial District Court, parish of Jefferson, claiming certain movable and immovable property inventoried as the property-of the succession of Jacob Weigel, and that court gave judgment adverse to her.

Subsequently she instituted this suit in the parish court, to annul said judgment of the district court on the various grounds stated in her petition. The court refused to annul the judgment, and she has appealed.

An examination of the record satisfies us that the parish court was without jurisdiction ratione materice, the matter in dispute in the judgment sought to be annulled far exceeding five hundred dollars.

It is therefore ordered that the judgment appealed from be set aside and annulled, and that the suit be dismissed at the cost of plaintiff, in both courts.


text:
    No. 1969.
    Webster & McKenna v. John Mahoney.
    AH trade and traffic in articles of merchandise, between persons occupying opposite sides of the military lines during the late war, was expressly prohibited by acts of Congress. Section five, act of thirteenth July, 1861. Therefore all dobts contracted and obligations ■ given, on account of any such trade, are null, and no action lies to enforce them. 19 An. 328. 20 An. 211.
    APPEAL from Seventh District Court, parish of Orleans. Collens, J.

      Henry C. Miller, for plaintiffs and appellants. Thomas S. MeCay, for defendant and appellee.
   Ludeling, C. J.

The plaintiffs, domiciliated in the city of New Orleans, sold to Mahoney & Davidson, in 1863, groceries, etc., to the amount of $869 31; and alleging that Mahoney & Davidson were commercial partners, they sued Mahoney, now a resident of New Orleans, for the debt. /

Mahoney alleged that Calvin Davidson and himself were residing within the district or territory proclaimed by the President of the United States to be in rebellion to the laws of the United States, at the time when Calvin Davidson bought the goods from the plaintiff, in violation of the law interdicting commercial intercourse between the inhabitants of the said district, and those of territory loyal to the United States; that the plaintiffs knew that Davidson & Mahoney were residing within the Confederate lines, and that they knew that the articles sold were intended to be carried thither.

The evidence proves that Mahoney & Davidson were “blockade runners,” residing at Biloxi; that the plaintiffs knew the facts, and that they assisted in carrying the illicit traffic into effect.

Under these circumstances, they can not recover, because the contract was contrary to the prohibitory law of Congress. Acts 1861, thirteenth July, section five; 2 Black. 635; 19 An. 328;. 20 An. 241.

It is therefore ordered that the judgment of the district court bo affirmed, with costs of appeal.


text:
    No. 2151.
    William L. Wynn v. A. D. Kelly & Co.
    The Louisiana State Bank was the creditor of X. 0. Patrick, and took as security therefor his1 notes, payable to and indorsed by A. D. Kelly & Co. The bank held these notes until, after their maturity, and sold them, and placed the proceeds to the extinguishment of their debt against X. C. Patrick. About this time the bank was forced into liquidation ‘ by military order, and, by a provision of their charter, they were obliged to receive their own notes, (which were then at a heavy discount), in payment of debts due them. The purchaser of the Patrick notes, in pledge, and sold by the bank, paid for them in the notes of the bank. The indorsers on the notes, who now admit their liability, seek to discharge them by paying in the notes of the bank. That being the currency or paper in which the holder paid the bank for the notes who held them in pledge. Held — That it was no defense for the maker or indorser of a promissory note, in the hands of the present owner, that he might at one time, while the bank was the owner, have discharged it in the notes of the bank; that the holder of negotiable paper, transferred after maturity, is only liable to be met with the equities existing between the original parties.
    APPEAL from tlie Sixth District Court, parish of Orleans. Cooley, J.

      C. Belcher, for plaintiff and appellant. Clark, Bayne & Benshaw,. for defendants and appellees.
   Wyly, J.

The defendants, sued as the indorsers of two promissory notes made by J. C. Patrick, were condemned to pay the amount of the demand of the plaintiff, but in the decree were given the privilege to pay the debt in the notes of the Bank of Louisiana.

From this judgment the plaintiff has appealed.

It appears that A. D. Kelly & Co. being largely indebted to the Bank of Louisiana made a pledge of the notes sued on before their maturity ; that by a stipulation in the act of pledge the bank was authorized to sell the notes at public or private sale and apply the proceeds to the payment of the debt for which they were given in pledge; that after maturity these notes were sold by the pledgee to the plaintiff for their full value, principal and interest, and the proceeds thereof duly credited on the debt secured by the pledge, the bank, however, receiving, in consideration of the sale, its own notes. At the maturity of these notes the pledgers, the indorsers, who are the defendants herein, waived demand, notice of protest and acknowledged that they were bound for the payment of the notes in the same manner as if demand, protest, and notice of protest, had been duly made and given.” Previous to the sale the pledgee notified the pledgers that the assets pledged would be sold unless their indebtedness to the bank was settled.

The defense is, not that the conditional obligation of the indorsers was not properly rendered unconditional; nor is it that the pledgee was unauthorized to transfer to the plaintiff the assets pledged, but it is that the plaintiff having bought the notes after maturity, paying the bank, in consideration of the purchase, its owq notes, worth only thirty cents on the dollar, could only recover judgment against them payable in said bank notes, if they should be held liable as indorsers j but that these defendants are not bound as indorsers, having only indorsed the notes for the purpose of transferring the rights of the pledgers to the pledgee.

The district judge saw no force in the argument that the defendants could not pledge their obligation to secure their own debt to the bank ; but he thought that as the bank, placed in liquidation by a military order, was bound, under the act of 1842, to receive its own notes, iif tendered, in payment, so the plaintiff, the transferree of the bank, after maturity, is likewise bound to receive in payment the notes of the said bank. Here we think the learned judge has committed an error. The holder of negotiable paper, transferred after maturity, is only liable to be met with the equities existing between the original parties. The notes before us were drawn to the order of the defendants, A. D. Kelly & Co., by the maker, J. C. Patrick, and they were indorsed in blank by the payees and pledged to the bank. There is no equities set up between the payees and the maker, Patrick. There is no question as to the authority of the pledgee to transfer these notes to the plaintiff. Then what defense is it that plaintiffs’ transferrer, the bank, at one time, while holding the paper, might have been compelled to receive in payment its own notes if they had been tendered ? Is it a valid defense for the makers of a note or its indorsers to set up that they once might have had the opportunity to oppose to it, in the hands of a certain previous transferree, the plea of compensation had they only bought up, at a discount, the paper of the said transferree ?

That the pledgers intended to bind themselves as indorsers of the Patrick notes, we think is affirmatively shown from the waiver of protest and acknowledgment of liability which they indorsed on these notes, at maturity, while in the hands of the pledgee. Even without this affirmative proof, the indorser, before maturity, incurs a certain conditional liability by his act of indorsement, which may become unconditional by due notice of dishonor. ■

As to the position that the defendants could not pledge their obligation as indorsers to secure their own debt to the bank, we think, with the judge» quo, that the position is untenable. Under articles 3121 and 3322 Civil Code, one may pawn every corporeal thing susceptible of alienation; one may pawn money as security for performing or refraining to perform an act; one may, in fine, pawn incorporeal movables, such as credits and other claims of that nature.

The notes on which the defendants are sued, were original obligations, although.once held in. pledge to secure another debt. Having been regularly sold by the pledgee they can be enforced in the hands of t'he purchaser just the same as though they had never been pawned. They have an independent existence from the debt they were once pledged to secure. This answers the strange argument of the learned counsel of the appellee, which is this: That, because the proceeds of the sale of the pawned notes have been applied by the pawnee to the payment of the debt they secured, therefore the purchaser from the pawnee can not enforce the collection of these notes, on the ground that once having been pawned, and therefore accessory, they can not be raised to the rank of principal obligations, and, as accessories, they were discharged by the application of the money for which they were sold, to the payment of the debt for which they had been pawned.

It is therefore ordered that the judgment of the court below be amended by striking out that part thereof giving the defendants the privilege of paying the same in the notes of the Bank of Louisiana, and, as thus amended, that it be affirmed. Appellees paying costs of this appeal.


text:
    No. 2927.
    The State of Louisiana, ex rel. John R. Clay, v. O. C. Blandin.
    In. a suit to test the right to office under the intrusion act. the appeal from the judgment of the court "below must be taken, returnable in ten days after the judgment of the lower court. Section 7, act, approved March 16,1870.
    Therefore, an appeal taken more than ten days after the judgment of the lower court, in a suit to test the right to an office, will be dismissed, unless it bo shown that the fault was not attributable to the appellant.
    APPEAL from Eighth District Court, parish of Orleans. Dibble, J.

      Simeon Belden, Attorney General, and J3. Filleul, for relator. Cotton & Bevy, for defendant and appellant.
    ' This case was tried by a jury in the court below.
   Ludeling, C. J.

The question involved in this case is the right to the office of State Tax Collector for the Third District of New Orleans. The motion to dismiss the appeal must prevail. This appeal was applied for on the first of October, 1870; the judgment was rendered on the fourteenth J une, 1870. The seventh section of the act entitled “An Act relative to the Supreme Court, and to regulate the terms thereof, the proceedings therein, appeals thereto, and processes against sureties on appeal bonds,” approved March sixteenth, 1870, declares, “ that in all cases in which the right to office is involved, and an appeal is taken from the judgment of the lower court, it shall be returnable in ten days after the judgment of the lower court,” etc. In this case the fault is attributable to the appellants, who did not apply lor an appeal until three months had elapsed.

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


text:
    No. 2721.
    Daniel Cleveland v. G. S. Comstock.
    The action accorded to a surety to have a personal recourse against his principal for whom lie lias paid, is only prescribed by ten years»
    A ruling of the court, refusing an intervention, if correct at the time it is made, does not afterwards become incorrect by the party changing his character from that of an individual to that of a representative. Hor can a party, by way of intervention, compel other parties to litigate for his benefit or gratification.
    Evidence to establish that a document was executed under the erroneous belief that the claim was prescribed, is not admissible under the allegation that the paper is a nullity because of the mental incapacity of the maker.
    APPEAL Afrom the District Court, parish of East Feliciana. Posey, J.

      Pace, Poster <& P. T. Merrick, for plaintiff and appellant. Piernón <& Lyons, for defendant and appellee.
   Howe, J.

In the year 1844, the Carrollton Bank, being the holder of a promissory note drawn by the defendant and indorsed by the plaintiff, obtained a judgment, in solido, against the parties for the sum of $3000, and interest. The money was made out of the proceeds of sale of Cleveland’s property, July 2, 1859. On the twenty-ninth of April, 1869, Cleveland filed this suit, praying judgment against Corn-stock for the amount thus paid for him, vith interest.

The answer averred a settlement in full, and referred to the following document, which was filed same day — October 6, 1869:

“ Daniel Cleveland v. George C. Comstock — No. 1873. Fifth District Court, parish of East Feliciana, Louisiana.

“ In this matter now comes Daniel Cleveland, in his proper person, and says that defendant, George C. Comstock, has settled with him in full. Wherefore he prays that this suit may be dismissed, at his costs.

His

«DANIEL M CLEVELAND.

Mark.

“Signed in our presence, this thirteenth day of May, A. D. 1869.

“Witnesses:

“ T. J. Fuqua.

“ B. M. G. Brown.”

Five days after this consent was filed, Caleb D. Gayle filed for a hearing a petition of intervention, claiming a three-fourths interest in the action of plaintiff, and asking to be made a party, and for a judgment against the defendant accordingly-.

The defendant then and there objected that this petition came too late, and the judge sustained the objection, to which ruling there was a bill of exceptions taken.

Soon after answer, the plaintiff died, and Caleb D. Gayle, having been appointed his administrator, also came in by petition and averred that if the document quoted above, acknowledging a settlement, and praying a dismissal of the case, was really signed by the plaintiff, Cleveland, it was done without any consideration, and was null and void, because he was at the time old, feeble and blind, and his intellect too feeble to attend to any business.

The judge a quo thought this allegation was not established, and dismissed the suit.

C. D. Gayle has appealed’in his double character, of administrator of the plaintiff and the intervenor.

The defendant has made in this court the plea of prescription of ten years.

Mrst — The plea of prescription can not be maintained. It is urged on the ground that the judgment of the bank was prescribed in 1863, about six years before this suit was instituted, and that the plaintiff, who i->&id it in 1859, lost his rights by this prescription. But we think the right of action springs, not from the judgment and a subrogation to the rights of the judgment creditor, but from the right accorded to the surety to have a personal recourse against the principal for whom he has paid, and that it is prescribed by the lapse only of ten years from the time such payment is made. Just. 3, 21, 6; C. N. 2028; C. C. 3021; Troplong Du Cautionnement, No. 328;- 12 An. 880; 14 An. 664.

Second — The judge did not err in refusing to admit the intervenor, under the circumstances of the case as they stood at the time the application was made; and the changes produced by the appearance of the appellant, some time after, in his new character of administrator of plaintiff, can not cause a ruling, correct at the time it was made, to become incorrect. At the time the appellant, as representative of W. D. Gayle, offered to come into the contest, it had been practically ended, by the filing, five days before, of the plaintiff’s prayer to dismiss. The original parties had no further desire to contend, and W. D. Gayle’s representative could not compel them to litigate for his benefit or gratification. If the claim he sets up against Comstock be valid, he might have sued upon it at any time for about seven years before his offer to intervene, and he can hardly complain if, after such delay, he is. not permitted to compel other parties to carry on a lawsuit for him.

Third — The court did not err in refusing, as shown by a bill of exee: tions, to admit testimony of the mental condition of Cleveland in the fall of 1869. The prayer to dismiss was signed in May, 18 "Eh and the evidence offered would only have encumbered the record.

, Fourth — The appellant contended that the document quoted above is void, because it was executed u ; der the enoneous belief that the claim was prescribed, whereas (as we have had occasion to decide) it was not prescribed. We do not think he can be heard to urge this view. He came in as administrator of plaintiff, and by an amended petition, set forth his grounds of nullity of this paper, namely, mental incapacity on the part of Cleveland to execute it. No allegation of error as regards prescription was made, (indeed, such an allegation might be inconsistent with the plea of entire imbecility,. The argument seems to be an after thought.

Fifth — in the view we have taken of the case, it is unnecessary to pass upon the exception to the ruling of the judge upon the motion to compel plaintiff in the original petition to elect.

We conclude from the evidence, as a whole, that Cleveland, though aged and leeble, in May, ,1369, was by no means imbecile; that the document in which he acknowledges settlement and prays for a dismissal of his suit, was executed in view of an agreement on the part of Comstock to pay him for his support one hundred dollars per month till his death; and that, if the allegation of appellant that, at the time Cleveland made this bargain he owned but one-iourth of the claim, be correct, the bargain was highly advantageous.

Judgment affirmed.


text:
    No. 1812.
    Charles H. Chinn v. Richard H. Chinn.
    An agent is accountable to bis principal for moneys that came into bis bands as,such, even if such amount be composed of usurious interest, and. not collectable by the principal bimself.
    APPEAL from the Sixth District Court of New Orleans. Buplantier, J.

      Face, Foster & F. T. Merriek, for plamtift and appellee. Oooley Phillips, for defendant and appellant.
   Wyly, J.

The defendant has appealed from a judgment against him for the amount claimed by the plaintiff on an account rendered to the latter by the former. The defense is usury' and payment.

It appears that the defendant was the agent for the plaintiff in collecting from his father’s estate a certain sum of money, and also that he acted as agent in investing it at interest. Subsequent to the rendition of tbe account sued on, to wit: on the sixteenth of March, 1861, the defendant wrote to the plaintiff, acknowledging that he owed him the cash balance staled in the account, and saying: “ As the affair has never been of any value to me, since this cash balance has only fallen into' my hands through an affair oí Mr. McIIatton’s, I do not wish to owe money to any one.”

Whether the cash balance sought to be recovered in this suit be composed oí usurious interest o not, the defendant can not complain. It fell into his hands as agent for the plaintiff, and he must account for it to his principal, even though he received it unduly.

As to the plea of payment, we think, with the district judge, that it has not been established by the evidence. We regard the entry in the note of evidence, stating that part of McHatton’s testimony was rejected, as the order of the court, the note of evidence being a minute of the court kept by the clerk during the introduction of the testimony at the triai.

We deem it unnecessary to examine the argument of the counsel of the appellant, in reference to the authority oí clerks to certify.

Judgment affirmed.


text:
    No. 2794.
    T. Lilienthal, President, etc., v. B. Campbell and City of Jefferson.
    An ordinance of the corporation of Jefferson City levied a license tax of ten dollars on each cart used for the purpose of delivering bricks, lumber, etc., or hauling the same to or from their place of business, and provided for the enforcement of the same by penalties recoverable before any court of competent jurisdiction. Under this ordinance the city seized certain carts belonging to the plaintiff, who was using them for hauling clay and sand from the batture across the street to the brick yard. Held — That, under the terms Qf this ordinance, the carts used for this purpose alone, were not liable to arrest under the penalties denounced therein.
    A committing magistrate is not liable in damages for an error of judgment in deciding a cause, especially if the record discloses that he has jurisdiction of the subject matter of the controversy.
    APPEAL from the Second Judicial District Court, parish of Jefferson. Pardee, J.

      W. P. Thompson and P. H. Proivne, for plaintiff and appellant. G. G. Pish and P. K. Cutler, for defendants and appellees.
   Howell, J.

This is a suit enjoining the municipal recorder and the city of Jefferson from seizing and detaining certain carts, mules, etc., belonging to and used by the New Orleans Manufacturing and Building Company in manufacturing bricks, and claiming one thousand dollars damages.

■ The defense is the general denial, and a special plea that the arrest of the said property was for the violation of a city ordinance, which it was the duty of the defendants to enforce, and which reads as follows:

“ Section 43. Each and every cart, dray, or other vehicle, used for ‘.he purpose of delivering bricks, lumber, etc., or hauling the same to or from their place of business, free from charge oí hauling, ten dollars per annum ” ...

“ Section 57. All persons violating each and every section of this ordinance, in which there is not a specific penalty attached, shall, on conviction, pay a fine equal to the amount of the license by said section violated, recoverable before any court of competent jurisdiction, one-half for the use of the city, the other half for the benefit of the informer.”

The plaintiffs’ brick yard is situated on one side of Tchoupitoulas street and their batture on the opposite side, and the carts seized were used only in hauling clay, sand and wood from the batture across the street to the yard for making and burning bricks. They were not used for hauling bricks. The question is, were they embraced in the ordinance? Clay, sand and wood are not lumber, and the characters, “etc.,” following that word in the ordinance, cannot, with any certainty, be held to have been intended by the councilmen to describe such articles. The terms “ bricks ” and “lumber,” used by them have their technical meaning, and if it was intended that carts used exclusively in hauling clay, sand, wood, or other materials necessary in manufacturing bricks, it should have been so expressed. As the ordinance describes the uses of the carts for which license is to be paid, and the uses to which the carts in question were put are not mentioned, the said carts can not be held subject to said license (See 1 M. 125), and the attempt to enforce its collection was not authorized.

The question of damages presents a little more difficulty. It is not denied, however, that the recorder had jurisdiction of the subject matter, and the right to enforce the collection of the license on each cart, if it was subject to it; and the most that can be said is that he erred in his judgment of the purview of the ordinance. He thought he had the authority of law to make the plaintiffs pay a license on each of the carts, and he directed the license to be collected. Under the circumstances of this case, we are of opinion that the defendants are not responsible for damages, as claimed.

The judgment below should have been in favor of plaintiffs, perpetuating the injunction, and in favor of defendants, dismissing the demand of plaintiffs for damages.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of plaintiffs, perpetuating the injunction herein, and in favor of defendants, rejecting plaintiffs’ demand for damages. Appellees to pay costs in both courts.

Rehearing refused.


text:
    No. 2937.
    State of Louisiana, ex rel. Francis C. Mahan, v. Antoine Dubuclet, State Treasurer.
    ‘The Governor is tlio proper representative of tlxe State and bound to protect Iier interests, Therefore, in a ease where the other officers, such as the Attorney General or other officers, are absent from the State or fail to discharge their duties in taking an appeal, the Governor is bound to intervene in behalf of the State and take tlie appeal.
    An appeal will lie from a judgment against the State when the affidavit shows that the injury done by the judgment is above five hundred dollars.
    In all cases where an officer of the State, such as the State Treasurer, has a discretionary power to do or not to do any act coming within the range of his duties as an officer, the writ of mandamus will not lie from a court of justice to compel him to perform such an act.
    APPEAL from Eighth District Court, parisli of Orleans. Fhnerson, (Judge of tlie Third District Court,) vice Dibble, J., absent.

      George II. Brauglvn and Bogers & Blanc, for plaintiff and appellee. Simeon Belclen, Attorney General, for the State. Hornor & Benedict, for defendant, appellant.
   Taliaferro, J.

The relator, alleging liimself to be the State tax collector for the Third District of New Orleans, complains that the defendant, as State Treasurer, refuses to allow him, in a settlement with the treasury, a credit for $14,497 66, the amount of certain State warrants received hy him according to law in payment of taxes, and which were duly canceled, but were afterwards lost by the relator, or were stolen from him. Tlie judge a quo, on being applied to by the relator for a mandamus directed to the defendant ordering him to allow the credit claimed, issued an order nisi, and the defendant answered that he can only settle with the relator, as tax collector, in the manner prescribed by law; that he can only, in that capacity, make settlements with the Treasurer by the actual payment of current money or by State warrants legally received by him as tax collector, and actually produced aud delivered over; that respondent, if he has declined to make settlements with relator, has goood and sufficient reason for refusing.

The judge a quo, on hearing the parties, made the rule absolute.

From this order the defendant has appealed.

A motion to dismiss the appeal has been filed on the part of the relator on the grounds:

First — Dubuclet, Treasurer, was not made a party to the appeal. This ground was abandoned by tbe appellee.

Second — That tbe appeal was taken by the Governor of the State, -who is without power to prosecute this appeal. It is shown that at the time the appeal was taken the Attorney General was absent from the :State. This ground is untenable, the Governor being the proper representative of the State and bound to protect her interests.

Third — That a pecuniary interest exceeding five hundred dollars is not shown, and, therefore, no appeal lies to this court. The affidavit sets forth that the appellant is injured, and aggrieved by the judgment to the extent of more than five hundred dollars, and the record shows the amount in dispute to largely exceed five hundred dollars.

Fourth — That the affidavit is insufficient and signed by a party without authority to administer oaths. The affidavit was sworn to before the Assistant Secretary of State, who is authorized, in the absence of the Secretary of State, to discharge all the duties of the Secretary of State, and that officer is authorized to administer oaths.

The fifth objection is without weight.

The motion to dismiss is overruled.

On the Merits.

It is held by the appellant, and we think correctly, that the facts of this case do not warrant the issuing of a mandamus. The act which the Treasurer was called upon to perform is not one purely ministerial. It is an act which he is not required to perform by law and which it is not clear that he is authorized to perform. The doing or not doing the act involved the exorcise of discretion by the officer, and it is well settled that the writ is never issued to compel officers to do an act in which they have a discretionary power. 2 L. R., 395; 6 An., 68; Code of Practice, 829,832; 14 An., 225; 15 An., 334 ; 21 An., 352; 20 An., 518.

It is therefore ordered, adjudged and decreed that’the judgment of the district court be annulled, avoided and reversed. It is further ordered that the rule taken by the relator against the defendant be dismissed at relator’s costs.


text:
    No. 2109.
    Mrs. Mary E. Howell v. The St. Charles Street Railroad Company.
    If the verdict of the jury, in awarding damages against a street railroad company for the infliction of an injury through the gross negligence of a street car driver, is sustained by the testimony in the record, as well for the amount given as for the liability, the Supreme Court will not enter on an examination of the question whether vindictive damages have any place in the law of Louisiana, where the principal is made liable only for the neglect of his agent. But in such a case the verdict of the jury, being sustained by the evidence in the record, will he affirmed on appeal.
    APPEAL from the Sixth District Court, parish of Orleans. Cooley, J.

      Face, Foster <& F. T. Merrick, for plaintiff and appellee. Freaux <& Fenner, for defendant and appellant.
    This case was tried by a j ury in the court a qua.

   Howe, J.

The plaintiff sues to recover damages for personal injuries sustained through the negligence of a driver of one of the defendant’s cars. It appears that, being a passenger, she gave the usual signal for stopping, and the car was stopped; but while she was getting out, and was standing with one foot in the car and the other on the step, the driver let up his brake and started suddenly and rapidly forward, in such a way as to fling the plaintiff down on the square block pavement with such violence as to fracture her thigh and inflict other severe injuries. At the time of the accident she was upwards of sixty years of age, a widow dependent on her business of keeping boarders for a livelihood. Besides the shock to her system and the suffering she has undergone, she has been made a cripple, having been unable since the knitting of the broken bone to walk without a crutch. She has also been put to large expenses for surgical attendance, nursing- and medicines.

The defense was a general denial. The cause was tried by a jury, who rendered a verdict in favor of plaintiff for six thousand dollars, and after an ineffectual effort for a new trial the defendant has appealed.

The testimony in the record fully sustains the verdict. It happened that two medical men were in the car at the time of the accident. Both saw it and agree as to its cause — the gross carelessness of the driver, which one attributes to intoxication. One of these witnesses the defendant sought to contradict by showing that he had elsewhere made a different statement of the circumstances; but there was no attempt to shake the testimony of the other, and the latter corroborates the former in every important particular. The driver was not produced. Whether he was unaware of the accident or sought to escape blame by a rapid retreat, we are unable to say. We only learn that he did not stop after the plaintiff was thrown down, but drove swiftly on, and was soon out of sight in the dusk of the evening.

The defendant reserved two bills of exceptions to the charge of the judge below, raising questions of the effect of article 2299 of the Civil Code; of the amount of care which the defendant is, by law, required to exercise; and as to whether vindictive damages have any place in the law of Louisiana where a principal is made liable only for the neglect of his agent. These questions are interesting and important, and the last has been a subject of animated discussion in this court in former years. But we do not conceive it necessary to pass on them as presented in this case. Under our system of appeals the whole testimony is brought up and the entire case is before us on its merits. When, therefore, as in this case, the pleadings and evidence fully sustain the verdict, it would be a vain tiling to remand the cause merely that another jury might render a verdict precisely similar under different notions of the liabilities of carriers. We do not say that the charge excepted to was erroneous, but, even admitting that it was, we may say, in the language of the court in Lowe v. Korner, 4 La., 76, “ this court has never gone so far as to remand a cause for speculative errors on the part of the judge who tried it, which had not practically an influence on the verdict.” It can make no difference what may be the exact effect of article 2299 of the Civil Code, or the exact amount of care'required from a carrier, when from the pleadings and evidence it plainly appears that the defendant is responsible by reason of gross neglect. It can make no difference what may be the true rule in regard to vindictive damages, when it is plain, from pleadings and testimony, that the verdict for damages was a just one, and no more than simply reparatory in amount. No improper evidence was received, no proper evidence rejected. As Judge Martin said in Maurin v. Fostin, 6 Martin, 498, “it is useless for us to take into consideration the propriety of a charge of an inferior court to the jury when the whole facts are spread upon the record.”

Judgment affirmed.

Rehearing refused.