source: Caselaw Access Project

author: Wvi.y, J.

license: Public Domain

text:
    No. 2002.
    The Mechanics’ and Traders’ Bank, Appellee, v. John M. Sanders, Appellant.
    Whore an obligation or note is prescribed and the holder sbo^s nothing that will operate an in* terruption or suspension of prescription, the plea will prevail, 20 An. 131, 423, COS.
    from the Third District Court, parish of Terrebonne, Gains, J.

      Winchester Hall, John A. LeBlanc, and T. P. Sherburne, for appellee. B.tsh & Goode, for appellant.
   Wvi.y, J.

This action is based upon a promissory note made by the defendant on the fifteenth February, 1858, and due three years after date, to wit: fifteenth February, 1861.

The defense is, prescription of five years, general denial, and an allegation that the note was given for slaves.

Judgment was rendered in the District Court for plaintiff for the amount claimed by him and defendant has appealed.

There is no evidence in the record that prescription was ever renounced by the defendant or that it was ever interrupted by partial payment or acknowledgment or promise made by him.

The note matured fifteenth February, 1861, and the defendant was not served with citation till sixteenth April, 1.867, six years and two months after its maturity.

Plaintiff has invoked the maxim contra non valentem agoré non enrrit prcscriptio, urging that suit was not “'sooner instituted on said note by reason of the secession of the State of Louisiana from the Federal Union, and the consequences growing out of the same, and the hostile attitude in whieh the State placed itself toward the government of the United States in the recent war, averring that from twenty-sixtb January, 1861, to the first June, 1865, by reason of said war and rebellion of the State of Louisiana and other southern States against the government aforesaid, there was not in the parish of Terrebonne any duly constituted and legal court, nor any duly qualified judge, sheriff, or clerk of court, and that between said dates civil process was suspended and kept in abeyance by reason of said war.”

The evidence in the record does not establish these allegations of of plaintiff.

It appears that the Federal forces took possession of the archives and occupied the parish site of Terrebonne parish from the month of October, 1862, till the end of the war; that the court was organized under Federal authority, and that suits were filed and process served by the clerk and sheriff during the year 1863 and subsequently.

The evidence is sufficient to satisfy us that plaintiff could have filed suit on this note in the parish of Terrebonne at any time after the oceu-' pat-ion of that parish by the Federal forces, in October, 1862, and there is no just reason to invoke the maxim contra non valentem agere non currii jprescrijotio.

But even if he could not do so till the first of June, 1865, as alleged by him, there was ample time to institute suit between that time and fifteenth February, 1866, the period at which the prescription of five years accrued.

The plea of prescription must prevail. 20 An. 131, 423.

It is therefore.ordered and decreed that the judgment of the court below be avoided and annulled, and-it is now ordered that there be judgment in favor of the defendant, dismissing this suit at plaintiff’s costs in both courts.


author: Howell, J.

text:
    No. 1943.
    State of Louisiana, ex. rel. J. W. Creagh v. The Judge of the Seventh Judicial District, Parish of Avoyelles.
    In a proceeding by mandamus to recover possession of the books; keys, &c., in which the office of sheriff is kept, the party against whom the writ is directed must show an interest in the possession of such property exceeding five hundred dollars to entitle him to a suspensive appeal from the judgment ordering him to deliver possession to the claimant.
    from the Seventh Judicial District, parish of Avoyelles. Miller, J.

      N. North Collum and 33. W. Grant for relator. <?. Mer~ rich Miller, respondent, in-personam.
   Howell, J.

The petitioner avers that J. J. Ducoti, alleging himself to he the legal acting sheriff of the parish of Avoyelles, obtained from the District Judge a writ of mandamus, which was made absolute, ordering petitioner, who was then the duly elected, qualified and acting sheriff of said parish, to surrender to said Ducoti the office-room, keys, hooks and papers of said sheriff’s office, thereby enjoining petitioner, by compelling him to vacate his office, whilst he held a valid commission therefor, by virtue of which and a former judgment of the said judge, he had given bond and qualified according to law; that he immediately applied for a suspensive appeal from said order, wliicli was refused and instead thereof a devolutive appeal was granted; that the matter in dispute exceeds one thousand dollars, and having complied with the law, he is entitled to a suspensive appeal, and he prays for a writ of mandamus directing the said judge to grant it to him.

In answer, the judge admits the allegations of the petition, except that said Creagh was, at the date of the application, the lawful sheriff of Avoyelles, or was injured by the order complained of; and he alleges that at said date a suit, instituted by said J. J. Ducoti, contesting petitioner’s right to said office, had been duly tried before respondent and a jury, a verdict given in favor of said Ducoti and a judgment rendered thereon, which had become final between the parties and from which, by law, no appeal could be allowed; that thereupon a commission was issued by the Governor to said Ducoti; that the order complained of was only and substantially carrying into effect the final judgment in the said contested election case, and a suspensive appeal as asked for would be an indirect manner of obtaining a suspensive appeal from said final judgment, which was not appealable; and he refers us to the act of 1855, relative to elections, pp. 415, 416, §§ 44, 46, for the law declaring such judgments final and authorizing the Governor to issue a commission as stated.

While the judge is in error as to the law relative to appeals in contested election cases (see Acts 1856, p. 9; Acts 1868, p. 220) his answer-states sufficient reasons to justify his conduct. From the showing made, the petitioner, if he has not acquiesced therein, has permitted the judgment in the contested election case to become executory and he cannot in this indirect manner stay its execution., He does not, besides, show that the office-room, keys, books and papers are his property or that his pecuniary interest therein exceeds five hundred dollars. The allegation that the matter in dispute exceeds one thousand dollars does not change the legal status of the said room, keys, books and papers pertaining to the sheriff’s office, nor show his interest therein to be of such value. The facts do not show such interest as. to sustain the jurisdiction of this court.

It is ordered that the rule taken herein on- the twelfth December, 1868 be discharged with costs.


author: LudeliNG, C. J.

text:
    No. 1998.
    Washington Jackson, Jr., Appellant v. John Yoist, Administrator, Appellee.
    When the holder of a promissory note has suffered it to prescribe in his hands he cannot invoke the maxim, contra non valentón agere non currit prescriptio, to relieve it from the effect of the plea of prescription. This maxim has no application under our system of jurisprudence. See the case of Babel v. Pourciau, 20 An. 331. Smith v. Stewart. (Ante page 67.)
    from Seventh District Court, parish of Pointe Coupee. Posey, J., of the Fifth District Court, presiding.

      Cooley & Philips, for plaintiff. Face, Poster & li. T. Merrick and A. Provosty, for defendant.
   LudeliNG, C. J.

Plaintiff sues to recover tlie amount of a promissory note ancl to- enforce tlie mortgage given to secure the same.

Defendant pleads the prescription of five and ten years to tho note and ten years to tlie mortgage, and alleges that the land, the object of the contract of mortgage, has been sold by order of the court in due course of administration of the estate of W. M. Guin, deceased, and the proceeds appear as assets in the final account of said estate pending before the court for homologation.

On the trial, the plea of prescription was sustained, and plaintiff’s action dismissed. Plaintiff has appealed.

The note declared upon was made on sixth November, 1857, payable four years after date, to wit: sixth November, 1861. This suit was filed on twentieth January, 1868, more than six years after the maturity of the note. The mortgage was inscribed in the mortgage office on the ninth day of November, 1857, and was not reinscribed till thirteenth day of January, 1863, more than ten years thereafter.

We find in the record no evidence of the renunciation of prescription, nor any acknowledgement or promise to pay made by the defendant interrupting prescription.

Plaintiff has introduced evidence proving that in March, 1863, General Banks’ army passed through the parish of Pointe Coupee, that sometimes the Confederates and sometimes the Federáis were riding over the parish, and at various times there was skirmishing between the Federáis and Confederates and there was a general uneasiness and alarm in the parish; that this state of things continued from that time till the surrender of the Confederate armies.

It is also in evidence that the clerk and sheriff of the parish were sworn in on sixteenth Juné, 1865'.

The prescription of five years did not accrue on the note till sixth day of November, 1866, more than sixteen months after the organization of the clerk’s and sheriff’s offices in the parish of Pointe Coupee. The plaintiff had ample time to institute his action during this period. But he seems to have slumbered on his rights till twentieth January, 1868, when this suit was filed. After delaying the filing of his suit from the month of June, 1865, when the war ended, till twentieth January, 1868, he cannot avoid the consequences of his tardy action by claiming the allowance of tho utile tenvpus.

The maxim contra non valentem agere non currit presertytio cannot relieve plaintiff of the i>lea of prescription. (See the case Rabel v. Pourciau, 20 A.T81, and the authorities there cited.)

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


author: Howe, J.

text:
    No. 2022.
    Jared Williams, Appellee, v. Edward J. Gay, Appellant.
    Two parties, A and B, were engaged as partners in the cotton trade, one residing within the Federal lines of military occupation and the other in the Confederate lines» during the late war, between whom all trade was interdicted. They engaged the services of C to haul tho cotton through the lines. Held — That, C could not recover wages on the ground that he was engaged in illicit traffic, expressly prohibited by law.
    Each item charged in an account as money paid out, or for services rendered, is prescribed in three years from its date,
    from the Fifth Judicial District of Iberville. Posey, J.

      Fuq.ua & Callihan, for appellee and plaintiff, Banon & Pope, for appellant and defendant.
   Howe, J.

The plaintiff sued upon an open accpnnt for services performed and money paid out from the tenth January, 1861, 10 tho sixth October, 1865. There was judgment in'his favof for the vhoF amount claimed,' and the defendant has appealed.

Tho prescription of three years' was pleaded by defendant in the court below, and, as lie was not cited until May 2, 1867, the plea must prevail against all the items in the account except the last two.

The items which arc not. prescribed are, one for $200 cash, paid out in December, 1864, and one for $500, for four months’ services in attending to ginning and shipping cotton, from June 6,1865, to October 6,1865.

The first of these cannot ho allowed, since it appears from the evidence that it was paid for hauling cotton in the course of an illegal traffic in this staple across the lines during a state of war, when such traffic was strictly prohibited, and for account of a partnership illegally formed between the defendant residing in the town of Plaquemine, and one Lobdell, residing beyond the lines. It is plain that plaintiff was aware of the character of this partnership and its operations, and cannot invoke the help of the court as to this part of his claim.

The remaining item of $500, for services performed from June 6, 1865, to October 6, 1865, is not liable to this objection. Active hostilities had ceased, the lines had been opened to trade, and we are satisfied from a consideration of the record as a whole (a record, we may remark, which is so illegible as to render its consideration very difficult), that tho plaintiff performed these services in regard, to cotton owned by the defendant and J. L. Lobdell, and as to which they were commercial partners and hound in solido; that the defendant was liable to be sued alone, the partnership having been dissolved, and that the plaintiff is entitled to recover this amount.

It was contended as one defense that the plaintiff had been unfaithful in the discharge of his duties, hut we do not think the charge sustained. The partners seem to have quarreled, and the plaintiff’s obedience of certain orders of Lobdell may have wrought injury to the defendant, but no bad faith on plaintiff’s part is proved, and Lobdell’s orders were as binding on him as those of Gay.

Several bills of exceptions were reserved by defendant, but he insists on one only, an exception to the action of the judge in striking from Ms amended answer before permitting it to be filed the allegation that plaintiff was unfaithful “in aiding the said Lobdell to withhold from respondent cotton which had been purchased for joint account, and which was to be shipped to respondent’s house in New Orleans.’' We do not think the coirrt erred. The amended answer was filed on the day the cause was tried, and many months after the original answer. The allegation stricken out was one which introduced a new issue, and the court in permitting the amended answer to bo filed at so late an hour exercised only a proper discretion in striking out this clause.

For the reasons given it is ordered that the judgment appealed from be reversed, and proceeding to give such judgment as the court below should have rendered, it is ordered and adjudged that the plaintiff have judgment against the defendant for the sum of five hundred dollars, with interest from judicial demand, with costs of the lower court; the plaintiff to pay the costs of the appeal.


author: llowos, J.

text:
    No. 6814.
    F. M. Fisk, Administrator and Appellant, v. A. Bergerot, et al., Appellees.
    Where the law is chaTirred after prescription begins to run, the time elapsed before the change is to be computed according to.the old law, and that which follows according to the new.
    PPEAL from the Sixth District Court of Now Orleans, Howell, J.

      T. A. BartléUe, .for appellant. Win. H. Hunt and Denegre, for appellee.
   llowos, J.

In April, 1854, a female slave, alleged to have been owned by W. H. Fisk, now deceased, escaped from a negro traders’ yard in New Orleans, and concealed herself in the city until December, 1854; when, disguised in male attire, she sailed from this port to Havre on a ship owned by defendants.

On the sixtli of March, 1858, this action was instituted by the plaintiff, administrator, to recover the value of the fugitive with damages.

The claim of the plaintiff was dismissed by the judge a quo, on the ground that it had been barred by the prescription of one year.

We see no error in this judgment.

The plaintiff insists that the action is instituted under the aet of March 25, 1835, which provides a prescription of five years. But this act was repealed by the aet of March 35, 1855, and the case remitted to the general rule of the Civil Code which the latter law expressly left in force. Three years and five months elapsed from the time the fugitive took passage until the suit was brought; and following the rule settled by this court, that where, as in this case, the law is changed after prescription begins, the time elapsed before the change is to be computed according to the old law, and that which follows according to the new, the claim is barred. 6 La. 66‘0; 11 L. 57; 10 A. 583.

Tlie rule contra non valentón, etc., if it exists at all under the Code of Louisiana, is not applicable to this case. By article 3502 of the Civil Code the prescription began to run December 7, 1854, and the record does not disclose any allegation or fact sufficient to take the case out of tlie rule laid down in this article.

The judgment is therefore affirmed with costs.

Rehearing refused.

Mr. Justice Howell recused.


text:
    No. 2043.
    William A. Britton & Co., in liquidation, v. The Heirs of John F. Scott, deceased.
    In & suit "by tlie bolder of mortgage notes against the succession, and the heirs, who, it is alleged have taken possession without settling up the estate, the record must show that the original maker of the notes is dead, and that the heirs arc in possession of the property. In snch a case, where citation has issued to the heirs, and judgment by default has been confirmed against them and appeal taken therefrom, the case will be remanded to the lower court to be proceeded with according to law.
    from the Thirteenth Judicial District Court, parish of Tensas, l-Iough, J.
    IT. B. Shaw, for plaintiffs and appellees, Leach & Lems, for defendants and appellants.
   Howe, J.

This action was instituted on two mortgage notes, executed by John P. Scott, one due February 18, 1862, the other due February 18, 1863.

The petitioners, among other averments, allege as follows .-

“Tlie said John P. Scott, has departed this life, and his succession was and is yet legally open in this parish; that he left surviving him three children who were his legal heirs, Amelia Scott, Louisa H. Scott and John G-. Scott, who have accepted Ms succession and are now in possession thereof, and liable respectively for their virile portions of the debts of the said deceased.”

They pray for “judgment against the succession of John F. Scott, deceased, as represented by his said legal heirs, and against said heirs respectively for their virile portions,” and for the enforcement of the mortgage.

Amelia Scott (Mrs. Doniphan) was cited April 16, 1867; Louisa H. Scott (Mrs. Cunoy) was cited Apa W. 1867; John G-. Scott was cited March 12, 1868.

They made no appearance and j udgment by default was confirmed November 13, 1868. The judgment is “ against the succession of John P. Scott, represented by Amelia Scott * * * Louisa H. Scott * * * and John G. Scott, children and heirs at law of said John P. Scott, deceased,” and for a seizure and sale of the mortgaged property.

Prom this judgment the parties cited as above have appealed, and have pleaded in this court the prescription of five years.

The whole claim is plainly prescribed as to John Gr. Scott. As to the other parties cited the note falling due February 18,1862, is prescribed* The record does not show that John F. Scott is dead, nor that his succession was ever opened, nor that the parties cited ever accepted the succession or took possession of it.

Under such circumstances we think that in the interest of justice and regular practice the case should he remanded. It is therefore ordered that the judgment appealed from he avoided and reversed, and that the cause he remanded to he proceeded with according to law.


author: Ludeling, C. J.

text:
    No. 1967.
    The State of Louisiana, ex. rel. Samuel Johnson, v. The Judge of the Fifth District Court of the Parish of Orleans.
    The right of appeal is a constitutional right, and does not depend upon the discretion or pleasure of the District Judge. Const art. 74. The right to determine primarily whether the appellant has complied with the requirement of the law is vested in the District Judge, hut his decision is subject to the revision of the Supreme Court. The proper remedy for correcting the illegal rulings oi the District Judge in dismissing the appeal or declaring it de-volutive only, after a suspensive appeal has been granted or a bond has been filed, is by writ of prohibition and not by mandamus.

    il IMPLICATION for a Mandamus.

      G. Schmidt, for petitioner for mandamxis.

   Ludeling, C. J.

F. A. Cousin & Bro. obtained a judgment against Samuel Johnson for five thousand six hundred and eight and five one hundredths dollars, with legal interest from thirtieth September, 1867, in the Fifth District Court of the parish of Orleans.

Johnson applied for and obtained an order for a suspensive appeal, and he alleges, under oath, that within the legal delays, he furnished a bond for an amount exceeding one-half the sum he had been condemned to pay, with good and solvent security, as the law required.

Subsequently the plaintiff obtained an order from the District Judge commanding Johnson, the appellant, to show cause why the said appeal should not he dismissed,; and after hearing the parties the appeal was dismissed.. From this order dismissing the appeal, Johnson prayed for a suspensive appeal, which the judge refused to grant.

Whereupon Johnson applied to this court for a mandamus against the Judge of the Fifth District Court of the parish of Orleans to compel him to grant a suspensive appeal from the order dismissing the appeal, which he had already allowed.

In justification of his conduct the District Judge gave the following reasons:

First. — “ Because the right of deciding Whether an appeal, previously granted, shall he suspensive or devolutive is exclusively within the province of the court from which it was taken.

Second. — Because the defendant having failed to furnish, within the ten days following the signature of the judgment on the merits, (he land required by laxo, the appeal granted could not stay execution.

Third. — “Because the decree ordering execution to issue and from which a suspensive appeal is sought, is not a final judgment, and is not even represented as an interlocutory judgment, which may cause an irreparable injury, and it is from such only that the law allows a suspensivo appeal.

Fourth. — “Because a suspensive appeal cannot be taken from such a decree, which does not condemn the defendant to pay any sum oí money, deliver any property or perform any act.”

Neither the petitioner nor the judge discloses upon what grounds tho appeal granted was dismissed. The petitioner swears that within the legal delays he furnished a hond with good security, for an amount exceeding one half the amount of the judgment appealed from. While, on tho other hand, the judge states that the appellant failed to furnish within the legal delays “ the hond required by law.” He does not state wherein the bond was defective, if bad — or that, the bond, if good, was filed too late. We have not a copy of the bond before us. But the petitioner having sworn to the statements above mentioned, it was the duty of the judge to have stated distinctly wherein the appellant had failed to comply with the requirements of the law. The position of tho judge, that he has the exclusive right to determine whether “an appeal previously granted, shall be suspensive or devolutive’7 is erroneous.

The right of appeal is a constitutional right; and its exercise is regulated by law; it is not dependent upon the discretion or pleasure of District Judges. Constitution, art. 74; C. P. art. 575.

If, therefore, the appellant furnished the bond required by law, within the legal delay, his right to a suspensive appeal is indefeasible. If, on the contrary, the bond furnished be not such as the law roquires, or if it be given after the delay fixed by law in which the bond must be filed, for a suspensive appeal, execution may be issued under, the judgment, notwithstanding the appeal. The right to determine, primarily, whether the appellant has complied with the requirements of the law or not, is vested in tho District Courts. But their decisions are subject to the revision of the Supreme Court. If the appellant has complied with the provisions of the law any action, on the part of the District Judge in the case would be unauthorized, because the jurisdiction of the Supreme Court attaches so soon us the order of appeal has been granted and the bond required bylaw has been filed. C. P. art. 575; 4 La, 205; 7 La. 448; 15 La. 391; 13 La. 574; 1 R. 527; 10 R. 152; 8 An. 434; 17 An. 180.

Notwithstanding the District Judge might think the appellant had not complied with tho law, yet he might be mistaken. It is for the Supreme Court to determine finally.

It would seem, however, that the proper mode of bringing such questions before this court is by writ of prohibition; because, if a District Judge assume jurisdiction in a case, after the appellant has complied with the law, which entitles him to a suspensive appeal, the judge is clearly exceeding the bounds of his jurisdiction. C. P. ark 845; 13 La. 574; 19 La. 174; 19 La. 179; and 20 An. State ex. rel. Stackhouse v. Judge of the Fifth District Court, parish of Orleans.

The petitioner is entitled to relief, hut we cannot accord it to him, in the form he has asked for it.

It is therefore ordered that the application for the mandamus he dismissed at petitioner’s cost; reserving to him, however, the right to proceed against the Judge of the Fifth District Court hy writ of prohibition, should it he necessary.


text:
    No. 1485.
    Succession of Clement Wilkin.
    A nuncupative will by public act must bear upon its face the evidence that all the formalities required by law for its validity have been observed by the notary in drawing the testament
    A nuncupative will by public aot is null, if it does not appear on its face that the witnesses were present at the time the Testator was dictating it to the notary, and also when the notary read the instrument as written down by him, to the testator.
    from the Second Judicial District Court, parish of Jefferson, A. Oagabat, J.

      Lacey and Maries, for plaintiffs. T. L. Lemley, for defendants.
   Howe, J.

This is an action to annul the will of the late Clement Wilkin. From a judgment maintaining the will, the heirs at law prosecute this appeal.

The instrument in question is a nuncupative will hy public act, and is in the following words (the dispositions, which it is unnecessary to consider in this case, being omitted):

State of Louisiana — Parish or Jefferson.

Be it known, that I, Pliny Earl Davis, a notary public in and for. the parish of Jefferson, on the fifth of March, 1865, repaired to the house of Clement Wilkin, an inhabitant of said parish of Jefferson and State of Louisiana, where, at his request and at his dictation, the following instrument was written hy me, said notary, and declared by said Clement Wilkin to he Ms last will and testament.

iff iff iff . * iff • * üi * *

In testimony whereof, the said Clement Wilkin has signed Ms name hereunto, in the presence of Christian Mehle, Jordan Thomas Aycock and James P. Thompson, lawful witnesses, residing in this parish; and me, the said notary, after having read the same in an audible voice in the presence of the testator and the said witnesses, without interruption and without turning aside to other acts. This the fifth day of March, 1865. The testator being weak, his signature appears irregular.

Original signed: Clement Wilkin.

Witnesses: Christian Mehle, J. T. Aycock, J. P. Thompson.

P. E. Davis, Notary Public.

Various grounds of nullity are urged, hut in the view we have taken of the case it is necessary to consider only the following:

It does not appear that the will was dictated by the testator, received hy the notary, and hy the latter written down in the presence of the witnesses.”

It is well settled that, since a nuncupative will by public act makes full proof of itself, it must hear upon its face the evidence that all the formalities required by law for its validity liave been' complied with,. inasmuch as tlie fulfillment of those formalities, when not apparent from the instrument itself, cannot he established by evidence aliundé. C. C. 1640; 16 La. 82.

The law details these formalities.

The article 1571 of the Code declares that—

“ The nuncupative testament by public act must be received by a notary public in the presence of three witnesses residing in the place where the will is executed, or of five witnesses not residing in the place.”

“ The testament must be dictated by the testator, and written by the notary as it is dictated.”

“It must then be read to the testator in the presence of the witnesses.”

“Express mention is made of the whole, observing that all those formalities must be fulfilled at one time without interruption, and without turning aside to other acts.”

What, then, is to be received by the notary? The law answers the question; the testament — not as already written, for the notary is to write it himself, but from the lips of the testator; the testator dictating his desires, and the notary writing what is so dictated in the presence of the witnesses required by law. And, as the will must afterwards be read to the testator in the presence of the same witnesses, at the same interview, the law has provided a double safeguard against both honest mistake and dishonest practice. 12 La. 114. 8 An. 469.

Express mention must then be made of the whole, that it may appear by authentic evidence that the commands of the legislator have been obeyed. On no other conditions will the law recognize the testament as legal, and suffer the established order of succession to yield to the desires of the testator.

It is plain that in the testament we are now considering there is no express mention that the witnesses were present at that important portion of the reception of the testament by the notary, which consists of the dictation and writing down. So far as the document informs us, one of the witnesses, as in the case of Langley, 12 La. 117, might have been absent during a part of the interview, or as in the case of Alloway v. Babineau, 8 An. 469, might' have gone about town attending to his business during the process of dictation. None of the witnesses may have been present at all until the time when their presence is first indicated in the testament itself, namely, when the will was read aloud and signed. It is not for those who oppose the will to show that the witnesses were absent at some important moment ; it is for the testament itself to show that they were present from first to last.

In Christene v. Verbois, 11 An. 108, a will apparently identical in form with the one in this case was annulled for the same reason now urged by the appellants. In Devoll v. Palms, 20 An. 203, a similar decision was made upon a testament of which the formal parts were, verbatim, those of the testament in this case. Each case was in affirmance of -the opinion of the District Judge. We consider the question settled, and settled correctly.

It is urged by appellees that the decisions cited are in conflict with the cases of Pizerot v. Meuillon, 3 M. 144, Stafford v. Stafford, 12 L. 442, Nelder v. McCarty, 7 An. 485, and Lawson v. Lawson, 12 An. 604.

In Stafford v. Stafford the question now involved was notpassed upon by the court.

In Nelder a. McCarty the language of the will expressed that the witnesses were present at the dictation and writing down, and there is no reason to say that the decision did not proceed upon the supposition that such mention was absolutely required. In Lawson v. Lawson, a case not entirely in point, the certificate of the notary was construed by two members of the court, at least, to show that all the formalities were done ” in the presence of the witnesses, and upon this mention together with an alleged defect in pleading they relied for maintaining the will. In Pizerot v. Meuillen there seems to have been other considerations which were urgent in maintaining the will; but if that case, and the case of Lawson, go to the extent claimed by the appellees, they must be deemed to have been overruled.

We do not consider that the phrase express mention” requires the use of any sacramental formula, but it certainly requires the use of some words which will make authentic proof that all the legal formalities have been fulfilled. There are no such words in the testament before us to prove that the witnesses were present before it was read aloud to the testator.

It is therefore ordered that the judgment appealed from be reversed; and, proceeding to render such judgment as ought to have been rendered by the court below, it is further ordered and decreed that the last will and testament of Clement Wilkin, deceased, be and the same is hereby declared null and void, and that the probate thereof be set aside, the costs in both courts to be borne by the estate.

Rehearing refused.

Mr. Justice Howell recused.


text:
    No. 2048.
    Succession of J. J. Tyson.
    ■No person not a party to the suit in the court below, can. be made a party, appellee, in the ap* pollute court. In such a case the appeal will be disinissed for want of proper parties.
    from the Thirteenth Judicial District Court-, parish of Ten-sas, Hough, J.

      Julius Arorii for appellant. Mayo & Spencer for appellee.
   Howell, J.

Edwin Morris, Wm. Talbert, J. G-. Kyle andW. B. Evarts, as creditors of the succession of J. J. Tyson, deceased, took a rule on Bamuel Lee, administrator, to show cause why he should not be removed from his office and Ransom Hall appointed in his stead. Lee answered that he. could show no cause and that he desired the rule to-be made absolute. The court accordingly rendered judgment removing him and appointing Ransom Hall administrator ot said succession in the place of said Lee, upon giving bond according to law.” Whereupon James Trabue, Dennis Long, Robert J. Kyle and Edwin Morris, alleging themselves to be creditors of said succession and aggrieved by said judgment, appealed therefrom by petition, citing Ransom Hall only, who moves to dismiss the appeal on several grounds, one of which is sufficient, to wit: that being no party to the suit from the judgment in which this appeal is taken, he cannot be cited nor made party as appellee in this court. This seems to be so clear as to require no reasoning. To entertain this, appeal would be to take original jurisdiction of the only party sought to be made appellee. Non constat that he will ever make himself a party to these remarkable and irregular proceedings.

There being legally no appellee before us, this appeal must necessarily be dismissed.

It is therefore ordered that the appeal herein be dismissed with costs.


author: Wylt, J.

text:
    No. 2054.
    Fleming & Baldwin v. Joseph D. Shields, J. B. Jones, use, &c., Intervenor.
    Anintervenor in an attachment suit will not be permitted to urge defenses personal to the defendant. The admissibility of testimony, the formality and regularity of the pleadings are matters pertaining exclusively to the defendant. His position in the case in.limited to showing that he is the veritable owner of the property attached, or that he has a lion upon It superior to that of the attaching creditor.
    from the Thirteenth. District Court, parish of Tensas, Hough, J.

      H. H. 81iaw for appellee. Farrar & Beeves for appellants and intervenor.
   Wylt, J.

Plaintiffs sued out writs of provisional seizure and attachment against the property of the defendant, who was an absentee, alleging he owed them the amount of an account for advances and supplies furnished his plantation, in the parish of Tensas. The products and movables on the place and defendant’s half interest in the plantation were seized under these writs by the sheriff "on second December, 1867. ’ •

The defendant accepted service and waived legal and technical formalities. He also admitted the correctness of the account sued on, and set up no defense against plaintiff’s demand.

On the tenth November, 1868, the intervenor filed his petition of intervention in this case, alleging that he held a mortgage bearing on said. plantation or the undivided half thereof owned by the defendant j also alleging that the attachment was null and void because of the illegality of the affidavit, the insufficiency of the bond and other informalities; and by supplemental and amended petition he charged that the defendant, Joseph D. Shields, was in- insolvent circumstances at the date of the levy of plaintiffs’ writ of attachment to the knowledge of plaintiffs, who. fraudulently colluded with, him to have said attachment levied Upon said plantation in order to give, if possible, the lien of the attaching creditor a preference and priority over the special mortgage of the intervenor, which, by an oversight, was not recorded in *the mortgage office of said parish, till a few days subsequent to the levy of said writ.

On the trial there was judgment in favor of plaintiffs for the amount claimed by them, with a privilege on the property attached, from the date the attachment was levied, to wit: second December, 1867; and the intervention was rejected at the costs of the intervenor.

From this judgment the intervenor has appealed.

From a careful examination of the record we are of opinion that the intervenor has failed to establish his allegation of fraud and collusion between the plaintiffs and the defendant; he has failed to establish that the defendant, Joseph D. Shields, was an insolvent at the time the attachment was levied and at the time of the trial of this cause. Proof that the plantation in controversy was worth less than the amount of plaintiffs’ .claim and the claim of the intervenor does not establish the allegation that the defendant was notoriously insolvent. He lived in Mississippi, and might have in that State ample means to pay all his debts. We cannot presume that the plaintiffs and defendant are guilty of fraud and collusion in the absence of proof to sustain that charge.

The District Judge refused to permit the intervenor to offer proof of the irregularity of the affidavit, the insufficiency of the attachment bond and other informalities in the proceedings. Ho permitted the plaintiffs to offer in evidence their acknowledged account against the defendant, and when the intervenor objected thereto because the necessary revenue stamp was not attached to said acknowledged account, the District Judge'.'permitted the attorney of plaintiffs to affix thereto a ñve cent United States revenue stamp, and file the same in evidence. To all of which rulings the intervenor took a bill of exceptions.

We think the District Judge did not err in his rulings and the bill of exceptions was not well taken.

In the absence of fraud and collusion, the intervenor will not be permitted to urge defenses which are personal to the defendant. Questions of the admissibility of the testimony and the formality and regularity of the pleadings are matters for the consideration of the defendant, and. if he saw fit to waive them no other party can complain.

In the case of Lee et al. v. Bradlee, 8 M. 55, where a third party intervened in the attachment suit claiming the property, this court said: A third party has stepped in, averring the goods attached to be his property, and demanding restoration of them. The claimant has not only attempted to prove the property to be his, but he has been acting the part of the defendant by undertaking to show that the attachment ought not to have issued, and that after it had issued, it was imperfectly executed. The only thing which we conceive a claimant may be permitted to do is to show that the property attached is verily his. As soon as he succeeds in thaf, his part is at an end. But a claimant lias surely no right to show any irregularity in the suit in which he intervenes for the sole purpose of rescuing the property. Whether the plaintiff, the court and the sheriff have been acting legally or not is none of his business.”

The only difference between this case and the one just referred to is, in that case the intervenor claimed to be the owner of the property attached, while in this the interven or claims that he has a mortgage on the property attached. The principle is the same. The same doctrine is affirmed in the case of West v. His Creditors, 8 Rob. 123, in which this court said an intervenor who claims property in controversy between other parties cannot contest the plaintiff’s claim against the defendant nor urge any irregularities in the suit.” ,

In the case of Yeatman v. Estill, 13 An. 222, it was held that it is no longer competent for the intervening party to object to the mode in which the writ of attachment has been executed.” The intervenor admits that plaintiffs’ attachment was levied prior to the registry of his mortgage. Without inscription his mortgage had no effect against third persons. C. C. 3314. As to plaintiffs, the property of the defendant stood free of encumbrance the day their attachment was levied because the intervenor had not inscribed his mortgage. Plaintiffs acquired attaching creditors’ privilege on the plantation reverting from the judgment to the day the attachment was levied. C. P. 264, 265 ; 7 A. 1; 3 A. 430.

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


author: Wxly, J.

text:
    No. 2042.
    Dennis Long v. Succession and Heirs of John F. Scott, deceased.
    Where the plea of prescription is filed in the Supreme Court, and the record shows that the ob* ligation on which the judgment of tho lower court is founded is prescribed, and the appellee does not ash that tho case be remanded to enable the holder to show an interruption, the plea will be maintained in the Supreme Court.
    . * JjL PPEAL from Thirteenth District Court, parish of Tensas, Sough, J.

      Aroni & Collier, for plaintiff, Leach <& Lems, ¿for defendants and appellants.
   Wxly, J.

The defendants have appealed from a judgment by default made final in open court against them in favor of plaintiff for the amount of a note made by John P. Scott, deceased.

They have filed in this court the plea of prescription of five years against the note sued on, and they pray that the judgment appealed from be avoided and annulled.

The note upon which plaintiff bases this action matured the fifteenth February, 1861, and more tban five years elapsed from the maturity to the service of citation on the defendants. There is no'evidence in the record showing the suspension or. interruption of prescription, and from the face of the papers there is no doubt that it accrued before this suit was instituted. Plaintiff lias not asked that this case be remanded to prove an interruption or suspension of prescription. The plea must prevail. C. C. 3505.

It is therefore ordered that the judgment appealed from be avoided and annulled, and it is now ordered that there bo judgment in favor of defendants, dismissing this suit at plaintiffs’ costs in both courts.


author: Howell, . J.

text:
    No. 2040.
    Bank of Louisiana v. D. P. Williams and Wife.
    An engagement by one party fcj pay a certain amount of money to another at a given time, secured by mortgage on real estate, falls under the class or denomination oí projaissorj^ notes, aiid is prescribed by the lapse oí five years from maturity.
    ( A PPEAL from the Thirteenth District Court, parish of Concordia. Hough, J.

      Mellen, for plaintiffs and appellants. Mayo & Spencer, for defendants.
   Howell, . J.

The plaintiffs have appealed from a judgment sustaining the plea of prescription of five .years to the following instrument, as a non-negotiahle promissory note, to wit:

“State op Lo uisi ax a- — P arish op Concordia.

“ We, the undersigned, David Percy Williams and Mistress Elizabeth Matilda Gillespie, his wife, of the parish of Concordia, State of Louisiana, acknowledge ourselves jointly and severally indebted unto the ‘ President, directors and company of the Bank of Louisiana,’ iii the full sum of thirty thousand dollars ($30,000), being for a loan of money this day made to us by the said corporation, the amount of which we confess to have received. Which said sum of thirty thousand dollars we do, for ourselves, our heirs, executors and administrators, hind ourselves jointly and severally to the said president, directors and company of the Bank of Louisiana, punctually to pay in one year from tills date, and to comply with all the conditions of the mortgage this day-made by ns, and also with the obligations of the charter of the said hank.

‘ ‘ In testimony whereof we hereto subscribe our names, on this twenty-eighth day of April, A. D. eighteen hundred and fifty-seven.

“ DAVID PEECY WILLIAMS, “ELIZABETH MATILDA GILLESPIE.

“ Witnesses:

“ W. It. C. Vernon,

“A. G. Tyler.

“by HENEY BASIL SHAW, Attorney.”

(Paraphed) “ Me variatur.

“ Chas. S. French, Notary Public.

Vidama, April 28, 1857."

By law, “ all promissory notes, whether the same he negotiable or othermse, shall be preseribedin five years.” C. C. art. 3505; Act 3852, p. 90, $ 3.

More than five years having elapsed between the maturity of the above instrument and the institution of this suit, without any legal interruption of the prescription pleaded being shown, the inquiry presented is, whether or not said instrument is, in contemplation of law, a promissory note. The plaintiffs contend that it is a bond and prescribed in ten years. , ■ ,

Without going into an investigation of the nature and classes of bonds existing at common iaw, it is sufficient to say that, in our law, bonds seem to be written obligations, which’ are dependent on some contingency, and are specially provided for ; while the instrument in suit possesses all the essential attributes of a promissory note, which are, in no legal sense, affected by any other stipulations or recitals embodied in it.

A promissory note is defined to be “a written engagement by one person to pay another person, therein ' named, absplutely and unconditionally, a certain sum of money at a time specified thorein.” Story on Notes § 1; Ryles on Bills, p. 3. It must contain a legal promise for the cQvtctin ‘ payment of a certain sum, and the maker and the payee must-be designated with sufficient certainty. * * * If to a receipt for money, the words to be returned when called for ’ are added; if the signer of an instrument acknowledges in it that a pertain sum of money is borrowed on the promise of payment thereof; or that a certain sum was received of A to be repaid on demand with interest, such instruments are held to be promissory notes. * * * A note need not contain the words ‘ promise to pay,’ if there are other words of equivalent import.” Parsons on Notes, vol. 1, pp.-33, 34,

In the document before us the signers bind themselves to pay, in one year from its date, to the president, 'directors and company of the Bank of Louisiana, the sum of thirty thousand dollars, money loaned to and received by them.

• The further stipulations, “ to comply with the conditions of the mortgage and also with the obligations of the charter of said bank,” impose no condition and prppose no contingency on which payment is to depend, but recognize accessory obligations contracted or enacted for tlie security of the payment, and tbeir omission would not have impaired the obligation to pay the money.

The instrument sued on being an unconditional engagement- to pay a certain sum of money, cannot be classed among the personal actions which by the Code are prescribed in ten years; nor is it a mortgage, but the written evidence of a debt secured by a mortgage executed before a notary public.

We conclude that the judge a quo did not err in applying the prescription of five years.

Judgment affirmed.


author: Howe, J..„

text:
    No. 1999
    The State, ex rel. D’Meza et al. v. The Judge of the Fourth District Court, Parish of Orleans.
    Under thejrules laid down in the Code of Practice the Supreme Court of Louisiana will not tafeo general superintending control over the inferior jurisdictions. S M. 42; 2 La. 8S; 19 La. 478 ; 8 An. 92. The writ’of prohibition, the power to grant which is specially allowed by the Code of Practice to áppellate courts of competent jurisdiction is not a writ oí right, and iu within the sound discretion of the tribunal to which the application is made.
    The writ of prohibition will not be granted by the Supreme Court of Louisiana against a tribunal of inferior jurisdiction unless it be in cases where its intervention is necessary for the maintenance of its appellate jurisdiction.
    for writ of prohibition.

      A. M. Voorhies, Mays & New, A. Pitot, for relators, Judge Theard, iu personam.

   Howe, J..„

The relator, avers that, on.the twenty-first December,' 1867, by a decree of. the Fourth District Court of New Orleans, the Citizens’ Mutual Insurance Company of New Orleans, a corporation doing business in the .city, of New Orleans under'a charter.duly passed and .adopted under the laws of the State of Louisiana, was forced into “involuntary insolvency ,’’, .and Henry B'ezow. was appointed by the Judge of said Fourth District Court commissioner of the insolvent corporation ; that subsequently Henry.Bezow filed in the Fourth ■ District Court a suit against the relators for damages due to him in his capacity of commissioner, amounting to the sum of $429,235 95; that the relators filed an exception to the jurisdiction of the Fourth District Court, aver-ing “that the court from which the said Henry Bezow claims to have received his appointment was. at the time of said pretended appointment without jurisdiction in the matter, and .that said jurisdiction belonged, and belongs, exclusively and properly to the coxirts of the United States, under the law generally known as the bankrupt law, approved March 2, 1867;” ;but that said District Judge overruled the said plea, and has since proceeded to take further action in the premises. They insist that the laws of Louisiana on the subject of forced and voluntary insolvency have been virtually repealed by the act of Congress of March 2, 1867, that the Fourth District Court has exceeded and does exceed the boupds of its jurisdiction by decreeing the forced surrender of the Citizens’ Mutual Insurance Company, and by proceeding with the liquidation thereof in violation of the laws and constitution of the United States.

They pray for a writ of prohibition to restrain the Judge of tile Fourth District Court within the hounds of his jurisdiction, and prohibiting him. “ to further proceed in the said cause, involving the forced surrender of the Citizens’ Mutual Insurance Company, the forfeiture of its charter, and the liquidation of its affairs, under the insolvent laws of the State- of Louisiana.”

The answer of the judge avers Ms competency to proceed in the cause, and sets forth the reasons why he believés himself to have had jurisdiction both to appoint the commissioner and to entertain the suit brought by the commissioner against the relators.

It is by no means clear that the relators have ever excepted to the. jurisdiction of the Foqrth District Court in the proceedings for » declaration of forfeiture of the charter of the Citizens’ Insurance Coni-pany and the appointment of a commissioner. The only exception we find in the record is filed in .another and distinct proceeding, namely: a personal action, ex delicto ', instituted by the commissioner against the relators; and, though this exception is called an exception to the jurisdiction, it is strictly an exception to the capacity of the plaintiff. It.is difficult, therefore, to perceive how the judge of the Fourth District Court exceeded his jurisdiction in deciding that the plaintiff had been properly appointed in a previous and distinct proceeding. It can hardly be that the relators had a right to call upon the judge to decide whether or not the. plaintiff had capacity to sue, and then, because he decided that question adversely to their wishes, to denominate his action a usurpation of jurisdiction.

. But waiving this point, and granting that the exception we have quoted raises the question of jurisdiction in the case in which it was filed, and viewing the case from the standpoint assumed in the argument by both the relators and'respondent, the question presents itself at once whether the writ of prohibition is the proper remedy in a case like this. It is not pretended by relators that they are in the situation of the petitioner in the case of Clarke v. Rosenda, 5 Rob. 27, where an order of Seizure and sale had been issued and the petitioner was unable to give security for a suspensive appeal, and a devolutive appeal would have been an inadequate remedy, and a prohibition was asked, directed to the sheriff and the seizing creditor, on the ground that the petitioner was .the assignee in bankruptcy of the property about to be sold.

It will not'be contended that under the Constitution we have anything but appellate jurisdiction of such cases as that óf Bezow v. D’Meza and others, and it is neither averred nor proved that our appellate jurisdiction is in any wise put in jeopardy by the Judge of the Fourth District Court. It is not evident that he null ever give a final judgment against the relators, or that if he shall givo a final judgment that he will refuse to grant an appeal therefrom.

■ Among the first judgments pronounced by this court, Laverty v. Duplessis, 3 M. 42, was one disclaiming a general superintending control over the inferior jurisdictions.

In Winn v. Scott, 2 La. 88, decided under the present Code of Practice, the court declared that while the expressions of that code upon the subject of mandamus seem to embrace all possible cases, “ the aiithority there granted must be considered in relation to the Constitution, which allows to this court appellate jurisdiction only, and its mandates should be confined to matters which have a tendency to aid that jurisdiction.”

In, the State v. Bermudez, 19 La. 478, this doctrine was reaffirmed.

In State v. Judge, 19 La. 183, this court said:

The writ of prohibition, the power to ■ grant which is specially allowed by the Code of Practice to appellate courts of competent jurisdiction, is not a writ of right; it is within the sound discretion, of the tribunal to which the application is made; and the party who resorts to it is bound to establish such facts as to convince the appellate court that the remedy applied for is necessary, not only for the protection of the legal rights of the party, but also and'principally for the constitutional exercise of our appellate jurisdiction. We understand, therefore, that the authority thus granted, being considered in relation to the Constitution, which allows this court appellate jurisdiction only, is to be confined to matters whicli have a' tendency to aid that jurisdiction.”

In State v. Judge, 8 An. 92, the court said:

“It is abundantly settled that this court disclaims any general superintending control over the district courts, and limits its summary actions to those cases where its interposition-is necessary for the maintenance of its appellate jurisdiction.”

In State v. Judge, 11 A. 696, where the relator averred that he had excepted to the jurisdiction of the court below, and that his exception had been improperly overruled and asked for a writ of prohibition, the court said:

“In cases in which a party has atí adequate remedy by appeal this court will not listen for a moment to an application for a writ of prohibition or mandamus. Wé think the relator will, if injured by the overruling of his plea, have an adequate remedy by appeal from such final judgment as may hereafter be rendered against him in the case.”

In the case at bar, we are of opinion that if a final judgment shall ever be rendered against the relators they, will have an adequate remedy by appeal. The writ they ask for is not one of right, and the case does not show .a legal necessity for such a summary remedy. In this view it is unnecessary to consider the Other questions in the case.

For the reasons given it is ordered that the rule taken by the relators be dismissed with costs.


text:
    No. 1989.
    State, ex. rel. Pike, Lapeyre & Brother v. The Judge of the Fourth District Court.
    PPLICATION for a writ of prohibition.
   Howe, J.

The facts of this case are substantially the same as those in the case of State, ex. rel. D’Meza and others v. Judge of the Fourth District' Court 5 and, as in that case, we perceive no legal necessity for the writ which is asked for.

For the reasons given in the case of D’Meza, It is* ordered that the rule taken by relators herein be dismissed with costs..


author: Wyi,y, J.

text:
    No. 1233.
    Bartley, Johnson & Co., Appellees, v. Succession and Heirs of Bosworth, Appellants.
    The plea of prescription will not be defeated for any cause not mentioned in the exceptions ee-. tablished by law.
    The maxim contra non valentem agere non currit preseriptio, forms no part of our written law, and cannot be invoked to defeat the plea of prescription. Smith v. Stewart. (Ahto page C7,)-
    from the. Thirteenth- Judicial District' Court, parish of Carroll, Farrar, J-.

      Sparrow & Montgomery, counsel for plaintiffs and appellees.
   Wyi,y, J.

Tliis suit was instituted under the act of 1853, to revive an order of seizure and sale and a judgment- rendered'.against Felix Bosworth prior to 1853.

The defense is the plea of prescription, more than ten' years having, elapsed from the promulgation of tlie act of 1853, to the institution of this suit. There was judgment in favor of plaintiffs ordering the revival of the judgments and the defendant has appealed1. ' ■ ■

The act approved thirtieth of April, 1853, provides that all judgments for money, whether rendered within or without the State, shall be prescribed by the lapse of ten years from the rendition of such judgment; provided, however, that any party interested-in any judgment may have the same revived at any time before it is prescribed, by having a citation issued according to law, to the defendant or his representative, from the court which rendered the judgment.” * * * Acts of 1853, p. 250.

There was no citation issued nor steps taken to revive ..these judgments within ten years as provided by said act, and in 1863 the prescription of ten years accrued. Plaintiffs have endeavored to avoid the plea of prescription by invoking the maxim contra non valentem agere non currit preseriptio. They have introduced evidence to show that they could not institute suit during the war in the parish of Carroll, because the records were removed, and the parish site was occupied by the rebels; that plaintiffs lived in New Orleans and were prohibited by military orders from going into rebel lines during the war.

We have no authority to disregard the written law declaring that all judgments shall be prescribed by the lapse of ten years, and apply to this case the maxim contra non valentem, agere non currit preseriptio, which forms no part of our written .law. We had occasion to review this maxim and the authority of the courts of this State to apply it, in the case of Smith v. Stewart, lately decided; and.for the reasons therein assigned, we are of opinion that the.plea of prescription must prevail in this case.

It is therefore ordered that-the judgment appealed from be reversed and annulled, and it is now ordered that plaintiffs’ demand be dismissed at their costs in both courts.


text:
    No. 2041.
    Lewis E. Stowers v. Succession of D. F. Blackburn and C. A. Blackburn.
    Solidarity is never presumed; .it exists, if all, when several persons bind themselves towards another for the same sum, at the same time and in the same contract.
    The acknowledgment and promise to pay by a tutrix in hor individual capacity will notintor-mpt prescriptlon as'to the succession. 15 An, 168.
    from the Thirteenth Judicial District Court, parish of Carroll, Farrar,.J.,

      ¡Sparrow & Montgomery, counsel for appellants.
   Howell, J.

This is an appeal from a judgment rendered on default against the succession of D. F. Blackburn, deceased, and Mrs. C. A. Blackburn, in. solido, for ,$10,000 with eight per cent, interest from first' of January, 1860, on the following note:

“$10,000. On. the first (1st) day of January ,(1861) eighteen hundred and sixty oné, wc, 6r either of us promise to pay L. E. Stowers, Ten Thousand Dollars, with ten per cent, interest from the first day of January next for, money .loaned.

“D. F. BLACKBtJRN, “C. A, BLACKBURN.

“December 19, 1850.

' “ On tbe first day of January, 1862,1 promise to pay L. E. Stowers the above sum, Eleven Thousand Dollars, with ten per cent interest.

“C. A. BLACKBURN.

“ (Endorsed), Lake Providence, La., December 13, 1865. I acknowledge the within note to ho correct.

“C. A. BLACKBURN.” '

Service was accepted as follows: ■

“I acknowledge service of the foregoing petition and note sued on and Citation, as' executrix and in my individual capacity, this September 11, 1867. "•

“C. A. BLACKBURN.”

The prescription of'five years is pleaded in this court and is urged only on behalf of the Succession, on the theory that the acknowledgment made on the thirteenth of December, 1865, was made by Mrs. Blackburn individually, and the suggestion that she has gone into bankruptcy.- ■■ '

Bo'th -parties admit that the- promise, written at the foot of the note, was the individual assumpsit by tbe widow of the note sued on, although for a different sum and payable at a different date, and the question is, whether- or not tiie acknowledgment on the thirteenth of December, 1865, interrupted prescription as to tbe succession, represented by Mrs. Blackburn as executrix. To sustain the affirmative, it must be beld, both that tlie obligation sued on is not a solidary one, and that Mrs. Blackburn did not make said acknowledgment as executrix.

First.- — It is- not shown that she ivas bound in solido ás maker Of tbe note and hence her liability for the debt can rest -solely on her SubSequent promise to pay. But It is contended, and we think successfully, that this promise does not create the solidarity contemplated by the' Code, in determining the effect of an acknowledgment by one of the' co-debtors in solido. Solidarity exists, by the Code, when several persons bind themselves towards another for the same sum, at the same time, and in the same contract. It cannot be presumed. There being no priority nor reciprocity between the promissqrs, nor express stipulation of solidarity in this case, the defendants are pot debtors in solido, and consequently tho acknowledgment of thirteenth of December, 1865, if made by Mrs.- Blackburn individually, did not interrupt prescription as to the succession. C. C. 2072, 2077, 2086-7-8, 2092, 3517; 12 JR. 183; 15 A. 168. It is unnecessary to decide whether or not the executrix could create a solidary obligation against the succession.

Second. — The question whether she made the acknowledgment as executrix is one of inference, and upon the pleadings and evidence before us, is one of considerable doubt.

As the plaintiff might have adduced evidence on this point or otherwise shown an interruption of prescription, if tho plea had been filed in the lower court, we think the ends of justice will be subserved by remanding the cause as requested by the appellee.

We cannot disturb the judgment as to Mrs. Blackburn, as upon the admission of counsel she is in bankruptcy.

It is therefore ordered that the judgment of tho District Court against the succession óf D. F. Blackburn, deceased, be reversed, and tho cause as to’said succession be remanded upon the question of prescription; costs of appeal to be paid by appellee.

Mr. Justice Wyly recused.


text:
    No. 2004.
    Citizens’ Bank of Louisiana v. Henry Johnson and Widow W. J. Bogan.
    A certificate of stock of a corporation or banking company, pledged by tho owner to the company to secure the payment of a note and mortgage to the bank for money loaned, operates as a standing acknowledgment of the debt, and prescription does not run against the noto while the stock is pledged.
    from Fifth District Court, Parish of Iberville. Posey, J,

      Bousseau & Fstavan, for Citizens’ Bank. F. U. Farrar, for Johnson, executor.
   Ludeling, C. J.

On the twenty-seventh day of December, 1867, the' Citizens’ Bank of Louisiana obtained an order of seizure and sale, under an act importing confession of judgment, and containing the-fact de non alienando, against the property mortgaged, which was in the possession of Mrs. W. J. Bogan. 'Under a writ, issued in the case, the sheriff seized the property described in the writ, and was proceeding to sell the same, when he was restrained by an injunction obtained by Joseph Johnson, testamentary executor of Henry Johnson.

The injunction was granted on the allegation that the notes or obligations, secured by the mortgage, were extinguished by prescription— more than five years having elapsed since their maturity.

The Citizens’ Bank prayed for the dismissal of the injunction for the following reasons, to wit:

“ Because the stock-notes of Henry Johnson are not prescribed, the same being subject to annual payments, up to the expiration of the charter.

“ Because prescription did not run during the war.

Because the original debt of Henry Johnson has been assumed by the subsequent purcliasors, and late actual possessor, sued in this case, does not plead prescription.”

There was judgment in favor of tlxe Citizens’Bank of Louisiana, dissolving tho injunction. From this judgment Joseph Johnson, executor, has appealed.

In accordance with one of tho stipulations in the eleventh section oí tho charter of the bank, the annual payments necessary to a. renewal of the notes were made up to the first day of February, 1860 — since which period no payment has been made — and consequently the payment of tho notes has been exigible since the first February, I860. Section 11 of charter, acts of 1883, p. 181. More than five years having elapsed since the last payment, before tho bank instituted proceedings under their mortgage, tho claim would be barred by prescription if there had been no interruption thereof.

The notes or obligations, which form the basis oí this suit, were executed by Henry Johnson, a stockholder in the Citizens’ Bank of Louisiana, in pursuance with the terms of the eleventh section of the charter of the bank, which declares that every stockholder in said corporation, on depositing and pledging his certificate of stoelc, shall be entitled to a credit equal to one-half of tho total amount of his stock j provided, that in proportion as such stockholder shall use the credit, he shall give his notes or obligations to said corporation for the amount so lent him, and shall pay interest thereon annually and in advance.” Acts of 1833, p. 181.

The notes or obligations are in the words following:

“ Be it known that I am well and truly indebted unto tho Citizens’ Bank of Louisiana, for value received, in the Bum of eight thousand three hundred and eighty-eiglit dollars, being the amount of mg credit as-a stockholder of two hundred and forty-four shares of said institution; which sum I will pay at the banking house of New Orleans, on the first dag of August, 1851, fixed, or renew, according to the provisions of the charter of said-bank. The payment of the aforesaid sum of money is secured by a deed of mortgage and pledge, passed by myself hnd wife, before Adolphe Boudousquie, notary public in and for this city and parish of Orleans, under date of this day.

“II. JOHNSON.

“New Orleans, March 1, 1851.”

The other note is for $4550, and was payable first February, 1852. In other respects it is similar to the one copied above.

The notarial act, referred to in tlic notes, contains this declaration : “ And in order to secure furthermore unto the Citizens’ Bank of Louisiana the payment of the sum of twelve thousand nine hundred and thirty-eight dollars, amount of the said stock notes, and also the payment of the eventual interest above stipulated, the said Henyy Johnson does hereby pledge and pawn, in favor of said bank, the aforesaid three hundred and seventy-four shares

It is apparent that the condition on which Henry Johnson,, deceased, borrowed the money from the bank, was that he should deposit and pledge his stock in the Citizens’ Bank of Louisiana to secure, the payment of his loan; and the notes and the notarial, act signed by Henry .Johnson establish the fact that this pawn and pledge was made by him. Whilst tills' pledge remained in the possession of the bank, prescription against the notes and obligations the pledge was intended to secure was interrupted, because it was a standing1 acknowledgment of indebtedness on the part of Johnson, “ Prescription is interrupted, and ceases to run, whenever the debtor or possessor-acknowledges the debt, or the adverse right'against which it ivas running! ‘ O. C. art. 3480. ' This'acknowledgment may be express or implied.- -In-this ease it is of the latter character.” 1 R. 556, Wilson v. Banner; 8 R. 145, Montgomery et al. Levistone.

En ’general- la reconnaissance' du droit-; sOumis a la prescription-n’opere l’interruptioh que pour le passe, et permét a une .prescription' noavelle de recoinmencor a l’instant memo. \ -Mais, il cn • peut etre quelquefois autroment.' Ainsi, quánd un debiteur donne uii gage a sou creancier pour surete do la- creance, co n’est pas seulement pour le temps anterieur que la proscription est interrompu; elle eontinuerra de l’etre tant que le creancier rostra nanti du gage(, puis-qu’en lo lui lais-sans dans le mains, le debiteur'on ses heritiers renoñvellent constament la reconnaissance tacit de la dette.” Marcado Prescription, p. 146. ■Prolong, No. 618; Duranton,' No. 269.

■ It is therefore ordered, adjudged and deorecd that; the judgment of the lower'court be affirmed, and- that the appellant pay the costs of this appeal.


text:
    No. 2015.
    A. Ledoux v. John R. Buhler.
    A promiso to pay, subsequent to the maturity of the obligation, may be set up by an amended petition. . _ ...
    Where a dobfc existed between two parties who liquidated the same by note, at a time and under circumstances rendering the execution of the note illegal on account of one party residing within the Confederate and'the other ■within.-the Federal military lines', during the late war, and, the debtor promised to pay the debt after the war had ceased, with a full knowledge of the nature and origin of the obligation, the promise can be enforced and the debtor compelled to pay the obligation. ’ '
    from the Fifth District-Court,-parish of West Baton Rouge, Posey, J.

      Pavrot & Lamon for appellant. Parrow & Pope for appellee.
   Howell, J.

This is an action on a promissory note made-by John Buhler on sixteenth May, 1862, at West Baton Rouge, for §3,780, payable to the order of Menard & Vignaud, twelve months after date, at their office in New Orleans, with eight per cent, interest after due.- The . defendant, who accepted, purely and simply, the estate of his deceased father, John Buhler, filed a perenitory exception, alleging that at the. date of executing- the said note the maker resided within the Confederate military lines and the payers within the Federal military lines, and consequently the contract was null, being in violation of law prohibiting all commercial intercourse or transactions between said parties, of which facts tlie plaintiff had notice.

. The plaintiff then filed an amended answer, declaring that said note had been given in renewal of an, obligation existing as far back as 1859, originally for $5,000, several times renewed and reduced by payments to the amount of the note sued on, and that in 1866 the. defendant .acknowledged the correctness and validity of said obligation and promised to pay the same. i

The defendant excepted to the filing of this amended petition for the reasons that it would change plaintiff’s ground of action, • that tbc original obligation was novated and that the promise of defendant was in view of a compromise, which was ^properly overruled. The substance of plaintiff’s-demand was not changed by allegations'Of the amended petition. They simply set forth i¡he origin of the obligation, and the alleged promise to pay is not inconsistent with the .original demand, and can properly, be set up by amendment. The questions of novation and compromise depend on evidence and cannot, in this instance, be a ground of exception to any inquiry into.the .facts alleged. .....

The District Judge sustained the peremptory exception and dismissed plaintiff’s suit, who has-appealed.

The only question which we deem it necessary to examine is that.of defendant’s acknowledgment. He contends that it was made .in view of a- compromise and :without a: knowledge of the nature Of the obligation, which being absolutely void is not capable of being made valid; ‘

The acknowledgment and promise are shown to have been unconditional. The only point of- difference was as to the time when a confession of judgment should be made. The note, itself was notice to the defendant of the circumstances, which in law, would affect its validity, and-it is apparent that he must have made the acknowledgment and promise with a full knowledge" of the origin and nature of the obligation, which we must hold to be such as to form a legal basis for. a new promise to pay the debt evidenced by the note sued on. The obligation existed before the ‘war., and although the note was executed between parties not competent at the time to contract, the debt' was not thereby extinguished and the subsequent promise to pay it, as evidenced by said note, having a moral obligation' as its basis, can be enforced in a suit thereon, which may be taken asthe evidence of the debt agreed on by the parties.

The judge a quo erred in dismissing plaintiff’s suit cn the peremptory' exception, • which is really a defense to the action, and as there is oyiden.ee ,in the record on the merits, to establish the claim, we must sustain,it. . ,

,-It is therefore ordered that the judgment appealed from be reversed, and that plaintiff' recover of the defendant, John It. Buhler, the sum of three thousand seven hundred and eighty dollars, .with eight per cent, interest from the sixteenth day of May, 1863, and costs in both courts.

Rehearing refused.


text:
    No. 2024.
    Bridget Grady, Administratrix v. Louis Desobry, Sr., et als.

    The State Engineer having modo a contract in conformity with the Act of 1857, p. 1G2, for improving and draining Bayou Bourbieux, which lies in the parishes of West Baton Rouge and Iberville, is a competent witness to testify as to the performance of the work in accordance with the contract.
    The fact that the engineer is required by the contract to make a roport to the Police Jury of the. completion of the work does not disqualify him from testifying to other facts not embraced in his reports
    fronv the Fifth District Court, parish bf Iberville, Posey, J.

      A. Talbot, for plaintiff and appellee. Barrow & Pope and W: P. Bobertson and Oscar Lauve for defendants and appellants.
   Howell, J.

This is a suit, on a joint contract between the defendants and plaintiff’s husband for .the. improvement of the drainage of Bayou Bourbieux,-in the parishes of Iberville and We.st Baton Rouge, and in which the former parties bound themselves to pay to the latter the total sum of fifteen thousand dollars during the progress and on the completion of said work, which was to be performed according to the specifications in said contract.

The parties first cited excepted to the petition on the ground that the contract sued on, being a joint contract, was not complete and' binding, as one of the contracting parties had not signed and another signed conditionally, and the condition-was not accepted by the others.

By án amended petition accompanied by the original contract, the party alleged not to have signed, was'made a party to the suit upon the averment, that he was a party to said original contract, which - was proven, and the only question -on the exceptions is whether or not the condition annexed to the name of one J. A. Levique, in the following, words: tf a eoudition que je sois egoutej’ was accepted.

On the trial of the exceptions, a contract between the State Engineer and these defendants was introduced, by which the latter had agreed to do-the work of -improving the Bayou Bourbieux, as authorized by-Act of 1857, jx 163j and for. a sum to be collected by tlic engineer from the owners of the lands- drained, and paid to defendants as the work progressed. . By the contract stied on this same work was to be done by plaintiff’s husband for the defendants. The engineer testifies that, at the date of giving his testimony, he had not paid the defendants in-full the amount coming to them, as per contract between him and them; that it was not the main reason, in entering into contract with them, that they had an interest in the improvement of the bayou; the main reason was that they were the lowest bidders to do the work; that the land of Lavique was embraced in the survey required to be made, and was drained by said bayou. The above statute authorized the engineer to let out said work by contract, which should be binding on all the proprietors of the lands the same as if they had personally bound themselves in said contract. .Under this state of facts and the law we must infer the acceptance” and .fulfillment of the condition, if such acceptance was essential. The defendants had bound themselves, as contractors with the State Engineer, to do tlie work or cause it to be done, without reference to any benefit to their own. hinds ; they had evidently received a part of the price from the engineer; and the land of Lavique was drained according to' the condition. ■ We cannot see any legal objection to the testimony of the engineer as to the benefit to Lavique’s land. The objection that the survey ” is the best evidence might possibly be good in a suit against Lavique for the assessment upon him as a proprietor of the lands to be drained, but not on his contract to pay for the work in question.

On the merits, it is'objected that the engineer could not prove, by parol, that the work was done in accordance with the contract, as the law required him to malve a report thereof to the police juries of the two parishes. This report was for the purpose of placing the work after its completion under the control of the parish authorities, who were then to appoint commissioners to keep it in repair, the engineer had full control- and supervision of the work as it progressed, and was by the law and the contracts the judge of its character and- completion, and ho could testify on’the'-subject.

No objection is urged to the amounts found due by the judge a quo.'

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


text:
    No. 2047.
    Louisiana State Bank v. Yelverton Cammack.
    Whore the certificate of the cleric shows that the record contains all the testimony adduced, documents filed and proceedings had, the. appeal will not be dismissed because there is no bill of exceptions, statement of facts or assignment of errors. 20 An. 213; C. P. 601, 002. 7?he plea of prescription will be noticed when made for the first time in the Supreme Court,
    A !\ PPEAL-from the Thirteenth Judicial District, Court, parish of Tensas, Hough, J..

      Farrar é Beeves, for plaintiff and appellee, Collier ti Clinton, for defendant and appellant.
   Howe, J.

The curator of tlie defendant’s succession has appealed from a judgment against the defendant rendered upon a bill of exchange due April twenty-six, 1862, and founded. on a citation of which service was made August 3, 1867, and has pleaded in this court the prescription of five years. . .

The appellee has moved to dismiss the appeal.

First. — “Because all the evidence adduced is not in the record, and the clerk who certifies the fact that the record contains all the evidence adduced was not clerk of the court when the case was sued and cannot certify any such fact; and. '

Second. — “Because the record contains no note of evidence, statement of faets, bill of exceptions nor assignment of errors of law upon the face of the record, whereby this court can review the decision appealed from.”

As to the ground first quoted, the certificate of the clerk appears to be regular, and we find nothing in the record, of which this court can take notice, to show that the certificate is untrue or that the clerk had • . * / no power to make it. ■

The second ground for the dismissal of the appeal cannot prevail. The record is certified to contain all the testimony adduced, documents filed and proceedings had, and the deposition of the only witness appears to have been taken in writing.- No statement of facts could therefore be required. C. P; 601, 602, 896; 20 An. 213. Nor is an assignment of error absolutely necessary in such case. 14 L. 371. And in this case we see no necessity of a bill of exceptions. The appellant comes before us with a plea which is permitted bylaw and which we must consider. By article 902 of the Code of Practice it is provided that although in general parties- before the Supreme Court aré not allowed to plead other matters than those-which were before the inferior court, nevertheless it may depart from this rule when the exception taken is one of those which may be pleaded at any period of a cause, and the proof of it appears by the mere examination Of the record. Thus prescription may be pleaded before the'Supreme Court, when the proof of it appears bn the face of the proceedings in the lower court. These proceedings have been 'correctly reported to us— so declares the certificate of the clerk. The right to pléáfi prescription here and the validity of the plea do not necessarily depend bn a note of evidence, a bill of exceptions or an assignment of error. If from a “mere examination of the record” regularly certified to us we-find that the debt sought to be enforced is prescribed, we must decline to dismiss an appeal which had been taken, in regular form, and sustain the -plea of prescription.

In this case we find from- a mere examination of the record that ■ the debt sued on was prescribed by the lapse of more than five years between the maturity of the bill and the service of citation.

The appellee has not .asked that the cause he remanded for trial on this plea.' It is therefore ordered and adjudged that the judgment appealed from lie reversed, and that there he-judgment in favor of Robert Murdock, curator of the succession of Yelverton Cammack, deceased, with costs in "both courts.

Rehearing refused.


author: ..Howei.l, . J.

text:
    No. 1563.
    Samuel Smith & Co. v. J. H. Morrison.
    Wiiere an important document, such as a mortgage, has been inadvertently omitted from the record, tho Supremo, Court.wHl, in the exercise of a sound legal discretion remand the case in order that both parties may have an opportunity to establish their rights.
    1 ii. PEE AL from the-Seventh ..Judicial District Court, parish of Pointo Coupee, Cooley, J.

      Harrison (£- Jfunion and Hclward Philipps, for plaintiffs .aml appelleenj 6V J5. Schmidt, for-defendant and appellant.
   ..Howei.l, . J.

■ This suit was brought as a personal action on two1 promissory, notes, and afterwards an amended petition was filed, alleging that they were given as part of the price of a plantation, and asking'-that .a.'special mortgage and vendor’s privilege, as shown by the annexed act of sale and mortgage, be recognized and enforced. Judgment. was rendered on default and ■ confirmed for tlio amount of tbe notes wi th mortgage and privilege as claimed.

The defendant has taken a, devolutivé appeal and he assigns as error that there is no evidence to. establish the mortgage and privilege allowed. ■ .

The certificate of the clerk states that the record contains “a true and. correct transcript of all the documents on file and proceedings had (there being no testimony,offered) on the trial of the case, etc.” At the instance of the plaintiffs’ counsel a certiorari was issued for the purpose, and in answer thereto the clerk amended his certificate to read thus: “that the foregoing and within twenty-six pages do contain a true and correct transcript of all the documents on file, evUlencc.adduced and proceedings had on the trial of the case, etc.”

The notes paraphed, but not tbe act of sale aiid mortgage, alleged to be annexed to tbe amended petition, are in the record, and there is no minute :of. evidence.

. The evidence ip establish the mortgage and privilege set out and claimed is wanting; but the record satisfies ns that the notarial aet in question, if not produced in court on the trial, was in the possession or control of counsel, and in the exercise of an equitable discretion, vested in'this court-, by art. 906 C. P,, plaintiffs should, under the peculiar circumstances of this-case, be allowed an opportunity to supply an apparently inadvertent omission. The facts that the notes are paraphed and .that the -judgment as drawn up and signed contains a description of the mortgaged property, as, it is alleged, is set forth, in the act of sale annexed to the amended petition, ren der it probable that the said-act was before the judge; but upon-the record as certified we cannot,affirm the judgment or dismiss the appeal. While we would not, even indirectly, encourage negligence in litigants v or théir counsel, we feel authorized tq remand the case to give both parties- an opportunity to establish their rights, in the belief that the ends of justice will thereby bo sub-served. See 13 L. 138;. 15 L. 231; 8 R. 120; 9 R. 387; 12 R. 518; 2 A. 846; 9 A. 95; 10 A. 94; 4 R. 323 ; 4 A. 231.

It is therefore ordered that the judginent appealed from be reversed and the cause remanded for further proceedings according to law. Plaintiffs to pay costs of appeal.


author: Wyi.y, J.

text:
    No. 478.
    Samuel Snodgrass, Appellant, v. Thomas A. Adams, Appellee.
    A sale of imported goods at the port of New Orleans in 18’Gl and 1862, while the city and State was under the control of the insurgents, did not impose on the vendor the obligation of warranty against eviction for the non-payment of duties to the United States. "Under such circumstances, the purchaser is presumed to have contracted with reference to the fact that the duties had not been paid. . • f
    The vendee cannot maintain an action against the vendor to rescind the sale of imported goods on the-ground that the duties had not been paid to the United States, when it¡ is shown that the port was under the control of the insurgents at the time.
    from the Second District Court of New Orleans, Sowell, J.
    <?. i. Bright, Attorney for Appellant. . C. Hoselius and A. Philips,

    attorneys for appellee.
   Wyi.y, J.

On the seventhEehruary, -1862, plaintiff purchased from the defendant three hundred and seventy-five rolls of India bagging, which had been imported by the defendant.-from a foreign country in the Spanish ship Monserrat, that had -arrived at the port of - New Orleans on the twenty-seventh of May, 1861. The duties thereon were collected by Mr. E. Hatch, then acting as collector of customs at this port for the Confederate States, hut he had been commissioned by the United States. Plaintiff afterwards sold all the lot of bagging, except one hundred and twenty rolls, containing fourteen thousand four hundred yards, which were taken possession of by the United States, when the Federal forces captured the city, and are detained for the duties claimed to ’ be due therepn to the United States government. On the eighth of December, 1862, plaintiff being informed of tMs seizure, notified the defendant thereof and demanded the return of the bagging to him again free of all claims of the United States, or the amount paid by-him fpr the one hundred and twenty rolls, to wit: $3456, and the defendant refused to comply with the demand.

Plaintiff then, instituted this "Suit fdf 'the "f ¡escisión of íhé- sale to the extent of the one hundred and twenty rolls, and to recover the amount paid therefor by him as aforesaid.

Defendant answered, averring that when the cargo arrived at the customhouse on the twenty-seventh of May, 1861, it was regularly entered and the duties thereon duly paid; and having sold and delivered it to the plaintiff on the seventh of February, 1862, it remained thereafter at his risk.

On the trial in the lower court, there was judgment of non-suit, and plaintiff has appealed.

There is no dispute as to the facts, The question for us to determine is, whether the sale of the India bagging at the time imposed upon the defendant an obligation to warrant the purchaser against the payment of the import duties of the United States thereon.

Had the sale occurred under ordinary circumstances, whilst the Federal Government was in undisturbed administration of its revenue laws at the port of New Orleans, it would have imposed the obligation of warranty on the vendor to maintain the purchaser’s peaceable possession of the thing sold against the claims of the Government for duties thereon, and against the claims of all other persons. Being in possession of a foreign fabric at this port, the defendant would have been presumed to have paid the duties to the Government, and the plaintiff who purchased it from him could have held him liable in warranty if evicted by the Government.

But on the seventh of February, 1862, when this sale was made, the vendor and the vendee knew that they were contracting in an insur-rectionary- district; that at the time and for twelve months previous the administration of the revenue laws of the United States had been obstructed, and the customhouse at this port was in possession of the so-called Confederate Government, which was collecting the duties.

The parties are presumed to have contracted in reference to the surrounding circumstances at the time. As the duties were not then being collected here by the United States on account of the rebellion, the plaintiff is presumed to have purchased the bagging at his own risk so far as the claims of the United States might extend for duties thereon. Under the circumstances, the contract of sale did not, in our opinion, create the obligation of warranty as against the United States.

Plaintiff bought the property in a rebellious State, at a time when the surrounding circumstances created the presumption that the duties had not been paid to the Federal Government — the parties evidently contracted in view of that fact.

We are of opinion that the District Judge did not err in rendering judgment of non-suit.

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

Rehearing refused.

Mr. Justice Howell recused.


text:
    No. 2005.
    Alcide Bouanchaud, Appellee, v. Charles D’Hebert, Appellant.
    Section 4 oí' the act of the Legislature, approved September 4,1868, No. 51, making the clerks of District Courts ex officio clerks of the Parish Courts, is in conflict with Article 117 of the Constitution of 1868, which declares that “ No’person shail hold or exercise, at the'sarne .time, more than one office of trust or profit, except that of justice of ’$he peace or notary public.”
    Section 9 of the same act conflicts with article 86 of the Constitution, which declares that the Parish Judges of the several parishes shall receive a salary and fees to Be provided by law The above numbered sections of the act No, 51, approved September 4,1868, are unconstitutional and void. Constitution, arts. 86 and 117.
    A _£L ,PPEAL from tlie Seventh District Court, Parish of Pointe Coupee, Miller, J.

      Cooley & Philips, for petitioner and appellee. F. II. Farrar, for defendant and appellant.
   Wylt, J.

Plaintiff, who is Judge of the Parish Court of the parish of Pointe Coupee, has enjoined the defendant, who is clerk of the District Court of said parish, from acting as clerk of the. Parish Court,' and from collecting the fees of that office, which, he contends, belongs to him under the provisions of the Constitution.

. fie avers that the claims and pretentions of the defendant to tho office of Parish Clerk, and the fees .and emoluments thereof are based upon an- act of the Legislature approved September 4, 1868, which provides that the clerks of the several District Courts of this State shall be ex officio clerks of the Parish Courts, and which prohibits Parish Judges from receiving any fees; all of which, he contends, is contrary to and in violation, of the Constitution of this Stiite, which provides (article 86) that Parish . Judges “ shall- receive a salary and fees, to ho provided by law. Until otherwise.'provided,- each. Parish Judge shall receive a salary of one thousand two. hundred doHbrs per-annum, and such fees as are established by Law for District Clerks.”

He avers that, under this provision- of the Constitution,- ho has the exclusive right to act as clerk of his own court and receive the fees thereof.

He further represents that' said act is unconstitutional, because it authorizes and requires the clerk of the District Court to hold aud exercise the office of clerk of the Parish Chart, two separate offices of trust and profit, which is in violation of Article 117 of the Constitution.

. The defendant denied generally the allegations of plaintiff; denied that the law making him ex officio clerk of. the Parish Court is unconstitutional as alleged; and averred that plaintiff has no cause of action, and that he is estopped from pleading the unconstitutionality of said act, having drawn the additional salary stipulated -therein.

: There was judgment in favor of plaintiff perpétuating the injunction; and the defendant has appealed.

The -facts are admitted. - The only question presented for our consideration is, whether that part of the act of fourth September, 1868, which mates tlie clerk of tlie District Court ex officio the clerk of the Parish Court, and which declares that the Parish Judge shall have no fees of office, violates the provisions of the Constitution of 1868.

Article 117 of the'Constitution declares that “No person shall hold or exercise, at,the same time, more than one office of trust or profit, except that of justice of the peace or notary public.”

The fourth section of the act approved September 4, 1868, provides “That the clerks of the several District Courts shall be cx officio clerks of the Parish Courts, and that the clerk Or his regularly appointed and qualified deputy, shall always be in attendance on the Parish Court at all- its terms and ■ sittings.” It also proscribes certain duties to the clerks and imposes' a fine for failure to perform those duties.

W.e think this section clearly creates the office of Parish Clerk, and the words “ex officio ” do toot make it the less an office of trust. It is a separate office, and - the designation of the District Clerk to fill it, is' contrary to article 117 of the Constitution, and is, therefore, null and void

Article 86 of the Constitution declares that For each Parish Court one Judge shall be elected by the qualified electors of the parish. He shall hold his office for the term of two years. He shall receive a salary and fees, to be provided by law. Until otherwise provided, each Parish Judge shall receive a salary of one thousand two hundred dollars, and such fees as áre established by law for clerks of the District Courts. lie shall be a citizen of the United States and of this State:’’

The ninth section of said act of September 4,1868, provides “ That the Parish Judges' shall have.a salary, payable quarterly, on their own warrant on the' State Treasurer, graduated as follows: in parishes having one meinbéf iñ tlie House of Eepresentatives, two thousand dollars ; in parishes having two of more members in the House of Eepre-sentatives, two thousand five hundred dollars, and they shall have no fees of office.”

From a careful consideration of the eighty-sixth article of the Constitution, we are of opinion that the Parish Judge is entitled to receive n salary and fees, to be provided by law; and until the Legislature establishes other fees, he is authorized to receivo the same fees in cases in his court as the clerks of the District Courts are authorized by law to charge in like cases in the District Courts.

We think that part of the ninth section of said act which declares that Parish Judges “ shall have no fees of officé,” is also unconstitutional and void.

The eighty-sixth article of the Constitution secures to plaintiff, who' is * admitted to be Parish Judge, both a- salary and fees; and while it permits the.Legislature to fix the amount of the salary and fees, it does not authorize them to deprive him of the one or the other. The Legislature, had no more .power to deprive him of fees than of -a salary. It could not deprive him of either; ■

The Constitution evidently permits Parish Judges to perform the judicial and ministerial duties of their offices, and to receive in compensation therefor both salaries and fees.

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