text:
    Nos. 18 and 37.
    A. Levy vs. W. N. Collins, Sheriff, et al.
    In Appeals talren before tbepresent Constitution, it is still the amount claimed in good faith ■which determines the iurisdiction of this Court, and not the matter in dispute.
    It is only oyer issues between appellant and appellee that the District Court is stripped of jurisdiction after granting an Appeal. It may yet grant another Appeal to one of several appellees, for the review of issues between said appellees.
    APPEAL from the Eighteenth Judicial District Court, parish of Webster. Turner, J.
    J. D. Watkins for Plaintiff and Appellee.
    C. E. McDonald, J. A. Snider, Looney & Elstner and Alexander & Blanchard for Defendants and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

By consent of parties, we will proceed to determine the issues involved in the two transcripts herein as though they were presented in one only.

Oh Motioh to Dismiss.

Albert Levy, the plaintiff and appellee, moves to dismiss the appeals taken herein by Samuel Levy and the representative of the succession of W. N. Collins, two of the defendants, on the following grounds:

1. Prior to the dates at which the petitions of appeal were filed and allowed, a co-defendant, Hernsheim Bros., had taken and perfected an appeal from the same judgment as is complained of by the appellants, and the appeals so obtained cannot be entertained, as the district court had no jurisdiction to grant any other appeal to any one else.

2. The amount in dispute being less than one thousand dollars, this court has no revisory powers.

3. No due service of the petitions and citations of appeal was made on plaintiff.

Their last ground having been properly abandoned, we will consider the remaining ones, dealing first with the second, which relates to our jurisdiction, for, if it be well taken, we would be without authority to consider the first objection alleged.

While we consider, as we have already intimated in two cases, that it is not by the amount claimed, but, in the language of the present Constitution, by “ the matter in dispute,” that our appellate jurisdiction is to be tested, we feel ourselves authorized to determine on the face of the papers in this case, whether or not our jurisdiction has attached and still continues.

The appeals were taken before the present Constitution was adopted, and the suit before us is one in which property is claimed, represented to be worth more than one thousand dollars, exclusive of damages, at the rate of one hundred dollars per day, from the 22d day of October, 1878.

It is true, as charged by the plaintiff, that the judgment of the lower court was for seven hundred and fifty dollars, but (not losing sight of the fact that property worth more than one thousand dollars is claimed,) it has been very often, indeed, decided that it is not the amount for which judgment was rendered, but the amount claimed in good faith, which determines the jurisdiction of this Court.

Next. We cannot recognize the theory advanced by the plaintiff and appellee in the first ground urged.

It is unquestionably true that where there are several parties to a litigation in which a judgment is rendered, and one of them appeals, the others are appellees, and that from the moment that the appeal is granted and perfected, the court which has allowed it is stripped of jurisdiction over the ease, as between the appellant and appellee, but it does not at all follow from such a proposition, that the court cannot subsequently allow to an appellee a similar or different appeal for the review of issues between himself and the other appellees. The jurisdiction of which the court is divested is that over issues presented between the appellant and the appellees, and not that over issues between appel-lees among themselves. A statement of the proposition, with this distinction, carries its own refutation.

The motions to dismiss are overruled.

On the MeRits.

S. Hernsheim & Bros, and Samuel Levy, having instituted, in the parish of Caddo, two distinct suits against L. A. Levy for the recovery of a money claim, obtained upon fulfillment of the conditions precedent, writs of attachment against his estate, which were levied in that parish, and in that of Webster, on a stock of goods considered as belonging to him. Thereupon, Albert Levy, the next day instituted against them and the sheriff, who had executed the writs, an injunction suit asking for damages and for the delivery of the goods. The injunction asked was granted and the sale was arrested.

Relying upon those proceedings, he intervened in the original suits of the attaching creditors, and, averring title and possession of the goods seized, asked to be permitted to bond them on furnishing security. The court granted his demand.

Subsequent to the institution of the injunction suit, one Peiser, who had been incidentally mentioned in the petition in that case as a partner in commenclam, filed a paper therein in which he “ concurs in all the allegations and prayers of plaintiff’s petition herein, and prays for service and citation, and for general relief.”

The defendants having filed pleas setting up misjoinder and want of jurisdiction, and those pleas having been overruled, the trial of the case was proceeded with, ending with a verdict and judgment in favor of plaintiff for the property claimed, and for seven hundred and fifty dollars damages, in solido, against the defendants in injunction.

Hernsheim & Bros, having appealed from the judgment so rendered, obtained its reversal and a dismissal of the suit. (Not reported.)

The other defendants, who had appealed from the same judgment by the terms of the judgment rendered on appeal, were not to be affected by it, as the plaintiff had complained of a want of service of petition and citation. They were allowed time to make service, and their case was continued to the next term, which is, by the occurrence of legal enactment, the term lately opened at this place.

They now ask the reversal of the judgment, to which they are clearly entitled.

We do not propose at all to pass upon the pleas interposed by the defendants.

Admitting, arguendo, that the partnership composed of Albert Levy and H. Peiser was properly represented in this suit, and that the lower court had jurisdiction over the defendants, even on the claim in damages, we consider, for the reasons elaborately given by our predecessors who have thoroughly renewed and discussed the facts proved, on the appeal of Hernsheim Bros., that the plaintiff has not made out his case.

It is, therefore, ordered that the verdict of the jury be set aside, and the judgment upon it be reversed, and proceeding to render such judgment as should have been rendered, it is ordered, adjudged and decreed, that the injunction herein sued out be dissolved, and that plain-tifí’s suit be dismissed with'costs.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 17.
    C. E. R. King et al. vs. John Pickett et al.
    'In an. action to revive a judgment, the Defendant has the right to show that the judgment is absolutely null for want of citation. Laurent vs. Beelmau, 30 An. 363, and Conery vs. Rotchford, Brown & Co., 30 An. 692, affirmed.
    It is only by acts of great weight and conclusively proved, that a party could be estopped from setting upfi the absolute nullity of a judgment.
    A bankrupt is not estopped from pleading the nullity of a judgment, because he has placed it on his Schedule, in the descriptive List of claims against him.
    APPEAL from the Eighteenth Judicial District Court, parish of Bossier, Turner, J.
    J. D. 'Watkins for Plaintiffs and Appellants.
    Looney & Elstner, and J. A. W. Lowry for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

This is an action to revive a judgment.

Defendants resist upon the ground, among others, that the judgment sought to be revived is an absolute nullity for want of citation. After some contrariety of judicial opinion, we now consiáer it settled that this is a proper defense to an action to revive, and that a judgment rendered without citation cannot be revived. Laurent vs. Beelman, 30 A. 363. Conery vs. Rotchford, id. 692.

The services of citation on the defendants here were not personal, but domiciliary. They were served at the Willow Ohute Plantation, in Bossier parish, stated in the returns to have been the domicile of both defendants, by handing the same to one, James B. Pickett.

The evidence conclusively establishes that Willow Ohute was not the domicile of either of the defendants at the time, and that Jas. B. Pickett, to whom the citations were delivered, was not himself living there.

It is, therefore, clear that there was a complete want of citation. 0. P. 189, 201.

Neither of the defendants ever voluntarily appeared or pleaded in the cause.

The judgment was rendered by default, and was an absolute nullity. O. P. 206.

This ends the case as to Paulina Pickett.

It is contended, however, that John Pickett, by subsequent acts of acquiescence and ratification, has estopped himself from setting up its nullity.

The acts charged are not of a nature to operate such an estoppel. They are:

1. The following endorsement, found on back of a writ of ft. fa., issued on the judgment some years after its rendition : “Service accepted, notice of seizure and time waived, and consent that property may be advertised to be sold on the 1st Saturday of December next.

(Signed) R. C. Cummings,
John Pickett,
By Nutt & Leonard, Agents.”

It is to be observed that Messrs. Nutt & Leonard do not sign as attorneys of Pickett, but as agents, and we find not a word in the record to establish such agency, or to bring the apt home to Pickett in anyway.

2. The entry by Pickett, on his bankrupt schedules of this judgment, as follows : “ J. L. C. Graham and Capt. Thomas, Bossier parish, La., $50,260, the amount of two judgments rendered in Bossier parish, La., with special mortgage and vendor’s lien recognized, etc.” We regard this as merely descriptive of the claim against him. When a bankrupt knows of the existence of a claim against him, though he may believe it to be unfounded,' prudence requires him to place it on his-schedule to secure his discharge therefrom, and to give the claimant an opportunity of asserting whatever rights he may have against the estate. Such action presents no element of estoppel.

3. It is charged that he subsequently bought back property, subject to mortgages, for a song, and thereby got the benefit of the mortgage of this judgment as an element of the price, and cannot now repudiate it. We know of no principle preventing a purchaser of property subject to mortgages from contesting the existence or validity of apparent mortgages, in the absence of any special assumption or agreement to pay.

The other suggestions of grounds of estoppel áre of even less weight, and do not require consideration.

A judgment is the most solemn act of a court, and cannot be created except by the action of a court. No court has ever given a judgment against these defendants, because an apparent judgment, absolutely null for want of citation, appearance or plea, is no judgment. No subsequent action of parties of any kind could convert what was not a judgment into a judgment. The utmost that could be claimed as the effect of subsequent action would be to estop the defendants from setting up that it is not a judgment, i. e., from setting up the truth. To induce iis to give the effect of a judgment to what is not, and never could become a judgment, by maintaining such an estoppel, the acts charged must be weighty, indeed, and conclusively proved.

This disposes of the case, and dispenses us from discussing other defenses.

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


author: Poché, J.

text:
    No. 20.
    J. Lamorere vs. E. Avery.
    The Plaintiff’s claim being for less, and the Defendant’s claim in reconvention for more, than §1000, the Court 'will not pass upon the former, but mil upon the latter.
    Although Plaintiff filed no answer to Defendant’s reconventional demand, he has the right to offer evidence to disprove it. Affirming previous Decisions.
    Objections to an Aocount, on the ground that it does not convey the neoessary information, go to the effect and not to the admissibility of the evidence.
    A PPEAL from the First Judicial District .lx Taylor, J. Court, parish of Caddo.
    T. F. Bell for Plaintiff and Appellee.
    Hicks & Hicks for Defendant and Appellant.
    First — The plaintiff having sued and recovered judgment against the defendant for part of an entire demand, in order to give jurisdiction to the parish court, lost the amount sued for in this case. C. P. 91,156 ; 2 R. 207 ; 22 A. 492 ; 25 A. 228-4.

      Second — The plaintiff received, and procured Dillon, Ford, and Soape to sell the whole crop made upon the leased premises, fifty-five bales, confusedly with one hundred and twenty-nine bales of his own cotton, and failed to show the weights and prices of the cotton, and the defendant is entitled to demand the highest prices and heaviest bales, in the lot sold by the plaintiff’s factors, or his own uneontra-dicted estimate of the weight of Ms cotton, and demand the price of 10J cents. Story on Agency, secs. 203, 205, 332 ; 3 L. 557 ; 3 A. 77; 7 N. S. 708. If the former be adopted, the cotton was worth $3039 85. If the latter, it was worth $3101 04.
    Third — The cotton belonged to the defendant — was made upon the leased premises which was in his possession, and under his control, and was made by himself and laborers under a contract of hire for one-half the cotton in lieu of wages. C. O. 2673, 2746 ; 22 A. 438; 28 A. 643 ; 14 Johnson, N. Y. Rep. 367.
    Fourth — The court erred in overruling the defendant’s exceptions to the evidence offered by the plaintiff: First, because the account (T. 30, 31), had no marks identifying the cotton, did not state times or prices of sales, nor weight of bales, and the debits were in gross amounts without items, times of purchase or prices, or to whom the articles were delivered. 6 L. 77 ; 17 L. 373 ; 3 R. 365 ; 20 A. 194; 2 A. 395-6; Story on Agency, secs. 203, 332; 3 L. 557; 3 A. 77. Second, the law denies new facts pleaded in compensation, but raises no issue to a demand in compensation by way of reconvention for a surplus. In such case it is a separate and distinct demand, and must be put at issue specially. C. P. 367, 371, 329; 1 L. 266 ; 2 L. 284 ; 18 A. 672 ; 21 A. 272 ; 6 ST. S. 611.
    Fifth — If the evidence is admissible it does not, taken in connection with the whole evidence, disprove the defendant’s demand, reduce it in amount, or show its extinguishment. The imputation of payments to the rent was made and accepted in the account of date, November 13, 1879 (T. 29), and the plaintiff could not, afterwards, make an imputation unless accepted by the defendant, and until he do accept an imputation of payments,- he may demand that his payments be applied to any debt he owed the plaintiff, whatever may have been said between them on the subject. C. C. 2165 ; 18 A. 545 ; 2 A. 26, 28; 3 A. 251; C. C. 2163, 2165 ; 15 A. 527.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff, who was the lessee of Hart’s Island plantation, in the parish of Caddo, for the year 1879, subleased to defendant for that year a portion of said plantation for a stipulated sum of $705 per an-nun), and be brings this suit to recover said rent, subject to a credit of $25 33.

In bis answer defendant admits the lease, but avers that said lease was only a part of an entire contract, under which the lessor was, in addition, to furnish the lessee and his laborers with supplies necessary to enable them to raise a crop of cotton on the leased premises. That the whole crop thus raised, and amounting to 55 bales, was shipped to and sold by plaintiff for the account of defendant, and realized an amount sufficient to pay his rent, and an additional sum of $550, which plaintiff had paid for account of defendant, and to leave a balance in his-favor of $2400 33, which he claims of plaintiff by way of reconvention.

The judgment of the lower court was in favor of plaintiff for the-sum of $705, subject to a credit of $25 33, and for costs, and rejected-defendant’s claim in reconvention, at his costs, and defendant appealed. As the original claim does not exceed one thousand dollars, we have no jurisdiction to revise the judgment of the lower court on that branch of the case, and that part of the judgment must, therefore, remain undisturbed. 3 R. 387; 10 R. 438 ; 11 R. 12 ; 17 A. 199.

But, as the amount of the- reconventional demand is within our jurisdiction, we have authority to examine and pass upon it. '

The record shows that, under an agreement with defendant, plaintiff furnished him and his laborers money and supplies necessary to enable them to make and cultivate their crop of cotton, all of which was consigned to him in separate lots, as soon as gathered and ready for market, and that it was by him sold at varied prices, according to quality and to the fluctuations of the market.

After the defendant had introduced evidence in support of his-claim, plaintiff offered to prove by an account, supported by the testimony of his clerk, that he had fully accounted for all the cotton sold by him for account of defendant and his laborers, and that the proceeds of such sales had been applied to the amounts due him for his advances to defendant and to his laborers, who were entitled to one-half of the proceeds, and for whose indebtedness to plaintiff, on account of the supplies furnished to them, defendant had held himself responsible and-had obligated himself to consign and deliver to plaintiff the shares of' said laborers in the crop. The object of this evidence was to show the invalidity of defendant’s claim in reeonvention.

Defendant’s counsel, in his brief, contends that this evidence was Inadmissible on the ground that, plaintiff having filed no answer Or-other plea to his reconventional demand, there was no issue joined so as to justify the introduction of evidence to prove payment or ex-tinguishment of his claim, which should have been specially pleaded.. We find no bill of exceptions or other evidence in the record tending to-show that such objection was made or urged at the trial of the case. But even if it had been objected to at the proper time, the objection was and is untenable in law.

Our system of practice does not admit of replications or rejoinders. 0„ P. 829. And the law itself supplies a denial to all matters set up by way of compensation or reeonvention. To a similar objection urged in a case reported.in 8 N.- S. 364, Pierce vs. Millar, the Court said: “If that be true, then the defendant should have taken judgment by default, and the cause has- been tried without issue joined. This circumstance alone would compel us to remand the cause if we agreed with the counsel of defendant. But we are of a quite different opinion, we think that the contestatio litis was well formed by the petition and answer.” This rule of practice is no longer open to discussion. 3 L. 100, 23 A. 385, and authorities therein quoted.

By a bill Sf exceptions retained by him, we are informed that defendant objected to the same evidence, on the ground that the account contained no marks of identification of the cotton, and no mention of its weight, nor of the price and dates of sale, which objection was properly overruled by the district judge, on the ground that the objection went to the effect, and not to the admissibility of the evidence.

The defendant in his testimony denied the correctness of this, and of all other accounts filed in evidence by plaintiff; he denied having contracted with plaintiff for advances to himself or his laborers, and he flatly contradicted the testimony of plaintiff’s clerk, who was sworn to support the accounts filed.

But the record shows that he is unable to read, that in his' answer he had alleged a contract for supplies, and that in his suits he had confessed judgment on two accounts for supplies furnished him by plaintiff. Under such circumstances we can attach no credit whatever to any of his statements, especially when contradicted by a disinterested witness, who had been the book-keeper of plaintiff, and the custodian of all the accounts bearing upon these transactions.

After a careful perusal of the evidence in the case, we are satisfied that defendant, has utterly failed to make out his claim in reconvention, and that the judgment of the district court in rejecting it is just and correct.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court, rejecting defendant’s reeonventional demand, be , affirmed, and that defendant pay all costs incurred by his plea in re-convention in both courts.


text:
    No. 23.
    J. M. Hollingsworth, Executor, vs. James Wilson et al.
    A. sold, an immovable to B. in 1845, and sold the same property again to 0. in 1850. The sale to B. was not recorded: that to 0. was recorded in 1850. But B. sold to D. in 1848, arid that sale was recorded in 1848. Held that D/s title must prevail against that of O.
    Per Guriam. This has become a rule of property in this State, which should not be disturbed.
    Previous Decisions in 1st, 4th, 5tb, 6th and 7th Annual, re-affirmed.
    APPEAL from the First Judicial District Court, parish of Caddo. Taylor, J.
    Wise & Herndon for Plaintiff and Appellant.
    First — A sale has no effect against third parties, until recorded in the parish where the property is situated. Knowledge is not equivalent to registry. 21 A. 426 ; 26 A. B84 ; 29 A. 315 ; 28 A. 375.
    Second — An unregistered private act, though with possession, has no effect against tona fide purchasers without notice. The vendee’s laches, in not registering his title, descend to those who claim under him. Purchasers in good faith are not bound to search the public records indiscriminately and inspect every act registered to ascertain if some person other than the vendor, who has the latest recorded title, had alienated the land. Slidell’s opinion in Stockton vs. Briscoe, 1 A. 249 ; 7 A. 454.
    Third — The sale of immovables under private signature shall have effect against third persons only from the day such sale was registered according to law, and actual delivery of the thing sold. C. C. 2442.
    Alexander & Blanchard, and T. F. Bell for Defendants and Ap-pellees.
    In a contest for the ownership of an immovable, each party, holding in good faith and under title, j ust and translative of property — traceable to a common author — he must prevail who can trace his title to the oldest recorded deed, and such tenure cannot be defeated on the ground that an anterior conveyance of the same property may not have been recorded. 1 An. 249 ; 4 An. 267 ; 5 An. 677 ; 6 An. 773 ; 7 An. 454.
    Possession passes to the vendee of an immovable by the authentic act of sale. C. C. 2479.
    A private act once registered in the recorder’s office becomes authentic, giving notice to creditors and third persons. 25 An. 112.
   The opinion of the Court was delivered by

Fenner, J.

This case presents no dispute as to facts, and involves a single question of law.

It is a contest for the ownership of an immovable between parties, each of whom is in good faith, and presents a title just and translative of property and traceable to a common author. Marks, the common author, sold to J. M. Gilmer in 1845, and again sold to Marshall in 1850. The title to Gilmer was not recorded until 1854, while that to Marshall was recorded in 1850 ; but in 1848 Gilmer sold to J. B. Gilmer, whose title was recorded in 1848, two years before the sale to Marshall.

Plaintiff claims under the Marshall title, defendants under the Gilmer title.

The title of defendants must prevail. They are possessors in good faith, under a chain of duly registered titles running back to 1848, two years prior to the sale to Marshall, and their title cannot be affected by the non-registry of an anterior conveyance. The question is not an open one. It has been settled by five decisions of this Court, the last of which was rendered in 1852. 1 A. 249 ; 4 A. 267 ; 5 A. 677 ; 6 A. 773 ; 7 A. 454.

Since that date we have found, and have been referred to, no case in which the doctrine thus settled has been questioned. There has been no change in the law affecting the subject. Mr. Justice Slidell dissented in the above cases, and his opinions display his usual vigor and ability, and if the question was open, we would give them great consideration. But this is one of a class of cases to which the doctrine of “stare decisis ” is specially applicable. It involves a rule of property affecting the conduct of men ip their dealings ; and when such a rule has been adopted, and long adhered-to by the courts, even though founded'on doubtful principle, the maxim applies — “omnis innovatio plus novitate perturiat guam utilitate prodest.”

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


author: Levy, J.

text:
    No. 25.
    E. R. Moore et al. vs. Police Jury of Bossier Parish et al.
    Act ÜTo. 31 of tli© Legislature of 1880, “ prescribing the maimer of changing parish lines and of removing parish seats,” is null and void, because violative of Article 29 of the Constitution, -which declares that: “Every law enacted by the General Assembly shall embrace but one object, and that shall be expressed in the title.”
    The same Act Eo. 31 is also in conflict with Article 250 of the Constitution, which provides that “All laws changing parish lines or removing parish seats, shall, before taking effect, be submitted to the electois of the parish or the parishes to be affected thereby, at a special election held for that purpose, and be adopted by a majority of votes oí each parish cast at such election.”
    A PPEAL from the Second Judicial District Court, parish of Bossier. £X Drew, J.

      S. M. Nutt and J. A. Snider for Plaintiffs and Appellants.
    B. F. Fort for Intervenor and. Appellant.
    Wise & Herndon for Defendants and Appellees.
    First — The unconstitutionality of an act of the Legislature will not be declared by courts, unless it is manifestly so.
    Second — Art. 29 of the Constitution is not violated, when the bill includes legislation of cognate matters, and does not embrace subjects diverse in their nature. Cooley’s Constitutional Limitations, 142.
    Third — Elections will not be declared null when the voters have exercised their rights untrammeled, and no complaint made, except the non-observance of merely directory provisions of the election law Weber vs. Wilton, 29 A. 610.
   The opinion of the Court was delivered by

Levy, J.

The plaintiffs, E. R. Moore et al., brought suit to annul an election held in the parish of Bossier, on the 22d day of July, 1880, under the provisions of an act of the General Assembly, No. 31, approved March 10th, 1880, entitled: “ An Act prescribing the manner of changing parish lines and of removing parish seats,” and for injunction against said police jury prohibiting the holding of a second election ordered by that body for the purpose of deciding as to the place to which the removal of the parish seat of said parish should be made. In their petition plaintiffs alleged that the “ pretended election held on the 22d of July, 1880, was null and void for the reason that it was not held in conformity with Act No. 31, approved March 10th, 1880, and was in violation of Article 250 of the Constitution of the State;” they further allege that said police jury of Bossier parish had no right to order said election of 22d of July, 1880, for the reason that one-third of the property taxpayers of said parish, at the time said election was ordered, could not have been known, as the assessment for the year 1880 had not been made, and no registration of voters had been made as required by the general election laws of the State ; further, that by the terms of said Act No." 31 and the act of the police jury, Bellevue was entitled to be and was voted for at said election of 22d of July, and received and had counted by said police jury 1054 votes, being the • highest number of votes cast for any of the places voted for, as to which the parish seat should be removed, notwithstanding which, by the order for the second election, Bellevue was excluded as one of the places to be voted for at such second election, to which right Bellevue was entitled. They allege that irreparable injury would accrue to them by removal of the parish seat from Bellevue, etc.; that the proceedings of the police jury in the premises are illegal and unconstitutional. The injunction prayed for was issued.

Defendants filed an exception in which they prayed for the dismissal of the suit, on .the ground that “ there is no law authorizing an inquiry into or contest of the election held on the 22d of July, 1880, and none of the requirements of the law applicable to contests of election have been complied with, and that it is too late, more than thirty dayshaving elapsed since said, election was holden, to inquire into its validity.” This exception was, by the court a qua, referred to the merits.

Defendants, in their answer, averred that the police jury had complied with the law ordering the holding and promulgation of the election; that a majority of the electors of the parish having voted, in favor of a removal of the parish seat, Bellevue is not entitled to be placed in the list of the places to be voted for at the second election. They pray for dissolution of the injunction, and that the election between Bellevue and Coleville should be proceeded with and promulgated according to law. •

B. E. Eort intervened'in the suit, setting up interest in himself, averring that the removal of the parish seat would work irreparable injury to him, and that he would thereby sustain damages for various causes, set forth in an amount exceeding one thousand dollars. He avers that said Act No. SI “has no effect, the same being null and void as violating the Constitution of the State of Louisiana, and particularly Articles 19, 29 and 250 thereof. He prayed for perpetuation of the injunction. This intervention was put at issue.

The constitutionality of Act No. 31 of the General Assembly of Louisiana, approved March 10th, 1880, is clearly brought before us for our decision and adjudication. Art. 29 of the Constitution of 1879, declares ; “ Every law enacted by the General Assembly shall embrace but one object, and that shall be expressed in the title.” The title of Act No. 31 is : “An act prescribing the manner of changing parish lines and of removing parish seats.” We are of opinion that two objects, distinct and separate, and not cognate, are embraced in this act and clearly indicated even by the title itself. The framers of the Constitution regarded the objects set forth in the act and its title as being distinct, for in article 250 we find the provision : “ All laws changing parish lines or removing parish seats shall, before taking effect, be submitted, etc.” To remove parish seats is one object, in which the people of one parish alone have a direct interest; the change of parish lines affects the interests of two or more parishes. The change of parish lines does not involve the change of parish seat, and, vice versa, removal of parish seat has no necessary connection with change of parochial boundaries. We must not be understood as deciding that an act, which contains in its body provisions which are incidental to the object declared in the title of the bill, or details and minutiae necessary and intimately connected with such object, would render such act unconstitutional, but, as in this act, the incorporation of several distinct objects, neither necessary to carrying into effect the other, would render the whole act nugatory, as being violative of constitutional enactment. We adopt the doctrine laid down by Judge Cooley in his work on Constitutional Limitations, p. 144, where he says: “ The general purpose of the provisions is accomplished when a law has but one general object, which is fully indicated by its title. To require every end and means necessary or convenient for the accomplishment of this general object to be 'provided for by a separate act relating to that alone, would not only be unreasonable, but would actually render legislation impossible. It has accordingly been held that the title of an act to establish a police government for the city of Detroit was not objectionable for its generality, and that all matters properly connected with the establishment and efficiency of such a government, including taxation for its support, and courts for the examination and trial of offenders, might constitutionally be included in the bill under its general title.” And this learned author, in the same work, p. 148, says: “ But if the title to i¡jie act actually indicates, and the act itself actually embraces, two distinct objects, when the constitution says it shall embrace but one, the whole act must be treated as void, from the manifest impossibility in the court choosing between the two, and holding the act valid as to the one and void as to the other.”

Again, Article 250 of the Constitution provides : “ All laws changing parish lines or removing parish seats shall, before taking effect, be submitted to the electors of the parish or the parishes to be affected thereby, at a special election held for that purpose, and be adopted by a majority of votes of each parish cast at such election.” It is the evident and clearly expressed intention of the Constitution that laws on the above-mentioned subjects must he submitted to the people for their approval and ratification, and we cannot deduce any other inference than that a general law providing for change of parish lines and removal of parish seats is not contemplated in the organic law, but that in each case when either of these objects are sought, a special law in accordance with the provisions and requirements of article 48 is intended to be past, in which the electors of the parish or parishes affected thereby shall cast their votes as pointed out in article 250.

Hence, if article 21 had not been obnoxious to the objection stated, and had embraced the sole object of removal of the parish seat, under the views just expressed, it would have conflicted with the Constitution, and the election held under it would have been invalid.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed; and proceeding to render such judgment as should have been rendered, it is ordered, adjudged and decreed that the injunction issued in this suit be perpetuated, and that the order for the second election, made by the police jury of the parish of Bossier, be annulled and set aside, and the election held on the 22d of July, 1880, under and by virtue of Act Ho. 31, approved March 10th, 1880, is declared to be invalid. Appellees to pay the costs of both courts.


text:
    No. 26.
    State of Louisiana vs. Ben Wright et al.
    Pending the Appeal from the judgment sentencing him to hard labor in the penitentiary for larceny, the accused escaped from jail:
    Held that, -whilst a fugitive from justice, he cannot he represented by Counsel in this Court to prosecute his Appeal, and that the said Appeal will be dismissed if the accused has not returned to tho custody of the law within a time fixed by the Court.
    APPEAL from the Second Judicial District Court, parish of Bienville. Drew, J.

    J. A. W. Lowry, District Attorney, for the State.
    W. G. McDonald, Boon & Howell, Edwards & Patterson and J. Henry Shepherd, for Defendant and Appellant.
   The opinion of the Court was delivered by

Levy, J.

In this case the defendant, Ben Wright, was tried and convicted, in the District Court of Bienville parish, of the crime of larceny, and by judgment of said court sentenced to two years imprisonment at hard labor in the penitentiary, and has taken an appeal to this Court. The District Attorney, representing the State, has filed a motion for the continuance of the case, and supports it with an affidavit, in which he declares that the prisoner'has escaped from the custody of the law, and is now a fugitive from justice, as affiant, said District Attorney, has been creditably informed. We are unable to find any precedent, in the reported cases of the Supreme Court of this State, in which a similar motion has been made or acted upon.

While the affidavit is vague and uncertain, we reasonably infer from the record that this escape has taken place since the conviction, sentence and judgment were had. We shall take cognizance of the suggestion made in his motion and affidavit by the law officer, prosecuting in the name and by the authority of -the State. While a prisoner, who has escaped the custody of the law pending his appeal, cannot by counsel prosecute his appeal, we are not prepared to say that upon a mere sug-gestión of such escape or reported escape we would be justified in dismissing his appeal; still we are of opinion, that unless in the hands or custody of the law we cannot try the case. We find in the Southern Law Review for October-November, 1880, a digest of a case recently decided in the ’Supreme Court of California, entitled : The People vs. Redinger,” in which this identical point is decided. From this digest it appears that “ defendant was convicted of murder in the first degree and was sentenced to be hanged. An appeal was taken, pending which defendant escaped from custody. On motion of the Attorney General to dismiss the appeal, it was held that, although defendant could not prosecute his appeal by counsel, having waived that right by breaking jail, yet the motion to dismiss was denied, -but ordered that the appeal stand dismissed unless defendant return to custody before May 1,1881. A convicted murderer has no right to appear by counsel in an appeal from the judgment of the lower court, where it appears that he has escaped from custody; and his appeal will be dismissed unless he return to custody.”

Disposed to recognize the correctness of this dicision and action of' the court in the case cited, we adopt the course therein presented, and it is, therefore, ordered that this case be continued until the next term of this Court, which will begin at Shreveport, on the second Monday of October, 1881, and if in the meantime the prisoner, Ben Wright, does not return to the proper custody of the law, the appeal herein will be dismissed.


text:
    No. 27.
    State of Louisiana vs. Cosby Mason.
    The Minutes of tho court may very properly ho corrected by interlineations, at the reading of them in open court and before their approval.
    It will be presumed that the Grand Jury came into court in a body and presented the Bill of Indictment in open court, when it is endorsed “ A true Bill,” and signed by the foreman, and the entry in the Minutes shows that “thereupon the Court ordered the finding of tho Bill to be recorded, etc.” The rule omnia rite acta applies. State vs. Onnmacht, 10 An. 108, affirmed.
    The endorsement of the Bill needs not specify the offense charged in the Indictment. Previous Decisions affirmed.
    APPEAL from the Second Judicial District Court, parish of Bossier. Brew, J.
    J. A. W. Lowry, District Attorney, for the State.
    W. G. McDonald, J. Henry Shepherd and John Young for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Defendant, tried, convicted-and sentenced to two years’ imprisonment at bard labor in the penitentiary for petit larceny, has taken this appeal, and makes the following assignments of error, viz.:

First — That the minutes of the court were interlined, after the minutes were written, so as to show that defendant was present when the verdict was rendered, and that this interlineation was made under the direction of the judge in open court when the defendant and his counsel were not present.

It appears that the correction was' so made on the morning after the trial, while the minutes of the previous day were being read, and before their approval. The very object of reading the minutes is to allow opportunity for such correction of errors, and the action of the judge was entirely proper. There is no suggestion that the minutes as corrected do not conform to the facts.

Second' — That the transcript does not show that the Grand Jury ever found the bill of indictment, and brought the same into open court by themselves, and presented it to the judge through their foreman. The bill is endorsed, “A true bill, (signed); W. M. Abney, Foreman of the Grand Jury.” It is urged that the endorsement should also specify the offense charged in the indictment. We find no warrant for such a requirement, and the dictum to that effect in State vs. Morrison, 80 An. 818, is unsupported by authority, and is directly contrary to prior decisions of this Court and to all the text books.

State vs. Smith, 5 A. 341.
State vs. Rohfrischt, 12 A. 383.
State vs. McGinnis, id. 743.

1st Archbold, p. 99. Harris, Or. Law. p. 290.

On the other branch of this assignment there is no doubt that the proper proceeding is for the Grand Jury, after having found the bill, to come into court in a body, and, through their foreman, to present the bill in open court; and non-compliance with these requirements, if established, would be fatal to the proceedings. We think this case, however, is governed by the decision of this Court in the case of State vs. Onnmacht, 10 An. 198. There the entry on the minutes was “ The State of Louisiana vs. K. Onnmacht; true bill and indictment, for lying in wait and shooting with intent to commit murder; ” and it did not affirmatively appear that the-Grand Jury appeared in court and returned the indictment. The Court said; "This renders it sufficiently certain that the indictment, to which the prisoner subsequently pleaded, was presented by the Grand Jury in open court. The clerk enters on the minutes only what is done while the court is in session, and only such proceedings as ought to appear of record. No entry would be made on the minutes of what did not transpire in open court, and to presume it possible that the grand jury did not, as a body, return the indictment in this case, and in open court, would be reversing directly the maxim omnia rite acta. It may be also observed that, if the prisoner had made the objection specially in the court below that the entry made by the clerk, as above set forth, did not show with certainty that the grand jury had brought the bill into court, the minutes could have been corrected, and such an entry made, nunc pro tunc, as would have obviated all objections.”

In the instant case, the entry on the minutes is much more specific, being as follows:

“ State vs. Cosby Mason — indictment for petty larceny — endorsed, a true bill, (signed): W. M. Abney, foreman of the Grand Jury. Whereupon his Honor made the following order: Let the finding of this bill be recorded; let process issue thereon; let the bail bond of the defendant be fixed at, etc.”

In the absence of any suggestion that, as a matter of fact, the Grand Jury did not present the bill in open court, we shall follow the precedent in the Onnmacht case, rendered twenty-five years ago, and never reversed. The decision in State vs. Morrison, 30 A. 817, passed off on a different point, and though asserting quite emphatically the duty of the clerk to “ state in his minutes the coming of the Grand Jury into court, and presenting the bill in open court,” it is but obiter, and does not refer to, or overrule, the Onnmacht case. We quite agree that it is the duty of the clerk to make the statements referred to in his minutes, but under the authority referred to, the omission of such duty is not fatal to the proceedings, where the actual entries on the minutes sufficiently show that the requirements of the law had been complied with. We deem it proper to say here that the imperfections and incompleteness of the criminal records presented to us are such as greatly to embarrass us in the administration of criminal justice, and we call the attention of the judges, clerks, and law officers of the State to the importance of remedying this evil.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed.


text:
    No. 29.
    State of Louisiana vs. Garnett Brown.
    It is no valid objection to an Indictment, under Section 2 of Act No. 8, Extra Session of 1870, that it charges the accused •with severing the crop from the soil of the “ succession of a certain deceased person. Differently from the Common Law, in Louisiana the owner* ship is laid in the Succession itself, and not in the Administrator thereof.
    PPEAL from the Second Judicial District Court, parish of Bossier.. Brew, J.

      J. A. W. Lowry, District Attorney, for the State.
    W. G. McDonald and J. Henry Shepherd for Defendant and Appellant.
    First — In an indictment, ownership cannot in terms be laid in the estate of a person deceased, but it may be in the administrator by name. Bishop on O. P. vol. II, 3d ed., sec. 725 ; Archbold’s O. P. 10th ed., vol. II, sec. 357 ; Wharton’s O. L. vol. II, 1837 ; State vs. Woodley, 25 Ga. 235Cole vs. Com. 5 Grattan, 696.
    Second' — If the owner be unknown, they may be laid as “the goods of a person unknown,” but this should be stated in the bill. Wharton’s C. L. 1835 ; Archbold I, p. 1160.
   The opinion of the Court was delivered by

Fenner, J.

This case presents the same assignments of error which were considered and disposed of by us in the case of the State vs. Mason, just decided by us at this term, and for the reasons assigned by us in that case, they are overruled.

Defendant in this case, however, asks the reversal of the judgment on another ground. The indictment is for severing crop “ from the soil of another,” under section 2 of Act No. 8, Ex. Sess. of 1870; and charges the soil to be the soil of the succession of N. W. Sentell, deceased, worked and rented by Shed Collins.”

It is contended that ownership can not be laid in the succession of a person deceased, but must be laid in the executor or administrator by name. This is undoubtedly the rule of the common law, based upon the doctrine recognized in that system, that the legal title to the estate of the deceased vests in the administrator thereof, who is, in the eye of ijie law, technically the owner ; and hence, where ownership is charged,, it must be laid in him.

This doctrine, however, finds no place in the law of Louisiana. The maxim “ le mort saisit le vif ” is expressly embodied in our Civil Code, and excludes the interposition of- any temporary and qualified ownership, such as that of administrators, between the deceased and his heir. C. C. 940, et seq.

Pending the acceptance or rejection by the heir, which, when made, retroacts to the instant of death, and pending the administration, all “ the estates, rights, and charges which a person leaves after his death” are vested in, and belong to the abstraction called “ succession,” as expressly stated in articles 872 and 873 of Civil Code.

It would be not only an anomaly but an absurdity, in any pleading, civil or criminal, in Louisiana, to allege that the administrator of a succession is the owner of its property.

Such ownership rests, and is properly laid in the succession oí the deceased, as long as the administration continues.

We, therefore, hold that the common law authorities have no application, and that the objection to the indictment is not well taken.

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


author: Bermudez, C. J.

text:
    No. 24
    State of Louisiana ex rel. D. B. Martin vs. Police Jury of Caddo Parish.
    Act No. 80 of tlie Legislature of 1876 is not unconstitutional on the score that the Board of Audit, created Toy it, is clothed with judicialpowei-s. That body is only to sift and adjust the outstanding indebtedness of the Parish of Caddo, subject to the judicial action of the Courts.
    Under the provisions of that Act, the finding of said Board constitutes the legal authority of the Police Jury of the Parish of Caddo to issue bonds.
    Act 3To. 96 of 1872, which prescribed certain formalities for the valid issuance of the bonds of the Parish, was amended in that respect, by Act No. 15 of 1876.
    The bonds held by the Relator having been issued under legal authority, are valid and to be treated as commercial paper in the hands of a bona pide holder for value.
    The Relator is. therefore, entitled to the Mandamus prayed for.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Boorman, J.
    Alexander & Blanchard for the Relator and Appellee.
    First — The proceeding by way of mandamus is the proper one for the relief sought. High on Extraordinary Remedies, sections 139, 324, 369, 382, 392; Cooley on Taxation, pp. 524, 525 ; Dillon on Municipal Bonds, sections 24, 25 ; Dillon on Municipal Corporations, sections 685, 687,688, 690 ; C. P. 829, ét seq.

    Second — The bonds were issued by authority of an enabling act of the Legislature. Act No. 96 of the Sessipn Acts of 1872 (found upon page 12 of Acts of 1872); also Acts of 1876, pp. 34 and 124.
    Third — They were issued for one of the purposes mentioned in the enabling acts, and by authority of the police jury acting under said acts.
    Fourth — The provision of means for payment of the interest and principal, as contemplated by the statute, has been regularly made, and the parish has recognized the validity of the bonds every year, from the date of their issuance down to and including 1879, by annually paying the interest on them and part of the principal. She is now estopped from disputing their validity. Bigelow on Estoppel, pp. 584, 466 ; Daniels on Negotiable Instruments, p. 475, section 1545, and p. 476, section 1546 ; 5 Wall, 781.

      Fifth — The parish, through its police juries, has ratified, and confirmed, through a series of years, this issuance of bonds ; and the right to issue bonds being a corporate power of the parish, ratification can take place, and is equal to previous authority delegated to its agents for the purpose. Angel & Ames, section 304; Dillon on Municipal Bonds, section 23; Dillon on Municipal Corporations, sections 383, 384, 385, 375, 91; 2 Kent. 291; Story on Agency, section 52; R. C. C. 2272 (second clause); City of New Orleans vs. Southern Bank, 31 A. 565 ; 29 A. 581; 28 A. 258 ; 26 A. 636 ; 25 A. 356 ; 12 A. 15 ; 4 A. 440 ;
    5 Hill (N. Y.) R. 137 ; 8 Ohio St. 401; 34 Ill. 421.
    Sixth — Relator, not being an original holder of the bonds, and being a bona fide holder for value before maturity and without notice, is unaffected by the defences urged against the bonds. Daniels on Negotiable Instruments, vol. 1, section 812; Dillon on Municipal Bonds, section 7, p. 15 ; also note to section 8, p. 18 and authorities there cited; Dillon on Municipal Corporations, vol. 1, p. 508, section 416; also section 905, et seq.; Bigelow on Estoppel, p. 364 ; Central Law Journal for January, 1880, p. 72.
    Looney & Elstner on same side.
    Wise & Herndon for Defendants and Appellants.
    First — Where an act of the Legislature authorizes the police jury of a parish to issue the bonds of the parish for certain purposes, the police jury must specially authorize the issue of the bonds, and in default of this action of the police jury, all bonds issued under color of said legislative act are invalid. 30 A. 287 ; 29 A. 590,
    Second — -Police juries have no power to contract debts or pecuniary liabilities without fully providing in the ordinance creating the debt the means of paying the principal and interest of the debts so contracted. Revised Statutes, sec. 2786 ; 23 A. 191,232,251; 24 A. 457 ; 26 A. 59.
    Third — Political corporations are not bound by the unauthorized acts of their agents, when the mandates of the latter are of record or embodied in a statute. 29 A. 590.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a mandamus to coerce the performance of an alleged ministerial duty which the defendants refuse to fulfill. By act 96 of the General Assembly of 1872 (p. 12), the police jury of the parish of Caddo was, for certain objects expressed, authorized to issue bonds for a large amount, with the formal proviso, “ that the ordinance of said police jury, making provision for the issue of bonds under this act, shall not have the effect of law, unless it shall receive the unanimous vote of every member of said police jury of said parish of Caddo, and that said bonds, when issued, shall be countersigned by each and every member of said police jury, which shall be evidence of the fact that the issuance of said bonds is unanimously approved by them.”

By Sec. 2, provision is made for the payment of the accrued interest on the bonds, and for an annual curtailment of the capital, and the police jury is required, annually, to determine a rate of taxation on all taxable property in said parish, which would be sufficient to pay the interest and a portion of the debt, and the tax, as annually determined and ascertained, is, by said section 2, levied once for all upon all such property for the payment of the bonds and interest

By Sec. 3, provision is made for the retirement of the bonds so issued, by purchase from the lowest bidders by the police jury, out of funds raised by the tax and remaining in excess of the amount to be paid out semi-annually.

In April, 1876, the Legislature passed an act, (No. 16, p. 34), the object of which was “to amend and re-enact section one, of act 96, of 1872,” and to authorize the police jury to issue bonds for a determined amount for purposes mentioned, one of which was the bonding of the debts due by the parish up to January 1, 1876. It was made the duty of said jury to issue the bonds to each and every holder of valid obligations due and payable by said parish on or before the date first mentioned; all laws inconsistent were repealed, and the act was to take effect from it passage.

Later in April, of the same year, the Legislature passed an act, No. 80, p. 124, to establish a board to audit outstanding obligations against the parish of Caddo, by which it is provided that the favorable report of the board, so created, on any claim, shall be authority for the police jury to issue bonds therefor. The act was to take effect from its passage.

The relator claims that he has acquired, in good faith, and in due course of business, 228 of the bonds issued by said police jury, aggregating $22,800, under the authority delegated to them by the two laws mentioned; that the interest for the year 1879, and all years anterior, has been promptly paid by the parish of Caddo, but he complains that the police jury has neglected and refused to comply with the requirement of section 3, of the act of 1872, as amended, which directs that it shall determine what rate of taxation, on the assessed value of all taxable property, would be sufficient for the payment of the curtailment of the capital and of the interest for the year 1880, and that it shall levy, collect and apply the funds so raised to the satisfaction of the debt. He states, further, that there are no funds in the parochial treasury out of which the sums due on the bonds issued by said parish, can be paid. He charges a dereliction of ministerial duty on the part of the police jury, and asks, by mandamus, the enforcement of the same.

There was no objection to the form of the proceedings which is regular and proper.

The defendants return that the bonds are null and void and without effect, fpr the following reasons:

First. The bonds were not issued by authority of the police jury.

Second. No ordinance was passed by the police jury authorising the issue of said bonds and no ordinance was passed providing for the payment of the bonds.

Third. The parish of Caddo was not legally indebted in any sum at the date of the bonds, and the board of audit, created by the act of 1876, was without power to determine the validity of alleged claims against the parish ; that the act is unconstitutional, in that it was án attempt, on the part of the Legislature, to create a judicial tribunal not provided for by the Constitution. The record contains the copy of two of the bonds claimed to have been issued under both acts. Each bond refers to the act by the authority of which it purports to have been uttered and is made payable to bearer. The bonds alleged to have been issued under the act of 1872, refer expressly to the ordinance of the police jury which authorized the issue, and is signed by the president and every member of that body. The bonds said to have been issued by the police jury, under the act of 1876, do not refer to any ordinance, and are signed by the president and clerk of the board only.

We think ourselves authorized to assume from the admissions of record, that all the averments of fact in the petition are true, with the exception of that which charges pointedly that the bonds were issued by .the police jury.

All resistance to the pretensions of the relator, as holder of bonds uttered under the act of 1872, and previous to 1876, was formally abandoned, so that our investigation will be confined to the inquiry, whether the bonds issued under the act of the last named year are or not valid.

As we understand the case, the only objection urged against them ’.is, after all, that no ordinance, of the police jury was passed by that body to authorize the issue of the bonds, and no provision was made before, or at the-time of such issue, for the redemption of these obligations ; and that, in consequence of the non-fulfillment of these formalities or requirements, which were conditions precedent, sine 'quibus non, The bonds are worthless.

We attach no importance to the charges that the parish was not 'indebted at the time the bonds'weré issued, and that the law creating the board of audit was unconstitutional for the reason set forth.

The evidence adduced proves that the parish was largely ’ indebted, and the act before us declares that it so was. The bonds were to he issued,, under the law, to raise funds to build a “ court-house, a jail, and other required public buildings,” and to bond the debt. But were it true that the parish was not in embarrassment, it would be a matter of perfect indifference to these parties acquiring the bonds in good' faith, in market overt and for value, which could, in no manner, invalidate or affect their rights under the same. Such a theory, as to innocent third' persons holding commercial paper, would, if sanctioned, prove subversive of all the rules established by custom and law, and consecrated' by unalloyed jurisprudence, emanating from the highest judicial authority, for the regulation of the intercourse of men, communities and nations in their financial relations. It cannot, therefore,, for a moment be entertained.

The objection to the constitutionality of the law constituting the board of audit is bottomless. It is not true that the Legislature intended to create a body clothed with judicial powers so as to make it a component part of the judicial department, as organized- by the Constitution. It had the power to create such a body, as it did,, for the purpose of sifting and adjusting the outstanding indebtedness of the'parish of Caddo, whose finding, however, on any portion of that indebtedness was-not to be final and irrevocable, for the act distinctly provides, in as. many words, that, in case of an unfavorable report by the board on any-claim, the holder of such claim would not be debarred, of his right to appeal to the courts to have the same established. The police jury itself' could, had it thought proper to do so, in cases of doubt, have resisted any finding or report of the board of audit favorable to claims which it (the police jury) would have considered as invalid, although its members could not have been held responsible for submitting to such report, as the law provided that such report would be, to them, authority to-issue bonds therefor.

It is now incumbent upon us to determine the sole question remaining for examination, as presented by the defendants; but before doing so, we premise that we consider that there exists a prior and fundamental question, which is really the pivot upon which this whole case-turns, and which should necessarily be first determined. The question presented by the litigants is: Whether there was passed an ordinance-justifying, before or after emission, the issue of the bonds ?

The question which suggests itself to our mind is : Was the adoption of such ordinance indispensably required for the validity of the issue of the bonds as a condition precedent sine qua non ?

As a determination of this last question, which, in reality, is the first and only one, is now highly proper, we will give it our immediate-attention.

A reference to the proviso of section 1, of the act of 1872, shows that the passage of an ordinance to authorize the issue of the bonds was a condition sine qua non for their validity, for the bonds could not be issued unless such ordinance had been previously passed unanimously by the members of the police jury ; the law declaring in clear and emphatic language, not admitting of possible adverse construction, that the bonds, in order to be valid, shall have to be authorized by an ordinance, and that the ordinance shall not have the effect of law, unless unanimously adopted, the converse of the proposition being, that after an ordinance shall have been unanimously adopted by all the members composing the police jury, and after the signature of the bonds shall have taken place by the president and members of that body, to show such unanimous adoption, the ordinance shall have effect of law, and the bonds shall be valid and binding; and that, in the absence of compliance with those prerequisites, the bonds were not to be valid. Hence, the reason why the ordinance was adopted and the bonds were signed, as it is admitted, and the record shows they were; and hence, also, the reference on their face to the act of 1872 and to the police jury ordinance.

The Act of 1876, was passed “ to amend and re-enact section 1, of the act of 1872,” in which the proviso just considered is to be found; but in “ amending and re-enacting” that section, the Legislature has left out entirely the proviso, dispensing, therefore, for the future, with the compliance of the ceremonies previously required as a condition precedent sine qua non for the issue of other bonds, substituting to it the mere provision that the bonds, authorized by it to be issued, could be issued in the name of the parish by the president and clerk of the police jury. We find that the bonds issued under this law have been issued in that form. The question naturally here arises: Was the president of the police jury therefore authorized to issue any amount of bonds he might have thought proper up to the limit of $150,000 fixed by the law, at his whim or caprice, without any authority from the board composed of the police jurors, and would bonds so issued have been binding on the parish ?

Our answer to that serious objection, which is worthy of attention, is a very plain one, of very easy understanding, but the mere statement of which will suffice to show its correctness.

The authority to sign the bonds to be issued under the act of 1876 was not to be derived from the police jury, but from the Board of Audit, the law declaring totidem verbis, “that the favorable report of said board, on any claim, shall be sufficient authority for the police jury to issue any bonds therefor.” The police j^^ry is a body which cannot act by itself, but by its president, and, in this case, by its clerk besides; whatever they clid was the act of the police jury, under the circumstances of this case.

The evidence shows that the board of audit had reported favorably upon all the claims for which all the bonds issued by the president and clerk have been exchanged. It shows, also, that the bonds were endorsed by the president and by the clerk of the board of audit, which was apparently created to prove as a check on the police jury or its representatives, and their signature were required by section 2 of Act 80 of 1876. It shows, also, that a number of ordinances or resolutions was passed by the police jury which justified the issuing of the bonds in question. It is useless to enumerate those ordinances, as we consider that none was essentially necessary for the validity of the bonds.

From that standpoint, it becomes absolutely useless to examine the question of fact which the parties litigant have taken extraordinary pains to establish, and which was uselessly made a bone of contention between them.

The objections made by the defendants are not levelled, it is easily perceived, at the power of the police jury, or of its representatives, to issue the bonds, for the legislative authority required and essentially necessary for the purpose is unquestionable. The objections were aimed at the non-existence of any ordinance passed by the police jury anterior to the issuance of the bonds, and were to the effect that the bonds were consequently null and void. It is only where a municipal corporation has .acted ultra vires in the issuing of bonds, that objections to their validity can be entertained. Finding, therefore, that ample legislative authority had been previously delegated, and that bonds have issued, bearing upon .their face all the indicia showing compliance with legal exigencies, we arrive at the conclusion that the bonds in question are valid, and that the ministerial duty demanded must be performed. We will not assume to refer specially to the numberless and indisputable authorities which, as mile stones, justify entirely the views which we have expressed, and which are gathered in the late very useful work of Judge Dillon on Municipal Bonds, which comments upon this grave matter and which contains them all, up to the date of its publication.

The contract in existence between the bondholders and the parish of Caddo is protected from impairment by the Federal Constitution, and must be enforced.

We have been told, in argument, that the parochial scrips and evidences of indebtedness, for which these bonds were exchanged, were not obligatory in law, or conscience, upon the parish and its inhabitants ; that they were the scandalous offsprings, without any legitimate cause, of the authorities previously in power, who have'issued the same for the accomplishment of villainous and fraudulent purposes, which have in no • way enured to the benefit or advantage of the parish or its inhabitants. ¥e can well lend, with tender sympathy, our personal, but must shut, with regret, our official ears to such complaints, coming as they do from a spoliated and tax-ridden community, as the Legislature of 1876 has sanctioned and legitimated those debts, and as the law otherwise closes the door to such investigation and determination, and does not permit us to grant the victims of bad government the relief which they seek at our hands. Dura lex, sed lex.

The judgment of the lower court was in favor of the relator. We find that it has granted him a relief to which he is entitled.

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


author: Todd, J.

text:
    No. 30.
    L. A. Levy vs. M. Roos.
    Plaintiff having made part of his Petition a Record which shows a judgment against him and in favor of Defendant, for a larger sum than Plaintiff’s claim, the Exception of hTo cause of action was well taken and should be sustained, as Compensation takes place by the simple operation of the law.
    One judgment compensates another though the original obligations upon which they are rendered were not compensable.
    APPEAL from the First Judicial District Court, parish of Caddo. Taylor, J.
    Land and Land for Plaintiff and Appellant.
    ■Compensation is an equitable remedy, and is not extended to wrongdoers or those guilty of bad faith. 7 An. 53.
    ■ Trespassers cannot avert a judgment for damages resulting from the trespass by compensation or reconvention. 1 N. S. 556 ; C. C. 2210. Alexander & Blanchard for Defendant and Appellee.
    First — That as compensation takes place by the mere operation of law, and plaintiff’s petition disclosing a state of facts from which compensation of his claim must be held to result, the exception of no cause of action ought to have been sustained.
    Second — That under such circumstances, the tender of the plea of compensation was not necessary to enable defendant to take advantage of it.
    'Third — That the exception being overruled, and the plea of compensation then tendered by defendant, the same was properly sustained.
    Fourth — That plaintiff’s claim, shown to have been extinguished by compensation as to the principal debtor, must be held equally extinguished as to the surety (defendant herein). C. O.- 2211, 3059, 3060 ; 10 A. 479.
    Eifth — Compensation must be admitted unless plaintiff’s claim comes within one of the exceptions enumerated in C. C. 2210. The case-of Innis vs. Ware, 1 N. S. 556, cited by plaintiff’s counsel, is entirely inapplicable to the facts of this case.
    Sixth — Plaintiff’s counsel has failed to distinguish between a demand for the restitution of a thing of which the owner has been unjustly deprived, and one for damages only, resulting from the wrongful issuance of a writ of attachment.
    Seventh — Judgments stand upon an equal footing without regard to the causes of action upon which they are based. The cause of action in each case, is merged in the judgment and looses its identity in the judgment. One judgment, therefore, will compensate another, though the original obligations, before reaching the dignity of judgments, may not have had that effect.
    Eighth — Intervenors have no greater rights-against defendant than plaintiff has ; and besides, their prayer makes them stand or fall with plaintiff.
    Ninth — As attorneys for plaintiff, who was defendant in a previous-attachment suit, intervenors alleged attorney’s fees to be worth $250. That was a judicial admission of their value, which they are estopped from contradicting by averring and proving their fees to have been worth more. C. C. 2291; H. D. pp. 518,519 ; 31 A. 100 ; 30 A. 1145 ; 27 A. 701; 23 A. 764 ; 18 A. 136.
    Tenth — The evidence of the privilege claimed by intervenors was not recorded until after rendition of the two judgments from which compensation resulted.
    Eleventh — A judgment affirmed on appeal, has, for all its effects and consequences, including compensation, a retroaction, to the date of its rendition in the court a qua. 17 A. 250, O. C. 3322, 3323, 2334.
    Twelfth — Pending a suspensive appeal, the judgment appealed from • cannot be pleaded in compensation ; but, being affirmed, it can be-so pleaded, and will have a retroactive effect to the days of its first rendition.
    Thirteenth — C. C. 3343 defines who are “third persons,” to affect whom the registry of privileges and mortgages is necessary. Under this article defendant must be held to be a “ third person,’’ and, in order to affect him, registry was necessary.
    Fourteenth — Privileges exist only so long- as the property or thing upon which, they rest remains in the possession and. ownership of the person who owes the debt from which the privilege springs.
    Fifteenth — The registry of a privilege does not preserve its existence ; it merely gives effect to the privilege, as to third persons, so-long as it exists. If the subject of the privilege passes out of the-possession and ownership of the debtor, or is lost, or extinguished in any way, the privilege perishes.
   The opinion of the Court was delivered by

Todd, J.

In October, 1878, S. Hernsheim & Bro. brought a suit against the plaintiff in this case in the District Court of Caddo. The-suit was commenced by attachment,4 and the property of the defendant in that suit, L. A. Levy, and plaintiff in this, was seized. The defendant in this suit, M. Roos, was the security of Hernsheim & Bro. on the-attachment bond in the previous suit. In that suit there was judgment, in favor of Hernsheim & Bro. for the amount of their demand, $1981 96,. but the attachment was dissolved and damages allowed against Herns-heim & Bro., plaintiffs in that suit, for $1675, $1450 of which was for-general damages, and $250 special damages for attorneys’ fees.

This judgment was affirmed by this Court on appeal.

The present suit is brought by L. A. Levy, the -defendant in the-attachment suit, against M. Roos, the surety on the attachment bond, to recover the damages allowed in the previous case, for the wrongful issuance of the attachment.

There was an exception filed that the petition contained no cause of action, which was overruled.

Subsequently, the defendant answered, setting up in compensation the judgment obtained by Hernsheim & Bro. against Levy, the plaintiff, and alleging that the judgment or demand for which he, Roos, was sued was extinguished by the judgment thus pleaded in compensation against Levy and in favor of Hernsheim & Bro.

There was an intervention filed by T. F. Bell and J. C. Moncure,, claiming a judgment against the plaintiff, L. A. Levy, of $500, for services rendered by them as attorneys in the case of Hernsheim & Bro. vs.. Levy — the attachment case mentioned — and praying for a recognition of a privilege for said sum on the judgment awarded on the reconven-tional demand of Levy in that case, as damages caused by the attachment.

There was judgment rejecting the demand of the plaintiff against the defendant, allowing intervenors’demand against the plaintiff, but. rejecting their claim for the recognition of their privilege.

From this judgment plaintiff and intervenors have appealed.

We think the judge a quo erred in overruling the exception as to no cause of action. The entire record in the case of Hernsheim & Bro. ys. L. A. Levy was made part of the petition in this case. In that record is the decree upon which the present suit is founded. By that decree, it was adjudged that the defendant therein, L. A. Levy, plaintiff in this .suit, owed Hernsheim & Bro. $1981 96, and that Hernsheim & Bro. owed Levy $1675 on his reconventional demand. We hold that at the very instant this decree was rendered compensation took place, the ■effect of which was to extinguish in toto the lesser judgment in favor of Levy, and to the amount of the same, at the same moment, to extinguish pro tanto the larger judgment in favor of Hernsheim & Bro. against Levy. “ Compensation takes place of course by the mere operation of law, even unknown to the debtors ; the two debts are reciprocally extinguished as soon as they exist simultaneously, to the amount of their respective sums.” R. C. C. 2208 ; C. P. 366.

Compensation having thus taken place, the result was, that when this suit was instituted, the petition of plaintiff, with its annexed record forming part of it, instead of showing an amount owing by Hernsheim -& Bro. for which Roos, the defendant, was liable as their surety, showed a balance owing by Levy, the plaintiff, to Hernsheim & Bro., this balance being the exact difference between the two judgments, and .amounting to the sum of $306 96.

It is contended, however, by plaintiff’s counsel, that compensation ■did not take place, for the reason that the character of the claim constituting the reconventional demand, for damages growing out of the attachment for which the judgment was rendered, brought it within the exceptions declared in article 2210 R. C. C. These exceptions are :

1. Of a demand of restitution of a thing of which the owner has .been unjustly defrauded.

2. “ Of a demand of restitution of a deposit and of a loan for use.

3. “ Of a debt which has, for its cause, aliments declared not liable to seizure.”

The character of the demand to which it is sought to apply the , principle of these exceptions does not fall within them, as we construe them. Being exceptions to a general rule, they cannot be extended by implication: but must be strictly construed. Even were it otherwise, they cannot be applied to the circumstances of this case. The question* here is simply, can one judgment compensate another? The original causes or considerations, on which the judgments were based,'were merged in the judgments themselves, and the issue is thus narrowed down to the question suggested.

To make the principle contended for applicable, there must be a demand growing out of one of the causes contained in the exceptions .referred to, and that demand must be opposed by a plea in compensation based upon an ordinary claim, at least one not embraced within the exceptions. In such case, were the plea interposed it should not be allowed. Were judgment rendered on one of these exceptional claims with or without the plea of compensation being interposed, it would be compensable by any other legal judgment that the debtor might oppose to it.

Had our learned brother of the lower court taken this view of the matter in limine, he would have sustained the exception and dismissed the suit, and not been called on in the further progress of the ease to entertain the intervention filed. In the conclusion that he finally reached, however, as evidenced by the judgment rendered, and in the able opinion by which he supports that conclusion, he is entirely in accord with these views.

As it is the province of this Court to revise all the errors relating to the action and rulings of the court a qua, shown by the record, and being satisfied that there was no cause of action disclosed in the petition, and that the suit should have been dismissed upon the exception, seasonably filed, averring such want of cause, we are compelled now to give effect to that exception by sustaining it. Our judgment will necessarily retroact to the point of time in the proceedings when the exception should have been sustained by the judge a quo, and the suit dismissed.

This view of the subject and disposition of the case necessarily disposes of the intervention and prevents our considering the issues therein presented. The rights of the intervenors, whatever they may be, will however be reserved.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed; and, proceeding to render such judgment as that court should have rendered, it is now ordered, adjudged and decreed that the exception of no cause of action filed in said court be sustained and the suit dismissed, plaintiff to pay costs of both courts, without prejudice to the rights of the in-tervenors to prosecute their demands by the proper proceedings — they to pay the costs of their intervention.


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    No. 33.
    Michael Smith vs. Martha L. White and Husband.
    A married woman is not responsible for debts contracted by her husband in cultivating, for his own account, a plantation belonging to her.
    APPEAL from the First Judicial District Court, parish of Oaddo. Taylor, J.

      Loney & Elstner for Plaintiff and Appellant.
    A married woman, whether separated in community from her husband or not, is bound by contracts, the execution of which rendered her separate property more valuable and productive, whether for advances, improvements or labor.
    Wise & Herndon for Defendants and Appellees.
    First' — He who alleges agency must prove it, in order to recover on a contract made with the alleged agent. 30 A. 493.
    Second — Neither a married woman nor her separate estate are bound for debts contracted by her husband in cultivating a plantation belonging to her for his own use and benefit. 8 A. 512.
    Third — All debts for wages of laborers are prescribed by one year. C. C. 3534.
   The opinion of the Court was delivered by

Poché, J.

Martha L. White, separated in property from her husband, Reuben White, is sued by plaintiff on an alleged contract, under which plaintiff, furnishing his labor and some mule-teams and implements, was to cultivate, in cotton and corn, a plantation, the separate property of defendant, situated in the parish of Bossier, during the years 1875 and 1876, for which services he was to receive one-third of the net proceeds of the crops thus raised.

He claims $2Q50 as his share of the profits for the year 1875, and $1500 for those of 1876 ; and he further claims $600 for the alleged value of his services as overseer employed by defendant to manage another plantation, also her separate property, in the same parish.

For answer, defendant specially denies having ever contracted with Smith, as alleged; and avers that his contract was made with her husband, Reuben White, who cultivated, for his owAaccount, her two plantations, during the years 1875-6-7.

From a judgment rejecting his demand, plaintiff has taken the present appeal. The issue presented by the pleadings is whether plaintiff was employed by or contracted with Mrs. White, or her husband.

The District Judge, who heard and saw the witnesses testify, concludes, in a very able opinion, that the contracts charged by plaintiff had been made with defendant’s husband and not with her.

Plaintiff, in his testimony, admits that he contracted with Reuben White, and intimates that the latter was acting as the agent of his wife; but he offers no proof of the agency, and admits that no one was present at his conversations with White. The evidence of several merchants of Shreveport who sold supplies to, and sold cotton for the co-partnership, and for the Grigsby Island Plantation, while under the management of plaintiff, shows that all accounts were made and kept, and all business transactions were carried on in the name of Reuben White individually, and not as agent of his wife.

Defendant positively swears that she made no contract, either of partnership or employment with plaintiff, and that she did not cultivate either of her cotton plantations during the years in question, but that they were cultivated by her husband for his own account.

Other witnesses testify to the fact of plaintiff cultivating well and faithfully the two plantations in question during those three years, but none of them, of their own knowledge, know by whom or on what conditions he'had been employed.

Art. 2386 of our Civil Code provides that when, the paraphernal property is administered by the husband, or by him and the wife indifferently, the fruits belong to the community if such exists. If these do not exist, each party enjoys as he chooses that which comes to his hand.”

In the present case, the fruits, if any were realized, undoubtedly came to the hands of the husband and, per contra, the debts contracted are due by him and not by the wife.

We are clear, after a careful review and serious consideration of all the evidence in this ease, that no contract has been proven against the defendant.

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


text:
    No. 34.
    Succession of W. R. Cox. On Oppositions to Account.
    The furnisher of materials used in repairing a building has no privilege, if the evidence of his oontraet has not been recorded. The recording of notes, given in payment of the ma - terials after they have been furnished, -will not answer the purpose of the law.
    $Tor is the furnisher entitled to his privilege, if he allows the building and the lot of ground to be sold without a separate appraisement.
    The Attorney of absent heirs is entitled to compensation with the privilege of a law charge, if his services have been beneficial to the succession.
    ^PPEAL from tlie Parish Court of Caddo parish. Taylor, J.

      J. Henry Shepherd.and T. E. Bell for Opponents and Appellants.
    Hicks & Hicks for Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

By the account presented in this matter, the administrator proposes to distribute the sum of $4321. The succession is admitted to be thoroughly insolvent. Hence, the contest for a privilege on the part of the opponents.

The account was opposed by two parties :

1st. Miss Cos, as the holder of three notes, aggregating $824, the payment of which, she claims, was secured by privilege on the buildings existing on the real estate left by the deceased, having been furnished by him for materials used to improve and repair the same. Those buildings and the lot were sold, and the proceeds of sale enter into the amount proposed for distribution.

2d. J. H. Shepherd, the attorney appointed to represent the absent heirs of the deceased, who claims $250, with the privilege of a law charge, for the services rendered by him in that capacity to the estate.

The amount of the notes which Miss Cox holds was placed on the account as an ordinary debt. Shepherd was not at all recognized as a creditor.

The judgment of the parish court having rejected their oppositions, they have both appealed.

1st. Miss Cox is not entitled to the privilege claimed, which could only arise from the effect of law upon due and seasonable registry, so as to affect third persons. It does not spring from the consent of parties. Privileges, it is well known, are stricti juris, and cannot be admitted in cases in which the law does not create them.

The notes in question were issued for lumber long after it was furnished. No evidence of any contract between the furnisher and the owner was previously, at any time, recorded. The notes were registered the clay after their date. The buildings and the lot were sold in block, without any separate appraisement, which was necessary for a “ventilation” of the proceeds, in the event of a distribution'between mortgage and privilege creditors.

C. C. 3228, 3268, 3272, 3274, 3348 ; 28 A. 305 ; 24 A. 613 ; 26 A. 221; 4 A. 67; 28 A. 289 ; 6 A. 480 ; 25 A. 337 ; 16 A. 306, 127.

2nd. From the evidence adduced, it appears that the conservatory and other services rendered by Shepherdwere valuable and enured to the benefit of the succession, and those concerned in it, who are liable to him for a fair remuneration. It is settled that, in such cases, when the heirs receive nothing, a reasonable compensation is due to the attorney of absent heirs, payable to him with the privilege of a law charge. The attorney of the administrator was allowed $490 for his services, and met with no opposition on the part of the creditors. We consider that $150 would be a proper allowance to the opponent. 28 A. 746 ; 25 A. 647 ; 14 A. 398 ; 29 A. 746 ; 21 A. 687.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be affirmed so far as it rejects the opposition of Miss Cox, and be reversed, so far as it dismisses that of ¿T. H. Shepherd; and, proceeding to render such judgment as should have been rendered, it is ordered, adjudged and decreed that the amount herein filed by the administrator be amended, by placing thereon J. H. Shepherd as a creditor for one hundred and fifty dollars, with the privilege of a law charge, to be paid accordingly, and that so amended, the said account be approved and homologated, and the funds distributed accordingly; the costs of appeal to be paid by the succession on the opposition of Shepherd, and by Miss Cox on her opposition, those of thelower court to be paid likewise.