author: McEnery, J.

text:
    No. 11,429.
    Mrs. Ada Lester vs. A. W. Connelly, Sheriff, et al.
    When a married woman, separate in property, sells by authentic act her paraphernal property, although the sale is a disguised mortgage for the benefit of the husband, yet if the notes given for the purchase price fall into the-hands of innocent third parties, the vendor’s lien and special mortgage securing the notes will be enforced.
    There is no distinction in principle, between the holder of notes given for the purchase price of the property, and the purchase of such property, as the reliance of both of the note holder and purchaser is upon the public record, When that discloses an unimpeachable title, the protection of the law is afforded as against unknown and latent defects* Schepp vs. Smith, 35 An, 6.
    The mortgage accompanies the negotiable note which it secures, in its transfer to an innocent holder. The secret equities between the original parties can not affect his title to the sale, or impair its validity or that of the mortgage.
    APPEAL from the Eighteenth District Court, Parish. of Terrebonne.. Caillouet, J.

      L. F. Suthon Attorney for Plaintiff and Appellee:
    A married woman can not bind herself for her husband’s debt. O. O. 2398.
    Courts will look through all disguises to protect the property of married women, and will find out the real nature of the contract. 12 An. 852; 33 An. 1008; 34 An. 822.
    The law prohibiting a wife from binding herself for her husband’s debts is a law of public order, and whatever is done in contravention thereof is tainted with absolute nullity. (J. C., Arts. 11 and 12; 14 An. 169; 9 La. 589.
    A mortgage may be put in the form of a sale. The conveyance does not vest the ownership in the apparent buyer. 31 An. 348; 38 An. 154.
    The doctrine of estoppel, as ordinarily understood, does- not apply to married women. 2 An. 756; 33 An. 1010; 34 An. 632; 45 An. 373.
    Where a married woman has been guilty of no- actual fraud or deception, but has been a mere passive agent under the coercive influence of the husband, she will be protected. 14 An. 169; 42 An. 950.
    The marital influence is presumed, and the wife’s testimony, as to its exercise, will be corroborated, when it is shown she has received no benefit* 2An. 756; 45An. 373.
    The law relating to innocent third holders of negotiable paper is not of universal and unlimited application, but is subject to well defined exceptions, among, which are:
    1. Oases where the legality of a transaction depends not on the nature of the consideration, but on the capacity of the party to contract the obligation. 5 N. S.. 55; 5 An. 495.
    2. Where the instrument was given for a consideration which by statute is declared void, the original taint follows it, and it is void in the hands of every holder, however innocent. State vs. Maurice J. Hart, 46 An. 40.

      ■3. The lex mercatoria is not paramount, but is limited and modified by the constitutional and statutory provisions of every sovereignty where it prevails. Smith’s Mercantile Law, Sec. 248, notes; 21 An. 567-635.
    While, therefore, the notes given in this transaction may be valid against the maker as mere commercial instruments, yet the sale and mortgage, out of which they grew, are utterly null and void, and the mortgage and vendor’s privilege can not be enforced.
    .Mortgages in a case like this are subject to equities. 28 An. 855; 8E 435; 14 An. 587; 31 An. 684; 33 An. 870; 45 An. 75.
    The paraph “Ne-varieim■” is sufficient to put a party on guard. 26 An. 375; 39 An. 732.
    The transaction of sale being with a married woman is sufficient to put a party on guard. 29 An. 123.
    'The continued possession of the vendor is also a circumstance sufficient to put a third party on inquiry. 44 An. 880; Broussard vs. Broussard, 45 An. 1085.

      Beattie & Beattie and Andrew H. Wilson Attorneys for S. Pfeifer & Co., Appellants:
    The purchaser of negotiable notes, acquired before maturity in the open market for valuable consideration, is not subject to any equities between the original parties. Notes secured by lien and mortgage pass with all the securities thereto attached. An innocent third party acquiring such notes can not be attacked by the mortgagor or mortgagee.
    An authentic act of sale, complete on its face and duly registered, made by per sons capable in law of contracting, and upon the face of which there is nothing to give rise to any suspicion of its correctness and honesty, can not be attacked, particularly by parol or by a party thereto. In no event could such an attack be allowed against an innocent purchaser, or one acquiring valuable rights thereunder.
    When a married woman sells her property, in the solemn form of authentic act, complete in every particular, she is bound thereby, and can not set up against an innocent third party, who has acquired valuable rights under said sale, any equity that would tend to destroy such rights.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff, wife of Felix Básele, is separate in property from her husband and authorized to administer her own -affairs separate and apart from her husband.

Felix Básele, the husband, was a merchant in the town of Houma, and indebted to Levis Brothers, in the city of New Orleans. He was -embarrassed and unable, without security, to obtain further assistance from said firm. In 1891 Mrs. Básele, duly authorized by her husband, sold her separate property, a house and lot in the town of .Houma, to one Leveque, the book-keeper of said firm.

The price and consideration of the sale was $1700, $200 cash, and' the balance of the purchase price was represented by Leveque’s. three notes, secured by vendor’s privilege and special mortgage, payable to his own order and by him endorsed, each for $500, at six, twelve and eighteen months. The notes were paraphed by the notary to identify them-with the act of sale.

In 1892, before maturity, these three notes were transferred as-collateral security to the commercial firm of S. Pfeifer & Oo., of the city of New Orleans, by Levis & Brother, who received them from Leveque.

Pfeifer & Oo., after the maturity of the second note, brought suit to enforce the payment of the two that were due against Leveque, the vendee of Mrs. Básele, who in February, 1893, confessed judgment in their favor in the sum of $1000 and interest, with recognition of vendor’s privilege and mortgage on the property as stipulated in the act of sale and mortgage.

An execution issued on this judgment and the property mortgaged-in the town of Houma was seized by the sheriff.

On the petition of Mrs. Básele, the vendor of the property to Leveque, an injunction issued directed to the sheriff and plaintiffs in execution, restraining the sale.

The petition for the writ of injunction alleges that Básele, the husband, was indebted to Levis Brothers in the sum of three hundred dollars; that said firm refused to advance to him without security, whereupon her husband, having no security to offer, appealed to his-wife to place a. mortgage on her property in order to enable him to continue his business; that she refused to mortgage said property,, and that the husband, using his marital influence and power over petitioner, compelled her assent to mortgage said property for the purposes stated; that said sale was a sham and pretence, and that Leveque was an interposed party in the interest of Levis Brothers, to-whom the property was mortgaged solely for the debts of the husband ; that she never had possession of the notes given for the purchase price, and that they-were delivered immediately by the notary to Levis Brothers. She never knew until the seizure what became-of the notes. That since said pretended sale she has exercised dominion and control over the property, and has remained in undisputed possession of the same, and that she has paid all taxes on the property.

She alleges that the plaintiffs in execution are not innocent third parties. The prayer is the usual one for judgment in such cases.

The defendants in injunction answered, alleging that they were the lawful holders of said notes, acquired in good faith before maturity for a valuable consideration. They ask judgment for twenty per cent, on the amount of the judgment enjoined, and ten per cent, interest on the judgment, and damages for attorney fees incurred in the defence of said injunction. •

There was judgment for plaintiff and defendants appealed.

It will be unnecessary to discuss the issues presented by the evidence in the record to show that Mrs. Básele conducted the business in her own name, and the proceeds of the notes, less the amount due Levis Brothers by the husband, placed to her individual credit, and that goods were furnished her on this amount credited to her.

The sale of the property to Leveque, who was an interposed party for Levis Brothers, is shown by the evidence to have been in fact a mortgage for the purpose of appropriating the proceeds for an indebtedness due by the husband to this firm, and as security for other advances.

As between the parties to such an act, and those who should acquire the property or the notes, with notice and knowledge of the true character of the transaction, the act of mortgage, disguised as a sale, would undoubtedly be declared null and void. Civil Code, 2398, 126, 127, 128; Parmer vs. Mangham, 31 An. 348; Crozier vs. Ragan, 38 An. 154, and Bisland vs. Provosty, 14 An. 169.

In order to protect the wife, she is authorized to show the real motive of the contract, or transaction, and is not estopped by her declarations in the act. Vicknair vs. Trosclair, 45 An. 373; McIntosh vs. Smith, 2 An. 756; Chaffe, Bro. & Son vs. Oliver, 33 An. 1010; Harang vs. Blanc, 34 An. 632.

In the disguised contract, if it be one, the wife separate in property had the legal right to enter into, third parties without notice are protected. Justice imperatively demands the maintenance of this doctrine. Chaffe, Bro. & Son vs. Oliver, Administrator, 33 An. 1010; Schepp vs. Smith, 35 An. 1; Succession of Porstall, 39 An. 1052; Bank vs. Plathers, 45 An. 75; Vicknair vs. Troselair, 45 An. 373.

If a party had purchased the property on the apparent validity of the title placed on record by the plaintiff, without knowledge of the real character of the transaction, his title would be protected against the demand of the wife. Broussard vs. Broussard, 45 An. 1085.

There can be no difference in principle, between the holder and owner of the notes given for the purchase price, and the purchaser of the property, as the reliance of the purchaser of the notes and of the property, is upon the record. When that discloses an unimpeachable title he receives the protection of the law, as against unknown and latent defects. Schepp vs. Smith, 35 An. 1; Broussard vs. Broussard, 45 An. 1085.

In Broussard vs. Broussard, referred to, we said that “ whatever the secret equities between a vendor and vendee, and whatever their rights between themselves, the former, who has placed upon the public records a title valid on its face, can not urge such equities against a bona fide purchaser for value from the vendee, who acted on the faith of such recorded title. This principle applies to married women who, in the exercise of powers conferred by law, have executed apparently valid sales of their paraphernal property.”

The law authorizes the wife to sell her paraphernal property and to dispose of the proceeds as she may deem fit. Civil Code 2390; Courtney vs. Davidson, 6 An. 456; Morrow vs. Godehaux, 41 An. 716.

The defendants acquired the notes in suit, paraphed by the notary to identify them with the act of sale retaining the vendor’s privilege and special mortgage to secure the same. The mortgage with all its force and vitality accompanies the note in its transfer to an innocent holder. Carpenter vs. Allen, 16 An. 435; Schepp vs. Smith, 35 An. 1; Bank vs. Flathers, 45 An. 75.

The paraph required the holder to look to the registry of the act with which the notes were identified, which has for its object the protection of third parties. This registry of the act of sale executed by Mrs. Basóle informed the defendants that she, a married woman, separate in property from her husband, with his authorization, had sold to one Leveque her paraphernal property, part for cash and the balance on terms of credit, evidenced by the notes in his possession and ownership. There was nothing in the act to put them upon inquiry, or which remotely suggested that the sale was in fact a mortgage executed for the purpose of raising money for the hus - band’s benefit. There was no duty imposed upon them to inquire into what disposition she made of the proceeds of the sale.

The facts mainly relied upon by plaintiff to show that the defendants were not innocent holders of the notes are that the defendants knew that Leveque owned no visible property and would not without collateral security have been credited by defendants; and the continued possession of the property by the vendor, Mrs. Básele.

Leveque owned no visible property, and may not have had on this account credit in commercial circles. But he was aman of business, a book-keeper in the employ of Levis Brothers, and it is not at all improbable that he may have had sufficient means to purchase the property on the terms and conditions in the act of sale. The fact, therefore, that Leveque was not the owner of visible property, by itself, is not sufficient to charge the defendants with the knowledge that he was an interposed party for the benefit of Levis Brothers, and that the real transaction was intended to be a mortgage and not a bona fide sale.

But a party may be interposed for convenience, and the sale a valid one. There may be in such a case a real price and consideration paid by the actual vendee. The defendants may have known that Leveque was an interposed vendee, and that Levis Brothers were the real purchasers, but this would not in our opinion be sufficient to charge them with the secret intentions of the parties to the original act of sale. It was sufficient for the protection of defendants that they found on record a sale apparently valid on its face, sufficient to induce third parties to purchase. Schepp vs. Smith, 35 An. 1; Bank vs. Flathers, 45 An. 75.

If the defendants had notice beyond this, actual or constructive, it must be shown in order to prevent recovery.

The delivery of the property accompanied the public act of sale. Fleckner vs. Grieve, 4 Martin, 694; Laurans vs. Garnier, 10 Robinson, 425; Ellis vs. Provost, 13 La. 235; Flynn vs. Moore, 4 An. 400; Peterkin vs. Oglesby, 30 An. 907; Oivil Code 2479.

The continued possession of the vendor, Mrs. Básele, can not avail her in her demand to have the sale annulled. The sale on this account can only be attacked when third persons have acquired an interest in the property, or the rights of the creditors in the same are .asserted.

In such an event, when there is reason to presume thatjthe sale is simulated, its reality must be shown by the parties. Oivil Code 2480.

The exception to this rule is when the Wife attempts to show the real character of the transaction entered into by which she binds herself for her husband. As in the instant ease, between her and the original parties to the act of sale, she would be permitted to prove that she remained in possession of the property to show that the sale was a disguised mortgage.

This she has shown, but has failed to prove that the defendants had any knowledge of the transaction. They are innocent third parties, and as to them the public act of sale placed upon record by the plaintiff must be taken-according to its recitals. ■

As to these parties no question of simulation is at issue between them and plaintiff.

The evidence shows that whatever may have been the intentions of Levis Brothers and Mrs. Básele as to the sale of the property, and whatever disposition may have been made of the proceeds of the sale, the defendants are the legal holders of the notes 'in good faith, and without notice of the equities between the parties to the act of sale.

The threats and marital influence alleged to have been exerted by plaintiff’s husband are not proved.

Had they been proved, the fact would not assist the plaintiff, as the defendants are innocent holders of the notes. Blanchard vs. Castillo, 19 La. 362.

From the facts and circumstances of this case, we are not disposed to assess general damages.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that it is now ordered that plaintiff’s demand be rejected and the injunction dissolved at plaintiff’s cost. It is further ordered and decreed that the defendants do have and recover judgment against the plaintiff and the sureties on the injunction bond in solido for ten percent, interest per annum pn the amount of the judgment enjoined, and special damages for attorney’s fees in the sum of one hundred dollars.

:R,ehearing refused.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 11,347.
    Succession of Louise Marie Reiss, Wife of Henry J. Rolling, Jr.
    Plaintiff, the mother-in-law, appeals from a judgment ordering her son-in-law to send his children, aged respectively six and eight years, issue of the marriage witli her late daughter, to visit her, and directing further that she shall visit the grandchildren at their father’s home in alternate weeks, on such days, as, the parties may agree.
    She complains of the judgment in so far as she is to visit the children, and asks that it be limited to the imperative duty of the children to visit her. There is. very little difference in principle between the parties as disclosed by the evi*. dence.
    The husband does not deny the filial piety that is due by the children.
    Differences and incompatibilities have arisen shocking to the grandparent and that may prove painful, in course of time, to the children. The question is of first impression in the courts of this State. In France, under similar laws, the courts and commentators greatly differ upon the subject.
    There are well considered decisions holding that the precept: Honor thy father and thy mother, as embodied in the Oivil Code, includes the grandmother or grandfather as a legal obligation.
    Other courts and certain writers lay down the principle that under a law of nature the child is under the authority of the father or mother aloné, and that the law has conformed to natural law, and that the judge has no authority to intervene.
    Thecourtof the first instance has pronounced judgment based upon the principles that the parties in their testimony admit is correct, but which they have not followed.
    APPEAL from the Oivil District Court for the Parish of Orleans. Theard, J.

      A. L. Tissot for Appellant:
    These proceedings come before this Honorable Court on an {appeal from a judgment, of a mixed character, rendered herein on a rule to compel a father and natural tutor to send his children to visit their grandmother, at such a time as the court might determine, at her residence and domicile.
    The evidence shows that for years past the defendant had deprived the plaintiff of the privilege of seeing her grandchildren, or of having access to them. • He had no reas'on for his actions. Mrs. Reiss is a lady of means and refinement. She has a palatial residence on Esplanade avenue, at No. 281, and can there receive and entertain these children, and herself, in the most elegant style. Since a number of years this defendant has been practising the most petty, narrow-minded annoyances directed against his mother-in-iaw, leading to the belief and conviction that he is animated by no other motive but malice.
    The law will not uphold the father in this unaccountable conduct.
    The rules governing the paternal authority are to be found in our Oivil Cod-e . Arts. 216 to 237. In our jurisprudence we have been unable to find any adjudicated cases covering our subject. But in the French jurisprudence the question has presented itself, and has been decided in the sense of our contention. As the articles of the Code Napoleon are similar to our own, we may then be permitted to draw light from the French tribunals and commentators.
    The articles of the Code Napoleon corresponding with our own are Arts. 871 to 387.
    These, like our own, give the father full authority over his children. But is the authority thus conferred absolute, and such as can be wielded arbitrarily, and in the manner attempted by the defendant herein; or is it subject to the control of the court? The question was, at one time, controverted in 'France, but it is now finally settled in the sense for which we contend herein.
    We find an arret of the Court of Nancy of May 28, 1868 (Renaud C. Marx), which decides:
    La puissance paternelle n’est point absolue, et reste soumise au contróle des tribunaux, qui peuvent, par exemple, en cas d’interdiction par le peí e de tous rapports entre ses enfants et leur aieule, autoriser celle-ci á les voir et a corresponds avec eux sous les conditions dont le juge a ^appreciation souveraine. Code Nap. 371, 372, 373.

    Pursuing further our study of the question, we come to a decision of greater value and authority than that of these “ Cour d’appels” above cited. It is one rendered by the Court of Cassation of 1870. It is there decided:
    Le p'ere, seul investí de la plenitude de la puissance paternelle, a le droit d’inter-dire la visite a ses enfants aux personnes dont l’influence luí semblerait nuisible; mais il ne peut user de ce droit, en ce qui concerne les aieules, que lorsqu’il existe des motifs graves et exceptionnels, dont les tribunaux restent appréeiateurs.
    En pareil cas,et s’il y a exagération ou abus par le p'ere du droit qui lui appartient, les tribunaux peuvent régler ce qu’exigent, d’une part, l’autorité du p'ere, et del’autre,l’interet des enfants, ainsi que la réciprocité des droits et des devoirs établie entre eux et leurs autres ascendants par la loi morale et la loi civile.
    In Lalloz and Verge: Codes annotés, Code Civil, edition of 1873, we find these decisions commented upon, and approvingly cited. Applying them to Art. 273 of the Code Napoleon, which reads: Le p'ere seul exerce cette autorité durant le mariage, the paternal authority, they resume and conclude as follows:
    19. Ainsi, bien que le pére, seul investí du droit de diriger l’éducation de ses enfants, puisse leur interdire la visite des personnes, meme de leur famille, dont il croirait avoir a craindre l’infiuence, cependant il n’a ce pouvoir, á l’égard des membres de la famille auxquels l’enfant doit honneur et respect en vertu de l’article 371 C. Civ., qu’autant que sa determination est commandée par d’impérienses raisons, qui sont soumises au controle des tribunaux.
    20. Et, spécialemeni, l’interdiction par le p'ere, de tout rapport entre ses enfants et leurs ascendants (maternels), ne peut étre sanctionnée sans examen par les tribunaux, sous prétexte que le p'ere n’a pas & rendre compte des motifs de cette interdiction; c’est aux tribunaux & apprécier, en cas pareil, la légitimité d’un tel usage de la puissance paternelle. L. P. 57.1. 273. 8 Julliet, 1857.
    21. Le meme, si par des raisons graves et exceptionnelles, il peut appartenir au p'ere d’interdire tout rapport entre ses enfants et leurs ascendants, les tribunaux, en cette mati'ere comme en toute autre, sont investís due droit d’apprécier, s’il y a, de la part du pere, usage legitime ou abus du droit de la puissance paternelle. Reg. 12 Juil., 1870; L. P. 71,1, 218.
    22. Ainsi ils peuvent autoriser l’aieul h visiter l’enfant, et meme & le recevoir chez lui dans certaines conditions k le faire sortir une fois sur trois sorties ordinaries, et a le garder plusiers jours lors des grandes vacances. Meme arret.

      23. Suivant d’autres arrets, les droits de la puissance paternelle doivent étre conciliés avec le respect et les devoirs de l’enfant envers les aieuls et aieules. Paris, 27 Juin, 1867; D. P. 67, 5, 348; Nancy, 28 Mai, 1868; D. P. 68, 2, 176.
    24. Ainsi, en cas deprédécés de la mere et de nouveau mariage du pére, Paieule maternelle peut étre autorisée a visiter son petit-fils dans la maison d’éducation ou son pére l’a placé, et meme á le faire sortir a des jours déterminés, dans une juste mesure qu’il appartient aux tribunaux de fixer. Méme arret du 27 Juin, 1867.
    25. Pareillement, il appartient aux tribunaux, alors que le pére a prohíbe d’une maniére absolue toute visite d’une aíeule maternelle a son petit-fils, et interdit toute correspondance entre eux, d’autoriser cette visite etcette correspondanee, sous telles conditions qu’ils jugent utiles a l’intérét de l’enfant. Arrét précité du 28 Mai, 1868.
    26. Jugé encore que le pére ne peut faire résulter de la puissance paternelle dont il est investí le droit d’empécher, sans motifs légitimes, l’aieul de recevoir son enfant, par exemple, aprés la dissolution du mariage, un aieul maternel de visiter cet enfant, et méme de le faire sortir, a des jours et dans une mesure determinés par les juges, de la maison d’éducation ou le pére l’a placé. Ainsi l’aieul peut étre autorisé a garder l’enfant chez lui pendant une partie des vacances, alors, notamment, que l’éloignement de son domicile ne lui permet pas de ramener cet enfant chaqué soir chez son pére. Paris 14 Aoüt, 1869; D. P. 69, 2, 238.
    We have followed up the “ jurisprudence générale ” of Dalloz to the year 1882, and can find no more adjudicated cases than those above cited, for the reason, doubtless, that the jurisprudence of France is considered as settled by the above cases.
    Laurent is of a different opinion. He refers to the decisions cited above and critcises them. But his opinion, howsoever valuable, can not overturn the constant jurisprudence which carries an executory sanction. F. Laurent, Droit Civil Frangais, Yol. 4, pp. 860 et seq., Nos. 268 etseq.

      Bernard McGloskey for Appellant:
    There is no law in this State which directly or indirectly gives to grandparents the right to interfere between father and child. Civil Code, Art. 217, etc.; Laurent, Yol. 4, p. 316.
    The court will not interfere in the exercise of the authority and discretion vested in the father, after the death of his wife, as to whom the children should visit*
    The paternal power, as known to our laws, is traceable to the Roman Law — which based the power upon the principle that every family was, and of right ought to be, one body, with one will and one executive. Hadley, Lectures on Roman Law, 105,122.
   The opinion of the court was delivered by

Breaux, J.

The father and tutor of two minor children, one eight and the other six years of age, is defendant in a rule issued at the instance of their maternal grandmother to compel him to send his children to visit her, at her residence and domicil, on such days and at such hours as the court may deem .proper to determine.

She alleges that he arbitrarily, wantonly, maliciously and cruelly denies her the privilege of seeing her grandchildren, thus abusing "parental authority, controllable by the courts.

The defendant denies that he has refused to mover in rule the privilege of visiting- his children, and avers that he is willing that she shall visit his children. 1

The.judgment of the court a qua makes the rule absolute and orders the father to send the children to visit their grandmother, and further orders that the grandmother shall visit the children at their father’s home in alternate weeks on such days as the parties may agree, provided the visits do not in any manner interfere with the schooling of the children.

Before this court the appellant asks that her rule be made absolute, commanding the defendant to send the children to visit her without reference to any visit by her.

The appellee, in his answer to the appeal, prays for a,dismissal of the rule.

The mother of these children has been dead about six years.

They live with the father.

The relations between the son-in-law and mother-in-law are not only strained but acrimonious.

More than three years have elapsed since he has sent his children to visit their grandmother.

She has requested him, she testifies, to send them, but he failed to comply with the request.

The defendant’s household consists of his father and other members of his family. They and these children live at the same residence.

The relations of plaintiff with the members of the son-in-law’s family are not, it seems, of the most pleasant character.

The plaintiff by her testimony creates the impression that the coolness and feeling existing would render the visit anything but pleasant.

Moments with her grandchildren while on such visits which, under other'circumstances, would be highly enjoyed, at this time would possibly only cause irritation and bad blood.

■ Their differences are, we are led to believe, of an entirely personal character and have no reference to the standing of the parties, in regard to which there is not the most remote suggestion.

The plaintiff states as a witness that she does not entertain any objection on that score.

The witness testifies:

Q. “Have-you visited those children at the house of their father?”

A. “No sir.”

Q. “Why not?”-

A. “Why not! Because I thought that they should be sent,to see me, and not to go there and see them.”

Q. “ Why not call upon these children at the home of their father to see them? ”

A. “ Because I thought it was proper to send them to me.”

Q,. “Is that the only reason? ”

A. “ That is my reason that I wish to give.”

Q. “ Do I understand you, then, as refusing to visit those children at the home of their, father? ” - ■ •

A. “No sir; I don’t refuse, but I have other reasons. I may be wrong, but at the same time I have never visited the Bolling family, and I didn’t think it was my place to go to see those children there, as I think their place was to come to see me.”

When examinad as a witness the son-in-law, in answer to the question:

Q. “ Don’t you think that there is a law of nature-that children should visit their grandparents? ”

Answer. “ I think that’s right.”

Manifestly the difference between these parties is inconsiderable, and would not be sufficient to arrest attention, were it not that it affects the good relation and intimacy that -should prevail between these little children and their grandmother.

While we .appreciate the affection that moves her to seek the occasional company of the offspring of -her daughter, this court’s jurisdiction does not include the cause pleaded.

The issue is not incidental to any other cause. :

However disinclined we are .to discountenance causes of action such as the one under consideration — for they are inspired by a true and commendable impulse — we find no authority in law to entertain jurisdiction of the issue presented. The question involved -is res nova in this State.

In interpreting articles of the Civil Code in France, similar to ours on the subject, the courts and commentators greatly differ. There is respectable authority listed in favor of the precepts of Deuteronomy, Honora patrem tuurn et matrem, embodied in the Oivil Code as including also the grandfather and the grandmother.

They construe, under the articles of the Code, that the obligation involved in the case at bar, legal in so far as relates to the father and mother, is legal also in so far as relates to the grandfather and the grandmother, and that the court can intervene for its enforcement without regard to the will of the father or mother.

Other courts hold and other commentators emphatically state that, under the law of nature, the child is under the authority of the father or mother, after the death of either.

We translate from Laurent, Vol. 4, p. 362, who propounds the question:

Oan the ascendant demand that the authority of the father and mother be limited?

In truth, the ascendants have certain rights that the law, in accord with nature, gives them, but only when the father and mother are dead or are incapable of manifesting their will; during the existence of the father and mother the law, properly, accords them no authority over the children.

To permit them to intervene would occasion embarrassment and annoyance; even more; it would injuriously hinder proper paternal authority by dividing it.

The authority sought is said to be in the interest of the children.

Are the children interested in anything in the nature of a conflict of authority? Without doubt it is desirable that the ties of affection that nature creates between the ascendants and their grandchildren be strengthened and not unceasing, but, if there ;is a conflict, the father alone or the mother should be the judge.

The law gives no right of action to the grandparents.

The father may have good reasons to avoid all contact between his children and their grandparents, either that he fears that they may inculcate bad principles or that they will unsettle the respect and affection due him.

He owes no account to any one of his motives; they may be so intimate that the honor of the family requires that they shall remain a secret.

Shall we say that the judge shall be the arbitrator between the •grandparent and the father?

The court of Bordeaux replies that the intervention of the tribunals would, as a consequence, render the discussions of the family more pronounced by delivering them to the public.

Other views than those above expressed, says the commentator would be proper on the part of the legislator — we do not understand them when emanating from interpreters of the present laws.

We refer approvingly to the French authorities only in so far as •they lay down the-principles that there is not a vinculum juris. That the obligation ordinarily to visit grandparents is moral and not legal.

There may be cases of downright wrong and inhumanity demanding judicial intervention, even to the extent of dismissing the father •and tutor from his trust.

The case at bar does not disclose so grave an issue.

Ill feeling and bad blood separate the father and grandmother.

The former admits the respect due to the latter by his children.

The ties of nature will prove more efficacious in restoring kindly family relations than the coercive measures which must follow judicial intervention.

It is, therefore, ordered, adjudged and decreed that the judgment of the court a qua be annulled and avoided, and that the rule be ■dismissed at plaintiff’s costs in both courts.

Rehearing refused.


author: Parrange, J.

text:
    No. 11,353.
    Succession of Harriet R. Hooke, Wife of Joseph H. Ashbey.
    Where a matrimonial community of acquets and gains exists and the wife dies and her succession is opened by the qualification of the husband as natural tutor of his minor children issue of his marriage with the decedent, a creditor who has obtained a judgment on a community debt can not compel an administration of the wife’s succession. His remedy is to proceed against the surviving husband and the community property.
    APPEAL from the Civil District Oourt, Parish of Orleans. Ellis, J.

      J. Zaeh. Spearing Attorney for Opponents and Tutor, Appellees:
    The holder of a judgment or claim against the husband can not claim the amount of same from, and is not by virtue thereof a creditor of, the succession of the deceased wife. R. ó. C. 2398; Succession Clark, 27 An. 269, 270; Reihl vs. Martin 29 An. 16; Succession of Bofenschem, 29 An. 714.
    A person who is not a creditor of a succession, and has no interest therein, can not cause the appointment of an administrator to the same. Succession Poret, 26 An. 168'; Succession Story, 8 An. 502; Succession Walker, 82 An. 321; Succession Hebert, 33 An. 1099; SuccessionSarrazin, 34 An. 1168; Soye vs. Price, 30 An. 93.
    The beneficiary heir, present and of age, is preferred in the appointment as administrator, where one is necessary; on his default, the natural tutor of the minor heir will be preferred, R. C. C. 1042,1044,1046,1121; Succession Romero, 42 An. 896, 897; Succession Sloane, 12 An. 610, 611; Succession Sutton, 20 An. 150, 151; Succession Daigle, 'll An. 624, 525.

      J. S. Whitaker and Ernest T. Floranee Attorneys for Appellees:
    Where the succession of a wife owns community property and has been accepted under benefit of inventory, but no administrator has been appointed thereto, a creditor of said community can compel the appointment of an administrator. 0. 0.1041.
    The succession of a wife owns her share of the community property, encumbered with the community debts. 36 An. 454, Dickson vs. Dickson; 32 An. 852, Tugwel vs. Tugwel].
   The opinion of the court was delivered by

Parrange, J.

Harriet R. Hooke, wife of Joseph H. Ashbey, died in 1884. A matrimonial community of acquets and gains had existed between her and her husband, who is still surviving. Shortly after her death, her husband, alleging that his wife had died intestate, leaving both separate and community property, obtained from the Civil District Court for the parish, of Orleans, an order for the takiug of an inventory of the property left by the decedent; he was appointed and he qualified as the natural tutor of his three minor children, issue of his marriage witfi the decedent. An under-tutor was also appointed and qualified. The inventory amounted to $12,456.15)^, the interest of the decedent in the community property being valued at $1869.37)á and her separate property at $10,586.78.

In 1885, Mary J. Ashbey, as natural tutrix of her minor children, obtained a judgment in said Civil District Court against Joseph H. Ashbey, on a balance of account for $5437.92 and interest, which account Joseph H. Ashbey had rendered Mary J. Ashbey prior to the death of the wife of Joseph H.‘Ashbey and which account constituted a community debt.

In 1893, James H. Ashley filed, a petition in the succession of Harriet R. Hooke, wife of Joseph H. Ashbey, alleging that Joseph H. Ashbey, since his appointment as natural tutor of his children and since the taking of the inventory, has taken no action whatever in said succession; that the same remains unsettled; that Joseph H. Ashbey refuses to either settle or acknowledge claims against said succession; that he refuses to represent the same; that the petitioner is a creditor of the same and prays to be appointed administrator.

The application is opposed by Mary Ashbey, one of the heirs now of age of the deceased wife of Joseph H. Ashbey and by the latter as natural tutor of, one of his children, for the reasons that the application is not properly made or filed according to law; that JamesH. Ashbey is not a creditor of the succession and has no right and is not a proper person to be appointed administrator; and that the succession owes no debts, and the appointment of an administrator is unnecessary.

The opponent, Joseph H. Ashbey, prayed in the alternative to be appointed administrator in case petitioner’s application should not be rejected.

On the \rial of the matter, James H. Ashbey offered in evidence the judgment rendered against Joseph H. Ashbey in 1885 and also the account upon which that judgment was based. James H. Ashbey also offered a judgment of said Civil District Court rendered in 1893 in the succession of one James H. Ashbey recognizing and putting in possession his sole heirs, among whom is James H. Ashbey, the party to the instant case. We understand that the claim of the latter to be a creditor of the present succession is founded on the fact that the judgment against Joseph H. Ashbey belonged to the succession of one James H. Ashbey, of whom the James H. Ashbey, party to the instant case, is one of the heirs.

The lower judge rendered judgment ordering an administration, and he appointed Joseph H. Ashbey the administrator. The opponents have appealed.

In our opinion the judge a quo erred. Under the circumstances of this case he should not have ordered an administration. It is settled that notwithstanding the actual dissolution of a matrimonial community of acquets and gains by the demise of one of the spouses, it has a fictitious existence subsequently for the purposes of liquidation and -payment of community debts. Succession of Dumestre, 41 An. 411; Factors and Traders’ Insurance Company vs. Levi et al., 41 An. 434; Landreaux et al. vs. Louque, 43 An. 234, and cases therein cited; Succession of Oason, 32 An. 792.

The judgment being a conceded community debt, we see nothing to prevent its owner or owners from proceeding against Joseph H. Ashbey, who was the head of the community, and against the community property, for the satisfaction of the judgment.

Tt is therefore ordered that the judgment appealed from be annulled, reversed and set aside, and that the application of James H. Ashbey for an administration of the succession of Harriet R. Hooke, deceased wife of Joseph H. /Vshbey, be and the same is hereby rejected and dismissed at the cost of said James H. Ashbey in both courts.

Rehearing refused.


author: Miller, J.

text:
    No. 11,473.
    The Parish of Concordia vs. S. R. Bertron.
    Police juries have the capacity to huy the property of delinquent tax collectors seized, sold and adjudicated at sheriff’s sale under the judgment and execution of the jury against the delinquent. Const., Art. 118; R. S., Secs. 8821, 351, 354; 2 H. D. 1157, No. 1 ;etseq.

    To divest the title of the owner, the adjudication of his property for taxes must be preceded by notice to him. Const., Art. 210; 30 An. 871; 43 An. 726, 427.
    The prescription of three years will not avail the adjudicatee at the tax sale or ■ those claiming under him, when no such notice has been given the owner. Ibid.

    APPEAL from the Eighth District Court, Parish of Concordia. Boatner, J. ad hoe.

      Lazarus, Moore & Luce Attorneys for Plaintiff and Appellee:
    Police juries are authorized to employ counsel other than the district attorney. 24 An. 145; 28 An. 455.
    Parishes have power to purchase apd own real estate. O. C. 433.
    Parishes have the inherent and incidental powers to carry out the powers expressly granted. 2 Dillon’s Municipal Corporation, Secs. 661 562; Parish vs. Eager, 15 Wis. 590.
    Defendant is estopped from denying the title of plaintiff, having acquired title through the plaintiff, in tax proceedings against the plaintiff as owner.

      The tax title of defendant, being without the notice prescribed by law, is absolutely illegal. 80 An. 871; 82 An. 226; 33 An. 291, 529; 43 An. 426; 44 An. 909.
    A judicial sale can not be avoided without showing injury. 31 An. 639; 6 An. 61: 12 An. 271.
    In a petitory action, plaintiff can recover against a naked possessor on an apparent title; and it is not necessary to make out a title good against the world. 8 La-246; 10 An. 540; 15 An. 454; 23 An. 274.
    The State can be estopped. 28 An. 121; 26 An. 460; 34 An. 359; 29 Mo. 543-

      Elam & Dale Attorneys for Defendant, Appellant;
    Parishes, like counties in other States, are involuntary political or civil divisions of the State, designed to aid in the administration of government as State auxiliaries or functionaries, possessing no other powers than those delegated, ranking low down in the scale of corporate existence, and wel distinguished from -municipal corporations proper, which are vested with more extensive powers, and endowed with more important functions, and a larger measure of public life. As a rule they can not acquire real estate, unless for public utility, and can not dispose of the same, after it has been acquired and devoted to public service without legislative authority. They may, however, be the object of public and private bounty in the absence of disabling or restraining statutes. * * * They have no life, no attribute, no power, no rights, no obligation,.but such as have been conferred or imposed upon them. Parish vs. Gaddis, 34 An. 931.

      Clinton & Garrett Attorneys for Warrantor, Appellant:
    The parish was incapable of acquiring or holding the immovable property, as the same was not acquired for public purposes under legislative authority; either express or distinctly implied. See Cooley on Const. Lim., 6th Ed, p. 294 et seq.', Billon on Municipal Corporations, Sec. 10; 32An. 624-627; Am. and Eng. Ency. of Law, Yol. 15, p. 1057 etseq. and notes thereunder; also Yol. 4, p. 348 et seq. and notes.
    A municipal corporation has no authority to purchase land at an execution sale upon a judgment obtained on an official bond. See Williams vs. Lash, 8 Minn. Beports, 496.
    The defendant and warrantor acquired all the rights of the State, and the estoppel, ' invoked by plaintiff, can not apply, for the reason that the State is.the sover ! eign and the parish simply an agent for the performance of certain public functions.
    Befendant in possession claiming title has the right to require plaintiff not only to show a better title than his own, but a title as good as any the latter can oppose» to him, whether invested in defendant or not. See Font vs..McConnell, 46 An. . 215.
    The vendee in case of eviction can not recover from the warrantor fees paid by him to counsel for asserting his rights in court. 19 La. 357. The contrary doc - trine was laid down in 2 An. 868, but overruled expressly in 13 An. 499; 14 An. 311, 757, 826; also in 15 An. 517.
   The opinion of the court was delivered by

Miller, J.

The plaintiff, the parish of Concordia, instituted the petitory action to recover certain lands. The title of the plaintiff is derived from the sale of the lands under execution of the judgment of the parish against P. W. Chase, at which sale the parish became the adjudieatee. When the sheriff’s sale was made the lands were assessed for taxation for the year 1888 against P. W. Chase, and on the 4th of May, 1889, were adjudicated to the State by the tax collector, the basis of 'the adjudication being the assessment for the year 1888. Thereafter, the lands were listed to the Board of Commissioners of the Fifth Levee District, the list being recorded on the 24th of April, 1891, in the office of the clerk of the court and ex officio Recorder of Concordia. Act No. 44 of 1886, Sec. 11. The Levee Board conveyed the lands to S. R. Bertron, the defendant, on the 15th of December, 1891, the conveyance embracing the lands in controversy, as well as all lands in Concordia acquired by the board under the Act No. 44 of 1886. The defendant asserts title under the conveyance of the board, avers the parish is estopped from disputing his title, because, subsequent to his purchase, the parish authorities assessed taxes against him on the property; that the parish itself has no title, because incapable of acquiring the property; pleads the prescription of one, three and five years, and finally calls in warranty the Levee Board, and in the event of eviction, claiming judgment against the board for the price paid and the amount of certain taxes alleged to have been paid by the defendant for the years 1880 to 1892. The Levee Board, answering the call in warranty, specially deny any liability for counsel fees claimed by defendant in the event of eviction, and adopt his defences. The judgment of the lower court was in favor of plaintiff against defendant for the land, and in favor of defendant against the warrantor for the price, reserving the question of taxes paid. ■ The appeal is by defendant and his warrantor.

The main defence in this court is the asserted incapacity of the plaintiff to acquire the property at the sheriff’s sale.' That sale was to satisfy the judgment of the parish against Ohase for parish taxes collected by him as sheriff and ex officio tax collector, and for which he had not accounted. Defendant’s argument supposes the parish can not acquire property at a sheriff’s sale made to satisfy the judgment of the parish against the delinquent tax collector. The prop•erty of the debtor is the common pledge of his creditors. It is the right of the creditor to recover judgment against his debtor, issue execution and subject bis property to sale for satisfaction of the judgment. The plaintiff in execution under the general rule certainly can buy the property at the execution sale, if to protect his interest he chooses to purchase. The purchase is a mode of satisfying the judgment. On what ground is a parochial corporation to be excluded, when a judgment creditor, from the right to purchase the debtor’s property, accorded by law- to the seizing- creditor? - The theory of the defendant and warrantor seems to be that the purchase of property by the police jury at the sheriff’s sale made under execution against its debtor is forbidden by law and public policy.

The competency of the police jury, created for purposes of parochial government, to acquire -property without any restrictions may well be doubted. That general question is not involved in this case. The purpose of the purchase in this case was to restore to the parish the funds derived from -its taxes, not accounted for by the tax collector. Such purchases affirm no capacity of -the jury to purchase property generally, and hence contravene no public policy. They suppose only, that the parish-may realize funds diverted-from its coffers by the delinquent tax collector, and for that purpose may, if necessary, purchase his property at the sheriff’s sale under the execution of the parish. This theory, that'assails the capacity of the parish to purchase at the execution sale,- would, it is presumed, equally deny that the property if tendered by the debtor in satisfaction of his debt, could be received by the parish.

The view we have expressed of the right of the parish to purchase under its execution, sufficiently obvious, it would seem, finds confirmation in our statutes authorizing bonds of tax collectors and suits by police juries on these bonds. It is difficult to appreciate why the jury, authorized to sue, recover judgment and issue execution1 should not have the right to buy at the sheriff’s sale when necessary to make that execution effective. State Constitution, Art. 118; R. S., Secs. 3821, 351, 354; 2 H. D.,. p. 1557, No. 1, et seq. It is urged in defendant’s brief that the Supreme Cpurt of Minnesota, under a statute authorizing a county to purchase lands for public uses, held that the county can not buy property at an execution sale to satisfy .a judgment on an official bond. The statute is restrictive of any capacity to purchase except for public uses. The limitation of such legislation doubtless, exerted its influence in the Minnesota decision. We have no such statute, and the power of the parish to buy in this-case, we think, is implied by the laws defining the functions and. powers of police juries.

The defendant and warrantor rely on the defendant’s tax title— i. e., the adjudication of tile property to the State for the taxes of 1888, the listing of the lands to the Levee Board and the conveyance-of the board to defendant.

The parish was owner when that tax adjudication was made. It is.. in proof no notice was given to the parish of that adjudication as required by the Constitution, and notice under our jurisprudence is-essential to divest the title of the owner. Constitution, Art. 210;. Bank vs. Lannes, 30 An. 871; Smith vs. City, 43 An. 726; Breaux vs. Negrotto, Ibid., p. 427. There is an allusion in the brief for-defendant and warrantor to the prescription of three years. This-prescription is of no avail in a case like this, and besides the tax adjudication was in 1889, and this suit was filed in 1891. In the brief of defendant it is said, this suit, petitory in its character, should not., have been brought against defendant. The suit to try title is properly directed against defendant asserting title. Again, it is urged by defendant that in this action plaintiff must show title better than any that can be opposed to him. We think plaintiff has met this requirement. We have thus disposed of the defences urged in this-court, and as to other points in the answer nothing need be said.

The defendant asks for the' affirmance of the judgment in his-favor against the warrantor for the price paid by defendant. The warrantor insists only that he should not pay counsel fees. As to the-restitution of the price there is no question (Civil Code, Art. 2506),. and that is all the judgment against the warrantor awards.

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


text:
    No. 11,478.
    Edwards & Kurz vs. Plaquemine Ice and Gold Storage Company.
    The purchaser sued for the price is entitled, notwithstanding the prescription of' the action quanti minores, to claim a reduction, of the price for defects in the* thing sold. Civil Code, Arts. 2541, 2544; 1 N. S..468s. 2 An. 546..

      When a machine stipulated to be furnished is delivered to the party bound to receive and pay for it, who, after a fair opportunity for examination and trial of the machine, promises payment of the price with conditions afterward waived by him, in the suit brought to compel that payment, the burden of proof will be on the defendant to prove the defects in the machine alleged to exist.
    APPEAL from the Fourteenth District Gourt, Parish of Iberville. Talbot, J.

      J. Armstrong and D. H, Cross for Edwards &Kurz, Assignees; Frank McGloin Attorney for Moore & Knight, Appellees:
    The evidence shows full compliance with the contract.
    Defendant can not claim more than specified in resolution of May 21,1891, which was carried out.
    Defendant having operated plant for eighteen months, burden of proof is upon it to show defective character of machinery and fair usage in its hands. 40AH.112 Whitney Iron Works vs. Reuss.
    Defendant having accepted partial delivery can not subsequently complain that the goods were not m conformity with contract. 38 An. 773, Enders vs. G-ingres.
    A party accepting work done and expressing satisfaction is estopped from claiming damages for violation of contract. 36 An. 320, DeLambre vs. Williams; 38 An. 573, Shakespeare vs. Ware.
    Residents of the parish of Orleans can not be cited in reconvention in the parish of Iberville in a suit brought by their assignees in the court of the latter parish. O. P. 162; 24 An. 513; 23 An. 255; 21 An. 258; 21 An. 550.
    The demand in redhibition, or for reduction or restoration of price, is prescribed by one year. 0. C. 2534, 2544.
    A demand in reconvention is not an exception within the meaning of the maxim “ Quce temporalia sunt,” etc. 2An.546; 3 An.141; 12 An. 297; 13 An. 249.

      Kernan & Layeoek and Alex. Hebert Attorneys for Defendants, Appellants:
    A suspensive condition in a contract suspends the right of action until the event happens, or the thing to be performed takes place. 0. 0. 2023, 2038; 15 An. 647. Where there is fraud on the part of the vendor, or obligor, the actionquantiminoris or the redhibitory action is not prescribed by one year. 0. C., Art. 2512; 15 An. 297; 0. 0. 2544; 14 An. 401.
    A vendee may avail himself of a deficiency in the quantity of the thing sold, though the action quanti minoris be prescribed. He may use as a shield what he no longer can employ ‘as a weapon. 3 N. S. 695 ; 4 N. S. 500; 2 La. 386; 4 R. 155; 9R. 101; 1 An. 404; 6 An. 29; 12 An. 297; 17 An. 269; 18 An. 118; 20 An. 407; 14 An.. 184. • ..... . .
    In an exception of no cause of action the averment of the reconventional demandi ■ -was taken as true. 14 La. 421'; 12' An. 190;' 13 An. 138, 177, 205; 14 A.n. 137.
   The opinion of the court was delivered by

Miller, J.

The plaintiffs, as assignees of John S. Moore and C. W. Knight, brought suit in the lower court to recover the balance claimed to be due by the defendant company on a contract of Moore & Knight to deliver and erect an ice manufacturing machine with all fittings and appurtenances. The defendant excepted that by the terms of the contract no suit could be brought until the manufacture of ice had commenced, and it was proven that the machine could manufacture ten tons of ice daily, the exception insisting the machine had never demonstrated this capacity. The defendant answered, denying that the assignors of plaintiffs had fulfilled their contract, averring that the machine furnished was defective^ not adapted to the purpose, nor according to the contract, that by reason of these defects defendants were entitled to four thousand seven hundred and ten dollars, for which defendants claimed judgment in reconvention against the assignors residents of New Orleans. The assignors pleaded their domicile to the reconventional demand against them in the 14th Judicial District Court of Ibervilie. The exception was sustained, and from that judgment there is no appeal. This eliminates the reconventional demand from consideration. The judgment of the lower court was in favor of plaintiffs and defendants appeal.

The defendants’ contention is well founded, that the plaintiffs, as assignees of Moore & Knight, are subject to all defences against the assignors. Nor are the defences of defendants precluded by the prescription pleaded by plaintiffs of one year applicable to the action quanti minores, for the purchaser sued for the price may always claim a reduction for defects in the thing sold. Civil Code, Arts. 2541, 2544; Thompson vs. Melbourne, 1 N. S. 468; Girod vs. Creditors, 2 An. 546.

The appeal submits the issue of fact: whether the ice machine was delivered and erected by Moore & Knight in accordance with their contract. The answer and the testimony of defendants undertakes to maintain that the ice machine in all its parts was defective and unfitted for the purpose of the contract. The boiler, it is contended, was not of the capacity — i. e., 50 horse-power stipulated, and it is charged that the generator, absorber, ammonia well, condenser, exchanger, valves and other appurtenances were each and all defective. The witnesses for the defence are the engineer of- the defendant, and an expert who never saw the machine in operation and testifies some months after its erection. These witnesses insist that there is but one test to determine the capacity of a boiler, and that test is against this boiler. On this point the testimony is at variance with that of four witnesses of plaintiff, three of whom are connected with foundries in this -city. The conclusion from their testimony is, that the measurements of the different parts of a boiler are generally accepted as indicating the capacity of the boiler. There is also produced the catalogues, as they are called, of five leading manufacturers or dealers in boilers. It appears that the dimensions of boilers given in these catalogues as those of 50 horse-power conform to that furnished under the contract. Again, it appears the boiler was bought from the Nagle Company for $1172, 1 per cent. off. The expert of defendants testifies the boiler was diminished in value to the extent of $1000. This would make the boiler worthless. If this expert testimony is accepted, then the Nagle Company received and Moore & Knight paid over $1100 for a comparatively worthless boiler. It seems to us that defendants’ testimony on this branch of the case proves too much, and that' of defendants must prevail. As to the generator, absorber, valves and other appurtenances, in all of which defendants’ testimony points out serious defects, there is opposed to defendants’ witnesses the testimony of those who constructed for the contractor these portions of the machine. The plaintiff’s witnesses testify that these parts of the machine were of the best material and workmanship. This testimony, based on personal knowledge and from disinterested persons, is entitled to great weight and outweighs, in our opinion, that of defendants’ engineer and of the expert, who mingles with his testimony statements which appear to be based on information given to him. We think on this branch of the case the defence fails. As to the actual workings of the machine, the engineer testifies it failed to turn out the required quantity of ice. On the other hand, the testimony of one of the contractors who operated the machine for about sixty days after it was erected, is that its capacity to manufacture the quantity stipulated was fully demonstrated. He testifies there were some defects developed incident to new machinery and of no importance. Besides the engineer, defendants called an assistant connected with the working of the machine. He points out but one defect, and that of a trifling character. In this condition of the record it can not be said that defendants have supported their case as to the actual working of the machinery. But it was arranged between defendants and the contractors there should be a test of the machine, and to this effect there was a resolution of the company, if not written by one of the contractors, was at least fully assented to by him and must be accepted as manifesting his entire confidence in the result of the test. There was some delay after this resolution was passed, but the defendant was not pressing for the test, and finally the contractors sent up a person to make it. On his application the company answered the machine was not working, and on this account the test proffered to the company was declined; nor does it appear the test was ever afterward sought or denied by defendant. Thus matters remained until the works were destroyed by fire. Payment being refused, this suit was brought for the balance due on the contract.

The rule so often applied in this class of cases, that acceptance of the work of the contractor binds the owner, or at least creates a presumption, in favor of the contractor, is reasonable. This machine was erected and put in operation early in April, 1891. On May 21, 1891, the company adopted the resolution to the effect that if certain enumerated articles were furnished by the contractors and the test made of the machine that the company would pay. This was certainly a qualified acceptance of the machine. The articles rhen required to supply alleged defects, it is proved, were of value little over |100. It is utterly impossible, in our opinion, to reconcile this qualified acceptance with the existence of the serious defects to which the defendants’ engineer and expert undertake, months after, to testify. If any such defects existed, as that testimony undertakes to support — i. e., a worthless boiler and appurtenances, grossly defective in workmanship and. material, the machine would, in our opinion, have been rejected and payments utterly refused. Instead payments on account were made, and the work accepted with the qualifications only specified in the resolutions of the company. The significance of this action against the company is made more impressive. The contractors sent up a portion of the articles specified in the resolution. These articles were, never removed from the warehouse, and the company avowed it would not have received the residue of the-ai’ticles called .for by their resolution... As to the.test proffered by the contractors, that was in effect refused. Weight is. due to the judgment of the lower court in a case like this. It was in favor of plaintiff, and we think the record shows no basis to reverse it.

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


text:
    No. 11,446.
    The State ex rel. D’Amico & Sidotti vs. The Judge of the First City Court.
    A mandamus to compel the inferior court to hear witnesses to confirm a default will not issue when, since the application of plaintiff to confirm the default, the defendant in the lower court has filed his answer.
    In proceedings before the City Courts no default preliminary to judgment against defendant is required. Code of Practice, Arts. 582, 583.
    Nor can these courts by their rules require such default.
    The writs under Art. 90 of the Constitution will not issue when it is apparent they can serve no purpose.
    ^PPLIOATION for Mandamus.

      Branch K. Miller Attorney for Relator:
    Preliminary defaults need not be talren before justice of the peace courts, as is done before district courts.
    Defaults and delays in the city courts are provided for by Arts. 1084 and 1055, O. F., and do not include preliminary defaults required before the district courts. Sec. 7, Act 45 of 1880 43 An. et seq. 177; 39 An. 990 et seq.; 37 An. 844.

      William O. Dufour for the Responde t.
   The opinion of the court was delivered by

Miller, J.

This is an application for a writ of mandamus to direct the judge of the First Oity Oourt to hear witnesses to prove plaintiff’s demand in the suit of D’Amico et al. vs. Canuza. The complaint of relator here, the plaintiff in the lower court, is, that the judge refused to hear the witnesses, on the ground that no default had then been taken. The answer of the respondent judge is, that the rules of the court required a default to be taken before the proof could be administered, and under the rules three days after default before confirmation of the judgment; and he further shows that defendant in the suit has, since the application of plantiff to prove his demand, filed his answer, and it is now too late to hear witnesses and render judgment as of date January 9, the date of plaintiff’s application.

There is no power in this court to order the withdrawal of the answer of defendant filed in the lower court. The relator here, will necessarily have to fix the case for trial and prove the demand. It would, therefore, accomplish no purpose were we to hold that the respondent judge should have heard the plaintiff’s witnesses when he offered them.

The writ is therefore refused at relator’s cost.

On Application for Rehearing.

On the application for a rehearing it is urged that in proceedings before the city courts the law provides for no defaults preliminary to final judgments, and hence it is insisted that our decision should have required the lower couro to receive and act on the testimony tendered by the relator in proof of his demand, and declined to be received because there was no default.

It seems that the city courts have adopted a rule requiring defaults before judgments. But these rules|must conform to the express law governing the proceedings before these courts. The law re - quires the defendant in suits before the city courts to answer the demand the day after service of citation. Ifjhe fail to answer, there is no provision for any default, and in our’opinion the rules in these courts can not exact such default to be taken. It is the duty of the court, if defendant fail to appear, to receive the proof of plaintiff’s demand and decide the case. We could in any proper case, compel by mandamus the performance of ¿this duty. But the defendant may answer at any time, if judgment has not been rendered against him. In this case, the answer of the respondent judge brings to our notice that since he declined to receive plaintiff’s testimony, the defendant has answered. This in our opinion requires that the case be fixed for trial, and the hearing on the.’day of trial of the witnesses for both parties. The mandamus, therefore, can notissue to compel the court to hear and act upon plaintiff’s testimony in support of his demand, when, by filing his answer after the hearing of this testimony was refused, the defendant has acquired the right to.have the case fixed and his witnesses heard. .While the court recognizes that plaintiff’s witnesses should have been heard when tendered and judgment then pronounced, still in the present posture of the case — i. e., the defendant having since answered, we can not issue the mandamus that would have been granted but for that answer, of which we are informed in the reply of the respondent judge.


text:
    No. 11,450.
    Emma S. Major vs. Her Creditors.
    In legal contemplation there is no debt of the tutor to the minor until the end of the tutorship and settlement of the tutor’s account. Hence, at a meeting of creditors of the tutor to elect a syndic, his vote can not be received based on the supposed debt to the minor, the tutorsmp still subsisting and there having been no settlement of accounts, and the law exacting that the debt on which the creditor votes at such meeting be fixed and certain. Revised Statutes, Sec. 1796; C. C., Art. 3086; 6 La. 462; 38 An. 15; 6 An. 224.
    Nor, in another view, can the tutor vote at such meeting on a supposed debt due by himself individually to himself as tutor. He cannot, as tutor, act against or sue himself individually. It the interests of the minor are at all concerned at the meeting of the creditors of the tutor, it is for the under-tutors to act for the minors. C. 0., Art. 275; 12 An. 361; 29 An. 531.
    It is contrary to the spirit of our law for the protection of minors, that the tutor seeking a discharge from his debts should subject the minors to the operation of the insolvent laws, so as to affect their rights against him, least of all to cancel.their mortgage against him, under the section of our insolvent laws directing the erasure of mortgages. Hence, the tutor can not, in our view, bring the minors before the meeting of the creditors by assuming to vote for them.
    0.0. Art. 3314; 33 An. 49; 29 An. 531; 31 An. 217; 12 An. 361.
    APPEAL from the Fourteenth District Court, Parish of Pointe Coupee. Talbot, J.

      0. O. <& A. Provosty Attorneys for Opponents and Appellants:
    1. The under-tutor, and not the tutor, has the mandate from the law to represent the minors at the meeting of creditors held to elect a syndic for the insolvency of the tutor.
    2. The effect of making minors parties to the proceedings of the insolvency of their tutor would be to enforce their claims against their tutor pending the tutorship and to authorize the erasure of their mortgage on the property of the tutor sold in the course of the insolvency proceedings; and as this effect cannot be sanctioned, the conclusion must be adopted that minors can not be made parties to the proceedings of the insolvency of their tutor, except under special circumstances and by means of special proceedings. Gibbs vs. Lum & Co., 29 An. 531; Schneider vs. Burns, 45 An. 875; Life Association vs. Hall,. 33 An. 49.

      3. The claims oí a minor against his tutor can not, pending the tutorship, be made the basis of a vote at the meeting of creditors held to elect a syndic for the insolvency of the tutor; but, if they can, they must first be liquidated by a judgment, and beso liquidated with special reference to the insolvency. A pro forma, irregular liquidation of six months back, had in another connection, will not suffice. 38 An. 17,510; 12 H. 157; 6 La. 462; 7 An. 624; 29 An. 526; 34 An. 30, 418, 984; 32 An. 457; 2 Kob. 415; 33 An. 595; 31 An. 217.

      L. B. Claiborne and M. Tacón Hewes Attorneys for Appellee:
    A surrender by an insolvent and the acceptance of the cession by the court vests the title to the property surrendered in the creditors. 23 An. 337.
    A cession accepted by the creditors transfers the property to them as completely as any other mode of alienation. 2 La. 354.
    Minors being creditors of an insolvent must be represented at the meeting of creditors of said insolvent, and the natural tutrix is the only person who can represent the minors, unless she be divested by an order of court and some other person be specially authorized by .the court to act for said minors instead of said natural tutrix.
   The opinion of the court was delivered by

Miller, J.

This is an appeal by creditors of the insolvent and by the party claiming to have been elected syndic, from the judgment of the lower court, maintaining the appointment of syndic made by the court, on the ground there had been no election.

At the meeting of the creditors John R. Picton, one of the appellants, and Joseph D. Major, were candidates for syndic. Among the votes cast and counted by the notary for Major was that of the insolvent, voting on an asserted debt claimed to be owing by herself as tutrix of her minor children to herself as tutrix. The vote counted produced the result stated by the notary; a majority in amount voting for Major and a majority in number for Picton. The meeting of creditors was closed on the 9th of December, the proces verbal of their deliberations filed in court on the 10th, and on that'day the court appointed a syndic on the basis of no election stated by the notary. Within the ten days from the filing in court of this proees verbal, Pic ton opposed the appointment of syndic by the court and certain votes counted for Major, and insisted that these votes excluded, he, Picton, had been elected syndic. This opposition was dismissed, the appointment of the syndic by the court maintained, and from that judgment the appeal is by Picton and the creditors who voted for him.

The discussion in this court presents but two propositions for decision : Had the lower court the right to appoint the syndic before the expiration of the ten days allowed for opposition. 2. Should not the vote of the tutrix for herse'f have been excluded and Pieton decreed elected. The argument in* this court concedes that if the vote of the tutrix is excluded, that Pieton was elected. We take the ease on the basis of that concession.

Within the ten days allowed for oppositions to the proceedings before the notary, no appointment of syndic should be made by the court, for such appointment could not stand if the votes on-which it depended were subsequently set aside on the creditors’ opposition. Revised Statutes, Sec. 1802. If rightfully made — i. e., on votes entitled to be cast, it would not be set aside on appeal. This appeal, however, brings before the court the question of the legality of the vote cast by the tutrix. The decision of that question controls the case.

It is exacted by the law that the debt of the creditor on which he votes for syndic or matters and questions submitted to the creditors’ meeting, must be liquidated. The amount of the debt represented by the votes cast, is one of the elements that determines the election of the syndic. To the end of ascertaining that amount of debt each creditor is required to “ certify on oath.” The obligation that may become a debt — i. e., dependent on future conditions, is not a debt on which the creditor can vote. Consistently with the theory of the law requiring certainty as to the debt, it is settled that the wife in community shall not be allowed to vote unless her rights have been fixed by a partition or judgment for a separation of goods. So the vote based on notes of the insolvent given to his children to represent their interest in an unsettled community between their deceased mother and their father, the insolvent, were rejected because the supposed debts were not deemed liquidated. Revised Statutes, Secs. 1796, 1799; Terry & Sons vs. Creditors, 38 An. 17; Lesseps vs. Creditors, 7 An. 624. In view of our law and jurisprudence on this subject, it can not be maintained, in our opinion, that pending the tutorship, especially when there has been no liquidation of the accounts of the tutor, that there is any fixed debt by the tutor to the minors. The special mortgage in this case given in April, 1892, or, indeed, at any time, would not liquidate the debt of the tutrix. The mortgage is to secure the ultimate rights of the minor as they may exist at the end of the tutorship. How then can it be held to fix debt of the tutrix at the incipieney or any stage of the tutorship? Until the tutorship ends, no suit can be brought to enforce the minor’s right. The law considers that until that end of the tutorship, there is no debt due by the tutor. The only debt of the tutor incident to the relations he holds to his ward, is that which may exist when he ceases to be tutor. We, therefore, hold there was no debt in any legal acceptation on which the tutrix could predicate the vote cast by her for syndic. Gibbs vs. Lum & Co., 29 An. 531; Linn vs. Dee, 31 An. 217; Stewart vs. Bragg, 12 An. 361; Lesseps vs. Creditors, 7 An. 624; Succession Edwards & Wilson, 32 An. 459.

The view already expressed that the tutrix has no debt on which she can vote is enough to dispose of this case. There is, however, another aspect of the case. If the tutrix can appear in these insolvent proceedings it must be on the theory that she is to be deemed a creditor in her capacity of tutrix, of herself as the insolvent. She certainly is not competent to sue herself. If any proceeding in this matter could be deemed requisite to protect the interest of the minors, surely the tutrix could not act for them. Stewart vs. Bragg, 12 An. 361; Gibbs vs. Lum & Co., 29 An. 531. Again, creditors who appear in insolvent proceedings are subjected to'the control vested by the law in the syndic. He is to sell the property, raise mortgages and pay the debts of the creditors, with the proceeds realized. The tutrix has no power to enforce the debt supposed to be due by her as tutrix, nor can she by any act displace the minors’ mortgage, under our law to endure till the end of her tutorship. The nature of her relation to the minors precludes her, in our opinion, from appearing at the meeting of creditors. The minors are supposed to be fully protected by the special mortgage given by her. See Life Insurance Association vs. Hall, 33 An. 49. She can at the meeting of her creditors, convened under the insolvent laws, on her application perform no function or exercise no right with respect to the debt she may ultimately owe her wards, least of all, disturb the mortgage to secure their rights vesting in her property. In our view her vote as tutrix at that meeting was illegal.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be reversed; that the appointment of John Yoist as syndic of the creditors of Emma S. Major be avoided and annulled, and that John R. Picton be and he is hereby decreed to be duly elected syndic of said creditors, with the right of exercising the duties of said office on giving bond as required by law, and that appellees pay costs.


text:
    No. 11,465.
    Nelson Taylor vs. John J. Ellington. John J. Ellington vs. Nelson Taylor.
    (Consolidated .)
    With all due allowance for mitigating circumstances, damages will be awarded for injury to character by slander, aggravated by repetition. Civil Code, Arts. 1928 (Par. 8), 2315; Miller vs. Holstein, 16 La. 389; Savoie vs. Scanlan, 43 An. 967; Feray vs. Foote, 12 An. 894.
    To charge an innocent man with burning another’s property is actionable The law implies malice, and without proof of special injury damages will be given the injured party. Miller vs. Holstein, 16 La. 889; Feray vs. Foote, 12 An. 894; Savoie vs. Scanlan, 48 An. 967.
    APPEAL from the Tenth District Court, Parish of Rapides.. Coco, J.

      Hunter & Hunter and R, J. Bowman Attorneys for Taylor, Plaintiff and Appellee:
    Ho principle is better established than that he who is to blame and has caused the slanderous words is not entitled to the favorable consideration of the court.

      Ariail <& White Attorneys for Ellington, Defendant and Appellant:
    1. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. Revised Civil Code, Art. 2315.
    2. There is no such thing in law as a half-ivay justification. Williams vs. McManus, 38 An. 161.
    3. The charge that plaintiff, “the damn son of a bitch set fire to my stable, or burned my stable, to heep from paying rent,” being an imputation of the commission of a crime, is, even under the common law, actionable per se. Cooley on Torts, pp. 195, 196.'
    4. Bub if the charge is not actionable per se, but is false, injurious, and made maliciously or malo animo, it combines all the elements necessary to support the action for slander. Spotorno vs. Fourichon, 40 An.; Miller vs. Holstein, 16 La. 389; Feray vs. Foote, 12 An. 894; Williams vs. McManus, 38 An. 161.
    5. In actions of this character it is not necessary to prove malice; it may be implied. Canchoix vs. Dupuy, 8 La. 133; Tresca vs. Maddox, 11 An. 206.
    6. Malice does not mean a spite against the individual, but malus animus; a wanton disposition, grossly negligent of the rights of others. Idem.

      7. Every person has a right to enjoy that degree o£ respect, good' will and social or business distinction to which his own acts and his social and business habits entitle him, and any one who unlawfully interferes with this right by circulating slanderous reports renders himself liable for consequent damages Williams vs. McManus, 38 An. 163, 164.
    8. Injuries done to one’s feelings by slanderous words used toward him by another in public, such as “ thief and rascal,” furnish legitimate ground for an action in damages, and the amount of damages will be measured by the aggravated character of the language used. Dufort vs. Abadie, 23 An. 2^0; 17 An. 64; 19 An. 322.
    9. Injuries to the feelings, and to one’s social standing, are not susceptible of a precise admeasurement. Still, in cases of this kind or class, such injuries are recognized as legitimate ground of action. Dufort vs. Abadie, 23 An. 280; 19 An. 322; 17 An. 64; 38 An. 164.
    10. Where a person publishes a slander or rumor, he can not escape liability by proving that a report was in circulation, or that a third person told him such report, before the time of speaking the words charged. American and English Encyclopedia of Law, Vol. 13, pp. 402, 403; Cade vs. Reddit, 15 An. 492; State vs. Benjamin, 15 An. 166.
    11. When one, in an ebullition of passion, makes slanderous charges, and again repeats them when calm and cool, his being in a violent passion at the particular time alleged is no reason for abating the damages. Sedgwick on Damages, Vol. 2, pp. 507, 508.
    12. If a plea in mitigation is advanced without foundation, and not interposed in good faith, it is a high aggravation of the slander, an evidence of actual malice, and should materially enhance the damages. Sedgwick on Damages, Vol. 2, p. 508, n.
    13. In an action for slander, evidence of the repetition of the slanderous words after the commencement of the suit is admissible to show malice. American and English Encyclopedia of Law, Vol. 13, p. 428.
    14. In an action of slander, it is sufficient to prove the substance of the words charged. Ereeland vs. Lanfear, 2 N. S. 257.
   The opinion of the court was delivered by

Miller, J.

The plaintiff, Nelson Taylor, sues defendant, John J. Ellington, for damages for the loss of the stable and dwelling of Taylor, alleged to have been burned by the gross carelessness or imprudence of Ellington. The plaintiff in the second entitled suit, John J. Ellington, sues Taylor for damages alleged to have been caused by his slander, imputing to Ellington the burning of the property. The cases were consolidated, tried together, and the verdict was against each plaintiff, with divided costs. Ellington appeals and Taylor answers, claiming an amendment of the judgment, so as to give him the damages he claimed.

The briefs place the cases before this court on their merits, without reference to some questions that arose during the trial.

The suit of Taylor will be first considered. Does the record show his property was burned by the imprudence of Ellington? The dwelling and stable occupied a square of ground; the dwelling being separated from the stable. The wing of the stable fronted the •street, and from the end of the wing the stable extended back to Fourth street. Toward the rear was the mule pen, and over this pen, more than ten feet from the ground, was the hay loft. In this loft the fire originated on the morning of che 8th September, 1892, and was discovered soon after Ellington came to the stable. The basis mainly, on which he is charged with responsibility for the fire seems to be his statement that in the early morning of the fire, while it was yet dark, he went to the rear of the stable to look for a horse, taking a lamp in his hand. This purpose, it is manifest, would not have carried him into the hay loft, or brought the lamp in proximity to the hay. The incident is discarded as affording any basis to hold Ellington.

It is claimed that other statements by him on the occasion of the fire place the responsibility for it upon him. The witnesses do not profess to give his words, but their impressions of his statements. One witness testifies: “Ellington said he lit the torch, went back, stayed a little while, and on returning to the front of the stable noticed the hay on fire.” This would be a frail basis to conclude that the lamp in his hand, on the ground floor, ignited the hay in the loft ten feet above him. Another witness gives his recollection of the “idea” conveyed by Ellington: that he carried the lamp back to where the horse was; after walking in the barn with the open lamp or torch, looked back and saw the hay on fire, and that Ellington said he was not certain that the fire caught from the lamp, but did not see any other chance for it. The witness gives his idea of the significance of Ellington’s language, and is quite positive of the accuracy of his impression. Still, it must be accepted, the deductions of a witness drawn from statements of another made months previous may be erroneous. When these deductions are in conflict with other testimony, their force is further diminished. Another witness puts it thus: Ellington, referring to a torch used in the stable described as a lamp on a pole, stated he reckoned the fire caught from the torch. ■This witness, alluding at the beginning to the lapse of time since the fire, stated his memory was very indistinct. On cross-examination he testified: Did not remember that Ellington used the word “pole,” but the witness “pictured” the lamp on a pole, such as used by brass bands. He further testified: Ellington said he did not know how the fire happened unless from the torch; but did not say the fire happened from the lamp “going into it.” The comment suggested by all This testimony is, that Ellington himself had no convictions of the cause of the fire. To accept the statement attributed to him, as admitting he fired the stable would be to invest what he said with a meaning never intended and not warranted by the fair significance of language. The fire attracted a crowd naturally interested and curious as to the cause. The fire was in progress. In the excitement and confusion incident to the occasion, questions were put to Ellington and answered by him as to the origin of the fire. He himself was agitated. Under such circumstances his answers may have been misconceived. His answers indicate an inability to account for the fire, and aside from the lamp incident, avowed by him, he had no more knowledge on the subject than those whose questions he endeavored to answer. His answers practically, added nothing to the fact that he had gone to the rear of the stable with the lamp. If that fact connected him with the fire overhead in the loft, his answers neither detracted from or diminished the force of the circumstance. Another feature in the testimony as to his statement is impressive, and must be deemed to impair the effect of the testimony. The witnesses speaks of a “torch.” The word conveys the significance of a flaming light elevated on a pole. It is this flaming light “pictured” by one of the witnesses that doubtless, colored his impressions of Ellington’s statements. It was the idea of a man walking about a barn with a “ torch” that impressed another witness. The supposed torch, it seems, was an open tin lamp carried in the hand, and in use in the stable by Taylor, and continued to be used by Ellington when he became the lessee. It is urged, too, that there is a discrepancy in Ellington’s testimony and in his statements. The supposed variance is this: That one statement is, when he first saw the fire it was on top of the hay and spreading; another is, that going to the rear and returning he looked back and saw the fire; and another statement is, that going back to the mule pen he discovered the reflection of the fire on the back of the stable. If there is a discrepancy, in our opinion it is of no weight. There is before us also the testimony of Ellington. He is accorded the highest character by the testimony. He testifies distinctly, that when he discovered the fire he was forty feet away with the lamp, and the lamp had no connection whatever with the fire.

The origin of the fire is not solved by the testimony. Whether caused by tramps entering through the openings claimed to exist in the stable, or by the heating of the hay, suggested by the testimony, is pure speculation. It would be hard to make a man responsible for a fire because he can not account for it, and harsher we think, to place the responsibility for the fire on Ellington in view of the testimony in the record.

On the issue of damages claimed by Ellington of Taylor the proof is, that the slanderous words charged in the petition, that Ellington had burned the property, accompanied with opprobrious epithets, were uttered publicly by Taylor and repeated. There was thus imputed to Ellington not only the burning, but the intentional burning of the property. Eor slander of reputation the law gives damages on the theory of injury sustained, as well as from public policy. The enforcement of the law in this respect is salutary. It substitutes the judicial vindication of character for the redress apt to be sought by violence, and affords some pecuniary compensation for the humiliation and injury wrought by slander. The case presents some features of mitigation for which we are disposed to make allowance. With all due consideration for the impression or belief of Taylor of wrong at the hands of Ellington, the law exacts that damages should be imposed for slander grave in character and aggravated by repetition. Civil Code, Arts. 2315, 1934, Par. .3; Miller vs. Holstein, 16th La., 389; Savoie vs. Scanlan, 43 An. 967.

It is therefore ordered, adjudged and decreed that the judgment of' the lower court dismissing the suit of Nelson Taylor vs. John J. Ellington be affirmed with costs; that the judgment of the lower court dismissing the suit of John J. Ellington vs. Nelson Taylor be avoided and reversed, and it is now ordered, adjudged and decreed that John J. Ellington do have and recover from Nelson Taylor three hundred dollars damages with costs in both courts.