author: Hovraam, J.

text:
    Succession of Constance Perret.
    When tlio creditors of a succession, or an insolvent estate, who have an important interest in maintaining a judgment, have not beeu cited, nor their citation asked tor by appellant, the appeal will be dismissed.
    APPEAL from the Fourth District Court of the Parish of St. Charles, Beauvais, J.

      A. VoorMes <& A. Derbes for appellant. A. Lavison <& B. K. Gutter for opponents.
   Hovraam, J.

A motion is made to dismiss this appeal on the grounds, first, that all the parties interested are not cited on appeal; and, secondly, that the petition of appeal is vague and indefinite.

The appellant contends that it is sufficient to cite- the administrator, who represents all the creditors on the tableau, the judgment amending and homologating, which is appealed from; and that, if such is not the case, the defect, omission or irregularity, can be now remedied, and the requisite citations issued and served before the cause will come up on its merits.

If the irregularity is not imputable to the appellant, it can be remedied under the provisions of the act of 1839, p. 170, g 19, re-enacted in 1864. See Session Acts p. 22, $ 12. But we find that the a2Dpellant prayed only that the administrator be cited ; and it is not required of the clerk, in such contingency, to issue citations to others. He has done all that the appellant has demanded; and it is not a case in which to apply the equitable provisions of the foregoing law and the authorities cited.

When the creditors of a succession, or an insolvent estate, who have an important interest in maintaining a judgment, have not been cited, nor their citation asked for by appellant, the appeal will be dismissed. 8 An. 57, 367; 12 An. 765; 13 An. 231. The creditors, whose claims were opposed by the appellant, have not been cited, nor has their citation been asked for. They clearly have an interest in the judgment appealed from.

It is therefore ordered that the rule be made absolute, and that the appeal be dismissed at the costs of appellant.


source: Caselaw Access Project

author: Labauve, J.

license: Public Domain

text:
    Jules Levois v. James Gale, Captain, and owners of Ship R. D. Shepherd.
    The shipper is not bound to discloso the valuó of tho goods, unless asked; but the carrier has tho right to inquire, and to have a truo answer; and, if deceived, he will not be responsible. If he make no inquiry and no artifice mislead him, he will bo responsible for any loss, however great the value of tho articlos.
    from the Sixth District Court of New Orleans, Beaumont, J.

      George L. Bright and J. TV. Gurley for defendants and appellants.

      J. L. Tissoifor plaintiff.

    The laws of tho port of shipment, not of destination, govern a contact of affreightment, Hampton v, Thaddeus¡ é M. 584; Hennen’s Digest, 1423, No. 1; Felix, Droit International, privé, vol. 1, Nos. 96 et 210.
    Connaissement, C. Com. Art. 222. Le capitaine est responsable des marehandises dont il se charge.
    H en fournit nne reconnaissance. Cette reconnaissance se nomme con-naissement. Ord. 1681, liv. 2, tit. 1, art. 9; C. N. 1782, 1783; C. Com. 281, 293, 420.
    Responsabilité, Pardessus, droit commercial, Com. 2, p. 364, No. 541.
    Le voiturier doit remettre les objets qu’on lui a confies á celui de qui il les a re§us, ou a celui qui lui a été indiqué par l’expéditeur, etc.
    Lorsqu’il ne remet pas les choses qui lui ont été eonfiées, il doit les payer, au prix qu’elles valaient au moment oil la remise a du s’exécuter, etc. No. 542.
    Le voiturier doit veiller a la conservation des marehandises pendant le voyage, et les rendre dans le mime état qu’il les a regues. O. N. 1782, 1915.
    Sa responsabilité commence á l’instant mime ou elles ont été remises it lui ou á l’un de ses préposés, soit sur le port, soit dans quelque local public dont la surveillance n’appartient ni á l’expéditeur, ni á des personnes dont il répondent. C. N. 1783. Cassation, 19 mars, 1814. C, voyez aussi No. 495; C. N. 1782.
    Les voituriers par terre et par eau sont assujettis pour la garde et la conservation des choses qui leur sont eonfiées, aux mémes obligations que les aubergistes, dont il est parlé au titre du dépót et sequestre. L. 1, in pr., 1, 2, 3, 4; C. 1952, 2102, 6, Com. 101,103, 222; O. pén. 386 — 4,475— 3,476.
    O. N. 1983. Hs répondent non seulement de ce qu’ils ont déjá re<;u dans leur batiment ou voiture, mais encore de ce qui leur a éte remis sur le port ou dans P entrepot pour étre placé dans leur batiment ou voiture. C. 1382; C. com. 97, 103.
    Boulay Paty, Com. 1, p. 406.
    Si le capitaine ne représente pas toutes les marehandises portées au connaissement, il est tenu de payer la valeur de celles non représentées, auprix du lieu de décharge, (market value). Argument tiré de Particle 134 du code de commerce.
    Le capitaine est responsable des marehandises et effets des voyageurs qu’il prend a son bord, moyennant un salaire convenu. 7 fév. 1829 Bied-filles; Journal du Palais, 22, 661.
    Code de commerce “ Du capitaine.”
    Le capitaine est garant de ses fautes mime légeres. C. Com. Art. 216, 293, 405, 407, 435, 438.
    H est responsable des marehandises dont il est chargé, Art. 222.
    11 en fournit une reconnaissance qui en est la preuve. Art. 281, 293y 420.
    Gouget et Mergé, droit commercial, Tom. 2, No. 97.
    Le capitaine est tenu d’opérer ou de surveiller le ehargement, etc. LeS affréteurs ou chargeurs mettent seulement les marehandises sur le quai a la disposition du capitaine.
    No. 112. 31 opere les acquits de paiement ou a caution des douanes, c’est-a-difé les expéditions constatan! soit l’aequittement préalable des1 droits de sortie, soit les garantios moyennant lesquelles la sortie est aeeor-dée sans paiement des droits. Y. acquit k caution, douanes.
    Encyclopedic clu droit obligations da eajutame. 'Tom. 3, p. 383, N. 148, 149, No. 151.
    II est mandataire responsable.
    No. 152; déchargement; 150, 157, 158, 164, doit rendre les marchan-dises telles qu’il les a revues.
    Repertoire du Journal du Palais, vol. 1, p. 819, No. 425, 449, 459, 484, 512, tenu de payer les marchandises perdues.
    Granveaux, transports, responsabilité du transport des marchandises, p. 597, No. 12, 13, 14, 15, 18, 23, 24.
    Dépot et séquestre, mernes obligations.
    Troplong, No. 2, commentaire sur O. N. Art. 192, p. 49, No. 64, 65.
    C. C. Art. 2722. Carriers and watermen are subject, with respect to the safe keeping and preservation of the things intrusted to them, to the same obligations and duties, which are imposed on tavern-keepers in the title of deposit and sequestration.
    Hennen’s Digest, p. 1475. Ship owners and masters are liable for the whole loss suffered in consequence of non-delivery of the cargo at the place of destination. 1 Mar. p. 39.
    They are accountable for the value which will bo fairly estimated at the invoice price. 2 N. S. 236.
    C. C. 2723. They are answerable, not only for what they have actually received in their vessel or vehicle, but also for what has been delivered to them at the port or place of deposit, to be placed in the vessel or carriage. <
    C. C. Art. 2725. Carriers and watermen may be liable for the loss or damage of the things intrusted to their care, unless they can prove that such loss or damage has been occasioned by accidental and uncontrollable events.
    Hennen’s Digest, p. 1425, No. 11. Though a bill of lading acknowledging the goods to be in good order, be open to examination, still its recital cannot be overthrown nor qualified, except by very clear evidence; it cannot be weakened bjr a conjectured showing. The policy of the law holds the carrier to a very strict accountability. 6 An. 801; 8 An. 292, p. 1426.
    No. 2. The master is liable for levissema culpa. 11 Martin, 598; 6 An. ■410.
    No. 6. Where notice that a ship would not be responsible for jewelry, unless the value were disclosed, is broxight home to plaintiff, who, without disclosing the nature or value of articles, intentionally ships them so as to conceal their real character, the owners are not liable. 9 B. 468.
    No. 7. Publication of a notice in one or more newspapers, no matter for how long a time, open intention to be responsible for particular articles, unless their contents and value be disclosed, will not release the carrier. The notice must be brought home to the shipper. 9 B. 468.
    Hennen’s Digest, p. 1426. Where there is no notice or rule, the better opinion seems to be that one sending goods is not bound to disclose their value, unless asked; but the carrier has the right to inquire and to have a true answer; and, if deceived, will not be responsible. If he make no inquiry, and no artifice mislead Mm, he will be responsible lor any loss, however great the value of the articles. 9 B. 468.
    In cases of common carriers, where there is no notice, the better opinion seems to be, that the party who sends the goods is not bound to disclose their value, unless he is asked. But the carrier has the right to make the inquiry and to have a true answer, and if he is deceived, and a false answer given, he will not be responsible for any loss. If he makes no inquiry, and no artifice is made use of to mislead him, then he 'is responsible for any loss, however great the value may be. Story’s Commentaries on the law of Bailments, 567; 2 Kent, p. 597, \ 40, and the authorities cited by these two eminent authors.
   Labauve, J.

The plaintiff alleges that, on the 19th August, 1859, in Havre, he skipped, and the captain received, on board of said ship, a package, marked T. L. No. 18, containing “watches, music boxes, and articles of jewelry,” of the value of $2,415 17; that the ship failed to deliver said package to the consignee, in New Orleans, according to the bill of lading. He prays that the defendants be decreed to pay, in solido, for the non-delivery of said box, the sum of $2,415 17.

Defendants answered by a general denial; they further answered, that the box was described in the bill of lading as a package of merchandize, to induce defendants to believe that the box contained merchandize of but little value, and to avoid the payment of freight according to its value, etc.

The District court rendered a judgment for $2,415 17 in favor of plaintiff and against defendants, in solido.

The defendants took this appeal.

The following words close the bill of lading: “Dated in Havre, the 19th August, 1859. Contents unknown to. Signed, James Gale. ”

The defendants contend, in argument, that, as the box contained watches, music boxes, and articles of jewelry, the plaintiff was bound to disclose that fact; and, having failed to do, so, the defendants are not responsible.

The rule seems to be settled that the shipper is not bound to disclose the value of the goods, unless asked; but the carrier has the right to inquire and to have a true answer; and, if deceived, he will not bo responsible. If he make no inquiry, and no artifice mislead him, he will be responsible for any loss, whowever great the value of the article. Baldwin v. Collins, 9 Rob. 468.

Nothing shows that the captain made any inquiry ; he took, then, upon himself the •whole responsibility of delivering the articles so shipped, according to liis contract, opto show that he was prevented from doing so by accidental and uncontrollable events. C. C. Art. 2725. The bill of lading and the admissions show clearly that the captain received the box and its contents; and the testimony, which is very long, and which we have carefully examined, has failed to prove, even by presumptions, that he had delivered said box; it was incumbent on defendants to make out a clear case in their defence. They have failed to do so.

Judgment affirmed, with costs.


author: Labattve, J.

text:
    J. R. Terry v. C. W. Stauffer.
    The writ of quo warranto is an order rendered in tlie name of the State, by a competent court, and directed to a person who claims or usurps an office in a coipor lion, inquiring by what authority he claims or holds such office. Art. £68, O P. This mandate is only issued for the decision of disputes between parties, in relation to the offices in coiporutions, as when a person usurps the character of mayor of a city, and such like.
    "With regard to offices of a public nature, that is, which are conferred in the name of the State, by the Governor, with or without the consent of the Senate, the usurpations of them are prevented and punished in the manner directed by the penal code. *
    A ?nmulajnu$ is an order issued in the name of the State, by a tribunal of competent jurisdiction, and addressed to an individual, or corporation, or court of inferior jurisdiction, directing it to perform some certain act, belonging to the place, duty, or quality with which it is clothed.
    An injunction is said to be a mandate obtained by plaintiff, prohibiting one from doing an act which, he contends, may be injurious to bim, or impaii a right which ho claims. O. P. Art, 296. It is a con* servatory act, an equitable remedy, which a party may obtain provisionally, on bringing his action. O. P. Art 208. And, in order to obtain it, the party applying for the same, must state, under oath, the facts which, according to his belief, render an injunction necessary.
    _TjL PPEAL from the Third District Court of New Orleans, Felbwes, J.

      John Hendersonfor plaintiff and appellant.

    J. R. Terry, as plaintiff, presented his petition to the Third District Court of New Orleans, setting forth the following facts :
    That, whilst in the lawful possession and enjoyment of the office of register of voters, in and for the parish of Orleans, he was forcibly dis-loossessed of said office by O. W. Stauffer, defendant herein, under the pretext that he was lawfully removed therefrom, and the said Stauffer duly commissioned therefor by tlie governor of the State of Louisiana; that he was rightfully in possession and Lad a right to continue therein until the expiration of his term of office, to wit: 4th Monday in January, 1868, and to the enjoyment of the salary thereof, to wit: the sum of five thousand dollars per annum, according to law, unless sooner removed or suspended in the mode and manner prescribed by law; that he never has been legally suspended for any act of commission or omission in violation of his duties in the said office, nor has he ever been prosecuted by the attorney-general of the State for any malfeasance or misfeasance in office, as prescribed by law; that said Stauffer is a usurper of said office to the manifest prejudice and injury of him (Terry); that the commission issued to said Stauffer by the governor of the State, was without authority of law, therefore, null and void ; that he (Terry) being the rightful person to enjoy said office, its privileges and emoluments, during the term of office as aforesaid, should be retained in the possession thereof; and, if illegally dispossessed (as in truth he has been), he should be instantly restored to the full enjoyment thereof, without hindrance or delay arising from the trespass and usurpation of the said O. W. Stauffer; that the ordinary remedy prescribed by law is too tartly to secure justicé to him, and would work an irreparable injury to him ; that said Stauffef show cause why the remedial and conservative writs bf (julo warranto> 'mandamus and injunction should not issue; the latter, upon Terry’s execution of a bond, with good and sufficient security, conditioned as prescribed by law, in favor of said Stauffer; and a special prayer that said Terry be decreed to the rightful and full possession of the office of register of voters for the parish of Orleans; that he be restored to the possession thereof by said Stauffer, as well as to all the papers thereto appertaining ; that said Stauffer be ordered to pay said Terry so much of the salary of said office as he may deprive him of during the pendency of this action; that said Stauffer be enjoined from acting as register of voters aforesaid, and that Terry be decreed to resume the duties of said office without further delay; and, finally a general prayer for relief in the premises.
    To this petition is annexed the affidavit of Terry, that all the statements and -allegations therein contained are true. On this sworn petition, Terry took a rule on Stauffer to show cause why the writs therein prayed for should not issue upon the usual conditions.
    To this rule the said Stauffer filed the following exeeptions:
    1. That .the above petition discloses no cause of action, defendant not being a municipal officer, but an officer created by the State, and duly commissioned by the governor thereof, cannot be reached by a quo warranto.

    2. That, being an office* of State, a writ of mandamus can only issue to compel the defendant to perform some duty devolving on him from the very nature of his office. The plaintiff’s proceedings disclose no such state of facts.
    3. That the writ of injunction is a specific writ for certain eases designated by law, and that the case át bar is not within those so designated.
    4. That said writs applied for can only issue in the name of the State, while the present suit is simply J. B. Terry v. G. W Stauffer, and not in the name of the State. ,
    After the trial and argument of- this rule and exceptions, the court refused all of these writs, from which interlocutory judgment of the court, a suspensive appeal was taken. In support of this ruling of the court, the following written reasons were assigned:
    “A ruléis taken by plaintiff on defendant to show cause why writs of quo warranto, mandamus and injunction should not issue for the restitution of the plaintiff to the office of register of voters, and the return of the records thereof. Defendant pleads by exception that plaintiff’s petition discloses no cause of action to warrant the issuance of the writs prayed for. The writ of quo warranto is defined by Art. 867, C. P., to be an order rendered in the name of the State by a competent court, and directed to a person who claims or usurps an office in a corporation, inquiring by what authority he claims or holds such office. This mandate is only issued for the decision of disputes between parties in relation to the offices in corporations, as when a person usurps the character of a mayor of a city, and such like. With regard to offices of a public nature, that is, which are conferred in the name of the State by the governor, with or without the consent of the senate, the usurpations of them are prevented, etc.” Art. 868.
    “The office of register of voters is created by act of 1856, section 1, which gives to the governor the appointing power by and with the advicé-of the senate. It is not, therefore, an office in any corporation; hence, the relief sought by the plaintiff cannot be obtained by the writ of quo warranto. The writ of mandamus is directed to an individual to perform some certain act belonging to the place, duty and quality with which it is clothed. Art. 829 O. P.
    “The plaintiff does not ask that defendant be compelled to fulfill any of the duties appertaining to the office of register of voters, but, on the contrary, that he be prevented from performing them any longer.”
    “With regard to the injunction, I am of the opinion that the case is not one of those in which this writ is authorized by law. Plaintiff’s rights are fully protected on the merits. For the reasons assigned, the writs applied for by plaintiff must be refused. Lot the rule be discharged.”
    From this interlocutory order a suspensive appeal was taken.
    Wo contend in this court that appellant was rightfully entitled to either of said writs, if not to all at the samo time.
    Suppose the appellant had, in tins usual form, filed his petition for an injunction with the usual affidavit and bond, and had obtained an order from the court ex parte for a writ of injunction, and after due notice of such injunction the defendant, Stauffer, had on rule applied for its dissolution upon the face of the papers, can there be a reasonable doubt in the legal mind of this court, that the original court should have overruled the motion to dissolve?
    The reverse of this proposition is equally true, that is, it would have been manifest error in the lower court to have denied either or all of said writs, upon the sworn case made by appellant.
    That a writ of injunction was a proper writ upon the case exhibited by plaintiff, we cite the following law, C. P. Art. 308:
    “Besides the cases above mentioned, courts of justice may grant injunctions in all other cases when it is necessary to prevent one of the parties during the continuance of a suit from doing some act injurious to the other party.”
    Injunction, or prohibition, is a mandate obtained from a court by a plaintiff, prohibiting one from doing an act which he contends may be injurious to him, or 'impair a right which he claims. C. P. Art. 296; 7 Bob. 445. In 14 An. 8, the court say: “The occupation of pilot for the port of New Orleans is lucrative, and is restricted by law to the persons specially designated by the governor of the State. It is therefore evident, that the exercise of this business by a person not legally appointed, may be prejudicial to each and every one so appointed. The petition, therefore, discloses a sufficient cause for action. 12 An. 480, 5 Rob. 367, 378.
    The writ of mandamus should have issued. O. P. 829-832; 1 Rob. 474, 492-496, 506; 6 An. 68; 11 An. 141, 672, 693; 13 An. 289, 401-459; 12 An. 719; 4 N. S. 525; 13 L. B. 562.
    The writ of quo warranto should have issued. 5 M. B. 271; 1 An. 162; 10 An. 420; 14 An. 505.
    The general rule prescribed by law is, that the old incumbent shall continue to discharge the duties of his office until his successor is elected, commissioned and qualified, and no longer. 11 An. 293; Constant Art, 125, Act.1825 ss. 2, p. 350; 10 An, 293; 5 An. 282-536,

      The govern or cannot create a vacancy. 9 An, 238; 5 Rob. 367; 8 An. 295; 11 An. 486.
    The commission of the executive without the authority of law is void. 14 An. 8; 5 Rob.. 367.,
    Offices in this State are derived either from the people at the ballot box, or from the executive, under the appointing power. When derived from the ballot box, the commission of the executive is only nominal and mere evidence of title; but when originating with the governor, by virtue of the law, then the commission furnishes the right as well as-the proof of title to an office. An office, by the vote of the people, can only be contested in the mode and manner prescribed by law. 5 An. 291; 12 An. 129, 366; -12 An. 719; 13 An. 89, 175, 301; 14 An. 605.
    In a controversy between an incumbent and his successor, where both claim exclusively under the executive commission, the incumbent may show that the commission to his successor is void, as the governor issued it without the authority of law. 14 An. 8.
    The appellee relied on act 1856, ss. 12, 13, p. 134, as authorizing the executive to remove the incumbent of the registry of voters, and appoint another at the pleasure of his excellency. True it is, the law, under certain circumstances, authorizes the governor to remove, but what circumstances, and how made known to the governor?
    Articles 12 and 13 have to be construed together.
    Section 12 authorizes the attorney general to sue the defaulting register of voters, setting forth the nature of the change, etc. Convicted, the officer shall forfeit liis salary or fees of office, or so much thereof, according to the gravity of his act of commission or omission, as shall be decided in the suit *-*•**• but said register shall have the right of appeal to the Supreme Court, and, in the meantime, the governor may suspend him from his functions, and appoint a substitute, who shall thereby assume all the powers and incur all the responsibilities of the suspended register.
    Then follows section 13, which declares, “ That should the gravity of the violation of the spirit and intention of the provisions of this act, in the opinion of the executive of the State, warrant the removal of such a register, ho shall appoint a successor to serve out the unexpired term of four years, and such a successor, or any subsequent successors shall be liable to the samo suspension or removal, at the pleasure of the executive; and the said executive shall, however, assign his reasons therefor to the senate, at the first meeting of the legislature thereafter.”
    Appellant contends that the meaning of these two sections taken together is simply this:
    That after trial and conviction, and pending the appeal, the executive may suspend or remove. The executive is the judge as to the gravity of the charge upon which the register has been convicted.
    The appellee contended, in the original court, and as he will in this, that the gravity of the violation of the spirit and intention of the provisions of the law regulating the duties of register, is a matter of inquiry to bo made by the executive, dehors judicial proceedings, based on a Charge, trial and conviction.
    If this-view of the law be correct, then appellant confesses he has no farther claims to said office. But, strange to say, no such defence was plead in the defence of this action. Defendants simply plead that he was lawfully in office as register of voters, under a legal commission from the governor of the State.

      Miles Taylor and J. H. Van Batson for defendant.

    The plaintiff aheges that he was illegally removed from the office of register of voters for the parish of Orleans, and that the defendant and appellee was illegally appointed by the governor in his place ; and he asked, in his petition, that the defendant show cause why the remedial and conservative remedies of mandamus, quo warranto and injunction should not issue against said Stauffer, the incumbent; and that, after duo proceedings, why the defendant should not be removed and himself reinstated in said office.
    A rule issued to defendant to show cause, as first stated, and to that rule the defendant excepted, as follows :
    1. That the plaintiff’s proceeding discloses no cause for action or complaint, the defendant being not a municipal officer, but an officer created by the State and duly commissioned by the governor, cannot be reached by a writ of quo warranto.

    2. That, being an officer of the State, a writ of mandamus can only issue against the defendant to compel him to perform some duty devolving on him from the very nature of his office; and the plaintiff’s proceeding discloses no such state of facts.
    3. That the writ of injunction is a specific writ, for certain cases designated by law, and that the case at bar is not within the cases so designated.
    4. That the writs applied for can only issue in the name of the State, while the present suit is simply by J. B. Terry v. G. W. Stauffer, and not in the name of the State.
    The court a quo sustained the defendant’s exceptions, and refused the writs prayed for, and the plaintiff appealed.
   Labattve, J.

J. R. Terry, the relator, states that, on or about the 10th June, 1865, he was in the lawful possession and enjoyment of the office of register of voters for the parish of Orleans, and that he was forcibly dispossessed by O. W. Stauffer, under the pretext that he, said Terry, was legally removed therefrom, and the said Stauffer duly commissioned therefor, by the Governor. The relator states that he is entitled to the said office, claims to be put in possession, and the said Stauffer ordered to deliver said office. He prays that said O. W. Stauffer do show cause why the remedial and conservative writs of mandamus, quo warranto and injunction should not issue.

The defendant answered as.follows, by way of exceptions :

1. That the plaintiff’s proceeding discloses no cause of action or complaint, the defendant not being a municipal officer, but an officer created by the State, and duly commissioned by the Governor, cannot be reached by a qua warranto,

% That, being an officer of the State, a writ of mandamus can only issue hgainst the defendant to compel him to perform some duty devolving off him, from the very nature of Ms office; the plaintiff’s proceedings disclose no such state of facts.

3. That the writ of injunction is a specific writ, for certain cases designated by law, and that the case at bar is not within those designated.

4. That the writs applied for can only issue in the name of the State, while the present suit is simply by J. R. Terry v. C. W Stauffer, and not in the name of the State.

And should these exceptions be overruled, then the defendant pleads a general denial, and avers that he is legally appointed register of voters for the city of New Orleans, etc.

He concludes by praying that the rule maybe set aside, and that plaintiff pay costs.

The court sustained the exceptions, and the relator took this appeal.

1. This is not a case for the writ of quo warranto, upon the face of the petition. According to Art. 867 O. P., the writ of quo warranto is an order rendered in the name of the State, by a competent court, and directed to a person who claims or usurps an office in a corporaiion, inquiring by what authority he claims or holds such office. Art. 868, 0. P. This mandate is only issued for the decision of disputes between parties, in relation to the offices in corporations, as when a person usurps the character of mayor of a city, and such like.

With regard to offices of a public nature, that is, which are conferred in the name of the State, by the Governor, with or without the consent of the Senate, the usurpations of them are prevented and punished in the manner directed by the penal code.

Article 869 C. P. A mandate to prevent the usurpation of an office in a city or other corporaiion, may be obtained by any person applying for it.

The Article 870 C. P. provides that the court, after having declared the party not qualified, shall direct the corporation to proceed to a new appointment.

The office of register of voters is created by the act of 1856, section 1, which gives the Governor the appointing power, by and with the advice of the senate; therefore, it is clear that the register of voters is a State officer, and not such an officer as contemplated by the provisions of the articles above quoted.

2. The petition does not show that the relator is entitled to the writ of 'mandamus, wMeh, according to Art. 829 O. P. is an order issued in the name of the State, by a tribunal of competent jurisdiction, and addressed to an individual or corporation, or court of inferior jurisdiction, directing it to perform some certain act, belonging to the place, duty, or quality With which it is clothed.

The relator does not ask that the defendant be directed to do some certain act; but he demands, on the contrary, that he be forbidden to perform the functions of his office as Register of voters.

3. The injunction prayed for presents some more serious difficulties.

An injunction is said to be a mandate obtained by plaintiff, prohibiting one from doing an act which, he contends, may be injuriotis to him, or impair a right which he claims. O. P. Art. 296. It is a conservatory act — an equitable remedy — which a party may obtain provisionally, on bringing his action (O. P. Art. 208); and, in order to obtain it, the party applying- for the same must state under oath the facts which, according- to his belief, render an injunction necessary. O. P. Art. 804. The judge must look to the facts alleged and sworn to, and, in the exercise of his judgment, see if the facts are sufficient to require Ms interference to prevent an injury to the applicant, or an act that might impair his right. The judge below said : “With regard to'the injunction, I am of opinion that this case is not one of those in which the writ is authorized by law. ” We are not prepared to say that our learned brother erred. The defendant is exercising the functions of register of voters in and for the parish of Orleans ; he is, under the law, a State officer. The relator claims the office, and, at the same time, prays that, during the pendency of this suit, the said O. W. Stauffer be enjoined from acting as register of voters, as aforesaid; but we see in his petition no facts sworn to, going to show that he would suffer an injury, or that his right would be impaired, by said Stauffer continuing to exercise his official functions pending the writ. It should require the strongest showing, on the part of a private individual, to induce a judge to enjoin a State officer from performing his functions; and we are not prepared to say that it can be done in any circumstance.

The effects of such injunction would reflect upon and affect materially the government, and might stop, in certain cases, the governmental machinery.

We are of opinion that the District judge did not err.

The judgment appealed from is affirmed, with costs.


author: HvmaN, O. J.

text:
    Robert Moore v. City of New Orleans.
    •All agreements relative to personal property, and all contracts for the payment of money, where thé value does not exceed five hundred dollars, which aro not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved by at least one credible witness, and other corroborating circumstances.
    PPEAL from the Sixth District Court of New Orleans, Duplantier, J.

      Durant Hornor for plaintiff.

    So far as plaintiff is concerned, Cook & Brother were in possession, as owners, of the coal at the date of •our purchase. We bought and paid, and received possession of the coal, 'without any knowledge of any hidden equities between the city and Cook & Brother. Indeed, these equities are not shown by the record, directly or indirectly; whether Cook & Brother owes the city, or the city owes them, is equally in doubt. For these secret equities, the plaintiff, whose .good faith is not impugned, must not be permitted to suffer. This rule applies equally to movables as well as immovables. Story’s Equity, seo. 1503. Fullerton v. Kennedy, 6 An. 315, and cases therein cited. Tatum v. Wright, 7 An. 358.

      Miles Taylor and Titos. II, Ilewes for defendant and appellant.

    I. The evidence in this case shows, that the coal which isjthe subject of the suit, was bought by the city at an expense of $6,200, and was placed in the yard near the manufacturing establishment of Cook & Brother, to be used by them for the service of the Confederate government, in March, 1862.
    H. The plaintiffs claim to have bought this coal from Cook & Brother. If Cook & Brother sold it, it was the sale of the property of another, and null. Vide C. C. 2427.
    But was there any real sale? It is clear that there was not, if all the circumstances of the case are fairly weighed and considered.
    1st. The time when it is pretended to have been made is extremely suspicious. It was on the 28th of April, 1862, when the city was about to pass from the control of the Confederate authorities, and to be taken possession of by the national forces.
    2d. It was made in an unusual manner. A special power to sell by Cook & Brother, who were not the owners of the coal, is produced in evidence by the plaintiff, dated on the 15th of April 1862. The date of the execution of this pretended power is not established by proof. It was produced, and the signature of Cook & Brother sworn to by two witnesses before a justice of the peace, on the 8th of May, 1862, ten days after the pretended sale, and before the institution of the suit.
    3d. The price at which it is pretended the coal was sold to Moore was 65 cents a barrel, when it was worth, according to plaintiff’s witnesses, in the month of May, 1862, immediately after the sale, $1 50 to $1 75 a barrel.
    All these circumstances compel one to believe that the pretended sale was a fraud, and that no sale was made in good faith and for a real price. C. C. 2263, 2267, 1842.
    III. There is no legal evidence of any sale to the plaintiff. There is but one witness of the pretended sale, to wit: J. Andrews or Mr. W. J. Andrews. Mr. Hoag, the second person named in the pretended power or authority to sell, says: “ I had nothing to do with the selling or delivery of the coal; nothing more than knowing that the sale was going on. The sale was made by Mr. Andrews. I cannot tell when I wrote across the face of the document. I do not recollect at what time I concurred in the sale.”

      Mr. Andrews says: “I made this sale to Moore.” No one present, unless it was Mr. Field, when he made the sale. But Mr. Field gives no testimony as to the making of the contract of sale.
    If there was but one witness, W. J. Andrews, to the sale, the judgment must be reversed, for there are no corroborating circumstances. C. C. 2257.
   HvmaN, O. J.

Plaintiff sued for the value of coal taken forcibly from him by officers of the city.

Defendant answered first by a general denial.. Subsequently, she filed an amended answer, in which, she claimed to he the owner of the coal.

It was admitted that the city tools the coal.

Cook & Brother, the vendors of the plaintiff, bought the coal for themselves; and, to pay for it, drew an order on the city. The city paid the order.

This is all the evidence introduced by defendant to establish ownership in the ooal. It is unnecessary to say that it is insufficient.

Defendant contends that there is not sufficient evidence, as required by Article 2257 of the Civil Code, of the contract of sale to plaintiff.

Andrews & Hogue were authorized by Cook & Brother, in a written power of attorney, to sell the coal. Andrews testified that, acting under this mandate, he sold the coal to plaintiff. Hogue testified, that he knew that the sale was going on, and subsequently approved it. Another witness swore that he measured the coal for Cook and jolaintiff

We think that this evidence fully comes up to the requirement of this Article of the Code.

The judge gave judgment against the city for the value of the coal when it was taken.

Judgment affirmed.


author: HiSI/ey, J.

text:
    Garvino Ledda v. Captain Maumus, et als.
    By intervening and bon ding property attached, the intervenor has relieved it from the lien of attachment, and removed it from the jurisdiction of the court, consequently lie is bound as surety for whatever judgment may be rendered against the defendant, which is the tenor of his bond. He cannot, therefore, be heard to construe his obligation so as to defeat the law.
    The statute of 20th March, 1839, amendatory of Art. 259 O. P., restricts the judgment to he obtained to the surety on the bond, and does not contemplate a proceeding, by that mode, against the principal.
    from the District Court of the Parish of Jefferson, White, J.

      B. K. Gutter for plaintiff.

      H. Train & 0. Bedmondfor defendants and appellants.

    The intervenor bonded the property attached by plaintiff, and was condemned, as bondman, to pay his claim and judgment.
    He appeals because the judgment rendered is void, for want of citation, appearance or representation of Maumus. The defendant then, by plaintiff’s own showing within the jurisdiction of the court, and who had no notice of attachment.
    He contends that the plaintiffs’s judgment is moreover void; because, nobody is condemned to pay it; because, it does not dispose of the in-tervenor’s claim, on which issue had been joined; because, it makes no disposition of the property attached, whilst it disposes of sequestered property not in esse. Tet, plaintiff had ten months to consider of it before he confirmed his default
    The intervenor is dissatisfied with the description of the property sought to be subjected to attachment, and which he designates as a-cefitain flatboat and cargo of staves ; a laxity of practice not tolerated in attach-* ment, for the property thus libelled does not admit of judicial identification.
    He complains that plaintiff has brought a false action; for his petition sets up a sale which he, plaintiff, perverts into a claim for advances on his own property. He says defendant was entitled to a notice of judgment, and none was given; that execution was irregular, the first being-returned without date, and the second within days from its date; that both are decided against the Impersonal, captain and owners, of an uncertain flatboat and cargo of staves; and that these parties are dehors the record. The same objection applies to the bond on which attachment issued. The demise of plaintiff is suggested for the first time in the execution, which leaves room for the surmise that the judgment itself was perhaps rendered after his demise.
    Concerning the judgment against Begué on his bond, his objection to summary proceedings should have been sustained; it was doubly good: 1. Because, the judgment of sequestration on Begué as bondsman was entitled to a regular trial. 2. Because the same issues were actually pending between the parties in the regular mode of action. These exceptions were never overruled or legally disposed of in the court below. They should have been sustained.
    The condition of Begué’s bond was to pay such judgment as should be rendered against principal and intervenor in the action then pending. This bond has never been forfeited, because the supposed contingency has not occurred.
    It may be superfluous to add that plaintiff introduced no evidence to confirm his default; neither can it be questioned that the intervenor, having bonded the property in controversy, in the capacity of an owner in possession, is vested by law with all the rights of a defendant in reven-dication.
   HiSI/ey, J.

The plaintiff in this case, having attached the flatboat and cargo of staves described by him, one Jean Marie Begué intervened in the attachment suit, by way of third opposition, and set up title to, and possession of, the property attached.

On the motion of the intervenor, the court allowed him to bond the property attached, and, in accordance with the order of the court, he furnished a bond, executed by himself as principal, and one J. Desplate as surety, for the sum of twenty-five hundred dollars.

The judgment by default, taken by the plaintiff against the defendant, on the 20th January, 1862, was confirmed and made final on the 17th of February of the same year; and by this judgment the defendant was condemned to pay the plaintiff the sum of fifteen hundred and sixty-nine dollars and fifty-three cents, with a lien and privilege on the property sequestered.

The court did not pass upon the claim of the intervenor.

A writ oifi.fa. having issued against the defendant in the attachment suit, the same was returned nulla bona, when the plaintiff took a rule on the parties to the bond. J. M. Begué, the principal, and J. Desplate, the surety, to show cause why they should not be condemned in solidó, in accordance with, the stipulations of their bond, to pay the aforesaid judgment for $1,569, with interest and costs, and why execution should not forthwith issue against them for the same.

The exception and defence set up by the defendants in the rule, rested on the following grounds :

1. Because the law does not allow such summary proceedings in a case like this.

2. There was no judgment rendered against exceptor or intervenor in the suit, and he bound himself to pay the amount of the bond should a judgment be rendered against him, and not otherwise; and exceptor was not heard in his defence, and, had it been so, he would have proved that the staves in dispute belonged to him.

3. Even if he could be bound herein, the proceedings are illegal and deficient, and the pre-requisites of the law have not been complied with.

4. The judgment rendered herein is null and of no effect against exceptor, and all the proceedings under it are irregular and insufficient to bind the exceptor.

5. The exceptor is entitled to a trial by jury, and cannot, in such a proceeding, which is summary, pray for the same ; and he prayed for a dismissal of the rule. The rule was made absolute, and the defendants therein have appealed from the judgment of the court below.

In the case of Emanuel v. Mann, Beers & Bogart, intervenors, reported in 14 A. p. 53, wherein a defence somewhat similar to the one in this case was urged, the court say : “ The defence is purely technical. By intervening.and bonding the property attached, the intervenor has released it from the lien of the attachment and removed it from the jurisdiction of the court. Now, if they can defend themselves on the bond, they will defeat plaintiff’s claim altogether. In construing the obligation of Beers & Bogari, and Wright, their surety, we must look to the law and ascertain on what condition the property was to be delivered to them. It was on condition that they would satisfy such judgment, to the amount of the value of the property attached, as might be rendered against the defendant in the pending, suit. Act of 1852, p. 155, § 1. The condition of the bond, as written, is that the defendants or intervenors shall satisfy such judgment as shall be rendered against them, or either, in the suit pending, to the extent of the valuation of the property released. The principal obligation was, therefore, to satisfy whatever judgment should be rendered against the defendant; and it was the duty of the intervenors so to word their obligation, as the condition upon which the property was to be delivered to them.

They cannot, therefore, be heard to construe their obligation so as to defeat the law. Slocomb v. Robert, 16 La. 174.

Having failed in his intervention, they and their surety are responsible upon the bond. The return of nulla bona on the execution against Mann is sufficient, and the intervenors could not defeat plaintiff’s demand by paying the costs of the intervention, or requiring an execution against themselves.

The case cited in 8 A. p. 381, differs fro.m this, that no judgment had, in that case, been rendered against the third opponent.

The case of Goodman & Son v. Wm. Allen et al., reported in 8 An. p. 381, rested on the case of Goodman v. Allen, reported in 6 An., at page 372. The cdurt, referring' to the previous decision, held, that as no judgment had been rendered against Carroll, the intervenor, no judgment could therefore be rendered, by rule or otherwise, against his surety on the bond for the release of the property attached. That such a judgment against the surety must be preceded by a fi. fa. against, or at least, a putting in default of the principal.

The plaintiffs in the case reported in 8 An., first proceeded against Carroll’s surety by rule, and having failed to sustain their motion, then brought a direct action against the same surety; and it was in the decision in the last case, that it was held absolutely and unequivocally, that a final disposal of the intervenor’s claim must have been made; or, as stated in the previous decision in 6 An., “a ft. fa. must have been issued against the principal obligor, or at least, a putting in default. ” And the plaintiff’s rule was dismissed because no such call had been made upon Carroll for the payment of the bond.

Has judgment been rendered on Bégué, the principal in the bond in •this case, or has a legal preliminary call been made upon him?

He was made a party to the rule against the surety, and both were required to show cause in six instead of ten days, according to the statute of 1839. This was, indeed, a summary proceeding. Such proceedings cannot be extended beyond the cases expressly authorized by law. See Arts. 98, 170, 754 and 756 C. P.; Baker v. Doane et al. 3 An. 434; Austin, Sumner & Co. v. Dunbar, 12 An. 182; Nolan’s Heirs v. Taylor, 12 An. 201; Mussena v. Alling, 12 An. 799.

The statute of 20th March, 1839, amendatory of Art. 259 C. P., restricts the judgment to be obtained to the surety on the bond, and does not contemplate a proceeding, by that mode, against the principal.

We do not consider the proceeding by rule against Begué and Desplate, his surety, regular or legal, and think the court erred in making it absolute.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be annulled, avoided and reversed.

It is further decreed, that the judgment of the District court be reversed, and that the rule be dismissed as in case of non-suit, the plaintiff and appellee paying costs in both courts.


text:
    Alfred Kearny v. John O. Nixon, et als.
    The Supreme Court can only exercise its jurisdiction in so far as it sliall have knowledge of the matters argued or contested below. C. P. Art. 895. If, therefore, the copy of the record brought up be not duly certified by the cleric of the lower court, as containing all the testimony adduced, the Supreme Court can only judge of such cause on a statement of facts prepared and signed in the manner directed in the second section of the sixth chapter of the preceding title, or on a written exception to the opinion of the judge, or on a special verdict; and, in the absence of all these, it shall reject the appeal, with costs; but this is to be understood with such modifications as are contained in the following Articles. (896-7.)
    from tlie Sixth District Court of New Orleans, Buplaniier, J.

      J. Ad. Rozier and Whitaker, FeUowes & Mills for defendants.

      George L. Bright for plaintiff and appellant.

    The motion to dismiss is made on the ground that the appellants have not complied with Art. 897 C. P., which provides: “The appellant who does not rely, wholly or in part, on a statement of facts, an exception to the judge’s opinion, or special verdict, to sustain his appeal, but on an error of law appearing on the face of the record, shall be allowed to allege such error, if within ten days after the record is brought up, he files in the Supreme Court a written paper, stating specially such errors as he alleges; otherwise his appeal shall be rejected.”
    In this cause, interrogatories were propounded to Thos. P. May & Co., garnishees. They excepted to the interrogatories and refused to answer. A rule was taken upon them by plaintiffs to show cause why it should not be decreed that they have property belonging to defendant sufficient to satisfy plaintiff’s claim. The court dispensed them from answering, maintained the exceptions, and dismissed the rule.
    Prom that judgment, on motion and on suggesting to the court that there is error in the judgment rendered on the 4th April, 1864, maintaining the exceptions of Thos. P. May & Co., and in that rendered on the 16th April, 1864, dismissing the rule taken by plaintiff against Thos. P, May & Co., an appeal was granted to this court.
    If it were necessary to state the error in the judgment, it is specially stated in the motion and order granting the appeal.
    But no assignment of error is necessary. No evidence whatever Was toffered and received in the inferior court, and the certificate of the clerk ’shows that the transcript is complete. An assignment of error is necessary only when the court has no means in the record of ascertaining the correctness of the decision. See the many decisions 1 Hen. Digest p. 76, No. 1. Where the appellant relies for a reversal of the judgment upon grounds apparent upon the face of the record, and the certificate of the clerk states that the transcript contains all the evidence adduced on the trial, no assignment of error is necessary. Waters, Camden & Co. v. Briscoe, 11 An. 639.
    In Wood et al. v. Henderson, 2 An. 221, an exception was filed to the petition, 'and dismissed; the court said: “The exception having been overruled by the court below, we are permitted to consider it and the decree of the court upon it, without a formal assignment of error. This is not such a case as is contemplated by Art. 897 of the Code of Practice.
    * * * ipkQ petition, exception and judgment thereon, are fully presented by the record; and, if a mere bill of exceptions can be examined in this court without filing an assignment of error, the matter in question is certainly open to consideration without that formality.

      In Hiestand v. Oity of Hew Orleans', 14 An. 137, the court said: “Considering that the case went off in the court below upon an exception to the sufficiency of the plaintiff’s petition, which admitted all the allegations of fact therein contained to be true; and that in Wood v. Henderson, 2 An. 220, no assignment of errors was held necessary in this class of cases,” refused to dismiss the appeal, for want of an assignment of errors.
    In Hfott v. Brander ei al, 14 La. 370, the court said: “ In the case now under consideration, we have the certificate of the clerk, that the record contains a copy of all the proceedings, as well as of all the documents filed, and all the testimony adduced on the trial of the cause. With such a full and complete transcript before us, the appellants might well, at any time, have called our attention to any error on the face of the record. They might even have safely tried their case on its merits, without making any assignment at all.
    The transcript shows the exception and rule were tried on the pleadings without any evidence.
    Where a bill of exception to the ruling of the court is not necessary, we cannot conceive the necessity for an assignment of errors. The law never requires a useless thing to be done. An assignment of error is to point out the error in the record.
    In Psyche v. Parodél, 0 L. 380, the cotu't said: A bill is not necessary when the inferior court overrules an exception in writing. In Harrison v. Waymouih, 3 K. 340, the court said: A bill is only necessary where something is to be brought to the knowledge of the appellate court which would not otherwise appear on the record.
   Labauve, J.

The defendant, John O. Nixon, has filed a motion to dismiss this appeal, on the ground that the appellant has failed to comply with the provisions of Art. 897, C. P., in not filing in this court, within ten days after the filing of the transcript, a written paper stating specially such error as he may allege to be apparent on the face of the record.

This article must be taken in connection with the other two next preceding. The article 895 says: “The Supreme Gourt can only exercise its jurisdiction in so far as it shall have knowledge of the matter argued or contested below.” Article 896: “If therefore the copy of the record brought up be not duly certified by the clerk of the lower court, as containing all the testimony adduced, the Supreme Court can only judge of such cause on a statement of facts prepared and signed in the manner directed in the second section of the sixth chapter of the preceding title, or on a written exception to the oj)inion of the judge, or on a special verdict, and in the absence of all these, it shall reject the appeal, with costs; but this is to be understood with such modifications as are contained in the following article :

“The clerk certifies that the foregoing twenty-seven Jpages Contain a true, correct and complete transcript of all the documents filed, of all the evidence adduced and all the proceedings had in the suit.”

This certificate is in full compliance with the first clause of said article 896 C. P., and gives this court a full knowledge of the matters argued and contested below.

The article 897, relied on, cannot apply when the record comes up with such a certificate as the one before us.

Motion to dismiss overruled.


author: Howeld, J.

text:
    State ex relatione Francis L. Mead v. Hon. J. K. Belden, Judge of the Third Judicial District.
    One, whether a party or stranger to the cause, may appeal from a final judgment, if he allege that he is aggrieved thereby; and, from an. interlocutory judgment, when such judgment may cause him an irreparable injury; provided the amount or value in dispute is sufficient, and the party is not de* barred by his own act from taking an appeal.
    APPEAL from the Third Judicial District Court of the Parish of Terre-bonne. Belden, J.

      H. A. Gallup for Mead, Relator.
   Howeld, J.

The relator alleges that, in the matter of the succession of Mrs. Celeste Tanner, deceased, opened in. the parish of Terrebonne, at the suit of E. W. Blake v. Winchester Hall, a judgment was rendered on 21st September, 1865, removing said Hall as administrator of said estate, and appointing two of the beneficiary heirs, Mrs. R. D. Jordan and Franklin Tanner, co-administrators thereof, upon complying with the requisites of the law, said heirs having intervened in said proceedings; from which judgment said Hall has appealed ; that, on the 17th October following, he (the relator) and other creditors, whose aggregate claims amount to about $80,000, upon written motion, suggested to the court that the said co-administrators had suffered more than ten days to elapse after their appointment, without having either qualified or caused an inventory to be begun, and moved the court to forthwith, and ex officio, appoint a successor in office, as if no such officers had been appointed; that, on the trial of said motion, on the 20th October, concurrently with one previously made to have the said Mrs. R. D. Jordan and Franklin Tanner appointed provisional administrators, the court overruled his motion, and ordered that the said Mrs. Jordan and F. Tanner be allowed to qualify as provisional administrators, and granted them a delay of thirty days for that purpose; from which judgment he prayed for an appeal, on the ground that it was “ contrary to the law and the evidence; that he was seriously aggrieved thereby, and would suffer irreparable injury therefrom,- especially in allowing the appointees, B.' F. 'Tanner and Mrs. R. D'. Jordan, thirty days within which to qualify as provisional administrators, at the same time tendering a bond in such amount as the court might fix,” which was refused; and he now prays for a writ of mandamus to compel the said judge to grant him an appeál.

To which the District Judge answers that the appeal taken by the said Hall, having prevented the said appointees from acting, and the succession being without a representative, and suffering thereby, it was necessary to appoint them provisionally, pending the appeal; that thirty days were allowed as a reasonable and necessary time, within which to take an inventory of such a large estate and for the administrators to qualify and give bond; which delay could not, in his opinion, cause the relator any injury, as he would be amply protected by the required bond ; and that the appointment of Hall, as desired by the relator in his motion, was in conflict with the action of the court in the proceedings now on appeal.

By law, one, whether a party or stranger to the cause, may appeal from a final judgment, if he allege that he is aggrieved thereby, and from an interlocutory judgment, when such judgment may cause him an irreparable injury, provided the amount or value in dispute is sufficient and the party is not debarred by his own act from taking an appeal. C. P. Arts. 565, 566, 567, 570 and 571.

Without deciding whether or not the judgment complained of in this instance is final, or merely interlocutory, we think that, as the estate is a large one, subject to waste, and apparently much involved, the relator, who is a creditor to a large amount, may suffer an irreparable injury in consequence of the unusual delay of which he complains, and especially so, should the persons, appointed provisional administrators, as alleged, fail to qualify within the time allowed. We are the more disposed to grant the application, from the consideration that an appeal will not interfere with the administration that may be conducted during its pendency.

It is therefore ordered that the rule be made absolute, at the costs of the defendant herein, and that a peremptory writ of mandamus issue in the name of the State of Louisiana, addressed to the Hon. James K. Belden, Judge of the Third Judicial District of Louisiana, directing him to grant an appeal to the relator, Francis L. Mead, as prayed for by him, from a judgment rendered on the 20th October, 1865, in a proceeding had on the suit of E. W. Blake v. W. Hall, No. 2568 on docket of the District Oourt for the parish of Terrebonne.


author: Howeed, J.

text:
    L. F. Foucher v. Paul Choppin.
    If, during the lease, the thing be totally destroyed by an. unforeseen event, or if it be taken for A purpose of public utility, the lease is at an end. If it be only destroyed in part, the lessee/may either demand a diminution of the price or a revocation of the lease. In neither case has he any claim for damages.
    from the Sixth District Oourt of New Orleans, Buplantíer. J.

      J. Magne for plaintiff and appellant.

      G. Sufour for defendant.

    1. The defendant bases his defence upon Art. 2667 of our Code.
    2. The spirit of this Article pervades our whole legislation on the subject. See Arts. O. 0. 1893, 2662, 2666, 2669, 2699.

      3. Our Art. 2667 O. 0. is drawn from Art. 1722 Napoleon Code, and both are nearly identical in terms. See the Commentaries of Marcadé on this Art. 6 Marcadé, 450.
    4. The difference in the two Articles, as found in our Code and in the French Code, is that, ours allows a wider margin for the operation of the principle, and affords a more solid basis for the application of Marcadé’s illustrations, than even the Article in the French Code. See both articles.
   Howeed, J.

Plaintiff sues for the rent of a plantation and brickyard in the parish of Jefferson, from the 16th June, 1861, to 16th October, 1862. The defendant admits the contract of lease, but alleges that, during the time for which rent is claimed, the premises were rendered useless and unfit for the purposes contemplated in the lease, by reason of the military occupation of the place; that the sums paid by him during said period are full compensation for the small portion occupied by him, and that, having been evicted by military power, he is entitled to the annulment of the lease from the date of the eviction.

It is shown that, in June, 1861, about the time from which rent is claimed, Camp Lewis was established on the vacant or pasture grounds of the leased property, in the rear of the portion occupied by the buildings, brickyard, garden, etc.; that defendant was hindered in the free use of a private railroad, used for transporting bricks from the brickyard, near the levee, back to the New Orleans and Carrollton Railroad, until January, 1862, when its use was destroyed by the removal of the iron from the rails by the Confederate troops, which abandoned the camp on the arrival of the national forces, about the end of April', 1862; that said camp ground was taken possession of by the latter troops, some time in August following, from which time the defendant suffered more or less annoyance and inconvenience, until about the 18th October, 1862, when he was ordered to leave, and the buildings were taken for a hospital by the United States military. From that date the plaintiff abandons all right to rent from the defendant.

The defence is founded upon Article 2667 C. C., which provides that; “If, during the lease, the thing be totally destroyed by an unforeseen event, or if it be taken for a purpose of public utility, the lease is at an end. If it be only destroyed in part, the lessee may either demand a diminution of the price or a revocation of the lease. In neither case has he any claim for damages.”

If, during the period embraced in the bill sued on, the military forces had evicted the defendant and taken possession of all the leased premises, it is not denied that the lessee would have been relieved from all liability under the contract of lease. The plaintiff virtually admits this by waiving his right to rent, after that event actually occurred. Applying the same principle, the defendant should be relieved to the extent to which he has been dispossessed by thé same overpowering force, if the evidence furnishes the data for making the diminution. There is no jDroof of the' rent of the railroad, or the value of its use to defendant. It is, however, shown that the grounds occupied by the troops had yielded him a rent of one hundred dollars per month, which we adopt as the standard of deduction to be made. The dispossessiori continued during the whole time for which rent is claimed, except from the last of April, 1862, to the middle of August of the same year. We are of opinion that, under an equitable application of the above law, the defendant is entitled to a deduction of one hundred dollars per month, during the actual occupation by the military forces of a portion of his premises, say $1,250 for twelve and a half months.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be reversed, and that plaintiff recover of defendant eleven hundred and seventy-five dollars (1,175), with legal interest from 15th October, 1862, and that he be entitled to the possession of the leased premises, as prayed for. The appellee to pay costs in both courts.


text:
    Union Bank of Tennessee v. Bullitt, Miller & Co.
    In cases of insolvency all tlie ordinary debts, even those not due, are on an equality and must be paid proportionally.
    from the Fourth District Court of New Orleans, Price, J.

      Chas. JE. Fenner for plaintiff. Henry C. Miller for defendant Miller.
   Labauve, J.

The defendants are sued for $3,107 74, balance due on three bills of exchange drawn by Matthews, Finlay & Co. of New Orleans, on Finlay, Kissam & Oo. of New York, to the order of and endorsed by the firm of the defendants, Bullitt, Miller & Oo. One of them, for $2112 30, was accepted by the drawees and protested for non-payment. The other two, for $1,056 15 each, were protested for non-acceptance and non-payment, all of the same date, 14th October, 1854, payable, the one for $2,112 30 in 60 days, and the other two in 70 days from date.

The defendants answered first by a general denial; in supplemental answers they claim to have been discharged from all the bills. They also allege that plaintiffs have received various sums from L. A. Finlay, the syndic of the creditors of said Matthews, Finlay & Oo., as stated in the account annexed to plaintiffs’ petition, as follows, to wit: $473 10 on the 16th November, 1855; $319 20 on the 14th November, 1856; $375 on the 23d June, 1859; and $51 72 on the 21st October, 1859, which were dividends accorded to them from the property surrendered by said Matthews, Finlay & Oo., the drawers, and for which they were placed upon the tableau of distribution. That said drawers, Matthews, Finlay & Co., had made a surrender of their property on the 6th December, 1854, and the said bills of exchange were stated as composing part of their obligations, and plaintiffs were placed as creditors for said amount of said bills. That Finlay, Kissam & Oo., acceptors of the bill for $2,112 30, made an assignment of their property in New York, on the 10th February, 1855. That the plaintiffs received from their assignee $844 92, being 40 per cent., as a dividend upon said bill of exchange duo by said acceptors, and in consideration of said receipt and one dollar, said plaintiffs released and discharged the said acceptors on tho 11th April, 1855; and that by said discharge. of said acceptors) respondents are also releed as endorser^.

Judgment was rendered below, for plaintiffs and against defendants, for $2,067 97, with, interest; both parties appealed.

The testimony and admissions of the parties established the material facts set up in the answer, and among others, that the plaintiffs had granted a complete discharge to the said acceptors as alleged.

On the 15th November, 1855, a dividend of 14 per cent, was paid by L. A. Finlay, syndic, and credited on each of said three bills; $177 45 on the bill of $2,112 30 accepted by the drawees; and $147 85 on each of the other two not accepted; various other subsequent payments, in all $746 44, were also made by said syndic, but not credited on the bills.

The defendants, who are sued as endorsers of said bills, contend that the discharge of the drawees and acceptors, by the plaintiffs, completely released them also as endorsers. But plaintiffs have attempted to show by a letter of the defendants, that this discharge had been granted under instructions and at the request of said defendants. This letter reads as follows:

“New Orleans, March 2d, 1855.

James Corry, Esq., Cashier Union, Nashville, Tenn.

Dear Sir :

Mr. Finlay, of the house of Matthews, Finlay & Co., called on us to say he was prepared to pay 40 per cent, on account of then’ drafts endorsed by us, drawn on Finlay, Kissam & Co., New York, and that as soon as the property of their house here was disposed of, they would make a further payment. We presume you will instruct your agents here to accept of this proposition, and, as a matter of course, we will be bound for the difference. * * * * * *

(Signed) Bullitt, Miller & Co., in liquidation.”

We are of opinion that this letter cannot be construed as giving consent or instructions to plaintiffs to grant a discharge to the acceptors on their paying 40 per cent, on the draft endorsed by defendants, and that therefore the plaintiffs have lost all recourse against the defendants as endorsers upon the bill for $2,112 30. The plaintiffs now contend that all the payments made by L. A. Finlay, syndic, to the xilaintiffs, should be imputed on the bill for $2,112 30, as being the one first due, and they rely on Art. 2162 C. C. Such proposition is unsustainable in this case; these payments were dividends distributed among the three bills of exchange; in cases of insolvency, all the ordinary debts, even those not due, C. C. Art. 2049, are on an equality, and must be paid proportionally.

After proper calculation and deduction of proportional payments (dividends), we have found a balance due plaintiffs on the two smaller bills, on the 24th November, 1859, of $1,967 80.

It is therefore ordered, adjudged and decreed, that the judgment of the District court be annulled and reversed. It is further ordered, adjudged and decreed, that the defendants pay in solido to plaintiffs the sum of nineteen hundred and sixty-seven dollars and eighty cents, with legal interest thereon from the 24th November, 1859, till paid, and costs of suit in the District court, and that plaintiffs pay the cost of this appeal.


text:
    John Coleman v. Poydras Asylum.
    The usufructuary is liable, during his enjoyment, to all tho annual charges, to which the things subject to the usufruct may be liable.
    He is obliged to pay all taxes and contributions imposed on the property subject to the usufruct, as well as all ground rents which may have been charged upon the property, previous to the commencement of the usufruct.
    The usufructuary is also bound, during his enjoyment, to cause to be made and repaired the roads, bridges, ditches, levees and the like, for which the estate of which he has the usufruct, may be liable.
    With respect to extraordinary or temporary charges, which may be imposed on things subject to the usufruct during its pendency, the usufructuary is bound to support them, unless they are of a nature to augment the value of the property subject to the usufruct.
    In tins last case the usufructuary is bound to pay them, and shall be reimbursed by the owner at the termination of the usufruct, for the capital expended only.
    xL PPEAL from. the Sixth District Court oí New Orleans, Howell, J.

      Durant & Hornor for plaintiff. M. M. Cohen for defendants and appellants.
   Labauve, J.

The plaintiff claims against the defendants the sum of §4,632 66, for having paved, under a contract with the city of New Orleans, Julia street, between St. Charles and Carondelet streets, and in front of defendants’ property. He prays for judgment with a privilege and mortgage on the property.

The defendants answered by a general denial, and said they were not bound to pay any part of said demand; that, on or about the 25th March, 1857, they had transferred a portion of said property for a period of fifty years, by a contract of emphyteosis, to Thomas B. Lee; and, on. the 31st March, 1859, another portion to G-. W. Campbell, etc.

The district court gave judgment in favor of plaintiff against defendants, as prayed for, and the said defendants took this appeal.

We find in the record, in evidence, the two acts of lease referred to in the answer; they are both of the same tenor, and containing the same obligations, stipulations and dispositions. In fact, the act of lease to Dr. G-. W. Campbell, produced here, is the same one which was submitted to our consideration, and upon which we gave a decision, in the case just decided — C. Connell v. Female Orphan Asylum and G. W. Campbell, No. 10 in this court. In that case, after due examination of said contract in all its bearings, and the authorities applicable to it, we came to tho conclusion that said contract (so called) of lease was in law a contract of sale, constituting and establishing- an usufruct on time and for the term agreed upon. And for the samo reasons given, and upon the same authorities cited in that case, we must decide in the present case that the two contracts now submitted to our consideration contain a constitution of usu-fruct and are governed by tho laws on that subject.

But this case is not in a position to allow us to proceed to render the required final decree; the usufructuaries, who" are the true and direct debtors, C. O. Arts. 572, 573, and who have valuable improvements on the lots upon which a mortgage and a privilege are sought to be enforced, are not in court; the ease must bo remanded to give an opportunity to plaintiff to make proper parties*.

It is therefore ordered, adjudged and decreed, that the judgment of the District court be annulled and reversed; that the case be remanded to make proper parties, and to be proceeded in according to law, and that the plantiff and appellee pay the cost of appeal.

Howemi, J., recused.


author: Hyman, C. J. Jones, J. HowEnn, J.

text:
    Joseph D. Weaver v. Kearny & Blois.
    The owner of any promissory note, bond, or written obligation, for payment of money, to order, or bearer, or transferable by assignment, shall have the right to collect the whole amount of such promissory note, bond or written obligation, notwithstanding such note, bond or written obligation may include a greater rate of interest or discount than eight per cent, per annum, provided such obligations shall not bear more than eight percent, interest per annum after their maturity.
    The evident object of the legislature in passing these acts was, that there should be no stipulation for interest exceeding the rate of eight per cent., unless the parties contracting for a greater rate of interest on a valid claim should add the interest to the claim in making the amount of the written obligation. It did not design that usurious interest, included in a written obligation, stipulated for another debt not included therein, should be collected.
    _LL PPEAL from the Third District Court of New Orleans, Handlin, J.

      Fellowes <& Mills for plaintiff. George L. Bright for defendants and appellants.
   Hyman, C. J.

Plaintiff sued defendants on several promissory notes payable to his order, made by defendants in the years 1863 and 1864.

He prayed judgment against them for the amount of the notes, with legal interest from their respective maturity, cost of protests and cost of suit.

The judge rendered judgment against defendants as prayed for, and they have appealed from the judgment.

Defendants, in answer, averred that the note for $784 98 (one of the notes sued on) was given to plaintiff for usurious interest. They propounded interrogatories on facts and articles to him, and his answers to the interrogatories establish the facts that $228 05 was the only valid consideration for the note, and that $556 84 added to make up the amount for which the note was given, was interest at the rate of three per cent, per month on two other claims.

On the 15th March, 1855, the legislature passed an act to regulate the rate of interest; and provided therein, that all debts should bear interest at the rate of five per cent, per annum, from the time they become due; and that conventional interest, in no ease, should exceed eight per cent., under pain of forfeiture of the entire interest so contracted.

Since then, the legislature passed two other acts in relation to the rate of interest; one on the 20th March, 1856, the other on 2d March, 1860; and, in these acts, it is disclosed that the owner of any promissory note, bond or written obligation, for payment of money to order or bearer, or transferrable by assignment, shall have the right to collect the whole amount of such promissory note, bond or written obligation, notwithstanding such note, bond or written obligation may include a greater rate df intercet or discount thau eight per cent, per annual) provided such obligations sball not bear more tban eight per cent, interest per annum after tbeir maturity.

The evident object of the legislature in passing these acts, was that there should be no stipulation for interest exceeding the rate of eight per cent., unless the parties contracting for a greater rate of interest on a valid claim should add the interest to the claim in mating the amount of the ■written obligation. It did not design that usurious interest, included in a written obligation, stipulated for another debt, not included therein, should be collected.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed. It is further ordered, adjudged and decreed, that the plaintiff, Josejih D. Weaver, do recover of the defendants, Alfred Kearny and Thomas Blois, and of the commercial firm of Kearny & Blois, in solido, the sum of seven thousand two hundred and thirty eight dollars and eleven cents, with legal interest on $228 05 from 14th December, 1863; on $250 from February 12th, 1864; on $1,100 from 26th February, 1864; on $1,600 from 20th February, 1864; on $364 12 from 7th March, 1864; on $450 from 10th March, 1864; on $1,021 50 from 13th March, 1864; on $1,980 from 15th March, 1864, and on $244 44 from 12th February, 1864, till paid; $19 80 costs of protest and costs of suit in the District court; costs of appeal to be paid by plaintiff.

■Ok a Petition fob a Rehearing.

Jones, J.

This appeal is taken for delay; but as no answer has been filed by the appellee, asking for damages for frivolous appeal, we simply affirm the judgment, with costs.

HowEnn, J.

While an application for a rehearing in this cause was under consideration, a judgment appears to have been rendered on the merits as on a rehearing. It is evident that this second judgment is irregular and without legal effect, as the rehearing should have been first disposed of and the parties allowed an opportunity to furnish arguments in the event of a rehearing being granted. We must therefore consider the ease still before us as on the application of plaintiff for a rehearing of the judgment rendered on 18th December, 1865.

He complains that the judgment is based on a misapprehension of the' facts as to the usurious interest embraced in the note for $784 98, and which was declared forfeited. In his answer to the second interrogatory he says: “The balance after deducting the due bill” (which was for' $228 05) “was for interest at 3 per cent, per month” (on other obligations). Under our interpretation of the acts of 1856 and 1860, this is not a valid consideration.

It is therefore ordered that the rehearing be refused, and the. judgment rendered by us on 18th December, 1865, remain undisturbed as the final judgment in this case.


author: Hyman, C. J.

text:
    The State ex rel. James Gonegal v. The Judge of the Third District Court of New Orleans.
    This court lias only appellate jurisdiction. It is not vested with the power of correcting decrees of other courts, except on appeal See Const &rt. 70.
    It has no authority to take original jurisdiction of the case, substitute its opinion for that of the judge of the lower* court, and force him to pronounce its opinion, not his own, on the rights of the parties.
    PPEAL from the Third District Court of New Orleans, Felbwes, J.

      0. Roselius for relator.
   Hyman, C. J.

The relator, James Gonegal, avers that B. A. Shepherd sued, in the Third District Court of New Orleans, Woodman & Bement, for rent of certain real property in the city of New Orleans, and obtained a writ of provisional seizure ; that, under the writ, the sheriff had seized his goods in the premises let to Woodman & Bement; that he intervened in the suit, and took a rule on the sheriff and plaintiff to show cause why he should not be allowed to dejsosit in court such sum as the court might fix, to be applied in payment of any judgment which plaintiff might obtain, as a lien or pledge on his goods, and that, upon his depositing such sum, his goods should he released from seizure.

He further avers that the judge of said court, after advisement, entered an order dismissing his rule and denying his prayer ; that he is entitled to the remedy applied for ; that the judge, in refusing the rule, declined •to do what in law he was bound to do; that the order of the judge is a denial of justice to him, and that the slowness of ordinary legal forms is likely to produce such a delay, that the public good and the administration of justice will suffer from it.

He prays that a writ of mandamus issue, directing the judge to make the rule absolute, or show cause to the contrary, and that a peremptory mandamus issue ordering him to make it (the rule) absolute.

The complaint against the judge, as set forth, is not that he refused to perform his duties as an officer, but that his decision on the relator’s rule was contrary to law and justice.

This court has only appellate jurisdiction. It is not vested with the power of correcting decrees of other courts, except on appeal. See Const. Art. 70.

It has no authority to take original jurisdiction of the casé, substitute its opinion for that of the judge of the lower court, and force him to pronounce its opiinion, not his own, on the rights of the parties. See 13 An. 482-3.

The probability that the public good and the administration of justice may suffer from delay, as alleged, by relator, cannot give this court original jurisdiction, or the power of reversing the decree of the lower courfc¡ •tiúthout appeal therefrom.

Mandamus refused.