author: by Make, J.

text:
    No. 5338.
    J. M. Serra é Hijo vs. Hoffman & Co.
    Under the bankrupt act the assignee of any bankrupt is authorized to become a party to any suit pending in a State court either for or against the bankrupt,' but he can not be compelled to become a party to such suit by any order of court.
    A party sued in a State court who has been adjudicated a bankrupt may ask for and obtain a stay of proceedings until his application for a discharge has been passed on. If he has obtained a final discharge he may plead it in bar of all claims from which such a discharge liberates him. If, however, he fails to plead his adjudication or discharge in the lower court, that court will adjudicate the case without regard to such facts. •
    That clause in the bankrupt act which provides that a creditor who has sued a hank- ' rupt before his bankruptcy in a State court can only go on with his suit (if the defendant pleads his adjudication or discharge) by permission of the bankrupt court-, only applies to courts of original jurisdiction, in which picas in bar maybe filed. It does not apply to this court, whose jurisdiction of a case is not in any- . wise affoeteR by that clause.
    The, assignee of a bankrupt cannot intervene in a suit in which the bankrupt is sued.' and set up either the latter’s adjudication or discharge in bankruptcy as a ground for staying proceedings, or in bar of the action. That is a right personal to the bankrupt.
    A- plea of adjudication or discharge in bankruptcy can not lie originally set- up in ■ this court. Such plea must be expressly made In the court below; else this eou rt will refuse to take cognizance of them.
    A PPEAL from the Fifth District Court, parish of Orleans, (hdlom, J. Trial by jury.

      George L. Bright, for plaintiffs and appellees. - Hudson & Bearn, for defendants.
   The opinion of the court was delivered

by Make, J.

On the twentieth of June, 1874, Hoffman & Co., defendants in the court below, took a suspensive appeal from a final judgment rendered against Ibliem. The appeal was returnable on the first Monday of November, and ithe transcript was filed in this court on the fourth of September, 1874

’•On. the twenty-ninth of March, 1876, pending this appeal, counsel for ¿appellees, suggesting that appellants had been adjudged bankrupts ¡since the appeal was taken, and that W. E. Bertus had been appointed ¡assignee, moved the court to order that the assignee be made a party, ¡and that he be notified, and a copy of the motion and order was served -on him.

On the twenty-ninth of December, 1876, the appellants filed in this court a plea setting out their final discharge in bankruptcy, which appears to have been granted on the ninth of March, 1876, and to re-date ba'ck to the fourteenth of October, 1874, as the date of the filing of their petition. The plea concludes with a prayer for leave to file it together with the certificate of discharge.

The assignee took no notion whatever of the order of the court that he be made a party, and, as his counsel, who were also the counsel for .appellants in the court below and in this court, inform us in their printed brief, he “ has made no appearance in this court except by counsel on the hearing of the appeal, and ho now asks that all further pro•ceedings in this court be perpetually stayed.”

We do not find anything in the bankrupt act which requires the as;signee, or which authorizes any court to compel him, to become a party •.to a suit brought by or against the bankrupt. It is true that all the •estate, real and personal, of the bankrupt is conveyed to the assignee, and the legal title vests in him. It is his duty to obtain possession of all the property and effects of the bankrupt not exempt by law, and to resort to such proceedings as may be requisite for that purpose'; and this he is authorized to do by the express terms of the act as well as in virtue of the title conveyed to him as assignee. The assignee, however,' .must use his own discretion with respect to suits pending in which the '.bankrupt is a party. The language of section fourteen of the bankrupt ¡act (section 5047 of the Revised Statutes) is that he may prosecute and .¡defend such suits in the same manner and with like effect as they might lama been prosecuted or defended by the bankrupt.

And so it is provided by section sixteen, Revised Statutes, section ¡5047; that “ if at the time of the commencement of proceedings in bankruptcy an action is pending in the name of the debtor (the bankrupt) for the recovery of a debt or other thing which might or ought to pass to the assignee by the assignment, the assignee shall, if he requires it, be admitted to prosecute the action in his own name, in a like manner and In the like effect as if it had been originally, commenced by him.”

, It is .no part of the business of the assignee to protect the bankrupt, and it would not be proper for him to tax the estate with the costs and expense of a litigation from which no benefit could result to the estate.

If a suit is pending against a bankrupt for the recovery of property, or in which some right or lien is claimed upon property which ought to pass to the assignee by the assignment, it would be his duty to intervene, if it should become necessary for him to do so in order to protect that property, as it would be his duty to intervene and prosecute a suit if it should become necessary for him to do so in order to recover any property or right of the bankrupt which ought to enter into and form part of the estate in bankruptcy.

But where the assignee is satisfied that nothing is to be gained for the estate by defending or prosecuting such suit, his duty requires him to take no part in the litigation; and to leave it to be disposed of between the parties, without interference by him.

What the law thus permits and enables the assignee to do, in the exercise of a sound discretion, it nowhere commands him to do, and if he does not choose to become a party voluntarily to a suit pending- in the name of the bankrupt, we do not think .that any court in which such suit may be pending, has the power or authority to make him a party or to compel him to submit to its jurisdiction and control.

The order of this court that the assignee be made a party did not, we think, have that effect. The service of a copy of that order gave him notice of the proceeding, however, and afforded him an opportunity--to exercise his discretion and choice either to become a party, or to refrain from doing so, as he might determine the interest of tho estate required.

There is a wide difference between the effect of the death, and the effect of the bankruptcy of a party to a suit. Death puts an end to all judicial proceedings in the name of the deceased; and no. steps can be taken until his proper legal representative is made a party in his stead. Bankruptcy vests in the assignee the right to prosecute the suits in which the bankrupt is the actor, where the thing sued for might or ought to pass to the assignee by the assignment, and the defendant in such suit may protect himself against further prosecution by the bankrupt, by proper pleading and proof of the adjudication and assignment. But this is not because the bankrupt is civiliter mortuns. Nothing in the law gives any such effect to the bankruptcy. It is simply because the property, rights, and credits of the bankrupt have passed from him and are vested in the assignee; and the bankrupt has no right to recover that which does not belong to him, just as the case would be with any other person whose right and title in and to the thing sued for have been divested pendente lite.

Where the bankrupt is defendant in the suit, his capacity to stand in judgment is in no manner impaired. The adjudication arms him with the means of protection, and gives him the right to demand that the proceeding against him be stayed, and that he be allowed a reasonable-time to obtain his discharge. When he obtains the discharge ho may plead and exhibit it as a Ml and complete bar to the suit, so that no judgment can be rendered against him if the debt be not one of those-excepted by law from its operation.

Suppose, however, the defendant does not choose to demand a stay of proceedings; or, having- obtained a discharge, that he neglects to plead it; certainly the court in which the suit is pending will not take-cognizance of the proceedings in bankruptcy not brought to its notice by proper pleading, nor undertake to give the defendant the benefit of a stay or of a bar which he does not choose to avail himself of. A court-having once acquired jurisdiction of the parties and of the cause, must proceed to determine the issues between them in the regular performance of its judicial duty, and an adjudication or a discharge hi bankruptcy not pleaded, can have no more effect on the judicial action of the court than a payment, or release, or any other bar not brought within the judicial cognizance of the court by the defendant.

The counsel for appellants seem to think that a court in which a suit is pending against a bankrupt must have leave of the court in bankruptcy in order to proceed in the cause, and they cite a portion of section twenty-one of the bankrupt act, (Revised'Statutes, section 5106,) which is as follows: “ If the amount due the creditor is in dispute, the suit, by leave of the court in bankruptcy, may proceed to judgment for the purpose of ascertaining- the amount due, which amount may be proved in bankruptcy; but execution shall be stayed.”

It is obvious from the mere reading of this section that it is applicable to courts of original jurisdiction alone; to courts in which pleas in bar can be received and passed upon; to courts which enforce their-judgments by execution; and the counsel err in applying it to an appellate tribunal which reviews the judgments of inferior courts only upon the certified transcript of the record and proceedings hi such courts, which has no power to receive and pass upon pleas and defenses not set up in the inferior court, and which does not attempt to enforce its decrees by execution.

The State courts do not exercise their powers by leave of the bankrupt court. They depend for their authority and jurisdiction on the organic and statute laws of the State. Where a suit is pending in a State court, and the defendant, having been adjudicated a bankrupt, demands, a stay of proceedings to enable him to obtain and plead his discharge, the plaintiff may apply to the bankrupt court for leave to prosecute his. suit to judgment in order to fix the amount due him which is in dispute; but if he should attempt to enforce that judgment by execution, he might be stopped by the injunction of-the bankrupt court.

The bankrupt court does not attempt to enjoin the State court; nor ■does it pretend to give the State court permission to exercise its functions. The‘State courts stay proceedings because they are required to do so by the paramount law, and they receive and give effect to the discharge as a complete bar for the same reason. The bankrupt court may deal with and control the plaintiff; in a proper case it would grant him leave to prosecute his suit to judgment, and in a proper'case it would forbid him to enforce that judgment by execution, or otherwise than against the estate in bankruptcy. Where the plaintiff obtains leave of the bankrupt court to proceed, the State court may go on and render judgment, because the law authorizes it to do so, and it is to be presumed that the State court would, in obedience to the same law, ■stay or refuse to allow execution on the judgment thus obtained, or ■quash it if issued inadvertently.

In Eyster vs. Gaff, 91 U. S. (1 Otto) 521, a suit was brought to foreclose a mortgage, and the ’ decree was rendered on the first of July, 1870. On the ninth of May, 1870, the mortgagor, defendant in the suit to foreclose, filed his petition, and on the eleventh of May he was adjudicated a bankrupt, and on the fourth of June, nearly a month before the decree of foreclosure, the assignee was appointed.

The assignee did not choose to become a party to the suit to foreclose, and the property mortgaged was sold under the decree.

A tenant of the bankrupt was in possession, and he claimed the right to retain possession on the ground that the proceedings in the suit to foreclose, subsequent to the adjudication in bankruptcy, were void. The purchaser brought suit to eject him, and obtained judgment, 'which was affirmed by the appellate court, and the case was taken by writ of error to the Supreme Court of the United States. Justice Miller, delivering the opinion of the court, at the October term, 1875, said;

“ It is a mistake to suppose that the bankrupt law avoids, of its own force, all judicial proceedings in the State or other courts the instant one of the parties is adjudged a bankrupt. There is nothing in the act which sanctions such a proposition.

The court in the case before us had acquired jurisdiction of the parties and of the subject matter of the suit. It was competent to administer full justice, and was proceeding according to the law which governed •such a suit to do so. It could not take judicial notice of the proceedings in bankruptcy in another court, however seriously they might have affected the rights of parties to the suit already pending.

It was the duty of the court to proceed to a decree as between the parties before it, until, by some proper pleadings in the case, it was' informed of the changed relations of any of the parties to the subject-matter of the suit. Having such jurisdiction and performing its duty as the case stood in that court, we are at a loss to see how its decree-can be treated as void. It is almost certain that if, at any stage of the proceedings before sale or final confirmation, the assignee had intervened, he would have been heard to assert any right which he had onset up any defense to the suit. The mere filing in the court of a certificate of his appointment as assignee, with no plea or motion to be made a.-party or to take part in the case, deserved no attention and received none. In the absence of any appearance by the assignee the validity of the decree can only be impeached on the principle that the adjudication of bankruptcy divested the other court of all jurisdiction wliatover in.tho foreclosure suit. The opinion seems to have been quite prevalent in many quarters at one time that the moment a man is declared a bankrupt the district court which has so adjudged draws to itself by that act not only all control of the bankrupt’s property and credits, but that no one can litigate with the assignee contested rights in any other-courts, except in so far as the circuit courts have concurrent jurisdiction, and that other courts can proceed no further in suits of which they had at that time full cognizance; and it was a prevalent practice to-bring any person who contested with the assignee any matter growing-out of disputed rights, of property or of contracts into the bankrupt, court by the service of a rule to show cause, and to dispose of their-rights in a summary way. This court has steadily set its face against-this view.

“ The debtor of a bankrupt, or the man who contests the right to real or personal property with him, loses none of his rights by the bankruptcy of his adversary.

“ The -same courts remain open to him in such contests, and the statute has not divested those courts of jurisdiction in such actions. If it has for certain classes of actions conferred a jurisdiction for the benefit of the assignee on .the circuit and district courts of the United States, it is concurrent with and does not divest that of the State courts.”

The same learned judge, in Bracken vs. Johnston, in the Circuit Court for the district of Iowa, at the October term, 1876, reported in the Central Law Journal of the fifth of January, 1877, decided that the proceedings in bankruptcy did not oust the State courts of their jurisdiction. It was the case of an attachment levied within four months of the commencement of the proceedings in bankruptcy. “ The court may go on,” says Justice Miller, “ and render judgment and may execute it, if property subject to execution can be found, but the lien of the attachment is at an end, and the assignee is entitled to the property or the. proceeds.”

In Claflin vs. Houseman, decided, in the Supreme Court oí the United States at the October term, 1876 — Chicago Legal News, twenty-third of: December, 1876 — Justice Bradley, the organ of the court, repeats the language used by Justice Miller in Eyster vs. Gaff, to the effect that the jurisdiction of the State courts is not divested by the proceedings irt bankruptcy; and reaffirms that doctrine.

The simple fact that the bankrupt law enables the assignee to prosecute and defend suits pending in the name of the bankrupt, in the same manner and with like effect as the bankrupt might have done, or as if. originally commenced by the assignee, is a sufficient manifestation of the legislative understanding, intention, and will, that the jurisdiction of the State courts should not be divested by the bankruptcy.

We do not think the assignee has any right in this case to interfere in the litigation between the appellants and the appellees, since he has appeared only through counsel at the hearing for the single purpose of asking that the proceedings be perpetually stayed.

Where the assignee intervenes at a proper time to defend a suit pending against the bankrupt, he has no right to demand a stay of proceedings; nor can he plead the final discharge in bar. Where no property of the bankrupt is to be affected by the proceedings, the only object of prosecuting the suit to judgment is to ascertain the amount of the debt, which may afterward be proved in bankruptcy. Besides, by the very terms of the law, the application for a stay of proceedings is to be made by the bankrupt himself, (section 21, Revised Statutes, sec. 5106) and the discharge is granted to the bankrupt for his personal benefit, protection, and relief. Sections 32,31, Revised Statutes, sections:. 5111, 5119.

We proceed therefore to inquire what effect is to be given to the plea; and discharge filed in this court by the bankrupts, so far as they are. personally concerned, leaving the assignee entirely out of view.

By the constitution of Louisiana, article 71, this court'has appellate jurisdiction only, except that it may grant certain writs, habeas corpus, mandamus, prohibition, etc., in aid and as incidents of its appellate jurisdiction. In the exercise of this jurisdiction it reviews the judgments and proceedings of inferior courts, “ in so far as it shall have knowledge of the matters argued and contested below.” O. P., article’ 895. And this knowledge it can have only by reference to the transcript, of the record and proceedings in the court below, brought up by the. appeal. C. P. article 896.

In general, parties are not allowed to plead in this court other matters than those which were before the inferior court. There are, however, certain peremptory exceptions which may be pleaded in this court., although they have not been pleaded in the court below, such as prescription und res adjudícala; but even these exceptions can be pleaded in this court only where the proof in support of them appears on the face of the proceedings in the lower court by the mere examination of the record. C. P. 902.

In Zollicoffor vs. Bug'gs, 8 Rob. 287, res adjudícala was pleaded in this court, and the proof was the decision of this court rendered at the pre.ceding term. The court refused to admit the plea, because the proof did not appear on the face of the proceedings in the lower court and was not in the record of appeal. See also Carpenter vs. Bently, 12 Rob. 540.

In the New Orleans Gas-light Company vs. Hudson, 5 Rob. 487, the court, refusing to consider new matter, said: “ This court is called upon to review the decisions of inferior courts on the facts and pleadings as they were presented to them, and will not listen to pleas not made to them.”

Something may have occurred since the judgment appealed from was rendered which would satisfy or discharge it, but this would not make ' the judgment erroneous or enable this court to reverse or to avoid it, and if this court should undertake to receive a plea not made in the court below, and to hear proof in support of it not appearing on the face of .the record, it would simply be usurping and exercising original jurisdiction in violation of the organic, law.

In the exercise of its appellate jurisdiction this court is and must be ignorant’ of anything that may have occurred in relation to the parties or the cause, bejmndthat which appears in the proceedings of the lower court, except for the purpose of making necessary parlies in case of death, etc., and we can no more admit this plea, or give effect to the discharge in bankruptcy than if it were a plea of judgment supported by a receipt and acquittance, or any other new matter not appealing on the face of the record.

When this court “once has acquired jurisdiction of an appeal, whether by transmission of the record, or by that of the citation served outlie appellee, it can not in any case permit the appellant to withdraw his appeal without the, consent of the appellee, and the cause shall take its course, whether the appellant make default or not.” C. P. art. 901.

If we should reverse, the .judgment of the court below we would afford the appellants the. relief which it is their right to demand. If they should make default, or refuse to prosecute their appeal, that would not dispense this court with the performance of its duty, “and the cause shall take its course.” If wo should affirm the judgment appealed from, our decree wotild give it no additional force or effect; nor have we the power, unless the court below has the power, to deprive the appellants of any of the benefits of the discharge in bankruptcy.

We have given very much more time and attention to this branch of tlie case than wo should hayo considered necessary but for the decisions in Fox vs. Weed, 21 An. 58, and Viosca vs. Weed, 23 An. 218, in the first of which Weed was appellee and in the second ho was appellant. He was permitted to plead his discharge in bankruptcy granted on his petition filed after the appeals had been returned into this court; and upon the exhibition of the certificate the appeals were dismissed. These-decisions were undoubtedly in accordance with the opinion generally prevailing at tlie time they were rendered, that the jurisdiction of the State courts was divested by tlie proceedings in bankruptcy. In the language of Justice Miller there is nothing in the. bankrupt act which sanctions such a proposition,” and the Supreme Court of tlie United States “ has steadily set its face against this view.”

There seems to be no legal obstacle to the final disposition of the cause,' and we proceed to consider it on the merits.

Hoffman & Co., of New Orleans, shipped to Serra e Hijo, of Barcelona, four hundred bales of cotton, against which they drew for £6630, at sixty days sight, payable at London. The invoice and bill of lading reached Barcelona before the arrival of the cotton, and the bill of exchange was accepted on the sixth of May, 1872. Serra c Hijo, by letter of the thirteenth of May, which Hoffman & Co. received on the thirty-first of May, advised Hoffman & Co. of the acceptance of the- bill and of. its equivalent in dollars, nileur an. 6 Mai, $32,557 71.6. In a note at the foot of this letter the particulars are given showing how this amount is arrived at, and we consider.the expression vale nr an 6 Mai as informing Hoffman & Co. that, in order to meet the bill at maturity in London, Serra é Hijo had expended a sum of money which was equivalent to $32,557 71.6,cash on the sixth of May.

The cotton was sold at different dates from the twenty-sixth of August to the twenty-ninth of November, and on the eleventh of December a detailed account was made out showing a balance against Hoffman & Co. of $1915 29.1, which was forwarded by Serra é Hijo, with a letter of same date, and received by Hoffman & Co. on the eighth of January, 1873.

Two days after, on the tenth of January, Hoffman & Co. acknowledged receipt of this account and letter, and say:

“ Yotre compte de vente a nos 100 bailes ex Castilla a été trouvóe p; rfaitement correcto, ot la petite soldo $1945 29.1 en votro faveur a été portée a votre credit. A l’oecasion d’une nouvelle affaire avec votro honorable maison nous allons deduire le montant de nos tirages.”

Serra é Hijo were not satisfied with the mode of settlement proposed, and they drew on Hoffman & Co. for the balance due, to the order of Avendano Brothers.

Hoffman & Co. did not pay this draft, and on the seventh of May they wrote Serra é Hijo asking for indulgence. In that letter they say: “ Comme vous ne clevez pas avoir besom absolumont de cot argent, nous lie doutons que vous nous obligerez en attendant un moment plus propice.”

In an interview with Avondano, Hoffman & Co. said they had in writing acknowledged this debt, and they would be glad to pay it in another purchase and shipment of four hundred bales of cotton. This last interview was probably about the twentieth of Juno, and this suit was brought on the thirtieth of Juno, 1873, to recover the balance, ¡¡¡¡1945 29 in gold, with five per cent interest from the twenty-sixth of November, 1872.

In their answer Hoffman & Co. complain that Serra ó Hijo charged interest from the sixth of May, the date of acceptance, on the §32,-557 71.6, equivalent of the bill for £6630, whereas they should have’ charged interest from the maturity of the bill.

As the acceptors, Serra é Hijo, lived at Barcelona, and the bill was payable at London, they were compelled to remit the necessary amount to London. Obviously they must have done this by purchasing exchange on London, and it is manifest that they charged interest from the sixth of May because, whatever it cost them to place the required amount in London, they reduced it to cash on the sixth of May. This is fully explained by Avendano in his testimony, and is sufficiently shown by the letter of thirteenth May; and Hoffman & Co. must have understood the transaction perfectly when, on the thirty-first of May, they received that letter.

In the account of the eleventh of December special reference is made to this letter of the thirteenth of May, and all that relates to the bill on London is set down in the account with such prominence that one could hardly glance over it without seeing precisely what it cost to pay the bill, and that interest was charged on that amount from the sixth of May.

Hoffman & Co. also plead' that they had not looked into the account when, on the tenth of January, they acknowledged it to be perfectly correct, and informed Serra ó Hijo that the balance shown by that account had been carried to their credit. It was proven that the account was handed by Hoffman & Co. to. their clerk, whose duty it was to examine it, and he reported it correct, and the letter of the tenth of January was written by one of the members of .the firm after this.

Such a plea comes with bad grace from merchants whose daily business it is to deal with accounts. It was the work of a few minutes to run over this account. It contains full particulars, and occupies one side only of a half-sheet of account paper, and it is plain and easily understood. It is possible, hardly probable, that a merchant would have an account • of the character of this in his possession for two days without having the curiosity, and finding the time to examine it, but it would be most extraordinary if lie should carry the balance shown by that account to the credit of his correspondent, and so advise him, without having first ascertained and verified its correctness. It is not possible to account for the repeated acknowledgments by Hoffman & Co. of. the correctness, of this account upon any other hypothesis than that it does show truly the balance due by them to Serra ó Hijo.

Appellants also complain and plead that Serra ó Hijo should have sold the cotton at or before the maturity of the bill; and if they had done so,as duty required, the result would have been a balance in favor of Hoffman & Co. of at least two thousand dollars, which amount they claim in re-convention.

It is worthy of remark that the first complaint or objection of Hoffman & Co. to this account is made in their answer to the suit, filed on the third of November, 1873. There is no proof of negligence on the part of Serra é Hijo; and it must be presumed, in the absence of proof to the contrary, that having advanced so heavily on this cotton Serra 6 Hijo desired to obtain the highest price possible, and that they used their best judgment and discretion for that purpose.

We do not think it necessary to go more minutely into the evidence, the substance of which, we have already stated. It suffices to say that the letters of Hoffman & Co. of the tenth of January and seventh of May, their acknowledgment to Avendano of the indebtedness in May and June, their evident desire to continue commercial relations with Serra ó Hijo, and their direct proposition to purchase and ship another lot of four hundred bales cotton, are absolutely irreconcilable with the idea that they had any just cause of complaint, or reasonable objection to the account.

The verdict of the jury and the judgment of the court below are strictly in accordance with the law and the evidence, but this is not a ease for damages as prayed for by appellees.

The judgment appealed from is therefore affirmed with costs.


source: Caselaw Access Project

author: Egan, J.

license: Public Domain

text:
    No. 3656.
    J. W. Garrish vs. W. B. Hyman.
    When tho mortgage act has tho noeossary revenue stamps, tho notes identified with the act need not bo stamped.
    A more reference in any public act to a certain plan, or record, for the sake of certainty, does not make it a part of the act, and hence a certified copy of the act is completo without such plan, or record.
    Tho possession of a negotiable note, indorsed in blank, and secured by a mortgage, given in favor of any future holder of the note, will authorize the holder of tho note to take out executory process.
    It is not necessary for a judge to give a statemontof reasons, in an order of seizure and sale.
    APPEAL from the Second Judicial District Court, parish, of Jefferson. Pardee, J.

      N. Commandear, for plaintiff and appellee. IV. B. Hyman, for defendant.
   The opinion of the court was delivered by

Egan, J.

This appeal is from an order- of seizure and sale.

The first ground of error assigned is that the order was granted on non-authentic and insufficient evidence, and that no mortgage or privilege is shown in favor of any one.

The record contains an authentic act of sale with mortgage reservation, and two promissory notes regularly paraphed and identified with the act which secures their payment. The evidence was both authentic and sufficient.

The second error assigned is tho want of revenue stamps upon either act of sale and mortgage, or notes, and which are therefore alleged to be null and should not have been received in evidence.

It is unnecessary for this court to consider whether any such effect would follow, even if the facts were as stated, as the copy .of tho act of mortgage in the record claims that the revenue stamps were affixed to the original act. This is all the law required; where the mortgage was stamped the notes were not required to be stamped.

The third ground of error assigned is that the copy of the act shows on its face that it is not a true and full copy, and that it was not certified by one authorized in law to do so.

The copy was certified by Andrew Hero, notary public and custodian of. notarial records for the city of New Orleans and parish of Orleans. Ho was the proper officer to give and certify the copy and certificate, and ho does certify that the copy presented to the judge a quo and upon which he acted is “ a true and correct copy of the original act.” The objection that it was not a true and full copy as shown by its face we presume was based upon tho absence of a sketch of property conveyed in the act, which is therein said to be “ annexed in the margin for reference,” and “ marked ” by tho notary “ to identify it.” This sketch was not made a part of the act by being thus referred to and marked, any añore than was another lithographic plan said in the act to be deposited in the office of De Armas, notary public, which is also referred to. Such reference in acts, public and private, is very frequent, and while contributing to certainty of description, by no means makes the act, or plan or record, referred to, a part of the act. We think then the third ground of error was not well taken.

The fourth assignment is the absence of authentic evidence of any right in plaintiff as claimed; excess in the amount to satisfy which the sale was ordered; and the granting of “executory process,” when not prayed for.

The right of the plaintiff is shown by the fact that he appears as the owner and holder of two promissory notes found in the record, payable to the order of appellant and by him indorsed, and so recited in the act of mortgage, which is in favor of the vendor and immediate mortgagee or any future holder ” of the notes. That this is sufficient authentic evidence to authorize “any holder” to sue out executory process is too well settled to be now controverted. As to the other two grounds in this, the fourth assignment, we find nothing in the record to sustain them. The order is granted for the amount of the notes with eight per cent interest from the date stipulated in them, with only the addition of three dollars and ninety-five cents, cost of protest, and four dollars, cost of copy of act of sale and mortgage, which were properly allowed, but if not, would come under the rule “ de minimis,” and as to the other ground, the petition expressly prays for “ executory process.”

The fifth and only remaining ground of error assigned is that the judge adduced no reason for granting executory process, and therefore failed to comply with the constitution of the State in his ordei’, which is a judganent.

The record discloses that the petition, notes, and authentic copy of the act of sale and mortgage, importing confession of judgment, were preseaited to the district judge, whose order appears to have been written upon the petition, at the foot of which it is found in the record in these words, “ lot executory process issue herein as prayed for and according to law,” and is sealed and signed by the judge. While it anight be the better practice to refer to the petitioai and accoanpanying evidence in the order, the-form used by the district judge is, we believe, the usual one; and is to be interpreted by the law requii'ing the production of autheaitie evidence before granting an order of seizure and sale. We are, however, not disposed to regard a statement of reasons in the order itself as sacramental in regard to this class of orders, which for some purposes and to a certain extent have the effect of judgments.

As the appellant may have supposed that there was error to his prejudice, although wo see none, we are not disposed to allow damages for a frivolous appeal, as prayed for by the appellee.

■ It is therefore ordered, adjudged, and decreed that the order of seizure and sale in this case be sustained and affirmed, and that appellant pay costs.


author: Spencer, J.

text:
    No. 5339.
    George L. Gettwerth and Wife vs. Teutonia Insurance Company.
    In the organization of j arios, it is not necessary that the sheriff should furnish a list of all persons liable to jury duty, and put them in the jury box every December. The box must be exhausted before being refilled.
    'Where a policy of insurance stipulates for payment of losses sixty days after adjustment, and the assurers make reasonable efforts to effect an adjustment, they will not be liable for interest from the expiration of the sixty days, but only from judicial demand.
    APPEAL from the Fifth District Court, parish of Orleans. Cullom, J. Jury trial.
    Brauglm, Buck <& Dinkelspeil, for plaintiffs and appellee. .Hudson & Bearn, and B. B. Forman, for defendants.
   The opinion of the court was delivered by

Spencer, J.

The plaintiffs bring this suit to recover of the defendant the amount of a fire policy of insurance for two thousand dollars, to wit: “ on stock consisting of wines, liquors, confectionery, on soda-water stand and store fixtures, fifteen hundred dollars; on furniture belonging to saloon five-hundred dollars, contained in the two-story frame slated house on south-east corner of Canal and Liberty streets.”

It seems that on the morning of first of August, 1872, 'about five o’clock, an adjoining building took fire, which communicated to the establishment of plaintiffs above described. The establishment consisted of two rooms fronting on Canal street, and one in rear, on the ground floor, and four rooms and a cabinet on the upper floor. The two rear rooms on the second floor and the cabinet wore used in connection with the establishment below as private dining rooms, etc. On the lower floor the corner room was used as a confectionery, and the other Canal-street room as a bar-room, and the third room in reiirof the two as a saloon, with tables, sideboard, mirrors, curtains, etc.

The answer of the defendant admits the execution of the policy, and ^generally denies plaintiffs’ allegation. It specially alleges that plaintiffs’ estimate of loss is grossly exaggerated, and that they have sworn falsely to said loss, with the view and design of defrauding defendant, and have thereby forfeited all claim under said policy.

The case was tried by jury. The defendant challenged the array of jurors for the reason that the law required of the sheriff of the parish of Orleans, “ in the month of December, to furnish a list of all persons liable to jury duty residing within the limits of the parish of Orleans.” Revised Statutes, sec. 2144.

“ Whenever a jury is to be drawn, it shall be the duty of the sheriff to draw from the jury box the names of the persons, and continue so to draw for each successive jury, until all the names in said box have been drawn out, and no person shall be required to serve a second time upon the jury until all the names have been drawn from the box, and whenever the box shall be emptied the sheriff shall return all the names upon the jury list into the jury box to commence a new drawing.” Ibid, see. 2146.

Paragraph 2125 declares the qualifications of a juror “ to be a duly qualified voter.” Defendant contends that under these provisions it was the duty of the sheriff, every December, to furnish a list of all persons liable to jury duty, and put them in the box anew, regardless of whether the box had been exhausted or not. That as the box had not been filled since 1870, and many persons had become of age, or been naturalized, and therefore liable to jury duty since then, the array was illegal. We think that both the text of the law and its reason repel this view of the case. It would be impracticable to carry it out. It would necessitate an annual census or registration of the voters of the parish of Orleans. The court properly overruled the challenge. As stated, the ease was tried before a jury, who found 11500 for plaintiff, with legal interest from first October, 1872. The record is very voluminous. The testimony occupies about four hundred and fifty pages of the transcript. We have examined it with as much care as we could give it. It all relates to the questions as to the extent of the fire in the building, the quantity and quality of stock, fixtures, and furniture, and' their value, in the house at the time of the fire, and the extent of the damage and loss caused by it. It is impracticable to enter into details of the evidence in this opinion. There is between the testimony of plaintiffs’ witnesses and those of defendant irreconcilable contradictions. But there are some salient and principal points which seem to us to be established.

First — The insurance company before accepting- the risk for two thousand dollars sent its inspector to look at the premises and notice the-stock to be insured. The testimony shows that this inspector expressed himself entirely willing to take a risk of two thousand dollars on the property, and some of the witnesses say he suggested making the policy for a larger amount,’say three thousand dollars. However this may be, he must have reported to his company favorably on the risk for two thousand dollars.'

Second — The evidence satisfies us that the plaintiffs’ stock, fixtures, and furniture did not diminish between the date of the policy and that of the fire. The evidence of numerous witnesses, who had apparently good opportunities of knowing, shows that plaintiffs conducted a prosperous business in their line, with daily receipts ranging from forty to one hundred dollars per day, which must of necessity have required a considerable stock.

Third — There is no pretense that any part of the property insured had been fraudulently removed, or that plaintiffs were guilty of any complicity in starting the fire.

Fourth — We are also satisfied that the fire did not reach either the confectionery room or the bar-room, and that whatever damage-was done to their contents was from water and breakage. In the saloon and in the upstairs dining-rooms there seems to have been considerable damage done.

Fifth — Plaintiffs offer in evidence and swear to a list and the value of their stock, fixtures, and furniture, and fix the value thereof at §2775 77. We incline to the opinion that the values are fixed too high. We think under the evidence it is safer to fix it at $2000, the amount which the defendant insured it fori True, many of defendant’s witnesses fix it much lower, but it does not- come with good grace from the company to expect this court, amid the conflicting evidence in this case, to-put it at less, especially as it was paid its premiums at that value. Besides, we think the weight of evidence will justify that amount.

Sixth — We are also satisfied that the value of the property saved was fully one-half of that insured, and should be deducted from the amount of the polic-y. This would leave the amount due the plaintiffs by the company one thousand dollars.

It is proper to state that the plaintiffs carried on their business exclusively on the cash plan, and kept no kind of books. Under these circumstances it would be unreasonable to require or expect that exactness of proof which more extensive establishments can usually give. We think they have rendered it reasonably certain that their property insured was worth two thousand dollars, and that their loss was as much as one thousand.

■ The policy provides that the loss shall be paid within sixty days after •adjustment. The jury gave interest from first of October, sixty days after the loss. We think this is erroneous, both under the terms of the policy, and in equity. The company seems to have used reasonable efforts to arrive at an adjustment, but the plaintiffs demanded the whole amount of their policy, which the Company- did not owe. We think interest in this ease can be allowed only from judicial demand.

In conclusion, we do not think the plaintiffs have overestimated their goods with intent to defraud the defendant. In cases of this kind it would require most cogent and manifest evidence of such an intent, to induce the court to apply such a rule.

We think the charge of the judge a quo to the jury was substantially correct, and that defendant suffered no prejudice therefrom.

It is therefore ordered, adjudged, and decreed by the court that the judgment appealed from be avoided and reversed; and it is now ordered, adjudged, and decreed that the plaintiffs, Mrs. Dina Hulsmann and her husband, George L. Gettwerth, do have and recover of the Teutonia Insurance Company of New Orleans the sum of one thousand dollars, with legal interest from judicial demand, and that plaintiffs pay costs of appeal, and defendant those of the lower court.


author: Manning, O. J.

text:
    No. 6439.
    Succession of Margaret McAuley, Wife of John A. O’Brien.
    A transposition oE the words of a will in ''„! 1 > make the devise conform to some supposed intent of the testator will not bi allowed when the words, just as they stand, have a manifest moaning and express a clear and intelligible idea. Such transposition is only permissible when tile language of a will is senseless or contradictory.
    An administrator can not avail of any defect in a legal proceeding caused by his fault.
    APEEAL from the Second District G mrt, parish of Orleans. Tissot, J.

      James Timony, T. W. Collens, A. Robert, and W. B. Lancaster, for appellants. Hornor £ Benedict, J. L. Tissot, and Hays £ New, for appellees.
   The opinion of the court was delivered by

Manning, O. J.

On the twenty-third of November, 1874, Margaret McAuley, wife of John A. O’Brien, made her olographic will in form as follows;

New Orleans, November 23,1874.

“I, Margaret O’Brien, of the city of New Orleans, and State of Louisiana, being of sound mind leave this my last will and testament.

“I name my husband executor of my last will. All my debts must be paid out of estate. Rent for store my husband must not be held responsible as he has signed notes for same for me. All bills for goods bought by me a note of Washington Smith of New York, for.the sum of four hundred dollars said.is mine but is signed by my husband John A. O’Brien. All my funeral expenses, I desire to be buried as plain as possible a plain stone to mark my last resting place. The' sum of three thousand dollars to be paid to my husband with 8 per cent interest, from 16 August 1872. All my furniture is his. All my jewelry that is a diamond set breast-pin earrings and bracelets a diamond ring, my wedding ring I desire to be buried with. My diamond watch and chain J leave to my sister Frances Dowling.

“After all my funeral expenses are paid Dr. bill and all sundries expenses are paid if there is any money left I wish it settled on my sister Prances Dowling children for their use and benefit. If I should leave a child all this will to be null as all I have belongs by right to my child, either male or female. I want my child put under the care of Sister Chantreral as I know she will take good care of it my husband to pay her out of the revenues of my estate.

“MARGARET O’BRIEN.”

The writing covers the first and part of the second page of the paper. The signature made at that time is at the bottom of the second page, leaving a space of several lines between it and the concluding words of the will. In January, 1875, the testatrix was delivered of a child, which survived its birth but a slv rt time. On the nineteenth of August, 1875, after the death of her child, the testatrix affixed her signature to the writing of the previous November immediately under the last line and added the following words between that signature and the first signature, at Of near the bottom of the page:

“New Orleans, August 19, 1875.

“If J and my husband should die during my trip from home, after all my debts are paid whatever I die possessed I leave to St. Mary’s Orphan Boys’ Asylum less six hundred dollars MARGARET O’BRIEN, ior my mother. MARGARET O’BRIEN.

“ADELINE SHELSTONE.”

On the day following that on which this was written Mrs. O’Brien left New Orleans with her husband on a journey of business or pleasure for New York, and she died there on the twelfth of September. Her husband returned immediately, and on the eighteenth of that month presented the will or wills of his deceased wife for probate and qualified as executor.

On the fourth of October of the same year, the mother and sisters of the deceased, who are her heirs-at-law, instituted an action to annul the probate and set aside the wills upon the grounds that the first writing, which they call the first will, was revoked by the birth of a child posterior to its.date, and the second falls because the event upon the happening of which the institution of the universal legatee was made to depend has not happened and can not now happen; i. e., the death of both husband and wife during their trip north.

The executor answers by a general denial. The St. Mary’s Orphan Boys’ Asylum pleads the general issue and specially avers that the two instruments constitute but one will, and that both comply with the requisites of an olographic will, and that- the dispositions made are “ in conformity to law and can be easily executed, being intelligible and comprehensible in its extent and designs,” and last, that the document was •signed and dated by the deceased subsequent to the birth and death of her child.

Much stress has been laid in the arguments, both oral and written, on the fact that the two writings are of different dates, were written with two shades of ink, the signature first spoken of being of the same shade as the body of the writing of November, 1874, and the others of the. same shade as the body of what is termed by some the second will and by others the codicil. The different shades of ink are worthy of observation only because they assist us in ascertaining the circumstances under which the two writings were made. We find no difficulty in the different dates. Yilleneuve says:

“ Un testament fait en un seul context mais signé et daté plusieurs fois de dates diffórentes ne constitue pas autant de testaments qu’ il y a de parties sóparóment dateós et signóes. En consequence, Pacte portant revocation et tous testaments antérieurs, sauf un seul indiqué comme •ayant la derniere date du testament divisée en plusieurs parties ne porte aucune atteinte aux parties de ce testament qui ont une date différente.” Digest 1850, tome 4, 139, No. 210. And further on : “jugó, de meme, que bien que la date primitive d’un testament olographe en rapporte la confection antérieure a la date de Pacte révocatoire, le testateur a pu cependant donner a son testament par une surcharge approuvée une nouvelle date postérieure a celle de Pacte rqvocatoire, et soustraire ainsi son testament aux effets de la revocation.” Idem, p. 4, No. 240. See Journal du Palais, 1847,1, 49, 51.

More pertinent than these teachings of Yilleneuve is the observation of Dallas : “ Un testament olographe portant deux dates diffórentes, Pune ■au commencement et l’autre a la fin, ne peut étre annulló sous pretexte qu’il y a incertitude de la date. On doit supposer que le testateur a pris plusieurs jours á faire son testament.” Yol. v. 632.

We consider the writings before us as one will. The testatrix knew at the time of the first signature that she bore in her bosom a child whose birth would annul her testament. The child was bom less than two months from the date of the instrument, and she writes “ if I should leave a child, all this will to be null.” After the death of the child, and when about to make her will in view of a projected trip north, she mentally reverts to her former disposition of her property, draws the paper containing it from its place of deposit, and signs it anew immediately after its concluding words. Manifestly this was intended by her as a republication of that writing as a part of her will. The death of the child had destroyed the vitality of the will as then written. The republication revivified it. The testatrix then added another clause providing a disposition of her property upon a contingency expressed!' therein, and signed the whole instrument, and dated it, and this last, date is the date of the will.

We have now to consider the effect of this last clause.

The counsel for the defendants, in a brief which has been very serviceable to us, have argued with equal ingenuity and subtlety that the-, language used by the testatrix does not express her meaning. Undoubtedly a fundamental rule in the interpretation of wills is that the intention of the testator must be ascertained, and when ascertained, effect given to it; and in order to ascertain the intention courts look outside and behind the ipsissima verba of the instrument, and resort to the-evidence of circumstances when-the literal meaning leads to absurd or-impossible consequences. This is when the words are ambiguous ory contradictory, or the meaning latent. Pothier in his fourth rule for the. interpretation of testaments teaches that the law prefers the sense which.saves from intestacy, and that reference may be had to surrounding circumstances to ascertain the sense; and in his eighteenth rule, that “ a will should be interpreted by means of surrounding circumstances.” Traitedes Testaments, chap. vii. Those rules are embodied in our Civil Code in articles 1705,17Q6,1708, new numbers 1712,1713,1715.

• The circumstances surrounding the confection of these two writings' are developed in the evidence, and have already been adverted to. In November, 1874, she made her will, giving specific instructions concern-, ing certain debts, and explaining other matters which might not have-, been understood without that explanation, and appointing her husband executor. She either intended to add something later, or she thought,, as many illiterate persons do, that she must sign at the bottom of the page, and accordingly her signature in the same shade of ink is found' there. That will was intended to provide a disposition of her property in case her death should precede the birth of her child. In August, 1875,. when she knew that the will already written was null, since the event,. which caused its invalidation had occurred meanwhile, and being about to commence a journey — troubled, too, by a presentiment that she would never return — -and perceiving that the paper contained what she wished,. so far as it went, but apprehensive that the addition of another clause • with a new date might not sufficiently evince her desire to continue the dispositions contained in it in force, she signs it again, and writes the • clause relative to the asylum.

We are not embarrassed, as are the counsel for the asylum, by the seeming inconsistency of naming her husband executor in the first part of her will and providing for the contingency of his death in the concluding part. The thought present to her mind evidently was to provide for the two contingencies of her own death, her husband surviving, and the death of both of them. In the writing of November, 1874, she also contemplates the survival of her child, and directs that it be placed under •the care of a particular person, and in that of August, 1875, when her •child was dead, she provides what shall be done if her husband and her•self shall both die during their trip.

The counsel for the asylum, pursuant to their theory that the intention of the testatrix has not'been accurately expressed, propose a new reading of the last clause of the will, effected by a transposition of words, thus:

THE TEXT.

If I and my husband should die during my trip from home after all .my debts are paid whatever I die .possessed I leave to St. Mary’s Orphan Boys’ Asylum less six hundred dollars for my mother.

THE INTENTION.

If I should die during my and my husband’s trip from home after all my debts are paid whatever I die possessed I leave to St. Mary’s Orphan Boys’ Asylum, less six hundred dollars for my mother.

A transposition of words is sometimes permitted. Jasman says: “It as quite clear that where a clause or expression, otherwise useless and contradictory, can be rendered consistent with the context by being Transposed, the courts are warranted in making that transposition.” Treatise on Wills, 1 vol., 437. The nineteenth of his general rules of construction reads: “That words^and limitations may be transposed, supplied, or rejected, where warranted by the immediate context or The general scheme of the will, but not merely on a conjectural hypothesis of the testator’s intention, however reasonable, in opposition to the .plain and obvious sense of the language of the instrument.” Idem, 2 vol., 744. And Lord Ellenborough, “in a case where,” as he said, “the testator had thrown together a heap of words, the sense and meaning of which he did not clearly apprehend,” ruled that when “ the words taken in the order in which they stood did not convey any meaning, the established rules of construction clearly authorized the transposition.” Wolfe vs. Allcock, 1 B. and Ald. 137.

The transposition is then permissible when the words used by a tes'tator do not convey any meaning, or where the expression is senseless or contradictory, or when such transposition is warranted by the context and like cases; but a conjectural hypothesis is not permitted in opposition to the plain and obvious sense of the language. This court enunciated the same doctrine in Theall’s case, where it was said: “In the construction and interpretation of wills the intention of the testator must be sought in the words he has used in the will, and not aliunde. Con••structions and interpretations of wills are not to be resorted to for the discovery of the testator’s intention when he has used none but plain, unequivocal expressions.” 7 La. 226. .

The words used by the testatrix in the will now before us are intelligible in the order in which they stand: “If I and my husband should die during my trip from home.” The objection to the new collocation proposed by the counsel for the asylum is that it is not our province to make a will for the deceased, but to interpret and give effect to the one she made. If she chose to make her institution of the asylum as her universal legatee contingent upon the death of her husband and herself, it is not for us to say that she meant otherwise, or that it would have been more reasonable and proper to have made that contingency her own death only.

Lord Coke said that “wills and the construction of them, do more perplex a man than any other learning.” This perplexity may often be diminished by avoiding a strained construction of words which have an obvious import. Guided by that rule in this case, we are of opinion that the legacy to the asylum or its institution as universal legatee lapses by the non-happening of the event on which it was made to depend.

One other question remains. A sale of perishable property, the goods in the millinery store of deceased, and of the unexpired lease of the store, was made under order of the court. The asylum seeks to, annul that sale, but as we have decided that it is without interest in the succession, its prayer to annul can not be heard. The executor and husband was the purchaser of most of the stock and of the lease, which latter brought at public auction a bonus of 13525. The succession, of ' which he is the executor, is benefited by the sale. As purchaser, ho has not made a good-bargain, and wishes to be delivered from fulfilling it. If there are defects in the judicial proceedings which terminated in the sales, it was the fault of the executor or his agents. He can not take advantage of his own wrong.

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


author: Morgan, J., Egan, J:

text:
    No. 5336.
    Nicholas Burke vs. James Wall et al.
    t\ nere, -n a c-iatm ior damages, oased on a wrongful deprivation, or obstruction of -ome mental or morai gratification, or personal convenience, the plaintiff makes oat a tnat ms interest involved in the controversy amounts to more than five unared dollars, it will suffice to give this court jurisdiction.
    vfhoever acquires the ownership of a lot of ground, whether by prescription or by any other form of acquisition, thereby acquires the right of way, and every other servitude incident to the property.
    The property of an extinct religious corporation vests in the former individual members thereof, who may validly sell the same, in accordance with the customs they may have tacitly, or expressly adopted; provided such custom's do not conflict with tlio laws oí the State.
    Where a lot in a cemetery is sold, with reference to a certain plan, on which plan appears a certain avenue, leading up to, or close beside the lot, affording a convenient highway to and from it, that avenue becomes a servitude in favor of the lot, and can not bo legally obstructed.
    A servitude may bo shown by parol evidence.
    When a church congregation, who own the soil of a e'emotery, have for a great many years entrusted the administration of the cemetery, and the sale of its lots to the priests of their church, they clothe the priests with power to create servitudes on the soil of the cemetery, which will bo. binding on the congregation, and on , all third persons.
    The purchaser of a cemetery lot, whether ho acquire an absolute or qualified property therein, is entitled to the equitable remedy of injunction, to protect him- in the full enjoyment of the lot.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      James Timony and X. Bermudez, for plaintiff and appellant. Semines & Mott and T. Gilmore, for defendants.
   The opinion of the court on the original hearing was delivered by

Morgan, J.,

and on the rehearing by

Egan, J:

In December, 1857, the plaintiff purchased a lot of ground in the St. Patrick’s cemetery. The lot is the No. 18, in block No. 8.

He avers that he has caused to be erected on this lot a costly tomb. That he has enjoyed the servitudes belonging to the lot since-his purchase thereof. He avers that James Wall and others are attempting to destroy the conveniences of his tomb by interring the dead and erecting tombs and monuments on one of the avenues leading thereto, thus destroying his use of the avenue, which is dedicated to public use.

He says that the acts of the defendants have caused him damages in the sum of one thousand dollars, for which he prays judgment. He also prays for an injunction prohibiting them from erecting tombs or monuments on the avenue named in his petition.

The defendants deny generally the allegations in the petition, and they specially deny that the plaintiff has a.ny right or title to the property described, or the privileges, appurtenances, or right of way as described and set forth in his petition.

We do not think the defendants can question the plaintiff’s title, or' that it is questionable. He holds under a regular conveyance from a person who, we think, was authorized to sell, and his possession has been undisputed and undisturbed from the date of purchase (1857) until the acts now complained of.

Plaintiff purchased his property according to a plan which was shown him at the time. According to that plan the cemetery was divided into blocks, intersected by avenues. The lot he purchased is situated at the corner of St. Anthony and St. Dominick avenues. There are two entrances to the cemetery — one on Bayou road, the other on Canal street. His lot is very much nearer the Canal-street entrance than it is the Bayou-road entrance.

Entering the cemetery from Canal street, the route to his lot was down St. John’s avenue one block to St. Anthony’s avenue, and up St. Anthony’s avenue the depth of a block, some twenty-five or thirty feet, to St. Dominick’s avenue. Now, the obstructions complained of by the plaintiff are being erected on St. Anthony’s avenue, between St. John’s and St. Dominick’s. If allowed to be completed, they will stop up the way to his lot by St. Anthony’s avenue, and force him to go down one side of another block and up on the other, thus more than doubling the distance which he now has to make.

It is evident to our minds that the avenues in the cemetery were, when the plan thereof was made and the plaintiff’s lot was purchased, dedicated to the use of those who purchased lots therein, and that no obstructions can be put upon them which would render that use either impossible or imperfect. If the owners of the cemetery can block up one avenue, they can block up another, and so on from avenue to avenue until all the tombs therein will be inaccessible. The rights of the owners of lots purchased when the right of way existed can not be thus destroyed.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be avoided, annulled, and reversed, that the injunction herein issued be reinstated and made perpetual, and that the defendants pay the costs in both courts.

Wyly, J. I dissent, and will file my reasons hereafter.

Ox Rehearing.

This case is before us on a rehearing after a judgment against the plaintiff and appellant in the court below and in his favor in this court. Plaintiff claims the ownership and possession for many years of lot No. 18 in block No. 8 in St. Patrick’s cemetery of the city of New Orleans, the lot being situated at the corner of St. Anthony’s and Dominick’s avenues. He alleges that soon after his purchase on the twenty-second of December, 1857, he erected thereon an elegant and costly tomb at the expense of about thirty-five hundred dollars; that ho paid for the lot ninety-nine dollars; that he selected this a corner lot for its convenience and oonspicuousness, and that he. has enjoyed undisputed possession of said lot and all the servitudes thereunto belonging since 1857. He alleges that within a few days prior to the institution of suit the defendants have endeavored to destroy the convenience and oonspicuousness of his tomb by erecting tombs and monuments in St. Anthony’s avenue, thus obstructing petitioner’s access to his tomb and destroying its conspicuousness, and aho impeding the right which petitioner has in common with so many others to the use of these avenues, which have been devoted to public use. ever since the formation of the cemetery. He alleges damage to the amount of one thousand dollars by the illegal acts of the defendants, and fears that others, encouraged by their example, will bury dead and erect tombs in the said avenue and others until access to his tomb becomes impossible for the purpose either of depositing the dead or paying the usual rites of cherished affection, and prays that defendants be perpetually enjoined from proceeding further in erecting tombs or monuments in St. Anthony’s avenue, in St. Patrick’s cemetery, and that they each be ordered to restore said avenue to its former condition.

To this petition the defendants answer by denying generally all its allegations, and specially deny that plaintiff has right or title to the proj>e?'ty, the 'privileges, the appnrtenanc.es, or the right of way, described and set forth in his petition.

Before proceeding to the discussion of the merits, we must first consider a motion by the defendants and appellees to dismiss this appeal for want of jurisdiction, because the amount in dispute does not exceed five hundred dollars. The plaintiff has alleged that he will be greatly inconvenienced in and may be deprived altogether of the use of property costing him near thirty-six hundred dollars, purchased and used for a family burial place and devoted to the memory and deposit of the bodies of the dead. He alleges damages of one thousand dollars, and files an affidavit declaring that his interest in the matter in controversy amounts to over five hundred dollars.

This case may well be considered similar to those embraced in the third paragraph of article 1934 of the Revised Civil Code, which provides “that damages may be assessed without ciflculating altogether on the pecuniary loss or the privation of pecuniary gain to the party, where the contract has for its object the gratification of some intellect-ual enjoyment, whether in religion, morality, or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are duo for their breach; a contract for a religious or charitable'foundation, a promise of marriage, or an engagement for a work of some of the fine arts are objects and examples of this rulé.” Will it be argued that the depositaries of the dead and the sentiments of natural affection of the living relatives and friends are less sacred or less valuable than the examples enumerated ? Again, this court has often taken jurisdiction of cases involving no money demand, as in cases of divorce or where some great public interests are at stake, not appreciable in money. In the case of Knight vs. Knight, 12 An. 59, for divorce unaccompanied by any money demand, the court maintained the appeal upon an affi lavit of interest to an appreciable amount.

The petition to dismiss is overruled.

On the Merits.

The plaintiff claims both ownership and peaceful and uninterrupted possession since 1857, as owner of lot eighteen, block eight, m St. Patrick’s cemetery, and of the right of passage along St. Anthony’s avenue to and from his lot; that he is a resident of New Orleans : and both as one of the public, and as lot owner and possessor, that ho is entitled to have removed the obstructions placed by defendants in the avenue, which has been devoted to public use since the foundation of the cemetery. If the evidence sustains any one of these allegations of right, he ' is entitled to relief, and it is not very material, in the opinion of the court, to what class of actions tne present is to be assigned, or whether to any particular class, a matter upon which much stress has boon laid in argument. An elementary principle of our law is that wherever there -s aright tnere is a remedy. If the right of plaintiff, in the enjoyment of wnich he alleges disturbance, be an incorporeal -real right, then he can maintain the action technically styled possessory. C. P., articles 46 and 47. The possession of incorporeal rights, such as servitudes and other rights of that nature, is only a quasi possession, and is exercised by the species of possession of which these rights are susceptible. Rev. O. C., art. 3432. Among the rights which are common to all possessors, whether in good or bad faith, are —

First — That they are considered provisionally as owners of the thing which they possess so long as it is not reclaimed by the true owner or 'person entitled to reclaim it, and even after that reclamation till the right of the person making it is established,

Second — That every person who has-possessed an estate for a year or enjoys peaceably and without interruption a real right and is disturbed in it has an action against the disturber either to be maintained in his possession or to be restored to it in case of eviction, whether by force or otherwise.

Third — That such possessor may by prescription acquire the property of the thing which he thus possesses after a certain time, which is established by law according as ho has possessed in good or bad faith. Rev. O. C., art. 3454. Article 3455, Rev. C. C., provides that “ the action which a possessor for one year has against a person disturbing his possession to be maintained in or restored to it as is said in the preceding articles shall be decided before pronouncing on the question of ownership, and the real owner shall not be allowed to repel it by endeavoring to prove his right.” This is the possessory action proper. He who acquires an immovable in good faith and by a just title prescribes for it in ten years. Rev. C. C., art. 3478. “ The possessor in good faith is he who has just reason to believe himself the master of the thing which he possesses, although he may not bo in fact, as happens to him who buys a thing which he supposes belongs to the person selling to him, but which in fact, belongs to another.” Rev. O. 0., 3451. By the term “just title ” in eases of prescription we do not understand that which the possessor may have derived from the true owner, for then no true prescription would be necessary, but a title -which the possessor may have received from any person whom he honestly believes to be the real owner, provided the title were such as to transfer the ownership of the property provided it had been derived from the real owner. Rey. C. C., articles 3484 and 3485. Good faith and possession as owner are'always presumed in matters of prescription unless it appears that the possession began in the. name of and for another. Rev. C. 0., articles 3481 and 3488.

Without for the present discussing the precise nature of the property or rights acquired by the plaintiff by the act of sale from Rather de la. Croix, of the twenty-second of December, 1857, to the lot claimed by Mm, the evidence fully establishes his peaceable and uninterrupted possession and enjoyment under claim of ownership of lot eighteen in block eight of St. Patrick’s cemetery, and of all its accessory rights, including the use or right of way along St. Anthony’s avenue, from the date of the title for more than ten years and up to within a month or two before the institution of this suit, when the defendants placed in St. Anthony’s ave' nue the obstructions complained of. It is also clear that the plaintifl: was in perfect good faith, and believed himself to have acquired title from the true owner of the soil, whether he did so or not; therefore ir Ms title be such as to convey ownership of the property, ne comes within the rules laid down in the Code for acquiring title to real estate by the prescription of ten years, and had so acquired it oefore the alleged disturbance. it is also true that né oought oy the plan of the cemetery filed m evidence, and with reference to it, which thus became part of the '.itie, and that at the time of' the purchase, and since, until the disturbance complained of in this suit, ho and all other lot owners or persons enjoying the right of -burial in St. Patrick’s cemetery, and the public,, enjoyed the unobstructed right of passage through St. Anthony’s avenue, as well as all other benefits which he may have derived from the situation of Ms as a comer lot.

And while it is true that, viewed merely as an accessory right or servitude for the benefit of particular property, the non-apparent discontinuous right of passage can not be acquired by prescription for any length of time without a title, it is a mistake to suppose that a person who acquires title by prescription to a piece of property, although not from the true owner, does not at the same time acquire the rights of -passage and all other rights incident or accessory to the property so acquired by prescription. It is urged, however, with much zeal by the counsel for the defendants, that the property in the soil of the cemetery-is still in the defunct corporation, the Roman Catholic church of St. Patrick,' incorporated in 1833, by special act, with a duration of only twenty years, and which therefore expired in 1853, and that since that •date no title could be conveyed by the extinct corporation, because it was •qxtinct, nor by any one else, because the property is-still in the corporation.

We can not assent to this proposition, which can hardly have been ¿seriously urged by the eminent counsel for the defense in this case. It is well settled that the property of corporations becomes vested in its .•members upon the dissolution of the corporation. See 7 An. 287. In this case, in the members of St. Patrick’s church, a religious body, which 'has continued to exist up to this time in a non-corporate capacity, so far -as appears from the evidence, and which, through, its priests and officers, has continued to control St. Patrick’s cemetery, and to sell rights of •burial in sepulture or lots in the cemetery, according to the testimony in '-the record, until so many burial lots have been sold, and so few remain to be sold that it is now attempted to convert avenues into lots, doubtless with a view to church revenue, and, it would seem, without reference to The convenience or wishes of those who acquired property or rights in the' cemetery with reference to the plan, and to the use of these avenues, then open, including St. Anthony, the closing and obstructing of which is complained of in this case. Religious corporations or associations are, however, like all others, bound by their contracts, and by 'the principles of good faith and obligation which rest upon individuals •under like circumstances. “Sic utere tuo ut alienam non lucios” is a maxim as old as the law itself, and we are indebted to one of the authorities quoted in the brief of defendants’ counsel, Kincaid’s Appeal, 66 Penn. -411, for its renewed expression in this language: “ Every right, from absolute ownership to an easement, is held-Subject to the restriction that it shall be so exercised as not to injure others.” While, then, we have no disposition to restrict the priests or congregation of St. Patrick’s church, were they parties to the record, as they are not, in the exercise of all legitimate control over St. Patrick’s cemetery, both they and those claiming as holding under them must be reminded to conform to these .principles.

In 12 Harris’s Penn. Rep., p. 249, another law quoted by defendants’ counsel, it was held that “ religious corporations are voluntary associations, governed by rules of their own, and not by the laws of the State. The supreme authority of the State must, however, sometimes exercise •control, but then it generally takes the laws and customs of the church -as its guide, just as between individuals it takes their contracts and «sages, and only for want of them resorts to the general laws of the Hand.” We accept this as a correct exposition of the law, with the limitation that the rules and customs of the church must not contravene the; laws of the State. In the case of Beatty vs. King, 2 Peters 566, it 'was-held that “ there was no proof of authority in plaintiffs'except parol, and that they assumed to act without question of their authority, and formed part of the Lutheran Society, a religious body, and yet in a most important litigation, involving valuable property and large interests, the church-congregation was held to be properly represented by them. It appeals from the evidence that the plaintiff acquired his title and whatever rights it conveys according to the customs and usages of St. Patrick’s church,, and from the priest, who, as shown by Father Allen’s and other testimony, makes all r the titles.. He says that he has himself sold fifty or-sixty lots in the cemetery; that nearly all the lots have been sold, so that, space is well-nigh exhausted; and although defendants set up in their,answer no title in themselves, Father Allen, the priest in charge, tells us, that he sold to them the lots in St. Anthony’s avenue, their occupancy and use of which closes the avenue, and is complained of by plaintiff.. Indeed, it is apparent from the whole evidence that plaintiff’s title is of' the same character, and derived from the same source, with those.which. have conferred whatever rights are enjoyed by any one in this well-filled, city of the dead, certainly since the death of the corporation eo nomine. The plaintiff tells us that he bought in 1857, by the plan filed in evidence,, the correctness of which is admitted; that St. Anthony’s avenue was then open, and he selected his lot because it was a corner lot, and could have bought others at the time for less money. Father Allen tells us this is. the only plan transmitted to him; and that it is the only plan of the cemetery is not controverted.

And while the precise date of its execution is not shown, it is evident, that it was in existence some time before 1857, probably as early as 1854, and that all sales of lots have been made by it till the near exhaustion of lots induced the church authorities to attempt, the closing; of this avenue. If they have such power, and can confer rights upon and induce others to occupy the avenues, it may well be asked where is the exercise of this power to stop. Perhaps the present or some succeeding priest may consider it proper to close still other avenues, until the beauty and plan of the cemetery and the convenience and rights of existing lot owners may be entirely sacrificed.

The evidence of both plaintiff’s and defendants’ witnesses shows what is apparent from the plan, that the closing of St. Anthony’s avenue will double the distance in approaching plaintiff’s burial lot from the Canal-street entrance, within twenty feet of which the cars stop, and by which most persons visiting the cemetery enter, and according to some of the-witnesses, though partly contradicted by the priest, through which bodies are often carried for interment. One witness also says “ the Canal-street entrance is the usual entrance for funerals.” It is evident that plaintiff will be put to inconvenience at least, and that whatever be the nature of his rights or of his contract with the church, it has been violated by the closing of St. Anthony’s avenue with the assent of the church authorities,: and he is entitled to the protection of the law. The defendants are either mere trespassers, or holding under and from St. Patrick’s church.

Under the í&cts of this case the church itself could not close these avenues, or render their use more inconvenient, if objected to, so long as the ground is used as a cemetery. And the defendants are in no better position, to say the least of it. C. C.,. article 777.

The plan of the cemetery has the word “ entrance ” over the Canal-street entrance, and it appears from the evidence that the gate, which is similar to that on the Bayou road, has been closed within the' last two or three years, while the plaintiff states in his evidence that the “ opening ” or entrance has been there as long as he recollects going to the graveyard, which was doubtless even earlier than the time of his purchase in 1857. That not only the plaintiff but the other lot owners and the general public have for many years used this entrance, and the avenues .within, including St. Anthony’s; is clearly shown, and has not been controverted by either evidence or argument.

It further appears by reference to the act of incorporation of the Roman Catholic church of St. Patrick’s, sessions acts of 1833, that the cemetery was to be and remain subject to the control of the city authorities of New Orleans if within its limits, otherwise to that of the police jury of the parish of Orleans. This fact, coupled with the plan, the open entrance place, and their long-continued and habitual use of the avenue, at least by the general public, as well as by the lot owners, would come very near constituting a dedication of them to public use, and would certainly do so to the use of the lots and those holding them, whether their titles be absolute or qualified, or right to the soil or in and over it. If this constituted a dedication to public use, it is well settled that that dedication may be shown by parol. Pickett vs. Brown, 18 An. 560; 21 An. 244, and numerous other cases.

In 9 An. 445, it was held that where a property owner made a plan representing various lots on either side of an alley and sold lots on one side according to the plan, that alley constituted a servitude, not merely for the lots sold, but for the property on both sides of it.

In the case of Rogers vs. McGinnis, 12 An. 108, it was held that a right of way accompanied by possession can be established by parol, even without a plan, in favor of the adjoining property for the convenience or necessity- of which it has been used. But is said that none but the owner of property or his authorized agent can create a servitude upon it. The answer here is—

First — A plan of the cemetery, which is traced back beyond the knowledge or memory of the witnesses, who testified to its existence for over twenty years in the hands and keeping of the priests of St. Patrick’s church, the congregation of which was and is owner of the soil, except so far as they have made titles to it.

Second — The habitual use of the place by the recognized authorities of the church during all these years, and the making sales of lots in the cemetery.

Third — The long-continued and habitual use, occupation, and enjoyment of the cemetery and its lots, according to this plan, by the members of the congregation itself and its priests and officers, and of the avenues marked on the plan, not only by them but by the general public.

Fourth — The well-known and established custom of the congregation to act in the .control of the cemetery and the sale of burial lots in it through and by its priests. See evidence of Father Allen, who testifies directly to this effect, and also of the other witnesses.

Fifth — The written title or act of sale to the plaintiff and the testimony, received without objection, of numerous similar sales to other parties.

All this could not have been done without the knowledge and concurrence, if not the direct authority, of the congregation of St. Patrick’s, who, in the language before quoted from the case in 2 Peters, did not question the authority of the priests, who formed part of the society or congregation. Under all these circumstances, were it the congregation itself which was questioning or interfering with the exercise of plaintiff’s rights, instead of persons who have intruded recently upon his long-time possession and enjoyment of his property and the avenues of approach to it, without setting up any title in themselves, we should regard the congregation itself as estopped from such interference as is complained of, certainly so long as the cemetery continues to be used as such. It can not be that either law or good faith will permit persons to be induced on the faith of agreements, whether titles or not, or whether written or not, to deposit on or in the grounds of another the ashes of their valued dead and with commendable piety and affection to erect costly monuments to their memory and honor, and then that either the expressed or implied conditions of the agreement shall be broken and disregarded with impunity. This would be a clear case of estoppel by conduct. Still less can it be said that the plan and convenience of access to the tombs of a cemetery through its accustomed avenues can be impaired or obstructed by strangers without title, and setting up none, and long-used rights taken away, and that the law gives no remedy. To. hold otherwise would do violence to the peace of society, to our sense of right, and to that necessary and wholesome rule, before quoted, that the possessor, whether in good or bad faith, is considered provisionally as owner against all the world except the true owner. The appropriate and peaceful remedy is the one to which the plaintiff has resorted, in this case, that of injunction, to stay and to undo the mischief. C. P., article 298, paragraph 5, expressly authorizes injunction when the plaintiff is disturbed by the defendant in “ the actual and real possession, which he has had for more than a year, either of a real estate or of a real right of lohich he claims the ownership, the possession, or the enjoyment.” It is not ownership or title alone, then, which can be thus protected and preserved, but “possession and enjoyment” likewise. And here it may be well to remark that it is not the “ ownership, the possession, or the enjoyment” of plaintiff’s burial lot and tomb which are the real matters in controversy in this case, but the right and enjoyment of passage through and over St. Anthony’s avenue, which he in common with so many others has possessed and enjoyed through so many years without interruption' till the acts of defendants complained of, a right which for all the purposes of this case might be independent of his title to or ownership of the lot itself.

The case has been argued as though such title were necessary. We do not think so, and certainly not in a case of this character, against persons who have acquired no right of possession, and who set up no title in themselves.

We have examined the authorities cited by the brief of the learned counsel for the defense (except one or two which neither they nor we have been able to find) in support of the proposition that the act of sale to plaintiff gave no right of ownership, no proprietary right in the land, and conveyed but the right of sepulture, which is held subject to the right of the cemetery owners to remove the cemetery under certain conditions by remunerating the lot owners for their deprivation. As no such right of removal of the cemetery is or has been exercised or attempted in the case at bar, and as the cemetery owners are not parties to this record, that question does not arise here, and whatever rights the plaintiff acquired by his deed of purchase or otherwise still exist. All of the cases referred to are cases of the exercise of the right of removal of the cemetery by religious corporations or associations, by virtue of which the cemetery ceased to be used as such, a ease which frequently arises in crowded populations, and even then it is required that compensation be made to the lot owners, or an equally good place of sepulture be afforded them, which of itself is a recognition of their right, defeasible and terminable only by the happening of the event or contingency named. ’ ' ■

In Kincaid’s Appeal, 66 Penn, and '5 Ann. Rep., tlie court held that the1' lot owner in a cemetery purchased a license — nothing more — irrevocable1 so long as the.place continued a burial ground, but giving no title to the* soil. Whether it was an incorporeal hereditament descendible from him' or passed to his personal representatives, it is unnecessary to' decide.. While the license continued he could, perhaps, bring trespasser case for) any invasion or disturbance of it, whether by the grantor or by strangers:.

In 5 Barbour, 131, the court held that the sale of a pew in a church'is'.' a sale of an interest in real estate. In 109 Massachusetts Rep: 1, the* court held “ the removal of tombs and bodies by order of the chuMii, authorities to a new place of sepulture was no violation of the rights of Í property, if provision is made for compensation.” This was a case of' abandonment of the old and removal to a new cemetery by the church authorities, and the court said furtVr, “it is not necessary to decide the4 class of property, whether mere license or not.” 4 Sandford’s Ch. Repi; 471, was a case of injunction against'the church authorities to prevent, removal of bodies to another cemetery, and no title had passed to any'; vault or portion of ground. The case of Brice vs. Methodist Episcopal Society, 4 Ohio Rep., 515, holds that the interests of persons having the:, right of burial assimilates. that of pew-holders, which is limited and' risufr actuary,” and that the party acquires only a qualified right of-property. The court, however, fully recognizes the authority of Beatty vs. King, 2 Peters 566, to which we shall presently again advert, and says: “ We should incline to restrain them (the church society) front any wanton breaking up of graves.” 32 Barb. p. 42-47, distinguishes'4' between the right of burial in a church-yard and that “ in a separate) and independent cemetery,” and says in the former case “ it is an ease-' ment and not a title;” thus implying that in the latter it is more.than an) easement, that it is a title. In the same case the court says: '“.Any* deed of conveyance, whether of a pew, or a vault, or a house, is a cop»' tract between the parties, to be interpreted according to their actual or' fairly presumed intent.” In the case of Beatty vs. King, 2 Peters 566, where, as in the case at bar, the disturbance complained of was at-tMt hands of a private person and not of the church, the court held that the: law protects tombs and rights of interment from sale or disturbance)”' and that “ the remedy is by injunction to preserve the ashes of the dead' and the religious sensibilities of the living,” and that “ any member of a voluntary society may sue, having a common interest for purposes com.mon to all and beneficial to all.”

It will be remembered that article 456 Revised Civil Code, 447 of Old Code, provides that “the provisions of the ancient laws concerning the distinction of things into things holy, sacred, and religious, and the inalienability of these kinds of things a»e abolished; and nothing pre•vents the corporations or congregations to which these things belong ¡from alienating them, provided it be done in the manner and under the •restrictions prescribed by their acts of incorporation.”

' What, then, was to prevent the congregation .of St. Patrick’s Catholic «church from selling an interest in or part of the soil of the cemetery ? The language used in the deed to plaintiff, after reciting the consideration, is: “I have sold and by these presents do sell and convey to Mr. .Nicholas Burke a certain lot of ground as a family burial-place,” “ to liave and to hold the same for himself and heirs forever.” Then come, tíre conditions of the sale, that “ the lot shall only be used as a family '.'burial-place, and that none but such as depart this life in communion with the Roman Catholic Church shall ever be interred therein.”

1 How would such a sale or contract be interpreted if made between private persons or of property other than that of a religious body ? and if the law makes no distinction, how can the courts make it ?

' But imder the views already expressed it is unnecessary for us to go ¡so far in the present case, and it is a sufficient answer to all the authorities as to the character of the plaintiff’s rights cited by the learned 'counsel for the defense that not only absolute but qualified property is ¡under the protection of the law, and'that “not only servitudes but leases sand all other rights which the owner has imposed on his land” form real obligations, and constitute real rights, C. C., 2015 and 2012, for the disturbance in the ownership the possession or the enjoyment of which the claimant may resort to the remedy of injunction. See again paragraph five of article 298 C. P., before quoted.

‘ ’The peculiar and unusual character of this case, its to some, extent public importance, the zeal with which it has been argued on both sides, ¡and the fact that it has been the subject of two former and contradictory decisions, one against the plaintiff by the court below, and the other in his favor by our immediate predecessors, who also granted the present rehearing, have induced us to give the case a more lengthy' 'examination and elaborate review than our own views of the case would liave rendered necessary.

' Eor the reasons assigned it is ordered that the judgment of the court '¡below be avoided and reversed, and that the injunction of plaintiff be ipeipetnatod, with costs of both courts.