author: Levy, J.

text:
    No. 1058.
    B. J. Sage, Agent, vs. William S. Evins.
    "When the verdict of the jury decides issues not involved in the pleadings, it 'will be set aside, and the case remanded to be tried de novo.

    A PPEAL from the Thirteenth Judicial District Court, parish of St. .Landry. Hudspeth, J.
    Lewis & Bro. for Plaintiff and Appellant.
    John E. King for Defendant and Appellee.
   The opinion of the Court was delivered by

Levy, J.

The plaintiff instituted suit against the defendant, in which he alleged: that about the 1st of December, 1876, he entered into-a planting partnership with the defendant, for the cultivation of a portion of the Australia plantation, in the parish of St. Landry, for the year 1877, the conditions and stipulations of which partnership are set forth in the petition, and are shown in the written document, in evidence, signed by the parties, and known as the first contract of partnership. Under its terms the defendant, Evins, became the managing partner r. the net proceeds of all crops and products of the place to be divided equally; each partner furnished 400 bushels of com; there remaining about 2200 bushels of corn on the place belonging to the plaintiff, Sage, the defendant, Evins, agreed to furnish the capital necessary to buy, feed and sell stock, cattle and hogs, to be fed on said corn as long as it should be profitable to both parties to do so, or until the remainder of the corn should be used up ; the capital, labor, etc., thus to be furnished by Evins being computed as equal in value to the corn furnished by Sage. Half of certain seed cane and stubble on the place was sold by Sage to Evins, to be used in making a sugar crop in said year. On March 1st, 1877, a modification of the original contract of partnership was made, whereby it was agreed that, inasmuch as the buying and feeding stock and hauling wood could not be complied with by Evins, he (Evins) agreed to sell, to the best advantage of Sage, the corn and wood belonging to Sage, to make all improvements necessary for the convenience and use of the plantation, with the hands working for wages, without extra charge. The profits and loss of plantation to be shared equally, alter deducting all expenses, except those of material for improvements, which were to be charged to Sage, personally ; also sugar mill and pah, if they should be purchased. Evins agreed to furnish the capital to buy the mill and pan, provided other arrangements could not be made for taking off the crop of cane at a profit to the plantation. Other minor details as to purchase, care and disposition of farming utensils, etc., bought during the year, are also embodied in this agreement of March 1st.

The plaintiff alleges that the inducement and main consideration which led him to enter into the partnership with Evins, in November, 1876, were the promises and undertaking of Evins to furnish the capital to buy cattle and hogs, to be fattened on the corn on hand, which stock, when fattened, were to be sold for the benefit in equal shares of the partnership; and that on the failure of Evins to comply with his undertaking in this regard, he, “ fearing litigation and the loss of crop (it being too late for new arrangements with others), was morally coerced to accept new promises of Evins, in lieu of those violated or not fulfilled,” and therefore entered into this new or modified partnership of March 1st. He also alleges violation or failure of compliance by Evins of these new promises or stipulations, and that, “ because of failure of consideration on the part of Evins, these contracts are null and of no effect, and the Court is prayed so to adjudge.” Plaintiff further alleges that in about the latter part of June, 1877, the previous contract and modified contract of partnership were cancelled, Evins agreeing to take a stated salary as overseer, and give up his interest as partner. The plaintiff avers that he assented to this arrangement, in order “ to get on a just and commutative basis, and avoid litigation.”

That afterward, about the 22d of July, Evins, wrote to plaintiff, asking him to let him off from the last agreement (that of overseership), to which plaintiff replied that he was “ more than willing to reinstate the former contracts,” but that “the formal reinstatement, as contemplated, of the said contract, was never afterward,asked for by Evins, and was never made.” That though the contracts of partnership ' were not reinstated, defendant continued to act as if they still subsisted, and plaintiff believes that defendant bases his claim as partner thereon. Plaintiff further alleges that defendant has violated the contract as to overseer-ship ; that the representations of the defendant as to his means, and competency, and ability, to get labor, etc., and to do all that a prudent administrator could do, induced plaintiff to enter into his contracts with defendant, and to give him entire administration, possession and control of the plantation.

Plaintiff alleges “carelessness, neglect and fault ” on the part of defendant, which render the protection of the Court necessary; He further alleges that during his overseership defendant, in about the last of November, or 1st of December, in violation of plaintiff’s wishes and defendant’s promises, shipped several bales of cotton, to a merchant other than the one agreed on, without informing or explaining same to plaintiff ; that he had hindered the gathering of the crop, and done various other wrongful and improper acts to the injury of plaintiff; that, by reason of these acts complained of, and of the incompetency, mismanagement, carelessness, waste, neglect and fault of defendant, plaintiff was damaged to the extent of 11500, and alleging other and further damage not then ascertainable, he reserves the right to file an amended petition setting forth the same more particularly. Plaintiff sets forth sixteen distinct items whereby damages have been sustained by him, growing out of the misconduct, etc., of defendant. He prayed for and obtained a sequestration of all the property, including the books, etc., belonging to the alleged partnership, and an injunction prohibiting defendant from interfering with the plantation, “ and from attempting to get possession of the effects and books of the partnership by tendering either a forthcoming or indemnity bond, or both, of the samefor a decree annulling ‘•'all contracts heretofore existing between petitioner and defendant for want and failure of consideration and “ in case the Court should be of opinion that a co-partnership exists, the same be dissolved, and a liquidation of its affairs be ordered, and a receiver be appointed to take possession of the assets of the partnership, and settle the same.” Plaintiff also filed an amended petition, in which he claims the sum of $250, the value of five or six hundred barrels of corn, which he alleges that the defendant, during the time he was in charge of said plantation, appro-p riated to his own use, and failed to account for, and which he charges the defendant in each appropriation with “ being actuated by the purpose of defrauding him, plaintiff.

Under the writ of sequestration the property referred to in plaintiff’s petition was seized, and the writ of injunction was duly served.

The defendant in his answer denied plaintiff’s allegations, except as specially admitted therein.

He avers that he managed the Australia plantation during the year 1877, first as partner of plaintiff, and afterwards as plaintiff’s overseer, manager, or agent; as partner from January until March, under the first contract, and from March until July, under the modified contract ; that in July the partnership contracts were dissolved and a new contract was entered into by which defendant was to receive $600 for his services during the year, which contract of July contained divers stipulations as to reimbursement to defendant of advances made by the defendant, and assumption by plaintiff of the contracts with hired hands, and to give defendant additional compensation according to the crop made. Defendant avers that he managed the plantation.according to contract, and, with the means at his disposal, to the best interest of plaintiff. He claims that according to the contract of July he was to be reimbursed by plaintiff for advances made and expenses previously incurred by him ; and that plaintiff should be decreed to pay him the following amounts, viz: $124 for defendant’s share of seed cane paid for by defendant, which reverted to plaintiff; $200, paid for corn, which went to the use of plaintiff’s plantation; $70, for money advanced for construction of levee; $1000 advanced to hands; $700 for wages and commissions on crop; $250 advanced for plantation supplies ; $125 balance due on plaintiff’s promissory note to defendant; $1000 as special damages due him by plaintiff, for the wrongful and illegal issuance of the writs of sequestration and injunction, $500 as to each writ; all which sums he claims in reconvention. Defendant prays that plaintiff’s demand be rejected, and for dissolution of the injunction with the maximum of damages, besides the special damages of $500, and that the sequestration be set aside with damages as set forth, and for judgment in his favor against plaintiff for the sums claimed by him in re-convention and for trial by jury.

The case was accordingly tried by jury and occupied about a week. The record is a large one, and contains the testimony of many witnesses, copies of the various contracts which had been entered into by the parties, and quite a voluminous correspondence between plaintiff and defendant, running through the year 1877, in which the shifting engagements, varied emotions and respective grievances of the parties are vividly portrayed as they severally arise or spring into being.

The jury in their verdict found that “ W. S. Evins was and has been a partner of Bernard J. Sage during the whole year of 1877, until the seizure was made, and we therefore order that a liquidation be made. In relation to sequestration and injunction, we have come to agreement that Bernard J. Sage did not have sufficient cause to issue a writ of injunction and sequestration on the crop and other articles on the Australia Plantation of the year 1877. In relation to damages, we have agreed that Bernard J. Sage, plaintiff, pay to W. S. Evins, defendant, the sum of two hundred and fifty dollars damage.”

The record discloses that both the plaintiff and defendant regarded the agreement entered into on the 3d of July, 1877, as a cancellation of the pre-existing contracts and as changing their relations as partners into those of employer and overseer.

In plaintiff’s petition he alleges : “ That the new arrangement (that of July 3d) went into effect; that on the 22d of July the said Evins wrote to petitioner that he had settled with Garland, and asked petitioner to let him off from the last agreement, to which petitioner responded that he was more than willing to reinstate the former contract, and that the formal reinstatement, as contemplated, of said contracts never ivas afterwards asked for by the said JEvins and never ivas made. Defendant, in his answer, alleges, “ that in the month of July the previous contracts -of partnership were dissolved and a new contract was made, by which defendant was to receive $600 for his services during the year,” etc. In this new contract of July 3d, it is agreed that Evins will accept the proposal of Sage and receive “ as wages $600 a year,” the advances made by Evins to be repaid to him, and Sage to assume all that Evins had promised to the hired or share hands, “ all previous contracts to be null.” Thus it will be seen that, in the pleadings, both parties allege and admit the cancellation of the partnership and claim the existence of the contract of overseership. The prayer of the plaintiff, in the alternative, in the event of the recognition of a continued or reinstated partnership by the Court, seems also to be based on his belief that the defendant would contend for the existence of the partnership, and that he, defendant, would base his claims as partner upon the subsistence of the original contracts. The issue in this case could not, therefore, under the pleadings, involve the question of partnership. Both parties expressly aver that the partnership had been dissolved, and that the defendant held the position of overseer or agent of the plaintiff. Yet the jury assumes, in the face of these pleadings and judicial admissions, to ignore the will and intentions of the parties and to force upon them a contract which they both had solemnly repudiated. This partnership could only exist by consent of parties, and, as to themselves, when entered into could be dissolved by mutual consent, and surely could not be reinstated or renewed after such dissolution without their joint consent. The jury is selected and sworn to try the issue joined by the parties ; to the decision of that issue they are solely confined ; and the issue is the proposition or propositions affirmatively stated by the one and negatived by the other party. Confined to the decision of the question thus raised, it is not competent for the jury to go beyond the pleadings to ignore the matter which they are sworn to inquire into, and to frame and pass upon an issue of their own creation inconsistent with the joinder of pleading.

The verdict in this case was clearly not responsive, and, forming the basis of the judgment, must be set aside. The unwarranted theory which the jury adopted evidently controlled their deliberations and caused them to reach a verdict which disregarded the consideration of the respective demands of plaintiff and defendant. It is to be presumed that the jury acted upon the principle of law that, as between partners, a suit will not lie for the recovery of a specific asset, but in -order to ascertain their rights, there must be a full and complete settlement of their partnership accounts, and deciding that in this case the relations of partners existed between plaintiff and defendant, they failed to consider and pass upon the pecuniary demands at issue.

We take occasion also to remark that under the settled jurisprudence of our State and the uniform decisions, of this Court on the subject, the claim of damages growing out of the issuance of the injunction and sequestration under the demand in reconvention, cannot be allowed in this suit. An action, therefore, might be had in a separate suit on the bonds. Morgan vs. Driggs et al., 17 La. 176; Sheen vs. Stothart, 29 An. 640 ; 30 An. 742.

It is, therefore, ordered, adjudged and decreed that the verdict of the jury be set aside and the judgment of the lower court be annulled, avoided and reversed, and that this case be remanded to the Thirteenth District Court for the parish of St. Landry, to be tried de novo and in accordance with the pleadings, and that the appellee do pay the costs of this appeal.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
      No. 7943.
    State of Louisiana ex rel. W. J. Behan vs. Judge Sixth District Court.
    A provisional Injunction having "been granted by the lower court to prevent the execution of a judgment for money, and, on the Rule nisi} such provisional Injunction being dissolved, a suspensive Appeal will lie from the dissolving order and will stay the execution of the judgment for money.
    ^PPLICATION for Writ of Prohibition.
    Jos. P. Horner and F. W. Baker for Relator.
    E. Howard McCaleb for Respondent.

      This case was originally filed at New Orleans and decided at Opelousas.

   The opinion of the Court was delivered by

Bermudez, C. J.

The relator charges that a writ of execution having issued for the satisfaction of a money judgment against himself and others, he applied to the judge of the Sixth District Court for the parish of Orleans for an injunction, on the ground that said judgment had been satisfied; that the judge granted a provisional injunction, which he afterwards dissolved ; that he, the relator, applied for and obtained a (suspensive appeal from the dissolving order, perfected it by giving a proper bond and filing the transcript of appeal in this Court; that notwithstanding such suspensive appeal, the plaintiff in the case, with the usurped authority of said court, is about proceeding to execute said money judgment against relator, and that a writ of prohibition is necessary for the protection of his rights in the premises. • ■

A rule having issued on the plaintiff in execution and on the judge of the District Court to show cause why the relief asked should not be granted, and, the execution of said judgment having been temporarily stayed by this Court, the judge, in an elaborate answer, returns that he properly dissolved the preliminary injunction granted by him, and that the appeal taken from his refusal to allow the injunction applied for has not the effect of suspending the execution sought to be arrested.

The question presented is, therefore: Does such a suspensive appeal arrest that execution ?

Whatever may be our views on the propriety of the provisional injunction issued by the judge of the lower court, we are not called upon, and are not authorized, in this proceeding, to express them. It will be time enough to do so when the ease shall come before us for review.

The provisional injunction granted is what is termed a “ restraining order.” In 29 A. 57, 795, this Court had occasion to say that such a proceeding was unknown to our law, and that it was the duty of the judge, on application for injunctions, to grant or to refuse the relief sought, according as the face of papers warrants or not the relief.

In the case now before this Court, it appears that the District Judge issued a. rule nisi, on the defendants in the application, to show cause why the injunction asked should not be granted, and made an order suspending provisionally the execution complained of. The effect of that order was to arrest actually, as it did, the execution of the writ of ft. fa. Subsequently, on the return day of the rule nisi, the judge rendered a decree rescinding the order for a provisional injunction made by him, and refusing the injunction asked by the relator. From that decree the applicant took and perfected a suspensive appeal, and filed the transcript seasonably in the office of the clerk of this Court.

It is settled beyond peradventure, that from the dissolution of an injunction a suspensive appeal will lie. 26 A. 550; 28 A. 902, 901; 31 A. 850 ; 29 A. 795 ; 19 L. 172 ; 21 A. 153 ; 30 A. 315; 7 M. 459.

The character of the injunction is immaterial. It is sufficient that one was issued and was subsequently dissolved. This is not a case of dissolution of an injunction on giving a bond to indemnify whom it concerned; in case of a wrongful issuance. It is enough that the plaintiff complains that the dissolution of the injunction will work him an irreparable injury, and that the facts alleged justify such conclusion.

This Court has held that th& refusal of a judge to allow an injunction can be the object of a suspensive appeal. See cases already cited.

A fortiori is an applicant entitled to a suspensive appeal where an injunction of any description is granted and is afterwards dissolved.

The suspensive appeal, taken from tlie rescinding order, leaves the case in the condition in which it stood after the provisional injunction was granted and before it was dissolved. 19 L. 172.

It is established beyond dispute, that after a suspension has been properly granted and is perfected the lower court ceases to have any further jurisdiction over the matter in dispute. The case, by such appeal, remains in the state in which it would be if never decided. 21 A. 153 ; 19 L. 173, 178.

Under the exceptional features of this case, we feel that we are authorized to grant the relief sought in aid of our appellate jurisdiction.

It is, therefore, ordered, adjudged and decreed that a peremptory writ of prohibition issue herein as prayed for, and that plaintiff in execu-cution pay the costs hereof.


author: Fenner, J.

text:
    No. 1066.
    Parish of St. Landry ex rel. Fontenot, Road-Overseer, vs. Alfred B. Stout.
    This Court will not consider the question of the constitutionality of a law, unless necessary to the decision of a cause.
    Part of the section of a law may be unconstitutional and another part of the same section may be constitutional.
    APPEAL from the Second Justice’s Court, Second Ward, parish of St. Landry. Poiret, J.
    F. Perodin, Parish Attorney, for Plaintiff and Appellee.
    Kenneth Baillio for Defendant and Appellant.
    The Legislature alone can create new crimes, and can alone provide for their punishment criminally. Municipal corporations cannot, as this is a branch of the sovereign power not delegated to them.
    Ordinances of municipal corporations must not conflict with either the-Constitution or laws of the State; and in so far as they do so conflict, they are null and void.
    Imprisonment for debt was abolished in this State by statute.
    The Constitution of 1879 provides: “Art. 5. There shall be neither slavery nor involuntary servitude in this State, otherwise than for the, punishment of crime, whereof the party shall be duly convicted.” * * *
    " Art. 9. Excessive bail shall not be required, nor excessive fines be imposed, nor cruel and unusual pnnishments inflicted.” * * *
   The opinion of the Court was delivered by

Fenner, J.

The 12th section of an ordinance of the Police J ury of ' the parish of St. Landry, providing for the police of the public roads, imposes upon delinquents in the performance of road duty, a penalty of “ five dollars per day for each person so neglecting or refusing, to be recovered with costs, by judgment before any justice of the peace in the parish, and paid by said justice to the overseer; and in default of payment of said fine, the persons so failing to pay shall be imprisoned in the Parish Prison thirty days, said imprisonment to be enforced by information or indictment before the District Court; and it shall be the duty of the different road-overseers of the parish to furnish the District Attorney with a list of all such persons who fail to pay said fines without delay.”

It will be observed that the ordinance imposes two distinct penalties, arising under different circumstances, and to be enforced in different forums; viz:

1st. A fine recoverable, at the suit of the road-overseer for the benefit of the parish, by judgment of a justice of the peace, rendered contradictorily with the delinquents.

2d. In event of non-payment of the fine, imprisonment in the Parish Prison to be enforced, on information or indictment, by the District Court of the parish.

This appeal is taken from a judgment of a justice of the peace condemning defendant to pay the sum of five dollars as the fine imposed under the ordinance quoted.

It is a case involving “ the constitutionality or a legality of a fine imposed by a municipal corporation,” and is, therefore, appealable. The motion to dismiss the appeal must, hence, be overruled.

It has, however, been correctly decided that the ordinance of a police jury, imposing a fine on persons failing or refusing to work on the public roads, is constitutional.

St. Martin vs. Delahoussaye, 30 A. 1092. We do not understand that defendant contests the correctness of this as a general legal proposition ; but he contends that that portion of section 12 of the ordinance referred to, authorizing a criminal prosecution and punishment by imprisonment in the event of non-payment of the fine, is unconstitutional, and that, thereby, the entire section is invalidated. We must observe the rule that courts will not entertain questions as to the constitutionality of laws except where necessary to the decision of causes ; and we content ourselves with saying that, if the part of the section last referred to were unconstitutional, it would not affect the validity of that portion of the section upon which the present suit is based. See State ex rel. Lucas E. Moore vs. City of New Orleans, recently decided, where this subject is fully discussed, and numerous authorities quoted.

Defendant, however, contends that if we refuse to determine the constitutionality of the part of the statute objected to, in this case, he will be without remedy against heavy criminal penalties which may be imposed on him under a law which he asserts is unconstitutional, because he says that, in a case where appeal was taken from a sentence of the District Court imposing this penalty of imprisonment, the appeal was dismissed id this Court for want of jurisdiction.

State vs. Wikoff, 28 A. 654

Whatever may have been the result of these decisions under the late Constitution, defendant is not left without remedy, under Article 90 of the present Constitution as interpreted by us in the case of the State ex rel. Wells vs. City of New Orleans, recently decided ; and the remedy is indicated in the proceedings had in the case of State ex rel. Carcass vs. Judge, also recently decided by us, and not yet reported.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed, defendant paying costs of appeal.


text:
    No. 1068.
    John N. Pharr vs. McHugh & Vinson et al.
    A party, who has signed as surety the note of a planting partnership subscribed by its agent, is estopped from denying either the existence of the partnership or the authority of the agent.
    Mere inaction on the part of the creditor does not discharge the surety.
    APPEAL from the Nineteenth Judicial' District Court, parish of St. Mary. Goode, J.
    Phil. H. Mentz for Plaintiff and Appellant.
    A planting partnership, in which the use of real estate is part of the capital, may be proved by parol. 5 A. 597; 25 A. 591; 27 A. 353.
    A debt contracted by one of the members of a planting partnership, though he acts without previous authority, will be binding on each of the partners for his virile share if the partnership was benefited thereby. 9 A. 420 ; 10 A. 114 ; 16 A. 193 ; 27 A. 353.
    Partners cannot sue each other for special items ; their action must be for a full and final settlement of the partnership affairs. H. D. p. 1093 ; Louque p. 511.
    When one is notified that a contract has been made for him, though without any previous instructions from him, he is held to have ratified it unless he at once repudiate it. 11 L. 288; 22 A. 496 ; 24 A. 462.
    Sureties on a promissory note admit, as to the payee, the authority of the drawer to make the note. 5 A. 368 ; 9 A. 530 ; 30 A. 53.

      The surety is not discharged by the mere omission of the creditor to sue the debtor or to enforce a privilege. 29 A. 844, and authorities cited ; Duranton, vol. 18, pp. 420, 421.
    Sureties who prove no damages to result to them from the acts, of the creditor — can ask no discharge of their liabilities ; and in eases where they make such proof, can only ask discharge pro tanto. 8 A. 76 ; 13 A. 63 ; 29 A. 844; 'C. O. 3048.
    Surety cannot ask the discussion of principal debtor unless he has advanced to the creditor the costs of the suit. C. C. 3047 ; 5 M.'676 ; 11 L. 136 ; 13 L. 276 ; 18 A. 652.
    Surety, like any other contracting party, will suffer from his own laches ; and if he neglect all his remedies, cannot throw his loss on the creditor. C. C. 3057 ; 3 A. 682 ; 4 E. 420.
    D. Caffery for Defendants.
    First — Where a partnership is sued, alleged to be composed of A and B, and the proof does not show clearly who are the partners, when the partnership is expressly denied, the action falls.
    Second — Where a planting partnership is sued on a note, executed in the name of the partnership without any authority, no recovery can be had thereon against an alleged partner disputing the authority of the unauthorized agent, unless it appears that the consideration of the note inured to the benefit of the partnership.
    Third — No recovery can be had as against an alleged member of a planting partnership on a note so executed, when the money borrowed on it was applied to the payment of a note given for the price of land, bought by the drawers as individuals, dehors the partnership. A benefit to the individuals of a partnership dehors their partnership relations, is not a benefit of the partnership, and vice versa.

    Fourth — Where a note is then drawn, with sureties and a pledge to secure the same by notarial act, under Act No. 66 of 1874, no recovery can be had thereon against the sureties, when the payee permits a diversion of the funds from the purposes for which they were borrowed, and suffers the crop to be shipped to the prejudice of the sureties. The sureties, on paying the holder, could not be subro-gated to all his rights, and when the crop was about being, and was actually, shipped before the maturity of the note, the payee was bound to see to it that the sureties were protected by holding on to the pledge. Permitting the crop to be shipped, under such circumstances, is an act which will release the sureties.
   The opinion of the Court was delivered by

Levy, J.

John N. Pharr, in his petition in this suit, seeks to recover of Michael McHugh and Mrs. Susan W. Harbour, wife of L. D. Yinson, comprising the planting firm of McHugh & Yinson, as principal debtors jointly, and Henry J. Sanders in his individual capacity, and as curator of the estate, of Richard Stout, deceased, (Stout having died during the pendency of this suit), the said Sanders and Stout being sureties in solido, the sum of $4000, with eight per cent interest per annum, from February 10th, 1879, subject to a credit of $1722 67, paid February 7th, 1880.

He also claims of McHugh & Yinson five per cent on the amount sued for as attorney’s fees. The plaintiff alleges a planting partnership between McHugh and Mrs. Yinson. The defendant, Mrs. Yinson, admits this partnership. The defendant, McHugh, denies it, and avers that he never consented to be bound by the note given to Pharr, and that it was signed for him, and in his name, as a member of the purported or pretended partnership, without his knowledge, and that he never, subsequently, ratified the same.

At the time the note sued on was given, an act of pledge was executed, signed by L. D. Vinson as “ Agent and Attorney in fact of his wife, she being a member of the planting partnership of McHugh and Yinson, who declared that, whereas John Pharr of said parish had this day advanced to said firm of McHugh & Yinson the sum of four thousand dollars, in lawful current money, etc., for which amount he hereby acknowledged that said firm is indebted unto the said Pharr, the said sum ■ being advanced to them to enable them to purchase supplies, etc., necessary- for the cultivation of a crop of cane and corn on the Oamperdown plantation, etc.” The act also recites that “ this indebtedness is represented by a promissory note of even date therewith, made payable to the order of said Pharr for the sum of $4000, signed by said L. D. Yinson, for McHugh and Yinson and it further contained a stipulation to pay five per cent on the amount sued for, in case of suit for the recovery of said note or any part thereof; there was also an acknowledgment of a lien or privilege on the crops grown on said plantation during the year 1879, and an obligation to ship the sugar and molasses thus raised whenever and wherever the said Pharr may designate, the proceeds whereof to be applied to the extinguishment of said note. Henry J. Sanders for himself and as curator of the estate of Stout, the sureties, filed an.answer in which he admitted that he had signed the note sued on, but averred “ that he had done so in error, that he was under the mistaken belief that there was a planting partnership between McHugh and Mrs. Yinson, which in point of fact never existed that, the plaintiff had a privilege and pledge on the crop of the plantation for the year 1879, it being upwards of 100 hogsheads of sugar and 150 barrels of molasses, etc., which plaintiff by virtue of the pledge had in his possession, the value of which exceeded the amount of the note sued on ; that by plaintiff’s laches he had permitted the crop to be taken away and disposed of by McHugh and Mrs. yinson, whereby his right of subrogation to all of plaintiff’s securities was lost and destroyed. He, specially, avers, that “ he would not have signed the note sued on had he not believed in the existence of the alleged partnership, the existence of which he denies, and if it does exist, then he is released by reason of the laches of plaintiff; and he would not have signed the aforesaid note had he known that L. D. Vinson was without authority to bind the aforesaid firm.

There was judgment in the court below against McHugh and Mrs. Vinson as claimed, and against the firm of McHugh & Vinson, and rejecting the plaintiff’s demand against Dr. Sanders and Richard Stout.

The plaintiff Pharr and defendant McHugh have both appealed.

The reasons given by the judge a quo are, to our minds, conclusive as to the existence of the partnership. The testimony of the defendant McHugh, himself, establishes nearly all the essential elements of partnership, the purchases made by the several parties, the division of the crops between them, the expense of which was borne by them, the testimony of Mrs. Vinson, the signature of McHugh to a due bill in the name of McHugh «fe Vinson, all show that he held himself out by words and deeds as partner, and is bound thereby. The evidence as to the authority from McHugh to L. D. Vinson to execute the note sued on, and as to his ratification of the note or loan from Pharr, is vague and not sufficiently definite or clear to enable us to arrive at a decision thereon. Whether su.ch authority to execute, or subsequent ratification by Mc-Hugh, was or was not made, does not in our opinion affect the liability of the sureties to Pharr, as we herein show. But we think that as the ' sureties are entitled to an opportunity to show the authority and ratification by McHugh in order that if they were made they may have their recourse against him, the ends of justice would be promoted by remanding the case for the purpose of the decision of those matters.

In regard to the liability of the sureties, the defenses urged are the non-existence of a partnership between the principal obligors, the belief in which caused the sureties to sign the note. This belief was well founded; the partnership did exist and this defense cannot prevail. The want of authority in Vinson to sign the note for the partnership firm is also alleged as a ground of release. The reasons of the District Judge on the first point are cogent and conclusive, viz: “ Having signed the note with Vinson as agent of McHugh & Vinson, they admit the partnership and Vinson’s authority and cannot now impeach it.” The failure of the plaintiff to enforce compliance with the stipulations and covenants of the pledge is urged also as operating a release of their liability. These stipulations were really more in the interest and for the benefit and protection of the sureties than the plaintiff. The sureties allege that the crop which was pledged far exceeded in value the amount of the note, yet it is shown that Pharr positively refused to make the loan of the $4000 on the bare security of the pledge of the crop, and agreed to do so only on the condition that Sanders and Stout would become sureties on the note. The pledge was an additional security which, it is evident, did not influence him and induce him to lend his money. Sanders evidently regarded the pledge as enuring to .his benefit, for we find him calling on Pharr and requesting him, or, as he says, “ urging him to take some action to seoure himself (Pharr) on the crop pledged. The inaction or mere failure in this regard did not constitute such act as would release the sureties. 28 An., Case vs. Sarpy; 29 An. 844, and cases therein cited.

The act itself sets.forth that “Pharr has this day advanced to the firm of McHugh & Vinson the sum of four thousand dollars to enable-, them to purchase supplies, etc., for the, cultivation of a 'crop,” etc.

Pharr advanced the money; this was done to enable them to purchase supplies. They got the money from Pharr; that was what Pharr agreed to do; it would doubtless have enabled them to purchase supplies; they were to make the purchases which he had enabled them to do, if they chose, with the money advanced, or rather loaned, but he was not bound to supervise or direct the expenditure of the funds. We do not think the reasons given by the District Court for his judgment releasing the sureties justify their release.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court giving judgment against Mrs. Susan W. Harbour, wife of Lorenzo D. Yinson, be affirmed; that the judgment rejecting plaintiff’s demand against Henry J. Sanders as surety on the note sued on and as curator of the estate of Richard Stout, also surety, be annulled and reversed, and that there- be judgment in favor of the plaintiff, John W. Pharr, against Henry J. Sanders, personally and as curator of the estate of Richard Stout, deceased, in solido, for the sum of four thousand dollars, with eight per centum per annum interest thereon from the 10th of February,'1879, subject to the credit of seventeen hundred and thirty-two 67-100 dollars, paid February 7th, 1880; that the judgment against Michael McHugh, individually and as a member of the planting partnership of McHugh & Yinson, be set aside and this case be remanded to the District Court of the parish of St. Mary for trial as to the issues growing out of his alleged authority for the execution of the note sued on and his alleged ratification thereof, and the alleged benefit enuring to him out of the money advanced on said note, with reservation of the right of the sureties on said note to their recourse against the said- McHugh, growing out of their said suretyship, and that the appellees do pay the costs of this appeal.


author: Fenner. J.

text:
    No. 1081.
    Joseph O. Carlin, Administrator, vs. M. T. Gordy, Sheriff, et al.
    "When tlio mortgage creditor converts bis proceedings via executim into a suit via ordinaria, tlie seizure terminates ipso facto.

    Tlie recording at tlie mortgage office of tlie Parish in -which the purchaser resides, of a promissory note given "by him for the price of a “sugar mill and machinery,and so expressing it on its face, is sufficient to preserve the vendor’s privilege against third persons.
    The subsequent setting up of this mill and machinery on the purchaser’s plantation, converts them into immovables by destination, but the conversion does not operate to the prejudice of the vendor’s privilege.
    And, in as much as the mill and machinery can be detached and removed from the plantation without injury to the soil or structures, the said vendor has the right to seize and sell them separately from the land, notwithstanding a subsequent special mortgage on the plantation.
    APPEAL from the Nineteenth Judicial District Court, parish of St. Mary. Goocle, J.
    Eobt. S. Perry for Plaintiff and Appellant.
    First — To preserve vendor’s liens as against third persons, the public record must contain on its face a substantial description and identification of the the thing affected. The words “ for balance due on a sugar mill and machinery ” is not a sufficient identification.
    Second — If there be no lien as between the seizing creditor and the seized debtor, a mill and machinery attached to land cannot be seized and sold separately from the land.
    Third — If there be lien as between the parties, but none as to third persons, the thing cannot (third person interested opposing) be seized • and sold separately from the land, and this the more especially where such third person opposing is a mortgage creditor, his mortgage affecting the land and the thing as a whole.
    Fourth — In such latter case, the third person interested would be entitled to enjoin to prevent an injury.
    Fifth — One seizure of a property having been effected and enjoined, the property cannot be sold on a ft. fa. issued in favor of another creditor, during the-pendency of such first seizure and of the injunction.
    Sixth — On dissolution of an injunction on the ground that while the seizing creditor had no right to seize and sell, no injury would result to the plaintiff in injunction) damages for attorney’s fees should not be accorded to defendant in injunction.
    Gates & Foster for Defendants and Appellees.
    An injunction is not the remedy to discuss the rights of different creditors claiming privilege and mortgage upon the same property.
    One who claims a mortgage on certain property has no right to enjoin the execution of a judgment recognizing a privilege on the same property and decreeing its sale.
    An injunction will only be allowed when the party claiming it can show some damage or injury he may suffer.
   The opinion of the Court was delivered by

Fenner. J.

This is a contest between Mrs. Birg, one of the defendants, holding a judgment against E. Carlin recognizing a vendor’s lien upon a sugar mill and machinery now attached to the latter’s plantation, and plaintiff, a creditor of said E. Carlin, having a special mortgage on said plantation.

Plaintiff had seized the plantation under executory process, but, upon injunction being taken out by the debtor, he filed answer thereto, converting his proceeding from an action vid exeeutivd to one vid ordinaria.

Although his seizure had not been formally released, we think this operated an abandonment of his executory proceeding, and ipso facto terminated the seizure thereunder. We have, therefore, no concern with him as a seizing creditor but solely as holder of a special mortgage.

Mrs. Birg issued a writ of fieri facias upon her judgment, under which, in accordance with the express terms of the judgment, the sheriff seized and advertized for sale, the sugar mill and machinery upon which the vendor’s privilege was claimed and recognized. Therupon plaintiff herein instituted the present injunction proceeding to restrain and prevent the said sale.

From the judgment of the District Court dissolving the injunction with sev.enty-five dollars damages as attorney’s fees, the plaintiff has appealed.

The view we take of the merits of the case dispenses us from the necessity of considering the propriety of the remedy by injunction, as a question of practice.

We shall discuss and determine the direct question: whether or not the defendant had the right to seize and sell the sugar mill and machinery, separately from the land, in execution of her judgment recognizing her vendor’s privilege thereon.

There is no dispute that the debt on which the judgment was rendered was for the price of this identical property. It was evidenced by the following note:

February 24th, 1871.

On 1st of January, 1872, 1 promise to pay to the order of J. C. Bow-ser & Co., ten hundred and eighteen 05-100 dollars, with eight per cent interest from maturity till paid. Yalue received — balance due on sugar mill and machinery.

(Signed) E. Carme.

This note was recorded on the day of its date, in the parish where Carlin resided and where his plantation was situated. Plaintiff’s mortgage was executed and recorded on the 8th of March, 1871.

Plaintiff contends that the record of defendant’s privilege is null and void for want of proper description of the thing affected ; and that, therefore, the privilege is without effect as against his mortgage rights.

It is impossible to apply the rules regulating the description of immovable property in the recording of mortgages, to movable property. The law requires that, if the instrument on which the privilege is based be a promissory note or other written instrument, it shall be recorded. C. C. 3348. This was done. The law further requires that “ in all cases of special privileges, the property subject to such privileges must also be described.” Ibicl. We think the description here was sufficient. Suppose the property sold had been so many bags of coffee or barrels of flour, how would they be described so as to distinguish them ? Suppose the name of the maker of the particular mill and machinery had been given, how would that have distinguished them from other mills and machinery of the same maker ? If at the time of the record the mill and machinery had been attached to a particular plantation, that would have afforded some means of identification ; but it does not appear that such was the fact. The record was sufficient to put any one on inquiry. It was not to be supposed that the owner of a plantation had numerous sugar mills. Finding a privilege recorded against a sugar mill and machinery in his name, persons dealing with him touching his sugar plantation had sufficient warning that it might be, and probable was, the mill and machinery on such plantation. We think the record was sufficient.

Defendant had a privilege on these movables, perfectly valid not only as between the parties but against all third persons.

The purchaser subsequently set up this mill and machinery upon his plantation. They were thereby converted into immovables by destination ; but this conversion did not and could not operate to the prejudice of the vendor’s privilege existing thereon prior to their attachment to the plantation.

Troplong discusses this question very fully. Amongst other illustrations he gives the following : “Un ouvrier vend a Titius une cuve, que oelui-ci place dans sa metairie pour l’exploitation de son fonds. Cette cuve devieut immeuble d’aprés l’article 524 du Code Civil. Ce changement de nature, fera-t-il perdre a l’ouvrier son privilege ? Tant que le prix n’est pas payé, le vendeur conserve un droit reel sur la chose. Or, on ne peut admettre que l’acheteur, on imprimant a cette chose une qualitó purement métaphysique, et en changeant sa destination pour sa propre commodité, ait pu altérer les droits precis et intimes du vendeur, et lui soustraire son gage; il n’était en son pouvoir de donner aux choses vendues qu’une destination imparfaite et subor-donnée aux droits du vendeur.” 1st Troplong Priv. et Hyp. No. 113.

The evidence fully establishes that the mill and machinery in this case can be removed without damage to the sugar house ; and the case falls fully within the facts and principles of the case of Lapéne & Jacks vs. McCan, 28th An. 749 — the doctrine of which case is much more satisfactory to our minds' than the contrary doctrine of Gary vs. Burguiéres, 12 An. 227, where we think the Court puts too narrow an interpretation upon the expressions of Troplong. The concurring opinion of Justice Wyly, In the case of Lapéne and Jacks, while perhaps too broad in its general statements, we think is thoroughly correct so far as it applies to movables, which, though attached to a plantation, are capable of removal without damage to the structures in which they are contained, or with which they are connected. In such case there is no reason why the vendor’s privilege which attached to them as movables prior to their beiDg placed on the plantation should not continue in force and why they should not be separately sold in satisfaction thereof.

The privileges resting upon movables are, in some cases, affected by the changes which may take place in the nature or destination of the things. But such changes must be so radical as to create a new species of thing and destroy that species which originally existed — as,. to use the illustrations of Cujas, when a pine or cypress log is converted into a ship, or when wool is converted into a garment, or when marble is made into a statue.

In the case at bar, the mill and machinery have suffered no such change by the use which the vendee has made of them. They remain the mill and machinery which were sold; and the privilege subsists in all its force. Had their destination as immovables been effected in such manner as to preclude their detachment without injury to independent rights of ownership in the soil or structures, the privilege might have been subjected to such limitation in its exercise as would prevent the separate sale or removal of the thing subjected to it. But where, as in this ease, no such difficulty exists, or, if at all, to an inappreciable extent, we see no reason for imposing any restriction upon the rights of the privileged creditor.

The privilege of the vendor is founded on the right of property. Payment of the price is essential to the vesting of an indefeasible title in the vendee. The vendor’s rights to, and securities for, the payment ■ of the price have always commended themselves to The favorable consideration of our courts.

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


text:
    No. 1075.
    In the Matter of the Succession of Mrs. E. Geisler. On Opposition of L. Rombach, Tutor, etc.
    A minor is not entitled, under the homestead law, to the $1000, from the succession of his grandmother. Decision in Succession of Coleman, 27 An., 280, overruled.
    APPEAL from the Nineteenth Judicial District Court, parish of St. Mary. Goode, J.
    D. Caffery for Appellant.
    A minor grandchild of a deceased person cannot be said to be in necessitous circumstances when the father of the child is living, robust, and with a good trade, and supports and educates the child.
    All homestead grants and exemptions being in derogation of common rights, must be strictly construed.
    Wilson & Connella for Appellee.
   The opinion of the Court was delivered by

Fenner, J.

Opponent in this case, as natural tutor of his minor, child, claims $1000 from the insolvent succession of the deceased grandmother of the child, under the provisions of article 18252 of the Eevised Code. That article confers upon “ the widow or minor children of a deceased person, left in necessitous circumstances,” no other riglit whatever except the right “ to demand and receive from the succession of their deceased father or husband a sum which, added to the amount of property owned by them, or either of them, of their own right, will make up the sum of $1000, which said amount shall be paid in preference to all other debts, except those for the vendor’s privilege, and expenses incurred in selling the property.”.

The meaning'of the article, so far as it designates the succession against which the demand may be made, is as clear as language can make it. To translate a vigorous French expression, it “jumps to the eye.” It is “ from the succession of their deceased father or husband.” The minors would have no more right to claim the amount from. the succession of their deceased mother than from the succession of their deceased aunt. Yet here we have a minor child, whose father is living, claiming this bounty from the succession of the mother of his mother.

The motive of the law is equally transparent. It is to save the widow or minors from absolute destitution upon the loss, by death, of their natural supporter and protector. We admit that, upon the death of a widowed mother, the reason of the law would equally apply to her minor children dependent on her for support; but, even in that case, the language of the law is too clear to permit their claim against her succession.

The case at bar, however, is in no respect within either the letter or spirit of the law.

We take it for granted the learned judge a quo considered himself precluded from opening this question by the decision of this Court in the case of the Succession of Ooleman, 27 An. 289. That decision is without foundation in law or reason, and presents no ground for the application of stare decisis. We, therefore, overrule it.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that the opposition of Laurence Rombach, natural tutor of his minor child, George Emile, be overruled and dismissed, opponent paying costs in both courts.

On Application nob Rehearing.

Our inadvertence in omitting to pass on the motion to dismiss in our opinion rendered herein is of no consequence; since the appeal being from a judgment homologating a tableau of distribution wherein the fund to be distributed far exceeded $1000, it was within our jurisdiction under the express terms of the Constitution, article 81.

The rehearing applied for is, therefore, refused.


text:
    No. 1073.
    Thomas P. Miller vs. Odile Montagne and Husband.
    The rale that, when a party seeks to annul a tax-sale, he must, as a condition precedent, tender to the purchaser the amount paid by him to the tax collector, does not apply when the precise amount to he reimbursed, is not shown and forms part of a larger amount of taxes due confusedly on the property sold and other property of the former owner.
    A PPEAL from Twenty-Fifth Judicial District Court, parish of Yer-IX million. Mouton, J.
    F. R. King for Plaintiff and Appellant.
    First — A real tender is unnecessary when the offer to pay is peremptorily refused.
    Second — A want of tender set up in limine litis against a suit for the nullity of a tax sale should not be maintained, if the amount is not apparent or made to appear.
    Third — Where there have been no notice and gross irregularity in a tax sale, the owner can be compelled to refund to the purchaser only so much of the price as was really due and paid for taxes on the property purchased, and such taxes clearly shown to have been paid on the property subsequent to the sale. The onus is upon the purchaser to show such payments.
    W. W. Edwards for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

This is an action to annul a tax-sale of sixteen hundred and thirty-five acres of land.

Defendant filed two exceptions to the action, viz :

1st. That the taxes, penalties and costs of said forced sale amounted to seven hundred dollars, and the taxes accruing on said lands since said sale amounted to the further sum of four hundred dollars, all of which sums have been paid by defendant and enured to the benefit of the owner of said land; and that said plaintiff has made no offer or tender of the amount so paid by defendant, which tender or offer is a condition precedent to the institution of this suit.

2d. Plaintiff has filed no authenticated copy of patent or title papers, and 'defendant cannot further answer without oyer of said patents, which she craves and prays to be dispensed from further answering until said patents are filed in court.

Upon these exceptions the case went to trial and voluminous evidence, pro and con, was heard, as to the amount and mode of payments, of the taxes, penalties and costs alleged to have been paid by defendant, and tender of which by plaintiff is claimed to be a necessary condition precedent to his suit. The lower court rendered an unqualified judgment, as follows: “It is, therefore, ordered, adjudged and decreed that there be judgment maintaining the exceptions of defendants and that plaintiff’s suit be dismissed.”

The effect of this- unqualified judgment upon the first exception, thus rendered on “the law and the evidence,” is to establish judicially the allegations thereof, and, in effect, to decree that defendant has paid the sum of eleven hundred dollars in taxes, penalties and costs on the land involved, which enured to the benefit of the owner, and that the offer or tender, by plaintiff of the amount so paid by defendant, is a condition precedent to the institution of a suit to annul the sale.

Now the evidence conclusively establishes, and defendant does not pretend to deny, that the amounts alleged in the exception to have been paid, so far as shown to have been paid at all, were paid as the gross amount due on large quantities of land of which the lands owned and here claimed by plaintiff formed but a small proportion; and that the utmost that could be claimed to be tendered by plaintiff before bringing his action, would be the proportion of these sums which properly belonged to his land'. It is, therefore, clear the judgment, as rendered, is incorrect and must be reversed.

Proceeding to consider what judgment should have been rendered, we admit the general principle that a party seeking to annul a tax-title prima facie vali’d, must first tender to the purchaser reimbursement of the sums paid by him in discharge of his bid and which enured to the benefit of the attacking party, and this principle would, perhaps, extend to proper taxes on the property paid by the purchaser while in possession. ,

Blanton vs. Ludeling, 30 A. 1232.

Barrow vs. Lapene, id. 310.

In the last-mentioned case it is further said: And if this want of tender is pleaded in limine, and the amount is apparent or made to appear, plaintiff should not be allowed to sue until it is tendered. But before such an exception can be sustained, it must surely be made to appear to the Court that there is reimbursement due.”

In the case at bar, so far as the amount of the bid is concerned, the evidence leaves it doubtful whether any reimbursement is due by plaintiff, because although sold confusedly with a mass of other lands as the property of one Wm. B. Hamilton, it does not appear that it was included in the assessment of the lands of Wm, B. Hamilton. Further, if any reimbursement be due, the amount thereof is only a proportion of the amount paid, which could not be ascertained without calculation from data not altogether certain, which plaintiff could not be required to make.

As to the taxes subsequently paid by defendant, they likewise are assessed and paid on 8000 acres in gross, claimed to include the 1635 acres here involved. The proportion due on the latter, is here again the subject of calculation upon yet more uncertain data.

The defendant has not himself fixed in the evidence, or even in argument, the precise amount which he claims to be due on these accounts. If the plaintiff were to make a calculation and make a tender, non con-stat that defendant would not dispute the correctness of his calculation, and a tender of less than the amount due would be equivalent to no tender at all. The only amount ever fixed by defendant as due is that claimed in his exception, which is patently erroneous and excessive.

Furthermore, we think the offer of King to pay what had been paid by defendant on account of taxes, and the unqualified refusal of defendant, through her agent and husband, to accept anything less than a price of seventy-five cents per acre for the land, rendered any further tender vain and useless and dispensed with the necessity thereof.

The first exception must therefore be overruled, leaving the defendant to set up her claims for reimbursement by way of reconvention.

As to the second exception, the maintenance thereof goes, not to the dismissal of the action, but merely to require production of the titles of which oyer is craved, and to dispense the defendant from answer until the production thereof.

It is, therefore; ordered, adjudged and decreed that the judgment appealed from be avoided and reversed ; and it is now ordered that the first exception of defendant (to the want of tender) be overruled, without prejudice to defendant’s right to demand reimbursement, in case of eviction, of such sums as he may have lawfully paid on account of price of adjudication or taxes on the property inuring to the benefit of plaintiff ; and that the second exception be sustained so far as to require the plaintiff to produce his titles of which oyer is craved and to dispense the defendant from answering until the production thereof; and that this cause be remanded to be proceeded with according to law, defendant and appellee paying costs of this appeal and of the exception in the lower court.


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    No. 1087.
    Mayor and Trustees of St. Martinsville vs. Steamer “ Mary Lewis ” and Owners.
    The power to erect wharves and other artificial facilities on the banKs of navigable rivers, and charge tolls for the rise of the same, is a franchise which a municipality can only derive from legislative grant. The Act of incorporation of the town of St. Martinsville-contains no such grant.
    APPEAL from the First Justice’s Court, parish of St. Martin. DeBlancr J. P.
    Mouton & Martin for Plaintiffs and Appellants.
    A municipal corporation, owning improved wharves and other artificial .means, which it has provided and maintains at its own cost, for the-benefit of those engaged in commerce on the public navigable waters of the United States, is'not prohibited by the National Constitution from charging and collecting from those who use its wharves and other facilities, such reasonable fees as will fairly remunerate it.
    The sum that is thus charged and exacted by cities and towns is in no-just sense a tax or license, but only a contribution or fee for the privilege of using those facilities, and a remuneration of the advantages derived therefrom.

      A tax or license is equal and uniform when it applies to all under the same circumstances, making no exceptions, and operates uniformly on the class to which it applies.
    Jos. A. Breaux for Defendant and Appellee.
    First — Corporations can make no improvements on river banks within their limits, nor collect dues or any charge whatever, unless especially authorized by the legislative branch of the government.
    ■Second — They cannot charge wharfage and other dues, unless it be for an equivalent.
    Third — When they have authority to impose licenses or levy taxes, they cannot disregard every principle of uniformity and equality.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiffs sue defendants for a tax levied under the following ordinance:

“ Be it resolved, that the sum of two dollars and fifty cents will be charged and collected from each and every steamboat landing within the limits of the corporation.”

The legislative authority, in virtue of which the town claims the right to pass this ordinance, is the ninth section of the Act of incorporation, approved April 6th, 1843, in words following: “ That the said trustees are hereby authorized to levy and collect for the use of said town, in such proportions as may appear to them just and equitable, a tax on the following description of persons and property, to wit:

“ Landholders, house-holders, free-holders, retailers of merchandize ■and spiritous liquors, tavern-keepers, private boardings, bar-keepers, keepers of billiard tables, grog-shops, hawkers and peddlers, theatres, shows, plays and exhibitions of every description, boats and water-crafts, steamboats when laying at the port and public landing of said town.”

The objections to the tax claimed under the ordinance, as a tax on property, are too obvious and manifold to require serious comment.

It cannot be considered in any other light than as a special tax in the nature of a toll or contribution for the privilege of “ landing within ■the limits of the corporation.”

Under the Constitution and laws of the United States, it is now ■settled that the banks of navigable rivers are free for the uses of navigation, and that it does not lie within the power of States or municipal ■corporations to impose taxes on the mere privilege of using them.

Cannon vs. New Orleans, 20 Wal. 579.

Such a contribution cannot be maintained except “ as a compensation for the use of wharves or other artificial facilities provided and maintained at the expense of the corporation.”

Packet Co. vs. Keokuk, 95 U. S. 88.

The allowance is made exclusively on the principle o£ compensation for advantage gained and expense incurred.

The right to erect such wharves or other artificial facilities and to charge a toll or wharfage-tax for the use thereof, is a franchise which can only be derived from legislative grants. It is said by Judge Dillon to be a power “ of a special and extra-municipal nature,” “not strictly one relating to municipalities,” and only enjoyed under express legislative authority.

Dillon Mun. Corp., Secs. 67, 74, etc.

In all the cases in which the existence of such powers in municipal corporations has been recognized, it will be found that the legislative authority has been express and unequivocal, and that the power to erect wharves or provide other artificial facilities, and the power to charge fees or tolls for the use thereof, are conferred together and in such connection as to make the right to charge the fees entirely contingent upon the duty of providing and maintaining the artificial facilities referred to.

We find in the Act of incorporation of the town of St. Martinsville no power granted to erect wharves or provide other artificial facilities for the landing, and no power to exact compensation for the use thereof.

In view of the entire absence from the Act of any reference whatever to wharves or other landing facilities, and the absence of any interdependency whatever between the power to levy the tax claimed and the duty to provide and maintain the said facilities, we think it would be a most violent deduction to imply from the vague and obscure language of the ninth section of the Act, the grant of the specific franchise to provide and maintain wharves and other landing facilities and to charge tolls or fees for the use thereof.

Upon the doctrine and authorities recognized by us in the case of New Iberia vs. Migues, just decided, we cannot resort to implication in such a case.

The power to exact such tolls is a restraint upon the freedom of navigation and is liable to abuse; and the corporation seeking to enforce such exaction must present a clear legislative authority for the purpose.

Moreover, even if we were to adopt the most liberal construction of the corporate power, the evidence does not satisfy us that the town has provided or maintains such artificial facilities for landing as would, in any event, sustain the charge of the tolls claimed.

The only serious improvement shown to have been made, is the construction, many years since, of what is called a “ turn,” being, as we infer, a widening of the bayou by the digging out of a recess in the bank. It is an ancient work, the cost and. extent of which are not shown, no doubt long since paid for; and we do not think it could confer upon the town the right of charging' a perpetual toll. The town has provided no wharves and no other artificial facilities of a character to justify a charge for the use thereof ; and defendant, it appears, is not even using the slender facilities provided.

The trifling facilities shown in the proof are such only as the most ordinary municipal prudence would provide in the interest of the town.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed at appellants’ costs in both courts.


text:
    No. 1074.
    Caroline Burgess et al. vs. M. T. Gordy, Sheriff, et al.
    Xhe creditor •witli special mortgage has the right to foreclose it on a part only of the property mortgaged, and is not compelled to make the whole of said property contribute to the payment of his debt.
    It is not an open question any moro, that when a writ of seizure and sale is arrested by injunction and the injunction afterwards dissolved, the seizing creditor cannot obtain his damages by the judgment dissolving the injunction, but must bring an action on the bond.
    A PPEAL from the Nineteenth Judicial District Court, parish of St. Mary. Goode, J.
    A. C. Allen for Plaintiffs and Appellants.
    D. Caffery for Defendants and Appellees.
    First — Where one proceeds via exeouiiva under a mortgage with the pact de non alienando against property in the hands of a third possessor, the latter can urge no defense that the mortgagor could not. Louque’s Digest, p. 442, No. 11.
    Second — The mortgage is indivisible, and clings to each and every portion of the mortgaged property. 0. 0. 3282.
    For that reason, where the mortgage has been released on a portion of the property mortgaged, it clings, in its entirety and indivisibility, to the remaining portion. 10 R. 45 ; 31 An. 789, Powell vs. Hays.
    Third — One who promises to pay the vendee’s mortgage, in his purchase of the mortgaged property, is not, properly speaking, a third possessor. Louque, p. 442, No. 10.
    Fourth — When an injunction is sued out against an order of seizure and sale, and the injunction is dissolved, judgment in solido for damages against the principal and sureties on the injunction bond should be 'rendered, according to Art. 304, Bev. O. P., vide 10 'La. 517, McMillen vs. Gibson ; 6 B. 450 ; 8 An. 457 ; 12 An. 237.
   The opinion oE the Court was delivered by

Levy, J.

T. M. Lanahan, acting under a power of attorney from its owners, on the 4th of February, 1876, sold to W. S. Torian a plantation, in the parish of St. Mary, lying on both sides of the Bayou Teche. The consideration of this sale was the sum of 120,000, of which $5000 was paid in cash, and for the balance the purchaser executed his four promissory notes, one for $1000 payable on May 4th, 1876, and the others for $4666 66f each, payable respectively on the 4th of February, 1877,1878 and 1879. On the 17th of February, 1876, Torian sold to'H. J. Sanders and wife, jointly, that portion of the plantation- lying on the east side of the Teche, for the price of $11,000, of which $6000 was paid in cash, and for the balance of $5000 'they gave their two notes of $2500 each, payable respectively one and two years from day of sale.

On the 19th of April, 1876, Torian sold to Adolphus Maes, Robert Maes and L. N. Burgess, in équal undivided ownership, the portion of the plantation lying on the west side of the Teche, for the price of $13,000, of which $5000 was paid in cash, and for the’ -balance of the purchase money they assumed the payment of Torian’s note to Lana-han for $4666 66|, falling due on February 4th, 1879, and $3333 331 on a credit to 1st of January, 1877, for which no note was given.

The sale from Lanahan to Torian was with the pact de non alien-ando, and the notes for the credit terms were, in the act of sale, secured by special mortgage and vendor’s privilege.

On the 13th of December, 1877, Burgess, by dation en paiement, conveyed his third of the property bought from Torian to his wife, Mrs. Caroline Burgess, who’also bought, on 23d March, 1877, from Adolphus Maes his third of the plantation on the west side of the bayou.

In February, 1879, Lanahan obtained an order of seizure and sale to satisfy the note for $4666 66§ due 4th February, 1879, it being the note of Torian given for part of the purchase price, the payment of which had been assumed by Burgess, and A. & B. Maes, in the Act of 19fch April, 1876. That portion of the plantation lying on the east side of the bayou, acquired by Torian, and sold to Sanders and wife, was- released from seizure by the plaintiff, who confined th.e execution of the writ to the land on the west side of the bayou, then in the possession and ownership of Mrs. Burgess and Robert Maes.

Mrs. Burgess and Maes obtained an injunction inhibiting the sale of the property which had been seized. The injunction suit was tried, and by judgment of the Nineteenth Judicial District Court it was decreed that the injunction be dissolved, with costs, that the sale enjoined be proceeded with according to law, and that defendant’s right Of action on the injunction bond for damages be reserved to him.

The appellee, in his answer to this appeal, asks that' the judgment of the lower court be amended, and that this Court may render judgment against the principal and sureties on the injunction bond, for special damages as attorney’s fees of $400, and ten per cent legal damages on the amount of the note on which the writ is based, and that in other respects the judgment be*maintained.

The allegations furnishing the ground on which the appellants sought their injunction, were as follows:

1st. Want of notice to pay or notice of seizure to plaintiffs in injunction.

2d. Because the note, the payment of which is sought to be'enforced by the writ of seizure and sale, is not the property of the seizing creditor, Lanahan, who cannot, therefore, sue as owner.

3d. That the note is secured by a mortgage on the whole planta- . tion lying on both sides of the Bayou Teche; that the property seized and advertised for sale is only a portion of that mortgaged to secure the payment of the note; that the mortgage rests on the whole property, and plaintiff cannot sell a portion of the mortgaged premises to pay the entire mortgage debt, which rests alike on the whole ; that the whole property should contribute to the payment of the debt, and should be seized as an entirety, arid that the mortgage cannot be divided, being, in its nature, indivisible.

The only one of these grounds on which there is any testimony in the record, or which sc erns to have been seriously or earnestly contended for by the appellants, is that in regard to the indivisibility of the mortgage as affecting the right to proceed under the seizure and sale against the portion of the plantation owned by the appellants. Appellants strenuously urge their right to have the property which was sold to Sanders and wife subjected to discussion, and indeed the claim of discussion seems to us to constitute the gist, if not the sole object, of this litigation, as far as appellants are concerned. It is very clear to us, that the right of discussion which a third possessor under certain circumstances is entitled to cannot be exercised by appellants in this case. This plea cannot be invoked in a case in which a special mortgage-is:sought to be closed on property affected by the clause of non alienation. In Bayley vs. Tate,' 10 Rob. 45, the court held: “ The position that, as there was other property, subject to the same debt, which had been surrendered by the mortgagor, no recourse could be had against the plaintiff until that was exhausted, or accounted for, is quite untenable. The plea of discussion cannot be opposed to a creditor holding a special mortgage ; nor could it be contended that the property held by the plaintiff was liable only for its pro rata proportion of the debt. Each and every portion of the property mortgaged, is liable for each and every portion of the debt. The mortgage is tota in toto, et tota in qualibet parte.” In Bosley vs. Hayes, 31 A. 789, the foregoing doctrine is distinctly reiterated. In the case before us-there was, as a part of the consideration of their purchase, an assumption, by the purchasers of the property seized, of the note on which the proceedings of seizure and sale were instituted, and in addition .to the' special mortgage securing the purchase price, this same property was-affected by and burdened with the assumption of the note described, and as a matter of fact the appellants were not injured by the direct proceeding on the note, affected by the original special mortgage. Leaving out-of consideration, the verbal agreement or understanding between loria» and Sanders (of which Burgess seems to have been fully cognizant), we-think, under the authorities we have quoted, that the plaintiff in the-proceedings of seizure and sale had the right to enforce his mortgage and vendor’s privilege on the portion of the property held by these-appellants, and was not obliged to enforce it upon the whole of the mortgaged property as an entirety. It is not material to consider whether Burgess acted as agent of his wife or in his own right, in the purchase of the property, or while agent of his wife ; the understanding was had by him that Sanders’ land was not to be affected by the mortgage in favor of Torian ; it is clear, that the assumption by him of the note given for the purchase money bound him, and the property thus acquired by him was burdened with this assumption, and Mrs. Burgess took it-from him cum onere, and he could transfer to her no rights which he did not possess, and as to this property it remained in her hands subject-to all the obligations which he, during his ownership, had imposed on it.

In regard to the claim for damages growing out of the injunction* and its dissolution, we regard the question as no longer an open one-This Court in Dejean vs. Hebert, 31 An. 729, held: “ The order of seizure and sale is so far a judgment, that it can be appealed from ; but it is not-a judgment in the true legal sense of the term ; it does not possess-all its features. It is granted without citation, decides no issue, adjudicates no right in addition to these mentioned in the act, and the party-enjoining such an order can — with his surety — be held liable but by art action on the bond.” So in Thompson vs. Lemelle, just decided at this term, we have maintained this principle, and regard it as sound and settled. The right to claim damages on the bond has been properly reserved to the appellees, in the judgment of the court a qua.

The judgment of the lower court is therefore affirmed, at costs of the appellants in both courts.


text:
    No. 1094.
    Margaret E. Morgan, Wife, vs. Dominique Lalanne.
    Defendant, having a judgment against Plaintiff, as heir of her father, for a certain sum of money, to the extent of her interest in his succession, cannot execute that judgment until Plaintiff’s interest in her father’s succession has been liquidated and ascertained.
    Property of a succession cannot be seized by a writ of fieri facias.

    APPEAL from the Thirteenth Judicial District Court, parish of St. Landry. Hudspeth,'J.
    John E. King for Plaintiff and Appellee.
    Henry L. Garland for Defendant and Appellant.
    First — A benificiary heir is required, after judgment against him, to show that the estate which he inherits is less than the amount claimed of him.
    Second — After assets to sufficient amount to discharge the claim are shown to belong to estate inherited by him, the burden is on him to .show liabilities of the estate.
   The opinion of the Court was delivered by

Levy, J.

The appellant, D. Lalanne, was evicted in suit No. 10,346 by judgment of 12th March, 1877, by one Daniel McDaniel, of certain property which he acquired in 1862 from David Morgan, of whom the plaintiff is the only heir, and of whose estate she is administratrix. In the suit resulting in that judgment of eviction, Lalanne called plaintiff, •appellee, in warranty as administratrix and as beneficiary heir of David Morgan, and there was judgment in his favor over and against her, in these words : “ That defendant, Dominique Lalanne, do have judgment •against his warrantor Margaret E. Morgan, wife of Benjamin Wood-worth, as heir of David Morgan, deceased, and as his administratrix, to the extent of her interest in the estate of her father, said David Morgan, deceased, for and recover over against her thirteen hundred and thirty-three dollars and thirty-three cents, with interest thereon at eight ■per centum per annum from the date of this judgment, and the further sum of two hundred dollars, counsel fees.” In April, 1879, Lalanne took out an execution against the plaintiff, and seized the property of the plaintiff which she had acquired at a succession sale of David Morgan. Thereupon she sued out a writ of injunction, whereby the sale of the property seized was enjoined. The grounds on which she seeks this injunction are : That the seizure is illegal, null and void, and the sale would be illegal and void, because the judgment in said suit is against her as heir of David Morgan, deceased, and as administratrix of his estate, to the extent of her interest in the estate of her said father for $1333 33 with interest, etc., and for the further sum of $200, counsel fees ; that said- judgment cannot now be executed, because the estate of David Morgan is unsettled, and it cannot be determined what her interest as heir is in said estate, and that her interest therein will be very small if any, and she believes is insolvent and nothing will be coming to her as heir. Defendant, herein, in his answer, avers : That if the plaintiff is relievable of payment of a part or whole of said judgment, it was incumbent upon her to establish the fact within the time allowed to her; that having neglected that duty within the time, she is debarred from doing so now, and is unconditionally bound; that the property seized is a part of her inheritance as sole heir of David Morgan, and, if yet in the estate of David Morgan, would be sold to satisfy his debt, which is the debt of the plaintiff, his only heir ; and that she should not hold a property which comes to her directly from the estate of David Morgan and which she seeks by injunction to shield from pursuit of his and her creditor. Defendant prays for dissolution of the injunction, and for damages of ten and twenty per cent, and $100 a* attorney’s fees.

It appears from the record that the succession of David Morgan is still unsettled and is under administration by the appellee. The judgment is against her as heir, and as administratrix of the estate of David Morgan, for the sum of $1333 33, and $200, to the extent of her interest in the estate of her deceased father; her liability as heir is therefore limited by such interest, the judgment against her as administratrix, affects the estate of her father which may be in her hands and under her administrative control. To enforce the judgment against the succession the law points out the proper manner. If there is property of the succession remaining undisposed of, the creditor may obtain an order for its sale with the view to payment of its debts, and .the ad-ministratrix may also be compelled to file an account and distribute the residue after payment of privileged debts among the creditors according to the rank of their claims. Only in the cases, specially provided by law, can specific property of a succession be seized by a mortgage creditor by executory process. As to the j udgment against appellee, Margaret E. Morgan as heir, it is qualified and confined in its operation, “ to the extent of her interest in the estate of her father David Morgan, deceased it is not against her unconditionally, and before it can be executed as to her own property, the extent of this interest must be definitely ascertained. Her liability and responsibility under the judgment is limited to the amount which she may receive as heir. This liability is susceptible of being fixed. The judgment creditor can ascertain it by applying for an order of court whereby she can be required to flle her account of administration and thus show the amount which she has received, or to which she is entitled, as the sole heir in the succession, and his rights as judgment creditor can then be enforced against her both as administratrix and as beneficiary heir, as the condition of affairs may justify. If the effects of the succession have been disposed of, she is responsible for the proceeds, after payment of the debts of the succession on an account duly homologated, and the creditors may proceed against her, as administratrix, and her sureties on her bond as such, if she does not apply these proceeds properly, or he may proceed against her by the seizure of her own property to satisfy his judgment to the extent of the amount shown by the account to have fallen to her as heir, but only to that extent.

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


text:
    No. 7902.
    State of Louisiana ex rel. Heirs of Jacob Hoover vs. Judge of the Ninth Judicial District Court.
   Mandamus refused to compel a District Judge to have a case before him tried by a jury.


text:
    No. 7937.
    State of Louisiana ex rel. Guesnard vs. Judge of the Twenty-Third Judicial District Court.
   Writ of Ceriicn'ari refused.


text:
    No. 7940.
    State of Louisiana ex rel. Van Wickle vs. Judge of the Twenty-First Judicial District Court.
   Prohibition refused.


text:
    No. 7939.
    State of Louisiana ex rel. Bloomer vs. Judge of the Eighteenth Judicial District Court.
   Certiorari and Prohibition refused.


text:
    No. 8037.
    State of Louisiana ex rel. Willis Hopkins vs. W. W. Bradley, Sheriff.
   Application for Habeas Corpus refused on the face of the petition.


text:
    No. 7938.
    State of Louisiana ex rel. J. Benjamin Chandler vs. Auditor, Treasurer, Attorney General, et al.
   Application for Mandamus and Prohibition refused for want of original jurisdiction.


text:
    No. 7953.
    State of Louisiana ex rel. F. Lamarque vs. N. H. Rightor, Judge of the Sixth District Court.
   Application for Prohibition refused.


text:
    No. 7951.
    State of Louisiana ex rel. François Lamarque vs. Judge of the Sixth District Court.
   Application for Prohibition refused.


text:
    No. 7950.
    State of Louisiana ex rel. F. D. Seghers vs. Judge of the Second District Court.
   Application for Mandamus refused.


text:
    No. 6481.
    State of Louisiana ex rel. C. C. Hartwell vs. Geo. B. Johnson.
   Mandamus refused, relator not having proved his case.


text:
    No. 8099.
    State of Louisiana ex rel. Weber vs. N. H. Rightor, Judge.
   The refusal of the lower court to decide in a particular manner cannot be controlled by Mandamus.


text:
    No. 7976.
    State of Louisiana ex rel. F. J. Stokes vs. E. K. Skinner, Judge.
   Certiorari refused.


text:
    No. 7969.
    State of Louisiana ex rel. Henry Dandridge, praying for Habeas Corpus.

   Habeas Corpus refused for want of appellate jurisdiction.


text:
    No. 7892.
    State of Louisiana ex rel. C. F. Falkenstein vs. John Fitzpatrick, Criminal-Sheriff.
   Application for Habeas Corpus refused for want of original jurisdiction.


text:
    No. 7971.
    State of Louisiana ex rel. J. M. Billgery vs. W. T. Houston and the Judges of the Civil District Court, parish of Orleans.
   This Court will not interfere with, tlie discretion of an inferior court in appointing a tutor.

Prohibition refused.


text:
    No. 7538.
    Howard & Preston vs. Patrick A. Finney and Thos. O’Neil.
   Forbearance in suing on a matured note is not such granting of time as, in law, discharges the surety.


text:
    No. 7889.
    State of Louisiana ex rel. W. P. Ames vs. Judge of Second District Court.
   This Court cannot compel the judge of a lower court to render a certain decision, and thus divest him of his judicial discretion.


text:
    No. 6619.
    Alfred Keen vs. S. S. Carlisle.
   This Court has not jurisdiction of this case ratione materice, the ■evidence showing that the amount involved in the principal demand is less than $1000, and that the reconventional demand is plainly fictitious.


text:
    No. 7647.
    Kelly & Lazarus vs. H. S. Buckner.
   Value of lawyers’ services.


text:
    No. 7896.
    State of Louisiana ex rel. Don A. Pardee vs. Judge of the Fourth District Court.
   The rights of the relator have been fully inquired into and finally adjusted in the case of State ex rel. Hernandez vs. Don A. Pardee, Judge, lately decided.


text:
    No. 7699.
    State of Louisiana ex rel. John Pasley vs. Recorder of Mortgages et al.
   ‘The writ of Mccnda/nms Is only intended to enforce a clearly recognized right and compel the performance of a ministerial duty with respect to that right. It is to supply the want of any other adequate remedy, not to supersede the ordinary forms.

'The right to have a privilege or mortgage cancelled cannot he tested unless those having a real or pretended interest he made parties.


text:
    No. 7905.
    No. 7918.
    Sun Mutual Insurance Co. vs. I. W. Patton, Mayor, etc. State of Louisiana ex rel. F. H. Florance vs. A. H. Isaacson et al.
   The relief asked in these eases rests upon the same principles as -those recognized in the case of Moore vs. City of New Orleans, No. 7907, lately decided.


text:
    No. 7752.
    Mrs. E. Weiser vs. Peter Blaise et al.
   On Motion to Dismiss.

Reasons urged for dismissal of appeal insufficient.


text:
    No. 7883.
    Henry Beckemeyer vs. Margaret Eckelman.
   On Motion to Dismiss.

No days of grace allowed -on term granted by this Court to file transcript of appeal.


text:
    No. 7681.
    Heirs of Mallerich vs. Mary Germaine.
   Writs of possession and fieri facias issued under judgment of this Court, arrested by Injunction. The Injunction dissolved and damages granted.


text:
    No. 7619.
    Dr. O. Anfoux vs. M. L. Beebe.
   Appeal dismissed for want of appealable amount.


text:
    No. 8047.
    Bernard Barthe vs. J. B. Camores et al.
   Appeal dismissed by agreement of both parties.


text:
    No. 7895.
    State of Louisiana ex rel. J. J. Finney vs. Judge of the Sixth District Court.
   Writ of Prohibition granted by this Court to prevent the District Judge from entertaining or considering the application for a writ of habeas corpus of a prisoner under sentence of conviction in a criminal prosecution.


text:
    No. 6069.
    James L. Swan vs. City of New Orleans.
   City of New Orleans not responsible for alleged damages because the same resulted from the execution of a contract made by an Act of the Legislature.


text:
    No. 6372.
    J. J. Hays vs. City of New Orleans.
   Suit to enjoin tlie execution of certain, judgments for city taxes, on grounds winch, are held by the Court untenable, except one, via: that the name of the delinquent taxpayer not haying "been correctly stated in the publication which serves for citation, .the judgment rendered, thereon is null: and that in case of such constructive citations the exception needs not he pleaded in limine


text:
    No. 7885.
    State of Louisiana vs. Auguste Mannessier.
   City of New Orleans has no power to punish' by fine and imprisonment the non-payment of licenses on trades and occupations. The Act of 1870, paragraph 19, section 72, only gives it such power for the punishment of trangressions of the police regulations.


text:
    No. 8116.
    State of Louisiana ex rel. Harper vs. Judges Court of Appeals for the Parish of Orleans.
   Certiorari refused on face of the petition.


text:
    No. 7482.
    Succession of Ann Frye. On Opposition to Tableau.
   On motion to dismiss, decided by the late court.

An Administrator appealing from the judgment recognizing the claim of a creditor, is required to give bond for such an amount only as may be fixed by the Judge, to cover costs. Affirming 30 An., 282

On the Merits.

The case presents only issues of fact.


text:
    No. 8008.
    State of Louisiana vs. Sevilla Hall.
   Criminal case in which appellant has made no appearance in this Court, and the record contains no motion for new trial or in arrest of judgment, no bill of exceptions and no as- . signmentof errors.


text:
    No. 8024.
    No. 8075.
    Succession of Françoise Rochinault, Wife of Jean Sabatier. Joseph Raymond vs. Thos. Froeber et al.
   In the two above eases Motion to dismiss appeal denied.


text:
    No. 964.
    State of Louisiana vs. Ben John, alias Ben Lewis.
   Criminal prosecution for burglary and larceny.

Appeal from verdict and judgment.

No bills of exception, no motion for new trial or in arrest of judgment and no assignment of errors : ergo, no complaint before this Court against verdict, sentence or judgment.


text:
    No. 1072.
    Martin Keough et al. vs. Colbert W. Foreman.
   Sait for settlement of partnership. Report of Auditors of account by no means conclusive In suits of this sort the fullest and freest inquiry is demanded, and rales of evidence must be so construed as to facilitate a thorough investigation of the facts.


text:
    No. 1076.
    Morgan’s La. and Texas R. R. and S. S. Co. vs. Bourdier & Bellesein.
   Matter in dispute not exceeding $1000, case transferred to Court of Appeals.


text:
    No. 1085.
    Emile A. Simoneaud vs. Mrs. Amarante Schexnayder.
   This case involves only a question of fact.


text:
    No. 1098.
    Otto A. Weber et al. vs. G. R. Harris et al.
   Tax sale invalid for want of proper assessment. No tender of amount paid for taxes necessary when the exact amount to be refunded is not known, and the amount paid was for taxes upon the property sold and other property of the same owner.


text:
    No. 1103.
    Lucinda E. Stephens, Widow, Tutrix, et al. vs. Ernest Morrow.
   Petitory action. The evidence shows clearly the title of the property to be in defendant.


text:
    No. 21.
    C. Flournoy, Undertutor, vs. J. D. Cawthorn, Sheriff, et al.
   Case remanded for enquiry whether money alleged to have been loaned to a married woman under authority of the judge, was or not, in point of fact, loaned to the husband.


text:
    No. 22.
    A. G. Hodge, Tutor, et al. vs. Tom Grigsby et al.
   City of Shreveport intervening in this case to claim the land in controversy, on the ground that “she then had pending before the Commissioner of the General !Land Office of the United States an application to patent to her said lot No. one,” — discloses no cause of action.


text:
    No. 31.
    State of Louisiana vs. Percy Baker et al.
   Suit on tax-collector’s bond and against the sureties. Defense of the latter on grounds altogether untenable.


text:
    No. 41.
    State of Louisiana ex rel. A. Blum vs. A. Currie, Mayor of the City of Shreveport.
   Prohibition refused.