author: WxLr, J. Howell, L, Ludelixg, C. J.,

text:
    No. 6008.

      The State ex rel. Citizens’ Bank of Louisiana vs. the Funding Board.
    Act No. 2(1, approved February 17,1889, created a conditional obligation of tlio State to' guarantee the second-mortgage bonds of the Now Orleans, Mobile, and Chattanooga Railroad Company.
    Before, however, the condition happened, there was a constitutional amendment adopted in November, 1S70, prohibiting an increase of the State indebtedness beyond twenty-five millions of dollars, and this limitation had clearly been reaelied.
    IC the conditions stipulated in tho act had been complied with when tho Governor indorsed the guarantee ol' the State on the second-mortgage bonds of said company, no debt would be'created’thereby in violation of tlio constitutional amendment then in force, boeauso said indorsement would only evidence a valid obligation of the State incurred prior to the adoption.of tlio constitutional limitation. It would evidence, an unconditional obligation resulting from tho performance by said company of the stipulations contained in said act of i860.
    But if, as the evidence shows, tlio conditional obligation had lapsed when the Governor indorsed tho guarantee on said bonds, that indorsement of guarantee would be tho creation of a now debt, which was prohibited.
    The Governor, in indorsing- tlio bonds, was a fiduciary, discharging tho powers conferred on him by act No. 28 of 1889, but these powers woro modified by tho constitutional amendment supervening between this grant of authority and the oxcr-eiso thereof; and all parties acquiring said bonds wore charged with notice of the authority of tlio fiduciary who indorsed thereon tho guarantee of the State.
    But for the constitutional amendment, the indorsement of guarantee would, under section ten of the said act of 1889, bind the State, as to relator, or any Tjonn, fide third holder of said bonds, whother tho stipulations of said act had been complied with or not by said com puny.
    It tlio General Assembly could not create a debt when the'bonds in question were guaranteed, and that was the, creation of a debt, they could not by enactment provide that tho Governor’s certification of guarantee shall bo the conclusive proof of an indebtedness by tlio State, and thereby out off the j udiciary from inquiry into the validity of tho obligation arising from such guarantee.
    The State could not revive by ratification or otherwise the obligation that had lapsed by the failure of tlio Now Orleans, Mobile, and Chattanooga Railroad Ctomp any to' comply with the stipulations o£ the act ot 1869, because at the date ol the alleged acquiescence tho constitutional amendment was in force. Hence said bonds arc not valid obligations of the State, and can not be funded.
    This court is also of opinion that the funding of those bonds is not provided for by the funding act No. 3 of the acts of 1874.
    If the funding of those bonds had been contemplated, tho Board of Liquidation would not have been required to cancel and destroy thorn, and thereby defeat the possibility of recovering against tho makers of said bonds personally, as well as the right resulting from tho mortgage.
    APPEAL from the Superior District Court, parish of Orleans. Saw-Icins, J.

      Armancl Pitot and (}. L. Sail, for plaintiff and appellee.

      A. P. Field, Attorney General, J. (¿ A. Fellows, and J. B. Cotton, for defendant and appellant.

      Carried by-writ of error to the Supreme Court of the United States.

   WxLr, J.

The relator, the Citizens’ Bank, appeals from the judgment refusing a mandamus to compel the Funding Board to fund the sixty bonds of one thousand dollars each held by the relator, which were issued under act No. 26 of 1869, and are known as “second-mortgage bonds of the New Orleans, Mobile, and Chattanooga Railroad Company, guaranteed by the State of Louisiana.” The defense is: The guarantee is void, because given after tlio adoption of the constitutional amendment limiting the Stato debt to twenty-five millions of dollars, and that limit had,' at tho time of the guarantee, been exceeded; that act No. 26 of 1869, authorizing tho Governor to guarantee tho second-mortgage bonds of said company to the extent of twelve thousand five hundred dollars per mile imposed certain conditions precedent to such guarantee:

First — That tho grant should bo accepted within ninety days.

Second — That the railroad should be located to Houston, Texas, within eight months after said acceptance.

Third — That said corporation was to construct the first section of forty miles and have tho same in running order within one year from the survey and location of the entire line of railroad.

Fourth — That it was to construct and lay the - rails on the entire road to the Sabine river within three years from such survey and location, and to Houston, Texas, within six months thereafter.

That in case of the failure of said railroad company to comply with said conditions, or any of them, said act provides that the obligation of the State shall cease and determine. That said first section of forty miles was not completed within the time required by said act No. 26, to wit: on the eighteenth of January, 1871, nor until long afterward, and no second section, as required by said act, has ever been completed, although the time for the completion of the entire rpad to Houston, Texas, has long since expired.

That on failure to complete the first section of forty miles on or before the eighteenth of January, 1871, the obligation of the State to guarantee said second-mortgage bonds ceased and determined, and the subsequent enactment authorizing such guarantee was in violation of the constitution.

The defense was also made that the bonds held by relator and sought to be funded are not bonds executed by the Slate and authorized to bo funded by act No. 3 of 1874.

The evidence shows that the first section of forty miles was not completed by the eighteenth of January, 1871, the time required by the act; that it was not completed till after the first clay of April, 1871, and that no other sections of the road have been completed, although the time has long since expired for completing the whole road.

Section twelve of said act No. 26 declares that “in ease of failure of the said company to survey, locate, and construct the said main line of railroad within the State of Louisiana in the manner and within the time limited in this section of this act for such survey, location, and construction, the obligation of the State of Louisiana, by virtue of this act, to guarantee the second-mortgage bonds of said company (as in this act provided) for or upon that portion of the said main line of railroad not constructed within the time limited shall cease and determine, and none of said second-mortgage bonds for or upon that portion of said main line of railroad not constructed within the time limited shall be guaranteed by the State of Louisiana.”

Act No. 26, approved seventeenth of February, 1869, created a conditional obligation of the State to guarantee the second-mortgage bonds •of the New Orleans, Mobile, and Chattanooga Railroad Company.

Before, however, the condition happened there was a constitutional amendment adopted in November, 1870, prohibiting an increase of the State indebtedness beyond twenty-five millions of dollars, and this limitation had already been reached.

If the conditions stipulated in the act had been complied with when the Governor indorsed the guarantee of the State on the second-mortgage bonds of said company, no debt would be created thereby in violation of the constitutional amendment then in force, because said indorsement would only evidence a valid obligation of the State incurred prior to the adoption of the constitutional limitation. It would evidence an unconditional obligation resulting from the performance by said company of the stipulations contained in said act of 1869.

But if, as the evidence shows, the conditional obligation had lapsed when the Governor indorsed the guarantee on said bonds, that indorsement of guarantee would be the creation of a new debt, which was prohibited. The Governor, in indorsing the bonds, was a fiduciary, discharging the powers conferred on him by act No. 26 of 1869; but these powers were modified by the constitutional amendment supervening between this grant of authority and the exercise thereof; and all parties acquiring said bonds were charged with notice of the authority of -the fiduciary who indorsed thereon the guarantee of the State. But for the constitutional amendment the indorsement of guarantee would bind the State as to relator or any bona fide third holder of said bonds, whether the stipulations of said act of 1869 had been complied with or not by Said company; because section ten of said act provides that “ the'signature of the Governor to the certificate of guarantee shall bo conclusive evidence in favor of the holder of every bond so certified; that the conditions of this act have been complied with on the part of the company, and that said bonds have been duly made and. regularly-certified and issued, pursuant to the provisions of this act; and every such certificate of guarantee, when so subscribed, shall be a valid and binding obligation of the State of Louisiana in favor of whomsoever shall from time to time be the holder of the bonds bearing such certificate; and the State of Louisiana hereby pledges its public faith and credit to the performance of such guarantee according to its terms.”

The constitutional amendment, however, modified and restricted the powers conferred on the Governor in regard to indorsing these bonds'. After it went into operation, neither the Governor in the exercise of powers previously granted, nor the General Assembly itself, could create a debt. There was no power in any of the departments to create a debt-, because the limitation of twenty-five millions had already been reached.

The Governor could only give the certificate of guarantee in evidence of a valid subsisting obligation of the State arising from the performance by said company of the stipulations of said act twenty-six of 1869. That part of the act making the certification of guarantee by the Governor conclusive proof' that the conditions had been complied with by the company, and that the bonds had been duly made, regularly certified-, and issued, that they shall.be hold valid and binding obligations of the State, and pledging the public faith and credit for the performance of such guarantee, we regard as restricted by the constitutional amendment; and all holders of the bonds are charged with notice of the existence and effect of that amendment.

The Governor who certified the guarantee was a fiduciary, and he could exercise no greater powers than his principal, the General Assembly, could exercise. At that time the General Assembly could not declare a certification of guarantee conclusive proof of an indebtedness of the State; because, if it was not given in evidence of a subsisting valid obligation, it would be the creation of a new debt, in contravention of the constitutional amendment. Aud the Governor could exorcise no greater powers under authority of the General Assembly than that body possessed at the time ho certified said bonds.

The Now Orleans, Mobile, and Chattanooga Railroad Company had failed to complete tlie road in pursuance of tlie stipulations of the act of 1869, and the obligation of the State to guarantee their bonds had lapsed. The certification of guarantee by the Governor was therefore the creation of a new debt under authority given by the General Assembly prior to the adoption of the constitutional amendment. But this power to create the debt was no greater than if it had been given by the General Assembly on the day the certificate of guarantee was signed by the Governor. The constitutional amendment restricted all unexercised powers delegated by the General Assembly, as well as all powers not delegated, in regard to the right to create a debt beyond twenty-five millions of dollars.

If the General Assembly could not create a debt when the bonds in ■question wore guaranteed, and that was the creation of a debt, they could not by enactment provide that the Governor’s certification of guarantee shall be conclusive proof of an indebtedness by the State, and thereby cut off judicial inquiry into the validity of the obligation arising from such guarantee.

What can not be done directly can not be accomplished indirectly.

At the time the guarantee was made, the State could not be bound beyond the limitation of twenty-five millions of dollars by the act of the General Assembly, or by the act of the Governor under authority of the General Assembly, it matters not when the authority was given to him. The extent of this authority must be determined by the extent of the powers of the General Assembly at the time it was exercised by the Governor ; because the mandatary can not exercise greater powers than ■are possessed by his principal. As the General Assembly could not create a debt, or grant a certificate and make it conclusive evidence of a debt, at the time the Governor guaranteed the bonds of the New Orleans, Mobile, and Chattanooga Railroad Company, the-Governor could-not do so under authority of the General Assembly. The date of the certificate ■of guarantee was subsequent to the adoption of the constitutional amendment, and all persons acquiring said bonds were charged with notice of the authority of the Governor to sign the guarantee and with notice of the existence and the effect of the constitutional limitation on the> authority given to the Governor by the act of 1869.

The relator, however, contends that if there was delay in complying with the condition requiring the completion of the first section of the road within the time limited in the act of 1869 objection on account thereof was waived by the acquiescence of the State in the subsequent completion of said section by said company, and this acquiescence amounts to a ratification by the State. The difficulty is, the State could not revive, by ratification or otherwise, the obligation that had lapsed by the failure of the New Orleans, Mobile, and Chattanooga Railroad Company to comply with the stipulations of the act of 1869 ; because at the date of the alleged acquiescence the constitutional amendment was in force.

The hill of exceptions to the evidence admitted to prove the time when the first section of the railroad was completed was not well taken. It was the only means by'which the fact could be ascertained whether the New Orleans, Mobile, and Chattanooga Railroad Company had complied with the stipulations of the act of 1869, and, consequently, whether there was a valid subsisting obligation of the State when the bonds were guaranteed ; and the determination of this question was important, in order to ascertain whether the Governor had authority to guarantee the bonds.

We conclude that the constitutional amendment prohibited the guarantee of the bonds, the obligation of the State to do so under the act of 1869 having lapsed by the failure of the New Orleans, Mobile, and Chattanooga Railroad Company to perform the stipulations thereof; also, that said bonds are not valid obligations of the State and can not bo funded. We are also of the opinion that the funding of these bonds is not provided for by the funding act, being act Nó. 8 of the acts of 1874.

That act provides for the issue of consolidated bonds by the Funding Board; that when prepared “ said bonds shall be exchanged by the Board of Liquidation for all valid outstanding bonds of the State, and all valid warrants drawn previous to the passage of this act, * * * except warrants issued by the Auditor in payment of the constitutional officers of the State, at the rate of sixty cents in consolidated bonds for one dollar in outstanding bonds and all valid warrants.” * * * “ That the consolidated bonds herein authorized shall be held and used by said Board of Liquidation only for the purpose of exchange as aforesaid; said bonds shall be used for no other purpose or purposes than as authorized by this act.” * * * And “ that the bonds and valid warrants'outstanding at the time of the passage of this act shall, as fast as they are received in exchange for consolidated bonds, be canceled and destroyed by said Board of Liquidation.”

In precise terms the act provides for funding the bonds of the State, and.they “shall, as fastas they are received in exchange for consolidated bonds, be canceled and destroyed.” From the language employed the meaning of the act in regard to the bonds to be funded was evidently the bonds issued by the State — State bonds; because when these bonds were received in exchange for consolidated bonds they would cease to be of any use, and it was prudent and-right that they should bo immediately “ canceled and destroyed by send Board of Liquidation.”

It would not, however, bo prudent and right to cancel and destroy the second-mortgage bonds of the New Orleans, Mobile, and Chattanooga Railroad Company, which were guaranteed by the State, if they were received in exchange for consolidated bonds.

Surely the General Assembly -would not direct the canceling and destroying of this mortgage paper made by said company when taken up by the Board of Liquidation, if they intended them to bo taken up in exchange for consolidated bonds.

If the funding of these bonds had boon contemplated, tho Board of Liquidation would not have been required to cancel and destroy them, and thereby defeat the possibility of recovery against tho makers of said bonds personally, as well as tho right resulting from the mortgage.

It is therefore ordered that the judgment herein rejecting tho demand of the relator be affirmed with costs.

Howell, L,

concurring. In the case of the State ex rel. Citizens’ Bank vs. Board of Liquidators, No. 5892, recently decided, wo held that the funding act should be strictly construed, and that only the “ valid outstanding bonds of the State and all valid warrants drawn previous to the passage ” of said act, except certain warrants described, could be exchanged fox bonds created by said act, and by the law the evidences of obligations so exchanged are required to be destroyed. The bonds in this case are the bonds of the New Orleans, Mobile, and Chattanooga Railroad Company, and not tho bonds of the State, and are, therefore, not embraced in the provisions or contemplation of the funding act. The fact that the State lias guaranteed their payment does not, in my opinion, make them the bonds of tho State. It only creates the obligation of the State to pay them, if the company fails to do so. And the obligation may have become fixed without making them the bonds of the State in the contemplation of tho funding act. Had the Legislature intended to include such obligations, it would have used terms to express Such intention.

On this ground I concur in the decree.

Ludelixg, C. J.,

dissenting. This suit is instituted by the Citizens’ Bank of Louisiana to compel tho Board of Liquidators, created by act No. 3 of the General Assembly of 1874, to fund sixty bonds and coupons of the New Orleans, Mobile, and Chattanooga Railroad Company, and indorsed and guaranteed by the State of Louisiana. Tho plaintiff alleged it acquired the said bonds in good faith and for value, before maturity

The defense is “ that these bonds were not tho bonds of the State,” and, therefore, not fundable under act No. 3 of 1874; that the conditions of the act No. 26 of 1869, to be performed on tho part of tho company, in order to obligate the State to guarantee the payment of the bonds, had not been complied with ; and that, therefore, the obligation of the State to giro this guarantee had, in the words of the act, ceased and determined, and this before the guarantee had or could have been given ; that among the conditions wore that a section of forty miles should he completed within a specified time, and tlio whole road within a certain other specified time, and that the bonds were to be guaranteed only as each section of forty miles was completed ; that the first section of forty miles was to have been completed on or before January 18,1871 ; the whole road to the Sabine by January 18,1873, and to Houston, Texas, by July 18,1873 ; that the first section was not completed until May (April), 1871, and that no second section of forty miles was yet completed ; that the obligation of “ the State to guarantee the payment of the bonds had ceased and determined on January 18,1871, and the amendment to the constitution limiting the State debt to 525,000,000, adopted by vote of the people, November 7,1870, had supervened, and the further increase of the debt or obligation of the State was prohibited,- the constitutional limit of the State debt having already been exceeded ; that the guarantee of the payment of these bonds, after the obligation to do so had ceased and determined, was the creation of a new debt, and, being in violation of the constitution, the act of the Governor was null and was beyond his power.”

, The guarantee of the State was made by virtue of act No. 26 of the General Assembly of Louisiana, approved the seventeenth of February, 1869, entitled “an act to expedite the construction of the railroad of the New Orleans, Mobile, and Chattanooga Railroad Company.” The act provides “ that after the mortgage shall have been delivered and forty miles of road constructed, the company' may deliver to the Governor $500,000 of such second-mortgage bonds, and the Governor shall there-tipon subscribe a certificate on said bonds,-in the following words: The payment of the principal of the within bond, when due,,and the interest thereon, as it accrues,-is guaranteed by the State of Louisiana; .* * * and he shall affix the great seal of the State, and the said seal shall bo attested by the signature of the Secretary of State; and the said bonds shall then be delivered to the company for its general uses and purposes.” And the same act further declares, “that the signature of the ■Governor to the certificate of guarantee shall be conclusive evidence in favor of the holder of any bond so certified that the conditions of this act have been complied 'with on the part of the company; and that said bonds have been duly made and regularly certified and issued pursuant to the provisions of this act; and every suoli certificate of guarantee, when so subscribed, shall be a valid and binding obligation of the State of Louisiana in favor of whomsoever; * * * and the State hereby pledge s its public faith and credit to the performance of such guarantee according to its tenor.” Sections eight and ten.

The certificates of guarantee were duly signed by the Governor, and sealed with the great seal of the State, and attested by the Secretary of State as the law required. The evidence shows that the bonds aforesaid were acquired before maturity, in good faith, and for value.

The first objection urged against the demands of the relator is that the bonds are not the bonds of the State, and, therefore, they can not be funded. It has often been decided that “where a third person is privy to the original consideration, and, at the time the note is given, indorses an absolute undertaking on the back to pay it at maturity, he may be treated as a joint and several promissor with the party who signs on the face of the note.” 19 Wind. 202; 8 Pick. 423; 24 Wind. 456; 22 How. 341; Story on Promissory Notes, sections fifty-eight and fifty-nine. This is decided upon the principle that two instruments of the same general nature, executed at the same time, and relating to the same subject matter, are to be construed together as forming but one obligation. The State and the railroad company promise to pay the money stated on the face of the bonds and at the time specified therein. If one “put his name on the back of the note, at the time it was made, as surety for the maker and for his accommodation, to give him credit with the payee, or if he participated in the consideration for which the note was given, ho must be considered a joint maker.” 22 Howard 350; Story on Promissory Notes, sections fifty-eight, fifty-nine, and 479.

For the purpose of giving credit to the bonds intended to raise money to build a railroad within the State, the State put its name upon the back of said bonds, at the time they were executed, and thereby promised, unconditionally, to pay said bonds. Therefore, to all intents and purposes, these bonds must be deemed the bonds of the State, and within the intendment of the funding act. If valid, these bonds unquestionably form a part of the bonded debt of the State, which it was the purpose of the General Assembly of the people to fund. Are they valid obligations of the State ?

The contract from which these obligations spriDg, was made by act No. 26 of the General Assembly of 1869. At that time there was no constitutional restriction upon the power of the General Assembly to create debts; and the General Assembly had the power to enact act No. 26 aforesaid. • It has already been stated that the relator was a bona fide holder of the bonds, for a valuable consideration.

It is beyond dispute, now, that bonds like these of relator’s in this case are commercial instruments, and that the innocent holder is not affected by equities existing between the original parties. 1 Black. 386: 2 Wall. 110: 2 Black. 722; 1 Wall. 83; 3 Wall. 327.

. In the case of Mercer County vs. Hackett, the Supreme Court said, “The bonds declare on their face that the faith, credit, and property of the county is solemnly pledged, under authority of certain acts of the Assembly, and that in pursuance of said acts the bonds were signed by commissioners of the county. They are, on their face, compílete and per-feet, exhibiting no defect in form or substance ; and the evidence offered is to show that the recitals on the bonds are not true, and that no law exists to authorize their issue, but that the bonds are not made in pursuance of acts of Assembly authorizing them. ¥e have decided, in the-case of Commissioners of Knox County vs. Aspinwall, that when the bonds, on their face, import a compliance with the law under which they issued, the purchaser is not bound to look further.” 1 Wall. 83 ; 3 Wall. 327.

The Governor was the lawfully constituted agent of the State to sign, the certificates of guarantee, and he was vested with the discretion to decide when the conditions had happened upon which the certificates; were to bo signed, and, having signed them, the State can not repudiate-his act. 3 Wall. 93; 21 Wall. 138, 321,351. The bonds, on their face, import a compliance with the law under which they issued, and the purchaser was not bound to look further. 1 Wall. 83.

But it is said that inasmuch as the conditions precedent to signing the-certificates by the Governor had not happened before the adoption of the constitutional amendment limiting the power of the General Assembly to create debts, the power of the Legislature to create debts had ceased, because the State debts then exceeded the limit, and that the act. of the Governor in signing the certificates was a nullity.

What effect the adoption of the constitutional amendment had on the contract between the original parties it is not necessary to consider in this case, but as to bona fide third holders for value, it could have none..

As already said, the obligation of the contract sprang from the act of' the General Assembly, passed long before the adoption of the constitutional amendment, and whether the condition had then happened or not which authorized the Governor to sign the certificates could have no effect against the innocent holder, as the bonds on' their face import a compliance with the law.

I therefore dissent.


source: Caselaw Access Project

author: Lüdeling, O. J.

license: Public Domain

text:
    No. 6228.
    Samuel F. Ticknor vs. M. M. A. Calhoun.
    A curator ad hoc can not directly or indirectly waive citation.
    APPEAL from the Ninth Judicial District Court, parish of Grant. Or shorn, J. Jury-trial,

      li. J. Bowman and It. A. Hunter, for plaintiff and appdloa

      A. Cazcibat, curator ad hoc, for defendant and appellant.
   Lüdeling, O. J.

This is an attachment suit against a non-resident. The-curator ad hoc filed an answer and exceptions, and after trial and judgment it was discovered that no evidence of the citation of the absentee had been made, and although both parties had asked for a new trial, on different grounds, the court a Qua refused it.

So far as this record shows, the absentee has not boon cited. The-curator ad hoc can not, directly or indirectly, waive citation. g

It is therefore ordered that the judgment of the lower court be reversed, and that the ease be remanded to be proceeded with according to law.


author: Lüdeling, G. J.

text:
    No. 6166.
    R. D. Sholars, Administrator, vs. Eliza Hardee et al.
    Even it tho salo of tho property in controversy had been for Confederate money, the contract of sale was an executed contract, and under article U9 of the constitution of this State tho purchaser would be protected.
    APPEAL from the Seventeenth Judicial District Court, parish of Grant. Orsborn, J.

      Jack c6 Pierson, for plaintiff and appellant.

      B. J. Bowman, for defendants and appellees.
   Lüdeling, G. J.

This is a petitory action to recover a tract of land with the improvements thereon. The defense is that the consideration of the sale was Confederate money, and that the contract of sale was incomplete for want of delivery of the property sold.

The evidence shows that a sale of the property in dispute was made to the plaintiff for $5500 in 1863; that $3000 of the-price was jiaid in Confederate notes, and the remainder of the price, evidenced by two notes, was paid in United States currency.

It would seein to be immaterial whether delivery of the property was over made to the purchaser or not, as delivery is not an essential in the contract of sale.

Three circumstances concur to the perfection of the contract, to wit: the thing sold, the price, and the consent.” C. C. 2439. But the evidence satisfies us that there was a delivery of the property to tho vendee, and that he, through his agents, held possession until it was disturbed by the defendants in 1865.,

Even if the sale had been for Confederate money, the contract of sale was an executed contract, and under article 149 of the constitution of this State the jrarohaser -would be protected. 23 An. 394; 24 An. 103, 278. - The evidence shows that there are thirty-five acres of open or cleared lands on tlie place, worth four dollars per acre per annum in rents. This the defendants owe from the first of January, 1866, till paid, with .five per cent per annum, interest from the maturity of each year’s rent.

• It is therefore ordered and adjudged that the judgment of the lower court be reversed, and that there be judgment in favor of the plaintiff decreeing him, in his representative capacity, the owner of the lands and improvements described in the petition; that the petitioner be put in possession of the property; it is further ordered that there be judgment in favor of the plaintiff and against the defendants for the sum of one hundred and forty dollars annually from the thirty-first of December, 1865, till the first of January, 1876, with legal interest from the maturity of each year’s rent till paid and costs of suit.


author: MORGAN, J.

text:
    No. 6163.
    M. M. Ada Calhoun vs. Mechanics’ and Traders’ Bank.
    wiion llio ease was called lor trial, the delay within which the commission to take plaintiffs testimony was to be returned had not expired. No steps wore taken to cause the time granted for the return of'the commission to be curtailed. No 'offer was made to admit the facts which the commission was obtained to establish. The judge a quo erred in not continuing the case.
    APPEAL from the Ninth Judicial District Court, parish of Grant. Orsborn, J.

      W. F. Blackman and A. Cazabat, for plaintiff and appellant.

      T. C. Manning, for defendant and appellee.
   MORGAN, J.

The continuance applied for by the plaintiff in this suit was improperly refused.

Plaintiff docs not reside in Louisiana.

• Shortly after her suit was filed, her counsel took out a commission to procure her testimony. Sixty days were allowed by the judge for the return thereof.

■When the case was called for trial the delay within which the commission was to be returned had not expired. No steps were taken to cause the time granted for the return of the commission to be curtailed. No offer was made to admit the facts which the commission was obtained to establish. The case should have been continued.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be avoided, annulled, and reversed, and that this case be remanded to be proceeded in according to law, the costs of appeal to be borne by plaintiff.

Eehearing refused,


author: Ltjdeling, C. J.

text:
    No. 6216.
    Frank Wilson vs. R. K. Anderson, Tax Collector.
    The law requiring an estimate of the necessary expenditures of the parish to be made and published is mandatory.
    The law which imposes one hundred per cent as damages for wrongfully enjoining the collection of taxes does not apply to assessments 'made under an order of court to pay a judgment against the parish.
    APPEAL from the Thirteenth Judicial District Court, parish of Can-oil. Hough, J.

      Sparrow <& Montgomery, for plaintiff and appellee.

      Leonard & Kennedy, for defendant and appellant.
   Ltjdeling, C. J.

The plaintiff enjoined the collection of the parish taxes and judgment tax assessed against his property. Before the trial he discontinued the suit as to the taxes to pay judgments against the parish. On the trial there was judgment perpetuating the injunction as to the parish taxes.

Two questions are presented for decision:

First — Is the law requiring an estimate of the necessary expenditures of the parish to be made and published mandatory or directory ? I think it is only directory; but my associate justices say it is mandatory ? The other question is, does the law, which imposes one hundred per cent as damages for wrongfully enjoining the collection of taxes, apply to assessments made under an order of court to pay a judgment against the parish ? We think not.

It is therefore ordered that the judgment of the lower court be affirmed with costs of appeal.


author: Morgan, J. "Wyly, J.,

text:
    No. 6055.
    G. M. Marshall vs. A. Yznaga del Valle.
    where the defendant, through his agent, agreed to purchase the plaintiff’s plantation for a fixed price, .subject, to an examination of the title, and’ defendant's counsel, after examination, advised him that the title was not good, whereupon he refused to buy, this is not a non-compliance of contract on account of which plaintiff is entitled to recover damages from defendant.
    APPEAL from the Thirteenth Judicial District Court, parish of Concorclia. Hough, J.

      W. F. & O. H. Ogden, T. P. Farrar, Ogden & Hill, and Finney & Miller, for plaintiff and’ appellant.

      Spencer & Mayo, Geo. L. Bright, for defendant and appellee.
   Morgan, J.

The defendant is sued for damages arising from an alleged breach of contract.

The defendant, through his agent, agreed to purchase the plaintiff’s plantation for a fixed price, subject to an examination of the title. Defendant’s counsel, after examination, advised him that the title was not good.

Under these circumstances we do not see where the plaintiff has any .right to claim damages for a non-compliance of contract.

Judgment affirmed.

Rehearing refused.

"Wyly, J.,

dissenting. I dissent in this case, and will file my reasons hereafter.


author: Wyly, J.

text:
    No. 6247.
    George F. Brott vs. Eager, Ellerman & Co.
    '.The motion oí defendants to dismiss this appeal on the ground that the order appealed from is an interlocutory one that can not work an irreparable inj ury must prevail.
    APPEAL from the Superior District Court, parish of Orleans. Haic-Icins, J.

      L. A. Sheldon, for plaintiff and appellant.

      W. W. King, for defendants and appellees.
   Wyly, J.

Plaintiff sues out an injunction restraining defendants, the lessees of the city wharves, from demanding, suing for, or attempting by legal process to collect, any fees or wharf charges imposed by city ordinances against plaintiff, or the steamboat Martha, her captain and owners, and from preventing said boat to land and remain at the wharf where she has been accustomed to land and remain, and from proceeding further in the prosecution of the suit of defendants against the stearn-Iboat Martha, her captain and owners, pending in the Third Justice’s ■ Court, parish of Orleans.

Defendants obtained an order dissolving this injunction on bond, pursuant to article 307 C. P., and plaintiff appealed. Defendants now move to dismiss the appeal on the ground that the order appealed from is an interlocutory order that can not work an irreparable injury.

We think the motion should be granted. How plaintiff can suffer an irreparable injury by permitting defendants to assert in court their right as lessees of the wharves to collect wharf charges and to prosecute their suit in the Third Justice’s Court against the steamboat Martha, her captain and owners, we can not imagine.

The right to claim judicially what one believes he is entitled to, and the right to prosecute a suit in court, are rights which can be denied to no one. They are protected by article ten of the constitution.

It is therefore ordered that the appeal herein be dismissed at appellant’s costs.


author: Ludelixg, C. J.

text:
    No. 6185.
    Hazie & McCloy, Use, etc., vs. Police Jury of the Parish of Madison.
    Plaintiffs sue to recover seven thousand dollars under a certain contract with defendants. The only contract which defendants authorized to be made was to build a house not to exceed one thousand dollars in value. Certainly, under this authority the parish can not be made responsible for a building which cost seven thousand dollars.
    Put the ends of justice will be subserved by rendering a judgment of non-suit, instead of an absolute judgment against plaintiffs.
    APPEAL from the Thirteenth J udieial District Court, parish of Madison. Hough, J.

      E. D. & W. Farrar, T. P. Farrar, and E. H. Farrar, for ■ plaintiffs and appellants.

      J. 0. Seale, for defendants and appellees.
   Ludelixg, C. J.

This suit is to recover seven thousand dollars which they allege is due them, under a contract with defendants. They pray that the defendants be decreed to pay said amount, or to deliver to them •the building erected for the parish, with rents for the same. There was judgment rejecting the plaintiffs’ demand, and they have appealed.

The only contract which the defendants authorized to be made was to build a house not to exceed one thousand dollars in' value. Certainly, under this authority the parish can not be made responsible for a building which cost seven thousand dollars.

But we think the ends of justice will be subserved by rendering a judgment of non-suit, instead of an absolute judgment against the plaintiffs.

It is therefore ordered that the judgment of the lower court be reversed, and that there be a judgment of non-suit against the plaintiffs with costs of the lower court, costs of appeal to be paid by appellee.


author: Lddeling, C. J.

text:
    No. 6164.
    The Citizens’ Bank vs. the Police Jury of the Parish of Concordia.
    ’ This is a suit on two promissory notes. Several grounds ol defense are stated in the answer, but it is sufficient to notice only one ol them; which is, that the police jury oí the parish of Concordia had not the power to create a debt by borrowing money, or to bind the parish by issuing negotiable instruments by whielx to raise money.
    APPEAL from the Thirteenth Judicial District Court, parish of Con-cordia. Hough, J.

      Mago cD Spencer, for plaintiff and appellant.

      ■George S. Sawyer, for defendant and appellee.
   Lddeling, C. J.

The plaintiff sued the defendant to recover the ■•amount of eleven thousand dollars, with interest, evidenced by two promissory notes, one for five thousand dollars and the other for six thousand •dollars, payable to the order of the Citizens’ Bank of Louisiana and bearing eight per cent per annum after maturity and due twelve months after date. These notes state on their face that they are given for money loaned by tho bank. Several grounds of defense are stated in the answer, but it is sufficient to notice only one of them, which is that the police jury of the parish of Concordia had not the power to create a debt by borrowing money, or to bind the parish by issuing negotiable instruments by which to raise money. See 23 An., pp. 190, 232, 261; 24 An. 451, Edwards vs. Parish of Bossier; 26 An. 59; and Mathé vs. Parish of Plaquemines, 27 An.

It is therefore ordered that the judgment of the court a qua be affirmed with costs of appeal.

Behearing refused.


author: AVyly, J.

text:
    No. 6202.
    G. M. Bayly & Pond vs. John Weil. Rule on D. C. Paul, Sheriff.
    To tho rule taken by plaintiffs on tlio sheriff to show cause why ho should not bo hold in contempt, and why he should not obey the order roauiring him to sell tho personal property oí defendant attached by them, the answer of tile sheriff that the property was already under seizure and advertised to be sold at the next regular sale-day in obedience to a writ of fieri facias in his hands, was sufficient. Tho first Saturday of each month is tho day fixed by law for all sheriff’s sale s, and this applies also to sales of personal property ordered pending an attachment.
    APPEAL from tbe Ninth Judicial District Court, parish of Bapides. Orsborn, J.

      Iioberi P. Hunter, for plaintiffs and appellants.

      TV. F. Blackman, for defendant and appellee.
   AVyly, J.

Plaintiffs, who took a rule on tho sheriff, D. C. Paul, to show cause why ho should not bo held in contempt, and why he should not obey tho order requiring him. to sell tho personal property of defendant attached by them, appeal from the judgment discharging the rule.

The answer of the sheriff that the property was already under seizure and advertised to be sold at tho next regular sale-day, in obedience to a writ of fieri facias in his hands, was sufficient. The first Saturday of each month is the day fixed by law for all sheriff’s sales, and this applies also to sales of personal property ordered ponding- an attachment. Be-visod Statutes, 3410.

There was evidently no cause for this appeal; besides, plaintiffs fail to show that they will suffer an irreparable injury from the interlocutory order discharging tho rule for contempt against tho sheriff. The motion to dismiss tho appeal is denied.

Judgment affirmed.


author: Mok&aN, J.

text:
    No. 6209.
    Neomie Hickman et al. vs. Amos B. Thompson.
    On the twenty-ninth o£ December, 18B9, Mrs. Hickman appeared before a notary public for the parish of Rapides, and, under oath, declared that she was indebted to her children in a certain sum of money, on account of the succession of their father, she being their tutrix, and that they have a general and tacit mortgage on all her property, dating from tho death of their father, in December, 1883, to secure said sum of money..
    ■The question is, whether plaintiffs have any tacit mortgage upon the land in controversy, whose ownership is claimed by defendant, and which formerly belonged to their mother and tutrix, and, if they ever had a tacit mortgage, whether it perished for want of proper inscription prior to tho first of January, 1870.
    Tho declaration of tho mother and tutrix is the only evidence of the existence of the mortgage. In a suit, against their mother, judgment was rendered in accord- . anee with their petition, with mortgage upon all tho lands of their mother and tutrix in the parish of Rapides, to date from tho thirty-first of December, 1875. The question is not whether plaintiffs’ rights are to be governed by tho judgment which they obtained against their tutrix, for tho defendant was no party to that suit, but whether tho-ovidence of the minors’ mortgage was recorded in the manner and in the time and form required by law. Textually, it was not.
    Tho requirements of the law have not been complied with, and the declaration of tho tutrix of her indebtedness to her children, and the recording of the same, is not the evidence the law required in order to secure the mortgage which the minors had upon her property, and which tho constitution declared should cease to exist at a certain date, unless made to appear in a manner which tho legislature was authorized to designate.
    The fact that the evidence which alone prescribed the mortgage was destroyed does not better the plaintiffs’ ease. At most it is a casus omissus which the court can not supply, and if tho missing evidence could be supplied, this should have boon done by the officer whose duty it was to cause the evidence to be recorded.
    APPEAL from the Ninth Judicial District Court, parish of Rapides, Orsborn, J.

      T. C. Manning, for plaintiffs and appellees.

      JR. J. JBoio-inan, for defendant and appellant.
   Mok&aN, J.

On the twenty-ninth of December, 1869, Mrs. Hickman appeared before a notary public for the parish of Rapides, and, under oath, declared that she was indebted to her children, seven in number, in the sum of ñve thousand dollars each, on account of the succession of their father, she being their tutrix, and that they have a general and tacit mortgage on all her property, dating from the death of their father, in December, 1863, to secure the above amount. The acknowledgment was recorded on the same day.

On the twentieth of April, 1875, five of the above-named parties, two of whom are majors and three minors, the minors acting through their under tutor, sued Mrs. Hickman, alleging that she owed them five thousand dollars each, she having received that sum for them, and of their funds, from the property of their father. Mrs. Hickman answered by referring to her sworn acknowledgment on record in the recorder’s office, and submitted herself to the judgment of the court.

Judgment was rendered in accordance with the prayer of the petition for 82550 GO each, with mortgage upon all the lands of tho defendant in tho parish of Rapides, to dato from the thirty-first of December, 1875.

Tho three minor heirs, represented by their tutor, and tho two major heirs, acting in their own behalf, bring this suit against tho defendant, ■claiming that they have a mortgage upon a certain piece of property •owned by him, and which formerly belonged to Mrs. Hickman, to secure to them tho sum of 82550 GO each, as ascertained by the judgment above ■sot forth. They pray that tho defendant deliver tho land in question for sale, subject to their mortgage, or that ho pay thorn tho amount of their judgment.

Defendant admits that he is the owner of tho undivided half the land described in the petition, which, he says, was acquired by him at sheriffs sale, mado under a mortgage owned by him against Mrs. Hickman. He denies that plaintiffs have any tacit mortgage upon this land, and says that if they over had a tacit mortgage thereon it perished for want of proper inscription prior to the first of January, 1870. He says that the judgment relied upon by plaintiffs is an absolute nullity—

First — Because tho district court is incompetent to render a judgment against a tutrix in favor of tho minors on account of her tutorship.

Second — Because tho minors can not sue the tutrix for a settlement of lior tutorship, much less for a specific amount, during their minority and during her tutorship.

Third--Because tho under tutor is without authority to recover any judgment against tlio tutor.

■ Fourth — Because minors can not sue the tutor for a specific amount, but only for’a settlement of the tutorship, and for such an amount as may bo due.

The suit of tho major and minor heirs which recognizes their mortgage upon tlio defendant’s property veas instituted in the district court.

The first question to be determined is whether the tacit mortgage of the minors was made properly to appear prior to the first of January, 1870. The declaration of tho mother, which has been heretofore quoted, 'is tlio only evidence of the existence of the mortgage. Defendant says that this is not tlio evidence required by the law. Section two of the act No. 95. of 186.9, relied upon by the defendant, provides that it shall be the duty of every judge who appoints and confirms a natural or legal tutor, or any tutor not required by law, to give bond before he shall grant an ’ order appointing- or confirming such tutor, to cause a certificate from the clerk of the district court of the amount of the minor’s property, ac-' cording to the inventory on file in his office, to be recorded in the mortgage book in the parish in which the tutor resides or has his domicile.

This section, it seems to us, only provides for such appointments as 'may bo mado subsequent to tho passage of the act.

Tlio eleventh section, however, provides that it shall be the duty of the clerks of tlio district courts of the several parishes in this State to make out an abstract of the inventory of the property of all minors whose tutors have not been required by law to give bond for their tutorship, such abstract to describe the real property, and give the full amount of the appraisement of all the property, both real and personal, and rights, and credits, and to deposit such abstracts with the recorders of the several parishes, whoso duty it shall be to record the same as ■soon as received in the mortgage-book of their parish, such abstracts to be made out and deposited with the recorders by the first day of December, I860, and recorded by the first day of January, 1870.

In Ford vs. Ford, 7 An. 535, the court said: “We are not aware that we have ever sustained an inscription which was not in itself complete, and we fear that if wo should depart from a reasonable exactness in such matters, and permit defective inscriptions to be eked out aliunde, the salutary law of registry would soon lapse into uncertainty-and confusion.”

In the case of Taylor vs. Ealer, 22 An. 278, the plaintiff proceeded against a third possessor to enforce a tacit mortgage against certain immovable property formerly belonging to her mother and tutrix. The claim was evidenced by a judgment obtained by tlio plaintiff in the Second District Court of New Orleans, on the twelfth of August, 18G9. The judgment was recorded in the general mortgage-book for the parish of East Feliciana on the twenty-second of September following.

In that ease this court said: “By the operation of the constitution and the act of 1869, the tacit mortgage may be preserved if recorded before the first day of January, 1870, in the manner directed by law. A failure to inscribe it is fatal. The inscription was within the power of the plaintiff, whose interest it was to make it, and she has no just ground of complaint if, through negligence or ignorance, she has failed to preserve a preference conferred on her by law in derogation of common right.”

But in that case we said, that it was not necessary to decide whether or not the recording of a judgment which recognizes a tacit mortgage, and fixes the amount and date thereof, would be a compliance with the requirements of the constitution and of the acts of 1869, because the judgment recorded in this case is not such a judgment; it does not mention the date of the mortgage.

In the case at bar the judgment does fix the date at which the tacit mortgage commenced to run, and the inscription required by the law was impossible, because the records of the court where the evidence was kept were destroyed by fire prior to the first of January, 1870.

Besides, the question for our solution is not whether the plaintiffs’ rights are to be governed by the judgment which they obtained against their tutrix, for the defendant was no party to that suit, but whether the evidence of the minors’ mortgage was recorded in the manner and in the time and form required by law. Textually, it was not.

Was the acknowledgment of the tutrix, as we have quoted it, a sufficient compliance with the law ?

The act No. 95 of 1869 provides that in order to preserve the mortgages or privileges accorded by law in favor of married women for the preservation of their dotal, paraphernal, or other rights against their husbands, it shall be the duty of every married woman, or any person for her, to cause to be recorded in .the mortgage-book of the parish or parishes in which tlieir husbands may own mortgageable property, the evidence of their mortgage or privilege. The same act (section eleven) declares that it shall be the duty of the clerks of the district courts of the several parishes in the State to make out an abstract of the inventory of the property of all minors whose tutors have not been required by law to give bond for their tutorship, such abstract to describe the real property, and give the full amount of the appraisement of all the property, both real and personal, and rights, and credits, and to deposit such abstracts with the recorders of the several parishes, whose duty it shall be to record the same as soon as received in the mortgage-book of their parish; such abstracts to bo made out and deposited with the recorders by the first day of December, 1869, and recorded by the first day of January, 1870. Any failure of the clerks or recorders to perform the service required of them by the act subjects them to any damages that such failure may cause any person, besides making them liable to a fine.

Thus the evidence of the rights of married women might be furnished by any one, and the recording of this evidence was all that was necessary to secure their right of. mortgage, while as regards tutors and the minors’ mortgage which resulted from their trust, the evidence thereof was to be certain specified documents to be furnished by the clerk of the court.

In the case of Boudreau vs. Boudreau, 23 An. 57, where, in order to preservo the legal mortgage accorded him by law, the plaintiff caused to be recorded in the mortgage-book kept in the office of the recorder of the parish of Lafourche an instrument sworn to by him, in which it is stated that his father received, as his tutor, $594, to which plaintiff was entitled, we said that the judgment, so far as it accorded to the plaintiff a legal mortgage on the property of his tutor, was rendered upon insufficient evidence.

The only difference between the two cases is that in Boudreau’s case it was the erstwhile minor who made the statement which was recorded against his former tutor, while in this case it is the tutrix who makes the statement against herself and thus affecting her own property.

We are of opinion that the requirements of the law have not been complied with, and that the declaration of the tutrix of her indebtedness to her children and the recording of the same is not the evidence which the law required in order to secure the mortgage which the minors had upon her property and which the constitution declared should cease to exist at a certain date, unless made to appear in a manner which the Legislature was authorized to designate. Nor, in our opinion, does the fact that the evidence which alone preserved the.mortgage was destroyed better the plaintiffs’ case. At most, it is a casus omissus which we can not supply, and iE the missing evidence could be supplied this should have been done by the officer whose duty it was to'cause the evidence to be recorded.

Having come to the conclusion that the minors’ mortgage, if it ever existed, was not made to appear upon the public records in the manner and form required by law, it is not necessary for us to pass upon the other objections to the proceedings interposed by the defendant as reasons why the plaintiffs’ suit should fail.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be avoided, annulled, and reversed, and that there be judgment in favor of the defendant with costs in both courts.

Rehearing refused.


text:
    No. 6175.
    Pleasant H. Davidson et al. vs. Martha A. Davidson.
    'Tlie court below corre,etly hold that this suit was virtually a petitory action brought against Mrs. Martha A. Davidson, tho lessee oí Joseph Car-roll, and that the executrix of said Joseph Carroll, the lessor, had the right to come in and defend the suit.
    It was tho duty oí plaintiffs to have made the lessor and owner of tho property in dispute a party to the suit. Nothing could be accomplished without it, as the title of Mrs. Martha A. Davidson was divested by the sale on the execution of Carroll, Hoy & Co., and passed to Joseph Carroll. It was the duty of Mrs. Carroll, the executrix of the estate of her husband, to defend the suit and protect her lessee Mrs. Martha A. Davidson, from execution.
    The property was sold by order of court to pay debts after the homologation of the tableau. It was not necessary to provoke tho appointment of a family meeting and obtain their action to make a valid sale of the succession property.
    It has frequently boon hold that a sale to pay debts may be made for less than tho appraised value.
    The administratrix and widow in community was a competent purchaser.
    Furthermore, tho salo could not be disturbed, unless the plaintiifs had previously returned or offered to return the price of adjudication, which has not been done.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      T. (7. Manning, for plaintiffs and appellants.

      B. J. .Bowmcin and Charles Carroll, for defendant and' appellee.
   Wyly, J.

In December, 1869, Martha A. Davidson, administratrix of the succession of her husband, Neal Davidson, obtained an order to sell the property of said succession to pay debts, after having previously filed a tableau. At the sale she became the purchaser, being widow in community. Subsequently, to wit: in February, 1872, Joseph W. Carroll bought said property under execution in the suit styled Carroll, Hoy & Co. vs. Mrs. Martha A. Davidson.

In December, 1874, plaintiffs, Pleasant A. Davidson, Mary Davidson, and J. Thomas Davidson, claiming to be heirs of Neal Davidson, brought this suit against their mother, Mrs. Martha A. Davidson, who is now in possession as lessee of Carroll, to annul the sale whereby she acquired the property at succession sale by order of court in December, 1869. The grounds of nullity set up in the petition are —

First — Plaintiffs were at the time of sale minors, and no family meeting was held prescribing the terms of sale, and no action was taken to i>ro-tect their interests.

Second — The property was adjudicated for less than the appraised-value.

Third — -At the sale the administratrix became the purchaser, which was forbidden by law. The defendant, Mrs. Martha A. Davidson,’ whoso ownership had passed to J. W. Carroll by virtue of the sale under execution of Carroll, Hoy & Co. against her, filed a general denial, but made no serious defense, because evidently she was without' interest, being only a lessee of the property. Mrs. Carroll, the executrix of the succession of Joseph W. Carroll, appeared and pleaded an exception, which was referred to the merits. She subsequently answered, admitting the .property was sold by order of the probate court to pay dobts, and that it was purchased by the administratrix, the widow in community ; and alleging that said property was Subsequently purchased by J. W. Carroll under execution styled Carroll, Hoy & Co. vs. Mrs. Martha A. Davidson for $8000. She denied plaintiffs’ right of action, because the administration of Neal Davidson’s succession is still pending and unfinished ; and denies that plaintiffs were at all injured by the sale. Plaintiffs excepted to the pleadings and defenses set up ‘by Mrs. Carroll, on the-ground that they had not made her a party, and being a third person she should have intervened if desiring to take part in the case.

The court hold that the suit was virtually a petitory action brought against Mrs. Martha A. Davidson, the lessee, and that the executrix of Joseph W. Carroll, the lessor, had the right to come in and defend the suit.

We think the bill of exceptions to the ruling of the court was not well taken. It was tide duty of plaintiffs to have made the lessor and owner-of the property in dispute" a party to the suit. Nothing could be accomplished without it, as tlie title of Mrs. Martha A. Davidson was divested by tho sale on the execution of Carroll, Hoy & Co., and passed to Joseph W. Carroll. It was the duty of Mrs. Carroll, the executrix of tho estate of her husband., to defend the suit and protect her lessee, Mrs. Martha A. Davidson, from eviction.

On tho merits tho record presents no case entitling plaintiffs to re-, cover. Tho property was sold by order of court to pay debts, after the homologation of the tableau. It was not necessary to provoke tho appointment of a family meeting and obtain their action in order to make, a valid sale of the succession property.

It has been frequently held that a sale to pay debts may bo made for less than the appraised value.

Tho administratrix and widow in community was a competent purchaser.

Furthermore, we will remark that the sale could not bo disturbed, unless the licirs previously returned or offered to return the price of adjudication, which has not been done.

It is therefore ordered that the judgment herein, rejecting plaintiffs’ demand, bo affirmed with costs.

Rehearing refused.


text:
    No. 6208.
    W. J. S. Johnson vs. J. C. Dunbar, Administrator of the Succession of Winder Crouch.
    Plaintiff sues tlic succession of winder Crouch for S1900, the amount of an internal revenue tax he alleges to have paid tho United States Collector, which was due by the succession, and which, as lessee, ho alleges he was compelled to pay to prevent eviction.
    Plaintiff's suit rests on the allegation that the payment of the sum aforesaid inured to the benefit of the succession. But; as the succession was insolvent., there was. no inheritance or legacy for tho heirs, and it was not liable to an internal revenue tax in the inventory thereof. Besides, tho tax claimed on tho fifty-seven bales of cotton had already been paid by the factor, and the succession was not liable on account thereof. Therefore tho payment of the tax by the plaintiff did not inure to the benefit of the succession, as the same was not owing by it.
    APPEAL from tire Ninth Judicial District Court, parish of Rapides. Ornborn, J.

      B. J. Boinnan, for plaintiff and appellant.

      T. C. Manning, for defendant and appellee.
   Wyly, J.

Plaintiff appeals from tho judgment rejecting his demand against tho succession of Winder Crouch for §1900, the amount of an internal revenue tax he alleges ho paid tho United States Collector in July, 1872, which was duo by the succession, and which, as lessee, he alleges he was compelled to pay to prevent eviction.

■When the administrator of this succession was about to sell the property, pursuant to an order of court to pay debts, plaintiff opposed tlio sale and set up title to one hundred and forty-seven acres of the land, on the ground that he acquired the same by purchase from the United States Internal Revenue Collector in July, 1872, in settlement of the internal revenue tax of $1900 due by said succession.

This court in March, 1874, dissolved the injunction, with damages, and held that the sale to Johnson was an absolute nullity, because there had been no offering and adjudication of the property, and the collector was utterly without authority ■ by mere notarial act to convey the property of this succession to him. See the case reported in 26 An. 188.

Plaintiff now sues to recover the $1900, alleging that the payment thereof by him to the Revenue Collector inured to the benefit of the succession. As the succession was insolvent, there was no inheritance or legacy for the heirs, and it was not liable to an internal revenue tax in the inventory thereof.

The tax on the fifty-seven bales of cotton had already been paid by A. Miltenberger, the factor, and the succession was not liable on account thereof.

IVe think the court did not err, because the payment of the tax by plaintiff did not inure to the benefit of the succession, as the same was not owing by it.

Judgment affirmed.


author: Howell, J. Lcdeling, C. J.,

text:
    No. 6091.
    State ex rel. N. St. Martin vs. Police Jury of the Parish of St. Charles et al.
    A motion is made, io dismiss tlio appeal oil the ground that tlio police jury, who arc tlio only appellants, have voluntarily executed the judgment o£ the lower court. The counsel for the appellants answer that this court can not take cognizance of the documents annexed to the motion mid which appear here for the first time and as originals. This eourt, in tlio absence of consent, express or implied, to consider new evidence before it, must adhere to what it believes to be the settled jurisprudence of tlio State.
    This court has jurisdiction of a cause ns tried, but not of facts not passed on in the lower court, and can receive no new evidence. Consent can not give jurisdiction, but, having jurisdiction of a cause, this court may, it seems, consider facts pr '- sented by consent. This has not been done in this instance. The case must b ■ remanded.
    APPEAL from the Fourth Judicial District Court, parish cf St. Charles.’ Flagg, J.

      Julien Michel and lames D. August-in, for plaintiff and ap-pellee.

      Smile Host and Breaux, Fenner c0 Hall, for defendants and appellants.
   Howell, J.

A motion is made to dismiss tliis appeal on the ground that the police jury, who are the only appellants, have voluntarily executed tlio judgment oí the lower court. The counsel for the appellants answer that this court can not take cognizance of the documents annexed to the motion and which appear now for the first time and as originals. They cite the case of Nunez vs. Winston, 21 An. 666, to support their position.

In the case of Campbell vs. Orillion, 3 An. 115, a similar motion was made, and the court said: “ In support of his motion he has produced a certified copy of the fieri facias which first issued (on behalf of the appellants) with the return thereon and the certificate of the clerk that an alias fieri, facias is now in the hands of the sheriff. As these documents form no part of the record brought up the facts which they discover could, in the absence of the consent of parties, only have been considered with a view to remanding the cause for the purpose of trying the no V issue now presented. In .-order to obviate the delay consequent upon remanding the cause, counsel have consented that the. documents produced by the defendants (appellants) may be considered as regularly' before us.” f

In the case of James vs. Fellowes & Co., Hernandez, appellant, 23 An. 37, the same ground was made in the motion to dismiss, and the court said: “ Having, however, no original jurisdiction, we must remand the cause to try the issue raised by the motion.”

Those rulings sustain the enunciation in the case cited by appellees from the twenty-first Annual to the same effect, which, though it may not be considered essential to the decision, recognizes the doctrine that this court can not receive new evidence. In all the cases which we have been able to find upon this subject and in which the appeals were dismissed, the evidence produced was expressly or impliedly admitted by the opposite party'.

The case of White vs. Ramsey, 14 An. 329, may be, to some extent, an exception, but there the appellee was plaintiff in a money judgment, and the court considered the sworn allegation of payment a judicial admission of the fact in this court, and therefore the fact was sufficiently' shown in the record.

Chief Justice Merrick dissented, on the ground that this court has no original jurisdiction and the case ought to be remanded.

As there is no consent, express or implied, for us to consider the evidence, we must adhere to what we believe to be the jurisprudence as we believe it to be established.

We have jurisdiction of the cause as tried, but not of facts not passed on in the lower court, and we can receive no new evidence. See articles 894 and 895, Code of Practice. The first of these articles says: “ The Supreme Court shall receive no new evidence, even though it may have boon discovered since the judgment below, except in the cases hereafter expressed.” This is not one oí the cases expressed.

■ Consent can not give jurisdiction, but, having jurisdiction oí a cause, this court may, it seems, consider facts presented by consent. This lias not been done in'this instance.

It is therefore ordered that this ease be remanded to the lower court with instructions to the district judge to hear evidence and try the question of acquiescence in or execution of the judgment by appellants and send up the record thereof according to law.

Rehearing refused.

Lcdeling, C. J.,

dissenting. The proof of the voluntary execution of the judgment should be received in this court ex necessitate rei. It is a vain thing to send the case back to the court a qua to have that court transmit the proof to this court, when that court can have no jurisdiction over the question. The fact in question has occurred since the court a qua lost jurisdiction over the case by the appeal to this court, and the only object of ascertaining the fact to establish which the evidence is offered is to determine the jurisdiction of this court; that is, whether of not the appeal can bo entertained. This court has often received and acted on evidence in cases like this. The cases cited in the opinion of the court show this: 3 An. 115; 21 An. 666; 14 An. 329; Succession of Bougére, recently decided. Suppose a pardon is pleaded in this court, can not the pardon be received here ?

It is said that in all the cases except that in the fourteenth Annual the evidence adduced in this court was either expressly or impliedly admitted by the opposite party. I can not perceive how that fact could affect the power or right of this court to act. Consent can not confer jurisdiction on this court. It is true this court has not original jurisdiction to try an issue of fact in any suit. But the evidence offered here is not to affect any issue involved in the suit, but to determine whether the appellant has abandoned his appeal after the jurisdiction of this court has attached; or, in other words, to decide a question affecting the jurisdiction of this court. I understand the opinion of the court to hold practically that this question must be first decided by the court a qua. I dissent from this opinion.


author: TVyly, J.

text:
    No. 6170.
    Mayor and City Council of Natchitoches vs. W. H. Redmond et al.
    It is true the amount o£ a bond is not fixed in the charter oí the city of Natchitoches. Considering, however, sections five and ten oí the charter of 1872 (being act ninety-thfoo oí that year), there etui he no doubt the Council had tho right to pass tho ordinance! roouiring a bond and fixing the amount thereof for the tax collector.
    Assuming, as defendants contend, that plaintiffs wore guilty of laches in not requiring the collector to make monthly reports as ho ivas in duty bound by an ordinance of the Council, it would not discharge tho sureties.
    Parol evidence was properly excluded to show the Council had granted an extension of time to thcollector to make his settlement. Had they granted a few months <1 'lay to make his settlement, it would not have released tho sureties.
    Th • c mrt a win.properly excluded tho testimony of a witness as to whether tlio collection of the quarantine tax was covered by the bond of the collector. Tho r.spousibility of the sureties must be determined by the law, and not by the opinion, of witnesses. '
    The objection that the plaintiffs are not rightfully Mayor and Couneilmon of Natchi-toches can not bo considered in this proceeding. They are in office, and their rights thereto are not to be determined here.
    Interest on the judgment against tlio sureties should be allowed from judicial demand.
    i PPEAL from the Seventeenth Judicial District Court, parish of Natchi-ÁX toehes. P A. Morse, special judge, in place of tho District Judge, recused.
    JJ. J. Cunningham, for plaintiffs and appellees.

      J. H. Cunningham, J. M. B. Tucker, and T. P. Chaplin, for defendants and appellants.
   TVyly, J.

Defendant, Redmond, a defaulting tax collector of the city of Natchitoches for §4338 G6, and tho sureties on his official bond for §3000, who were condemned in solido for $3000, and Redmond for the further sum of §1338 6G, have appealed from the judgment of the court a qua.

Plaintiffs, the Mayor and Council of Natchitoches, joining in the appeal, pray an amendment of tho judgment requiring the sureties on the bond to pay interest on the amount recovered of them. The-defense set up is purely technical and utterly devoid of merit.

First — Defendants contend there is no law authorizing or requiring the tax collector of the city of Natchitoches to give bond.

It is true the amount of a bond is not fixed in the charter ; considering', however, sections five and ten of tho charter of 1872 (being act ninety-three of that year), there can bo no doubt tho Council had the right to pass the ordinance requiring a bond and fixing tho amount thereof for tho tax collector.

Section five authorized the election by the Council of “ a suitable person to be assessor and collector of the city taxes and licenses, and to elect a treasurer, who shall be ex officio secretary of tho City Council.”

Section ten authorizes tho Council to pass such laws as are necessary and proper. * * * To fix the amount of bonds to be given by the city officers from whom bonds are required.” * * The statute does not in express terms require a bond for any of the officers of the corporation: hut to give effect to that part of the sections quoted the conclusion is inevitable that the act authorizes the Council to require a bond for the tax collector and to fix the amount thereof.

Second — Defendants,, the sureties, contend.that they are released from their obligation on the bond by the laches of plaintiffs in not requiring the collector to make monthly reports as he was in duty bound by an ordinance of the Council. Assuming this to be so, it would not discharge the sureties.

Parol evidence was properly excluded to show the Council had granted an extension of time to the collector to make his settlement.

Had they granted a few months delay to make his settlement, it would not have released the sureties of the tax collector. 26 An. 243.

Third — The liability of the sureties to the extent of the bond signed by them was that the collector would faithfully perform his duty and account for all moneys collected in the exercise of his office. The court properly excluded the testimony of a witness as to whether the collection of the quarantine tax was covered by the bond of the tax collector. The responsibility of the sureties must be determined by the law, and not by the opinion of witnesses.

The objection that plaintiffs are not rightfully Mayor and Councilmen of Natchitoches can not be considered in this proceeding. They are in office, and their rights thereto can not be determined in this controversy. Besides, defendants are without interest to make the objection.

On the whole, no serious defense is disclosed to the action.

Interest on the -judgment against the sureties should be allowed from judicial demand.

It is therefore ordered that the judgment herein be amended so as to require the sureties to pay five per cent interest from judicial demand on the amount for which they are condemned, and, as amended, that the judgment be affirmed with costs.


text:
    No. 6126.
    Joseph Rudman et al. vs. Bridget Bockel and Husband.
    Prom the allegations of the petition, it appears that plaintiffs in injunction were aware of the defense of payment in the suits which they recite in their petition as having been brought against them, and yet they neglected to plead it, when the order of seizure and sale was sued out, when a personal judgment was recovered for the balance due after exhausting the mortgage, and when defendants sued to sot aside the simulated conveyance of a tract of land from Rudman to Caroline Perry, and subject it to the payment of said judgment.
    Now, fourteen years after one of the alleged payments, nine years after the other, seven years after the personal judgment, and more than one year after the decree ordering the sale of the land for which the twelve-months bond was given, plaintiffs sue out an injunction, plead payment, and set up a demand for damages occasioned by the suits in w-hieh defendants recovered judgments against them.
    In the suit to subject to defendants’ judgment the land which -was afterward sold on twelve-months credit, both of plaintiffs were parties; had they set up the defense of payment, which they were fully aware of, and established it, the court would not liave ordered the land to be sold to satisfy defendants’ judgment. They can not now plead a defense which they should have urged then.
    APPEAL from the Seventh Judicial District Court, parish of Pointe Coupee. Thomas Butler, special judge.

      E. Phillips, Yoist & Hams, for plaintiffs and appellants.

      W. W. Lake and Samuel J. Powell, for defendants and appellees.
   Wyly, J.

The material facts alleged in the petition are: In 1869 Bridget Riley, the mother of defendant, Bridget Boekel, sold to the plaintiff, Caroline Perry, a tract of land for four thousand dollars, evidenced by four promissory notes of one thousand dollars each, maturing first January, 1860,1861, 1862, and 1863, made by Caroline Perry and Joseph Rudman, secured by mortgage and vendor’s privilege. That the first two notes were paid. That on fifteenth February, 1866, eighteen hundred dollars was paid on the last two notes; also, in May, 1860, a payment of seven hundred and fifty dollars was made on said notes. That notwithstanding said payments the said Bridget Riley did knowingly and fraudulently sue out an order of seizure and sale in November, 1866, for the full amount of the two notes, and the mortgaged property was sold for $1350. That considering said payments, there was .only due on said notes in prhicipal and interest $808 35, and there was therefore due petitioners $541 50 by Mrs. Bridget Riley, the adjudicatee. That the petitioner, Joseph Rudman, was for many months during the years 1866 and 1867, absent from the State, and he was unaware of the judicial proceedings and the sale. That on his return he found that the land had been sold and the debt overpaid by $541 50. That notwithstanding said indebtedness was overpaid, the said Mrs. Bridget Riley and the defendants refused to pay the $541 50, and to give up the notes. That the defendants, knowing said notes had been paid, instituted suit against Joseph Rudman, one of the makers of said notes, in March, 1868, and recovered judgment thereon by confirming a default during his absence. “ That subsequently, to wit: on the eighteenth November, 1872, the said Bridget Boekel and husband brought suit against your petitioners to cause a certain tract of land in the parish of Pointe Coupee, belonging to your petitioner, Caroline Perry, to be decreed to be the property of Joseph Rudman, and to be seized and sold for the payment of this pretended debt, as above stated, although they well knew that their claim against said Joseph Rudman had been more than fully paid.” That they succeeded in obtaining judgment decreeing the said land to be the property of the'petitioner, Joseph Rudman, and execution was immediately issued, under which said land was seized and sold on twelve-months credit. That the defendants are not entitled to the twelve-months bond, and should be enjoined from transferring or disposing of the same. That by the aforesaid illegal acts of defendants, and the persistent malice with which they have pursued petitioners for so many years, endeavoring by judicial proceedings to compel them a second time to pay a debt which they well knew had already been paid, by the wrongful seizure of petitioners’ property, the destroying of their credit, and the breaking up of their business, petitioners have been damaged in the sum of eleven thousand dollars.

Plaintiffs prayed judgment against defendants for $4541 50, and they prayed for and obtained an injunction restraining the defendants and the sheriff from disposing of, parting with, or delivering the said twelvemonths bond to any person till further order of court, and for general relief.

Defendants pleaded the following exceptions:

The petition discloses no cause of action; res judicata; and the prescription of one, two, three, five, and ten years.

At the trial of these exceptions defendants introduced in evidence the suits and judgments mentioned in plaintiff’s petition,"to wit: the case of Bridget Riley vs. Joseph Rudman, and the case of Bridget Bockel et al. vs. Joseph Rudman et al.

The exceptions were sustained, and the suit of plaintiff was dismissed, and they appealed.

Wo think the court did not err. From the allegations of the petition, it appears that plaintiffs were aware of the defense of payment, and yet they neglected to plead it, when the order of seizure and sale was sued out, when a personal judgment was recovered for the balance duo after exhausting the mortgage, and when defendants sued to set aside the simulated conveyance from Rudman to Caroline Perry of a tract of land in the parish of Pointe Coupee, and subject it to the payment of said judgment. And now, fourteen years after one of the alleged payments, nine years after the other, seven years after the personal judgment, and more than one year after the decree ordering the sale of the land for which the twelve-months bond was given, plaintiffs sue out an injunction, plead payment, and set up a demand for damages occasioned by the suits in which defendants recovered judgments against them.

In Benton vs. Roberts, 3 R. 226, the court held: “ As to the demands which Benton now wishes to plead in compensation, they all existed, according to his own showing, previous to the judgment against him. * * * Litigation might bo greatly protracted were it permitted to a defendant to withhold his pleas of payment or compensation until after judgment, and then arrest its execution for the purpose of settling questions which, with more propriety, should have been decided when the first suit was on trial.”

See, also, 2 La. 181:14 La, 233; 13 An. 416;^ 12 An. 85, 88; 14 An. 13; 21 An. 165, 464; 22 An. 81; 26 An. 34; 1 N. S. 71.'

In the suit to subject to defendants’ judgment the land which, was afterward sold on twelve-months credit, both of plaintiffs were parties; had they sot up the defense, of payment, which they were fully aware of, and established it, the court would not have ordered the land to bo sold to satisfy defendants’ judgment. They can not now plead a defense which they should have urged then.

Judgment affirmed.


author: Taliaeeeeo, J.

text:
    No. 6141.
    State of Louisiana vs. Cupid Brown.
    The objection to the admission of Eliza Brown to testify on behalf of tlio accused on the ground that slio is his concubino goes to her credibility and not to her admissibility. The judge a tjuo should have admitted her to testify.
    A PPEAL from the Fourteenth Judicial District Court, parish of Morc-_ol house. Bay, J. Criminal case.

      C. T. Dunn, District Attorney, and A. P. Field, Attorney General, for plaintiff and appellee.

      W. T. Hall, for defendant and appellant.
   Taliaeeeeo, J.

The defendant was indicted for ministering poison to one Lewis Ford with intent to destroy his life. He was convicted and sentenced to hard labor in the Penitentiary for life. He has appealed from the sentence.

The case is before us on throe bills of exceptions, one relating to proceedings in impaneling the jury, one relating to the refusal of the judge to charge the jury as requested, and the other in reference to the admission of evidence.

On the trial of the case the counsel for the accused requested the judge that the jurors, after being sworn oil their voir dire, be examined first by the district attorney, with the view of ascertaining whether any of them ought to bo challenged for cause; if none is found to exist, that they then be presented to the accused for the same purpose, and if not challenged for cause by the accused that such jurors be required to take their seats in the jury-box, and the same formula be observed until twelve jurors have been permitted to take their seats in the jury-box; that they then be presented first to the State and then to the accused for acceptance, and, if accepted by the State, that they be presented to the accused for acceptance. This was refused by the court. The court ruled and required the accused to accept or challenge the jurors for cause or peremptorily immediately after they were accepted by the State. To this ruling of the court the accused excepted.

A witness was asked by the district attorney if any one told her tlio accused had stirred the pumpkin which was in a cooking-pot (it having been previously shown that the alleged poison was put into the pumpkin while it was being cooked). Thereupon the counsel for the accused immediately objected to the evidence sought to be elicited, as hearsay, but not before the witness had answered .the question by saying that her little boy had told her the accused had stirred the pumpkin. The counsel for the accused then requested the judge to instruct the jury in making up their verdict the statement made by the witness in reply to the question by the district attorney must not be considered by them, the counsel for accused insisting the evidence was hearsay and inadmissible. The request of the counsel was not complied with. There is inserted in the lull by the judge the following: “When the judge charged the jury the counsel for the accuséd did not request the court to instruct the jury they must disregard the evidence complained of.”

We think the judge should have charged the jury that the evidence was inadmissible and that they should disregard it.

During the trial the accused called Eliza Brown as a witness in his behalf, and after being sworn the district attorney objected to her testifying in the case on the ground that she was the wife of the accused, and when the witness was questioned with reference thereto she stated she had never been married to him, but she had lived with him as his wife for the last ñve years, and that he had no other wife, and that he was the father of two of her children. The district attorney persisting in his objection to the witness being permitted to testify, the court sustained the objection. Appended to this bill of exceptions is the evidence of Eliza Brown given before the committing magistrate, and is in substance that Johanna Ford asked her for strychnine to kill rats, and that she gave it to her; that Johanna told accused she wanted him to do something for her; that she was going to have a better living; when accused asked Johanna what she wanted, she replied “never mind.”

The objection to the admission of 'Eliza Brown to testify on behalf of the accused on the ground that she is his concubine goes to her credibility and not to her admissibility. We think the judge should have admitted her to testify.

We think the ends of justice require that the case be remanded to the court a qua to betried cíe novo, and it is so ordered. It is further ordered that the judge a quo be instructed to proceed in the trial of the case in conformity with law.