author: Egan, J. Manning, C. J.

text:
    No. 7148.
    The State ex rel. H. W. Soares vs. Hebrew Congregation “Dispersed of Judah.”
    This Court has jurisdiction of a suit in which the appellant, in his affidavit accompanying his application for an appeal, places his damages, at issue in the suit, at over $500.
    The failure to perfect a suspensive appeal does not prevent the appellant from subseauently obtaining a devolutive appeal.
    A mandamus will not lie to compel a religious society to restore to its membership one who had been expelled by a decree of the legally constituted church judicatory. on account of an alleged violation of some one or more of the laws of the society. The civil courts will not revise the ordinary acts of church discipline, or the administration of church government.
    A suit by an expelled member to compel restoration to a church membership on the ground that such restoration is necessary to enable him to enjoy the right of sepulture aeauired by him as a member, is premature.
    APPEAL from the Fourth District Court, parish of Orleans. Houston J.

      H. II. Walsh for plaintiff and appellant.

      Kelly & Lazarus for defendants and appellees.
    The opinion of the court on the motion to dismiss was delivered by Egan, J., and on the merits by Manning, C. J.
   On Motion to Dismiss.

Egan, J.

The appellee moves to dismiss this appeal; first, because the court is without jurisdiction ratione materice, the plaintiff having in his petition fixed his damages at $200; second, because plaintiff had obtained a former order of appeal which he had not presented, and has therefore abandoned and can not renew his appeal. As to the first ground ; the petition alleges that plaintiff has been damaged to an amount far exceeding two hundred dollars, and an affidavit accompanying the application for appeal places the amount of his damages or interest in this suit at over $500. See Crescent City Live Stock Landing & Slaughterhouse Co. vs. John Larrieux, and same vs. Wm. Cecil Kenner, recently decided.

The proceeding is not for the recovery of money, but for restoration to all relator’s alleged rights and privileges as a member of defendant congregation. As to the second ground; the former application was for a suspensive appeal only We agree with the court in French, Adm., vs. McVay, tutor, 21 A. 192, that a suspensive and devolutive appeal may as well be granted by separate as by the same order, and that the failure to perfect the suspensive appeal does not preclude a subsequent devolutive appeal. There was no bond filed for suspensive appeal, and the jurisdiction of this court never attached. There was therefore no appeal to abandon. If unable or unwilling to give bond for suspensive appeal, the plaintiff who had never before obtained an order for a devolutive appeal had a right to apply for and obtain it at any time within the delays of the law. It might have been otherwise had he once filed his bond for appeal on motion in open court and then failed to file or prosecute it.

The motion to dismiss is overruled.

On the Merits.

Manning, C. J.

The relator is an Israelite, and was a member of the Congregation of the Dispersed of Judah, a corporation organized and chartered under the laws of this State. On J une 13,1877, he was ■expelled therefrom,.he alleges illegally and arbitrarily, and now prays that a writ of mandamus be directed to the officers of the corporation, compelling them to restore him to his rights and privileges of membership.

The answer admits the membership of the relator prior to the date mentioned, and avers that on that day, at a meeting of the Congregation, there being present a legal quorum thereof, certain charges were preferred against him of gross misconduct, upon which testimony was received, and of which he was found guilty, and was thereupon expelled by a vote of three fourths of the members present, which mode of proceeding, it is averred, is in accordance with the constitution and laws of the Congregation. The Respondent then pleads to the jurisdiction of the court, averring that such expulsion is wholly within the cognizance of the ecclesiastical tribunal, provided by the corporation of which he was a member, and that the civil courts have no authority to inquire into, or revise the same.

The correctness of this return to the alternative writ is verified by the oath of the President of the Congregation, and was not traversed by the relator, nor was any proof offered to impugn its truth. The case therefore presents the naked question, whether the civil courts can or will revise the ordinary acts of church discipline, or the administration of 'church government.

The entire separation of Church and State is not the least of the evidences of the wisdom and forethought of those who made our national constitution. It was more than a happy thought — it was. an inspiration. But although the state has renounced all authority to control the internal management of any church, and refuses to prescribe any form of church government, it is nevertheless true that the law recognizes the existence of churches, and protects and assures their right to exist, and to possess and enjoy their powers and privileges. Of course wherever rights of property are invacled, the law must interpose equally in those instances where the dispute is as to church property as in those where it is not, and it also takes note of, but does not itself enforce, the discipline of the church, and the maintenance of church order and internal regulation. The law does not assume, and. will not declare, that a particular religious association is more truly the church than another, but each and all of them are permittéd to make their own regulations, and to enforce them in the manner each has provided for itself.

This whole subject was maturely considered and elaborately expounded in Watson v. Jones, 13 Wall. 679, where the court say ; — In this country the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious- unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognisance, subject only to such appeals as the organism itself provides for, p. 728.

The court refer in that opinion to Harmon v. Dreher, 2 Speer’s Eq. 87 (S. C.) as one of the most careful and well considered judgments upon the subject, in which it is said ; — It belongs not to the civil power to enter into or review the proceedings of a spiritual court. The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religiousdiberty from the invasion of the civil authority. The judgments, therefore, of religious associations, bearing on their own members, are not examinable here and I am not to inquire whether the doctrines attributed to Mr. Dreher were held by him, or whether, if held, were a'nti-Lutheran; or whether his conduct was or was not in accordance with the duty he owed to the Synod or to his denomination. * * * - When a civil right depends upon an ecclesiastical matter, it is the civil court aud not the ecclesiastical which is to decide. But the civil tribunal tries the civil right and no more, taking the ecclesiastical decisions out of which the civil right arises as it finds them.

So too in Missouri in the State ex rel. Watson v. Farris — it was said, the utter impolicy of the civil courts attempting to interfere in determining matters which have been passed upon in church tribunals, arising out of ecclesiastical concerns, is apparent. It would involve them in difficulties and contentions, and impose upon them duties which are not in harmony with their proper functions. Before' a court could give an enlightened judgment, it would be necessary to explore the whole range of the doctrine and discipline of the given church and survey the vast field of the divine word.

And in Kentucky the binding force and completeness of the church’s action is thus stated ; — Every person entering into the church, impliedly at least, if not expressly, covenants to conform to the rules of the church, to submit to its authority and discipline. Appellant when he became a member thereof placed himself in this condition. * * * Whether in what the church did it acted right or wrong, this court cannot approach its precincts to inquire, and is powerless to redress any wrong inflicted on appellant thereby. By becoming a member of the church he subjected himself to its ecclesiastical power, and neither this nor- any other earthly tribunal can supervise or control that jurisdiction. Lucas v. Case, 9 Bush, 297.

And finally the rule is enunciated by an approved modern writer thus ;-^The principle may now be regarded as too well established to admit of controversy, that in the case of a religious congregation or an ecclesiastical body, which is itself but a subordinate member of some ■general church organization, having a supreme ecclesiastical judicatory over the entire membership of the organization, the civil tribunals must accept the decisions of such church judicatory as final and conclusive upon all questions of faith, discipline, or ecclesiastical rule, and the party aggrieved cannot invoke the aid of the civil courts to have such proceedings reversed. High on Injunctions, sec. 233.

One of the allegations of the petition is that by the expulsion of the relator from the congregation, the right to be buried in its burying-ground will be, or is denied him, and the celebrated case of Guibord is cited as an instance where the civil courts took cognizance of the refusal of sepulture by the ecclesiastical authorities, and enforced the party’s right to burial in consecrated ground. The final decision of that case was by the Judicial Committee of the Privy Council in England, and courts there go much further than they would do here in enforcing rights appertaining to, or growing out of, ecclesiastical matters. But it is sufficient to say, in disposing of this part -of the complaint, that Guibord was dead, and the object of the proceeding in his case was to procure the interment of his body in that part of the Montreal cemetery which was consecrated, whereas the relator has happily no present need of enforcing his claim to burial anywhere, and non constat that before he does need it, he will have his ban of excommunication removed, and be restored to full fellowship in the congregation.

It sufficiently appears from what has now been said that we think the relator’s demand cannot be enforced by the civil courts. The return or answer to the alternative wiit set up as grounds why the peremptory writ should not issue that the relator had been excommunicated according to the rules adopted and in force in the congregation from which he was expelled, and the by-laws in evidence shew what these rules were. The judicatory provided by those laws has acted upon the matter, and we cannot go behind its action to inquire whether it acted rightly or wrongfully, justly or unjustly. It is the tribunal to which he submitted himself when he accepted membership of the congregation, and its action is not examinable in a civil court.

It will be observed that we assume, as we are obliged to do in the state of the pleadings and evidence in this case, that the church judicatory was properly constituted, and in the manner prescribed by the constitution and by-laws of the congregation. The return, not having been traversed by proof, nor excepted to for insufficiency, is taken as true for the purpose of testing the right to the peremptory mandamus, and that return avers and exhibits the constitution of the body which forms the judicatory, and which passed the sentence of excommunication. The State ex rel. Vierra v. Lusitanian Society, 15 Annual, 73. Tucker v. the Justices, 1 Jones (N. C.) 451. People v. Finqu, 24 Barb. 341.

The judgment of the lower court sustained the exception to the jurisdiction, and refused the peremptory mandamus. It is correct and is affirmed.


source: Caselaw Access Project

author: Marr, J.

license: Public Domain

text:
    No. 6875.
    The State vs. Solomon Pritchard.
    ' Where the lower judge rejects the evidence of a witness on the ground that she was, on her own uncontradicted testimony, the wife of the accused, he decides a question of fact, and h'is decision can not be reviewed by this court. If the woman were not really the wife of the accused, that fact should have been set forth in affidavits on an application for a new trial.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. McVea, J.

      H. N. Ogclen for the State.

      J. & G. W. Burgess for-defendant.
   The opinion of the court was delivered by

Marr, J.

The accused moved for a new trial on the grounds :

1. That the verdict was, contrary to the law and the evidence.

2. That he was deprived of the testimony of Belle Pritchard, a material witness. That the evidence was objected to by the district attorney, on the ground that witness was the wife of accused, which objection was sustained by the court, when, in fact, it was shown by the same witness that she was not his wife.

The judge says : “ When Belle Pritchard was sworn, the district attorney objected because she was wife of the accused. In answer to the court she said she was his accused’s wife ; and was then ordered to stand aside. The court did not hear her state that she was not married to accused, and it was pot asked that she be recalled to the stand. Although this fact may have been stated to counsel afterward, I am not able to say, as no testimony was adduced, although there was difference of opinion between counsel as to the fact.”

The judge decided, as a matter of fact, on the objection of the district attorney, upon the testimony of the witness herself, that she was the wife of the accused; and we have no power to review that decision. If, while she was on the stand, she had stated to the judge that she had not been married to the accused, but was living with him as his wife, and the judge had declared her to. be incompetent as a witness, a legal question would have been presented, which we could review. What she may have said after she had been dismissed by the judge, and had .left the stand, was not evidence : it was not heard by the judge, and was not considered or passed upon by him. . If the counsel for accused had asked to have the witness recalled for further examination, in order to prove that she was not married to the accused, or had offered to prove by any competent testimony that she was not his wife, we might have reviewed the ruling of the court refusing to receive such evidence. All the proof that the judge heard was the statement of the woman, in answer to his question, that she was the wife of the accused; and he therefore ordered her to stand aside. The testimony satisfied him that the objection of the district attorney was well taken, and he properly dismissed her as a witness.

If it had been true that she was not the wife of accused, and that her testimony would have been material, the affidavit of the accused, and of the woman herself, or of others having knowledge of the facts, might have been good ground' for a new trial; but no such showing was made, and no such facts were proven or passed upon by the court. The ruling of the court was that a woman, objected to as a witness on the ground that she was the wife of the accused, and who, after having been sworn, was interrogated by the judge, and answered that she was his wife, was not a competent witness in his behalf. If there had been a conflict of testimony we should be concluded by the decision of the judge; but there was no conflict. The judge heard no testimony except that of the woman; and he says no other testimony was adduced. The fact having been thus established, there can be no question as to the correctness of the decision that she was not competent.

The judgment appealed from is therefore affirmed with costs.


author: Manning, C. J.

text:
    No. 7312.
    The State vs. Israel Morrison.
    Where a party indicted ior murder is convicted, of manslaughter, and the conviction is set aside as an absolute nullity by this court, he can not be subsequently indicted and tried for the same offense, unless the indictment is found within a year from the time the crime is charged to have been committed. A criminal prosecution which has been declared a nullity does not interrupt prescription.
    APPEAL from the Seventh Judicial District Court, parish of Pointe Coupée. Toist, J.
    H. N. Ogden, Attorney General, for the State.

      B. Semple and Heroes & Parlange for defendant.
   The opinion of the court was delivered by

Manning, C. J.

On an indictment for murder found December 16, 1878, which alleged that the crime was committed on January 29,1877, a verdict of manslaughter was rendered against the defendant, whereupon he moved in arrest of judgment on the ground of prescription. On hearing, the State offered in evidence the records and documents of a previous prosecution for the same offence, for the purpose of shewing that such prosecution had commenced within a year from the commission of the crime. The evidence thus offered is the transcript of the case which was before us last year. State v. Morrison, 30 Annual, 817. Objection was made by the prisoner to the reception of this evidence on the ground that all the proceedings taken therein were null and had been so adjudged, which being overruled, he reserved a bill. Sentence of confinement at hard labour for twenty years was passed upon himj from which he appeals.

This presents the question whether a criminal prosecution which has been declared a nullity, interrupts prescription. It is apparent that it does not.

It has long been settled that when a prisoner is indicted for murder, and is convicted of manslaughter, the conviction is illegal if the indictment was not found within a year from the commission of the crime. State v. Cobbs, 7 Annual, 107. And in such prosecutions unless the State shews a previous indictment of the same person for the same offence, found within the year, or cause why such indictment was not found, such as the absconding of the offender, or that the commission of the crime had not been known to the authorities before, the conviction will not be sustained.

We lately held that when such prosecution had been commenced in time, and was afterwards voluntarily abandoned, the plea of prescription must prevail. State v. Baker, 30 Annual, 1134. And that the same result will follow if the previous prosecution is based upon a fatally defective information. State v. Curtis, ibid. 1166.

The first criminal proceedings against this defendant were declared by us to be absolute nullities. It is then as if he had never been indicted until as set forth in the present case, and this indictment was not found within a year from the time when the crime is charged to have been committed. The plea of prescription is good. Therefore

It is ordered and decreed that the judgment of the lower court is reversed, the verdict of the jury is set aside, and the prisoner is ordered to be discharged from custody under this prosecution.


author: White, J.

text:
    No. 7429.
    Succession of Elizabeth Lebrew.
    An action for the nullity of a judgment on account of matters in existence and known to the plaintiff when the suit was instituted in which the judgment was rendered, can not be maintained.
    The fault of a co-defendant is not a ground for annulling a judgment.
    A judgment recognizing certain parties as the legal heirs of their deceased grandmother, rendered in asuit againstthe surviving husband of their grandmother, who claimed under her will to be her universal legatee, may be pleaded as res adjudicada against him in a suit to annul the judgment brought by him in the assumed capacity of a legal heir.
    The binding effect of res adjudicata can not be impaired by the fact that the thing established by it involves a question of public order, and is afterward found to be wholly untrue. The presumption that the thing adjudged is true is so conclusive, no subsequent discovery can disturb it.
    j^PPEAL from the Parish Court of East Baton Rouge. Sherburne, J.

      B. W. Knickerbocker for Lebrew, appellant.

      Sam P. Greves for heirs of Betz, appellees.
   The opinion of the court was delivered by

White, J.

On the 21st of June, 1877, Henrietta Betz, wife, duly authorized, of Charles Eisher, with Edward and Lena Betz, minors, represented by their under-tutor, their tutor having an adverse interest, claiming to be the lawful children of Mary Witty, the issue of her marriage with Charles Betz, both deceased, instituted suit to annul the will, and probate thereof, of their deceased maternal grandmother, Mrs. Elizabeth Lebrew, on the following grounds:

First. That the will had never been executed by the deceased.

Second. That her signature was procured by fraud, she being at the time of its pretended execution of unsound mind.

Third. That by representation of their mother they were the sole legal forced, heirs of the deceased, and that their rights as such were infringed by the pretended will, which instituted Frank Lebrew, their step-grandfather, universal legatee of their grandmother’s estate.

They prayed for the annulment of the will and for recognition as the sole legal forced heirs of the deceased. Nicolas Wax, executor, and Frank Lebrew were personally cited, and answered by a general denial. On the 19th of January, 1878, judgment was rendered in favor of plaintiffs, recognizing them as the sole legal heirs of their mother, and she having been the only descendant of Mrs. Lebrew, her mother, they by representation as the sole legal heirs of their grandmother’s estate. The will and probate were annulled.

On the 11th of February, 1878, Frank Lebrew sued to annul the judgment thus rendered against him on the following grounds :

1. That the heirs of Mrs. Lebrew knew at the time they presented their claim for recognition that they were not the lawful heirs of their mother and grandmother.

2. That he was prevented from urging their want of heirship by sickness and by the omission or fraud of his co-defendant, Nicolas Wax; that being confined to his room with sickness he requested Wax to send to him the counsel who had been retained to defend the suit, in order that he might inform him of the want of heirship in the plaintiffs ; that Wax failed to do so, and hence the defense was not urged by counsel.

3. That the pretended children of Mrs, Betz were not her lawful issue, but were adulterous bastards.

4 That in eoasequence of such fact Mrs. Lebrew, his predeceased wife, had left no lawful descendants or collateral kindred, and he was hence her heir.

The defendants pleaded res judicata and a general denial.

Under these issues the controversy presents a twofold aspect: as to the nullity of the judgment, and as to being, if not null, the thing adjudged between the parties, of the matters presently at bar.

First. It is to be borne in mind that no attempt is made to annul the judgment in so far as it destroyed the will — the plaintiff now claiming as a legal, not as a testamentary heir. It is hardly necessary to say that the averment that the plaintiffs in the original suit knew that they were not lawful heirs at the time of their demand for recognition furnishes no ground for an action of nullity ; but if it did it is disproved by the record now before us. Plaintiff does not, so far as the other grounds go, ask the annulment of the judgment on account of matters not known to him at the time of the institution of the suit; but, on the contrary, admits his knowledge of every fact now urged at the time the original suit was brought. If any thing is settled in our jurisprudence, it is that one can not be heard by way of action in nullity to destroy a judgment for matters known and in existence at the time of the institution of the suit in which the judgment was rendered, even though by some neglect they may not have been pleaded. 1 R. 523 ; 18 L. 551; 3 A. 646 ; 6 A. 799. But it is said that by the neglect of Wax an opportunity was not afforded plaintiff to inform his counsel of the serious defense. We do not think the proof establishes the assertion, but if it did the conclusion would be the same. Wax was a defendant, and plaintiff’s action to annul would resolve itself into a complaint of the neglect or omission of his co-defendant.

Second. The legal heirship of the defendants is clearly established by the presumption of the thing adjudged. All the elements of res adjudioata are to be found in the final judgment rendered between the parties. It is contended that Lebrew was originally sued as universal legatee, and hence the recognition of the plaintiffs in that suit as the sole legal heirs of the deceased while binding on him in such capacity is not in that of legal heir, which he assumes in this controversy. It is obvious that this is a mere evasion, and that the non-existence of this new quality in the present plaintiff was the very thing adjudged, for the sole legal heirship in the then plaintiffs is incompatible with the claimed legal heirship of the present plaintiff. We are told that if the defendants are adulterous bastards' the recognition of their right to heirship would be a violation of public order, and hence such fact can be shown at any time despite the sanctity of the thing adjudged. The proposition is vicious, because the very matter established by the legal presumption is the legal heirship. In speaking on this subject Demolombe says : “ But it may be contended that in case of a nullity founded on public order which a defendant could not renounce he can consequently urge it in a second suit, although not presented in the first. We reply that this distinction is inadmissible. * * * Because it is contrary to every principle. What! when a pleader has defended himself by every means, or even when he has been condemned by default, will it be said, that the law will presume that he-has failed to present his defenses? Certainly not. That which it presumes is that these defenses do not exist.” * * * Resting our opinion as we do on the presumption of the thing adjudged, we deem it well to say that we do not even remotely indicate any opinion as to the facts shown by the record, so as to leave room for any inference that we consider without reference to the legal presumption the proof establishes the success of this attempt on the part of plaintiff to bastardize his step-grandchildren in order himself to reap their grandmother’s estate.

The judgment is affirmed, with costs.


author: Spencer, J.

text:
    No. 5906.
    John M. Henderson, Trustee, vs. Case, Receiver of the Crescent City National Bank.
    An insolvent debtor who has under the bankrupt law made a composition with his creditors, may. in the absence of contrary stipulations, authorize an agent to sue for and collect his assets.
    The purchaser oí a dishonored bill, who buys it from one who is not the owner, and who is not authorized to sell, acquires no title as against thfe real owner.
    j^PPEAL from the Sixth District Court,parish of Orleans. Saucier,

      Bayne & Uenslmw for plaintiff and appellee.

      John J. Finney for Ciasen & Weiting, appellants.
   The opinion of the court was delivered by

Spencer, J.

Plaintiff as assignee and trustee of the insolvent firm of Mallalieu & Co., of London, sues Case, Beceivér of the Crescent City National Bank, and Arthur Ciasen & Weiting, to have said firm of Mal: lalieu & Co. declared owners of a certain bill of exchange drawn by said Bank on Lizardi & Co.,- of London, for £1500. The plaintiff also demands judgment against the Bank for said sum.

Defendants Ciasen & Weiting excepted to plaintiff’s right to stand in judgment for Mallalieu & Co. This exception was referred to the merits. The answer is in effect a general denial of any right in plaintiff to the bill in question. There was judgment for -plaintiff, as claimed, and Ciasen & Weiting appeal.

There is no dispute about the facts. Mallalieu & Co. were, at the maturity of the bill, its owners, and it was protested for them as holders. They sent it, some time after protest, through Horstendahl & Co., of London, to Godfrey Borst, of New Orleans, to collect from the defendant bank, which in the mean time had suspended; Borst after a fruitless effort returned it to Horstendahl & Co., who passed it off, and it finally came into the hands of Clasen & Weiting, who do not allege or show how or for what consideration or from whom they took it. "The evidence is conclusive'that Mallalieu & Co. never parted with their ownership or authorized any one to transfer it for them.

Two questions are presented for our decision :

First — Has Henderson a right to sue ? and,

Second — Does the purchaser of a dishonored note or bill from one not owner nor authorized to sell acquire a good title as against the true owner ?

The first question we think must be answered in the affirmative. Mallalieu & Co. becoming insolvent made in the Bankruptcy Court of London a composition with their creditors, and thereupon assigned all their assets of every kind, by special act, to Henderson, with power to collect for benefit of themselves and their creditors. This was in effect making Henderson the agent of Mallalieu & Co. We have held that under our bankrupt law when a composition is made with creditors the debtor may, in the absence of stipulations to the contrary, sue for and collects his assets. Bayly & Pond vs. Stacey & Poland, 30 An. 1210.

If so, he may collect through an agent, and the mandate will be presumed to continue until the contrary is shown. We do not see that the mandate in this case is limited in the way defendants’ counsel contends.

Second. The second question must, we think, be answered in the negative. It is no longer an open question that the bona fide holder, for value and before maturity, of a negotiable note, or bill, indorsed in blank, will acquire a good title thereto against the true owner, though acquired from one without right therein. But this doctrine derives itself from the commercial law, and must be restricted to strictly commercial paper. After a bill or note is dishonored and past maturity it ceases to possess those extraordinary qualities with which the necessities of commerce have clothed it. It becomes then a mere chose in action, or ordinary obligation for the payment of money. It may be transferred by delivery, provided that the transferrer have right to do so. After dishonor it falls under the dominion of that fundamental rule of property, that “ the sale of the thing of another is void.” C. C.

This doctrine is fully recognized and maintained by the Supreme Court of the United States in Foley vs. Smith, 6 Wall. 493. That was a case almost identical with this, Mrs. Smith holding several notes of McHatten, indorsed in blank, and delivering one of them for $15,000 to the Bank of Kentucky for collection. The Bank of Kentucky forwarded the note to the Citizens’ Bank, at New Orleans, where it was protested. Subsequently, McKnight, the agent of the Bank of Kentucky, withdrew it from the Citizens’ Bank and sold it by authentic act to Foley & Co. The court held that Foley & Co., having acquired after maturity, got no better title than their vendor, the Bank of Kentucky, had, and that the Bank had no title, and could transfer none. The court say truly that had the Bank transferred the note before nia turity the title would have been good against Mrs. Smith. Any other doctrine than here announced abrogates all distinction between negotiable paper taken before and after maturity. The same doctrine is announced and adhered to by that court in “ Texas vs. White,” 7 Wall. p. 700. We find nothing to the contrary in the late case of “ Bank vs. Texas,” 20 Wall. p. 88.

These views were expressed by this court in “ Bird vs. Cockrem,” 28 An. 70, where it was held that after the maturity of the notes a pledge of them without the knowledge or consent of the owner was invalid as to him.

We do not think that the authorities cited by defendant to the effect that “ no collateral equities can affect an assignee of commercial paper transferred after maturity” can be applied to the case where there is a total want of right in the transferrer.

At all events, and however this may be, we' prefer to follow the line of authority which protects the owner of dishonored paper in such cases, as being more in consonance with our own Code, and, as we believe, in nowise conflicting with the interests of commerce.

The judgment appealed from is therefore affirmed with costs.

Mr. Justice White takes no part in this decision.


author: DeBlanc, J.

text:
    No. 7131.
    Edward Linn vs. Edward Dee et al.
    The special mortgage executed by a tutor in favor of minors, in order to relieve his property from the general legal mortgage in their favor, does not import a confession of judgment for any specific amount, and hence does not authorize executory proceedings.
    A third possessor evicted by a mortgage creditor can claim for his expenses and improvements only to the extent of the increased value of the property resulting from the improvements. If his expenses, incurred in making the improvements, are less in amount than the increased value arising from the improvements, he can recover only the sum of those expenses, and is liable for the fruits and revenues of the property from the moment he is notified of the order of seizure.
    APPEAL from the Sixth District Court, parish of Orleans. Righior, J.
    27ms. Gilmore & Sons for plaintiff and appellant.

      Bentinck Egan for defendants and appellees.
   The opinion of the court was delivered by

DeBlanc, J.

Edward and Henry Dee are the children of Martin Dee and Margaret Joyce, both deceased. At the death of their mother, their father was confirmed natural tutor. In that capacity, he filed, an account which was duly homologated, and — on the 17th of -August 1869, to secure the balance shown by that account — he executed a special mortgage which contains the following recital

“Now the condition of this special mortgage is such, that whereas-the said Martin Dee has been confirmed and duly.sworn as the natural tutor of his minor children, Edward and Henry Dee, the issue of his marriage with Margaret Joyce, deceased ; and, whereas, the rights and property of the said minors have been liquidated by a decree of the said Second District Court for the parish of Orleans bearing date, the 5th day of August,-1869, in the sum of one thousand six hundred and seven 01J-100 dollars, as the whole will more fully appear by reference to the proceedings had in the-succession of ’the said Mrs. Margaret Joyce, deceased wife of Martin Dee, No. 32,974 of the docket of said court — Second District, parish of Orleans,
“ Therefore, if the said Martin Dee shall well and truly perform and faithfully discharge all his duties as natural tutor-of the above named Edward and Henry Dee, his minor children, and each of them,, and shall, at the expiration of said tutorship, render unto each of them a just, true, faithful and correct ,account..of the share of each-in the said sum of one thousand six hundred and seven 04J-100 dollars, and of all interest to accrue thereon, and if he shall be discharged in due course of law from his said tutorship, then this mortgage shall cease to have effect; and if otherwise, it shall remain in full force and vigor up to the amount of and to secure the said sum of one thousand six hundred and seven OAJ-lOO dollars, and twenty-five per cént thereon, and for the share of each of said minors in said sum and interest as aforesaid ; and the said Martin Dee binds himself not to alienate, deteriorate or encumber the said property to the prejudice of this mortgage.”

On the 20th of August 1869, Martin Dee mortgaged in favor of George W. Doll, to secure a loan of five thousand dollar's, the same property which — three days before — he had mortgaged to secure the rights of his wards and the faithful discharge of his duties as tutor.

Martin Doe died in November 1869, and — on the 30th of August 1870 — the executor of his will filed a petition in which he represented that his succession was very much in debt, and that a sale of the property thereto belonging ought to be made to satisfy its liabilities. The sale was ordered by the court, and — -on the 3-1 of October 1870 — the property specially mortgaged to Edward and Henry Dee and — subsequently — to George W. Doll was adjudicated to the latter for fifteen hundred dollars, which — according to the condition of the sale — were to be paid cash, but which — less a fraction — the adjudicatee retained in his hands and applied in part paymeht of his own claim.-- •

On the 21st of October 1870, Edward Linn — the plaintiff — purchased from George W. Doll, for three thousand dollars, the property so adjudicated to his vendor, and his and his vendor’s title were duly recorded. On the 20th of December 1876, in a proceeding by rule instituted against George W. Doll alone, in the Second District Oourt, the title transferred by him to plaintiff and which he had — apparently at least — acquired on'the 3d of October 1870, was set aside and annulled.

On the 18th of May, 1877, ignoring plaintiff’s title, defendants obtained from the Sixth District Oourt of the parish of Orleans, a writ of, seizure and sale against the property which — more than -six years before-had passed from Doll’s possession into that of Edward Linn, who-opposes the execution of said writ on the grounds : .

1. That defendants’ special mortgage was extinguished by the sale of October 1870, and their rights transferred from the mortgaged property to the proceeds of that sale.

2. That the act by which said mortgage is evidenced does not authorize proceedings via executiva.

3. That — if the mortgage exists — plaintiff, as a purchaser in good faith — -is entitled to compensation for his improvements.

I.

Had George W. Doll paid the price of the adjudication made to him on the 3d day of October 1870, there can be no doubt that said adjudication would have transferred, from the property to the proceeds of the sale, the rights which defendants could previously have exercised against the property itself ; but Doll did not comply with the conditions of the sale, refused to pay the price of the adjudication, and did not even attempt to oppose or resist the decree by which his title was can-celled. As to him, that decree remains in full force ; but as it neither did nor could impair the title of Edward Linn, whq was not a par-ty to the action in nullity, and who — so far as we are informed by the .transcript — acquired in good faith from George W. Doll, we refrain from expressing any opinion on either the failure and refusal of the latter to comply with the conditions of the adjudication of the 3d of October, or the effects of the decree by which it was annulled.

II.

Did the defendants’ rights arise from an act importing a confession of judgment, and could they have resorted to the executory process ? An appeal would have been the proper remedy to test this question— 25th A. &0, 26 A. 709. As, however, this objection is — not only not urged, but inferentially waived by. the answer to plaintiff’s injunction, we proceed to examine and decide.it.

What are the objects of a special mortgage, such as that given by Martin Dee in favor of his minor children ? To secure the rights and property of said children, the faithful discharge of the tutor’s duties, and — mainly—to release from the legal and general mortgage arising from the tutorship, the whole of the tutor’s property not affected by the special mortgage. R. O. C. 325.

When such a mortgage is given to secure the rights of two or more ■minors, in what way must it be enforced ? “ On attaining the age of majority, or being emancipated, any one of the mortgagees, may proceed to the sale of the property mortgaged, after having discussed the other property of the debtor, in the manner following:

“ A family meeting shall be convened on behalf of the remaining minors to consider-whether the property mortgaged is sufficient to satisfy all demands on it, in favor both of the major and minor heirs. If they should be of opinion that the property is sufficient to satisfy all demands, they shall advise that so much of the property mortgaged as will satisfy the demand of the major be sold — if susceptible of division — and the property then sold shall be free from the mortgage in favor of the remaining minors.”
“ If the meeting shall be of opinion that the property mortgaged is not sufficient to satisfy the demands of all the heirs, or that it is not susceptible of division, the whole of the mortgaged property shall be sold, and shall be released from the mortgage in favor of the major and minors, etc.” R. C. C. 333.

In this instance, though one of the mortgagees is still under age, these formalities were not complied with, and if required in an action against the tutor and whilst the mortgaged property is still in his possession, they should certainly precede an action against a third possessor.

Nor is this all: the expenses for the support and education of a minor should never exceed, but may and do often absorb his revenues, and the final account which the tutor or his legal representatives are bound to give of his administration at the expiration of the tutorship, can alone conclusively fix the amount due by him to his wards. As to them and to third parties, the judgments homologating either his annual accounts or the liquidation which precedes the execution of the special mortgage which he is allowed to give in lieu of the general mortgage arising from the tutorship, are but prima facie evidence of the correctness of the homologated accounts — R. C. C. 356, 357 (350); and as they do not import a confession of judgment for any finally determined amount, neither the annual accounts nor the liquidation referred to can be the basis of an executory proceeding and authorize the issuance of a writ- of seizure and sale.

III.

In order to reduce the chances of a procrastination of this controversy, we consider it proper to state that a third possessor evicted by a mortgage creditor can claim, for his expenses and improvements, only to the amount of the increased value which is the redhlt of the improvements made. That increased value is the difference between what the immovable would be worth on the day of the adjudication and eviction under the seizure, if the improvements had not been made, and the price -which it brings with the improvements. When the expenses incurred by the third possessor are less than the increased value, he can then recover but an amount equal to his expenses and not one equal to the increased value: but — from the date of the service on the third possessor of the notification of the order of seizure, he is liable for the fruits and income of the mortgaged property.

C. N. 2175 ; C. C. 3408. (3371).

Gilbert, Codes Annotés, p.p. 1006-1007.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is annulled, avoided and reversed, and plaintiff’s injunction perpetuated at the costs of defendants in both courts.

Rehearing refused.


text:
    No. 7390.
    John O’Connor vs. Parish of East Baton Rouge.
    The owner of parish warrants who surrenders them to the parish in exchange for bonds of the parish which turned out to be void, aeauires no right of action for damages against the parish because the warrants -had been destroyed by the parish, to the knowledge and with the tacit consent of the owner. A suit on the destroyed warrants to recover their amount is the form of action proper in such a case.
    The payment of parish warrants issued on account of commissions on suits prosecuted or defended for the parish by a district attorney pro tempore, when sued on by a third person, who holds them merely as pledgee of the district attorney pro tern., may be resisted on the ground that the services for which the warrants issued were not rendered, or were inefficiently rendered. But the payment of the salary of a district attorney can not be resisted on the ground that he was inefficient or without learning.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. Me Vea, J.

      Sam’l P. Greves for plaintiff and appellant.

      Thos. B. Dupree, parish attorney, for defendant and appellee.
   The opinion of the court was delivered by

Spencer, J.

Plaintiff sues the parish of East Baton Rouge.

First — In damages for the amount of certain parish warrants which he surrendered to it, in exchange for an equal amount of five-year parish bonds. He alleges that the parish in 1871, in order to take up its floating indebtedness, executed its bonds, payable in five years, to bearer ; that he, holding $550 of said floating debt, exchanged the evidences thereof for said bonds — which said evidences of indebtedness were by ordinance of the police jury canceled and burned ; that in a certain suit against the parish said bonds were subsequently decreed to be null and void ; .that thereby petitioner was “evicted” of the thing received in exchange, and as the thing given in exchange has been destroyed, he is entitled to recover damages, which he lays at the sum of $550.

Second — For the amount of sundry parish warrants held by him, and amounting to $1877 03.

The answer of the defendant denies generally plaintiff’s allegations. It is specially denied that G. A. Griffith (in whose favor the larger part of said warrants were issued, for salary and services as district attorney pro tem.,) was an attorney at law, or ever authorized to practice as such by competent authority in this State. It is averred that he was totally ignorant of and incompetent to discharge the duties of district attorney pro tem., and was in fact a mere “ figure-head,” rendering no service, and capable of rendering none. That other attorneys had tobe employed and paid, and that there was no consideration for the warrants in favor of Griffith.

The case was tried by jury, who returned a verdict for plaintiff, for eertain items amounting to $245 45, and rejected the balance of the claim.

First — As regards the claim for damages, we think it, under the facts stated, not sustainable either in principle or in equity. Plaintiff held certain warrants of defendant. He voluntarily gave them up to his debtor, and took bonds. It was reasonably certain and must have been, at the time, contemplated by the parties, that the parish authorities would cancel and destroy these warrants. The plaintiff himself, as shown by the record, was chairman of the finance committee of the police jury, and as such reports that he and his committee had burned them all. Volenti non fit injuria, is an old maxim which applies with peculiar force here, since the plaintiff not only consented to the destruction, but was himself the instrument by which it was accomplished.

But on principle, an action in damages is not the proper remedy to recover a sum of money due, the evidence of which has been lost or destroyed. The obligation to pay a sum of money must not be confounded with the instrument evidencing that obligation. The latter may be destroyed without in anywise affecting the former. The transaction was in reality an attempted novation, by the' substitution of a new obligation. If this last was null and void, it did not extinguish the old one, which continued to exist, notwithstanding the destruction of the written evidence of it. Plaintiff should have sued upon the original obligations, alleging the loss or destruction of the evidence of them. He could thereby resort to parol evidence oí the existence, verity, and legality of his claim, and have demanded .judgment therefor. We find in the record no such evidence.

Second — Of the warrants sued upon we think, under the pleadings and evidence, the jury were justified in rejecting those in favor of Griffith, who it appears is still their owner, but has put them in plaintiff’s hands as collateral.

It was specially denied in the answer that Griffith was an attorney at law. If not, he could not be district attorney pro tem. The testimony of a number of attorneys was taken, who stated him to be ignorant and incompetent. This was a sufficient prima facie showing on the part of defendant of his not being an attorney to overcome any presumption resulting from Griffith’s acting in that capacity. It then became plaintiff’s duty to administer affirmative proof that he was a duly authorized attorney at law. This he did not do or attempt. So far as the salanj proper of the district attorney pro tem. is concerned, we do not think it a legitimate or admissible defense that h'e was inefficient or without learning. But as relates to his commissions on suits prosecuted or defended by him for the parish, we see no reason why his claim could not be resisted on the ground that the services were not rendered, or were inefficiently rendered. It is shown that the services claimed to have been rendered by Griffith in these suits, for which he was allowed a commission of five per cent, were rendered in fact by other attorneys ■employed and paid by the parish.

We think, therefore, that the claim of $550 damages, and the Griffith warrants, were properly rejected. But the evidence satisfies us that the other warrants and claims sued upon are legal debts of the parish. The Griffith warrants sued upon amount in the aggregate to the sum of $1246 61, which deducted from $1877 03 leaves $630 42 due plaintiff. The judgment below allowed interest only from date of verdict. This was error. It should have been from maturity of the warrants.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended, by increasing the amount thereof to.six hundred and thirty 42-100 dollars, and by allowing interest at five per ■cent per annum on said sum, -as follows :

On $10 thereof from October 3, 1871; on $70 thereof from July 6, 1872; on $5 thereof from September 3,1873; on $8 thereof from September 12,1873; on $100 thereof from April 13, 1875; on $250 thereof from November 6,1875; on $75 thereof from January 7,1876; on $48 25 thereof •from June 16,1876; on $13 90 thereof from July 17,1876; on $1 thereof from October 6,1876; on $29 10 thereof from December 1, 1876; and $20 thereof from December 28, 1876. That as thus amended said judgment is affirmed at costs of the defendant and appellee in both courts.


author: Morgan, J. Taliaferro, J. Spencer, J.

text:
    No. 5900.
    Mrs. Widow J. C. de St. Romes vs. the Levee Steam Cotton Press Co.
    In the absence of the Judge of one of the District Courts of the parish of Orleans, another district judge of that parish may grant an appeal from a judgment rendered by the absent judge.
    A motion to dismiss an appeal taken after the lapse of three days from the filing of the record in this court is too late.
    This court will, notwithstanding the acquiescence of the appellant in the judgment he has appealed from, proceed with the case, on the demand of the appellee, and change, or confirm the judgment for the latter’s benefit.
    The possession of shares in the stock of a corporation for three years, in good faith, and under a title translative of property; or their possession for ten years without good faith, or title, acquires the ownership of the shares by prescription.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Charles Louqiie for plaintiff and appellant.

      Edward Bermudez and. Charles E, Schmidt for defendant and other appellees.
   On Motion to Dismiss.

The opinion of the court on motion to dismiss was delivered by Morgan, J., and on the merits by Spencer, J.

Morgan, J.

On the sixteenth November, 1876, judgment was rendered by the judge of the Superior District Court dismissing plaintiff’s demand.

On the seventh October, 1875, she presented a petition addressed to the Superior District Court asking for an appeal from the judgment above recited. The order of appeal was granted upon her giving bond in the sum of three hundred dollars. The order of appeal was signed by “A. L. Tissot, judge of the Second District, acting in the absence of Jacob Hawkins, judge.”

Appellees move to dismiss the appeal on the grounds:

First — That no order of appeal was rendered by the judge of the Superior District Court by whom the judgment complained of was rendered, and who alone could grant the same.

Second — Because the judge of the Superior District Court could be replaced by an attorney or by another judge only in those cases in which he was recused or interested.

Third — Because the judge of the Superior District Court was neither recused nor interested in this case, and properly tried and decided it.

Fourth — There exists no legal enactment authorizing a judge to act in the place of another in any other case, and that if any law is claimed to exist, it- is unconstitutional and void.

The four propositions, as above set forth, are in fact reduced to the following question:

In the absence of the judge of one of the district courts for the parish of Orleans, can another district judge for the same parish grant an appeal from a judgment rendered by the absent judge ?

The thirteenth section of the act of 1855, No. 255, p. 317, provides that it shall be the duty of each of the judges of the district courts of Natchitoches, commencing with the judge of the first district court, to-hold alternately during one week the court which any one of the judges may be incapacitated from holding by reason of illness or by leave of absence.

Judge Hawkins, the judge of the Superior District Court, was absent when the appeal in this case was asked for. Judge Tissot acted in his place. We will assume that he was acting under the authority of the statute above quoted. He was therefore competent to grant the appeal.

Other grounds are urged why the appeal should be dismissed, but they were set up more than three days after the record was filed here. The motion came too late.

Motion to dismiss is denied.

Dissenting Opinion on Motion to Dismiss.

Taliaferro, J.

Numerous grounds for the dismissal are stated; the more prominent of which are the following :

First — No order of appeal was rendered by the judge of the Superior District Court by whom the judgment complained of was rendered and who alone could grant the same.

Second — The judge of the Superior District Court could be replaced by an attorney or by another judge only in those cases in which he was recused or interested.

Third — That the judge of the Superior District Court was neither recused nor interested in this case, and properly decided it.

Fourth — There exists no legal enactment authorizing a judge to act in the place of another in any other case, and if any law is claimed to exist it is unconstitutional and void.

Fifth — -Under no circumstances, except a constitutional provision, which is not to be found, could the General Assembly authorize the judge of the Second District Court of the parish of Orleans, a court of limited and probate jurisdiction, to act in the absence of and for the judge of the Superior District Court for the parish of Orleans, which has exclusive jurisdiction of certain persons and matters.

Sixth — The judge of the Second District Court, who made the order of appeal, was not the de facto judge of the Superior District Court, and did not claim, to be the judge thereof, as, on the contrary, the order is issued by him as judge of the Second District Court merely acting in the absence of the judge of the Superior District Court.

Seventh — The judge of the Second District Court could not have passed on the matters involved in this case had they been presented to him as judge of the Second District Court, and could not have exercised in the Superior District Court functions and powers as the acting judge of said court which he did not possess as the judge of the Second District Court.

The question presented by this motion is, was the judge of the Second District Court competent, in the absence of the judge of the Superior District Court, to grant the order of appeal that he did grant from a judgment rendered by the judge of the Superior District Court? I have been at some pains to examine the constitutional and statutory provisions which relate to the powers, duties, and functions of district judges, and have not succeeded in finding any warrant of law now in force to authorize an answer to this question in the affirmative. I find no law that sanctions the exercise vicariously by judicial officers inter sese of the functions appertaining to the judicial office. In cases of recusation for lawful cause, and also in case of interest in the suit, the judge before whom the suit is brought is disqualified and declared incompetent to try it. The State constitution, article ninety, provides that in the former case the judge shall appoint an attorney at law» having the qualifications of a judge of his court, to try such, suit, and in the latter case he shall call in the parish or district judge, as the case may be, to try it. But in proceeding to hear and determine the case, the judge or attorney called in is not exercising functions which the recused judge might legally exercise; on the contrary, he is called to preside for the very reason that the recused functionary is wholly without jurisdiction of the particular matter presented. But, in the case before us, when the judge of the Second District Court granted the order of appeal he performed an act which the judge of the Superior District Court was in no manner incapacitated to perform. No question arose as to his competency. The action taken by the judge of the Second District Court arose solely from the absence of the proper judge, and to facilitate proceedings; assuming, as it were, to represent the absent judge and perform his functions as an accommodation to him and to prevent delay to parties litigant in his court.

The interchange system between district judges, which formerly existed under the act of March 15, 1855, if it could have been construed as conferring upon the judges the power of alternately performing the duties of each other, never had any application to the district judges of the parish of Orleans, being exclusively confined to the country dis■tricts. The State constitution, article eighty-three, directs that for each district court one judge, learned in the law, shall be elected for each ■district by a plurality of the qualified electors thereof. In respect to the seven district courts established by this article of the constitution for the parish of Orleans, we find that the first has exclusive criminal Jurisdiction, the second exclusive probate jurisdiction, the third exclusive jurisdiction of appeals from justices of the peace; the fourth, fifth, sixth, and seventh exclusive jurisdiction in all civil cases except probate, when the sum in contest is above one hundred dollars, exclusive of interest.

In the organization of the courts, the principle of exclusiveness and distinctness in. the-exercise of the powers conferred upon them seems to have been steadily kept in view, and I think no fair interpretation of the constitutional provisions on the subject, as well as the enactments of the General Assembly bearing on the same subject, will justify the conclusion that a judge of any district court may legally take judicial action in a case pending in a court other than his own when the proper judge of that court has jurisdiction of the case, and is under no legal disability to try and determine it.

There did exist, prior to the adoption of the constitution of 1868 and the statutes regulating courts under it, a provision of law authorizing this alternative jurisdiction by the judges of the district courts of New Orleans. Section 13 of act No. 255 of the acts of 1855 provides that “it shall be the duty of each of the judges of the district courts of New Orleans, commencing with the judge of the first district court, to hold alternately during one week the court which any one of the judges may be incapacitated from holding by reason of illness or by leave of absence.” This act No. 255 of the acts of 1855 was approved on the 14th March, 1855. But the thirteenth section of this act is repealed by the act of 1870, entitled “an act to prevent conflict of jurisdiction between the several courts of this State and to punish the same.” The first section of this act provides “that whenever a suit or a judicial proceeding is instituted in any of the courts of the parish of Orleans, in this State, where such court has jurisdiction, all parties to such suit shall be confined exclusively to such court for the trial of all issues or matters that may arise in the course of such litigation, or out of the judgment rendered in such litigation; and no other judge shall have jurisdiction to grant orders of injunction, sequestration, provisional seizure,.arrest, prohibition, quo warranto, or any other order by which the proceedings in such litigation or judgment rendered therein, or the property in litigation, or persons of the parties in the litigation, shall be stayed or in any manner interfered- with or interrupted; nor shall any other judge grant any of the above, orders in favor of any party not a party to such. litigation or judgment, claiming to have an interest therein or to be affected thereby; but that all such orders shall be granted by the judge before whom the original suit or judicial proceeding was instituted; provided, that no provision in this section shall apply to the Supreme Court or the judges thereof.” The provisions of this act of 1870 being plainly inconsistent with the thirteenth section of the act of 1855, before referred to, the latter is repealed.

I therefore conclude the motion to dismiss ought to be sustained.

Chief Justice Ltidelino concurs in the dissenting opinion.

On the Merits.

Spencer, J.

Plaintiff sues the Cotton Press Company to have herself declared owner of sixty-six shares of the stock of said company and for dividends accrued thereon. She also joins as defendants, Cohen, Miltenberger-, and others, to whom said shares had been transferred in 1853, through one P. Deverges, acting as plaintiff’s agent. This suit was filed in 1871.

The defense is a general denial, and the prescription of three and ten years.

The court below sustained the plea of prescription and rejected plaintiff’s demands. She appealed.

In this court plaintiff has filed a paper, reciting that this suit was brought by her in error — Inasmuch as she finds, from documents in the record, offered by defendants, that she had in 1867 transferred to Eugene de St. Romes her rights in a suit then pending in this court, wherein she was claiming these same shares. She therefore suggests that she has no interest in the matter, and her counsel asks that the suit be dismissed. The defendants oppose the dismissal, and demand that the case “ take its course,” as provided by article 901 C. P., which forbids the appellant withdrawing a perfected appeal without the consent of appellee. Under these circumstances, we can not permit the appeal to be withdrawn or dismissed. An appellant may undoubtedly, at any time, acquiesce in the judgment appealed from; but the effect of that acquiescence only operates to -prevent any change in the judgment, for the benefit of appellant. The court may, notwithstanding the appellant’s acquiescence, on the demand of appellee, proceed with the cause, and change or confirm the judgment for the benefit of appellee.

On the merits, there is but one question requiring decision, to wit, that of prescription. Plaintiff herself alleges, and it is proved, that Cohen and his transferees have held and possessed these shares since 1853, under a transfer from one assuming to act as her agent. Her former suit, above referred to, was filed in 1861, and she did not make Cohen or those claiming under him parties. That suit, which resulted in a nonsuit, did not interrupt therefore the prescription running in their favor.

“ Shares or interests in banks and other companies of commerce or industry are considered as movables.” C. 0. 466.

Three years in good faith, except where the thing was lost or stolen, gives a prescriptive title to movables. C. C. 3472. Ten years, without title or good faith. C. C. 3475. The defendants possessed under a title, and presumably in good faith, for eighteen years before this suit was brought.

The judgment appealed from is correct, and it is affirmed.

Rehearing refused.


author: Mabr, J. White, J.

text:
    No. 7235.
    Antoine Lanata vs. Charles Bayhi.
    An appellant who is unable to furnish an appeal bond will be allowed, in place of the bond, to deposit with the clerk of court granting the appeal the amount of the bond fixed by the court.
    One who buys a negotiable note after its maturity takes it subject to all of the defenses that could be pleadod against his assignor.
    Where a factor takes the promissory note of his debtor for money due, and for advances to be made, and thereafter indorses and discounts the note and credits its maker with the proceeds, he does not, by subsequently taking up the note and debiting its maker with the price of taking it up, thereby extinguish the note, either by payment or by novation. He remains the owner of the note, capable of transferring a valid title to it.
    Where a debtor executes his promissory notes to his factor in order to cover advances due and to become due, the fact that the aggregate sum of the notes is something larger than the sum then exigible, will not impair the valid consideration of the notes, or convert them from principal into merely accessory debts.
    APPEAL from the Second Judicial District Court, parish of Plaque-mine. Pardee, J.

      Pmile Legendre and Victor Olivier for plaintiff and appellant.

      P. Howard Me Caleb for defendant and appellee.
    The opinion of the court on the motion to dismiss was delivered by Mabr, J., and on the merits by White, J.
   On Motion to Dismiss.

Mabr, J.

Antoine Lanata prayed for an appeal from the judgment of the District Court of Plaquemine parish, against him, in favor of defendant. The court granted the appeal with the condition that appellant should give bond “ with a good and solvent surety,” in the sum of $150.

Shortly after Lanata filed a petition, stating that he was unable to-give bond with a surety residing in the parish; and that he desired to deposit the amount in the hands of the clerk of the court. The order was accordingly granted, authorizing the deposit to stand in lieu of the bond with surety previously ordered by the court to be given by appellant.

Appellee, admitting the deposit of the $150 with the clerk, in compliance with this order of the court moved to dismiss the appeal for want of a bond.

The Code of Practice requires the appellant to give bond with a good and solvent surety; and it makes no provision for the case in which the appellant may be unable to give such bond. But article 3034 of the Civil Code, 3065 of the R. C. C., provides, specially for all cases in which a person bound by law or by a judgment to give a surety is unable to give such surety. The first clause of the article permits him to give a pledge or other sufficient security ; and the last clause authorizes him to deposit in the hands of the public officer, whose duty it is to receive the surety, the sum for which he is required to furnish a surety.”

Where there is conflict between the Civil Code and the Code of Practice, the latter must prevail: and this rule was applicable to the original Civil Code and Code of Practice, as it is now to the Revised Civil Code and the .Revised Code of Practice. But is there any conflict between the Civil Code and the Code of Practice in this respect? The Code of Practice is the law by which appellant is bound to give a surety; and it contains no provision, for it does not contemplate the case in which the appellant, or other person bound-by law or by a judgment to give a surety, finds himself unable to meet this requirement. That which is .a casus omissus in the Code of Practice is supplied by the Civil Code.

When we find two enactments, two laws, differing, we are not at liberty to disregard either, unless they not only differ but are also in conflict. The Code of Practice, which contemplates and provides for the cases only in which the appellant is not unable to give bond with a surety, does not conflict with the Civil Code, which contemplates and provides, specially, for every case in which a person bound by law or by a judgment to give a surety, finds himself unable to comply with this obligation.

The Code of Practice, originally, required of the appellant bond with a surety; and the Civil Code, originally, under the head of “Legal and Judicial Sureties,” provided for the inability of any person to give a surety required by law or by a judgment. The Legislature, by the adoption of the Revised Code of Practice and the Revised Civil Code, has expressed its will that the law, as laid down in the Code of Practice, requiring the appellant to give bond, with a surety, shall continue in force; and that the law, as laid down in the Civil Code, by which those who are unable to give a surety shall be dispensed with doing so, shall also continue in force. The Code of Practice, therefore, must be restricted to the cases in which the appellant is not unable to give a surety, and the Civil Code must be held to apply to all those cases in which the person bound by law or by a judgment to give a surety is unable to give such surety.

The Code of Practice, as amended, requires appeal bonds to be made payable to the clerk of the court. He is, therefore, the public officer whose duty it is to receive the surety. He receives the sum deposited by the appellant in his official capacity ; and he and his sureties are responsible for the safe keeping of and for the faithful accounting for the' sum so deposited, in the same manner as they are answerable for the performance by him of any other official duty.

The motion to dismiss is denied.

On the Merits.

White, J.

Bethaneourt was a commission merchant in New Orleans, Bayhi a planter in the parish of Plaquemine. Bethaneourt made advances to Bayhi for the years 1871 and 1872. On the 26th of February, 1873, Bayhi, by act before Bouny, notary public? declared that “ for the purpose of paying the expenses incurred during the year last past, 1872, and to be incurred during the present year, for the cultivation of his plantation, situated in the parish of Plaquemine, he has agreed to contract a loan of the sum of fourteen thousand dollars, and that in order to represent the amount of said loan, which is advanced by Mr. John Bethaneourt, of New Orleans, he has made and subscribed five certain promissory notes to his own order, and by him indorsed, dated this day and payable at the New-Orleans National Banking Association in this city at the following periods, to wit:

“ One for the sum of $3750, due on the 1st of December, 1873 ;
“One for the sum of $2500, due on the 15th December, 1873 ;
Two for the sum of $2500 each, due on the 1st .and 15th days January, 1874; and
One for the sum of $2750, due on the 25th day of January, 1874.”

For the security of these notes he mortgaged his plantation and obligated himself to ship his crops to the merchant, the proceeds to be applied to the extinction of the notes. ‘ On the 7th of April, 1877, the plaintiff brought the present suit on two of these notes, and the defendant urged substantially the following defenses, which ultimated successfully in the lower court:

1. That plaintiff acquired the notes sued on at a sheriff’s sale after maturity and is hence subject to all equities.

2. That the notes had been extinguished by payment and by merger or novation.

3. That they were given simply as collaterals to secure future advances to be evidenced by an account, and were therefore only accessories to a principal obligation which is extinguished, and if not extinguished of which the plaintiff is not the owner, and therefore prevented from demanding the accessory when he has no right to the principal obligation.

We will examine these defenses seriatim :

First. It is beyond doubt that Lanata, the present plaintiff, bought the notes at sheriff’s sale, after their maturity, the sale having been made under an execution issued against Bethancourt. Under these facts, he acquired only Bethancourt’s rights, and in passing on the questions of law and fact arising in the controversy wo shall apply the law just as if Bethancourt were plaintiff, giving to the present plaintiff no greater rights than Bethancourt could himself enforce.

Second. The alleged payment and novation results from the fact that Bethancourt during the year 1873 discounted the notes in controversy and credited the defendant’s account with the proceeds and when taking them up at maturity debited the account with the amount. It is urged that the debiting of the amount indicated that the payment was made by Bethancourt as agent of defendant. We do not so think. Bethancourt was indorser of the notes. He had a right to pay them. He had an interest in paying them. Not only this; but by the fact of payment he was legally subrogated. O. 0. 2661; Millaudon vs. Colla, 15 L. 213 ; Suarez vs. His Creditors, 3 L. 431.

But it is contended that even if this conduct does not show payment of the account it establishes novation of the notes by the account. How, it is said, could the amount paid by Bethancourt be debited unless that debt which represented the note entered into the account and carried necessarily the note with it? The notes were Bethaneourt’s; they had been given him not only for future advances but for money stated in the act of mortgage to be actually due. He had credited the defendant with the proceeds of the notes, and obviously when the notes were taken up the debiting of the amount simply balanced the credit, leaving both parties in the exact position in which they were before any entry in the books on the subject, Bethancourt remaining the holder.of the notes as originally issued to him by the defendant, Bayhi remaining the debtor for the ••sum which had been placed to his credit obtained from Bethancourt’s property.

That the mere credit of the proceeds of a note and subsequent debit of the amount does not per se operate a novation has been long determined by this court. Said Mr. Justice Bullard in Yard & Blois, Syndics, vs. Srodes, 9 L. 479 : ‘Í The defendant was really indebted to that house at the time in perhaps a larger sum, and if he had paid the note would have been entitled to a credit for that amount. * * * It is said that as soon as the note was returned it formed nothing more than an item in the account, so that Shall, Cantrell & Co. could not transfer a part of that account so as to divide their action against the defendant; but it is obvious that at least the note itself formed the best and perhaps exclusive evidence of an existing debt. Such an entry did amount perse to a novation.”

We are referred to a list of decisions by this court stated as being in conflict with the foregoing doctrine. We have examined them and do not so think. They hold that where notes are given for the accommodation of a factor and after discounting them, their mission, when taken •up by him, being accomplished, they are extinguished; or, as in the case of White vs. Rucker, 9 An. 114, that where the amount remaining due is less than the note an intention to novate the note by the account may be presumed. Such is not the ease here. The notes were given for an existing and valid consideration, and even as to future advances were given not simply as an accommodation ; but as evidence of a loan to be ■made for the future. The terms of the act of mortgage are express. It is said that although the notes purported to be for an existing consideration such was not the case ; that no debt existed at the time, and that the notes were merely for Bethancourt’s accommodation. The'language of the act of mortgage is unequivocal to the contrary. We are told, it is •true, that although the act of mortgage purported to be in part for' money due for advances made in 1872 there was nothing due for 1872. It is said the account for 1872 begins with a debit for $13,652 63 carried forward from previous years, and ends after the application of the crops of 1872 with a debit of only $13,504 40 ; therefore the debit at the end of the year being smaller than that carried forward at the beginning obviously no debt for advances existed in 1872, and therefore none was in existence when the act of mortgage was consented. This is a plain misconstruction. When the mortgage was consented, in February, 1873, the account for 1872 had been rendered the defendant. The common language of merchants is to state items charged in the account of the year as advances of that year ; and, therefore, when the parties said that ■the mortgage was consented to secure the advance of 1872 we consider 'it evident that they intended to mean not simply the advances made in 1872; but those charged in the account of 1872, which had then been-rendered. To hold the contrary, would be to say not only that Bethancourt, a merchant, accepted a mortgage in his favor to secure a debt not in existence when there was a debt actually due him, but also that the defendant mortgaged his property for a debt which he knew had been paid at the time of the mortgage. A construction leading to a presumption so full of intrinsic contradictions can not be correct. We think, to say the least, that the mortgage was a clear admission to the effect that the sums to the credit of the account were to be imputed to the amount carried forward from previous years, leaving the balance to the debitas really a debt due for advances made in 1872.

Third. The notes having been given for an existing consideration, and as evidence thereof, it is obvious that they were the evidence of a principal obligation. True, that at the time of the consenting of the mortgage the debt was only $13,504, and the mortgage and notes were for $14,000 ; but the existence of this small overplus could not destroy the existing and valid consideration.

The statement that at the time the last note sued on herein was paid and debited to defendant’s account there was a sufficient sum to the credit of the aocount to have paid it is incorrect. Even had there been, Bethancourt would have had a right to first apply the proceeds of the crop to the sum due him for advances of that year, for which he was a privileged creditor.

But even were we to accept the theory of defendant, that the notes were given to secure the final balance of account between the parties, the result would be the same, for the final sum due by the defendant in 1873, after crediting the proceeds of the crop of 1873, exceeded the total of the mortgage notes originally given. When the accounts were closed in 1873 there was to defendant’s debit $8624 76 ; but he had been in the account credited with the proceeds of all the mortgage notes and debited only with the two now sued on. In order, therefore, to ascertain the exact result of the operations of 1873, we must add to the debit side cf the account the face value of the outstanding notes which had been credited and not debited. So doing, we have a final debit of $16,424 76, an amount more than sufficient to cover the whole of the mortgage notes, greater than the amount carried forward from the previous year. We do not understand that where notes are furnished to secure a future loan the notes become an accessory obligation. Of course, where eo nomine, as was the case in Durrive vs. Key, 20 A. 154, an account is made a prerequisite to recovery, the contract is a law unto itself. The non-existence of consideration in a case like the one now before us would be a means of defense. We need scarcely say that the obligation evidenced by the notes is not barred’by three years, and that even if the notes were collaterals, their existence alone would bean impediment to the acquisition of prescription.

It is therefore ordered, adjudged, and decreed that the judgment of' the lower court be annulled, avoided, and reversed ; and, proceeding to render such judgment as should have been pronounced by the lower-court,

It is ordered, adjudged, and decreed that there be judgment in favor of plaintiff and against the defendant for the sum of six thousand1 two hundred and fifty dollars, with interest on three thousand seven-hundred and fifty dollars at the rate of eight per cent per annum from December the 1st, 1873, until paid, and with like interest on twenty-five-hundred dollars from the 15th of December, 1873, until paid, with five-per cent attorney’s fees and costs of both courts. The whole secured by mortgage of the property described in plaintiff’s petition and in the-act before E. Bouny, notary, on the 26th of February, 1873.

Behearing refused.