text:
    No. 2574.
    Louisiana State Bank v. John R. Buhler.
    Where the evidence shows that the acceptors of a draft were the factors of the drawer, and at the maturity of the acceptance the balance was in his favor, the holder must make demand and give notice, to enable him to recover of the drawer.
    To enable the holder of an accepted draft to recover from the drawer, on a subsequent promise to pay, he must show that the promise was made with a full knowledge of his discharge. 20 An. 43.
    APPEAL from District Court, Parish of West Baton Rouge. Posey, J.

      .Favrot & Lamon, for plaintiff and appellant. Barrow t& Pope, for defendant and appellee.
   Howell, J.

This suit is brought on two drafts for $2500 each, drawn by John Buhler, at Baton Rouge, on and accepted by Menard & Vignaud, in New Orleans, to the order of W. S. Pike, cashier, and by him specially indorsed to L. Bernard, cashier, or order — one dated May 7, 1862, due at ninety days, and the other dated May 14, 1862, d.ue at six months.

The drawer is dead, and his succession was accepted purely and simply by his son, the defendant, who, on the second of June, 1866, acknowledged, in writing, on each draft, that they were just, due and unpaid, and promised to pay them in due course of administration.

The defense is, want of protest and notice, and of knowledge at the date of the above promise, of his release in consequence thereof.

Our attention is directed to a bill of exceptions taken by the defendant to the admissibility of the depositions of J. and L. Menard, on the ground that the parish judge had no authority to grant the order for a commissioner to take testimony in a case pending in the district court, whore it was not shown that the party wanting the testimony apprehended that the witness was about to leave the State, or from any other cause he would bo deprived of the testimony, as is specially provided in Act No. 9 of 1868. As it is not made to appear that the parish judge did not have before him, at the time he granted the order, the evidence required by said statute, the presumption of law is, that he did his duty, and the depositions were properly received by the district judge.

The first question is, was the drawer entitled to notice of dishonor ?

It is shown that the acceptors were the factors of the drawer ; that at the maturity respectively of the drafts sued on he had a cash balance in the hands of the former of $1531 04, which is still unpaid; and that during the time between the drawing and maturity of the draffs the drawer shipped sugar to the acceptors, who furnished supplies to the former. Under these circumstances, the drawer was entitled to notice of dishonor. 3 An. 386. When a holder fails to demand payment and give notice of non-payment, he must, in order to recover, show that the drawer had no funds or effects in the hands of the acceptor, or that he had no reason to expect the draft to be paid. 19 L. 370 ; 20 An. 46; 21 An. 279. This is not shown in this case; but the contrary appears.

As to the second part, to recover on a subsequent promise to pay, it must be shown that the promise was made with a full knowledge of the discharge. 20 An. 46, and 21 An. 279, and the authorities cited in each.

There is no such proof here; but on the contrary, the defendant testifies that he was not aware that the drafts had not been protested, or that he was not bound to pay them.

It is therefore ordered that the judgment be affirmed, with costs.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    No. 2648.
    J. V. Sevier, v. Succession of J. G. Gordon.
    A party having shown the existence and loss of a letter written by the executor before prescription accrued, in which he acknowledged the debt, may prove its date and contents by parol testimony. In such a case, it is not the promise or acknowledgment of the deceased, but of the executor in writing, that is sought to be established by parol evidence.
    APPEAL from District Court, Parish of Tensas. Hough, J.

      Farrar t& Peeves, for plaintiff and appellee. Julius Aroni and Thomas P. Clinton, for defendant and appellant.
   Howell, J.

This caso was remanded at the last term for appeals from the parish of Tensas, to give plaintiff an opportunity to show an interruption of prescription pleaded in this court. Upon hearing evidence on the plea which was renewed in the lower court, judgment was rendered in favor of plaintiff, and defendant, appealed.

Plaintiff was properly allowed to prove by parol the date and contents of a letter, written by the executor before prescription accrued, in which he acknowledged the debt, after having shown its loss, which authorized secondary evidence. It was not the promise or acknowledgment of the deceased, but of the executor (in writing), who had before complied with article 985 C. P., by writing on the notes in suit the words, “Presented and allowed, and will be paid in the settlement of the estate.”

There is ample evidence of interruption of prescription.

Judgment affirmed

Rehearing refused


author: Wyly, J.

text:
    No. 2583.
    A. & M. Voorhies v. Wm. G. Harrison, Tutor.
    Where the evidence shows that the attorneys employed in the case have engaged the services of other attorneys as associate counsel, without the knowledge or consent of the client, an action will not lie against the client to compel the payment of the ices to such associate counsel.
    APPEAL from Fifth District Court, Parish of Iberville. Posey, J.

      A. & M. Vooriiies, for plaintiffs and appellants. A. Talbot, St. M. Perault and F. Legendre, for defendant and appellee.
   Wyly, J.

The plaintiffs have appealed from a judgment dismissing their demand against the defendant for professional services rendered him in a certain case.

The defendant denied plaintiffs’ right of action against him, and averred that he employed Berault & Legendre, attorneys at law, of the city of New Orleans, to conduct the proceedings referred to by plaintiffs, for a stipulated fee, which he has since paid them in full; that if plaintiffs were employed a"- counsel in said suit, as they allege, it was without his knowledge, consent or authorization ; that he relied alone on the attorneys employed by him, and to whom alone ho confided the management of said proceedings.

Ifc appears from tlie evidence tliat the defendant gave the mortgage notes for collection to Berault & Legendre, attorneys, stipulating a fee, which he afterwards paid them ; that said attorneys employed the plaintiffs to assist them ; that plaintiffs presented the petition to which their names were attached as attorneys, to the judge, and procured the order of seizure and sale; and that they filed the proceedings with the clerk of the court.

It appears that the executory proceedings wore enjoined, and that considerable litigation ensued in the inferior and appellate courts, but that plaintiffs took no part therein, the same being conducted by the counsel employed by the defendant.

The counsel who employed plaintiffs and the latter differ widely as to the contract by which they became associated in the case.

Albert Voorhies, one of'the plaintiffs, testified that “Judge Berault, of the firm of Berault & Legendre, came to see me to bo associate counsel of the defendant with his firm, which I consented to bo, provided the defendant would pay me a fee of nine hundred dollars, the amount proposed to me, and which I thought too low,' as I then remarked. I deny, most emphatically, having been employed as Judge Berault’s counsel. I was merely associated with him to represent the defendant; so much so that when I left for Baton Rouge my expenses, amounting, I think, to fifty dollars,.were paid by Mr. Miltenberger, the agent of the defendant.” * * * * *

Maurice Berault testified that sickness and business engagements, “ compelled the firm'of Berault & Legendre to employ for and on their own account, counsel to prosecute the claims. Judge Voorhies was applied to in December, 1865, or about a fortnight before the order of seizure and sale against Mrs. Ricard, to join Berault & Legendre in all the business and litigation touching the recovery of these notes of Cyprien Ricard. This application was made by affiant, who stated to Judge Voorhies the amount of the foe stipulated between Mr. Harrison and Berault & Legendre for all services to bo rendered as follows : Berault & Legendre were to receive four thousand dollars, and the amount of their traveling expenses, etc. Affiant stated to Judge Voorhies that the one-tliird of the feo of four thousand dollars had already been assigned by.Berault & Legendre, and that of the remaining two-thirds, two thousand six hundred and sixty-six dollars and sixty-six and two-third cents, he (Judge Voorhies) would receive the one-third, eight hundred and eighty-eight dollars and eighty-nine cents, and all expenses.”

After stating that Judge Voorhies objected to this proposition for several reasons, the affiant declared that, Judge Voorhies then concluded to accept the offer made him by affiant, and promised to give the business his early attention. To expedite which affiant, though unwell, drafted the petition for the executory process against Widow Ricard’s property, at least such portion of it as precedes the prayer, the description of the property being in the handwriting of the clerk, then in the employ of Berault & Legendre. The prayer appended to that petition is in the handwriting of Judge Yoorhies. The petition thus written down to the prayer was handed to Judge Voorhies by affiant, subject to such corrections and alterations as he (Judge Yoorhies) might think proper to make. The petition not being concluded, could not bo signed by Berault & Legendre, but could have been signed in their behalf, as affiant supposed it would be, by Judge Voorhies, who signed it only in the name of A. & M. Yoorhies.”

From the evidence of one of the plaintiffs, and also from the evidence of Berault, the counsel of the defendant, who employed them, there can be no doubt that plaintiffs’ cause of action, if, indeed, they have any, originates in a contract. It does not spring from a quasi contract. They became associated in the case by an agreement with «defendant’s counsel, and his liability to them will depend on the authority of the counsel to make the contract for him. No authority, whatever, to do so, appears in the record; on the contrary, the counsel who employed plaintiffs states that he explained to them that he was to get a certain fee, which he proposed to divide with them, or give them a certain share thereof; that sickness and business engagements compelled the firm of Berault & Legendre to employ, for and on their own account, counsel to prosecute the claims.”

If the counsel employed by the defendant saw fit to get others to perform the duties confided to them, they might become liable on their ■own contract, but they could not bind their client in a contract made by them without his knowledge or consent.

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

Rehearing refused.


author: Taliaferro, J.

text:
    No. 2605.
    Mrs. Anne Young et al. v. The Parish of Iberville.
    .A contract made under tlio authority of the police jury, to construct a private road across a tract of land in the parish, belonging to an absentee, stipulating that the land should pay the cost of construction, can not be enforced against the parish for the difference between the price which the land brought and the cost of mating the road.
    APPEAL from Fifth Judicial District, Parish of Iberville. Posey, J.

      Barrow & Pope, for plaintiffs and appellants. William B. Boh„ertson, for defendant and appellee.
   Taliaferro, J.

In the year 1861 proposals were made, under-the parochial authority of the parish of Iberville, for the construction of a road along the front of a tract of land lying on the Bayou Sorrel, and owned by Bronson, an absentee. The contract for doing the work was let out in the usual manner to the lowest bidder. Due publicity was given of the proceeding, and bids invited. The advertisement of the-road anddevec commissioner, after specifying the manner in which the work was required to be done, and the locality and extent of the same, concludes by announcing that “this work shall, be completed by tho first of March, 1862, and the land will be responsible for the work.” The adjudication was made to Balch, Warden, Young and Craden, at the price of fifty dollars per acre. It appears that tho work was done according to the terms expressed in the written act executed by the undertakers; that it was received, and the cost'of performance estimated at six thousand dollars. It seems that no steps were taken to 'enforce payment during the war then going on. We find that the tract of land on which this road was constructed was sold in October, ] 865, under execution, and that it brought $1151. That, the costs deducted, there remained $1048, to be applied in part payment of the $6000-allowed the undertakers, who claim interest at five per cent, per annum on that sum from the thirteenth of February, 1863. The credit of $1048 deducted on the thirteenth of October, 1865, they claim as a balance due $6041, with five per cent, interest from the date of the credit. For this balance they bring this suit against the parish of Iberville.

Tho defense is, that the road constructed across the land of Bronson, tho absentee, was not a public road lying on any water course or bayou, within tho meaning of the State laws, or the ordinances of the police jury relating to public roads. That the land across which the road was 'made was not expropriated according to law, or laid out under any ordinance of tho police jury, and expropriated for that purpose; and that tho road and levee commissioner for the twenty-second district of the parish exceeded his duty and authority in making tho contract he did with the undertakers. The defendant further pleads that the terms were expressly made known that the land would be responsible for tho work, and that tho contractors did not look to tho parish for payment.

Judgment was rendered for the defendant, and the plaintiffs appeal.

It seems free from doubt that there was no intention on the part of' the parish to be bound for the payment of the work. The stipulation was express that the land was bound, and nothing is said in tho agreement, or that can be inferred from it, that tho parish was to make good any deficiency that might arise from a failure on the part of the plaintiffs to make their money out of a sale of the land. Inelusiounius est exclusio alterius. We are satisfied the plaintiffs, when they entered into the contract, looked alone to the land as liable and sufficient to pay for the labor they undertook to perform. This agreement was made in the year 1861. The tract of land bound for the work contains eleven hundred and forty-one acres, and doubtless at that time was considered fully worth six thousand dollars, the alleged cost of the work. It is not shown that any provision, by ordinance of the police-jury of the parish, was made to pay for the work, or any contingent - deficiency that might arise after discussion of tho land.

We deem it unnecessary to examine the other points of the defense.

It is therefore ordered, adjudged and decreed that tho judgment of the District Court bo affirmed, with costs in both courts.


text:
    No. 2566.
    S. Henry Stockett v. Joseph Johnson, Executor.
    On trial of a rule to dissolve an injunction, the judge can not receive proof to establish aground for injunction not alleged in the petition. In all such cases the plaintiff is restricted to the-allegations in the petition.
    A mortgage debtor is competent to renounce the benefit of appraisement. This renunciation.' can be made as well in a twelve months’ bond as in an act of mortgage.
    APPEAL from tho Seventh District Court, parish of Pointo Coupee.

      Miller, J. Auguste Provosty, pro so., plaintiff and appellee. F. IP Farrar, for defendant and appellant.
   Wyly, J.

The plaintiff purchased a plantation at the succession sale of Henry Johnson, on twelve months’ credit, giviog Ms twelve months’ bond, secured by mortgage on the premises.

The bond was not paid at maturity, and the defendant sued out an order of seizure and sale, which was enjoined by tho plaintiff, on several grounds, to wit: The sale was ordered to be made without the benefit of appraisement; the order was granted without authentic evidence that the defendant was the executor; and on the ground of' defect in the title of the property purchased, to wit: That after the purchase the plaintiff sued out a monition, to which one Peter Stockett, in behalf of his wife (a legatee of Henry Johnson), made opposition, on the ground that tho property had been adjudicated to Stockett for less than its appraised value.

The court below perpetuated the injunction, and tho defendant has. appealed.

Our attention is directed to a bill of exceptions taken by the defendant to the rulings of the court, in receiving proof that the writ of sale did not have the seal of the court affixed to it.

We think the judge erred in receiving proof to establish a ground for injunction not alleged in the petition. We think it well settled that the plaintiff must be limited to the grounds taken in the petition, where none appear on the face of the papers rendering an injunction necessary. 3 L. 220 ; 2 An. 488.

In reference to the sale without the benefit of appraisement, we will remark that it was stipulated in the twelve months’ bond that if the l)ayment was not made on the day therein named, a the property of' the principal, as well as of the secureties, may be seized and sold without the benefit of appraisement.” ® * * *

In Broadwell v. Rodrigues, 18 An. 74, after an elaborate examination, of authorities, it was held that a mortgage debtor may legally renounce the benefit of appraisement.

It appears to us that the renunciation can bo made as well in a ■twelve months’ bond as in an act of mortgage.

As to the want of authentic evidence that the defendant was the executor of Henry Johnson, we will observe that the same appears in the act of sale and mortgage, and also in the twelve months’ bond, that the entire transaction was had with the defendant in his fiduciary ■capacity.

In reference to the defective title, urged by the plaintiff in bar of the proceedings, we will say that the record presents no serious ground of complaint on that account. The property was first offered for cash; no one bidding the appraisement, there was no sale. It was then ■offered on a credit of twelve months, and the plaintiff became the purchaser. At the credit sale it was not necessary that the property •should bring its full appraised value. C. P. 990.

There are other grounds stated in the petition, which arc unworthy of serious consideration.

It is therefore ordered that the judgment of the court a qua bo ■annulled, and that the injunction herein be dissolved, at plaintiff’s costs in both courts.


text:
    No. 2570.
    State, ex rel. J. S. Lobdell, Tutor, v. The Judge of the Fourth District Court for the Parish of Orleans, et al.
    A district judge of the parish of Orleans will he compelled by mandamus to grant a suspensive appeal from a final judgment rendered on default, if the appeal is applied ior within ten days from the service of notice of judgment, provided the case is in other respects appealable.
    APPLICATION for a Writ of Mandamus.

      JElmore <& King, for relators. Théard, Judge.
   Taliaferro, J.

Upon the relator's application to this court, praying for a writ of mandamus directed to the judge of the Fourth District Court of New Orleans, requiring him to grant the relator a suspensive appeal from a judgment rendered against him in that court in a certain suit brought against the relator and others by one Henry Bizon, and also for a writ of prohibition, a rule nisi was granted, and the thirty-first of January fixed as the day on which the judge was required to •show cause why the writs should not be made peremptory.

The respondent gave as reasons for refusing a suspensive appeal, that more than ten days had elapsed after the judgment was signed before the relator applied for a suspensive appeal, and therefore that he was not entitled by law to take a suspensive appeal; that the judgment .complained of was not rendered by default, as stated by relator, but ■after trial, and contradictorily between the parties; that Bizon, tho plaintiff, took a rule on tlie relator, as plaintiff, and several other parties, as defendants in another suit, in order to have his fees fixed as an auditor appointed by the court in that case; that this rule was served on the counsel for plaintiff and defendants; that all the defendants, by their counsel, appeared, but that the counsel for the relator did not appear; that judgment was rendered on this rule at the same time that the judgment was rendered in the main action; and that tho relator had knowledge of these proceedings, and therefore is not entitled to a suspensive appeal, not having, within the time prescribed by law, taken such appeal. And the respondent further alleges that the defendant’s counsel moved for a new trial in the case in which plaintiff had obtained judgment; and also, that a motion for new trial was made by the relator’s codefendants in the case, involving the question of the auditor’s fee; that tho hearing of these motions took place at the same time, and that the relator’s counsel was present on the trial of these motions, and that they were determined contradictorily between all the parties; and that this is an additional reason why the suspensive appeal should not be granted, the relator being thereby precluded from setting up want of notice.

The relator, in his application for process from this court, sworn to in due form, declares that the judgment on which execution issued and by virtue of which his property was seized, was rendered by default, without any legal notice of the proceedings by which the judgment was obtained, and without ever having made any appearance in answer thereto; that no notice of the rendition of this judgment was ever served upon him; that, having been informed of the alleged seizure of his property by the sheriff, he applied to the judge of the Fourth District Court for an injunction, and that an injunction was refused.

From an examination of all the papers and documents before us, we are constrained to think that the rule should not be discharged, and that the relator should be allowed the appeal prayed for.

It is therefore ordered that the rule be made absolute, and that the judge of the Fourth District Court of New Orleans grant the relator a suspensive appeal, to be made returnable to this court, according to law.


text:
    No. 2594.
    Succession of Elizabeth Tanner, Deceased, Wife of R. D. Jordan.
    By article 133 of tlie constitution of 1868, clerks of courts are prohibited from exorcising any judicial powers whatever, and the order of a clerk, after the adoption of the constitution, admitting a will to probate, is an absolute nullity.
    Tho parish judge, having admitted a will to probate and ordered its execution, is the only competent authority to appoint a dative testamentary executor.
    APPEAL from Parish Court, Parish of Lafourche. Nicolas, Parish
    Judge. Bash & Goode, for appellees. B. D. Jordan, opponent, in person, appellant.
   Wyly, J.

Richard D. Jordan has appealed from a judgment admitting to probate and ordering the registration and execution of tho will of Elizabeth Tanner, his deceased wife, dated eighteenth of July, 1868, and appointing Joseph S. Goode dative executor thereof.

Tho appellant has not filed an assignment of errors, nor has he furnished the court with either an oral or written argument in support oí his appeal.

Tho record presents a mass of confusion, showing', besides the original pleadings, numerous petitions, amended petitions, motions,, exceptions and bills of exceptions, and a large amount of evidence, all filed and admitted after an appeal had been taken and the jurisdiction of tho case had vested in this court.

Tho proceeding, however, supporting tho judgment, was simply an application to have the will of Elizabeth Tanner, of date eighteenth of July, 1868, admitted to probate, registered and ordered to bo executed, and to have Joseph S. Goode appointed dative executor thereof.

Now, in opposition to tho probating of the will of eighteenth of July, 1868, Richard D. Jordan presented a 'petition alleging that the deceased had left a will, of date twentieth of June, 1868, giving him the usufruct of her property; that he opposes the probate of the will of eighteenth of July, 1868, “ for the reason that, on the application of your petitioner, filed August 24, 1868, said qiretended will, which figured in the inventory, was submitted, by mutual consent of counsel, to the clerk of the Third District Court for probate, with another pretended will, dated seventeenth of July, 1868, all of which wills, marked 1, 2 and 3, on the twenty-fourth of August, 1868, prior to the passage of the act of tho Legislature organizing the parish court, approved fourth of September, 1868; that a eontestatio litis was made between the parties in interest under tho wills, and that the claims of said Lemuel Tanner, through his counsel, Bush & Goode, wore pressed forward, and all evidence requisite was adduced by said Tanner in support of the probate of said will, now attempted to bo probated by this court, and the probate of said will was rejected, and, in lieu thereof, tho will No. 1, dated twentieth of June, A. D. 1868, was admitted to probate, registry and execution; that this is no longer an open question, but res judieata. In further opposition he urges that tho application of Joseph S. Goode, as dative testamentary executor,, comes too late; the application of E. W. Blake has priority, and that ho is entitled to the same, both from being first applicant, a creditor, and by request of the bona ficle legatee. That should this court decide to admit this will to probate, it must take all three together, and bind itself to tho simple decision of the clerk of the court upon tho evidence offered by all parties interested, which was taken down and filed in the mortuary proceedings, all of which is hereto annexed as reference. For further opposition he urges that this court, under the peculiar circumstances, is without jurisdiction at this time, inasmuch as tho provisions of the seventh section of an act relative to the organization of the parish court, approved fourth of September, A'. D. 1868, has not been carried out. For further opposition ho urges that the validity of. the will in favor of Tanner can not be decided upon under the present pleadings; that the probate of the same is the only issue, and said probate being in favor of the will of the twentieth of June, 1868, and rejecting that of seventeenth and eighteenth of July, 1868, the legatees or persons interested must bring their action of nullity.”

After further urging in opposition to the probate of the will of eighteenth of July, 1868, that undue iufluence was exerted over the testatrix, and that she was not of sound mind, the petition concludes thus: “Reserving all the above points, in case your honor should decide against us, I would then pray for the homologation of the will of twentieth of June, 1868, marked 1, which is hereunto annexed, that the same be probated, registered and ordered to be executed, and that I and Mary C. Jordan be declared the only legatees, and that E. W. Blake be appointed dative testamentary executor, and for all other general relief.”

The court a qua decided that the proceedings before the clerk of the Third District Court of the parish of Lafourche, on the twenty-fourth of August, 18G8, were null and void, because the constitution of 1868, then in force, provides that all successions shall be opened and settled in the parish court; and, also, that no judicial powers shall be exercised by the clerks of courts. The court also admitted the will of eighteenth of July, 1868, to probate, registry and execution, and appointed Joseph S. Goode dative executor. The evidence in the record sustains the conclusion of the judge in admitting the will to probate, registry and execution. It also sustains the appointment of Joseph S. Goode, dative executor of the will of the eighteenth of July, 1868, ho being the only applicant to be appointed dative executor of that will. That the proceedings before the clerk of the district court, on the twenty-fourth of August, 1868, were mere nullities there can be no doubt, the same being in contravention of articles 87 and 133 of the constitution of 1868.

It is therefore ordered that the judgment appealed from be affirmed, and that appellant pay costs of appeal.


text:
    No. 1442.
    State of Louisiana v. Peter Orsini, alias Peter Manchini.
    The affidavit of the accused, after a verdict of guilty of murder, that he is not familiar with the English language, is not good cause for a new trial; nor will questions of fact, presented in the affidavit, he noticed on appeal.
    APPEAL from First District Court of New Orleans. Howe, J.

      B. B. lAjnch, Attorney General, for the State. II. C. Castellanos, for defendant and appellant.
   Wyly, J.

The defendant appeals from a judgment convicting him of murder without capital punishment, and asks this court to reverse the judgment and remand the case, to be proceeded in according to law. No errors of law are suggested as appearing in the trial of the cause; but the complaint is, that the district judge should have granted the motion for a new trial, based on the affidavit of the defendant, that he is slightly acquainted with the English language;, that on the trial of his case his witnesses were not called upon the stand; that he is anxious to have a new trial for the purpose of establishing the following facts.” * * * The correctness of the facts presented in the affidavit can not be determined by this court, its jurisdiction in criminal cases being limited to questions of law only. Article 74 of the constitution; State v. Bass, 11 An. 478.

But, admitting the truth of the averment, we see no legal grounds for granting a new trial. It is not stated that the slight acquaintance of the defendant with the English language prevented him from making adequate preparation for the trial, or that the evidence he desires to adduce, on a new trial, is newly discovered.

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

Mr. Justice Howe was recused in this case.


text:
    No. 1924
    Succession of Peter Williams.
    The creditors or heirs of an estate may proceed "by rule to compel the curator to pay the twenty per cent, interest per annum on the amount of the funds drawn from the bank by him without any order or authority from the court, but they can not couple witli such rule a demand; that the delinquent curator shall be dismissedfrom office. Acts of 1855, §2, No. 90, page 78.
    Proceedings to remove a delinquent curator from office must be commenced by petition and citation. C. P. 1018.
    In a proceeding under this statute to recover the twenty per cent, interest per annum on the amount withdrawn from the bank by the curator, besides any special damage suffered, judgment can not be rendered against him and his sureties in solido for the amount so. withdrawn.
    APPEAL from Second District Court,parish of Orleans. Thomas, J-

      Walter JX. Rogers, and Rudd & Grover, for appellants. Q. A. Thomas, for absent heirs, appellees.
   Howell, J.

In pursuance of an order of court, the curator of this succession filed an account, to several items of which, the attorney for absent heirs, made opposition, and pending the same took a rule on the curator to produce his bank book on the trial of the opposition, and show cause why the penalties of the act of twelfth of March, 1855, should not be inflicted on him and his securities. Judgment was rendered, sustaining the opposition in part, and making the rule absolute, dismissing the curator from office, and condemning him and his securities in solido to pay a certain sum of money, drawn by him out of bank, without authority, from which they appealed.

Tlie attorney for absent heirs suggests that, as the clerk’s certificate-shows that several documents are missing, the court should dismiss the appeal, and cites several authorities to support his suggestion.

It appears, however, that these missing documents were not offered in evidence in the proceedings resulting in the judgment appealed from, and that all the documents and testimony adduced in said proceedings are in the transcript. There is, therefore, no ground for-dismissing the appeal on this suggestion of the attorney.

The items of the account, the opposition to which was sustained, are three sums in favor of the curator himself — one of $910 for services as agent of the deceased, one of $828 for three years’ board of the deceased, both of which were rejected; and one of $227, as commissions on the amount of the inventory, which was reduced to $68 41 as. commissions on the sum distributed.

He contends that the first and second items are established by a former account filed by him, and which, he alleges, was homologated by judgment of the court, and is therefore binding on the estate. In support of which he cites articles 1056, 1058, 1168, 1169, 1172 C. C.; articles 539, 548 C. P.; 3 An. 383; 14 An. 706; 8 K. 121; 2 B. 54.

The alleged judgment of homologation is not in evidence, and lie proof of any kind was introduced to establish the verity of said claims. But if we are justified in referring to all the mortuary proceedings which appear Lin the transcript, we find quite enough to sustain the judge a quo in disregarding said account and its pretended homologation as proof of the curator’s claims against the succession. It was filed, along with the inventory, on the day before letters of curatorshipwere issued to the curator, and in the accompanying petition he prayed for an order to draw out of bank the sum of $968 88, being the amount of cash to the credit of the succession, to pay privileged debts as far as possible, and that after service of the petition, account and inventory on the attorney for absent heirs, and all due legal proceedings the account and inventory be homologated and approved. The suggested service does not appear to have been made, and the only order granted was one directing the account to be advertised. Ton or twelve days thereafter a petition was filed, and an order indorsed thereon “that said account be approved and homologated so far as not opposed.”' On the same day a petition was filed asking for and obtaining an order to sell certain property-to pay the debts of the succession. It will be observed that the curator has not, so far, asked for an order or authority to pay any specified debts, or in accordance with any account presented by him. Some six months after the above sale was ordered, the attorney for absent heirs took a rule to compel the curator to file-an account of administration, which resulted in the account now under consideration, and which embraces all the liabilities and assets, which were set forth in the first, as well as others, but no allusion is made in the account or petition accompanying it, to any former account •or payments. Whatever effect may result from the filing of the first statement of liabilities and assets, and the order approving it, as to other persons, the curator can not invoke them, under the circumstances, ■as establishing the verity of his own claims against the succession, so as to preclude opposition to them, when found in a subsequent account, which he asked to be advertised, approved and homologated. The filing of the first, at the time and in the manner it was done, was irregular, ( C. P. 988; C. C. 1167, 1168), and nowhere does an order of the court appear, directing him to draw money from the bank or authorizing him to pay any debts (C. C- 1177) prior to the filing of the account which is now successfully opposed by the attorney of the absent heirs.

The commissions were properly reduced, as the administration seems not to be closed. C. C. 1187-8. The bank books show that the curator deposited in and drew from the bank several thousand ■dollars, for which withdrawal, as above stated, he produces no authority from the court. This, by the express terms of the act of 1855, pages 78, section 2, makes him, with his securities, liable'to'pay ■twenty per cent, interest per annum on the amount so withdraw)), besides any special damage suffered, and to be dismissed from office; but does not warrant a judgment against him and his securities in ■solido for the amount withdrawn. Nor does the section under which the rule was taken, change the mode or form of proceeding by which the delinquent curator is to be removed, which must be done by petition and citation. C. P. 1018.

Conceding that the act of 1837, page 95, section 3, implied the right to decree a dismissal on the rule therein authorized, section 2 of the act of 1855, on the same subject, differs in this respect from said act, and repeals all laws on the same subject, except what is in the two Codes. By articles-1019 C. P. and 1151 C. C., it becomes the duty of the judge, when a fact or reason justifying dismissal comes to his knowledge, to •direct the attorney for absent heirs to institute suit for that purpose.

We conclude that the judgment of the court a qua, on the opposition, is correct, but that on the rule, dismissing the curator and condemning him and his securities to pay $1899 89, is erroneous.

It is therefore ordered that so much of the judgment appealed from, as dismisses P. Bourke from the office of curator, and condemns him and his securities in solido to pay $1899 89 to this estate, be reversed, without prejudice to the right of action against them or either of them in proper form; and that in other respects the said judgment bo affirmed, costs of appeal to be paid by the succession.


text:
    No. 1857.
    Succession of J. I. DePouilly.—On Opposition of heirs to the Account of the Executor.
    The giving of a check for money is a manual gift, and is subject to no other formality than that of delivery.
    A. donation inter vivos of a promissory note must bo passed before a notary public and two witnesses, under penalty of tmllifcy C C 1523,
    APPEAL from Second District Court, parish of Orleans. Thomas, J.

      A. Voorhies and Oollens & Wooldridge, for executor, appellant. A. Robert, for the heirs, appellee.
   Howell, J.

The heirs of the deceased opposed the homologation of the executor’s account filed herein, on the ground that he has not accounted for twenty-five hundred dollars in cash and two mortgage notes of twelve hundred and fifty dollars each, received by the deceased as the price of certain property sold by him, and which they allege he deposited with said executor for the benefit of his succession, but which the latter has converted to his own use, under certain pretended personal rights on them.

The evidence shows that DePouilly died on the twenty-fifth of December, 1866; that three days prior thereto, to wit, on the twenty-second of December, he handed to P. H. Mousseaux, as a gift, a check for $2286 drawn on that day to the order of and collected the same day, by said Mousseaux, and the two notes above referred to ; that on the same day (the 22d) the deceased made a will, appointing said Mousseaux his executor, making a small legacy to him and one to a servant, and instituting the opponents his universal legatees.'

The question presented is, was this a manual gift within the meaning of article 1526, C. C., which reads: The manual gift, that is the giving of corporeal movable effects by a real delivery, is not subject to any formality.”

A manual gift is, by this article, the giving of corporeal movables, which must be actually delivered.

As the evidence shows that the sum of money, for which the deceased gave his check on the bank, was immediately reduced to possession by Mousseaux, it must be considered a manual gift within the meaning of the above article. An actual, real delivery of a corporeal movable effect (money) was made, and no other formality was necessary. The check was the means or vehicle of delivery.

But the mortgage notes come within a different classification or description of things.

A promissory note is a written engagement or promise by one to pay another person, therein named, absolutely and unconditionally, a certain sum of money, at a time specified therein. The written instrument is the evidence of the obligation to pay. An obligation is not a corporeal, but an incorporeal thing. C. C. 451. A promissory note, then, must come within the operation of article 1523 of the Code, which says: “ An act shall be passed before a notary and two witnesses of any donation inter vivos of immovable property, of slaves or incorporeal things, such as rents, credits, rights or actions, under the penalty of nullity.n

It was not the pieces of paper that were given, but the obligation of the debtor or maker to pay the sums evidenced by the writings. This was the view taken, and, we think, correctly, in the case of Morris v. Compton. 12 R. 76.

It is therefore ordered that the judgment appealed from be so amended as to order the executor to account only for the two notes described in the act of sale on file, with the interest therein stipulated, and that, as thus amended, the judgment bo affirmed. Costs of appeal to be paid by P. H. Mousseaux, appellee.


text:
    No. 2354.
    David S. Bryon v. H. Kendall Carter.
    A purchaser at sheriff sale of bank stock can compel a transfer of the shares of stock on tho books of the bank, although the seized debtor may owe the bank at the time an amount above the amount of the stock purchased, evidenced by his notes held by the bank.
    A clause in the by-laws of a bank, adopted by the board of directors, subsequently to the issuing of the stock, that “no transfer of stock shall be made when the party is indebted to the bank as principal, indorser or security on any obligation that is due, as long as it „ remains unpaid,” is not binding on the judgment creditors of the stockholders.
    A PPEAL from Seventh District Court, parish of Orleans. Bellowes, J.
    AL B. S. Bryon, for plaintiff and appellant. A. & M. Voorhies, for defendant and appellee.
   Wyly, J.

The plaintiff, under his own judgment against the defendant, purchased one hundred and thirteen shares of the capital stock of the Crescent City Bank, belonging to the latter; and the sheriff took a rule on the bank to show cause why he should not be permitted to transfer on its books the stock to the purchaser. In answer to tho rule, the Crescent City Bank pleaded the general issue, and averred that the defendant, H. Kendall Carter, owed it $31,972, evidenced by liis notes, and averred “that said stock can not be transferred as long as said notes remain unpaid, the bank being entitled to plead compensation, which she now sets up.” The rule was made absolute, and the Crescent City Bank appealed.

The validity of the sale is not contested.

Tho question to be determined is, can the purchaser at sheriff’s salo of the shares of the bank stock of his debtor compel the bank to permit the transfer of the stock to be made on its books, when .the stockholder himself owes it a sum of money, evidenced by his notes ?

The plea of compensation raised in the pleadings is manifestly unavailing. It is merely a mode of extinguishing a debt. The debt of H. Kendall Carter can not be compensated by the shares of the bank stock held by him and seized by the sheriff, and sold to the plaintiff; because the certificates of stock are not debts due by the bank, they are merely the evidences of ownership of the shares, or of the titles of property.

It is, however, urged that the act of 1855, establishing a general system of free banking in the State, authorizes such institutions to make and ordain such by-laws as may be necessary for the proper management of the corporation, in conformity with the provisions of law; “that the shares of the banking companies shall be personal property, and shall be transferable on the books of the same in such manner as the by-laws may direct.”

That in pursuance of the provisions of said act, the Crescent City Bank adopted its by-laws, one provision of which declaring that, “ Noi transfer of stock shall be made when the party is indebted to the bank as principal, indorser or security on any obligation that is due, as long as it remains unpaid.”

The bank contends that the purchaser of the shares at sheriff’s sale occupies no better position than II. Kendall Carter, the judgment debtor; that the adjudication only invested the purchaser with the same legal rights which Carter previously held in and to the stock.

It contends that under the eighteenth section of the by-laws, Carter could not require the transfer on its books of the stock as long as he remained indebted to the bank. If the by-laws had been made by the stockholders, instead of the directors, and II. Kendall Carter had been a party to the agreement between them in making the by-law prohibiting the sale as long as he might be indebted to the bank, he might, perhaps, be estopped by his covenant from making the transfer or demanding the transfer on the books of the bank. We do not think, however, that his agreement, if established, to the prohibitory clause of the by-laws made subsequent to the issuing of the stock, could affect the rights of his judgment creditor herein, to seize and sell his property, the bank stock, and to demand the completion of the titles thereof. Parties who own property can not bind themselves not to alienate their property as long as they owe a certain debt, so as to preclude their judgment creditors from divesting them of the ownership by forced sale. If the principle contended for by the bank be true, owners of property, or the bank, their creditor, can make an agreement to defeat their other creditors — not only to defeat them from recovering what is due, but debar them from the right of making a forced or judicial sale of their property.

The corporation is merely a juridical person; it can make no regulation or by-law to deprive a judgment creditor from selling the property of his judgment debtor, and from acquiring a formal transfer of the property to himself, if he becomes the purchaser.

The bank does not set up any lien or privilege on the shares of the stock held by the defendant; it claims no preference on the proceeds resulting from the adjudication.; but contends that under its by-laws, the shares of stock held by their debtor, Carter, are no longer the objects of a sale or alienation. That because he happens to be indebted to them, for which they claim not even a privilege, his property can not bo sold by his judgment creditor, the plaintiff. In effect, the bank assumes that it can ordain by-laws to remove property from commerce. The argument is a glaring absurdity. The act of 1855, authorizing free banks, declares that the shares shall be personal property, and be transferable on the books of the corporation “in such manner as the by-laws may direct.” Act 1855, section 8, authority to direct tho manner of the transfer of bank stock on its books, certainly does not authorize the bank to prohibit the transfer. We know of no mode .by which a creditor can secure his debt in the manner contended for by tho bank. We know of no law authorizing a creditor to place the property of his debtor out of commerce on account of the debt.

The case presented in the succession of Walsh, 9 An. 543, relied on by the bank, is not in .point. The relation of the parties is different. In that case, the Crescent City Insurance Company owed Walsh a debt, evidenced by their scrip containing on its face the clause, “ This certificate is transferable only on the books of the company with its consent, by the said Walsh or his attorney.” The obligation of the company was for the payment to Walsh, of a certain sum of money, on a certain contingency contemplated in the company’s charter, with interest, subject also to tho contingency therein contemplated; and the promise was made with the express reservation that it was not to be assigned, or that no new creditor was to be substituted without the company’s consent. In that case, the certificate was not even negotiable paper, a clause to the contrary being expressed on its face; but it merely evidenced a debt due to Walsh by the company, against which they desired fro plead anjr offset they might afterwards have. And the court decided there was nothing unlawful in such a stipulation, made under a provision of the charter, and that a court of justice should give it effect according to its just import, and in fulfillment of the intention of the parties to the contract.

Wc said there was a difference in the relation of the parties.

In that case, Walsh was a creditor of the insurance company, and in course of their business might become also a debtor, andhis position toward them was such that compensation might arise at any moment. In the case before us, however, the certificates of bank stock do not evidence debts to be extinguished by compensation, or any other legal mode of discharging obligations.

H. Kendall Carter, the holder of the certificates of stock, did not occupy towards the bank the relation of a creditor to his debtor. The bank owed him nothing. He was not its creditor, against whom a debt might arise, and the plea of compensation be applicable. He merely owned certain property, tlie certificates of stock, and owed a juridical person, the bank, an ordinary debt. That he owed the bank a debt did not prevent the plaintiff, his judgment creditor, froni selling and becoming the purchaser of property which was in commerce.

It is therefore'ordered that tho judgment appealed from be affirmed, with costs.


author: Howble, J.

text:
    No. 2569.
    Succession of J. P. Bingay.—On Opposition of Amant Bourgeois, Tutor.
    The parish court has exclusivo original jurisdiction to settle disxnites arising from the opposition to an account and tableau of distribution filed by the executor or administrator, regardless of the amount involved in the opposition; but where the validity or correctness of the demand is brought in question, either by the executor or administrator on tbe one side, or the creditor on the other, then the jurisdiction of the parish or district court is governed by tho amount involved.
    APPEAL from the District Court, parish of St. James. Beauvais, J.

      IP. P. Poché, for administrator, appellant. J. K. Gaudet, for opponent, appellee.
   Howble, J.

^The only question presented by this appeal is, whether or not the parish court has jurisdiction of an opposition filed by a creditor whose claim, exceeding five hundred dollars, had been recognized by a judgment of tho district court against the succession, before the opposition to the tableau was filed and transferred to the parish court 1

Tlie question must be answered in the affirmative. The constitution requires that “all successions shall be opened and settled in the parish courts,” and, necessarily, these courts must have the jurisdiction and powers essential to the settlement of successions. Among these is the jurisdiction over tlie distribution of funds in the hands of an administrator. Where claims have been recognized either by the administrator or by judgment of a court, there is no longer any contestation between the creditor and the succession, in the meaning of that clause of article eighty-seven of the constitution which says: “ All suits in which a succession is either plaintiff or defendant, may be brought either in the parish or district court, according- to the amount involved.”

The “suit,” in this instance, against the succession to establish the existence or validity of tlie opponent’s claim, has already been decided, and the opponent can only demand that he be paid, in accordance therewith, in duo course of administration — that is, concurrently with the other creditors — out of the funds of the estate as they are or may be realized. C. P. 987. The constitution must control the Code of Practice; but the latter may, in cases of doubt, be referred to for the meaning of words and terms as used in the former, the convention being supposed to use them in the sense in which they had been used. Under this rule the word “ suits,” in the above clause, must mean suits brought by a succession, or suits against a succession for any claim for property or money. The mode of obtaining payment is not changed by the said clause, but left as fixed by the preceding clause, requiring all successions to be settled in the parish courts. Any other -conclusion would leave it in the power of an interested administrator ■■or creditor to cause great delay and expense, and virtually determine, •by Iris own act, the jurisdiction of the parish and district courts — a result never contemplated by the convention.

In this case it is difficult to see what jurisdiction the district court can bo called on to exorcise. It has already rendered a judgment ■against the succession in favor of the opponent. It can not render a judgment on that judgment, nor can it issue execution thereon. And it certainty can not bo called on to order the administrator to pay the opponent’s claim without having all the parties before it, or even concurrently with them. Such settlement must be had in the parish court. Tho district court has already exhausted its jurisdiction as to this particular claim, and tho parish court is vested with jurisdiction of the question, whether or not the opponent’s judgment must have a place, and what place, on the tableau of distribution; that is, whether or not the opponent has, by virtue of his judgment, a right to a share of the fund on distribution — it being a question of rank?

It is therefore ordered that tho judgment appealed from be reversed, and that there be judgment dismissing the rule taken on fifth November, 18G9, by Amant Bourgeois, tutor, to rescind the order of transfer, with costs in both courts.


text:
    No. 1914.
    Henry Ware & Son v. John G. Wilson.
    In a suit to malie tho sheriff liable on a bond for the release of property under seizure, parol evidence is admissible to show that the sheriff has never parted with the possession of the property under seizure. The sheriff may show, also in a case of this hind, under what oiroumslances the bond made its appearance in the record.
    Where the return of the sheriff on the writ of fieri facias contradicts the recitals in the face of the bond of release, the entries made by the sheriff will control.
    A bond of release, executed by the seized debtor, is of no force until the seized property is released by the sheriff.
    In a rule against the litigants for costs, the sheriff will be restricted to the charges allowed by law, and if any of the items are overcharged they are forfeited.
    APPEAL from Sixtli District Court, parish of Orleans. Cooley, J.

      Brice & Mitehel, Bradford, Lea & Finney, and Semines & Mott, for appellants. Face, Foster & F¡. T. Merrielc, lor appellees.
   Howell, J.

The record in this case presents two appeals taken by the sheriff of the parish of Jefferson — one from a judgment decreeing him to be liable on a bond alleged to have been received and accepted by him for the release of certain horses sequestered herein; the other from a judgment on a rule taken by Mm on plaintiffs for the payment of his costs.

Tlie first judgment is erroneous. The return of the sheriff on the writ of sequestration, to which the bond in question was attached, as appears only by the minute or note of the clerk of the court, does not show that the property was released; but, on the contrary, shows that a keeper thereof was appointed, and makes no mention of a bond of release. Upon this return, and the answer of the sheriff, it was competent for him to introduce parol proof that he had never parted with the possession of the property, but still held it by virtue of the writ. The evidence offered did not contradict, but rather supported his return, and we can see no good reason why he should not, in defense to the plaintiffs’ rule, be permitted to show how the bond made its appearance among the papers of the suit, or was attached to the writ, the return on which, and not the recitals in the bond, must control. The bond is necessarily drawn up and signed before there can be a release and delivery of the property, and its terms and conditions are prescribed by the law, while the return on the writ is the act of the sheriff, and must show what he has done under it. The appearance of the bond in the papers of the suit, and attached as it was to the writ, does not necessarily conclude the sheriff, and should not have misled the plaintiffs, for these very documents (the writ, the return thereon, and the bond as attached), offered to sustain their objection, were well calculated to notify them that there was at least some doubt as to whether the property had been released. The act of 1839, p. 168, sec. 18, on which they rely, says: In all cases where property attached, sequestered or provisionally seized, shall he released on the defendant executing a bond with security, the sheriff shall be bound to return the bond so taken by him into court in the same manner as is provided for bail bonds.” This law clearly contemplates a release of the property, and its delivery to the party executing the bond, which thus represents and takes the place of the property; but if, in point of fact, the property is not released, but is still held under the writ, the bond receives no vitality. When the bond is executed, accepted, and the property released, the writ is thereby set aside, all of which must appear by the return of the sheriff on the writ. C. P., art. 279, 282.

We deem it proper here to remark that the record contains no evidence that either the defendant or plaintiffs ever applied for an order to bond the property. A rule for the purpose was taken by one of the intervenors to bond apart, which was accepted by the sheriff, but does not appear to have been served on cither plaintiffs or defendant. It is true the judge, more than a month after it was filed, rendered an order thereon directing the sheriff to permit defendant to give bond, but this action seems to be ex parte and irregular.

The evidence which was excluded is in the record, and satisfactorily shows that the sheriff has not given up the possession and control of the property. What may be his liability for allowing one of the horses to be taken to another parish, and subjected to seizure there, and for ■permitting him to be used, is a question that' does not arise in this proceeding.

As a sequence to this conclusion, the judgment on the rule taken by the sheriff, which limited his demand for costs to the date of the alleged release, must be changed, and his legal costs allowed to the date claimed in the rule, subject to a credit of five hundred and sixty dollars paid by-plaintiffs.

Section twelve of the act of 1855 (p. 166), amended in 3867 (p. 343), designates what iees of office the sheriff “shall be entitled to demand, and no more.'1’ Sections two and three of the former act declare that an overcharge of any item shall work its forfeiture, and forever bar the clerk or sheriff from collecting the same.

Most of the fees of office in the bill bofore us are overcharged, not allowed by the fee bill, or improperly charged to the plaintiffs in the suit. The items for executing the writ of sequestration, and the mileage, are overcharged, and therefore forfeited. The charge for “ sequestering,” as a separate item, those, for appointing and discharging keepers, for the notice of sequestration, return thereon, and mileage, for making inventory and returning- the writ, being included in the charge, for executing the writ, are not allowable. The items for service and return of petition and citation, being overcharged, are forfeited. The fees in the various interventions are chargeable to the plaintiffs therein irrespectively, and not to the plaintiffs in the main action. The charges in favor of the sheriff of the parish of Orleans, and those for witnesses sent for by order of the court are not sustained by evidence. The following fees of office in the bill filed July 24, 1868, amounting to twenty-three dollars, are all that can be allowed against the plaintiffs in this proceeding, to wit: December 30, 1867, subpena duces tecum and mileage, $2 50; rule and mileage, $2 50; December 16, rule and mileage, $2 50; three subpenas and mileage, $5 70; December 17, motion, order and mileage, $2 50; two subpenas and mileage, $3 80; February 19, 1868, two rules and mileage, $3 50. There were eleven animals under seizure, for the keeping of which, the evidence authorizes an allowance of $8 75 per day, which, for the time embraced in the rule, from November 20, 1867 to June 1, 1868, (one hundred and ninety-four days), amounts to $1697 50. The charge of twenty-five dollars for moving property is also established, making, in all, a total of $1745 50, subject to a credit of five- hundred and sixty dollars.

It is therefore ordered that the two judgments appealed from herein' be reversed, and it is now ordered that there be judgment in favor of J. T. Michel, sheriff, dismissing the rule taken on him by the plaintiffs, II. Ware & Son, on the twenty-fourth January, 1868; it is further ordered that the rule taken, by J. TV Michel, sheriff, on plaintiffs, H. Ware & Son, on thirteenth June, 1868, be made absolute, and that he recover ot said H. Ware & Son, in solido, the sum of $1745 50 for his costs and charges up to first June, 1868, subject to a credit of five hundred and sixty dollars paid thereon, and that said Ware & Son, appellees, pay costs of these proceedings in both courts.


text:
    No. 2595.
    R. N. Sims, Administrator Succession of Modiste Brand, v. William C. Lawes.
    A party who voluntarily executed a judgment directing the sale of his mortgaged property, is not permitted to appeal from it.
    APPEAL from the Fourth Judicial District, parish of Ascension.

      Beauvais, J. 22. 27. Sims, for plaintiff and appellee. W. G. Lawes, for defendant, appellant.
   Taliaferro, J.

A motion is made in this court to dismiss the appeal on the ground that the defendant and appellant liasvoluntarily executed the judgment rendered against him in the lower court. The record shows that at a sale of defendant’s property under an order of- seizure and sale, taken out against him as third possessor, he became the purchaser, paid a portion oí' the price bid in cash, and executed promissory notes payable in six months for the remainder, the time being granted by the-administrator, the terms of sale requiring the entire price in cash. The defendant, about four months afterwards, applied for and obtained a devolutive appeal. We think, under this state of facts, he has. divested himself of the right to appeal. C. P. 567, 14 An. 329, 15 An. 679, 18 An. 59.

It is therefore ordered that the appeal in this case be dismissed, at-appellant’s costs.


author: Howe, J.

text:
    No. 2568.
    Xavier Levet v. His Creditors.
    An executed contract of transfer of a promissory note will not be set aside on the ground tliat tbe agreement or consideration of tbe transfer was contrary to public policy. In such a case the law will leave the parties where their conduct has placed them. 19 An. 498.
    APPEAL from.the District Court, parish of St. John the Baptist.

      Beauvais, J. 22. Billeul, for plaintiff and appellee. 22. BoeM, for opponent, appellant.
   Howe, J.

Nicholas Daunoy, as syndic of the insolvent, Levet, filed, in February, 1869, his final tableau of distribution.

■ Mrs. Etienne Daunoy, a creditor, opposed the homologation so far as one item was concerned — the sum of $825 46, a dividend proposed to-be paid to Francis Ecrot as holder of a promissory note for $2979,. made by Levet, and secured by mortgage and vendor’s privilege. No want or illegality of consideration was alleged as to tlxe note itself — it was, we presume, given for tlxe purchase price of land — but the opponent averred, that she was once holder of the note, and as such transferred it to one Reber, as agent, and for the use of Ecrot, for ■Confederate money.

The opposition was properly dismissed by the lower court. The contract of transfer of the note from opponent to Ecrot was complete and executed. The object was delivered. If the agreement was contrary to public policy, the law will simply leave the parties where they have placed themselves, and in such case melior est conditio possidentis. 19 An. 498, Windham v. Cerf.

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


text:
    No. 2580.
    Coleman & Kirk v. Mollere & Cire.
    ■Where the defendant, in answer to a demand, avers a settlement in full between the parties, the burden falls upon him to make good his defense.
    APPEAL from District Court, parish of Ascension. Beauvais, J.

      B. JL. Sims, for plaintiff and appellant. W. G. Lames, for defendant and appellee.
   Howell, J.

Plaintiffs sue for the sum of four thousand three hundred and seventy dollars, less ten per cent, thereof, with legal interest from judicial demand, as the value of certain goods delivered to the defendants, on the twenty-first of December, 1860, as per receipt annexed to the petition, to be sold on commission. The answer admits receiving the goods as charged, but alleges that the defendants disposed of the same, or a part thereof, according to instructions, and accounted for the whole in the month of December, 1861, and took .plaintiff’s receipt therefor, which is lost or mislaid.

The burden was thus assumed by the defendants to make out their defense, which they have not satisfactorily done. One of them testified that, in December, 1861, he settled with one of the plaintiffs, accounted for all the goods, and gave a receipt for all he had on hand. He says that he wrote to said plaintiff that all the goods in his possession were forcibly taken by the Confederate authorities ; that some of the goods have boon in his possession since the war, which he bought from a Confederate officer, and paid for, and that shortly after he bought them his store was burnt. This not only does not correspond with or support the defense, but fails to relieve the defendants of their obligation in favor of plaintiffs.

It is therefore ordered that the judgment appealed from be reversed, and that plaintiffs recover of defendants in solido the sum of four thousand three hundred and seventy-five dollars, less ten per cent, thereof, with legal interest on said balance from judicial demand, and costs in both coxxrts.


author: Wyly, J. '

text:
    No. 2575.
    Police Jury of West Baton Rouge et al. v. J. V. Duralde et al.
    «Stocks pledged to a bank as security fora loan of money constitute a standing acknowledgment of the debt, and prescription is interrupted during the time of the pledge.
    APPEAL from Fifth District Court, parish of West Baton Eouge.

      Posey, J. Bavrot & Chamberlin, Barrow & Pope and 8. P. (Preves, for plaintiffs and appellants. A. Pitot and John II. Bamon, for defendants and appellees.
   Wyly, J. '

Plaintiffs have appealed from a judgment dissolving the injunction sued out by them, as third, possessors, restraining the enforcement of a Citizens’ Bank stock note mortgage subscribed by Charles Pipes and wife in 1839.

The injunction was had under articles 739 and 740 C. P. on the ground of prescription of the debt, the plaintiffs alleging that, as third possessors of the mortgaged property, they can plead the prescription of five years in bar of recovery on the notes.

The defendants insist upon the inapplicability of the plea on several grounds, but mainly because the Citizens’ Bank held in pledge the certificates of stock belonging to their debtor, Pipes, which was a standing acknowledgment of the debt, interrupting prescription.

To this the plaintiffs reply that, as the certificates of stock were never issued, the maker of the notes could not pledge to the bank that which was never in his possession; and that at the time the pledge was made, which was prior to the act of twelfth of February, 1852. it could not be proved or have effect as to third persons without being in writing and being registered comformably to articles 3125, 3126 C. C., which .was not done.

They also say that even though between the pledgor and the pledgee ■there is no necessity for a written deed of pledge, yet, if the contract of pledge ever existed between Pipes and the Citizens’ Bank by the delivery of the stock, the effect of the privilege, which said delivery conferred to the bank on the stock pledged, never existed' as against plaintiffs.

Under articles 3429, 3495 C. C., and under the authority of Dumford v. Clark’s estate, 3 L. 199, the plaintiffs contend that they can not only oppose to the defendants’ executory proceedings the prescription which they have pleaded, but that they really occupy a better position in this regard than the maker of the notes, Charles Pipes.

They compare their position in reference to the pledge to that of a third possessor in reference to the mortgage creditor, illustrating it thus: A subscribes a mortgage on real estate to B, which is duly recorded. A afterwards sells the property to C, and the certificate of mortgage on the day of sale discloses the incumbrance in favor of B. B, the holder of A’s note and mortgage, suffers ten years to elapse with'out reinscribing his mortgage; although, as between themselves, A may not be able to plead .the prescription of the mortgage against B, do the defendants pretend to deny that C is debarred of the plea ?

In reference to this point, made by the plaintiffs, we will say that the position they occupy in this case is not analogous to the example they have given.

If, as judgment creditors of Charles Pipes, they had seized the stock in question, or had acquired any ownérship or lien thereon, and the defendants should assert a privilege resulting from the pledge, then their position would be analogous to that of a third possessor to a mortgage creditor who had never recorded his mortgage or who had permitted the effect of registry to be lost by failing to'reinscribe it within ton years. The pledger could not, in the case we have given, take advantage of the want of written recorded evidence of the pledge, but a third person having acquired a right to the thing .pledged, might do so. Now, the plaintiffs in this case do not claim that they have an ownership or privilege on the certificates of stock with which the defendants’ pledge interferes. The contestation is not concerning the stock, or whether the contract of pledge, under which the defendants hold, has been so evidenced or registered as to protect the privilege of the defendants thereon from any adverse lien or claim of third persons thereto. The question is: Have the notes of Charles-Pipes, secured by mortgage on the land now owned by the defendants, become barred by the prescription of five years? If the principal obligation be extinguished' by prescription, of course the mortgage, its-accessory (in which the plaintiffs are mainly interested), is also discharged. The plaintiffs, being interested, can make the plea which Charles Pipes himself could make; but they certainly occupy no-position superior to him in this regard. Barrow v. Bank of Louisiana, 2 An. 453. Then, as between Charles Pipes and the Citizens’ Bank, the inquiry is, has there existed the relation of pledger and pledgee, or has the latter held the property of the former in possession, by consent, as-security for the debt? If so, there has been a tacit interruption of prescription; the debtor consenting to the possession of his property by his creditor, as security, tacitly acknowledges the existence of the-debt.

There is no force in the position that there was no pledge because the certificates were not delivered by the bank to Charles Pipes, and therefore, not having them in corporeal possession, he could not pledge them to the bank by making a delivery. There may be a constructive-as well as an actual or corporeal delivery.

The moment -Charles Pipes consented that the bank might retain his-certificates of stock, already in possession of the latter, as a pledge for the loan, he made the constructive delivery, and the contract of pledge-was completed, as between them, as fullv as if evidenced by a notarial act.

Now, what was the contract between the Citizens’ Bank and its stockholder, Charles Pipes ?. The contract was made under.the charter of the bank, and the provisions of that charter were a part and parcel of that contract as effectually as if incorporated in the body of the agreement.

The eleventh section of the charter provides as follows: “That every stockholder in the said corporation, on depositing and pledging his certificate of stock, shall he entitled to a credit of one-half of the total amount of his stock, provided, that in proportion said stockholder shall use his credit he shall give his notes or obligations,” etc.

The notes secured by mortgage, the enforcement of which the plaintiffs enjoin, evidence the use of his credit by Charles Pipes, as stockholder.

Under the provisions of the charter adverted to, Charles Pipes obtained the loan from the bank, to secure which the mortgage was given; that provision required him to deposit and pledge with the bank his certificates of stock to entitle him to a loan. That provision was part of his contract. He virtually contracted with the bank to obtain a loan on the deposit and pledge of his stock. He got the loan, and the bank retained the certificates of stock belonging to him.

Possession of the certificates by the bank, under such a stipulation in the agreement, is strong presumptive evidence that the same was pledged to the bank. But there is a stipulation in the mortgage that, upon a certain contingency, the bank may not only foreclose the mortgage, but may also sell -the stock. How could the bank be authorized to sell the stock to pay the debt, unless the debtor understood that he had pledged it to the bank to secure the same ? Add to this the evidence of the officers of the bank, which here, we will remark, was perfectly admissible, and there can bo no doubt that, since the execution of the notes and mortgage under consideration, in 1839, the certificates of stock of Charles Pipes have remained in pledge to the Citizens’ Bank. Having possession of their debtor’s property by his consent, as security for the debt, there has been a standing-acknowledgment thereof on his part, and no prescription has been acquired. 21 An. 128, 1 Rob. 556, 8 R. 146.

It is therefore ordered that the judgment appealed from bo affirmed, with costs.


author: Ludeling, C. J.

text:
    No. 2523.
    Paul O. Hebert, Tutor, et al. v. Independence G. Winn et al.
    In tlio matter of the probating of a will, the parish court has exclusive original jurisdiction, without reference to the amount involved. Constitution of 1868, article 88.
    APPEAL from the Parish Court, Parish of Iberville. Moore, Parish Judge.

      8emm.es & Mott and llohertson & Mathews, for plaintiffs and appellants. Barrow & Pape and Ii. W. Sims, for defendants and appellees.
   Ludeling, C. J.

The plaintiffs sue to annul the will of George C. Vaughan, and the proceedings had, in the district court of Iberville,, (acting as a court of probates, before the adoption of the constitution of 1868), recognizing the validity of said will and tending to enforce it..

The defendants, legatees under the will, appeared, and excepted to> the jurisdiction of the court, on the ground that the parish court was without jurisdiction, because the amount involved exceeded five hundred dollars,

It is admitted that the succession of George C. Vaughan exceeds five-hundred dollars in value.

The question to be decided is, whether the parish court has jurisdiction in a case involving the validity of a will and the probate thereof, when the succession exceeds five hundred dollars ?

Article 88 of the constitution declares: “In probate matters, when the amount in dispute shall exceed five hundred dollars, exclusive of interest, the appeal shall be directly from the parish to the Supreme Court.” It is certain, then, that in “probate matters,” the parish court may have jurisdiction in suits involving more than five hundred dollars; for, in such cases, by article 88, an appeal is authorized to be. taken directly from the parish to the Supreme Court.

This view is supported by the expressions in article 87 of the constitution, “they shall have exclusive original jurisdiction in ordinary suits, when the amount exceeds one hundred dollars, and does not. exceed five hundred dollars; and also by the declaration, in the same article, that “ All successions” (without regard to the amounts thereof) “shall be opened and settled in the parish courts.”

A suit to set aside an order probating a will, and to have the will declared invalid, comes clearly within the terms, “probate matters,” used in article 88 of the constitution. And the words in article 87, “ all suits in which a succession is either plaintiff or defendant, may be brought either in the parish or district court, according to the amount involved,” would seem to refer to actions for money or property, where the succession asserts or resists the claims, and not to suits relating to matters purely probate in their nature. See Joseph T. Swan v. Ann L. Gayle, admx. 21 An. 478; Rogers v. C. H. Morrison, executor, et al., 21 An. 455; Succession of Bartlett, 21 An. 531.

It is therefore ordered and adjudged that the judgment of the court a qua be reversed; that the exception be overruled, and that the case be remanded to the parish court to be proceeded with according to-■law. It is further ordered that the appellees pay the costs of this-appeal.


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    No. 1557
    A. Jaquet v. Webb Levert & Co.
    ■Where the interest due at the institution of the suit, when added to the principal demand» exceeds five hundred* dollars, the Supreme Court has jurisdiction of the appeal.
    The maxim contra non valentem agere non currit prescriptio, .being a rule of equity, can not be invoked to overturn express provisions of statutory enactments.
    Article 21 of the Civil Code only permits the courts to decide according to equity in cases whore there is no express law.
    Prescription exists only by the authority of positive enactments, and there is no place in the whole doctrine of limitations for the application of the rules of equity.
    APPEAL from Third District Court, parish of Lafourche. Gates, J.

      W. Hall, for plaintiff and annellee. Burquieres & Blalce, for defendants and appellants.
   Wyly, J.

The motion to dismiss this appeal, because the amount involved is less than five hundred dollars, was not well taken.

The amount claimed, as evidenced by the note, is three hundred and twenty-three dollars and ninety-two cents, with eight per cent, per annum interest thereon from nineteenth of April, 1860. The. interest and principal of the note at the time the suit was filed,, twenty-third of February., 1867, exceeded five hundred dollars, and consequently this court has jurisdiction of the case. The motion is-therefore overruled.

It is unnecessary to consider the several grounds of defense, as it is quite evident that the plea of prescription must prevail. There is no evidence of renunciation or interruption of prescription; and that the war of the rebellion did not suspend prescription is no longer an open-question. This court has decided that the doctrine contra non valentem agere non currit prescriptio is merely a rule of equity, which can not impair the operation of the express law enunciated in article 3505 C. C. Under article 21 C. C. judges can decide according to equity, where there is no express law. But a rule of equity must yield, to' express law, however great the hardship. If the judges were permitted to disregard the law, under pretext of applying a rule of equity, there would be no certainty either in the law or the jurisprudence of the State. What would appear to be equity to one set of judges-might not appear to be so to their successors; there would be no fixed rule for the administration of justice; there would be no certain standard to ascertain the rights of persons. The rights of individuals would not be measured by the law, but merely bv the discretion, the learning and the conscience of the judge. '

It is therefore ordered that the judgment appealed from be avoided and annulled; and it is now ordered that there be judgment for the defendants. It is further ordered that; plaintiffs pay costs of both courts.


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    No. 1897.
    Anthony J. Gallagher v. J. P. Thomas.
    An appeal will not.be dismissed on account of fcbc neglect of the clerk to issue, or tbe sheriff to serve citation of appeal.
    APPEAL from Sixth District Court, parish of Orleans. Buplaniier, J.

      Hornor & Benedict, for plaintiff and appellant. Hace, Foster & E. T. Merrick, for defendant and appellee.
   Ludeling, C. J.

The appellee has prayed to have the appeal dismissed, because the appeal was obtained by petition, and the appellee has not been cited.

The judgment was rendered in March, 1868; the petition for an appeal was filed on the twenty-eighth of September, 1868, and on the same day an order for an appeal was granted. No citation ef appeal has been issued in the case. The appeal was taken in time. C. P., articles 567, 573, 574.

The neglect of the clerk to.issue, or of the sheriff to serve, the citation of appeal, is not attributable to the appellant, and the appeal can not be dismissed on account of the conduct of these officers. Acts of 1839, page 170; 13 An. 260; 14 An. 698;' 1 N. S. 519; 10 La. 150.

On the merits there are only questions of fact presented; and we think the evidence preponderates in favor of the defendant.

It is therefore ordered that the judgment of the District Court bo affirmed, and that the appellant pay the costs of this appeal.


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    No. 2640.
    Robert D. Jones v. Dempsey P. Jackson.
    An overseer who lias made a contract witli the proprietor to manage his plantation for the term of one year, at a fixed price, on being discharged without any good and sufficient cause, before the expiration of the time, can recover the amount of the contract for the whole year.
    The custom of the neighborhood will not protect the planter against the legaL consequences of the violation of his contract with the overseer.
    APPEAL from Thirteenth District Court, parish of Tensas. Hough, J.

      Aroni <& Collier, ior plaintiff and appellee. Farrar & Iieeves, for defendant and appellant.
   Wyly, J.

Plaintiff alleges that on the tenth January, 1867, ho was employed by the defendant to oversee his plantation in the parish of Tensas, for the term of one year, at a salary of fifteen hundred dollars ; that he entered into the employment of the defendant, talcing full control and management of his plantation and performing faithfully the duties of an overseer; that on or about twenty-ninth January, 1867, he was peremptorily discharged from said service by the defendant, without any serious grounds of complaint, whereby the latter became indebted to him the full amount of his salary as aforesaid.

The defendant pleaded the general issue and averred that the plaintiff was discharged from his service for good and sufficient cause.

The plaintiff recovered judgment for the amount claimed, and the defendant has appealed.

The evidence in the record fully establishes the allegations of the plaintiff, and the judgment is supported by the law. C. C. 2720 ,• 15 L. 361; IE. 319; 12 An. 697.

There is no doubt that the plaintiff was employed for the year at a fixed salary and that he was discharged by the defendant, who has failed to show any serious ground of complaint.

The custom of his neighborhood wiE not protect the defendant from the legal consequences of violating his contract with the plaintiff.

It is therefore ordered that the judgment of the court a qua bo affirmed, with costs.


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    No. 1787.
    H. A. Lyons v. H. A. Cenas.
    A proces verbal of the sale of real estate by the order of the probato court has no effect against third parties, or seizing creditors, until it is recorded or registered in the parish -where the property is situated. Nor will an injunction lie to defeat the sale of property seized by a third party, unless the act of sale of the seized debtor has been registered in the parish before the date of the seizure.
    APPEAL from Third District Court of New Orleans. Emerson, J.

      Lacey, Maries & Butler, for plaintiff and appellee. Johnson & Denis, for defendant and appellant.
   Howell, J.

The defendant having obtained a judgment against one. James P. Bowman in the district court for the parish of West Feliciana and had it recorded in the mortgage office in Now Orleans on the twenty-sixth of June, 1866, caused a fieri facias to issue thereon, and the undivided interest of said Bowman in certain real property in New .Orleans to be seized. Whereupon the plaintiff herein enjoined the sale thereof on the ground that he was and is the owner of said property by virtue of a succession sale, made in West Feliciana, on the ninth of April, 1854, under an order of the court in said parish.

The answer pleads the general denial, admits the seizure, specially denies that said property ever belonged to the plaintiff, avers that it was acquired on the twelfth of May, 1840, by Mrs. E. P. Bowman, the mother of his judgment debtor, who, by the death of his said mother and his two sisters, became the owner of 11-48 of said property, which were seized under the execution enjoined, and if plaintiff ever purchased the said property as alleged, the sale thereof was not registered in the conveyance office in New Orleans up to the date of the seizure, and therefore there was no mutation of title so far as third persons are concerned. He prayed for the dissolution of .the injunction, with damages. Judgment was rendered in favor of plaintiff, and defendant appealed.

The sole question to be decided is, whether or not the plaintiff is the owner of the property seized, as against the seizing creditor,

Tlie procos verbal of the succession sale, under which he claims, was filed in the clerk’s office, in West Feliciana, on the twelfth of April, 1855; but was not registered in the conveyance office, in New Orleans, where the property is situated, until the eighteenth of March, 1867, subsequent to the seizure. It is admitted that plaintiff would testify, that immediately after the said purchase he took possession of the property and has since paid the taxes, collected the rents, and exercised acts of ownership thereof. There is no pretense that defendant had any knowledge of plaintiff’s title, and hence it is unnecessary to decide what effect such knowledge might have.

According to the law and the well settled jurisprudence of this State, and the act or procos verbal of the sale set up as conveying title to the plaintiff, could have no effect as to third persons, until duly recorded or registered in the parish whore the property is located, and consequently, as to them, the plaintiff was not the legal owner thereof at the date of the seizure by the .defendant. The registry in New Orleans showed the title to be in Mrs. Bowman, the deceased mother of defendant’s debtor, and the heirship of the latter is established. See C. C. 2601 -, Acts of 1827, page 138, § 5; Acts of 1855, Nos. 274 and 285; 2 An. 278 ; 1 An. 249 ; 6 An. 772 ; 21 An. 591.

It is therefore ordered that the judgment appealed from bo reversed, and that there be judgment in favor of defendant dissolving the injunction herein, with costs in both courts.


text:
    No. 1942.
    Wm. Florance v. L. P. Maillot and James Wood.
    A party erecting a wall on the lino of his premises, which is afterwards used as a wall in common by the adjoining proprietor, can only recover from the party using it as a wall in common, one-half of the original cost of building it. C. C. 672; 20 An. 553.
    APPEAL from the Sixth District Court, parish, of Orleans. Cooley, J.
    I). G. Ldbatt, for plaintiff and appellant. 0. Boselkis, for defendant and appellee.
   Howe, J.

The plaintiff brought this suit to recover the value of one-half of that portion of a party wall which had been made use of by his neighbor, the defendant, Wood.

It appears by the admissions in the record, that the half of the wall so used cost to build, in 1851, the sum of $326 84, and that it would have cost to build the same in 1866, when Wood first used it, the sum of $596. This latter and larger sum the plaintiff alleged to be the value of the wall, and claimed to recover. He had judgment only for $326 84, a sum equal to the cost, and he has appealed.

Wo had occasion to decide in Audi v. Laboisse, 20 An. 553, that in a case like the one at bar, the amount to be recovered by the plaintiff must be measured by the rules laid down in article 672 of the Civil Code. The amount of the judgment is therefore correct.

It is ordered that the judgment appealed from be affirmed, at the cost of the appellant.

Rehearing refused.


text:
    No. 2633.
    State of Louisiana, ex rel. John Wassell, assignee, v. The Judge of the Fourth District Court for the Parish of Orleans.
    A writ of prohibition will not issue to restrain tho execution of a judgment of the court below, where the record shows that the bond given for the appeal is insufficient in amount to operate a supersedeas pending the appeal.
    To entitle a party to a suspensive appeal from a judgment for money, he must give a bond for one-half over and above the amount of the judgment. An intervonor or third party wishing to appeal must comply with the same conditions.
    A PPLICATION for Writ of Prohibition. Théard, J.
    XL Lea, Finney (6 Miller, for relators. JBrecmx & Fenner for respondent.
   Wyly, J.

The relator applies for the writ of prohibition to restrain tho execution of a judgment styled Abner L. Gains v. Wm. H. Gains, John Wassell, assignee, intervenor, rendered on the twenty-third of December, 1869, by tho judge of the Fourth District Court for the parish of Orleans, from which judgment, within ten days, an order of appeal was granted, fixing the amount of the appeal bond at $500, which was duly given by the relator.

He contends that, having obtained the order of appeal on motion, at the same term at which the judgment was rendered, and withiu the time limited for suspensive appeals, and having given bond in the amount fixed by the judge, the Fourth District Court was entirely divested of jurisdiction of tho case; that, notwithstanding which, said court has permitted execution to issue on said judgment, and in doing so has exceeded its jurisdiction. In support of this position he cites articles 574, 575, C. P.; Blanchin v. Steamer Fashion, 10 An. 345; Code of Practice, articles 845, 846; 19 La. 174.

In the application for prohibition we discover the following clause: “ That the amount of said indebtedness due to said Wm. II. Gains, and claimed by your petitioner as assignee aforesaid, largely exceeds five hundred dollars, amounting to twenty-five hundred and seventy-two dollars and eighty-one cents, for which said Abner L. Gains recovered said judgment; that the demand of your petitioner, as intervenor in said suit, is within the appellate jurisdiction of this court.”

Tho judgment appealed from was certainly for a specific sum, to wit — $2572 81, according to the statement of the relator himself. Now, article 575, C. P., declares that if the appeal be taken within a limited time after judgment, it shall stay execution; “provided the appellant give his obligation, with a good and solvent security, residing in tho jurisdiction of the court, in favor of the appellee, for a sum exceeding by one-half the amount for which judgment was given, if the sarnie be for a specific sum, as surety for tho payment of the amount of such judgment.” * * * * *

The judgment being for a specific sum, the law fixed the amount necessary for a suspensive appeal bond. It was not in the power of tho judge to suspend the execution of tho judgment pending the appeal by requiring a bond for only five hundred dollars, which was hardly one-fifth the amount of the judgment. In this case the appeal could only be suspensive upon a bond exceeding- by one-half the amount of the judgment.

This case comes directly under the provisions of article 575, C. P., and we think, in order for the appeal to operate suspensively, the bond should have conformed thereto.

The cáse of Blanchin v. the Steamer Fashion, 10 An. 345, is not in point. There was a contest between the creditors for the funds in the hands of the court arising- from the sale of the boat; and the court held there was no standard fixed by law for the bond and security to be given by the plaintiff therein in obtaining an appeal; and it was obviously a matter for the discretion of the judge. But here is a judgment against a party for a specific sum, a third jierson intervenes and seeks to arrest the operations of that judgment. Can ho do so on more favorable terms than the parties themselves! We think not. The judgment debtor could only have obtained a suspensive appeal by conforming his bond to article 575, C. P. Certainly the relator, who was an intervenor, occupies in this regard no better position.

It is therefore ordered that the writ of prohibition bo disallowed, and the petition of the relator bo dismissed, with costs.


author: Wily, J.

text:
    No. 2501.
    State of Louisiana, ex rel. Mrs. Commagere, v. The Judge of the Second District Court, for the Parish of Orleans.
    An appeal from a judgment dismissing a dative testamentary executor from office will not suspend execution, and a mandamus will not lie to compel a suspensive appeal from sucli judgment.
    A PPLICATION for Writ of Mandamus.

      A. Pitot and Gharlcs Lougiie, for relator. L. Puvigneaiul, Judge, respondent.
   Wily, J.

The relator seeks a writ of mandamus to compel the judge of the Second District Court to grant a suspensive appeal from a judgment or order requiring her, as dative executrix, to furnish new security on her official bond, “ within throe days from the service of the judgment; in default thereof, that she be dismissed from her trust as executrix,” D. Lanata, her security on the bond, having died.

The district judge contends that the order from which the appeal is asked is an order dismissing the executrix upon her failing to furnish, within a certain delay, new security on her bond; and that appeals from judgments appointing or removing tutors, curators and executors do not suspend the execution of said judgments.

In support of this position he cites C. P. 1059, 580; C. C. 1113; 5 An. 518 ; 14 An. 240, 672; C. C. 1013, 3037, 3011. •

The authorities cited maintain the position taken by him.1

It is therefore ordered that the writ of mandamus applied for be disallowed, and that relator’s petition be dismissed, with costs.’