author: Poché, J. ' Manning, J.

text:
    No. 8759.
    John A. Stevenson vs. The New Orleans Pacific Railway Co.
    In this State there are no general statutes compelling railroad companies to fenoe in their . traoks. Hence, in a suit against a railroad corporation for the recovery of the value of stook killed or otherwise destroyed by its trains and employees, the plaintiff must make his case certain, as in other suits for damages; and he must allege and prove that the injury to his property was the result of culpable negligence and carelessness on the part of the corporation or of its employees.
    APPEAL from the Twenty-fourth District Court, Parish of St. John the Baptist. Hahn, J.

      James J). Augustin for Plaintiff and Appellant:
    Railway companies are liable for injuries done to cattle on tlioir traok, where the injury could have "been prevented by the use of ordinary care (Lacey’s Digest of Railway Decisions, par. 24, p. 345) and that, although the animals were wrongfully on the track. Ib. par. 26.
    There is a prima facie case of negligence made out against the railroad when the animals were pasturing on plaintiff’s own land. Danner vs. S. C. R. R. Co., 4 Richardson’s Law S. Car., p. 329.
    Those principles apply to cattle killed at night. 10 Richardson’s Law S. Car , p. 227.
    R. C.'C. Art. 2315: Every act whatever, of man, that causes damage to another, obliges him by whose fault it happens to repair it.
    R. C. C. Art. 2316: Every person is responsible for the damage he occasions, not merely by bis act, but by his negligence, his imprudence, or his want of skill.

      W. 8. Benedict on the same side.
    Bernard, Howe & Prentiss for Defendant and Appellee :
    1. Plaintiff must make his case certain.
    2. The burden of proof is on plaintiff to show the Company’s negligence whenever its liability for an injury to stock depends on its negligence, as when then the cattle entered on the traok at a place where the Company is not required to fence the track.
    3. Proof that the injury was inflicted by the Company is not “ prima facie evidence of its negligence.”
    4. The rate of speed not being fixed by law, no rate is of itself evidence of negligence.
    5. The negligence complained of must have been the immediate cause of the injury sustained by the plaintiff.

      6. Negligence is a failure to do what a reasonable and prudent person would ordinarily have done under the circumstances, or doing what such person, under the existing circumstances, would not have done. 95 IT. S. 441, B. B. Co. vs. Jones.
    7. The degree of care which the law exacts and the omission of which is neligence or “culpa,” is that degree which men of ordinary prudence would exercise iu a given situation.
    8. The Company is not bound to fence its track in Louisiana. 15 An. 105, Knight vs. Opelousas B. B. 5 73 An. 154.
    9. Where the circumstances point just as much to negligence on the part of one party as to its absence, or point in neither direction, a recovery canuot be bad. 31 An. 490, Murray vs. Pontchartrain B. B. Co.
    10. The proof in the instant case by tbe plaintiff himself is that he was guilty of gross negligence.
    11. There is plenary proof that the Company used all possible oare and diligence to avoid the accidents.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff sues for the value of six mules alleged to have been killed on his plantation in the Parish of St. John the Baptist by passeDger trains of the defendant Company, through the gross negligence and carelessness of its employees.

The uncontested facts of the case are: that the mules were all owned by plaintiff; that one of them was killed in the night of October 20th, and the five others in the evening at dark of November 6th, 1881.

The District Judge allowed to plaintiff $150 for the animal killed in October, and rejected his demand as to the five others as in case of non-suit. He appeals and defendant moves to amend the judgment, so as to defeat his entire demand.

Plaintiff contends that the proof of the destruction of his property by tbe trains of the Company throws upon the defendant the burden of proving justification or want of negligence.

But he has signally failed to refer us to any authority, either of law or of jurisprudence, in support of his proposition. Although the question is not new, and has been frequently considered by our own Courts, yet in view of the importance of the question, in connection with the increased construction of railroads in this State, we have been at great trouble to examine all the authorities within our reach on the proposition so seriously advocated by plaintiff’s counsel.

Our researches have led us to the conclusions previously reached and announced by our predecessors in this Court.

Hence, we recognize the rule that iu such suits for damages the plaintiff must make his case certain, and that the burden is upon him to prove that the alleged injury to his property was the result of negligence or carelessness of the defendant or of its employees. And we further hold that in this State there is yet no general statute compelling railroad companies to fence in their tracks. Knight vs. Opelousas Railroad, 15 An. 105; Perkins & Billiu vs. Morgan, 27 An. 229; Pierce on Railroads, p. 428; Wharton on Negligence, Sec. 899; Thompson on Negligence, vol. 1, p. 512, Sec. 15; Wait’s Actions and Defenses, vol. 4, p. 684.

From the record it appears that no one testifies as to the circumstances of the first accident which occurred in October, and that no one except the engineer and the fireman on the train saw the accident of November 6th.

The testimony of the engineer, corroborated by that of the fireman, shows that the train was on time, and was running at its usual rate, eighteen miles an hour; that the day had been very rainy, and that darkness, accompanied by hazy and foggy weather, came unusually early, so much so, that he felt prudent to light his headlight at a station twenty miles west of that where he usually lighted, more than an hour earlier; that the mules were not standing on the track, and hence, he did not and could not see them in advance; that he saw them in the act of crossing the track when the train was only a hundred feet, from them; that he at once reversed his engine and put down the brakes, but that he had been unable to prevent the collision; he further states that he stopped his train and drove off the track some twenty-five mules which had followed those which he had collided with.

This testimony is in part contradicted, but it has impressed us as being true and fully decisive of the case. The plaintiff, who was a passenger on that very train, denies that the train stopped at all on that plantation. But from his own evidence it appears that he was seated in the rear car, engaged in conversation with a friend, and that he did not notice the accident, and knew nothing of it until informed of the same by letter from one of his employees. If he did not perceive the shock which killed five mules, it is very natural that he might have overlooked the fact that the train had come to a full stop at that particular point.

His testimony and that two or three of his laborers, who did not see the collision, but who emphatically swore that the train went by at great speed, and did not stop or slack up, truthful though it may be, is at best negative evidence, and cannot outweigh the affirmative testimony of the two persons who, above all others in or off the train, had. the safest and exceptional opportunity of knowing when and where the train did stop The engineer’s testimony on this point is, besides, corroborated by his written report of the accident made to his superior officer the very next day, and at a time not suspicious, when he could not possibly anticipate contradiction as to his statement that he had stopped his train at that point, and that he had lighted his headlight before reaching the place where the accident occurred, or that his train was on time that evening.

The latter circumstance indicates an element of contributory negligence on the part of one of plaintiff’s own employees who had immediate charge of the plantation mules.

The record shows that the railroad track does not lie in plaintiff’s pasture or enclosed field; that the mules had for some weeks been allowed to graze in a pea field and in a harvested rice field, and that only two trains passed that point each day, and none in the night; and that the east-going train, to which the accident occurred, was due in the evening between five and six o’clock. Now, in testifying about the-first accident, plaintiff states that his orders were to put them ” (the mules) “ in there (the pea field) at night, but always after the train had gone down, so there would be no danger.” For the same reason, as the mules which were injured at the second accident had to cross the railroad track to come and go between the stable lot and the rice field, it was the duty of the stock minder to see that the mules would not cross the track at the time when the train was due.

On that evening the train was on time, and it is evident that the stableman did not perform his duty.

We gather from his own testimony that such was his duty. He says : Of course, it was my business to go and see after hearing the report of the ears there, which I did as quick as I could get there. I was in the quarters When the cars blowed. At the report of the cars herself I knew my business called me to see after it; but of course I could not walk from the quarters after hearing the tooting and get there at the presen t moment.” When he reached the spot the accident had occurred. His reasoning is as rational as his negligence is apparent.

Our examination of the evidence has satisfied us not only that plaintiff had utterly failed to prove culpable negligence on the part of defendant, which was the essential condition of his right of recovery, but that defendant has succeeded to show an absolute want or absence of negligence on the part of its engineer.

As stated in the first part of this opinion, the record is barren of any evidence on the circumstances of the first accident, by which one mule was disabled. Hence, it is apparent that no culpable negligence therefor is proved against the Company, and we, therefore, conclude that there is error in the judgment holding the defendant liable for that animal.

The judgment appealed from is, therefore, reversed, in so far as it condemns the defendant to pay one hundred and fifty dollars for the animal killed in October, 1881, and all costs of suit, and it is ordered that the demand for the value of said animal be rejected as in case of non-suit, and that plaintiff pay costs in both Courts; and that as thus amended said judgment be affirmed.

Manning, J., dissents, and will file his reasons hereafter.

Dissenting Opinion.

' Manning, J.

Wait states the doctrine concerning fencing railway tracks to be that, when no statutory regulations exist defining the duties of railway companies in respect to fencing, they come within the common law rule, and are under no obligation to make or maintain fences between their roads and the adjoining lands. 4 Actions and Defences, 684. The authorities he has cited support him, but they are from England, and those of our States that have not changed the common law.

There is excellent reason why the rule should be different in America and in England. By the common law of England every person was obliged to keep his cattle on his own land, and hence, the importance and value there of common of pasturage. The right to graze one’s cattle on another’s land was and is there constantly asserted and jealously preserved. If cattle roam at large in England without a keeper, the owner is guilty of negligence. This rule prevails in some of our' States just as it was derived from England, and is retained without the justifying necessity that England has for it, and which suggested its adoption. And hence, the decisions of the English Courts and of" those States upon the liability of railway companies for the destruction of this particular kind of property—cattle—ought not to apply here.

Even on general principles, why should not the omission by a railway company to fence its track be of itself prima facie evidence of negligence H A railway can be operated only by powerful and dangerous machinery, and it is therefore bound to use greater precaution to prevent injury to others. The same author who has laid down so broadly the doctrine above cited immediately qualifies it$ but a railroad is bound to use every reasonable care to prevent cattle from straying on the line of its road, and if cattle are upon the track, whether' lawfully or unlawfully, and are injured or killed through the inexcusable negligence of the company’s servants, the company will be held liable, and authorities from nine States are cited. Wait in loe. cit. Now, if a railway company is bound to use every reasonable care to prevent cattle from straying upon its track, is not building a fence the most certain method of keeping them off, and a certain method of ■ preventing a thing is reasonable care to prevent it.

Surely it will not be disputed that a railway company is under the same obligation to fence its track or land that rests upon every other-proprietor. This has been expressly adjudicated in many States, some of which like our own have no law compelling a railway to fence, and the omission to fence is held to draw after it the assumption of the risk from straying stock.

Thus the court of Mississippi held, although as a proprietor a railway company is under no greater obligation to fence its land than any other proprietor, yet in the event of an injury, the fact that the road was not fenced must and would exercise an influence in weighing the degree of care to be employed by the company, and when an injury is done, the omission to fence will be considered along with other circumstances in determining the measure of diligence to be used by the company or its agents. Vicksburg R. Co. vs. Patton, 31 Miss. 157.

In the leading case in Ohio the court say: “ it is true there is no law in Ohio requiring railroad companies to fence their roads, but when they leave their roads open and unfenced, .they take the risk of intrusions from animals running at large, as do other proprietors who leave their lands unenclosed.” Kerwhacker vs. Cleveland R. Co., 3 Ohio, 185. And if this be true of animals running at large, with how much greater force does it apply to those pasturing upon the land of their owner?

Just as the English doctrine had its origin in the necessities of that country, so a rule has been adopted in many of our American States, founded upon the condition of our country and responsive to the needs of its inhabitants. Unenclosed lands in those States are called “ the range,”, upon which the inhabitants turn their stock to feed at will, and this recognised right has led to enactments defining what is a lawful fence, the object being, not as in England, to keep one’s cattle in, but to keep the cattle of others out. We have such a law here. When an owner of stock is sued here by a proprietor of land for damage caused by his stock entering upon the land, and the defence is that the proprietor had not a lawful fence, will it not be good if sustained by proof ?

The conclusion seems to me perfectly logical and inevitable that, as it is not in this State a trespass for cattle to wander upon unenclosed lands, they whose cattle stray upon an unenclosed railroad trade are not wrongdoers, and the company is liable for ordinary negligence when it kills them.

if that conclusion be logical and inevitable, it would be singular if there were no adjudications to that effect, but on the contrary the books ave full of them. Thus it has been held: If stock is injured by a railway company when the injury might have been prevented by ordinary care, the company will be held liable although the owner of the stock was also in some degree negligent. Central R. Co. vs. Davis, 19 Ga. 437.

Where the engineer in charge, by use of ordinary care and skill, could have stopped the train in time to avoid the collision, the company is liable, although the stock was wrongfully upon the track. Toledo, P. & W. R. Co. vs.-, 57 Ill. 514.

If a railway company has no right of way, the owner of stock is not required to keep them off the track. They are in his enclosure rightfully, and if they go upon the track they are not there wrongfully, and if injured by the company it is prima facie liable. Matthews vs. St. Paul R. Co., 18 Minn. 439.

The defendant company has the right of way over the plaintiff’s land, but its track divides his land in two parts, and in a precisely similar case it wTas ruled: even if the company was running its trains over the land by the owner’s license, yet the road having divided his pasture land into two parts by its track making it necessary for the owner’s cattle to cross it, the company would still be liable for cattle killed in crossing the track; for such right to cross is not inconsistent with the right of the company even when compensation has been fully paid. Waterbury vs. Housatonic R. Co., 23 Conn. 101.

And this being a correct statement of the law it is manifest where the burden of proof lies, for if the cattle are rightfully upon the railroad track at the time of the injury, proof of that fact and of the injury makes aprima facie case of negligence, and the burden of proof is on the company to exculpate itself by shewing it was not the fault of its servants but of the plaintiff, or was the result of an unavoidable accident, and it has been so held. 1 Thompson on Negligence, 512, citing cases from five States. And so it is true, that when the cattle are pasturing upon the land of their owner at the time they are injured, as were the plaintiff’s cattle in the present case, that fact of itself makes a prima facie case of negligence against the company. Danner vs. So. Car. R. Co., 4 Rich. 329.

The rules of the defendant company in evidence make the killing of Stock negligence on the part of their employees, thus recognising the existence and justice of these legal principles in regulating the relations of those employees to itself, and there is greater reason for holding the company to them in enforcing against it liabilities which it has incurred to others.

I think the inferior Judge erred both ways. His rejection of the demand for the value of five mules is error because against law, and his approval of the demand for the value of the mule killed in October is error because against the evidence.

Rehearing refused.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 8113.
    G. W. Cary vs. J. P. Richardson.
    Examination of the differences between interlocutory and final judgments.
    Oral testimony is inadmissible between the parties to a written contract to show simulation. This oau be done only by a counter letter, or written evidence amouutiug thereto. Conversations or understandings anterior to the dateof the instrument attacked are presumed to be included in it. The rule applies to all written acts, whether they relate to immovables or to movables. The unbending jurisprudence of this State does not allow a party to vary or destroy his own voluntary declarations or written agreements by anything Bhort of written evidence.
    The rule is not binding on third parties. Oral testimony may be admissible, however, between the parties to prove a new and subsequent agreement as regards some part of the previous one.
    The oral testimony received to show simulation of an act of dissolution of a partnership and a sale by one partner of his interest therein to another should have been rqjected-
    APPEAL from the Second District Court for the Parish of Orleans. Tissot, J. '

      John A. Campbell and Bayne & Benshaw for Defendant and Appellant.

      E. H. Barrar, Amicus Curia.

   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff and appellee moves to dismiss tills appeal, because the judgment complained of is not final and such an. interlocutory decree as may cause au irreparable injury.

The prayer of the petition is, 1st, that there be judgment dissolving a partnership as of a certain past date; that the accounts of the concern be examined into and reported upon by auditors; 2d, that there be judgment against the defendant for the amount found due by the experts, and for a further sura of $25,000.

The defendant joined issue, resisting plaintiff’s pretensions, but admitting a dissolution, 1

After a protracted trial, the developments of which are illustrated by a transcript coveriug’some 720 pages, a judgment, termed “ interlocutory,” was rendered, declaring the existence and dissolution of the partnership; that its affairs are unsettled ; that the plaintiff has contributed $30,000; that he has an interest of one-third; that the possession of its effects is in the defendant, who is to account for the same; that auditors be appointed to state the accounts between the parties and that they report the same.

This judgment was signed many days after its rendition, and is appealed from by the defendant.

It is not always easy to discriminate between interlocutory and final judgments, particularly which, among the former, can or not cause an irreparable injury. There exists', however, a signal difference between the two. Interlocutory judgments are the decrees rendered, whether before or after the suit is ended.and all the matters involved therein are set at rest. They are anciliary to, or executory of the final and complete adjudication, and do not pass upon the merits of the controversy. Final judgments are those by which rights of parties, at issue on the merits of the suits, are adjudicated upon partially or entirely. C. P. 538, 539. Definitive judgments are those adjudications which have acquired the force of res judicata, by which the questions determined are set at rest beyond possibility of revision by appeal. C. P. 539; 1 Cranch, 103; 3 Bl. Com. 398; Freeman on Judgments, §§16, 21, 24, 34, 36; 7 Cal. 27; 8 Cal. 57.

There is no limit to the number of interlocutory or final judgments which may be rendered in the course of certain judicial proceedings ; particularly in those which contemplate the settlement of the affairs of a deceased or insolvent person or corporation. Hundreds of instances will readily suggest themselves to the mind of experienced practitioners. An appeal lies from-all judgments, whether interlocutory or final, in appealable cases; but, as regards the former, only where, by not being appealed from, an irreparable injury may be sustained, and where, having a character of finality, they may become res judicata. C. P. 566; 1 N. S. 73; 3 R. 103; 11 R. 453; 9 L. 161; 15 L. 521; 2 An. 964; 3 An. 217; 7 An. 171; 9 An. 344; 10 An. 462; 12 An. 87, 455; 22 An. 200; 26 An. 57; 28 An. 880, 889, 903; 30 An. 1084; 31 An. 823; H. D. 26 et seq.; L. D. 15 et seq.; O. B. 34, 789.

There are many cases in which judgments may be rendered which are sufficiently final to authorize an appeal, although not final on all the matters in dispute. 9 M. 519. It is not always necessary that the order itself should work an irreparable injury. It is sufficient if it be such as, by the final action of the court, would cause such injury. 6 L. 435; 2 R. 342; 3 R. 103; 11 L. 452; 8 R. 442; 7 An. 141, 545; 9 An. 344; 10 An. 463; Freeman on Judgments, §§.21, 24.

An interlocutory judgment should not trench upon the merits of the cause; but the moment that it does, it acquires a character of finality, which assimilates it to a final judgment and renders it appealable. It is not essential for a judgment to be final, that it should settle all the rights existing between the parties to the suit. All that is required is, that it determine issues involved on the merits of the action. The judgment is none the less final, because some future orders of the court may become necessary to carry it into effect. The nature of such an order depends upon the effect produced by the adjudication upon the rights and interest of parties. The stage at which it is made is not the test for appellate purposes. If an interlocutory order will finally affect the merits of the case, or deprive a party of any benefit which he may have at the final hearing, an appeal is allowable. It is not always absolutely required to dispose of- the entire merits of a cause and all the parties before the court, as a necessity to a final decree. Any order or decree finally settling any right or interest in controversy between the parties to a cause is final and reviewable. Loring vs. Ilsey, 1 Cal. 27; 8 Cal. 57; Perkins vs. Sierra Nevada S. M. Co., 10 Nev. 405; Barry vs. Briggs, 22 Mich. 201; Kennedy vs. Kennedy, 2 Ala. 471; 3 Ala. 434; Barfield vs. Impsou, 2 Miss. 326; Tucker vs. Yell, 2 Ark. 420; Ware vs. Richardson, 3 Md. 505.

Where a decree ascertains and settles the rights of the parties in litigation, it is reviewable, although the cause may be referred to ascertain facts for an account. A decree giving all the consequential directions, so as finally to dispose of the whole case upon the coming in and confirming of the report, is a final decree. Cruyer vs. Douglass, 2 N. Y. 571; 7 Paige, 18; 9 Paige, 189, 636; 10 Wall. 586; 10 Paige, 131; 11 Paige, 189; 1 Barb. Ch. 21; 3 Id. 382; 1 Johns. Ch. R. 77-81; 7 Caldwell, 416; 10 Wall. 583.

It is only necessary that all the rights of the parties in the controversy be settled and determined, to make the decree final, so as to authorize it to be reviewed. It is not only the last order in the case, approving the report, that is the final decree from which an appeal may be prosecuted, but .it is the decree which fixes and settles the rights of the parties. Other decrees, which follow it, are in the nature of an execution of the decree, and not the final decree of -the case. Myers vs. Manny, 63 Ill. 211.

It is true that, in 6 N. S. 350, the Court said that a partition suit is terminated only by the decree of final homologation, and that the judgment decreeing the partition, fixing the ownership of the parties and adjusting the collations between them, is only interlocutory, but the weight of authority, as well as of reason, is against the doctrine. 10 L. 50; 11 L. 494; 1 R. 512; 7 An. 529; 18 Mich. 163.

In Woolfolk vs. Woolfolk, 30 An. 146, the Court said:

“ We are at a loss to understand why a judgment, rendered upon issues regularly formed by petition and answer, passing upon the titles of the litigants, decreeing their respective portions in property, and fixing their indebtedness to each other, wants any of the essentials of a definitive decree. The rule or motion to homologate a partition, when made, is, in some sort, a new proceeding requiring notice, and to be followed by another decree. We do not understand that upon trial of such rule one can again bring into, question the matters adjudicated in the original judgment of partition, but the contest is confined then to things done in execution of it. It is doubtless true, that until this, decree of homologation and confirmation is rendered, the partition cannot be regarded as, or have the effect of a judicial partition, bu,t that does not prevent the decree of partition in so far as it adjudicates upon the rights of the parties as between themselves from being final.” 63 Ill. 211; 13 Pet. 6; 2 Black, 524, 539; 2 Wall. 106.

Whatever may be the character of the judgment in this case, it is clear that it is not a purely interlocutory judgment.. It passes upon rights and decides questions of great importance to the parties,-raised on the merits and which might have formed the object of a distinct suit. Its decretal portion is premonitory of the ultimate .decree or judgment in the case. If unappealed from, not being revisable by the court by which it. was rendered, it would have acquired the force of res judicata by the lapse of time, and so concluded the parties. It exhausts, so far, the powers of the court; and is appealable, that its correctness may be tested. The defendant was left no other alternative but to appeal or acquiesce.

The motion to dismiss is denied.

Mr. Justice Fenner recuses himself, having been of counsel.

On the Merits.

The nature of this controversy is sufficiently stated in the opinion on the motion to dismiss. It may not, however, be useless to state that its object is tiie dissolution of a commercial partnership and.a liquidation of its affairs.

Tiie petition contains a charge that there was a fictitious and simulated dissolution on the 13th of September, 1879; that simulated instruments of writing were signed, but that they are of no effect. The plaintiff avers that he remained a partner till in October following, and that there were profits, which should be divided between the partners in a stated proportion.

The defense is, that the partnership was legally dissolved by, consent on the 13th of September, 1879, and that the interest of plaintiff in it was then purchased by the defendant.

After hearing evidence and the parties, the court declared that the partnership had been dissolved on the 13th of September, 1879; announced the rights of the partners,, and decreed that auditors be appointed to state the accounts between them, with instructions to report of their finding. From this judgment the defendant has appealed.

On the trial the plaintiff offered oral testimony to show that the instruments signed by him, from which it appears unambiguously that the partnership was dissolved by consent on the 13th of September, 1879, and that he sold his rights in the concern to the defendant and that the dissolution was advertised, were simulated, and so, inoperative. To the admission of this proof the defendant objected. The testimony having been allowed, the defendant took a bill, upon which he insists.

It is not alleged that the documents were signed and uttered in error, or on fraudulent representations, or obtained by violence.

“Where parties have deliberately put their engagements-into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that such engagement of the parties and the extent and manner of their undertaking was reduced to writing, and all oral testimony of a previous colloquium between the parties, or of conversations or declarations at the time when it was completed, or afterwards, is rejected, as it would tend, in many cases, to substitute a new and different contract for the one which was really agreed upon, to the prejudice possibly of one of the parties.” In other words: “Parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument.” The duty of the court is to ascertain what is the meaning of the words used. It is a duty of interpretation. Greenleaf, Vol. 1, §§275, 277.

The Code is express, that parol evidence shall not be admitted against or beyond what is contained in the acts, nor on what may have been said before, at the time of making them, or since. R. C. 6. 2276, 2242,2244,2238.

The rule is consecrated by law and jurisprudence that, as between the parties to a written act, the only admissible evidence to prove simulation is a counter letter, which is proof of equal dignity. R. C. C. 2238, 2239. The unbending jurisprudence of this Court, does not, accordingly, allow a party to vary or destroy his own voluntary declarations, or written agreements, by anything short of written evidence. The rule applies not only to agreements relating to immovables, but also to such as concern movables. 12 An. 740; 7 R. 96; 5 R. 111; 2 L. 48; 4 An. 441; 5 R. 327; 12 An. 857; 16 An. 150.

It. was distinctly held in an analagous case, that where, by a written agreement entered into at the time of dissolving a partnership, one of the partners, who purchased the common stock, bound himself to pay all the partnership debts, parol evidence was inadmissible to prove a guaranty of the other partner that the debts did not exceed a certain sum. 7 R. 96.

However, where parties to a written contract, by mutual consent enter into a new subsequent agreement as regards some part of it, it has been held that proof of the latter may be made by.parol; but that conversations or understandings preceding the contract are presumed to be included in the act. 4 L. 30; 17 An. 32; 5 How. 273; but see 5 R. 326.

The written evidence, consisting of letters' to and from a mutual friend, admitted, it Is claimed, a8 part of the res gestee, if entitled to any weight, does not affect the act of dissolution and purchase of rights of September 13th, 1879, and the testimony received shows no new agreement or contract subsequent to the date of that act, which is conclusive upon the parties and must serve to terminate the controversy between thénr.

The lower court erred in deciding as it did. Whatever be the character of the signed judgment appealed from, it is sucli as can be now reviewed, so as to set the differences of the parties forever at rest.

The evidence clearly shows that the dissolution took place by consent on tile 13th of September, 1879; that the interest of the plaintiff in the concern was then purchased by the defendant, and that their separation was, under their signatures, duly advertised and publicly announced. It is positive, uncontradicted, and concludes the plaintiff absolutely, who is, therefore, without interest in this suit.

It is, therefore, ordered and decreed that the judgment appealed from be reversed; and it is now ordered, adjudged and decreed that there be judgment in favor of the defendant, rejecting plaintiff’s demand, with costs in both Courts.

Fenner, J., recuses himself, having been of counsel.


author: Fennee, J. Bermudez, C. J.

text:
    No. 8842.
    T. W. Turley vs. Maurice Dreyfus, Dative Executor.
    The judgment of a Tennessee court can no longor be rendered executory in this State. The only remedy of the holder ie to sue upon it as the evidence of a debt and to recover a Judgment in a Louisiana court for the amount thereof, which will be a Louisiana judgment and executed no ouch. The Court here is not concerned with the mode of execution of Tennessee judgment*» in that State, hut only with the question Whether the judgment ie binding on the party oued here and has the effect of establishing, ae a thing adjudged, the existence of the debt. If so, it entitles him to judgment in a Louisiana court for the debt evidenced thereby. In a former proceeding in this case, it was held that the defendant was bound by the judgment sued on, and on the merits no valid defense thereto hao been established.
    APPEAL from the Eighth District Court, Parish of East Carroll. J. W. Montgomery, Judge ad hoe.

      W. <?. Wyly for Plaintiff and Appellant.
    F. F. Montgomery and Cox & Campbell for Defendant and Appellee.
   The opinion of the Court was delivered by

Fennee, J.

This is a suit against the succession of James H. Wilson, duly opened and under administration in this State, through Dreyfus, as dative testamentary executor, upon a monied demand evidenced by a judgment of a competent court of the State of Tennessee, the object of the suit being to obtain a judgment of a Louisiana court decreeing that petitioner be paid the amount claimed by him and that the defendant executor be ordered to pay the same in due course of administration.

The judgment is sued upon just as a promissory note would be, simply as the evidence of the debt claimed.

All theories based upon the idea (though, to some extent, countenanced by the terms of the petition) that this is a proceeding to enforce, or render executory, a Tennessee judgment, are utterly unfounded. No such proceeding is now known to the law of Louisiana. Remedies of this nature, which once existed, have been expressly repealed. See Arts. 746, 747, C. P., repealed by Act of 1846, p. 166.

The only remedy which the holder of a Tennessee monied judgment has against persons or property in this State, is to bring suit thereon here, and to obtain the judgment of a Louisiana court for the amount thereof. In such case the only judgment which is or can be executed is the judgment of the court of Louisiana.

When the instant suit was originally brought, the defendant interposed an exception of no cause of action, and from a judgment sustaining said exception, an appeal was prosecuted to this Court. Our opinion and decree reversing that judgment, overruling the exception, ordering the defendant to answer to the merits and remanding the case, are extant at p. 885 of 33 An. Rep.

The effect of the exception was to say that, admitting the allegations of the petition to be true, admitting that plaintiff held such judgment and that it was a valid judgment, yet it furnished no ground for the relief asked. Why? Because, said the defendant, I was neither party nor privy to that judgment; as to me it was ret inter alios acta, and I am in no manner bound thereby.

The effect of our decree overruling the exception was to say that the defendant was privy to the judgment and bound thereby, and that if the plaintiff should establish the allegations of his petition, they would support the action and authorize relief. This left open to defendant the general defense contravening the existence or validity of the judgment, and all special defenses tending to establish its extinguishment in any lawful mode; but it forever closed, and passed into the domain rerum adjudicatarum, all controversy on the point that if the plaintiff held the judgment sued on, if it was a valid judgment, and if it had been in no manner lawfully extinguished, it furnished a good cause of action and justified the appropriate relief.

The question as to the binding effect of the Tennessee judgment on the succession in Louisiana was, we are free to admit, a delicate and difficult one not concluded by authority.

The substance of our opinion was that a judgment against the sole testamentary executor of a deceased person, who had qualified and was administering in that capacity in- both Tennessee and Louisiana, rendered by a court of Tennessee, was binding on him in his capacity as testamentary executor in both States. We further held, that inasmuch as the judgment of the court of the first instance was rendered under the state of facts above indicated, the case was not affected by the death of the executor during the pendency of an appeal in the Supreme Court of Tennessee and by the substitution of an administrator de bonis non contradictorily with whom the appeal was necessarily prosecuted) but that the judgment of the Supreme Court, affirming the judgment of the lower court, had the same effect which the latter would have had if it had never been appealed from.

We find no reason to question the correctness of our conclusions on these subjects) but, were it otherwise, our decree is final and beyond review, so far as it affects the rights of the parties to this causé. Arguments, now made, assailing its correctness, come too late, and need no further notice at our hands.

We now approach a defense strenuously insisted upon, to the effect that, conceding the judgment to be binding and to furnish a good cause of action, yet that the relief granted must be limited by the effect which would be given to the same in the State of Tennessee. We are informed that, under the law of Tennessee, a testamentary executor only represents the personalty of the estate administered by him and not the real estate or the heirs; that a judgment against such executor can only be satisfied out of the personalty and is not binding on the heirs nor executory upon the real estate; and, therefore, in any decree which may be rendered here in an action upon such a judgment, we should confine its effect to payment out of the personal property of the succession here.

The argument is entirely fallacious. As a matter of course, a judgment rendered against one who is sued in a representative capacity, binds only the persons and property which are represented by him. If the testamentary executor in Tennessee does not represent the heirs and the realty in that State, naturally the judgment should not bind the realty there, or the heirs as regards their rights in the Tennessee estate. With all this we have nothing to do. The. question comes bach to the same issue : is the judgment binding on the executor in Louisiana? If it is not, then it furnishes no cause of action against him. If it is, then, it is binding to the full extent of his representative capacity. We have held that it was binding on him.

It follows, therefore, that it binds all property without distinction belonging to the succession in Louisiana and the rights of heirs as well as others in and to such property.

We have no concern w.ith the mode of execution of such judgments under the law of Tennessee.

As before stated, a Tennessee judgment cannot be executed in Louisiana in any mode. It is sued on here simply as an evidence of a debt. The only inquiry which concerns us here is whether the judgment rendered in Tennessee establishes, as a thing adjudged, in a mode binding on the testamentary executor in Tennessee, that the decedent, James H. Wilson, was indebted to the plaintiff in the suit in the sum of money fixed therein. If such is the faith and credit attached to the judgment in Tennessee, and if, as we have held, it is equally binding on the executor in this State, it is absolutely entitled to the same faith and credit here. It is the highest evidence of a debt, and unless vitiated by fraud, or impeached as to its validity, or extinguished in some lawful mode, the holder is undoubtedly entitled to a judgment of the Louisiana court against the executor here for the amount thereof. Such judgment will be a Louisiana judgment for money against a Louisiana succession, and will have the effect and execution to which it is entitled under the law of this State.

This disposes of the case.

After a careful study of the evidence, we find that it establishes no defense which can avail against the judgment sued on. Its validity is toot impeached. No fraud or collusion is sliowu in its obtention.

The title of the plaintiff to the judgment is not successfully assailed' either as to its reality or as to its legality. A final judgment is not a litigious right which an attorney-at-law is prohibited from purchasing.

The pleas of compensation urged, eveu if otherwise maintainable,' are of unliquidated demands and not of equal dignity with the judgment sued on, and cannot he pleaded against a judgment under our law.

No demand in reconvention is presented, and we are, therefore, dispensed from further consideration of these claims.

We may, however, say that if the prayer of defendant’s answer could be construed as involving a reconventional demand, there is entire failure to establish any claim against the plaintiff, and so far as his transferror, Holt, is concerned, he is not a party and not subject to any judgment herein.

It is, therefore, ordered, adjudged and decreed' that the judgment appealed from be annulled, avoided and reversed, and that there now be judgment in favor of plaintiff and against the defendant in his representative capacity for the sum of eleven thousand nine hundred and thirty-five 66-100 dollars, with interest at the rate of six per cent, per annum from March I3th, 1879, aDd costs in both Courts, the same to be payable in due course of administration.

Concurring in part.

Bermudez, C. J.

The previous decree of this Court decided merely that the plaintiff, on the face of the- petition, had disclosed a cause of action. It was not intended to mean that, if the allegations of fact were true, the plaintiff would be entitled on the trial of the case on its merits to the judgment prayed for. It only meant that, under the showing made, the plaintiff could recover a judgment against the defendant.

This suit is to give effect to the Tennessee judgment declared upon. Under the Constitution of the United States, such judgment must receive the effect in this State to which it is entitled in Tennessee. Under the jurisprudence it is entitled to that, but to nothing more.

The only effect which could be given to it in Tennessee would have been to coerce its payment out of the personal property of the deceased contradictorily witli the representative of the estate, who there does not represent the realty or the heirs. In case of insufficiency of the personal property, the judgment creditor could not have enforced the judgment by levy on the realty contradictorily with the heirs. He would have been bound to sue on the debt. The judgment is there res inter alios aeta as to the heirs. What he could not have done in Tennessee, he canuot do here.

Tiie executor in Louisiana, differently from an executor in Tennessee, represents the movable and immovable property, the creditors, the legatees and the heirs.

A judgment rendered in Tennessee, not susceptible of being opposed as res judicata to the heirs there, and of being levied on real property there, is not binding on the executor in this State; and does not affect real estate here.

Suppose no dative executor had ever been appointed in Louisiana, and that the heirs of the deceased were now domiciled in this State, could the plaintiff have had a right to sue them on the judgment obtained in Tennessee 1 They could there have pleaded res inter alios acta. They would have such a right here. The plaintiff would have been bound to sue on the claim which is the foundation of the judgment.

What he could not do against the principals he cannot do against the agent, particularly where that agent is one imposed by law, such as an executor.

If a judgment rendered in this State against an executor, and which is conclusive against the heirs, were declared upon in Tennessee in a suit against the heirs there, the courts of Tennessee would not hesitate to refuse giving to such judgment the entire force and effect which it would receive here, for the obvious reason that such judgment would be considered as res inter alios acta as to the.heirs. Why, then, should a judgment rendered in Tennessee, not binding there on the heirs and declared upon here, be recognized by Louisiana courts and given a force and effect to which it is not entitled in Tennessee? Our law clearly is that no one is bound by a judgment to which he was neither party nor privy.

The judgment of this Court on the Tennessee judgment gives it more effect in this State than it would he entitled to have in Tennessee, because it makes it binding on the heirs and payable out of the proceeds of the immovable property.

It can receive execution only against the movable or personal property in this State.

To that extent only I concur in the opinion aud decree just rendered.


author: . Bermudez, C. J,

text:
    No. 8881.
    The State of Louisiana ex rel. Street vs. Rightor, Judge of the Civil District Court, etc.
    A suspensive appeal lies from an interlocutory order permitting a plaintiff to bond seques* tered property. Such bondiDg may cause irreparable injury.
    Such appeal can be sought by an intervener, in whose possession the property was when sequestered.

      A mandamus lies to compel the granting of such anVppoal.
    ApPLICATION for a Mandamus.

      Geo. L. Bright for the Relator.

      L. O'Donnell for the Respondent.
   The opinion of the Court was delivered by

. Bermudez, C. J,

This is an application for a Mandamus. The relator complains that the District Judge has illegally refused to allow him a suspensive appeal from an order permitting the plaintiff to bond a valuable mare sequestered in his possession.

It appears that the plaintiff caused the sequestration to be effected, in the hands of the relator; that the latter applied for authority to bond the mare, but was declined the saíne; that the defendant then moved for the same purpose and was allowed to do so; that the relator then applied for and obtained a suspensive appeal from the two orders; that subsequently, the plaintiff prayed for permission to bond and was granted the same; that the intervenof then moved for a suspensive! appeal, which was denied.

The District Judge says that he refused the appeal because the in- . tervenor has not alleged himself the owner, pledgee, or consignee of the mare, and because he has treated as a nullity the order granting him a suspensive appeal.'

The relator well observes, that his right to bond is not now at issue and that it can be inquired into only after the case, on his appeal, will be before the Court. It can also be well said that, presently, we have no opinion to express on the question whether the District Judge was right or wrong in treating the order of appeal as a nullity, and thus disregarding it. The matter stands actually just as though the relator had made neither the motion to bond, nor that for an appeal.

The question to be solved is simply whether, on the face of the papers, the relator is entitled to a suspensive appeal from the order permitting the plaintiff to bond.

The rule is, in matters of appeals, that all who have an interest at stake, and who may be aggrieved by the execution of the judgment rendered, have a right to appeal, be they the original parties to the proceedings before judgment, or parties thereto by becoming such after judgment. The extent and nature of the rights of parties of the first class appearing of record, it suffices that an application be made, to entitle them or either of them to an appeal. As to third persons, they must allege and show an appealable iuterest and aver that they have been aggrieved by the judgment rendered.

It is true that, but for Act 51 of 1871, an intervenor would not have a right to bond, but it does not follow that, notwithstanding that Act, he is not entitled to appeal from an order which would take away from his keeping and enjoyment, property to the use and possession of which he lays claim by an intervention, in consequence of which he has become a party to the suit. To all appearances he has a title to the ownership or possession of the mare, and asserts the same, resisting both parties litigant.

If a judgment was rendered on the merits against him, what objection could there exist to his resorting to a suspensive appeal from it, just as much as the plaintiff or the defendant could do.

Now it is settled, that plaintiffs and defendants have a right to take a suspensive appeal from an order permitting the bonding of property seized by mesne process. 25 An. 299; 26 An. 65. If sueh.be the case, . and if he have rights which either might allege and which he avers, why should he not, as.well as those parties, have a light to appeal!

By being divested of the possession of the mare sequestered in his hands, the relator may sustain an irreparable injury, just as considerable as that which either of the other parties might suffer. The use and possession of the mare, which is of great value, may be required to enable him to earn a living, “ nay, necessary to the very existence of himself and family,” as was said in in 5 N. S. 43, in which, for the second time, the right to appeal from an order dissolving a sequestration on bond was recognized. See 10 M. 174. The doctrine announced iu both cases was subsequently confirmed. 26 An. p. 65.

The District Judge granted the intervenor a suspensive appeal from the order permitting the defendant to bond. . It is clear he should have allowed him a like appeal from the similar order in favor of plaintiff.

We think that the relator is entitled to the relief sought.

It is, therefore, ordered and decreed that the restraining order herein made be perpetuated, and that the alternative Mandamus issued be made peremptory.


text:
    No. 8819.
    M. Givanovich vs. Hebrew Congregation of Baton Rouge.
    The holder and owner of notes furnished as part of the price of purchase of real estate, may enforce the payment thereof against the purchaser of his vendee, who has assumed payment of the notes. It .is immaterial whether the first act of sale be recorded or not. The purchaser, by his assumption, is liable for the notes, and by his purchase holds under the vendee. He cannot be permitted to set up defenses which his author would have had no right to raise.
    He has no right to ask, by reeonvention, the nullity of the sale by his author’s vendor to the former, and of that by his author to himself, in a suit for the payment of the original price assumed by him and to which Ills own vendor is no party.-
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Sherburne, J.

      C. D. Favrot for Plaintiff and Appellant.

      Burgess & Burgess for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.


author: Todd, J.

text:
    No. 8609.
    Leen Kee & Co. vs. Smith Brothers & Co. et al.
    "Where a person seizes and sella the property of one for the debt of another, but the proceed- • lug, though unwarranted, is not wanton or malicious, the party seizing cannot be held for punitive or vindictive damages.
    Though the vendor was in fraud, when the purchaser paid a sound price and is not shown to have been cognizant of the fraud of the vendor, or of the fact of his insolvency, the property cannot be reached, even through a revocatory action.
    Where the property of the innocent purchaser has been thus illegally seized and sold, the party in fault is liable to the owner for the full value of the property, although part of the proceeds of the sale has been applied to pay a debt for rent due on the property in favor of a third person claiming same by thiid opposition. 6 R. 385.
    APPEAL from the Civil District Court for the Parish of Orleans, Houston, J.

      T. M. Gill and H. H. Bryan for Plaintiffs and Appellees.

      J. 0. Nixon Jr. for Defendants and Appellants :
    Litigants who do not produce the best evidence under their control will be presumed to do oo because suoh evidence is unfavorable. Cockerel vs. Smith, 1 An. 3 j 1 An. 346 j Winston vs. Prevost, 6 An. 166.
    When sned for damages, for sale of A'a property under process against B, the defendant caw set up that the transfer from B to A was fraudulent, and is not restricted simply to showing that it was simulated. Fisher vs. Moore, 13 R. 95} New Orleans Th. Ins. Co, vs. Laftbranderie, 13 R. 473} C. B- 30.
    A sale of all of a debtor’s property to the prejudice of creditors is presumed fraudulent. Bank of Mobile vs. Harris, 6 An. 811.
    And it is not necessary that the vendee should be proved to have known of the vendor’s insolvency. Thompson vs. Freeman, 34 An. 903.
   The opinion of the Court was delivered by

Todd, J.

Smith Bros. & Co., creditors of Wung Chung & Bro., attached as their property the contents of a store at 97 Royal street, in this city, and under the judgment obtained for the debt claimed, caused the property to be sold.

The plaintiffs in the instant case, claiming that they were the owners of the property and in possession of the same at the time of its seizure under the attachment, sued Smith Bros. & Co., the attaching creditors, for damages, and obtained a judgment against them for $850, less $107 paid out of the proceeds of the sale for rent due } and from this judgment Smith Bros. & Co. have appealed, and-the plaintiffs have asked an amendment of the judgment in their favor.

There were exceptions filed to the petition, which, upon examination, we find were correctly overruled, as likewise a prayer of oyer.

Tile evidence, which is voluminous and in some not essential particulars, conflicting, satisfies us that the plaintiffs were the owners of the property attached at the time of its seizure and in possession of the same. That the sale to them by Wung Chung & Co. was a real sale, and there is no proof that the purchase was not made in entire good faith by the plaintiffs, and in ignorance of any indebtedness on the part of the vendors to Smith Bros. & Co., or anyone else.

The plaintiffs were desirous of preventing the sale of their property and employed counsel for that purpose, but were unable to make an injunction bond. The case was tried before a jury. The verdict allowed damages to the amount of the price paid by the plaintiffs for the property, less the amount of the proceeds of the sale received by the lessor of the store, who had intervened in the suit.

The circumstances of the case might seem to warrant the allowance of actual damages to a larger amount than were awarded by the lower court.

The plaintiffs, as stated, bought in good faith and for a sound price, went into the immediate and exclusive possession of the property, with their sign up, and all the indicia of ownership at time of the seizure. Their stock was sold out by the sheriff, and their business broken up, but the proof in the record does not enable us to make an estimate of the loss from this or any other cause of damage asserted, besides and beyond the value of the goods lost to them, and we are not asked to remand the ease, that the proof on this point may be supplied. We do not think, however, that the amount of the rent due on the storehouse should have been deducted from the amount allowed, $850, for the goods sold.

In the ease of Lawrence vs. Hozey, 6 R. 385, the property of the plaintiff therein was seized and sold for the debt of his Vendor, and the entire proceeds of the sale taken or absorbed by the rent claim, and the seizing creditor got nothing, yet the Court held :

“That it is no excuse for the defendants, if their acts were illegal and caused damage to the plaintiff, to say they had gained nothing by them and that another got the money they were illegally endeavoring to obtain. It is not shown that Burton (lessor) was at all uneasy about the rent of his house, or that he would, in the absence of the plaintiff, have taken any step to have the furniture seized and sold. The course pursued by the defendants compelled him to assert his claim, but does not legalize their proceeding, if contrary to law.”

We are strongly urged to allow punitive or vindictive damages. We cannot do so. The seizure, though unwarranted, was not wantonly and maliciously made. The defendants evidently believed they were attaching the property of their fraudulent debtors. They had seen them one day in possession of the store, engaged in the usual course of traffic. On the very next day they found the plaintiffs duly installed and at home there. The change was unexpected and unannounced. They could not readily believe that it was the result of a bona fide legitimate, sober business transaction, but .very naturally, in the sudden change in the situation, and perhaps from individual or na? tional associations marking the dramatis personas, or, may be, from poetic inspiration, they saw in it only.the evidence of ways thakare dark and tricks that are vain,” and on this conclusion-acted.

It is,'therefore, ordered, adjudged and decreed that the judgment appealed from be amended by striking out and rejecting the $107 and interest allowed therein as a credit.for rent, and decreeing the entire sum mentioned in the judgment.,-. $850 and interest, to the plaintiffs, and as thus amended it be affirmed at the costs of the defendants.

Rehearing refused. - . ■


author: BekmujdBZ, C. J.

text:
    No. 8793.
    S. Friedlander vs. Elise Schmalinski.
    Where a debtor agrees to pay a certain sum at a specified time, less the amount which pledged collaterals may realize, the creditor may, as pledgee, take legal steps to enforce .payment of the securities, but is Under no legal obligation to do so, in the absence of any special understanding for that purpose.
    His failure thus .to act cannot be opposed to him when, maturity having arrived, he seeks payment of his claim.
    In such a case he is entitled to judgment, with privilege on the effects given in pledge, and to a judicial sale to realize their value, Which must be applied to the satisfaction of the debt.
    APPEAL from the Twelfth District Court, Parish, of Rapides. Bar» bin, J.

      BobL B. Banter for Plaintiff and Appellee.
    B. J. Bowman for Defendant and Appellant.
   The opinion of the Court was delivered by

BekmujdBZ, C. J.


author: Poché, J.

text:
    No. 8835.
    Parish of St. Helena vs. R. Y. Burton et als.
    In a suit against a defaulting Parish Treasurer and his sureties tor funds embezzled by him, the sureties cannot set up as a defense the nullity of the Treasurer’s bond, predicated on. the failure of the members of the Police Jury who elected him to have taken the oath required by law within the prescribed time. That question cannot be raised in this collateral manner,
    t PPEAL from the Sixteenth District Court, Parish of St. Helena. OL Kernan, J.

      Chas. E. Lea, District Attorney, for Plaintiff and Appellee.

      ■J. E. Muse for Defendants and Appellants.
   The opinion of the Court was delivered by

Poché, J.

The Parish of St. Helena seeks judgment against its defaulting Treasurer and the sureties on his official bond for moneys received and unaccounted for by said Treasurer.

His defense is a general denial; the sureties urge the illegality and nullity of the bond which they executed with their principal, on the ground that the members of the Police Jury, by whom Burton had been elected Treasurer, failed or neglected to take the required oath of office within the time prescribed by law, by reason of which failure the members of the Police Jury were, for the same reason, incapacitated from representing the Parish in the present suit. It is also alleged in defense that one of the Police Jury had forfeited his right to said office by subsequently accepting that of school director.

This appeal is taken by the sureties from a judgment against them and their principal in solido, according to the terms of the Treasurer’s bond.

The pith and substance of the defense relied upon by appellants, present the naked issue of the right of the members of the Police Jury to exercise the functions of police jurors at the time that they selected Burton as Parish Treasurer; at the time that they accepted his bond as such, and at the time that they brought this suit. The issue thus presented involves the consideration of the right to question collaterally the right of an officer de facto to the office which he holds.

The question has long since been removed beyond the domain of discussion by an unbroken line of decisions in our jurisprudence; and the solution of the problem is decidedly adverse to appellants1 pretensions in their defense.

In the case of the State ex rel. Henry Williams vs. Persedorff, constable, etc., 33 An. 1412, this Court held that a party arrested and held in custody under a mittimus issued by a magistrate de facto actually performing the functions of justice of the peace, could not inquire, in a proceeding by habeas corpus, into the right of such magistrate to the office which he holds.

In 29 An. 899, State ex rel. Jumel vs. Johnson; in 21 An. 336, State ex rel. Hero vs. Pitot; in 12 An. 719, State ex rel. Vienne vs. Hyams, it was held that the right to office could not be tested under a proceeding by mandamus. It stands to reason that these principles will apply with irresistible force to a case where an officer attempts to dispute the right of those from whom lie received and accepted an important trust.

A similar defense was attempted in the ease of The Mayor and Selectmen of the Town of Homer vs. T. S. Merritt et als., 27 An. 568, in * which the sureties on the bond of the town collector sought to escape responsibility under their bond by urging that their principal had not been legally elected collector. The Court disposed of their defense in a very summary manner, holding that this question cannot be raised in this collateral manner.” “ It is a fact that the principal on the bond did act as collector, at least under color of authority, and that he did collect the licenses and fines imposed by those who were acting under color of authority; he must account for the moneys collected by him, even though unduly collected, and the sureties bound themselves to do so, if he did not.”

This is the precise obligation contracted by these appellants, and the courts'of the country will not allow them to dispute the very authority under which their principal received his mandate, for the faithful performance of which they bound themselves in his official bond. ■’

In the light of the events shown by the record it is to be deeply regretted that appellants did not manifest the same solicitude concerning the proper qualification of the police jurors, before the execution of the bond, which they now bring to bear as means of defense against the recovery by the parish of its embezzled funds.

Our conclusion is, that the District Judge very properly excluded all the evidence offered in support of the special defense set up by the sureties, and that there is no error to the prejudice of appellants in the judgment rendered by him.

In his brief appellee’s counsel complains of certain credits erroneously allowed to the defendant Burton; but in the absence of a motion to amend the judgment, his suggestion cannot be entertained.

Judgment affirmed.


author: Manning, J.

text:
    No. 8068.
    Thomas Bergen vs. The City of New Orleans.
    The failtn e of the City to pay cash each month for a contractor's work justifies him in abandoning his contract when such payment is expressly stipulated in it.
    Expected profits from a contract to be realised in the tature, which are dependent upon contingencies, cannot be included in a judgment for damages for its violation, and especially when both allegation and proof are general and'vague.
    A judgment against the City of Now Orleans for the value of services rendered under a contract must be paid out of the revenues.of. .the year for which the contraot was made.
    APPEAL from the Fifth District Court for the Parish of Orleans. Boyers, J.

      W. S. Benedict and Jos. P. Hornor for Plaintiff and Appellee.
    C. F. Bock, City Attorney, and Wynne Boyers for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The plaintiff contracted with the City to clean and repair the streets of the Third District for two years commencing July 1, 1877, for the price and sum of fourteen thousand seven hundred and fifty dollars per annum, payments thereof to be made cash by the City monthly, except that ten per cent, of each monthly payment was to he retained as guarantee.

The City did not pay the instalments later than June, 1878. The contractor continued his work until Dec. 17th following, when he formally notified the City that its failure to pay him as promised compelled . him to cease. He has sued for $614.55, sum total of the per-' centage retained for five months, from July to November, both inclusive—$634.40 for work of December to day of abandonment—and $500 of expected profits for each month of the unexpired term of the contract.

The City pleads his abandonment of the work as a violation of the contract which release.s her from all liability.

To sustain this plea would be to enable her to take advantage of her own wrong. She promised to pay cash each month. Because of that promise, she was enabled to get a lower bid for the work than she could otherwise have done. Because of her failure to keep her promise, the plaintiff was compelled to abandon work and discharge his force, and as he alleges lose materials. The fault was hers and she must pay the first two items mentioned.

But we cannot include in our judgment the expected profits, which are alleged in a round sum and proved by the plaintiff in like manner by his own testimony. The claim is too vague, even if it were not open to the objection that the contemplated gain depended for realization on future contingencies that might diminish the amount, or would wholly consume it. Therefore, • ■

It is ordered and decreed that the judgment of the lower court is amended by reducing the sum therein named to twelve hundred and forty-eight dollars and ninety-five cents, and as thus amended it is affirmed, the plaintiff to pay the costs of appeal.

On.Application for Rehearing.

The defendant has called our attention to the omission in the judgment of the lower court, and in our decree, to direct that it should be paid out of the revenues of the year when the services were rendered. Had the matter been called to our attention, we should not have omitted it. A rehearing is granted.

On Rehearing.

It is ordered and decreed that our decree is amended so that the same is ordered to be paid out of the revenues of the year 1878, and as amended it rest and remain the judgment of the Court.


text:
    No. 8687.
    John Baker vs. Albert Shultz et al.
    The lower court can and must pass upon the sufficiency of the appeal bond, when it is die* puted by the appellee; and when the bond has been adjudged insufficient, and no other is furnished, the appeal will be dismissed.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J. ,

      Bichará BeOray for Plaintiff and Appellee.

      W. S. Benedict for Defendants and Appellants.
   The opinion of the Court was delivered by

Manning, J.

The judgment in this case was signed June 28, 1882, anda suspensive appeal therefrom was granted July 3d, on the defendant’s giving bond with good and solvent surety, u conditioned according to law in the sum fixed bylaw.” Bond was executed July 5th for ten thousand dollars.

On November 5th following, the plaintiff, suggesting the insolvency of the sureties, at the time the bond was given, took a rule to test its sufficiency, and an order was made to shew cause why it should not be adjudged that the appeal was never effected and completed, and why execution should not issue.

The plaintiff died pending this rule, and his widow and heirs were made parties. On Jau. 15, 1883, upon trial the rule was made absolute, and the court decreed that the appeal had not been perfected, the order therefor was set aside, and execution1 directed to issue.

No other bond was filed of any amount, and the plaintiff moves to dismiss for want thereof.

Undoubtedly the Judge below has, and ex necessitate must have, the right to pass upon the sufficiency of the appeal bond. If it is not lodged in the lower court, it cannot be anywhere, for certainly we cannot do it here as a matter of original jurisdiction, and the practical result would be that a judgment might be-suspended by a straw bond. This cannot be permitted. State ex rel. Gill vs. Tissot, 34 Ann. 93.

The appellee has accompanied his motion with certified copies of the proceedings below upon the rule to test the solvency of the sureties and sufficiency of the bond, and the judgment thereon declaring the bond worthless, and setting aside the order of appeal.

With these proceedings before us it is manifest that there is no bond, and an appeal without a bond to support it cannot stand. Huppenbauer vs. Durlin, 23 Ann. 739.

We have already ruled expressly upon the right of an appellee to a dismissal under circumstances identical with those of the present case. Dumas vs. Mary, 29 Ann. 808; Weiser vs. Blaese, 34 Ann. 833.

The appeal is dismissed. 1 ■


author: PoCHlii, J.

text:
    No. 5381.
    W. M. Goodrich vs. Thomas B. Bodley.
    The goods of a third person found in a leased store, where they had been consigned by their owner to the lessee, to be sold by the latter at a price fixed by the owner, with the understanding and agreement that the lessee or consignee could keep, as his compensation, all that he could obtain above the inventoried prices, and that no rent or storage was due by the owner, will be affected by the lessor’s privilege, and are liable to the latter’s seizure for unpaid rent due by the lessor.
    APPEAL from the Sixth District Court for the Parish of Orleans. Saucier, J.

      James McConnell for Plaintiff and Appellant.

      .E. W. Huntington and W. B. Mills for Intervenors and Appellees.

      E. W. Balcer and Hornor & Benedict for Defendant and Appellee.
   The opinion of the Court was delivered by

PoCHlii, J.

The contention in this ease is between plaintiff and intervenor, and grows out of a seizure for the payment of rent due by the defendant.

The intervenor complains of the seizure of goods belonging to him, and stored in the leased premises, where they were, kept for sale by defendant on conditions hereinafter stated. ,

Plaintiff has taken this appeal from a judgment rejecting his lossoijs privilege on intervenor’s goods found in the leased premises.

The record'Shows that intervenor’s goods had been consigned in separate lots, at different times, to defendant, to be sold by him at a price stipulated by intervenor, and no less, but .as much above said price as he could obtain, the excess over and above the inventoried prices to constitute his profits or compensation in the transaction; that no rent was stipulated for the space occupied by the goods, and no charge for storage contemplated between the parties. And it further appears that the goods had been in the store for a long time, all of which was within the full knowledge and with the express consent of intervenor.

It is thus apparent that intervenor was not an under-tenant, and hence, he can get no relief from the provisions of Art. 2706 of our Civil Code, which regulates the rights of under-tenants touching the lessor’s privilege.

It is equally clear, that the goods were not transiently or accidentally in the store, as the evidence shows that they were to remain there until sold at the invoice prices, and hence, the provisions of Art. 2708 of our Civil Code cannot be successfully invoked by intervenor.

Our conclusion is, that the question is to be solved under the provisions of Art. 2707 C. C., which extends the lessor’s privilege to the movables belonging to third persons when their goods are contained in the store by their own consent. G. P. Art. 207.

The case is governed by the conclusions reached by this Court in the case of the University Publishing Company vs. Mrs. C. Piffet, 34 An. 602, in which the lessor’s privilege was held to affect goods contained in the leased house, without a contract of rent between the lessee and the owner of the goods, to be sold together with other goods of the latter.

The judgment of the lower court is, therefore, annulled and avoided ; and it is ordered that plaintiff’s lessor’s privilege do affect intervenor’s goods contained and seized in the leased premises, and the costs of intervention and of this appeal to be paid by intervenor.


text:
    No. 8642.
    H. V. Bayhi et al. vs. Chas. Bayhi et als.
    Co-lieirs have the light to sue for a partition by sale where the property held in common cannot be conveniently divided in kind, although the shares of other heirs therein be burdened with mortgages.
    A judgment directing such partition cannot be attacked collaterally. If it was rendered on insufficient evidence or in disregard of the forms prescribed by law, it can only be revised on appeal. If it was obtained by ill practices, not patent on the record, the remedy is by an action in nullity. ’
    An answer made by the defendants, in which they neither deny nor admit any of the allegations of the petition, but submit the case to the determiuation, joins issue as effectually as a judgmeut by defauLt could have done. Such an answer and such judgment throw upon the plaintiff the burden of establishing the allegations'of the petition as fully as if a special denial of each had been filed.
    A judgment rendered on an issue formed by such answer, is not a eonsent judgment. Where rendered by a court, after hearing evidence and an opposing intervenor, it must be viewed as the result of the exercise of a judicial discretion and as a decision of the ‘issues presented.
    In partition suits the validity of the adjudication does not depend upon a proportion to the appraisement. The property cau be legally adjudicated regardless of the valuation placed upon it, even when minors are co-owners.
    Co licit s have a right to as'semble and consult touching the propriety of purchasing or not the property to be sold for a partition. In case of adjudication to them, they are authorized t to retain the price Until their rights in the succession have been liquidated. They have the right of fixing for their respective shares such terms as they may deem most advantageous.
    The fact, if it exist, that revenues or profits were yielded by the property previous to the adjudication, and are unaccounted for; does not affect the validity of the sale.
    In partition suit between co-heirs, the mortgages affecting the share of any one of them are referred to the proceeds, and either of them can, by rule against the mortgage creditors, have them so relegated and the inscriptions thereof erased from the mortgage book. Such creditors have the right to contest the validity of the sale in such cases.
    This case is differentiated from that in Life Association vs. Hall, 33 An. 53.
    A distribution proposed in the lower court and not disputed on appeal will not be disturbed.
    APPEAL from the Twenty-fourth District Court, Parish of Plaque-mines. Idvaudais, J.

      Sambola & Dueros for Plaintiffs and Appellants.

      Wilkinson & Armstrong and 8. 8. Carlisle, It. T. Beauregard, H. Chiapella and T. A. Flanagan, contra.

   The opinion of the Court was delivered by

Bermudez, C. J.

This is an appeal from a judgment discharging a rule, taken to cancel morgage inscriptions, against the defendants in this suit (which is one of partition among co-heirs) and to distribute the proceeds among the mortgage creditors.

The plaintiffs and the defendants are the only heirs of age of their father and mother. The former, four in number, brought this suit against the remaining two for a partition by sale, the property not being susceptible of a convenient division in kind and they being unwilling to hold and own the same any longer in common with their co-heirs.

The property consisted of two plantations: one iu the Parish of Plaquemines, the other in the Parish of St. Bernard. The former was community property ; the latter the individual property of the mother,who inherited it after her husband’s death. The'plantation in Plaque-mines Parish is in part encumbered with a mortgage in favor of the Citizens’ Bank, to secure stock and a stock note.

The defendants entered appearance, neither denying nor admitting the averments of the petition, but submitting the case, which was fixed.

On the day of trial, evidence was adduced contradictorily with anintervenor representing himself as a creditor of one of the defendants.

Judgment was rendered dismissing the intervention and ordering the sale of the two pieces of real estate, on certain terms, to eifect a partition.

Prom this judgment the intervenor appealed, but failed to prosecute his appeal.

The two pieces of real estate were advertised and offered fon sale. They were adjudicated to the plaintiffs, who subsequently took a rule against the mortgage creditors .of the defendants to show cause why-their mortgages should not be referred 'to the proceeds of sale of the shares of their debtors and the inscription thereof erased, so far as said shares are concerned, and why said proceeds should not be distributed among those entitled thereto.

The creditors excepted to the proceeding by rule and attacked the' judgment and the sale made in furtherance thereof.

The District Judge maintained the proceeding by rule, but considering that the mortgage creditors could not be relegated to the proceeds, dismissed the rule.

I.

There can be no doubt that, as the object in view is to give a clear title to the purchaser of property sold by authority of justice, the proceeding is in furtherance of the judgment rendered and is proper and legitimate.

It is unquestionable that the plaintiffs had the right to sue for a partition of the property which they held and owned in common with the defendants, although burdened as to the latter. Otherwise they would be bound to remain in indivisión. E. C. C. 1289, 1311; 9 An. 212, If they had that right to sue, and the real estate could not be conveniently divided in kind, the property passed by the adjudication to the purchaser, and the plaintiffs had a right, in order to compel payment of the price, to demand that all mortgages be referred to the proceeds and that the inscriptions against the property, or any portion of , it, be cancelled and erased. R. C. C. 1339.

It would be inflicting an unjustifiable hardship on the plaintiffs to require resort to other than summary process, in order to accomplish, that purpose.

' The proceeding is not a new one. • It is invoked in cases of sales made in execution of money judgments, and sanctioned as fit and proper, at the instance of parties immediately concerned in such execution. 1 An. 330; 2 An. 650; 8 R. 129; 25 An. 146; 27 An. 292; 31 An. 859.

II.

The defendants cannot be heard to attack the judgment of partition collaterally. They can assail it only on the face of the proceedings. If, as claimed, it was rendered on insufficient evidence and in disregard of the forms prescribed by law, the error, if any, could have been revised on appeal only. 14 An. 656; 22 An. 371. The court was competent, the proceedings are by petition and answer, and the judgment is in proper form. The answers are not a confession. 5 R. 448; 29 An. 558. They are signed by the defendants in proper persons. They purport neither to deny nor to admit any averment, but leave the whole matter to the determination of the court. They have put the' case at issue just as it would have been had a judgment by default been taken, which would have thrown on plaintiffs the burden of proving the allegations in the petition as completely as if there had been a special denial of each and every one of them. C. P. 312; 16 L. 313. It is only after hearing evidence and an opposing intervenor that the court exercised its discretion and rendered the judgment already mentioned directing the partition. Least of all is that intervenor entitled to be heard to complain of the judgment. He was a party to it, and he should have prosecuted his appeal. He has not done so, and cannot urge presently the objections which he previously raised» which were overruled by the court, and which he has abandoned by his inaction.

III.

Objections to the validity of such a sale surely can be set up by mortgage creditors ruled into court, as was the case in the present instance. 33 An. 873, 879.

The objections raised by the appellees are, substantially, that the proceedings are collusive and in fraud of the rights of the creditors of the defendants; that the terms of the sale were unauthorized and deterred bidders;' that the property was adjudicated regardless of its appraisement and value, and was sacrificed; that no price was paid by the adjudicatees, who are the plaintiffs in the suit, and that the revenues of the property are unaccounted for.

(а) If the judgment of partition was procured by ill practices, not patent on the record, it could have been annulled in - a direct or, on proper allegations and showing, an injunction, could have arrested its execution. C. P. 613; 30 An. 139. It certainly was irregular to attack it collaterally for such reason, in an answer to a rule for the cancellation of mortgage inscriptions. The testimony relied upon does not, however, establish that charge.

The adjudicatees, four co-heirs, plaintiffs in the partition suit, had. a right to assemble and to determine upon the course they would adopt concerning the sale of the property; whether they would bid on it, purchase it, or, a stated price being reached, whether they would let it go. What they could do and did do, the creditors of the defendants could have done, but did not do. A consideration of their interest and the adoption of a line of conduct on the part of plaintiffs, is in no way reprehensible, but was perfectly legitimate. R. C. C. 1343, 2625; C. P. 688; 33 An. 1380.

(б) Whatever the terms were which the parties fixed, whether cash, or part cash and part on credit, no one can be heard to complain of. The law gives to such co-owners the right of fixing the terms which they think most advantageous. R. C. C. 1342, (Act of 1853, No. 190.) Those fixed for the Plaquemines Plantation are: the assumption of the Citizens’ Bank debt, and the remainder cash. No other terms could have been fixed under execution against the defendants, whose creditors are now in court. C. P. 686.

(o) It has been often held that, in partition proceedings, it is unnecessary that the price of adjudication should bear proportion to the appraisement, A judicial sale to a co-proprietor, in a case of that description, need uot bring the appraisement price in order that the sale may be valid, even where minors are co-proprietors. Such sales, cannot be avoided on account of lesion. R. C. C. 345, 2594, 2616; 8 L. 179; 14 An. 154, 178; 15 An. 697; 30 An. 1013; 31 An. 574; 33 An. 52; Troplong 2, Vente, 856, 857, 873; 16 Duranton, 468; Pothier, Sale, 341.

(cl) The adjudicatees were co-heirs in two solvent successions. They had the right to retain the price until their respective share of inheritance be definitely settled in the partition. R. C. C. 1343; 4 An. 8.

(e) Whether there were or not revenues, is not a fact upon which depends the validity of the sales of the two pieces of propeity. The defendants in rule have another familiar remedy to reach such revenues, if they exist.

IV.

The property having been regularly advertised, offered and adjudicated, the questions which now arise are, whether the judicial mortgages which the defendants in rule have against the property of their debtor can be referred to the proceeds of the sale, and whether the inscription thereof can be erased from the mortgage books in which they were recorded.

The appellants have referred the Court to many French authorities, all of which it is unnecessary to enumerate, and which leave no doubt on the subject. 12 Pothier Succ., Chap. 4, Art. 5, § 1, pp. 582, 583; Troploug Part. 1063 and 1064 ; Merlin Part. p. 320, $ 6, Nos. 1 and 2 ; 2 Delvincourt, pp. 97 and .98 ; 3 Chabot Succ., 663, 670; 16 Duranton, No. 483; 11 Pothier Fiefs, p. 1, Ch. 5, Sec. 1, Art. 2; Sec. 3, p. 216, and others.

In 33 An. 53, this Court intimated that such might be the case. In 12 An. 236, it was decided that a judicial sale, made to operate a partition among co-heirs, has the effect of extinguishing mortgages given by some of the heirs on their undivided portions and transferring such mortgages to the proceeds of sale. The case is one in which the mortgage creditor could give a valid receipt, from which a discharge could result.

The proceeding termed probate in the opinion, was a suit in parti-• tion among co-heirs, as appears from the transcript in the case. See .9 An. 107, 212.

In partitions in kind the mortgages attach to the property allotted to the co-heir debtor. In partitions by sale the property of the co-heir debtor passes encumbered with the mortgage; but at the instance of any party interested in giving or receiving a clear title, or in having the proceeds distributed, the property transferred cum onere can be disencumbered and the mortgage shifted to the proceeds. See also, 27 An. 127; 26 An. 442.

There exists no discrepancy between this case and that of Life Insurance Association vs. Hall, 33 An. 53, in which this Court merely decided, that the general mortgage of a minor affecting the undivided share of a tutor in a piece of real estate could not, in a partition suit, be referred to the proceeds, so as to be extinguished on the tutor’s receipt. That was the case of a minor’s mortgage; this is the case of mortgages in favor of persons of full age. The law concerning minors provides that their general mortgage cannot be released otherwise than by a special mortgage. It may be, however, that if the price yielded by the share of the tutor, in that case, could have been legally received by one, not the debtor himself, the mortgage might have been released. The difficulty in that case was the cancelling of the mortgage on payment of the price of the tutor’s share to the tutor and debtor himself. Barnard vs. Erwin, 2 R. 417.

Such being the law, the mortgages of the defendants in rule, whatever they be, must be relegated to the proceeds.

The mode of distribution proposed to be made of those proceeds does not appear to have been disputed below, neither is it held by the appellees.

It is, therefore, ordered and decreed that the judgment appealed from be reversed; and it is now ordered and decreed that the rule herein taken by the plaintiffs, for a cancellation of the mortgage inscriptions of the defendants in rule, and for a distribution of the proceeds of sale, be made absolute, and accordingly, that those inscriptions be erased, as far only as the shares of the defendants in the two pieces of property in question are concerned, and that the proceeds of said shares be applied in the manner contemplated by said rule, the appellees to pay costs in both Courts.

Poché, J., concurs in the decree.


text:
    No. 8869.
    The State of Louisiana ex rel. Robert Brewster et al. vs. The City of New Orleans.
    The deputies designated by the Criminal Sheriff of the Parish of Orleans for duty at the •' Parish Prison, and as such entrusted with the legal custody of the prisoners therein confined, are not employees of the Parish Prison within the meaning of Act No. 64 of the legislature of 1882, which requires that the salaries of such employees be paid by the City of New Orleans. These deputies must look to the fund created by Article 146 of the Constitution for the payment of their salaries. Courts of justice cannot overlook a clear and unambiguous constitutional provision for the purpose of ascertaining that the framers of the Constitution intended to make a different provision on the same subject matter, by an investigation into the journal of the convention.
    The instrument published under the authority of the State, as the Constitution, is the organic law which all courts must expound, support and obey.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Henry B. Kelly for the Relators, Appellants.

      Chas. F. Buelc, City Attorney, for Respondent and Appellee. •
   The opinion of the Court was delivered by

Poché, J.

The object of this proceeding is to compel, by mandamus, the City Council to provide for the payment of the salaries of the' deputies of the Criminal Sheriff of the Parish of Orleans, who are detailed for duty at the Parish Prison, whose salaries, as fixed by law, amount annually in the aggregate to nine thousand six hundred dollars. This appeal is taken from a judgment rejecting their demand.

Relators’ main reliance is on Act No. 64 of 1882 of the ■ legislature, which provides that from and after the first of January, 1883, the salaries of the employees of the Parish Prison of the Parish of Orleans shall be paid by the City of New Orleans.

The exception of no cause of action was well taken, and the judgment of the lower court must, therefore, be affirmed.

The pleadings show that the deputy sheriffs are appointed by the Criminal Sheriff with the approval of the Judges of the. Criminal District Court. Hence, after such appointment they become, under their chief, executive officers Of the Criminal District Court, and through, their chief they are responsible to that court alone.

Under the provisions of Article 147 of the Constitution, “the maintenance and support of prisoners confined in the Parish of Orleans, upon charges or conviction for,criminal offenses, shall be, under the control of the City of New Orleans.” And from this provision it is argued that the framers of the Constitution intended to include the expense of the custody of such prisoners. And several quotations are made from the journal of the convention tending to show,such an intention. Many reasons could be invoked to justify such,an .intention and to demonstrate the wisdom of such a course. But the language of the provisions of that instrument, on the subject of our prese.nt inquiry, is too plain to admit of judicial interpretation, predicated upon a research to discover the latent intention of the framers of the Constitution. Such investigation should be resorted to in cases of doubtful meaning only. But i.u this case, the conclusion so ably urged by relators’ counsel would necessitate the interpolation of a whole article in the instrument. It would appear from an inspection of the, journal that the principle contended for was actually intended to be incorporated in the instrument by the adoption of an amendment, which was inadvertently omitted by the committee on revision, but a court of justice can recognize only the Constitution as published under the authority of the State, ajnd has no power to correct the errors of the committee entrusted by the convention itself with the revision and publication of the Constitution. No principles of law or jurisprudence can be invoked as clothing the journal of the convention with more binding force and authenticity than the Constitution as published. Such a doctrine would be fraught with great danger and would create a state of painful uncertainty touching the authenticity of the organic law of the State.

The pivotal question in this case therefore involves the proper construction of the Act 64 of 1882, with a view to ascertain whether the legislator intended to include deputy sheriffs in the term employees of the Parish Prison,

■ It is very clear to our minds that such wa's not his-intention.

The duty entrusted to the City of New Orleans by Article 147 of the Constitution was to provide for the maintenance and support of the prisoners; and by that must be understood the duty of furnishing shelter, food, clothing and to supply other physical care; but evidently not the custody of, nor the responsibility for the-prisoners, which were then, and are yet, by law placed under the charge of the Criminal Sheriff of the Parish.

As he cannot personally perform such duty, he executes it by means of his deputies, who do not, however, cease to be his deputies, or officers of the criminal court, by reason of their being designated to perform the duties of the Criminal Sheriff touching the custody of the prisoners confined in the Parish Prison.

Under the provisions of Article 146 of the Constitution, the salary of the sheriff and of his deputies is to be paid out of the fund provided for in the first part of the Article. And the legislature is expressly prohibited from adopting any other mode for their payment.

Hence, it is clear to our minds that Act No. 64 could not contemplate deputy sheriffs who have the legal custody of the prisoners under the control of the criminal court, when it provided for the payment of employees of the prison entrusted with the duty of ministering to the physical wants of the prisoners under the control of the City of New Orleans.

As the Criminal Sheriff has the constitutional right of removing from office any one of his deputies, he has a fortiori the right of recalling and replacing any and all the deputies whom he may have selected for duty at the Parish Prison, and therefore these deputies are his employees and not the employees of the prison or of the City. Art. 141.

- Our conclusion is, that the City is not and cannot be held liable for the payment of the salaries of relators when performing the duty of the Criminal Sheriff in the legal custody of the prisoners confined in the Parish Prison ; and that relators are, therefoie, not entitled to the relief which they seek.

Judgment affirmed.