text:
    No. 8415.
    Emeranthe Latiolais, Administratrix, vs. The Citizens’ Bank of Louisiana.
    One contracting with a Corporation is thereafter estopped from denying its corporate existence, unless it is for canses that occurred since the contract.

      A mortgage creditor may treat as his debtor the vendee of the mortgaged property, who has assumed payment of the debt, without thereby creating a novation and discharging the original debtor. Thar discharge cannot he presumed, and must be established by clear and positive proof of such intention on the part of the creditor. In default of sufficient evidence to the contrary, it will he presumed that the creditor retained the old debtor at the same time that he accepted the new one.
    The notes furnished by a stockholder of the'Citizens’ Bank for the amount borrowed by him, are not prescribed so long as his Certificate of stock remains deposited and pledged to the Bank, under the provisions of its Charter.

      A mortgage granted by a stockholder of the same Bank, to seoure the amount borrowed by him, needs not be re-inscribed.

      The said Bank may proceed by seizure and sale to collect the contributions due by a stockholder. Affirming 25 An. -628.
    The sheriff, and -not the seizing creditor, is answerable for damage suffered by property under seizure, when the latter is not charged with privity.
    APPEAL from the Twenty-ñrst Judicial District Court, parish of St. Ul Martin. Fontelieu, J.
    Transferred to New Orleans by consent of parties.

      Albert Voorhies, Martin Voorhies, Felix Voorhies and Fclwarcl Simon for Plaintiff and Appellant:
    First — Mortgages are prescribed by thirty years, with the exception of such as are specially excepted. Conventional mortgages are not excepted.
    Second —Stock loan notes are prescribed by five years from the date they are exigible.
    Third — Executory process cannot issue for the payment of stock contributions unless there be authentic evidence annexed to petition, showing that such contributions are due.
    Fourth — The Acts of 1852 and 1853 are unconstitutional, at least so far as concerns stockholders of the Citizens’ Bank who have not given their consent to these acts, which impair the obligations of tlieir contract. Hor can they be enforced unless with the unanimous consent of all the stockholders.
    Fifth — The pact de non alienando abandoned by the bank’s recognition and ratification of the transfer of the plantation by Duclozel to Sproule.
    Sixth — novation by substitution of debtor, — the bank having accepted Sproule as her stock debtor and ratified the sale of the plantation and bank stock by Duclozel to Sproule.
    Seventh — The plea of prescription can be filed at any stage of the cause, even on appeal, even in injunction cases and other conservatory remedies.
    Eighth — The Acts of 1852 and 1853, besides, are unconstitutional in toto, because they violate the Constitution of 1845, Arts, 118 and 119, and the Constitution of 1852, Arts. 115 and 116 —which require that “ every law shall embrace but one object, and that shall be embraced in its title ’’ — and which prohibit to amend, or revive, an act by reference to its title, requiring that the amended or revived actbe re-enacted and published at length.

      Robert S. Perry and Armand Pitot for Defendant and Appellee :
    First — The mortgage prescribes in favor of a third possessor only when the hypothecary action prescribes, and the hypothecary action prescribes only with the right from which it springs. Pont, p. 1090, T. § 1243; Grenier, traité des Hypoth6ques, Tol. 2, Ho. 510; Troplong, Tol. IT. p. 44 ; 3 An. 334 ; 5 An. 588; 8 An. 474; 20 An. 403.
    Second — If at all, prescription begins to run in favor of a third possessor only after the transfer of the possession and the maturity of the mortgage debt. 15 An. 40.
    Third — If a stock mortgage, independent of and isolated from its principal obligation be prescribed as to tbe loan note, it is prescribed as to the bonds and vice versa, hut it cannot he prescribed as to the bonds.
    Four h — One who assumes payment of a stock note cannot, properly speaking, he considered a third possessor. Pont, Tol. 2, § 1187, 1249; 1 B. 135, 177; 6 B. 407; 16 An. 187; 25 An. 397.
    Fifth — Prescription in favor of a third possessor is personal to him.
    Sixth — The petition, in an injunction sued out under O. P. 738, cannot be amended before the Supremo Court so as to plead prescription. An amendment to such a petition must always be sworn to. O. P. 738, 304; 15 An. 40.
    Seventh — An answer in such a proceeding does not change its nature unless judgment for' the debt be prayed for. 16 L. 100; 19 L. 372; 2 An. 470 ; 3 An. 152; 22 An. 214.

      Eighth — The pledge of stock is a continuing interruption of prescription as to the stock loan note. 2'2 An. 107,117; 28 An. 125.
    Hinth —The Bank’s officers can change its relations towards its debtors only in tbe manner it* charter indicates.
    Tenth — Duolozel’s debt has not been novated by acceptance of payments from his debtor-institution of suit in a stipulation pour autrui does not discharge orignal debtor. Seo. 28r Bank charter; 4 An. 409 ; 11 An. 43.
    Eleventh — Section 24, of the Bank’s charter, can be avoided only by compliance with Sec. 28.
    Twelfth — The same shares of stock cannot be represented by two stockholders.
    Thirteenth — The transfer of property and stock, as in this case, may constitute an equitable sale, as between vendor and vendee, but as to tbe bank it is a nullity. Secs. 24 and 28 of Charter; 1 An. 119; 4 Au. 308. In such ease the vendor remains a stockholder and debtor of the bank, and the vendee becomes simply a third possessor, and the property remains subject to Sec. 24.
    Eourteenth— The Citizens’ Bank, in which the State is interested to the extent of several millions, should not be considered entirely as a private institution, nor the laws touching it as private laws.
    Eifteenth — Since the forfeiture, in 1842, the State Legislatura has constantly recognized tha Bank’s corporate existence. 7 An. 286. Since the Act 141 of 1852, it has constantly treated and dealt with it as relieved from the forfeiture, and restored to the stockholders under'original charter, and stockholders are estopped.
    Sixteenth — A stockholder, in whose favor the forfeiture was remitted, cannot, after having-administered the bank for twenty-eight years, under tbe remitting law, deny that law’s validity. A stockholder of the bank is an active participant in tbe bank's affairs. One who lias participated in the business of even a corporation do facto is estopped. Seos. 9* and 17 of the Charter; 25 An. 228; Whipple vs. Parker, 29 Mich. 369; Swartout vs Mich. Air Line R. R. Co. 24 Mich. 389.
    Seventeenth — That the bank was reconstituted by legislation oí 1852, 1853, the case in 12 A-228 is stare decisis.

    Eighteenth — Act 141 of 1852 antedates Constitution of 1852, and cannot be affected by it further than that Art. 12L of that Constitution ratifies and confirms it.
    nineteenth — Where, in the petition for injunction, the violation of Art. 116 of the Constitution of 1852 is alleged as one of the grounds, the violation of no other article of that, or of any other Constitution, not pleaded, can be considered.
    Twontieth — The State had full control of the bank in liquidation, and was empowered to make any changes in its administration the public interests required. 7 An. 286. If we admit the unoonstitutionality of Acts 141 and 246, the subsequent Legislature recognizing the present management would still be of force.
    Twenty-first — Insufficiency of evidence cannot be urged by way of injunction. H. p. 665r Ho. 2; p. 667, Ho. 31; p. 746, Ho. 45 ; 26 An. 709.
    Twenty-second — The bank has right to enforce payment of contributions and via executiva. 7 An. 289; 25 An. 625.
    Twenty-third — The forthcoming bond defeats the seizure and the control of the sheriff. 12 An. 617.
    Twenty-fourth — Tbe seizing creditor isnot reponsible for damages resulting from illegal acta, or negligence ot the sheriff. 11 An. 476; 14 An. 26; 32 An. 1181; 33 An. 338.
    Twenty-fifth — Lis pendens cannot be pleaded in executory proceedings. 28 An. 186.
    Twenty-sixth — It suffices that an order of discontinuance he entered on the minutes. It needs not a signed judgment. 14 L. 277.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an injunction suit, arresting an executory process issued by the Citizens’ Bank for the balance of two reduced stock mortgage notes, with interest, and of certain contributions, or calls, on reduced stock.

The plaintiff, in her capacity of administratrix of the succession of O. S. Duclozel, the original mortgageor and subscriber of the notes, has set up numerous defences in support of a prayer for complete exoneration from all liability, many of which were urged in the lower, and others in this court.

We understand that the object of the suit is to have it declared: that the Citizens’ Bank is a defunct corporation, having no status in Court; that the debt sued for has been novated, — a new debtor having-been accepted in the place of the original one, who was discharged ; that the notes sued upon are prescribed ; that the mortgage claimed has-no existence, for want of a reinscription ; that similar proceedings have been instituted against the delegated debtor, and are pending and undecided ; that the asserted pact de non alienando has been abandoned ; that the contributions demanded are not due and could not be recovered in the executory proceedings against the estate ; that the debt claimed, if it existed at the date of the proceedings against the delegated debtor, has become extinguished by a much larger debt due by the bank, which has since arisen, and which is pressed in reconvention.

The injunction was asked and granted, apparently under the sanctioning provisions of article 739 C. P.

The bank answered by a general denial on the trial. Bills of exceptions were taken, which will be hereafter noticed.

Prom a judgment dissolving the injunction, with a reserve in favor of plaintiff to claim the debt set up against the bank, in a different action, this appeal is taken. The bank has asked no amendment of the judgment.

The salient facts of the case are the following :

In 1887, O. S. Duclozel gave a mortgage, for $15,000, directly to the Citizens’ Bank, under the terms of its charter, for the triple purpose of securing : 1st. One hundred and fifty shares of its capital stock, subscribed for by him ; 2d. The bonds which the bank was authorized to issue to raise money to form its capital and to carry on its financial operations ; 3d. Loans made to him as a stockholder. The act was seasonably and duly recorded.

In 1869, Duclozel sold the property mortgaged and the stock secured by it to W. P. Sproule, who, as one of the terms of the sale, assumed the liabilities of his vendor to the bank. Sproule sold part of the property and stock to A. C. Graff and J". S. Chalfant, who assumed proportionally his liabilities to the bank.

In 1875, in consequence of non-payment of its debt, under the terms of agreement, and under charges of indebtedness against Duclozel, styling Sproule, Graff and Ohalfant “ owners and third possessors,” the bank issued executory process against the mortgaged property, which at once passed into the sheriff’s possession and custody. Duclozel was not made a party. Sproule was served with the process of the court, while the other two, who were absent, were represented by a curator ad, hoc. . Subsequently, the property, on bond, was released from seizure and an application was made for the removal of the case to the United States Circuit Court. The bank discontinued the proceeding.

It appears from the evidence received, subject to exceptions, that, while the property was under seizure, and after it was bonded, it sustained material injury in different ways, which the plaintiff values at $20,000, for which indemnity is asked.

After the discontinuance mentioned, the bank instituted these proceedings, — Duclozel having departed this life, — against his succession, represented by the plaintiff as administratrix. She sued out the pres■ent injunction.

From the view which-we have taken of the case, we deem it unnecessary to pass either upon the consequences of the joining of issue by a general denial by the bank, or upon the bills of exception taken during the trial. We propose to deal with the case as though it had been brought via ordinaria and tried accordingly. Had the bank prayed for amendment the contention would now be set at rest.

Wo will now proceed to examine seriatim the different grounds of objection or opposition, upon which the plaintiff relies for relief.

The plaintiff is estopped iron) denying that:

I. The bank had and has a legal status. O. S. Duclozel was the original stockholder, the original mortgageor, the original borrower. By becoming a contracting party in the Act of 1837, he acknowledged the existence of the bank. By that act lie subscribed for its stock, gave security for borrowing its money. He secured the stock and the loan, as well ms the bonds issuable by the bank, by mortgage on his property.

In 18C9, more than thirty years afterwards, he sold the stock which he had acquired in that bank, together with the property which he had incumbered, as is above said, and had the purchaser, as one of the conditions sine qua non of the sale, to assume all his liabilities, actual and eventual, to the bank. By those acts he not only acknowledged the existence of the corporation with which he had contracted, but he warranted that very existence.

In the petition which the plaintiff, as administratrix of his succession, has filed for an injunction, the bank is declared to be a corporation, located in New Orleans, and prayer is made that it be enjoined, cited and condemned to pay damages fixed at $20,000.

All- the reasons set forth in the petition, in the oral and written ar.guments, to show that the bank is a myth and has no status, existed, to the knowledge oí Duclozel, prior to and in 1869, when he acknowledged •and,warranted the existence of that institution, in the sale which he made to Sproule of his stock therein and of his property mortgaged to it, and when he imposed upon his vendee the assumption of all his ■confessed debts and liabilities, present and contingent, to the corporation.

It is settled, by an overwhelming array of indisputable precedents, that, as a rule, one who contracts with what he acknowledges to be and treats as a corporation, incurring obligations in its favor, is estopped from denying its corporate existence, particularly when the obligations are sought to be enforced. It is right that it should be so. If a party have no other objection to oppose to the enforcement of the contract than that the obligee is incompetent to sue, for reasons anterior to his contract, or last acknowledgment, he should not be permitted to escape liability. The case would be different where the incompetency is the result of something happening subsequent to the contract, or last acknowledgment of existence and capacity. It is a familiar principle that one cannot be permitted to play fast and loose, so as to take advantage of his own unfair vacillations.

We think it useless trouble to refer to the authorities, which, however, we have taken the pain of reviewing.

How can the plaintiff consistently ask this Court to pronounce that the bank has no status, is incompetent to sue for the enforcement of contracts in its favor, for want of a charter, when during the thirty odd years which elapsed since Duclozel first contracted with it he has uninterruptedly recognized it as a going corporation ; and when, during the thirty-nine years which have elapsed since tne great law of relief was passed in its favor in order to assist it and its stockholders and others concerned in its welfare and prosperity, the State of Louisiana, whose creature it is, from whom it emanates, — and which perhaps alone, could have taken advantage of any irregularity destructive of its being, — has, by at least thirteen statutes, adopted from time to time, up to 1880, continually recognized, proclaimed and acted upon the fact of its existence.

If the doctrino of estoppel can be opposed to a party blowing hot and cold, it is assuredly in the present instance.

II. There has been no novation of the debt or mortgage. The act of morlgage executed in 1837 is emphatic that Duclozel shall continue to be liable and the mortgage shall remain in its Integrity, until the debt shall have been paid or until he shall have been discharged. The clauses and stipulations of that act were tacitly reiterated and recognized as in existence and obligatory in the act of sale, in 1869, by Duclozel to Sproule, which contained stipulations pour autrui, of which it was legitimate for the bank to avail itself, not only on general principle, but also by the tenor of the act of 1837, which is admitted by the petition for an injunction and by counsel, in their brief, to contain the pact de non alienando, and by the express terms of its charter, which authorize it to ignore subsequent transfers.

There is nothing in the record to prove that the bank has done any act showing that it considered and treated Sproule, Graff and Chalfant as its sole debtors, in consequence of its having discharged Duclozel, or otherwise: the notices issued by a clerk of the bank are in no way indicative of such acknowledgment.

But the plaintiff insists that in its petition in the proceedings first brought the bank ratified the sale made by Duclozel to Sproule, and by the latter to the other parties, in treating them as owners. Be that so, but it does not follow, in the absence of either a formal and express or of an implied consent to novate, which should be irresistibly inferred from surrounding circumstances, that it has discharged Duclozel unconditionally, and has accepted those parties as new delegated debtors-in his place. Nemo presumitur donare. 29 An. 958; 19 An. 212.

Novation is a contract, the object of which is : either to extinguish, an existing obligation and to substitute a new one'in its place; or to discharge an old debtor and substitute a new one to him ; or to substitute a new creditor to an old creditor with regard to whom the debtor is discharged.

It is never presumed. The intention must clearly result from the terms of the agreement or by a full discharge of the original debt. Novation by the substitution of a new debtor can take place without the consent of the debtor, but the delegation does not operate a novation, unless the creditor has expressly declared that he intends to discharge the delegating debtor, and the delegating debtor was not in open failure or insolvency at the time. The mere indication by a debtor of a person who is to pay in his place does not operate a novation. Delegatus debitor est odiosus in lege. R. C. C. 2188, 2189, 2190, 2192.

The most that could be inferred would be that the bank in the exercise of a sound discretion, proposed to better its condition by accepting an additional debtor to be and remain bound with the original one. The bank had something to lose by discharging Duclozel, but had something to make by accepting Sproule and the others. The testimony shows that the account of'the bank with Duclozel was not closed, and that what amounts were paid in after 1869, were placed to the credit of his account.

Commenting upon article 1273 of the N. C., Marcadé says, vol. 4, III, § 769:

“ On congoit en effet, que quand une nouvelle personne, soit de son propre mouvement, soit sur la presentation de mon débiteur, s’oblige envers moi, au paiement de ma cróance, il est sans doute possible que ce débiteur soit pris par moi, a la place de l’apcien qui sera ainsi liberé par la novation, mais il est bien possible aussi que mon intention soit de l’avoir pour obligó en méme temps quel’ancien débiteur. Ici encore, d’aprés notre article, les doutes qui existeraient sur le point de savoir si on a entendu faire une novatien, entravrie negation de novation, puisqu’il faut que cette novation soit clairement établie.”

Larombiére, V. 3, on Art. 1275, says : “ Lorsque le débiteur dólógant n’a pas été expressóment déchargó par le cróancier délégataire contre qui, dans ce cas, il n’y a pas novation, ce dernier s’il n’est pas payé par le déléguó, aura un recours a exercer contre le délógant. Celui-ci continue, en effet, d’étre l’obligó nonobstant l’accession du nouveau débiteur qui a accepté la délégation. Il doit en consequence payer la dette si le delegué pour lequel il est censé répondre ne la paye pas luiméme.

Le cróancier qui n’a point déchargó le débiteur retire ainsi de la délégation faite a son profit l’avantage de conserver ses droits co.ntre le délégant en méme temps qu’il en acquiert d’autres contre le déléguó. Et ces nouveaux droits il les fera valoir avec toutes les garanties qui peuvent y étre spécialement attachées, soit que deja elles .aient existé A. l’égard du délógant, soit qu’elles aient été stipulées du déléguó au moment do la délégation.”

V. also Laurent v. 18, p. 339, n. 315.

See, also, Pothier, Obl. 3 part, ch. 2, No 559, 560; Merlin, v. ind. de paiement; Toullier 7, No. 278, 283; Gilbert, C. A. on same article and article 275; Duranton, 12, n. 309, Zachariœ, t. 2, 323.

The authorities in 19 L. 207 and 1 R. 30, do not bear out plaintiff’s theory. In the first case there was a special condition that the notes were discharged and were to be delivered and destroyed before the first payment under the act should be due. A suit, on the assumpsit, by the creditor against the new delegated debtor gave effect to the act in all its parts. In 11 A. 93, the ruling in the second case was declared, and we think properly, to be of doubtful authority.

In Jacobs vs. Calderwood, 4 An. 509, which was a suit against an original debtor for the difference between the proceeds of his mortgaged property and the amount of the debt, he .pleaded novation, resulting from a suit on the assumpsit of a substituted debtor and recovery against him in a personal action of a judgment for the deficiency. The Court held that the delegation and the acceptance by the creditor of the stipulation pour auirui, did not operate a novation and did not discharge the original debtor. The ruling in 1 R. 301, was found not applicable in that case; neither is it in the present instance. See, also, 9 M. 270; 16 L. 474; 13 A. 238.

We cannot declare, in the face of the charter of the bank, of the original act of 1837, of the formal text of the law and of the judicial exposition made of its object and purport, that the bank has accepted Sproule and the others in the place of Duclozel, and has discharged him.

III. The notes sued on are not prescribed.

The eleventh section of the charter of the bank entitles a stockholder, on depositing and pledging his certificate of stock, to a credit of one-half of the total amount of that stock; such stockholder, on using ■such credit, to give his notes for the sum thus lent him.

It is manifest that the notes sued on in this ease evidence the use •which, under the charter, Duclozel made of his credit. He impliedly contracted with the bank, on obtaining the money which forms the consideration of those notes, to give his stock in pledge, the certificates wherefor the bank retained.

The stock pledged as a security, constitutes a standing acknowledgment, during the existence of which prescription did not run. The debtor consenting to the possession of his property by his creditor, tacitly acknowledges the existence of the debt. This defense is not a ■new one. Whenever set ,up in similar cases it has invariably been properly overruled. 21 An. 128; 1 R. 556; 8 R. 146; 22 An. 108, 117; 28 An. 125; O. B. 44, fol. 376 ; O. B. 45, fol. 138 ; O. B. 46, fol. 337, 372. It must have the same fate in the present instance.

IV. The act of mortgage required no reinscription to keep the mortgage alive.

Under the special and exceptional laws which have been enacted for the benefit of this bank, and from the beginning have always received a liberal construction, although in derogation of common right, — it does not lie in the mouth of an original stockholder and raortgageor, to plead against the bank a.want of reinscription.

Whatever can be said under article 3369 R. O. C. (3333) touching the cessation of the effect of an ordinary mortgage between the parties, can have no bearing in this case, which is entirely dehors the purview of that general provision.

The Citizens’ Bank, being a property bank, is entitled to all the immunities which the law allows to such institutions, under which mortgages consented in their favor are dispensed from reinscription. Such mortgages, when once inscribed, remain in force, as long as the principal (the debt) which they are designed to secure, continue in existence, ■unsatisfied, unextinguished, or until a discharge has been actually granted. It is not until after extinction of the debt, or after a discharge that the mortgage dies away.

Under the very terms of the Act of 1837, reiterated in that of 1863, such was, besides, the express understanding of the parties, and that understanding being the law regulating their respective rights and obligations, concludes them! O. O. 3284, 3285, 3411.

In Union Bank vs. Dawson, 7 An. 548, it was expressly held, that a mortgage given directly to a property bank need not be reinscribed in order to continue in force, after an original inscription.

The interest of the State in the property banks induced Acts of March 11th, 1842, No. 96, and 27th March, 1843, No. 87, which, without referring to article 3333 of the Code of 1825, have amended it, the former exempting from reinscription stock mortgages in favor of those banks, and the latter forbidding the cancellation, after ten years, of any . mortgage of that description.

This double legisla tion, it has been 'held, although exceptional, is not to be construed strictly, and is to be taken together, the latter enlarging the former. The courts have gone to the extent of saying that all mortgages, not merely stock mortgages, but others, owned by a property bank, are within the statute, whether such mortgages be granted directly or acquired by subrogation. 4 An. 471; 10 An. 591; 15 An. 630.

The rulings dispensing with a reinscription in cases like that now be- ■ fore the Court, have become a rule of property which cannot be questioned or disturbed.

V. The proceedings instituted by the bank to seize the mortgage property in the hands of Sproule and the others, cannot be pleaded, as lis pendens. Duclozel had not been made a party to them. They were discontinued previous to the institution of the present ones. The objection that the order of discontinuance on the minutes is unsigned is untenable. 14 L. 277; 12 An. 642; 28 An. 186.

VI. The pact de non alienando was not abandoned.

On the contrary, it was carried out by the proceedings against Sproule and the others. Admitting that it was, however, what is it to the plaintiff, who is the administratrix of the succession of the original mortgageor, whether it ever existed at all ? It can, under no circumstance, be insisted upon as a ground to arrest the writ of seizure and sale, or seek exoneration from the debt, or mortgage.

VII. The bank had a right to claim the contributions, under the act on the subject. The question whether there was sufficient authentic evidence to justify the fiat of the District Judge, should have been presented on appeal and not on a petition for an injunction. H. D. 665 No. 2; 667 No. 31; 746 No. 45; L. D. 312 No. 10; 26 A. 709. Be that as it may, however, we think under the authority in the case of the Citizens’ Bank vs. Deynoodt, 25 A 628, the decree of seizure and sale was properly made. V. Act 141 of 1852, Sec. 4; Act 246 of 1853, Sec. 1; Act 45 of 1873; also 28 An. 125; 7 An. 289.

VIII. The damages claimed should not be recovered. The plaintiff •shows herself that ever since 1869 Duclozel has ceased to own the property ordered to be seized and sold. If it sustained injury for which the bank might be made responsible, the question would arise whether it ■could be so held, otherwise than in an action by the owners of it. They are not before us.

If it be true, however, that the plaintiff can officially, as a creditor of theirs, with vendor’s privilege and special mortgage, be permitted to champion for the benefit of the estate which she administers, assert and vindicate the right of such owners, — no recovery should be had. The right of action if it exist, could be exercised, not against the bank which is not charged with privity, but against the sheriff, if the damages were occasioned while the property was in his keeping and custody, and by his negligence and fault. This right of action would not exist for injury or damage sustained subsequent to the bonding of the property and its consequent release from seizure. 14 An. 26 ; 11 An. 476 ; 12 An. 616 ; 32 An. 1181 ; 33 An. 338.

The District Court erred in reserving to plaintiff the right of claiming damages in a different action.

The bank pleaded the general issue. If it did not intend to try the ■suit as to the item of damages, it should have excepted to the proceeding in that respect. The plea would have been sustained, as such a claim cannot be validly incorporated in an opposition for an injunction, without bond, under article 739 C. P. See, also, 738.

The appellant has prayed for the reversal of the judgment of the lower court and for the damages claimed. We have found against her in the positions which she has taken. In the absence of a prayer for an amendment of the judgment on the part of appellee, we are bound to let it remain undisturbed, although we find it incorrect in one particular.

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


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 7960.
    Allen, Nugent & Co., vs. G. W. Cary et als.
    One partner cannot, without the assent of his co-partners, bind, the firm for his individual debt or that of a third person.
    "Whore a partner, acting apparently beyond the limits of his authority, untruly states his co-partners’ consent, his representations will not bind them, even in favor of parties dealing with him in good faith.
    It is the duty of every one who deals with a member of a commercial partnership out ofth$ line of business of such partnership, to require evidence of that partner’s special authority to bind his co-partners, — and this at the risk and peril of said party.
    APPEAL from the Third District Court for the parish of Orleans. Monroe, J.

      W. S. Benedict for Plaintiffs and Appellees
    First — The holder of a promissory note of a commercial firm, who has acquired same for value, in due course of business, before maturity, is entitled to recover against said firm, and the members thereof, in solido.

    Second — Where no suspicions circumstances are shown, due inquiry is made, and the holder has acted in good faith and given value, he is entitled to recover. 2 Wallace, 110 ; 26 Annual, 15.
    Third — The holder is not required to see that each of the members of the firm signed the firm name to the note. C. C. 2870.
    Fourth — The discount of commercial paper is usual in commercial firms.
    Fifth — The fact that an accessory contract was entered into, in due course of the business, does not alter the relations of the parties.
    Sixth — The date of a note is immaterial, and all that need be looked at, when same is offered for sale or discount, is the maturity thereof, at some subsequent date to the transaction. Daniel on Negotiable Instruments, section 83; Byles on Bills, 168; Edwards on Bills, 150 ; Bayley on Bills, 21; Story on Bills, 37.
    Seventh — Where the firm, makers of a note, received the proceeds thereof, the firm will be considered as ratifying the Act, and all the members of the firm, even if the Act he done out of the course of its business, will be bound. Daniels on Negotiable Instruments, section 359 ; 4th Metcalf, 577; 18 Penn. 408 ; 16 Wend. 505.
    Eighth — The firm is bound for the debts contracted in its name, even when they did not turn to its advantage, unless by the nature of the contract, it should appear that it had nothing to do with the affairs of the partnership. 11 Martin, 427; 4 Robinson, 193.
    Ninth — Where the person dealing with a member of the firm, has no knowledge that the partner is making a contract in violation of his duties, and. the person trading with him is in good faith, and the credit is given to the firm, and within the scope and objects of the firm receiving the proceeds of the transaction, the firm and members thereof are bound. 22 How. 266. ■ .
    Tenth — A misapplication of the funds obtained for the partnership by one partner, does not affect the right of the party trading with such partner as against the firm. 5 Peters, 529.
    Millers Flnneij & Miller on the same side.

      John A. Campbell for Defendant and Appellant:
    First — The defendant, Richardson, denies liability upon the contract and endorsements contained in the record and described in the petition. He did not sign either paper. Neither paper was made by his partner in the course of the business nor within the range of the authority conferred upon a partner.

      These facts appear on the face of the papers and from tbe testimony. The notes were signed for C. W. Cary by George W. Cary. They are dated in Alabama six months before any firm of Richardson & Cary existed. C. W. Cary had no account with and owed no debt to the firm, and his notes were not their property'. They were drawn and endorsed to the plaintiffs as evidence of advances made to the maker at the time, aud which were to be paid by him, with commissions, discount, interest and charges in addition, by the shipment of six hundred and fifty bales of cotton at different dates. The endorsement and guaranty were designed to assure and secure this contract and these extra profits. This appellant was never consulted upon the contract, nor has he approved or consen fed to it, and avers that it was not in the course of the business of tho firm. Backelder vs. Rogers 12 Peters, 221; Kendall vs. Wood, L. E. VI. Exch. 243; Brettell vs. Williams, 4 Ex. 243; Leveson vs. Lane, 13 O. B. N- 8. 278; Maulden vs. Bank, 2 Ala., 502; Levin vs. Carter, 3 Ired. 238; Leckie vs. Scott, 10 La. 412; Satterfield vs. Compton; 6 Rob. 120; Catskill Blc. vs. Stall, 18 Wend. 466; Bedarride des Soc. No. 159; 40 Lalloz. Jr. G. Société, No 927; Potlvier on Part. § 101; Call on Part. 401, 478; Story on Part. §§ 121-13.
    Second — The partnership'articles prohibit the issue of the partnership-name in any manner outside of the business of tbe firm, as dry goods merchants. Nor is there authority of law for one partner in such a firm to issue the paper of the firm or its signature on the notes of other persons as surety, guarantor, or for their accommodation. The assent of each partner to the issue of such paper is essential to charge such partner. His oo-partner has no authority to do the act, nor can his oral statements be evidence of such authority. Authority must be proved as a fact in the cause by evidence of assent at the time or ratification after. The burden of proof of this fact of an original authority or a subsequent ratification rest upon the plaintiffs.
    The act is ultra vires and void, without a specific authority from the partners not signing. Brettell vs. Williams, 4 Exch. 622.
    The rule is, if a partner acting apparently beyond the limits of his authority, untruly represents that he is acting with Ms co-partners's consent, they are not bound by his representation, nor are they liable for what may be done on the faith of it. Laverty vs. Burr, 1 Wend. 529; Foot vs. Sabin, 19 John 157; Ex Parte Agace, 2 Cox, 312 ; 3 Kent’s Comm., Sect. 43, p; 1 Call on Part. § 459, 6 Ed ; Hendren vs. Bercowitz, 37 Calif. 113.
    TMrd — It does fully appear that the appellant did not consent to this contract and was ignorant of its existence while the firm continued. The firm had never made a contract like this, nor had obtained loans from banks, frominsurance companies, brokers or lactors. They had not issued a note.
    The contract in so far as the appellant is concerned, is extraordinary and unusual. Scarcely a parallel has existed in the memory of merchants who testified in the suit. R. 117,108, 107, 100, 96, 88, 91.
    Fourth — The notes offered are sealed notes purporting to be made by a resident of Montevallo, Shelby county, Alabama, and this fact was known to the plaintiffs in the suit. There was no ohange of residence of the maker at the time of their maturity. There was no presentment made to the maker, nor demand of payment of the maker, at his domicil or personnally, at their maturity. And so the plaintiff has not established the facts to warrant a suit or recovery on such paper. 2 Mart. 183; 7 M. 364 ; 10 M. 18; 4N. S. 186; 10 A. 107, 394, 783.
    Fifth — The entire contract as embodied in the cotton contract drawn by the appellees, and containing a full description of the obligations of G. W. Cary, as a consequent of advances made to Mm, to be reimbursed by shipments of cotton to be disposed of in the course of the factorage business, so as to obtain the profits to arise, cannot be altered or varied by parol evidence. The appellees cannot by their parol testimony change a guarantor into a principal, nor supeTadd to the contract clauses or conditions not stated in it. On the face of the papers there was full and intelligible evidence, that the firm of Richardson <fc Cary, as represented by Cary, was engaged in business foreign to that of their articles of partnersliip, and the scope of a dry goods business. It was a legal duty of tlie appellee» to ascertain from this defendant whether he consented to it. Cary had no authority by law, nor by the article» of partnership to act for him. Cases before cited under 1 and 2.

      Bayne and Benshaw on the same side.
   The opinion of the Court was delivred by

Bermudez, C. J.

This is an action to hold John P. Bichardson, as one of the partners composing the firm of Bichardson & Cary, liable for the obligations of C. W. Cary as drawer of three notes, aggregating $7013 97, and as obligor under a contract by which he bound himself to the plaintiffs to make to them shipments of cotton, the proceeds to be applied to the payment of the notes, commissions and eventually attorney’s fees in case of breach of contract. The liability is sought to be imposed on the grounds that the notes were endorsed by Bichardson & Cary, and the fulfillment of the contract engagements was guaranteed by them.

G-. W. Cary made no defense. Bichardson denies liability. He admits that the name of the firm was endorsed on the notes and put to the guarantee, on the contract; but avers that it was so used by G. W: Cary, his partner, out of the course of the business of the firm, beyond the range of his authority as partner, in matters disconnected with the affairs of the partnership, without any authority; to plaintiffs’ knowledge; that no consideration was received by the firm, or enured to its benefits, as plaintiffs knew or should have known.

There was judgment in favor of plaintiffs, ailowing the amount of the notes, but rejecting the remainder of the claim.

From the judgment against him Bichardson has appealed. In their answer to the appeal the plaintiffs ask that the judgment be amended so as to be allowed'their entire demand.

The differences of the parties have to be determined particularly and almost exclusively, on the facts as they are shown to have occurred on the 23d of June, 1879.

The evidence first shows that, on the 12th of March, 1879, the formation of a partnership between John P. Bichardson and Gf. W. Cary, was announced in the papers, under the firm name and.style of Bichardson & Cary, for the purpose of doing a general dry goods and notion business at No. 31 Magazine street, in this city; the notice bearing the names of both partners.

The record next establishes that on the 23d of June, 1879, a contract, evidenced in writing, was entered into between one C. W. Cary of Alabama, with the plaintiffs, whereby he acknowledged his indebtedness to them in the sum of $7013 97, for advances made and to be made to him to carry on his business and planting interest, during the year 1879, as evidenced by his three notes (which are described in the petition); and whereby he stipulated that, in order to reimburse said advances, he would, during the years 1879 and 1880, make shipments of cotton to the plaintiffs, and, in case of failure, he would incur and make good, certain pains and penalties specified in the deed, which concludes saying that: “it is well understood that, without the special agreements hereinbefore recited, to properly conduct their business relations, the said Allen, Nugent & Co. would not have entered into this contract.”

This instrument is signed “ C. W. Cary, by G. W, Cary,” and bears the following stipulation:

“ We hereby guarantee the prompt fu'fillment of the above contract,
(Signed) “ Richardson & Cary.”

The only witness who testified as to the occurrences of the 23d J une, 1879, surrounding the drawing up and signature of the contract and the endorsement of the notes described in it, which are those sued on, is Mr. Lallande, one of the plaintiffs.

As we understand his testimony, it is to the effect that his firm was applied to early in June, 1879, by G. W. Cary, a partner in the firm of Richardson & Cary, for a loan of money for the wants of the partnership, which was refused, their business being a cotton factorage and the charges in the same and their advances being only made to parties dealing with them in that line.

On the 23d of June, following, some ten days later, it appears that Cary returned to plaintiffs’ countingroom and stated that his firm had •to remit to a great many parties, particularly to one who could influence a thousand bales of cotton, and that he was readyjto accept the loan on plaintiffs’ terms (which are detailed.) He was then handed a blank cotton contract and told to read it carefully; which he did. Under the pretence of going to see Mr. Richardson, his partner, he left the office, came back in about half an hour and said that Mr. Richardson thought the terms pretty tight, but that they would accept them. The blank was filled by the witness. G. W. Cary signed it for C. W. Cary in presence of the witness. He then, simultaneously, endorsed the notes, and signed the warrants on the contract in the name of Richardson & Cary, and passed them to plaintiffs through the witness. Thereupon, the plaintiffs delivered to G. W. Cary their check on the Canal Bank, to the order of Richardson & Cary, for $6550 27, which, upon being endorsed by G. W. Cary in the name of the firm, was collected by him.

The liability sought to be fastened upon Richardson depends upon the construction to be placed upon the contract, the notes and the testimony referred to. It cannot be affected by occurrences' which took place previously or subsequently and which do not prove knowledge, consent or ratification by J. P. Richardson.

It is clear to our minds, that the doings of G. W. Cary, on the occasion, can only be viewed as the acts of a partner using the partnership name and credit to secure the obligations of a third party, to the direct, immediate knowledge of the other contracting party, however in good faith and shamefully deluded.

The contract, the guarantee, the notes, the. testimony of Mr. Lallande, are all In evidence by the plaintiffs and conclude them. -

They cannot pretend that the contract does not say that the advances were not made to C. W. Cary; that he was not their debtor; that he was not a third party; that Richardson & Cary were not sureties on the notes and on the contract, to the end that his liabilities to them, to that extent, would be faithfully met. The fact that the check was made to the order of Richardson & Cary, does not show that the consideration of the notes was given to them for their benefit and enured to their advantage; for, the only capacities in which they can be deemed to have acted in, with reference to the matters, are those of merchants of C. W. Cary, for whose account they had negotiated, and of securities of his engagements as set forth in the contract and the notes mentioned in it.

The plaintiffs cannot say that they did not know that the partnership between Richardson & Cary was not in existence at the dates of the notes, which appear to have been issued some six months prior to the announcement of the formation of the partnership in the city papers-on the 12th of March, 1879. If the partnership was not in existence at the date of the notes, how could they have been properly made to the order of Richardson & Cary? This was a circumstance well calculated to arouse suspicion and to put plaintiffs on their guard and on inquiry.

It is shown that they prudently and safely inquired into the financial condition of the firm. Informed by the unusual character of the last approach, of the offers and doings of Cary, it would have been •quite easy for them to have proceeded to 31 Magazine street, the place of business of the concern, and there ascertained from the only other partner, Mr. Richardson, whether Cary had his assent for the proposed use of the name of the firm for the guarantee of ithe obligations of W. C. Cary, the alleged drawer of the notes and obligor on the contract mentioning the notes.

It is the duty of every one who deals with a member of a commercial partnership who apparently transcends his mandates and powers, to require evidence of his authority to bind his co-partners, and this at his risk and peril.

The plaintiffs cannot say that they were authorized, under the circumstances, to believe with certainty of correctness, that G.'W. Cary was acting in the course of the business of the partnership within the •range of his powers as partner, in a matter connected with the affairs of the partnership, or with the authority of the other partner, for, the .notice of the formation of. the partnership published in the papers, as said and proved, distinctly announced that the partnership was formed “/or the purpose of doing a general dry goods and notion business ” and gave the address of the place where the business was to be carried on that third,parties might be better informed.

The acts and doings of G. W. Cary, in the name of the firm of Richardson & Cary, could not be considered as accomplished for the purpose of doing a general dry goods and notion business. The transaction was unusual. It would have been easy for the plaintiff to have inquired. It was their duty to have done so. Eor their omission, in the matter, John P. Richardson cannot be made gratuitously to suffer.

There is no evidence that the amount of the check was received by and enured to the benefit of the firm. Testimony was adduced to the contrary. Neither is it proved that Mr. Richardson either knew of the ■transactions, consented thereto, or ratified the same.

The authorities relied upon by the plaintiffs are undoubtedly correct, but they can afford no relief in a case like the one at bar to the plaintiffs. 2 Wall. I10; Daniel, N. J. 83, 359; Byles on Bills, 166; Edwards, 150; Bayley, 21; Story, 37; 11 M. 427; 4 Rob. 193; 22 How, 266; 5 Pet. 529; 4 Metc. 577; 18 Penn. 408; 16 Wend. 505.

The rule of law is that, where a partner, acting apparently beyond the limits of his authority, untruly states his partner’s consent, his representations will not bind them, even in favor of parties who may have acted in good faith. 12 Pet. 221; 3 Kent Com. Sec. 43; 4 Exch. 622; 1 Wend. 529; ex parte Agare, 2 Cox, 312; 37 Cal. 113; 10 An. 107, 783; 394; 2 Mart. 183; 7 M. 364; 10 M. 18.

The rule of law is also that one partner cannot without the assent of his co-partners, give a security, in the partnership name, for the payment of his individual debt; nor can he, without such assent, lend the name of the firm as surety, endorser or guarantor for a third person. 2 Ala. 502; 1 Ala. 565; 12 Peters, 221; 4 Ech. 623; Parsons, vol. 1, p. 184, 221, 228; Story, Sec. 128; Chitty, 48; 6 B. Monroe, 60; 4 Wend. 168; Daniels, 1, p. 276; Collyer, 490; 28 An. 941. See, also, Mechanics’ and Traders’ Co. vs. Richardson & Cary; Mut’l N. B. vs J. P. Richardson, 33 An. p. _ and _; and authorities there quoted. We, therefore, conclude that Richardson is not liable.

It is, therefore, ordered and decreed that the judgment of the lower court in so far as it condemns Richardson to pay plaintiffs any amount, be reversed, and that, in so far as it relieves him from responsibility to the plaintiffs, it be affirmed, and proceeding to render such judgment, as said court should have rendered,

It is ordered, adjudged and decreed that plaintiffs’ demand be rejected, with judgment in favor of the defendants, at the costs of plaintiffs in both courts.

Mr. Justice Fenner recuses himself, having been consulted as counsel.

Rehearing refused.


author: Todd, J.

text:
    No. 8060.
    Union Bethel African Methodist Episcopal Church vs. Civil Sheriff et al.
    Though the name of the surety is not inserted in the body of an Appeal bond, the fact that such surety has signed the bond under the name of the principal, is sufficient.
    A promissory note may be antedated.
    A party against whom executory process has issued, cannot enjoin it, on the ground that the property seized does not belong to him. ,

    Damages cannot be allowed in the same decree which dissolves an injunction in cases of ex* ecutory process. Previous Decisions affirmed.
    APPEAL from the Civil District Court for the parish of Orleans. Bightor, J

      Joseph P. Hornor, Francis W. Baker and Jas. A. Beid for Defendants and Appellees:
    Pirst — A promissory note may be antedated, and will be valid in point of law, there being no statute to the contrary. Story on Promissory Notes, chap. 1, sec. 48-; Baylayon Bills, chap. 3, Sec. 7; Ghitty on Bills, chap. 5, p. 169 (8th edition).
    Second — The burden of proof is upon the plaintiff, he must make out his case.
    Third — The sale of property seized under executory process cannot be enjoined on the ground that it does not belong to the defendant, but to others; it is for the latter to resist the process if they desire to do so. - 30 An. 593.
    Pourth — 'Where an appeal is manifestly taken for'delay damages should be given for such frivolous appeal. 21 An. 50 j 1 Eennen, Appeal, ix, f.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J.

The motion to dismiss the appeal is on the following grounds, to wit:

1st. That the bond is insufficient in amount for a suspensive appeal.

2d. That there'is no security named in the body of the bond.

First. The appeal is:taken from a judgment dissolving an injunction with one hundred dollars damages.

The appeal bond is for three hundred dollars, and being an amount for one-half over and above the damages awarded by the judgment and costs, is sufficient in amount.

Second. The bond is signed by the principal and under the name of the principal, is the name of another purporting to be that of the surety. We had occasion to consider this ground of the insufficiency of the bond in the case of Patrick Coyle vs. Succession of Wm. Crevy, where the same alleged irregularity existed, and in the judgment rendered on the rehearing in said case, we held that it was not such an irregularity as would vitiate the bond.

The motion to dismiss is, therefore, denied.

On the Merits.

The plaintiff is appellant, from a judgment dissolving an injunction taken out against the execution of an order of seizure and sale.

The order in ■ question was granted to enforce the payment of certain promissory notes, signed by John A. Marshall and Geo. W. Bryant, and secured by special mortgage upon the property described in the plaintiff’s petition.

The grounds of the injunction are, substantially :

That the plaintiff corporation is not bound on the notes executed by the parties named. That they were executed before the corporation had an existence.’ That the property mortgaged belonged to the obligors of the notes, and that the corporation had made improvements thereon, of which it was'about being deprived, and that the notes had been paid in part, but the proper credits not given.

We find the facts to be :

That the Union-Bethel African Methodist Church was organized by an act of incorporation passed before a notary public on-the 11th December, 1875.

■ On the 11th January, 1876, it was resolved by the board of trustees of said church to purchase the property in question, and the parties named, Marshall and Bryant, were authorized to carry out the purchase and sign the notes for the price, and the necessary acts of sale and mortgage.

On the 18th of the same month, a sale of the property mentioned was made by the board of trustees of the Thalia Street Presbyterian Church to the Union Bethel African Methodist Church, and the notes and the act of mortgage securing them, were executed by the persons charged with this duty by the previous resolutions referred to. The notes were stated in the act to be dated on the 1st of December previous, but are paraphed and identified with the mortgage then given ; and these notes were subsequently transferred to Peter R. Middleness, one of the defendants.

The antedating the notes in question in no manner impaired their validity or affected the liability of plaintiff to pay them. They were not executed, as alleged, before the corporation existed, as stated, but after-wards, as the record shows. “ Notes may be antedated or postdated, and in both cases will be valid unless some statute exists to the contrary.” Story Promissory Notes, chap. 1, Sec. 48; Chitty on Bills, chap. 5, p. 169; Bayley on Bills, chap. 6, section 7, chap. 3, section 7.

They were executed, as we have seen, by the express authority of the plaintiff.

If the plaintiff “was not the owner of the property seized, he has no ground to complain. 3 An. 593. He asserts no reason or principle upon which to base a claim for the improvements, nor inform us of their value.

There is no proof of any failure to give due credit for the payments alleged to have been made. The injunction, in fact, seems to have been taken out in entire absence of any just ground of complaint, and would present a case for the infliction of increased damages for the abuse of the remedy ; but we cannot award them as asked for, it being now settled that no damages can be summarily allowed in the same judgment dissolving an injunction against an order of seizure and sale, but the parties must be left to their remedy on the injunction bond. Dejean vs. Hebert, 31 An. 721; Cane vs. Cawthorn, 33 An. 954; Thompson vs. Lemelle, 32 An. 932; Testart vs. Belot, O. B. 55, p. 241.

And for this reason and by force of this authority, we must even amend the judgment of the lower court allowing damages. Without this amendment, however, the appellee would not be entitled on his motion to damages for a frivolous appeal, he having asked for an amendment of the judgment.

The judgment appealed from is amended by disallowing the damages awarded therein, and as thus amended, is affirmed, defendants to pay costs of appeal.


author: Marr, J. Bermudez, C. J.

text:
    No. 7322.
    Harry Lewis, Tutor, vs. The New Orleans Savings Institution.
    The incompleteness of the Transcript is attributable to the Appellee himself and not to the Appellant, and the Motion to dismiss the Appeal should, therefore, be denied.
    The object of the demand is not the same as in the former suit, and the exception of ret judicata should be dismissed.
    APPEAL from the Fifth District Court for the parish of Orleans. Rogers, J.

      B. R: Forman for Plaintiff and Appellant.

      Bayne & Renshaw for Defendant and Appellee.

      Mott & Kelley on the same side.
   On the Motion to Dismiss.

The opinion of the Court was delivered by

Marr, J.

Plaintiff appealed from a judgment dismissing his suit qn the exception res adjudicata. Appellee, defendant in the District Cqurt, moves to dismiss, on the ground that the transcript is incomplete. That it does not contain all the testimony adduced upon the trial in the lower court; and that said incompleteness is attributable to the appellant, as appears by the annexed affidavits.”

The affidavits referred to are those of the clerk and deputy clerk of the District Court, of the same date as, and filed with the motion to dismiss. The deputy states, substantially, that the transcript was prepared under his supervision; and that the certificate, which is appended to it, showing that it is complete, is erroneous, and was made through inadvertence; that certain testimony which was offered by plaintiff, Harry Lewis, tutor, on the trial, does not appear in the transcript; that deponent requested appellant’s counsel to supply the same for the preparation of the transcript; that it was not supplied; and that the testimony not in the transcript has not been written out by the stenographer. ”

That on the day on which the transcript was filed in this Court, 13th January, 1879, as soon as deponent remembered that it was not complete, and that the certificate was incorrect and had been given in error, he unsuccessfully attempted to have it corrected before the transcript should be filed.

The affidavit of the clerk states that he signed the certificate as presented to him, supposing it to be correct, but that it is erroneous in that the transcript does not contain all the testimony adduced on the trial.

On the 27th January, three other affidavits were filed and submitted with the motion to dismiss: one by the same deputy clerk, one by the clerk, and the third by the stenographer of the' court. ’The deputy states that no testimony was taken on the trial; that all the testimony taken in a case in the same court, between the same parties, No. 8597 of the docket, was offered in evidence, but a part of it had not been written out in long hand, and is not yet written out nor on file; and that the record contains all the testimony written out in long hand and on file in that case. The affidavit of the clerk merely confirms and corroborates this statement.

The stenographer states that on the trial of the exception, the testimony taken in the case No. 8597, tried at the last term, between the same parties, was offered in evidence. That all this testimony was not written out in long hand, because the attorney for defendant, appellee in this case, “ directed me not to do so, and stated that the case would not be appealed, but would be settled. That in settling the costs of said case he did not pay for the writing out of said testimony in full, which, he said, would not be necessary.” That all the testimony has not been written out for that reason; and that all the testimony written out is in this record.

The certificate of the clerk is that the preceding 164 pages “ contain a full and complete transcript of all the proceedings had, testimony and evidence adduced, and all the documents filed upon the trial of the case,” etc.

The affidavits do not impeach nor contradict this certificate. On the contrary, they show that it is correct, and they also show that the alleged incompleteness is attributable to the appellee and not to the appellant.

The stenographer’s notes were not offered in evidence; they are not the testimony adduced on the trial. They are memoranda taken by him during the trial, ftom which he can afterwards write out and report intelligibly what the witness said on the trial; but they are wholly unintelligible to those who are not acquainted with his system.

There was no occasion for the stenographer to preserve the notes, after he had been informed by the defendant’s counsel that there would be no appeal, and that the case would be settled; and it is not shown that they were in existence when this case was tried. No witness was called; no testimony was taken, and the offer of all the testimony offered in the suit No. 8597 was, necessarily, restricted to that which had been written out and was on file, and could be submitted to, read and understood by the judge.

The motion to dismiss is, therefore, overruled at the cost of appellee.

On the Merits.

Bermudez, C. J.

This is an action to recover §2000, the stated value of certain jewelry said to have been contained in a tin box deposited at a particular time by the deceased mother of plaintiff's ward, in the savings institution, defendant herein.

■ The defense of res judicata was interposed.

From a judgment sustaining it, the plaintiff appeals.

The evidence shows that, in a previous suit, the plaintiff brought an action for §3000 in coin and §5000 jewelry, deposited during the same period, by the same person, in a box, with the same institution.

On the trial of the .case, the character or the value of the- two boxes was inquired into, and a witness valued the contents of one of the boxes, the tin box, at eight hundred dollars, and those of the other box, a paper box, at two hundred and fifty dollars.

The jury rendered a verdict for $2181 and interest for the cash deposited, and for $250, for the contents of a box.

The verdict was responsive to the prayer of the petition which was for the cash deposited and the jewelry contained in a box. The judgment of the Court was in accordance with the verdict.

It is evident that the jury did not make any allowance for the contents of the tin box, no doubt because they thought they would be granting relief ultra petitionem. Had they found plaintiff entitled to a certain sum as the value of the contents of the two boxes, as we think they might have done, there can be no doubt, particularly as the judgment as rendered was satisfied, the exception of res judicata would have been a good defense ; but it is manifest that they have not done so.

5 An. 666; 10 An. 228; 19 L. 325; 8 M. 307; 13 An. 415; 20 An. 73; 24 An. 73; 26 An. 321; 27 An. 370; 2 M. 142; 2 La. 61; 8 La. 64; 17 L. 94; 22 How. 96.

The quid judicandum and the quid judicatum accord. What was not allowed by the jury can be claimed by the plaintiff in a different action. The corpus in the former is not the corpus in the present suit. The object is not the same. The plea is not, therefore, well founded. E. C. C. 2286 ; C. N. 1350.

It is, therefore, ordered and decreed that the judgment appealed from be reversed, that the exception be overruled, and that the defendant be ordered to answer to the merits ;• and

It is further ordered and decreed that the case be referred to the Civil District Court for the parish of Orleans, which has superseded the Fifth District Court for the same parish, before which this suit was brought, to be further proceeded with according to law, the defendant and appellee to pay the costs of appeal.


author: Bermudez, 0. J.

text:
    No. 8404.
    The State of Louisiana vs. Gaetano Addotto, Et Al.
    The case oí the accused not having been allotted, as required, by Article 130 of the Constitution, to the Judge of Section A of the Criminal District Court of the Parish of Orleans, in which he was tried, the judgment is illegal and he is entitled to a new trial.
    The accused was in time to mate the objection, before judgment and sentence.
    APPEAL from the Criminal District Court for tlie Parisli of Orleans. liorna», J.

      J. O. ligan. Attorney General, for the State, Appellee.

      Wm. L. limns and Whitaker & Adams, for Defendant and Appellant:
    Where the prosecutions instituted in the court have not been equally apportioned to that section by lot, the Judge of Section A, thereof, is not vested with jurisdiction over the jierson of defendant, and is without legal authority to preside over the trial. Constitution, Art. 130.
    If the cause be a criminal cause, the judge has jurisdiction rütione materia but in order to ‘ exercise jurisdiction, over the person of defendant, the prosecution must be apportioned to him by lot.

      In criminal trials, it ■will not be presumed that tbe defendant waived libs rights by implication.

    In these cases the doctrine of res adjudicata will not apply if the objection be made before ■final judgment.
   The opinion of the Court was delivered by

Bermudez, 0. J.

This defendant was indicted for murder and found guilty, without capital punishment.

From tile judgment and sentence condemning him to hard labor for, the. term of his natural life in the State Penitentiary, he has appealed.

The record contains a number of Bills of Exception, among which, one which includes the motion for a new trial, the evidence taken under it, and the action of the Judge, declining it.

The defendant complains that the District Judge who tried the ease and sentenced him, had no jurisdiction; that he erred in excluding certain testimony; that there was a variance between the indictment and the proof; that the instructions of the Court to the jury were, insufficient and contain serious errors of law detrimental to him and calculated to affect the verdict to liis prejudice.; that the Judge, illegally refused to charge the jury as requested, on matters material to the issued presented under the indictment; that opinions upon, and statements of, facts were expressed by the Judge during the trial and in the presence of the jury.

The motion for a new trial is based on numerous grounds for relief, one of which is to the effect, that from the lGth of June, 1881, up to the 27th of September following, the equal apportionment, by lot, of all the prosecutions before the Criminal District Court for the Parish of Orleans, including the present one, has not been made between the Judges of said Court, as is required by Article 130 of the Constitution of this State, and that, by reason of the want of such apportionment by lot, Section A of said Court, in which this case was tried aud said verdict rendered, is without jurisdiction.

On the trial of the motion, evidence was adduced, which establishes this ground. It consists of two entries on the minutes of each Section, made respectively by the Judge of Section A, on June lGth, 1831, and b,y the Judge of Section B, on August 15th, following, in both of which refere,nee is made to Section 7 of Act No. 98, of 1380. It is therein announced that there will he no session of Section A during the months of July and August, and none of Section B during those of September and October, and that during said period, the causes transmitted, or originating in said Court, Section A, will be allotted to Section B, and that similar cases in Section B, will bo allotted to Section A. Evidence-admitted shows that the present prosecution against the defendant, Gaetano Addotto, was in that manner apportioned to Section A. The record proves that that tho prosecution was accordingly carried on in that Section before the Judge presiding over it, who rendered the judgment on the verdict and passed sentence on the prisoner.

Wo will first dispose of this radical objection, for it is only in the contingency that it lacks foundation, that the other means of defense can be investigated.

The Article of the Constitution referred to (130) provides, in relation to the Criminal District Court for the Parish of Orleans, which it creates, that:

All prosecutions instituted in said Court, shall be equally apportioned between said Judges, by lot. Each Judge or his successor shall have exclusive control over every cause falling' to him from its inception to final determination in said Court. In case of vacancy, or recusation, causes assigned shall be re-assigned under order of Court.

Section 7 of Act No. 98, of 1880, p. 126, mentioned in the entries on the minutes just above mentioned, reads:

Each of the Judges of the Criminal District Court for tho Parish of Orleans, may have an annual vacation of three months, during the time from the first of June to tho first of December, they regulating the time between themselves; provided, that the Court shall remain open during the entire year, and either one of the two Judges shall hold Court during the above mentioned period.”

In this condition of things several questions present themselves for solution.

First. What does the Constitution mean when it declares that all prosecutions instituted in said Court shall be equally apportioned between the Judges, by lot, and that each Judge shall have exclusive control over every cause falling to Mm.

Second. Whether the prosecution of the defendant was apportioned by lot to Section A, or the Judge thereof.

Third. Whether, if it was not thus apportioned, the failure to have done so can vitiate the judgment and sentence.

Fourth. Whether the objection of the defendant comes or not too late.

I.

The intent, purpose and meaning of tho Constitution are manifest. In the case of the State ex rol. Buisson vs. Lazarus, Judge of the Civil District Court, we were called upon to examine the same Article ■130, which, as to that Court, provides: that all causes filed in said Court shall be equally allotted and assigned among the Judges of that Court, in accordance with rules of Court to be adopted for that purpose. We there said, that its object was to provide for an equal indiscriminate distribution, by allotment and assignment, of such cases among the Judges composing it.

'There exists no material disparity in point of substance, between the provisions of the Constitution as to the Civil District Court, and those concerning the Criminal District Court for the Parish of Orleans.

In both instances the Constitution requires an equal apportionment by lot

That means a device for indiscriminate equal distribution, or repartition among the Judges, by a resort to chance, or fortuity, and not otherwise.

This conclusion is the more irresistible, as the Constitution, in as many words, directs that each Judge or his successor shall have exclusive control over every case “falling ” to him, and as we laioio that it is the construction put upon it by the Judges of those two Courts in their practice in relation to it.

How could, indeed, a cause be apportioned by lot and fall to a Judge, unless by and after an allotment resulting from hazard Reference to Section 7 of Act 98, of 1880, does not, as contended, relieve the case from embarrassment. That Section does not provide that causes or prosecutions shall not be apportioned by lot. Indeed, how could it

Its solitary purpose was to concede to each of the Judges of that Court the privilege of temporarily absenting himself, with executive leave to be obtained under another law, a faculty not imposed upon but left optional with them, to accept or not at their pleasure and due regard had to the condition of their respective dockets, they regulating the time between themselves; with Hie proviso that the Court would remain ojien during the entire year, and either of them would hold Court during the absence of the other.

This Section cannot be invoked as authority for the trial of prosecutions not previously apportioned by lot, to the Judge remaining on duty. If it were so viciously road, it would simply be unconstitutional, as in flagrant violation of well defined prohibitions in the organic law.

The argument has no weight, that cases which might be allotted to the absent Judge would then have to await his return, and that this construction would be in contravention of the other great constitutional provision, guaranteeing a speedy trial, and of the latter part of the same Article 130, which provides, that cases shall be re-assigned in certain eventualities or contingencies.

It is an argument aJ> incowvenienti. Had there been created only one Criminal Court with but one Judge, and had that Judge absented himself and no provision been made for his replacement during his absence, the consequence would have been ex necessitate that, as long as it would have lasted, cases would not have been tried in that Court. Such a temporary absence, authorized by law and sanctioned by the Executive, upon whom rests the responsibility of granting it, could not be viewed as a denial of the right to speedy justice. As well could it be argued that this Court and the Supreme Court of the United States and all other Courts could have no term and should remain open all the year round, and that the Judges thereof shall never absent themselves.

The mere statement of the proposition carries its own refutation.

But whatever force there may be in the objection, it is powerless in presence of the omission to apportion by lot. It may well be that, had the apportionment by lot been made, the very case before us would have fallen to Section A, or the Judge thereof, and would have been tried as it was.

Neither docs this interpretation of the first portion of Article 130 clash with the last part of it. On the contrary, taken together as a whole, which they are, both portions harmoniously conduce to the same conclusion, which also proves destructive of another objection, namely: that one Judge only cannot apportion by lot.

The last sentence of the Article provides, that in case of vacancy or recusation, causes assigned shall be re-assigned, under order of Court. This language conveys clearly the idea, that under the direction of the remaining Judge, causes already assigned shall be assigned anew, in the same manner, that is, apportioned by lot. Hence, a Judge can apportion by lot.

II.

The evidence under the motion for a new trial establishes that the prosecution was not apportioned by lot to Section A. The very entry on the minutes of August 15th, does not even purport to dispose of it. The entry has not the appearance of an order, bait has that of a notice or announcement, that the Court in Section B will not sit during the months stated, and that the causes alluded to will be allotted to Section A, during said period. It does not say when or by whom the allotment will be made. The time of allotment is indefinite and the officer to make it is not designated. Was it the Judge presiding over Section B who was to make it, or the clerk, or the sheriff, or the Judge of Section A? It could have been apportioned by lot by either Judge, but surely not by either of the two other officers. It is not shown that it was allotted otherwise than by the course of things, under the entry in tlie minutes of August 15th. The conclusion is, therefore, that the case, or prosecution was not apportioned by lot, as the Constitution demanded.

III.

The omission to have apportioned this cause or prosecution in the manner pointed out in Article 130, was a failure to observe an imperative provision of the Constitution, mandatory on the Judges of the Court, and which has been provided for the promotion of public good and of public order, and also for the benefit and in the interest of i>risoners at the bar of the Court.

It is unnecessary now to determine formally, whether the accused could or not have waived the advantage of that constitutional mandate in a criminal prosecution. It is certain that he has not done so before the object of the prosecution, the trial, had been consummated by judgment and his sentence to hard labor for life.

The absence of the apportionment by lot is such a grave irregularity as can vitiate the judgment and sentence, and can be taken advantage of by the defendant.

IV.

The accused was in time to object before judgment and sentence. His motion for a new trial was a proper proceeding. The objection might have come too late, after judgment and sentence, so as not to be reviewable on appeal, or even habeas coijms. 17 Wis. 521; 3 Head. 690; 122 Mass. 445; 123 Mass. 253; 28 A. 83.

In Virginia, it was held that, although the Court had jurisdiction, still an indictment found is void, if less than four justices were present.

It was there said:

“ From its nature, therefore, it is an objection, which is not waived by any pleading, and which is not cured by anything that . afterward transpired.”

Consequently, the defendant was permitted to take the objection, after trial, before a Court legally constituted. Bishop Crim. Proc. § 310.

The significant circumstances of objection urged before or after judgment, differentiate this case from that in State ex rel. Buisson vs. Lazarus, Judge, to which we have already referred.

While it is true that the prosecution was pending before the Court, it is no less so, that it had not been apportioned by lot to, and was not before, the Judge presiding over Section A of said Court, who, therefore, was incompetent to act in the same, by rendering judgment and passing sentence.

From this standpoint we are relieved from tlie necessity of testing’ tlie otlier means of defense set up by the prisoner.

It is therefore ordered, adjudged and decreed, that the verdict in the case be set aside, that, the judgment thereon and appealed from be annulled, avoided and reversed; and it is further ordered, adjudged and decreed, that this case be remanded to the Criminal District Court for the Parish of Orleans, to be therein apportioned between the Judges of said Court, by lot, as the Constitution, Article 130, provides, and to be thereafter further proceeded with in the manner and form pointed out by law.


author: Pociié, J.

text:
    No. 8138.
    William J. Beirne vs. James Gill.
    In an action for tlie ejectment of a tenant, the amount of the unpaid rent, as stipulated in tlie lease, exceeding the sum of $1000, this Court has ju isdiction.
    The plaintiff cannot recover when the evidence does not preponderate in Irs favor: he must establish his demand with legal certainty.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.
    S. S. Curl isle for Defendant and Appellee :
    In an action of ejectment, where no money is claimed, it is the amount of the lease which gives the Court jurisdiction. 20 An. 47.

      Dóbt Dalton and I£. Shackelford for Plaintiff and Appellant.
   Motion to Dismiss.

The opinion of the. Court was delivered by

Pociié, J.

Appellee moves to dismiss this appeal on tlie ground that tlie amount, in dispute does not exceed one thousand dollars. The object of the suit is to eject defendant from the possession of a saw mill and appurtenances which he had leased from plaintiff for a term of three years from the first of January, 1830, and for the use of which he. had agreed, in a written lease, to pay to the lessor the annual rental consisting of a sum equal to one-half of the net profits made hy him in running said mill, “payments to he made as often as practicable during each year.”

As the suit involves no money demand, the pecuniary amount in dispute is the value of the unexpired term of the lease, that for the time to ran from the 18th of September, 1880, on which the demand of possession was first made, to the 31st of December, 1882.

Plaintiff swears that the rent of his mill is worth $200 a month, and his testimony on that point is not contradicted. A statement of accounts made out by defendant himself, shows that the portion of pnofits accrued for the account of, and paid by him to defendant, from January 1st, 1880, to the 7th of August following, amounted to $921.59, or some $115 a month, and that monthly rental for the unexpired term of the lease, would foot up a sum far in excess of one thousand dollars. Hence it is clear that we have jurisdiction in the premises, and the motion to dismiss is, therefore, overruled. Ellis, et al. vs. Silverstein, 26 A. 47.

On this Merits.

It appears that the ground on which plaintiff rests his right to eject the defendant, is the latter’s refusal to pay him the sum of $53.86, as the balance due him on his proportion of the profits realized up to the 7th of August, 1880. Defendant admits that he owes the sum of $53.86, as alleged by plaintiff, but denies that any demand was ever made on him for the same, and that he has ever refused payment thereof, which payment he avers to have tendered to plaintiff, who refused it.

The District Judge rendered judgment of non-suit against plaintiff, who appeals.

The testimony is decidedly conflicting, but the weight of evidence preponderates against plaintiff, who has failed to prove, to our satisfaction, that after due demand, defendant failed or refused to pay the balance claimed of him, and thus violated the terms of his contract.

Plaintiff swears positively that such a demand was made by him on September 7th, 1880, and that payment was refused by defendant, and his testimony is corroborated by another witness.

But his statements are as solemnly denied by defendant, who swears that no such demand was made on him on that day, and denies that he refused such payment on that or any other occasion, and states that he frequently tendered that amount to plaintiff, who refused the same, and stated that what he wanted was his mill, and his testimony is corroborated by three other witnesses.

Recognizing our embarrassment in concluding which set of conflicting witnesses should be believed, we adopt the conclusions of the District Judge, who heard and saw the witnesses testify, and had better opportunities of testing the. truth of their respective statements. Any doubt existing in the judicial mind, under the present circumstances, must be construed against plaintiff, who must not only make out a probable case, but must establish his demand with legal certainty.

But, admitting that the evidence had proven a failure or refusal on the part of the defendant to pay the balanee due to plaintiff, at the time of Ms statement showing such balance to be due to plaintiff, wo cannot construe such refusal or failure of payment, as a passive violation of his lease, which provides that such payments were to be made as often as practicable, during the year, under which indefinite, and uncertain provision, it was incumbent on plaintiff to prove the happening of the practicable emergency rendering the payment absolutely due and exigible, and this he luis utterly failed to do. 6 A. 279 ; 30 A. 255.

Out conclusion is clear that he lias failed to make out liis case.

Tlie judgment appealed from is, therefore, affirmed, at appellant’s costs.