text:
    No. 4017.
    Mrs. M. H. Walker, wife, etc., v. F. Limongy, et al.
    Tbo ■wife can, with the consent of hor husband, soil her separate property and give the pro ceods to her husband, who then becomes her debtor. Having the authority to sell and having made a sale in due form, the object for which it was made by the wife, to raise money for her husband, does not make it any the less a sale as to third persons without knowledge. The public knows that a wife has the right to selL her property if duly authorized, and that her husband may receive and use the proceeds, and if there is nothing to create suspicion, or put the capitalist on his guard, he may safely discount a mortgage note given by a purchaser to a married woman as a part of the price of her property regularly sold by her.
    Appeal from the Fourth District Court, parish of Orleans. Tliéard, J.

      Semmes <& Mott, for plaintiff and appellant. H. Michel, 0, Bosélms and A. Philips, for defendants and appellees.
   Howell, J.

On the eighth of July, 1870, Mrs. M. H. Walker, authorized and assisted by her husband, A. W. Walker, appeared before T. G-uyol, notary public, and executed an act of sale to J. S. Tully of two lots of ground and the improvements thereon, situated on St. Charles street, for the price of $18,000, of which $7000 were alleged to be in cash, and the purchaser assumed the balance of the mortgage, then amounting to $2720, due the Citizens’ Bank, and gave his three notes for $2666 66|- each, with eight per cent, interest after maturity, payable at six, twelve and eighteen months, and secured by mortgage on the property sold. P. Limongy, as the holder of the first of said notes, after receiving payment of the interest at different periods and a part of the principal, issued executory process against Tully for the balance and caused the mortgaged property to be seized and advertised for sale ; whereupon Mrs. Walker injoined the sale on the grounds that the said sale to Tully was not real, but intended as a mortgage to raise money for the benefit of her husband, and asked that the said sale be declared null and the said notes given by Tully be declared inoperative as a mortgage upon her said property.

Prom a judgment dissolving her injunction with damages, she has appealed.

The act was read to Mrs. Walker when she signed it and she directed the notary to deliver the notes to her husband. No cash was paid, and some two or three weeks after the date of the act, Tully gave to A. W. Walker a counter letter, acknowledging that the said sale was merely an accommodation sale, made to give currency to the notes executed by him, that he paid no cash, that the sale was null, and obligated himself to transfer the property to Mrs. Walker when requested, subject however to the mortgage securing his notes. Of this letter, which has never been recorded, Mrs. Walker had no knowledge until the property was seized, and then she found it among her husband’s papers, after he had suddenly disappeared. Knowledge of the transaction was not brought home to Limongy, who discounted the note in the hands of the notary, the proceeds of which went to A. W. Walker. It is clear that the transaction was intended to raise money for the benefit of Walker, who expected to pay the notes and have the property re-transferred to his wife.

The question is, can the innocent third holder of the note, so executed, enfoive the mortgage by which its payment is secured 9

The wife can, with the authorization of her husband, sell her separate property and give the proceeds to her husband, who then becomes her debtor. R. “C. C. 2390. Having the authority to sell and having made a sale in due form, the object for which it was made by the wife, to wit, to raise money for her husband, does not make it any the less a sale as to third persons without knowledge. We are not prepared to say that, because, as between the parties, an act may be intended as an indirect way of issuing and giving currency to notes to be discounted for the benefit of the husband, the mortgage, executed in due form by an apparent purchaser to secure notes given by him for the alleged price, can be declared to be simply a mortgage executed by the wife for tlie benefit; of her luuband. The public knows that a wife has the power to sell her property, if duly authorized, and that her husband may receive and use the proceeds, and if there is nothing to create suspicion or put the capitalist on his guard, he may safely discount a mortgage note given by a purchaser to a married woman as a part of the price of her property regularly sold by her.

Judgment affirmed.

Rehearing refused.


source: Caselaw Access Project

author: Morgan, J. LuDEi.iNGr, C. J.,

license: Public Domain

text:
    No. 4821.
    Succession of A. Constant Hearing.
    A man may take out a policy of insurance on his life in the name of any one, or having taken it out in his own name, he may, with the consent of the assurers, transfer it to whom ho pleases.
    A policy of insurance is not a piece of property; it is the evidence of a contract, tho contract being that a certain sum of money will he paid upon the happening of a certain event, to a particular person, who is named in the policy, or who may he the legal holder thereof.
    A creditor may have tho life of his doblor insured, even without tho consent of his debtor. A husband lias the right to insure his life iu the interest of his wife and child, as well as in the interest of his creditor. If the policy issues to the wife, or is properly transferred to her, tho amouut stipulated therein belongs to her when tho event secured against happens, and she can not he forced to inventory it as a part of her husband’s estate. The object he had in view would be defeated if a contrary doctrine prevailed.
    It is the wife whom tho husband seeks to protect when he insures his life in her behalf. Otherwise lie would not insure in her name. Ho has no need to protect his creditors by such a mode, for they can protect themselves.
    Appeal from the Second District Court, parish of Orleans. Tissot. J.

      George L. Bright, for plaintiffs and appellants. Hudson & Fearn and J. L. Tissot, for defendant and appellee.
   Morgan, J.

This is an attempt on the part of several creditors of the deceased A. C. Hearing, to force his widow to place upon the inventory of tho property of his estate several policies of insurance which had been effected on his life. The policies are issued iu favor of his wife, and his wife and child, or have been transferred to them. One of the policies was on the life of another man, transferred by the assured to Hearing, and by him transferred to his wife.

Mrs. Hearing had obtained a separation of property from her husband, and a judgment against him for $2500, with legal interest from twenty-seventh July, 1854. Upon this judgment fieri facias issued, and was returned nulla bona. Subsequently her counsel received from her husband $475 50 by the sale and transfer to her of all the furniture and movables of the deceased in the house No. 21 Hospital street.

The premiums on^thc policies in controversy have been paid by Mrs. Hearing, or the. policies were issued directly for her benefit and the benefit of her child.

Admitting that the judgment of separation is worthless, upon which we express no opinion, the question we are called upon to decide is whether these policies should be inventoried as a part of Hearing’s •estate, and thus made liable for his debts, or whether they belong to ,his wife and child1?

We think the latter. A man may take out a policy of insurance on his life in the name of any one, or having taken it out in his own name, he may, with the consent of the assurers, transfer it to whom he pleases. A policy of insurance is not a piece of property; it is the ■evidence of a contract, the contract being that a certain sum of money will be paid upon the happening of a certain event, to a particular person named in the policy, or who may be the legal holder thereof. A creditor may have the life of his debtor insured, even without the ■consent of his debtor. A husband has the right, we think, to insure his life in the interest of his wife and child, as well as in the iuterest ■of his creditor, and his obligation to provide for them in case of his death is certainly well recognized. If the policy issues to the wife, or is properly transferred to her, the amount stipulated therein belongs to her when tile event insured against happens, and she can not be forced to inventory it as a part of her husband’s estate. The object be had in view would be defeated if a contrary doctrine prevailed. It is the wife whom the husband seeks to protect when he insures his life in her behalf; otherwise he would not insure in her name. He has no need to protect his creditors by such a mode, for they can protect themselves.

It is therefore ordered, adjudged and decreed that the judgment of ■the district court be affirmed with costs.

LuDEi.iNGr, C. J.,

dissenting. Antoine Constant Hearing died at his ■domicile in New Orleans on the twenty-fifth of December, 1872. He left a will making his child his universal legatee and his wife his executrix. This suit is to compel her to put upon the inventory of the succession certain policies of insurance on his life, made during his marriage, in favor of his wife and child, and one on the life of a stranger which had been transferred to the husband, who had transferred it to his wife, amounting in the aggregate to upwards of $19,000.

The question presented for decision is, do these policies belong to the succession ?

In regard to the policies in favor of the wife and the one transferred to her, I have no doubt they belong to the succession, having constituted a part of the community of acquets and gains existing between her and her husband at the time the policies were acquired.

The rights were acquired by Hearing, he paying the premiums. They'belonged therefore to the community, although acquired in the name of the wife alone. The Civil Code declares that this “community consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estates which they may acquire during marriage* either by donations made jointly to them both or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase.” Article 2402.

It is urged that she acquires the insurance money only after the dissolution of the community by the death of her husband. But if she had not had the policies, which were created necessarily during the lifetime of the husband whose life was insured, no money could have been collected after death.

Insurance money was paid only in consequence of the contracts of assurance, and the right to the money stipulated to be paid therein was-vested the moment the policies were delivered to the party insuring* subject only to the conditions stipulated in the policies. The right to the money existed during the marriage, although not exigible until after the death of the assured. The case of succession of Richardson, 14 An. p. ‘1, can not be regarded as an authority in point. The question decided in that case was that a husband who owed his wife for paraphernal funds received by him, could authorize her to invest the-money paid by him to her to satisfy her claims against him for her paraphernal property in a policy of assurance on her life.

In the case of succession of Kugler, 23 An., the only question was whether or not the widow and children of Kugler could claim $1000-of the succession, besides the insurance money. We held that the evidence showed they had $1000 when the deceased died, and could not get any more under the homestead law. The question involved in the case at bar was not raised in that case, and could not have been* and I believe that it is now presented for decision to this court for the first time.

The French decisions referred to in the defendant’s brief go to this-extent and no further, that the assured, who obligates himself to pay the premium on the policy in favor of the persons named therein* stipulates notfor himself, but for those named by him, and that under art. 1121 of tlie Code Napoleon, tlie parties thus named have acquired the right to the future insurance money from the date of the contract.

But those decisions do not decide that such stipulation pour autrm can'be made by the husband in favor of his.wife, so as to vest a separate and distinct right in herself. On the contrary, as it is held that the rights vested in the person in whose favor the stipulation is made, from the date of the contract, it follows that the right was acquired during the community, and must belong to the community, unless insurance policies form an exception to the general rule. I know of no-such exception. And the laws of Louisiana forbid contracts between husbands and wives except in the few cases enumerated in the Code. The policy which was transferred to the husband, and which was after-wards transferred by him to his wife, clearly belongs to the community, as the husband was forbidden by the law to contract with his wife.

The pretended judgment of separation between the husband and wife has no validity. The claim of the wife was for her property received by the husband in Missouri when they resided there.

In regard to the policies in favor of the child, I have more difficulty in coming to a conclusion. I am inclined to the opinion, however, that Mr. Hearing could not make those stipulations pour autrui, as to-his child or strangers, unless at the time he made the contracts of assurance his affairs were in such a condition that he could have made valid donations of his property to the value of the premiums paid. This does not appear to have been the case.' The property of the debtor is the common pledge of his creditors, and he can not under the circumstances gratuitously dispose of it to their prejudice with the sanction of the law.

I therefore dissent from the opinion of the majority of the court.

Rehearing refused.


author: Howell, J.

text:
    No. 4967.
    Succession of Etienne Carlon.
    As tlie law has prescribed no specific form in ■which the appointments of administrators are-to be made, if the certificate of appointment is signed by the judge, although it may not be in the usual form and manner in ■which such appointments are made, and letters-issued, yet it must be considered as the act of the judge and effect must be given to it.
    In this case the instrument declares that the application was made, that the party applying was duly appointed administrator and has fulfilled all the requirements of the law. This is to all intents and purposes the evidence of an appointment by the judge who signed the document.
    Appeal from the Second District Court, parish,of Orleans. Tissot, J.

      Albert Voorldes, for appellant. J. A. & V. J. Hosier, for appellee.
   Howell, J.

The appellees, who are neither creditors nor heirs, ■took a rule against A. E. Carlon to show cause why he should not •desist from pretending that he has been appointed administrator of this succession and from acting as such, on the grounds that there is no •order of court appointing him; that he has not furnished a bond as required by law, and that he has without authority assumed in such ■capacity to sue the movers.

No exception was taken to the right or form of action, and we are •called on to determine whether the administrator has authority to act .as administrator. He has produced the following instrument:

“ State oe Louisiana,

“ Second District Court, for the parish of Orleans.

u This shall certify to whom it may concern, that on the seventeenth •day of February, in tho year of our Lord one thousand eight hundred and seventy-two, and the ninety-seventh of the Independence of the United States of America, an application was made to the honorable judge of the Second District Court, for the parish of Orleans, by Ana■charsis Etienne Carlon, praying that he might be appointed administrator of the succession of Etienne Carlon, his deceased father. Now, know ye, that the said Anacharsis Etienne Carlon has been and is hereby appointed administrator to the said succession of Etienne Carlon, and that he has fulfilled all the requisites of the law.

“Witness our hand and the seal of the said Second District Court, this fifteenth day of January, in the year of our Lord one thousand eight hundred and seventy-three, and the ninety-seventh of the Independence of the United States.

(Signed) “ A. L. TI3SOT, Judge.

(Signed) “A. RICHARDS,

Deputy Clerk.”

The appellees insist that the clerk issued the above certificate without authority and in error, and erroneously made the judge sign it, and it is therefore meaningless. We find no evidence that the clerk caused the judge to sign it erroneously, and although it is not the usual manner in which such appointments aro made and letters issued, yet we must consider it the act of the judge; and as the law lias prescribed no specific form in which the appointments of administrators are to be made, we must give it the effect of an order appointing the appellant. The instrument declares that the application was made by the appellant, that he was and is hereby appointed administrator, and has fulfilled all the requirements of the law. This is to all intents and purposes the evidence of an appointment by the judge who signed the document. In the case in 6 An. p. 710, it does not appear that the judge signed the letters of administration, on which the party relied to show his appointment. It was merely the act of the clerk, who had not the power to make the appointment; while here it is the act of the judge.

It is therefore ordered that the judgment appealed from be reversed, ••and that there be judgment in favor of the defendant, A. E. Carlon, •dismissing the rule against him with costs in both courts.

Rehearing refused.


author: Ludeling, C. J.

text:
    No. 5113.
    John J. Carruth v. Carter & Brother.
    The note sued upon in this case was deliberately given, and was secured by mortgage. No fraud is alloged. Whether usurious interest was included in it or not is immaterial under the laws of the State.
    Besides, after several partial payments had been subsequently made, a settlement was bad, and the defendants, again in writing, acknowledged themselves to bo indebted to the plaintiii in the sum claimed.
    Appeal from the Tenth Judicial District Court, parish of St. Helena. Kemp, J.

      W. O. Pipián and P. P. Bussell, for plaintiff and appellee. T. & JB. J. Kilis, for defendants and appellants. .
   Ludeling, C. J.

This is a suit to recover the balance due on a mortgage note. The defense is partial failure of consideration and usury. There was judgment in favor of the plaintiff and the defendants have appealed.

On the trial the defendants offered themselves and another witness to prove the usury and what they said was an error in the amount of the note. The testimony was objected to and the evidence was rejected, on the grounds that plaintiff was a third party who had acquired the note before maturity, and was not hound by prior equities.

The judge a quo erred in supposing the plaintiff a third party. But if the testimony were in the record, it would not change the opinion we entertain. The note was given deliberately, and was secured by a mortgage, and no fraud is alleged. Whether usurious interest was included in it or not is immaterial, under the laws of this State. Subsequently, after several partial payments had been made, a settlement was had, and the defendants, again, in writing, acknowledged themselves to be indebted to the plaintiff in the sum claimed.

It appears, however, that since that settlement, a further payment of $400 was made on the twelfth of December, 1871, and the judge a quo erred in not allowing this credit.

It is therefore ordered and adjudged that the judgment of the lower court he amended by allowing a credit of four hundred dollars on the twelfth of December, 1871; that, as thus amended, the judgment he affirmed. Costs of appeal to he paid by the appellee.

Rehearing refused.


author: Ludeling, C. J. Morgan, J.,

text:
    No. 4702.
    Mrs. E. LeBlanc v. Succession of Charles Massieu.

      A commission was iss”ectto take tlie testimony of plaintiff, Mrs. E. LeBlanc, (Ernestine L. Chauveau), audher mother, then in France. This commission having been returned unexecuted, the defendant moved, expcvt'te, to take the answers for confessed, and the order was accordingly made.
    This was clearly wrong. There is no law to authorize the testimony of a witness to be taken for confessed. These interrogatories on facts and articles were propounded to the plaintiff, who was then in France, but they were returned unanswered, as Mrs. LeBlanc had come back to Louisiana.
    Thereupon the defendant filed a supplemental answer with interrogatories on facts and articles and asked that they bo answered in open court. Objections were made to the interrogatories by the plaintiff’s attorney — among others — that they were vague, impertinent and had nothing to do with the real issue in the cause.
    The Judge a quo sustained the objections, except as to the first question which was ordered to be answered. The ruling was correct. H she had failed to answer at all, she would have been protected, as the order did not fix a day on which she was to answer. But the plaintiff appeared in court and answered it.
    The plaintiff having offered herself as a witness, the defendant objected to this, on the-ground that her answers to interrogatories as a witness having been taken for confessed, she could not be permitted to testify. The Judge properly overruled the objection. If the defendants really wanted her te-timony, when she was upon tlie stand as a witness they might have obtained it, if responsive to the matters at issue.
    Appeal from the Second District Court, parish of Orleans. liséot, J.

      G. Schmidt, for plaintiff and appellee. John Culbertson, and B. Bermudes, for defendants and appellants.
   Ludeling, C. J.

On the sixteenth of February, 1872, the plaintiff brought suit against the executors of the succession of C. Massieu on the following instrument, Good for ten thousand dollars payable to Miss Ernestine L. Chauveau, after my death, value received, New Orleans, September 26, 1842. C. MASSIEU. ”

There were dilatory exceptions filed, which were properly overruled by the District Judge.

The answer contains a general denial — a denial of the signature, and a further denial that there was any lawful consideration for the note. There was judgment in favor of the plaintiff, and the defendants have apppealed.

A commission was taken out to take the testimony of Ernestine L. Chauveau and her mother in France. This commission having been returned unexecuted, the defendants moved, ex parte, to take the answers for confessed, and the order was accordingly made.

1 This was clearly wrong. There is no law to authorize the testimony of a witness to he taken for confessed. These interrogatories on facts and articles were propounded to the plaintiff, who was then in France, hut they were returned unanswered, as Mrs. Chauveau had returned to Louisiana. Thereupon the defendants filed a supplemental answer, with interrogatories on facts and articles, and asked that they he answered in open court. Objections to the interrogatories were made by the plaintiff’s attorney, among others these, that they are vague, impertinent and have nothing to do with the real issue in the cause.

The Judge a quo sustained the objections, except as to the first question which was ordered to be answered. The ruling was correct. If she had failed to answer at all, she would have been protected, as the order did notfix a day upon which she was to answer. C. P. 351. But the plaintiff appeared in court and answered it. The plaintiff offered herself as a witness. The defendants objected to this, on the grounds that her answers to interrogatories as a witness having been taken for confessed, she could not be permitted to testify. The judge properly overruled the objection. If the defendants really wanted her testimony when she was upon the stand as a witness, they might have obtained it, if responsive to the matters at issue.

The genuineness'of the note is fully proved and the defendants have failed to make good their defense.

It is therefore ordered and adjudged that the judgment of the court «■ qua be affirmed with costs of appeal.

Morgan, J.,

dissenting. This action is instituted upon the following instrument.

“ Good for ten thousand dollars, payable to Miss Ernestine L. Chauveau, after my death, value received. New Orleans, September 26, 1842. C. MASSIEU. ”

Massieu died in November, 1871. He made an olographic will, dated, fifteenth of March, 1871. After several special bequests and dispositions of his property, to the exteut of $22,700, he made Gabriel de Eeriet his universal legatee, and appointed him and J. G. Monrose, the executors of his will. In this will no mention is made of the obligation sued on. The property he left was inventoried at $27,771 50.

Ernestine L. Chauveau, now Mrs. LeBlanc, brings this suit against the executors, and claims the sum mentioned in the foregoing document, alleging that it is wholly written and signed by the said Massieu, who was a near relative of petitioner and had a great friendship for her family, from whom he had received valuable services, and was under many obligations. After various exceptions, which were properly overruled, and motions for oyer of the document sued on, and for the appointment of experts to pass upon the genuineness thereof, the executors answered. They specially deny that the document declared upon was signed by Massieu, and they plead that, if genuine, it was given without any lawful consideration, which they aver they will establish.

It will thus be seen that the instrument sued on is an unconditional promissory note, not transferable by indorsement or delivery, payable to a person therein named, at a certain time, alleged to have been given for value, which is denied. The issue then is value or no value, which issue both plaintiff and defendants have tendered, one to the-other.

The plaintiff has produced no evidence in support of what she alleges-was the consideration of the note, to wit, relationship, friendship for-her family, valuable services from them to him. Her evidenco is confined strictly to the genuineness of the note, which is established beyond a doubt.

The deiendants propounded interrogatories on facts and articles to-the plaintiff, in which she is squarely and repeatedly ashed what the-consideration of the note was, and whether the consideration therefor was a valid one. Her counsel objected to her being forced to answer-these questions upon the grounds :

First — That defendants being neither forced heirs nor creditors, they have no right to inquire into the morality or legality of their benefactor’s acts.

Second — Because the charge of illegality or immorality of the obligation sued on is a grievous injury done their testator, and they can not be permitted to throw obloquy on his memory and render it odious to-posterity.

Third — Because the obligations sued on purports to be for value received, and the inquiry must bo limited to the genuineness of the signature.

Fourths — Because all the interrogatories, so far as (hey are pot confined to the genuineness of the signature, are vague, impertinent, and' have nothing to do with the real issue of the case.

The district judge sustained the exceptions, and the plaintiff did not answer, to which ruling defendants reserved their bill.

First — As executors, whether legatees or not, the defendants wore-bound to inquire inio the validity and legality of every claim which-is presented against the estate which they represent.

Second — We do not see what grievous injury can be done to the memory of the testator by his executors, by their simply trying to establish that an obligation which he is alleged to have given, is without consideration.

Third — Because the obligation sued on purports to bo for value-received, we do not understand that the inquiry must be limited to the genuineness of the signature.

Fourth — We do not find the interrogatories vague or impertinent, or that they have nothing to do with the real issues in the case. On. the contrary, it appears to us that if they are answered as the defendants seem to think they will be, the plaintiff will, at all events, have-made a strong case against herself.

The judge below was of the opinion that the instrument sued upon is a disguised donation under an onerous form, and much of the plaintiff’s brief is taken up with authorities to the pointthat, if it be viewed in that light, it is equally valid and must be paid without deduction.

But in the opposition which she filed to the account of the executors’' account in the succession she expressly declares the instrument sued ou tobe a “promissory note and obligation.” In this suit against the executors she calls it an obligation. In her brief she asserts it to be “a. debt of the succession which must be paid in preference to legacies.”

Now, debt and donation are not convertible terms. The instrument-sued on is either the one or the other, and it was for the plaintiff to fix. its proper designation. She has chosen to call it a debt; she must therefore be held to establish the debt when put to the proof •, and the defendants may be permitted to show that it does not exist. One-defense to an action on a promissory note is want of consideration,, and no one should he better able to prove the consideration for which it was given than the party in whose favor it is drawn. Now, as this-note was made payable only to the plaintiff, and is sued on by her, it seems to me clear that the defendants are entitled to make her declare what the consideration was for which it was given. The ruling of the-court, therefore, which denied to them this right was, in my opinion,, erroneous.

I therefore dissent.

Rehearing refused.


author: Morgan, J.

text:
    No. 3360.
    James M. Kane v. John W. Robertson. Jos. Hoy & Co., Campbell & Strong, Intervenors.
    Robertson, tbe defendant, had drawn two drafts on T. H. & J. M. Allen & Co., made garnishees in this suit, who had verbally accepted the same, to be paid, as far as possible, out of tbe proceeds of the sale of Robertson’s cotton, then in their hands. This was a good acceptance, and the interveners in this caso, who are the holders of the accepted drafts, are entitled to have them paid out of the proceeds of said cotton.
    Appeal from the Seventh District Court, parish of Orleans. Col-lens, J.

      Bentinelc Egan, for plaintiff and appellant. E. Boxocvrd' MeGaleb, for defendant and appellee. Breaux, Fenner & Ball, for intervenors.
   Morgan, J.

We find the facts to be, that when the garnishees were-served with process, they had in their hands the proceeds of seventeen, bales of cotton, amounting, net, to $1600, and one bale of cotton, unsold, which, it is admitted, was worth $80. «

Robertson, the defendant, had drawn two drafts on T. H. & J. M. Allen & Co., the garnishees, one in favor of Joseph Hoy & Co. for $5 80, and one in favor of G-. S. Kendall, who had indorsed the same over to Campbell & Strong for $1020. These drafts had been presented to T. H. & J. M. Allen, who had verbally accepted the same, to be paid, as far as possible, out of the proceeds of the cotton. This was a good acceptance, and the proceeds of the cotton, it was properly held by the district judge, was to be paid over to the holders of the accepted drafts.

Judgment affirmed.

Rehearing refused.


author: Taliaferro, J.

text:
    No. 4796.
    State ex rel. Louis Gagnet v. Administrator of Public Accounts.
    The purport of all the regulations made in relation to tlxe matter of drainage into the Carondelet Canal and the Bayou St. John, from the act of the Legislature of March 10,1858, appears to be, that the city was prohibited from such drainage; or, if persisted in, that it should indemnify parties injured thereby — such indemnity to be ascertained by experts as damages. A report of such experts fixed the sum of $500 per month in favor of the relator after the first of July, 1869, so long as such drainage should contmue.

    The decision of this Court rendered in March, 1871, while the city was still draining into the Bayou St. John, limited the liability of the city to pay $500 per month to the relator, for this draining privilege, to the end of his lease, which expires in April, 1878.
    But that decree certainly did not bind the city to continue to drain into the Bayou St. J"ohn until the expiration of the relator’s lease, whether it thought proper to doso or not. Itwas not bound to pay for a privilege after ceasing to use it aud after having abandoned it in March or April, 1873, paying the relator up to that time.
    The swamp back of the city is a natural reservoir which, in its turn, sends all its waters into the lake beyond, and if from natural causes any of those waters on their way to the lake are thrown back, so that through certain outlets connected with the Bayou, which the plaintiff himself can readily close, a portion of the swamp water, freed from smell and noxious matters, for a limited period of time finds its way into the Bayou, that state of things can not be called drainage by the city into the bayou.
    Appeal from the Superior District Court, parish of Orleans. Hawicins, J.

      O. W. Huntington and T. Livingston, for relator and appellant. Geo. S. Lacey, city attorney, for defendant anfi appellee.
   Taliaferro, J.

The relator applied for and obtained an order from the Superior Court requiring the defendant to show cause, on a day fixed, why a mandamus should not issue compelling him to receive and register on his books according to law a certain judgment rendered by the Supreme Court in the case of Louis Gagnet v. the City of New Orleans, ( 23 An. p 207) by which the plaintiff’s right to require from the city a monthly payment of five hundred dollars for draining into the Bayou St. John was limited to twenty-eighth of April, 1878, the time at which the plaintiff’s lease is to expire. The Administrator of Public Accounts showed for cause, that by the judgment referred to in the plaintiff’s petition, the city was compelled to pay the relator five hundred dollars per month for each and every month the city should drain into the Bayou St. John after the first of July, 1869, provided that such liability should in no event be regarded as accruing from and after the twenty-sixth of April, 187fi. The respondent further shows, that the city has ceased draining into the Bayou St. John, and having paid the relator the amount required by the judgment up to the time of ceasing to drain into the said bayou, the judgment aforesaid has ceased to have effect ■either in law or equity.

The rule was discharged and the relator appeals. We think the judgment correct. We understand the purport of all the regulations made in relation to the matter of draining into the Carondelet canal and the Bayou St. John from the act of the Legislature of March 10, 1858, to he that the city was prohibited from such draining; or, if persisted in, it should indemnify parties injured thereby, such indemnity to be ascertained by experts as damages. Their report fixed the sum of $500 per month after first July, 1869, so long as such draining should ■continue. The lease of the canal by the relator is to expire on the twenty-eighth of April, 1878. The decision of this court rendered in March, 1871, while the city was still draining into the Bayou St. John, limited the liability of the city to pay $500 per month to the relatorfor this draining privilege to the end of his lease. But that decree certainly did not bind the city to continue to drain into the Bayou St. John until the expiration of the relator’s lease, whether it thought proper to do so or not. It was not bound to pay for a privilege after ceasing to-use it and which it abandoned in March or April, 1873, paying the relator up to that time. But there is an effort made to show that the City continues to drain into the bayou by means of the London avenue draining machine, by which a portion of the drainage water from the Third District is thrown into the swamp, and by this means the volume of water in the swamp is increased, and as a consequence, a large quantity of water is thrown into the bayou, thereby making more onerous ’ the servitude to which it is subjected, and article 660 of the Civil Code and 13 An. 587, are referred to. We are unable to see the applicability of the article of the Code and the authority referred to. The respondent rejoins that the swamp is a natural reservoir which in its turn sends all its waters into the lake beyond; and if from natural causes, any of these waters on their way to the lake are thrown back, so that through certain outlets connected with the bayou, which the plaintiff himself can readily close, a portion of the swamp water, freed from smell and noxious matters, for a limited period of time finds its way into th& bayou, that that state of things can not be called drainage by the city into the bayou.

We do not see that the relator has made out a case entitling him to» the peremptory mandamus prayed for. We think it was properly-refused.

Judgment afiirmed.


author: Howell, J. Morgan, J., Ludei.ing, C. J.,

text:
    No. 5176.
    Martin & Regget Rongger v. Katherine Kissinger.
    "Where it was urged, in contesting the validity of a will, that there is a distinction between* domicile and residence, and the statement that the witnesses are domiciliated in this-city, is not a compliance with the law which says, “ witnesses residing in the place
    Held — That this court is satisfied, that the notary used the word domiciliated as synonimouswith residing, as it is, and without any conciousness of the legal distinction invoked by counsel.
    In this instance an examination of the extracts of the will recited in the judgment, makes it manifest that, although said will is not artistically drawn, yet that the formalities mentioned in articles 1578, 1579 and 1580, R. C. C., are observed. There are no sacramental, words prescribed by law.
    If words are used which, taken all together, show that the notary did all that the law makes-essential, the will is good as to form, although the notary may be confused in his manner-of expressing himself. The object of the law is to have it appear from tho will itself,, that the proscribed formalities have been observed.
    The statement that the witnesses were present and within hearing of the testator, all the-time in which the will was written, taken in connection with the other statements, that it was written according to his diotation, (the testator’s) and that all was done without-interruption, at one time, must mean that the dictation, as well as the writing, was done-in the presence of the witnesses.
    It would have been more clear and accurate if the notary had used the words i “ as dictated,r instead of “ according to his dictationbut the latter expression, as used in this instance,, means what the other does.
    To adopt tho construction contended for by counsel, would be refining a little mote than tho law does, and prescribing a fixed formula to be used by notaries, who all have their-peculiar mode of expression.
    Appeal irom the Second District Court, parish of Orleans. Tissot,. J.

      Livaudais & Louqiie, for plaintiffs and appellees. Cotton <& Levy, for defendant and appellant.
   Howell, J.

The defendant has appealed from a judgment annuling the nuncupative will by public act of Christian Rongger on grounds-of informality. The will reads: “I, tho notary, at the request of Philip Lorch, of this city, did repair to the residence of Christian Rongger,. at the corner of Henry Clay avenue and Levee streets, in this city, where I found the said Christian Rongger sick in bed, of sound mind and memory, as he appeared to me, notary, and the three witnesses named and undersigned. Whereupon the said Christian Rongger did declare and dictate to me, notary, his last will and testament, and I did write down the same in mine own handwriting according to his said dictation, which is as follows.” Here follow the dispositions, and the will concludes: “And I, the said notary, having read aloud all the foregoing to said testator in the presence of Jacob Hoffner, William Henry Hornens and Hannon Rolle, competent witnesses of lawful age and domiciliated in this city, said witnesses having been present and within hearing of said testator during all the time in which the foregoing last will and testament was written; and having written the foregoing last will and testament without interruption at one time, and having fulfilled all the formalities of law, without turning aside to other acts, he, the said testator, did again declare in presence of said three witnesses the foregoing to be his only true last will and testament, written according to his said dictation.”

The grounds of informality are:

First — The will was not received by the notary in presence of three competent witnesses residing in the place where the will was executed.

Second — The same was not dictated by the testator to the notary in presence of the witnesses, nor written by the notary as dictated.

Third — All legal formalities requisite for the validity of the will were not fulfilled at one time without interruption, and without turning aside to other acts.

I. It is urged that there is a distinction between domicile and residence, and the statement that- the witnesses were domiciliated in this city is not a compliance with the law, which says “witnesses residing in the place.”

We are satisfied the notary used the word domiciliated as synonimous with residing, as it is, and without any consciousness of the legal distinction invoked by counsel.

II. and III. The essential formalities are, the will must be received by the notary in presence of three witnesses residing in the place or five not residing there; it must be dictated by the testator and written by the notary as it is dictated; it must be read to the testator in presence of the witnesses; express mention is made of the whole, observing that all those formalities must be fulfilled at one time without interruption, and without turning aside to other acts; it must be signed by the testator, or mention made of the reason of his not doing so, and by the witnesses or one for all. R. C. C. 1578, 1579, 1580.

The above extracts from the will, although not very artistic, make it manifest, we think, that those formalities were observed. There are no sacramental words prescribed by law. If words are used which taken all together show that the notary did all that the law makes essential, the will is good as to form, although the notary may be confused in his manner of expressing himself. The object of the law is to have it appear from the will itself that the prescribed formalities have been observed. In this instance we think a fair and legitimate construction of what the notary has stated, makes it appear that the will was received by him in presence of three competent witnesses; that it was dictated by the testator and written by the notary, while it was being dictated, in presence of the witnesses and read to the testator in their presence, and that all was done at one time, without interruption and turning aside to other acts, thus meeting the objections of plaintiffs. The statement that the witnesses were present and in hearing of the testator all the time in which the will was written, taken in connection with the other statements that it was written according to his (the testator’s) dictation, and that all was done without interruption at one time, must mean that the dictation, as well as the writing, was done in the presence of the witnesses.

It would have been more clear and accurate if the notary had used the words “as dictated,” instead of “according to his dictation;” but the latter expression, as used in this instance, means what the other does. To adopt the construction contended for would be refining a little more than the law does, and prescribing a fixed formula to be used by notaries, who all have their peculiar mode of expression.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of the defendant with costs.

Morgan, J.,

dissenting. The rules regulating the confection of wills are simple, but they are, in my opinion, inexorable. Nullity is the result of their violation. In this case I do not find that the will in question was dictated in the presence of the witnesses. This I think indispensable, and I therefore dissent from the opinion of the majority.

Ludei.ing, C. J.,

dissenting. I concur in this opinion.


text:
    No. 4805.
    Louis Barthel v. City of New Orleans.
    The collecting of certain rates fixed upon for the lease of a stall in St. Mary’s Market, is not a tax upon plaintiff’s occupation, "which is unequal, oppressive and in violation of the Constitution. It is a rent which he pays per day for the stall he occupies, besides a certain sum on each beef, sheep, etc., which he offers for sale. The ordinance was in force when he rented the stall; it is then a contract entered into between himself and the city, the performance of which he can not injoin the city from exacting.
    Appeal from tbe Superior District Court, parish of Orleans. Haw-hims, J.

      0. Boselius, M. Grivot, for plaintiff and appellee. George 8. Lacey, City Attorney, for defendant and appellant.
   Morgan, J.

Plaintiff has injoined the defendant from collecting certain rates fixed upon for the lease of a stall in St. Mary’s Market. He contends that it is a tax upon liis occupation, which is unequal and oppressive and in violation of the constitution.

What the city demands of him is a rent and not a tax. He is to pay a certain price per day for the stall which he occupies, and a certain sum on each beef, sheep, etc., which he offers for sale. We do not see in what' this violates the constitution. The ordinance was in force when he rented the stall. It was then a contract entered into between himself and the city, the performance of which he can not injoin the city from exacting.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, that there be judgment in favor of defendant, and the injunction herein issued be dissolved, the costs to be borne by plaintiff.

Rehearing refused.


author: Wylt, J.

text:
    No. 2953.
    Spalding, Bidwell & McDonough v. Rhoda Rosewood.
    "Under section third oí act 3sTo. 2 of the acts of 1870, creating the Eighth District Court, the injunction granted in this case by t-ho Fourth District Court was very properly dissolved with damages. Besides, that court had no authority to restrain the trial of defendant's suits before a justice of the peace.
    Appeal from the Fourth District Court, parish of Orleans. Théard, J.

      Richard Shackleford, for plaintiffs and appellants. Rogers & Blanc, for defendant and appellee.
   Wylt, J.

The plaintiffs, alleging that they employed the defendant, an actress, to perform at their theatres for a certain period, and that she without cause broke her engagement, sue to recover $1000 damages. They further allege that, notwithstanding her abandonment of said employment, she has instituted nine suits against them before a justice of the peace for $90 each for services pretended to have been rendered under her said contract with them, and they sued out an injunction restraining her from proceeding further in the prosecution of said suits, and also from instituting any more suits of that kind against them.

The defendant moved to dissolve the injunction:

First — Because the court was without jurisdiction to issue it, the Eighth District Court having exclusive jurisdiction to issue injunctions in the parish of Orleans.

Second — Because the petition discloses no ground for an injunction, the Fourth District Court having no right to restrain the trial of suits before a justice of the peace, nor to prevent the defendant from prosecuting her claims before any court of competent jurisdiction.

On the trial of this motion the court very properly dissolved the injunction with $100 damages, and the plaintiffs appeal.

Section three of act No. 2 of the acts of 1870, creating the Eighth District Court, provides that that court shall have exclusive jurisdiction in and for the parish of Orleans to issue injunctions, but that this act shall not be construed to prevent any judge from issuing an injunction to stay or regulate the execution of any judgment or order of seizure granted by him. This law was in force at the time the injunction in this case was granted. And as the Fourth District Court was without jurisdiction to issue the writ, that court certainly did not err in dissolving it. Besides, the court had no authority to restrain the trial of defendant’s suits before the justice of the peace.

Judgment affirmed.

Rehearing refused.


text:
    No. 3283.
    J. J. Kreider v. City of New Orleans.
    The plaintiff, being ejected from his office of mayor of the city of Jefferson from the first of June, 1869, to the first of April, 1870, when the office ceased to exist by annexation of said city to the city of Hew Orleans, obtained by compromise, in a suit resulting from the unlawful interference with his rights, the sum of §1500 from the party thus interfering under an appointment made by the Governor. This sum was paid out of the funds of the city of Jefferson, and the plaintiff now claims from the city of Hew Orleans, as successor of the city of Jefferson, the same amount for salary;
    Held — That the compromising by plaintiff of the said suit, in which his right to the office was involved, concludes him from urging any demand against the city of Hew Orleans for his salary, admitting the liability of the city to pay a salary twice for the same . services.
    Appeal from the Sixth District Court, parish of Orleans. Oooley, J.

      Felloius & Mills, for plaintiff and appellee. George 8. Lacey, City Attorney, for defendant and appellant.
   Howell, J.

The plaintiff claims a salary as mayor of the city of Jefferson from first June, 1809, when he was ejected from said office, until first April, 1870, when the office ceased to exist by the annexation of said city to the city of New Orleans. In the suit, which arose at the first mentioned date, he was, on appeal, declared to be entitled to his office; but when the judgment became final, the Governor made appointment of another party, who injoined the plaintiff from acting. This injunction was dissolved, and damages to the amount of $2000 allowed Kreider, defendant in that proceeding, plaintiff here, and the other party appealed; but the suit was compromised, plaintiff Kreider ■receiving $1500, which were paid out of the funds of the city of Jefferson. After this, the present suit was instituted and plaintiff obtained judgment for $1500, and the city appealed. We are of opinion that the compromising of the said suit, in which his right to the office was involved, concludes plaintiff from urging any demand against the «city for his salary, admitting the liability of the city to pay a salary twice for the same services.

It is therefore ordered that the judgment appealed from be reversed,, «.nd that there be judgment for defendant with costs.

Rehearing refused.


author: Wtlt, J.

text:
    No. 3286.
    Patrick Gallagher and Wife v. B. Abadie.
    The defendant appeals from a judgment annulling an act of sale to Mm of plaintiffs’ property under the enforcement of a judgment.
    There is no evidence in the record that the property was seized by the constable who effected the sale, nor that there was a sufficient advertisement. It is proved positively that the appraiser in behalf of G-allagher and wife was appointed by a justice of the peace. A justice of the peace has no authority to appoint an appraiser in behalf of the defendant in execution at a forced sale.
    An appraisement made by parties unauthorized to act is no appraisement. The property of the plaintiffs was therefore sold without appraisement, and the sale was invalid.
    The objection that the plaintiff's have not returned nor offered to return the price of adjudication, and therefore ought not to succeed in their suit, has no force. The plaintiffs have .received nothing to return, the defendant having purchased under his own execution. If he paid to the constable the balance of his bid in excess of the amount of the writ, that sum is yet in the hands of said constable. The plaintiffs, finding that their property had been illegally seized, refused to ratify the sale by claiming the balance of the funds in excess of the amount of defendant’s writ.
    Appeal from the Sixth District Court, parish of Orleans. Gooley, J.
    12. Shackleford, for plaintiffs and appellees. 3B. Gamhray, 33. Phillips, J. S. Whitaker, for defendant and appellant.
   Wtlt, J.

The defendant appeals from the’judgment annulling the sale of the property described in the petition, which he acquired from the plaintiffs under the enforcement of his judgment for one hundred «dollars against them. The ground for nullity is that the constable did ■not comply with the formalities required by law in selling the house and lot of the plaintiffs ,• there was no seizure, no sufficient advertisement, and no legal appraisement of the property.

The return on the fieri facias reads as follows: “Received, New Orleans, October 19, 1869. Served notice on defendant personally on twenty-first of same month and year, and three days after proceeded •to advertise the property of the defendant situated on St. Ann street, between Dorgenois and Broad, which was sold at public auction at the Merchants’ and Auctioneers’ Exchange, on Royal street, between Customhouse and Canal streets. Said property was sold to the highest bidder, Mr. Abadie, on the twenty-seventh day of November, 1869, at twelve o’clock, for the sum of $425 cash, in United States treasury notes. “ CHARLES BET AT,

Deputy Constable.”

' There is no evidence in the record that the property was seized-by the constable, nor that there was a sufficient advertisement. It is proved positively that the appraiser in behalf of G-allagher and wife was appointed by a justice of the peace. A justice of the peace has no authority to appoint an appraiser in behalf of the defendant in execution at a forced sale. An appraisement made by parties unauthorized to act is no appraisement. The property of the plaintiffs was therefore, sold without appraisement and the sale was invalid.

The defendant, however, objects that the plaintiffs have notreturned nor offered to return the price of adjudication, and therefore ought not. to succeed in their suit.

The plaintiffs have received nothing to return, the defendant having purchased under his own execution. If he paid to the constable the balance of his bid in excess of the amount of the writ, that sum is. yet in the hands of the constable. The plaintiffs, finding that their property had been illegally sold, properly refused to ratify the sale by claiming the balance of the funds in excess of the amount of defendant’s writ. We see no error in the judgment.

Judgment affirmed.

Rehearing refused.


author: Ludeling, C.vJ.

text:
    No. 3040.
    David C. McCan v. Fulkerson, McLaurin & Co. and The New Orleans Manufacturing and Building Company.
    The plea of novation is established in ¿his case. The plaintiff had an account against the” Mew Orleans Manufacturing and Building Company. For this account the note sued, upon was given. The account was receipted in full, and tko debtors, Fulkerson, MoIiaurin & Co. were substituted for the old debtor.
    Appeal from the Sixth District Court, parish of Orleans. Oooley, J.

      R. H. Mmrr, for plaintiff and appellee. Randolph, Singleton &■ Browne, for defendants and appellants.
   Ludeling, C.vJ.

The plaintiff sued the defendants on the following-note :,

$2531 73-100. New Orleans, April 18,1867.

Sixty days after date we promise to pay to the order of D. C. McCan twenty-five hundred and thirty-one dollars and seventy-three cents, for value received, with interest at the rate of eight per cent, per* annum after maturity until paid.

FULKERSON, McLAURIN & CO.

The petitioner demanded judgment against the defendants insólidof and that five hundred and ten shares of the stock of said company, pledged by H. S. Fulkerson to pay certain of his creditors, including petitioner, be seized and sold to satisfy his demand.

The following is a copy of the alleged pledge alluded to:

New Orleans, May 25, 1867.

The undersigned, in behalf of the New Orleans Manufacturing and Building Company, acknowledge receipt from Mr. H. S. Fulkerson of five hundred and ten shares of his stock of the company, which are to he disposed of towards paying the liabilities that may exist against the company, and for which Mr. Fulkerson is personally responsible. Should there be an excess of funds or stock, the same to become the property of Mr. Fulkerson and be returned to him. Mr. Fulkerson desires the following claims to be liquidated by the sale of his stock r Amount due the New Orleans Manufacturing and Building Company, $2000; amount due J. L. Lobdell, $2250 92; amount due Charles Donnelly, $1757 73; amount due D. C. McCan, $2631 73, and such other small bills, as yet unascertained, as may be approved by Mr. Fulkerson, supposed not to exceed $1000.

For the New Orleans Manufacturing and Building Company:

(Signed) LOUIS SCHNEIDER,

J. H. BLAFFER, Treasurer.

Witness: Ed. Schnu&ans.

Accepted: H. S. Fulkerson.

The New Orleans Manufacturing and Building Company filed a-general denial, and also pleaded novation of the debt originally due to the plaintiff..

. There was judgment against Fulkerson, who made no defense, and: against the New Orleans Manufacturing and Building Company. The other members of the firm of Fulkerson, McLaurin & Co. were discharged under the bankrupt law. The company alone has appealed.

We think the plea of novation is established. The plaintiff had an> account against the New Orleans Manufacturing and Building Company, or the Delachaise Building Company. For the sake of argument we will consider it to have been against the New OrleansManufacturing- and Building Company. For this account the note sued upon was given and the account was receipted in full, and the debtors Fulkerson, Mc-Laurin & Co. were substituted for the old debtor. See 2 N. S. 144; 6 N. S. 637; 2 La. Ill; 16 La. 140; 4 An. 543; 14 An. 54.

It is therefore ordered and adjudged that the judgment of the lower court be annulled, and that there be judgment against the plaintiff and in favor of the defendant rejecting the demands, with costs in both courts.

Rehearing refused.


author: Howell, J. Wyly, J. Howell, J. Howell, J.

text:
    No. 4618.
    State of Louisiana v. Charles Clinton, Auditor, and A. Dubuclet Treasurer. New Orleans, Mobile and Texas Railroad Company, Intervenor.
    The State, on the petition of the Attorney General, having injoined. the Auditor and the Treasurer from issuing warrants for the payment of and from paying certain obligations of the State, and having prayed to have the appropriations therefor and the said liabilities declared null, the Uew Orleans, Mobile and Texas Railroad Company intervened and moved to dissolve the injunction so faras it applied to the bonds of the State issued to said company.
    The grounds of the injunction were that the appropriation for the payment of the coupons of said bonds is a disguised donation of the funds of the State to a private corporation; that the Governor had no authority to subscribe for the stock of said company, and that the act 95 of 1871, by virtue of which the said bonds were issued, attempted to create a debt exceeding $100,000, without providing adequate means for its payment as required by-article 111 of the State constitution, and also in excess of the constitutional limitation to the State indebtedness.
    -Zt is contended, on the other side, that the State can. not sue to annul the bonds in question, without first tendering back the stock which it is admitted has been received by the State in exchange for the bonds.
    The doctrine of tender could not be properly applied to this case. The State does not seek to annul the contract and recover back the bonds given as the price. The law officer of the State simply asks that her’fiscal agents be prohibited from paying certain bonds and coupons, on the ground that the law which authorized their issuance is unconstitutional.
    The suit was not against the holders of the bonds, or the parties to the contract, and there was no ono to whom the tender of the certificate of stock could be made. The injunction or prohibition issued on the petition of the Attorney General, made it legally impossible, while it existed, for the fiscal agents to pay, and in this way only were the rights of the intervening company affected, and the necessity imposed upon the company to take ¡some legal proceedings to obtain payment. , They chose to intervene in these proceedings in order to assert their rights and remove the obstructions to their access to the State treasury. They are therefore not in a position to plead that a tender of the stock should have been made to them before the issuance of the injunction herein, although it practically closed the treasury to them. But any judgment in the suit to which they were not made parties, would not have been res judicata, as to them.
    This case must be remanded for further evidence and such proceedings as may be appropriate.
    Appeal from the Superior District Court, parish of Orleans. Hawkins, J.

      A. P. Meld, Attorney General, J. Q. A. Fellows, J. J3. Hotton, Whitaker & Fenégre, for the State. Howe, Prentiss and Alexander Walker, for intervenor.
   Howell, J.

The State, on the petition of the Attorney General, (having injoined the Auditor and Treasurer from issuing warrants for ¡the payment of interest on, and from paying quite a list of the obligations of the State, and prayed to have the appropriations therefor and the said indebtedness declared null, the New Orleans, Mobile and 'Texas Railroad Company intervened in the suit and moved to dissolve the injunction, so far as it applied to the bonds of the State issued to ¡said company.

The grounds of the injunction, in this respect, are that the appropriation for the payment of the coupons of said bonds is a disguised ¡donation of the funds of the State to a private corporation; that the «Grovernor had no authority to subscribe for the stock of said company, •and the act 95 of 1871, by virtue of which the said bonds were issued, •attempts to create a debt exceeding $100,000 without providing adequate means for its payment, as required by article 111 .of the State ■Constitution, and also in excess of the constitutional limitation to the ;State indebtedness.

The injunction was dissolved as to the intervenor, and the other parties appealed.

It is contended, on behalf of appellee, and we think correctly, that 4;he State can not sue to annul the bonds in question without first tendering back the stock, which it is admitted has been received by the State in exchange for the bonds. There is not even an allegation of such tender, which, it is suggested, the Legislature alone is competent to make or authorize.

Judgment affirmed.

Wyly, J.

I was not present at the consultation at which this case was decided, and, therefore, I took no part in this decision.

On Rehearing.

Howell, J.

The doctrine of tender was improperly applied in our former opinion. The State did not sue to annul the contract of sale and recover back the bonds given as the price. The law officer of the State, representing his principal, simply asked that the fiscal agents of the State be prohibited from paying the bonds and coupons described in the petition, on the ground, among others, that the laws authorizing the issuance of the bonds and making appropriations to pay the coupons, are unconstitutional. The suit was not against the holders of the bonds or the parties to the contract, and there was no one to whom the tender of the certificate of stock could be made. The injunction or prohibition, issued on the petition of the Attorney General, made it legally impossible, while it existed, for the fiscal agents to pay, and in this way only were the rights of the intervening company affected, and the necessity imposed on the company to take some legal proceedings to obtain payment.

They chose to intervene in these proceedings in order to assert their rights and remove the obstructions to their access to the State treasury. They are therefore not in a position to plead that a tender of the stock should have been made to them before the issuance of the injunction, herein, although it practically closed the treasury to them. But any judgment in the suit, to which they were not made parties, would not have been res judicata as to them.

The question arises, are they, having made themselves parties, entitled to have the injunction removed so far as it affects them. The case is not without difficulty. It is submitted on the pleadings, with the single admission that the State holds the certificate of stock, made, we-presume, with reference to the plea of tender, and we are expected to determine the rights of the parties in interest, vast as they may be, upon the face of the papers.'

It is contended, on behalf of the State and the people of the State,, that the obligation of the State to indorse the second mortgage bonds of the intervening company and in lieu of which the purchase of stock was substituted was contingent, and that the conditions, upon which that obligation was to be fixed, had failed prior to the passage of the-act authorizing the purchase of the stock and issuance of the bonds to pay for it, and hence the issuance of the bonds was the creation of a. debt in violation of the prohibition amendment to the Constitution. This failure is said to be notorious, to wit: the nonconstruction of the branch road or any part thereof within the time prescribed by act 26 of 1869, under the provisions of which the company.’s bonds were to be. guaranteed. If it be true that, at the date of the said act No. 95, the obligation of the State, in favor of the railroad company, was extinguished or had lapsed, the said act 95, authorizing the issuance of the bonds in question, was the creation of a new debt; but we are not prepared to say that such a fact may be judicially noticed, even in behalf of the public. But its importance is such that we are unwilling to hold the public responsible for the omission to furnish the necessary proof, and we have concluded to remand the case for evidence on the point and such other evidence and proceedings as may be appropriate.

It is therefore ordered that our decree herein be set aside; that the judgment appealed from be reversed, and this case be remanded for the taking of evidence and to be proceeded with in accordance to law.

In Explanation.

Howell, J.

Upon our attention being specially called, by intervenor’s counsel, to the various acts of the Legislature relative to the New Orleans, Mobile and Texas Eailroad Company, we find that the hypothesis, as to the extinguishment of the State’s contingent liability, upon which we based our decree, can not probably be supported; but we are none the less indisposed to decide the case in its present condition, as there are other important matters involved, and we can not resist the conviction that justice requires the case to be heard again in-the court of the first instance, where it can be fully and fairly presented. In saying this we do not wish'to be understood as sanctioning a second .application for rehearing.


text:
    No. 3117.
    Frederick Wang v. Spencer Field.
    The proceedings in this case appear to have been irregular. The plaintiff founds his right upon the provisions of article 3268 of the Civil Code, and yet he has failed to comply with its provisions. Uo separate appraisement was made of the lot of ground and the "building he claims a privilege upon. The building was sold separately and without any reference to the ground it stood upon; in other terms, as if there were no connection whatever between them and no rights against both existing in other persona. Under this state of facts the sale of the house was a nullity.
    Appeal from the Fourth District Court, parish of Orleans. Théard, J.

      W. E. Sogers, for plaintiff and appellee. Bentindk Egan, for defendant and appellant.
   Taliaferro, J.

One Herman bought from the defendant, Field, a lot or square of ground and erected a building upon it, Popp & Elliot, lumber dealers, furnishing the lumber used in its construction. They subsequently sued Herman for the price of the material furnished by them, obtained judgment with recognition of their lien upon the building, seized it under execution, and at the sheriff’s sale, Wang, the plaintiff, bought it. This sale took place on the thirteenth of January, 1869. Field, having Herman’s notes secured by mortgage on the lot or square of ground for the unpaid part of the price, took out executory process and caused the property to be seized and sold, and he became the purchaser on the second of February, 1869. He refused to permit Wang to remove the building Herman had erected on the lot, and Wang sued him in this action either to deliver the building to him or pay him the value of it which he alleges is worth $1000.

The answer is a general denial. Defendant avers that he is the owner of the house claimed by the plaintiff, alleging his purchase of the entire property at the aforesaid sheriff’s sale, made on the second February, 1869; that under the executory process issued on the second of December, 1868, the property was under seizure by the sheriff, and in his custody from the time of its seizure until the sale on the second of February, 1869, and that the seizure was made under executory process before the plaintiff’s pretended purchase; that he could not have acquired any title to the building in question from the fact that the lot of ground and improvements upon it were under special mortgage to the defendant to secure the payment of the purchase price to Mm under his sale of the premises to Herman.

The judgment of the lower court was rendered in conformity with the prayer of the plaintiff’s petition, and the defendant has appealed.

The plaintiff founds his right upon the article 3268 of the Civil Code: “When the vendor of lands finds himself opposed by workmen seeking payment for a house or other work erected on the land, a separate appraisement is made of the ground and of the house, the-vendor is paid to the amount of the appraisement on the land and the other to the amount of appraisement of the building.”

The proceedings appear to have been irregular. The plaintiff founds his right upon the provisions of the article of the Civil Code-just quoted, and yet he has failed to comply with those provisions. No separate appraisement was made of the lot of ground and the building he claims a privilege upon. The building was sold separately and without any reference to the ground it stood upon 5 in other-terms, as if there were no connection whatever between them, and no-rights against both existing in other persons. Under this state of factethe sale of the house was a nullity.

It is therefore ordered that the judgment of the district court be-annulled and reversed. It is further ordered that this suit be dismissed at plaintiffs costs, reserving to him and all the other parties i» interest the right to renew proceedings according to law to enforce-their privilege, if they have any, against the building erected on the-premises by Herman.


text:
    No. 3312.
    Glover & Odendahl v. George B. Shute. Citizens' Bank of Louisiana intervenor.
    This suit was instituted to enforce the vendor’s privilege on certain barrels of flour-shipped for Liverpool, for which the whole price had not been paid. The Citizens’ Bank, intervened, claiming the control of the property by virtue of the bills of lading upon, which it had made advances to the shippers. In this court the bank pleaded specially the want of registry necessary to preserve the plaintiffs’ privilege. The plaintiffs-objected that the question was not raised in the lower court, and that as, under article-805 C. P., the Supreme Court can only execute its jurisdiction in so far as it shall have-knowledge of the matters argued or contested below, the point can not be urged here.
    This objection is not well founded, because the matter contested below was the privilege claimed by the plaintiffs, and as they have failed to show that they have preserved their-privilege in the manner prescribed by law, they can not enforce it to the prejudice of theintervenor, holding the evidence of title.
    Appeal from the Fourth District Court, parish of Orleans. Théard, J.

      Randolph, Singleton & Browne and O. B. Buddeelce, for plaintiffs, and appellees. F. J. Robert, curator ad hoc, for Shute. A. Bitot, forintervenor and appellant.
   Howell, J.

The plaintiffs sold and delivered to the defendant a-certain number of barrels of flour, which were shipped on board the bark Minot, loading for Liverpool, and the whole price not being paid, this suit was instituted to enforce the privilege under act 3227 R. C. C». The Citizens’ Bank intervened claiming the control of the property by virtue of the bills of lading upon which it made advances to the shipper,* Shute. Judgment was rendered in favor of the plaintiffs and the bank.-, appealed. In this court the bank pleaded specially the want of registry necessary to preserve the plaintiffs’ privilege.

To this the plaintiffs answer that the question was not raised in the-lower court, and as under article 805 C. P., the Supreme Court can only exercise its jurisdiction in so far as it shall have knowledge of the-matters argued or contested below, the point can not be argued here.. The reply is simple, that the matter contested below was the privilege-claimed by the plaintiffs, and as they have failed to show that they have preserved their privilege in the manner prescribed by law, they can not enforce it to the prejudice of the intervenors, holding the evidence of title. They have failed to make out their case, and they do-not pretend that if the point had been raised beiow, they could have-shown a registry.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of the intervenor, the Citizens’" Bank of Louisiana, decreeing it entitled to the proceeds of the property sequestered herein, and costs in both courts.


author: Morgan, Wyly, J.,

text:
    No. 3383.
    Emily J. Robertson v. Thomas J. Emerson and George F. Porter.
    The plaintiff in this case was not a party to the suit in the fifth District Court, the exeeu- • tion of whose judgment she has injoined. Under the Act of 1870, which organized the-Eighth District Court, that court has the power to issue the injunction plaintiff has-, prayed for. Perhaps, under that statute, she might have applied to the fifth Distriot'. Court, hut it is thought that she could also seek relief from the Eighth District Court.
    Appeal from the Eighth District Court, parish of Orleans. Dibble, J.

      Wm. Grant and Wm. H. Hunt, for plaintiff and appellee. O. F. Duele, curator ad hoc, for G. E. Porter, defendant and appellant.
   Morgan,

J. The plaintiff in this injunction was not a party to the smt in the Eifth District Court, nor is she attempting to interfere with the judgment therein rendered. She claims to be entitled to itsbeneñts, and to prevent the plaintiff from executing the same to her ■ prejudice. The act of 1870, which organized the Eighth District Court, gave to that court the power to grant injunctions, but at the same time-declared that the act should not be so construed as to prevent any judge or court from issuing an injunction to stay or regulate the execution of any order of seizure granted or judgment rendered by said, judge or court. Perhaps, under this statute, she might have applied* to the Eifth District Court, but we think she could also seek reliefc' from the Eighth District Court.

On the merits, we think the reasons of the district judge correct, and, for the reasons assigned by him, the judgment is affirmed.

Wyly, J.,

dissenting. In this case the question is, had the Eighth District Court jurisdiction to injoin the execution of a judgment of the Fifth District Court 1 The solution of this question depends upon the construction to be placed upon section 2 of act No. 2 of the extra session of 1870. This section provides: That the Eighth District Court, hereby created, shall have exclusive jurisdiction in and for the parish of Orleans, to issue writs of injunction, mandamus, quo warranto, and to entertain all proceedings, suits or contestations in which the right to an office, State, parish or municipal, is in any way involved; * ■ * * * provided, that nothing in this act shall be construed to in any manner limit or affect the right of the Supreme Court of the State of Louisiana to issue, hear and determine any or all writs or orders which, by existing laws, said court has authority to issue, hear and determine; and provided further, that this act shall not be so construed as to prevent any judge or court from issuing an injunction to stay or regulate the execution of any order of seizure granted -or judgment rendered by said judge or court. ”

Now, if the Eighth District Court can stay or regulate the execution of judgments of the Fifth District Court, by the use of the writ of injunction, to that extent the last mentioned court will be limited or restricted in the right to stay or regulate the execution of its own judgments. Yet, the statute granting the power to the Eighth District Court, expressly provides that the authority granted shall not be so construed as to prevent any judge from regulating the execution of his own judgments, by the use of the writ of injunction.

Two courts can not at the same time regulate the execution of a judgment. If one undertakes to regulate it by employing the writ of injunction, the other must necessarily, for the time being, be prevented from or deprived of the control or regulation thereof. Otherwise there will be a conflict of jurisdiction, which it was one of the main objects ■of the statute in question to prevent.

The objects of the act, as expressed in the title, were to create the Eighth District Court, define its jurisdiction, and to determine the jurisdiction of the existing seven district courts for the parish of Orleans.”

Undoubtedly, power is reserved to the other district courts to em- • ploy the writ of injunction to stay or regulate the execution of their own judgments; and if the same power is conferred on the Eighth District Court, as my associates seem to interpret the act, it must be a con■current power. Yet the statute will be searched in vain to find a grant •of concurrent jurisdiction in regard to the right to issue an injunction.

The power is vested exclusively in the Eighth District Court, except in regard to the subject of staying or regulating the execution of the judgments of the other district courts.

In seeking the interpretation of a statute it is proper to take into consideration the object or motive of thelaw giver in enacting it; also the evil which it was intended to remedy. t

At the time the law was passed, the several courts of this parish had authority to issue the writ of injunction ; sometimes one court would grant an injunction and another would issue a counter injunction, embarrassing thereby the officers of court and bringing the administration of justice into contempt.

It was the confusion resulting from the concurrent jurisdiction of these courts in this respect, which led to the enactment of the law. This was the evil which the lawgiver sought to remedy.

To accomplish the object it was deemed expedient to create the Eighth District Court and to give it exclusive jurisdiction to issue the writ of injunction, except in regard to the right of staying or regulating the execution of judgments of the other district courts, which right was reserved to each court over its own judgments.

With this object in view, I do not believe the legislature intended to give the Eighth District Court concurrent jurisdiction with regard to the execution of the judgments of the other district courts; because, this would produce a conflict of authority, and, in a measure, defeat the intention of the law.

I therefore dissent in this case.

Rehearing refused.


text:
    No. 3304.
    Victor Tanner v. S. Cambon.
    Plaintiff was discharged because lie closed the store in which he was employed at an unreasonable hour. This court is not satisfied that he was employed by the year. Besides, on his being paid for the time he worked at the rate of $1500 per annum, he took the money without objection.
    Appeal from the Sixth District Court, parish of Orleans. Oooley, J.

      JS. T. Fellows, for plaintiff and appellee. Johnson & Denis, for defendant and appellant.
   Morgan, J.

Plaintiff alleges that he was engaged by the defendant to perform the duties of clerk, at an annual salary of $1500, to commence on the first day of October, 1870, and to end on the thirtieth September following; that be faithfully performed his duty until the fifteenth October, when he was illegally and without cause discharged. He sued for the year’s salary, $1500, and he had judgment.

The evidence of the plaintiff himself does not satisfy us that Cambon contracted to employ him by the year; neither is there any evidence that he was employed by the year in the place which he says he left to go to Cambon’s, although he had been employed there several years, and it is not shown that the custom is among persons engaged in Cambon’s business to employ clerks by the year, while the testimony of Cambon is positive that he never made such an engagement with him. Plaintiff was discharged because he closed the store in which he was employed at an unreasonable hour. He was paid for the time he worked at the rate of $1500 per annum, and took the money without objection.

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


text:
    No. 4963.
    C. Camutz, Syndic, v. The Bank of Louisiana, L. F. Generes, Garnishee.
    The plaintiff having obtained judgment against the Bank of Louisiana, took garnishment process against Generes and sought to make him liable. Generes excepts on several grounds, and among others — that the plaintiff made proof before a register of the United States District Court of the judgment obtained by him against the said bank which had been declared bankrupt, and filed his proof with the assignees on July 3,1871, thereby making himself a party to the bankrupt proceedings and abandoning all other rights, liens and privileges against the bankrupt, except those reserved by said proof; that by the order of the United States District Court, rendered July 1, 1869, all persons were injoined and restrained from interfering with the assets or property of the bank. The-exceptions were correctly sustained by the court a qua.

    Appeal from the Superior District Court, parish of Orleans. Hawkins, J.

      George L. Bright, for plaintiff and appellant. Clarice, Bayne & Fensliaw, for defendant and appellee.
   Taliaferro, J.

The plaintiff having obtained judgment against the Bank of Louisiana, took garnishment process against Generes and sought to make him liable. Generes excepted on the grounds :

First — That on the twenty-second May, 1868, at the suit of the State against the Louisiana Bank a judgment was rendered annulling its charter and staying all judicial proceedings against the bank. The president of the bank was injoined from paying out any of its funds or disposing of any of its assets, and the judgment also provided for placing the affairs of the bank in liquidation.

Second — That in January, 1870, the said bank was decreed bankrupt by the District Court of the United States, sitting in Louisiana, and all its assets were assigned to Aristide Miltenberger, and Emory E» Norton appointed assignee.

Third — That the plaintiff, C. Camutz, syndic, made proof before a register of the United States District Court, of the judgment obtained by him against the said bank and filed his proof with the assignee on the third of July, 1871, thereby making himself a party to the bankrupt proceedings, and abandoning all other rights, liens and privileges, against the bankrupt except those reserved by said proof.

Fourth — That by the order of the United States District Court, rendered July 1, 1869, all persons were injoined and restrained from interfering with the assets or property of the bank.

The exceptions were sustained and the rule taken dismissed. The plaintiff appeals. The evidence sustains the allegations made in the exceptions, and we think the judgment of the lower court correct.

Judgment affirmed.


text:
    No. 5063.
    George L. Walton v. Police Jury, Parish of Concordia, et als.
    The fact that only one of the non-resident parties executed an appeal bond under an order in: favor of all, can not invalidate the appeal taken by him. Those who are not appellants-are appellees, and the appellant has the right to prosecute his appeal, which is regularly taken, although his co-defendants may acquiesce in the judgment; nor is it impossible to declare the judgment null and inoperative as to the appellants, and leave it undisturbed as to the others against whom it is rendered.
    One judgment debtor has the right to be relieved from an erroneous judgment, although his co-debtors in the judgment do not see proper to complain. The non-action of one does not prevent another from acting.
    The exception to the jurisdiction of the court below, ratione materia, should have been sustained, the interest of the plaintiff being less than five hundred dollars. Plaintiff has-no greater right'to annul or injoin in this proceeding the bonds issued by the police jury of the parish of Concordia, than if he were resisting the payment of his tax levied to pay the interest on the bonds, and as his whole tax, set forth in his petition, does not exceed five hundred dollars, the district court did not have jurisdiction of his demand.
    APPEAL from the Thirteenth Judicial District Court, parish of Concordia. Sough, J.

      George S. Scnoyer and John Fay, for plaintiff and appellee. Wm. B. Spencer, curator ad hoc for one of the appellants, and attorney for the other.
   Howell, J.

A motion is made to dismiss this appeal on the ground that the motion and order for appeal were made and granted on behalf of some ninety non-resident parties represented by the curator ad hoe, and only one had executed bond, and that the1 appeal is taken by the said one party and one resident, each of whom has furnished a bond.. and the court can not disturb the judgment as to said appellants and leave it in force as to all the others, the effect of which judgment being to annul certain bonds issued by the police jury of Concordia, and they must be valid in whole or invalid in whole.

The fact that only one of the non-resident parties executed an appeal bond under an order in favor of all, can not invalidate the appeal taken by him. Those who are not appellants are appellees and the appellant has the right to prosecute his appeal which is regularly taken, although his co-defendants may acquiesce in the judgment. Nor is it impossible to declare the judgment null or inoperative as to the two appellants and leave it undisturbed as to the others against whom it is rendered. One judgment debtor has the right to be relieved from an erroneous judgment, although his co-debtors in the judgment do not see proper to complain. The non-action of one does not prevent another from acting.

The motion to dismiss must be refused.

The plaintiff, a taxpayer in the parish of Concordia, injoined the police jury of said parish from levying any further tax on his property to pay any interest or principal of certain bonds, also the tax collector from collecting the tax already levied upon his property for such purpose, and the parish treasurer from paying the interest or principal of said bonds, and he prayed that said bonds be declared null, contradictorily with said officers and the bondholders on various grounds. He caused the said parties to be cited personallyand through a curator ad hoc appointed to represent the non-resident bondholders.

After hearing the parties, the district judge rendered judgment perpetuating the injunction and annulling the bonds from which one resident and one non-resident bondholder appealed.

The first question presented is an exception to the jurisdiction of the court below ratione materiw, the interest of the plaintiff being less than five hundred dollars. He alleges that his annual parish tax amounts to some four hundred dollars, and a large portion thereof is required to pay the interest, accruing annually on the bonds in question. As to his right to annul or injoin the bonds in this proceeding, he has no greater rights than if he were resisting the payment of his tax, levied to pay the interest on the bonds, and as his whole tax, set forth in his petition, does not exceed five hundred dollars, the district court did not have jurisdiction of his demand.

It is therefore ordered that the judgment appealed from and the proceedings in this suit in the district court, be declared null and the action be dismissed as to the appellants. Costs in both courts to be paid by appellees.

Rehearing refused.


author: Taliaferro, J. Taliaferro, J.

text:
    No. 4770.
    Kendig & Co. v. City of New Orleans.
    The permission to erect a platform scales with a covering at the coal landing in the Second District, city of ÜNew Orleans, was granted to the plaintiffs by resolution of the City Council on the eighteenth of June, 1872, provided “ that this permission be revocable at the pleasure of the council.” The plaintiffs pray for an injunction to prevent the city from removing the platform and covering erected over it, and also sue for damages: After the trial in the court below, and after an appeal had been taken and the record filed in this court, the City Council, on the twenty-ninth of July, 1873, passed an ordinance revoking the permission granted to plaintiffs.
    The judgment of the court a, qua making the injunction perpetual is affirmed, with the proviso and understanding that said injunction must be treated and considered as resting alone upon the state of facts existing at the trial of the cause in the court below, and without prejudice to the city to set up a claim to the quiet and undisturbod possession of the place in controversy under any ordinance revoking the permit granted to plaintiffs.
    Appeal from tlie Superior District Court, parish of Orleans. HawIcins, J.

      JBentinele Fgan and Fellows & Mills, for plaintiffs and appellees. George 8. Lacey, City Attorney, for defendant and appellant.
   Taliaferro, J.

The defendant in this ease appeals from a judgment of the court a qua perpetuating an injunction taken by the plaintiffs, restraining the city from preventing and obstructing them in the pursuit of their business as dealers in coal, at a coal boat landing opposite the United States Mint, in the lower portion of the city of New Orleans.

The plaintiffs alleged in their petition that they had, by permission of the city authorities, erected a platform scales with a covering, for the purpose of weighing their coal when landed, and gone to large expense in that -work and in removing sunken piles and other obstructions at the landing in order to render the landing of coal boats at that point safe and convenient. That notwithstanding the permission granted to them for carrying on their business in that locality, the city authorities had formally notified them to remove their coal barges, etc., from the said landing within twenty-four hours, and threatened, in case the order was not executed, to remove them at the plaintiffs’ risk and expense. An injunction was prayed'for and obtained, the plaintiffs praying judgment perpetuating the writ and for six hundred dollars damages.

The plaintiffs had judgment perpetuating the injunction and the city-has appealed.

The permission to erect their platform scales at the coal landing in the Second District, was granted to the plaintiffs by resolution of the City Council on the eighteenth of June, 1872, in the following terms :

“No. 1590. Resolved by the Council of the city of New Orleans, That permission is hereby given to Kendig & Co. to erect, on the coal landing in the Second District, a platform scales with a covering for the purpose of weighing coal; provided, that this permission is revocable at the pleasure of the Council.”

On the twenty-ninth of July, 1873, a repealing resolution was passed in the following terms :

“ Resolved, That ordinance No. 1590, Administration Series, granting permission to Kendig & Co. to erect platform scales on the coal landing in the Second District, for the purpose of weighing coal, is hereby repealed.”

It further appears by a city ordinance passed July 6,1866, that “two hundred feet from Esplanade street up ” was set apart “ as a coal boat landing during the pleasure of the Council.”

The frail tenure by which Kendig & Co. set up a right to occupy the coal landing in question, it is obvious, must give way to the wants and covenience of the public and the superior right of the City Council to control and regulate the wharves and landings of the city in the interests of the public. Kendig & Co. had simply a permissive right to occupy a space at the coal boat landing in the Second District temporarily, until the city authorities deemed it proper to make some other disposition of the space appropriated by the ordinance of June, 1866, for the landing of coal boats — the appropriation of “two hundred feet from Esplanade street up ” for a coal boat landing, being expressly revocable at the will of the City Council. The plaintiffs accepted the privilege of erecting their platform scales within a space which the .City Council could at any moment appropriate to some other use than that of a coal boat landing, and they accepted the gratuitous favor of conducting their business there, the permission being “revocable at the will of the Council.” The condition then of the plaintiffs was but little better than that of a poor pensioner on the bounties of an hour.

When the City Council decided to build a wharf there, and entered into a contract with undertakers to perform the work and notified the plaintiffs to remove their boats, etc., which formed an impediment to the prosecution of the work contracted for, it was with but little grace that the plaintiffs set up a claim to continue their possession and to raise the question of the city’s right to build a wharf at the coal boat landing, and to go into the inquiry also of the expediency and even of the practicability of the work. We think the judgment of the lower court erroneous and that it should be set aside.

It is therefore ordered that the judgment of the court a qua be annulled and set aside. It is further ordered that the injunc.ionbe dissolved and that the defendant have judgment in its favor, the plaintiffs and appellees paying costs in both courts.

On Rehearing.

Taliaferro, J.

We find on reviewing this case that our decree was rendered upon insufficient evidence and should be reversed. It is therefore ordered that the former decree rendered be avoided and set aside, and it is now ordered that the judgment of the district court be affirmed, with the proviso and understanding, that the 'injunction rendered perpetual by that judgment be treated and considered as resting alone upon the state of facts existing at the trial of the cause in the court a qua, and without prejudice to the city to set up a claim to the quiet and undisturbed possession of the place in controversy under any ordinance revoking the permit granted to Kendig & Co. The appellees paying costs of this appeal.