author: Wyly, J.

text:
    No. 3284.
    Cohen & Wilson v. George W. Avery et als.
    Plaintiffs, judgment creditors of Canale, caused their execution to "bo levied on certain movables. Mora injoined the sale, claiming to be the owner of the property seized. The injunction was dissolved in the court below, and the judgment was affirmed in this court with twenty per cent, damages against the principal and surety in solido. Ponding the appeal, the sheriff improperly released the seizure, and ■ Mora sold the property at auction.
    Plaintiffs bring this suit for damages resulting from the illegal release of the seizure by the sheriff and from the improper injunction by Mora, and pray judgment against them in solido for the amount of their judgment against Canale, which they failed to realize by reason of the illegal acts of the sheriff and Mora. The sheriff calls in warranty Mora and the sureties on his injunction bond.
    It is not possible to discover what obligation Mora and his surety have contracted towards the plaintiffs. This suit is not on the injunction bond. The injunction was dissolved, and with damages granted to plaintiffs against the principal and surety in solido. The illegal release by the sheriff accrued subsequently to the injunction, and did not result necessarily from the exercise of that writ. That Mora disposed of a judgment debtor’s property, after it had been released from seizure, did not create a legal obligation against him in favor of the judgment creditor of the party whose property he had disposed of.
    'There is also no legal obligation to be enforced under the call in warranty. The principal and surety on the injunction bond did not contract to warrant the sheriff against the consequences oí his own illegal acts.
    Appeal from the Fifth District Court, parish of Orleans. Beaumont, J.

      Hornor & Benedict, for plaintiffs and appellees. Sambola <6 JDucros, for Mora and his surety, defendants and appellants. William JR. Whitaker, for Avery, the sheriff.
   Wyly, J.

The plaintiffs, judgment creditors of Joseph Canale for $941 85, caused their execution to be levied on the stock and movables contained in store No. 50 Royal street; thereupon Juan Garcia y Mora injoined the sale, claiming to be the owner of the property seized. The injunction was dissolved, and on appeal the judgment was affirmed by this court with twenty per cent, damages in sólido against the principal and surety on the injunction bond. 22 An. 417. In the meantime, that is, pending the injunction, Avery, the sheriff, improperly released the seizure, and Mora sold the property at auction.

After the decision of this court, the plaintiffs instructed the sheriff to proceed with the sale of the property which had been improperly injoined by Mora.

Finding, howeyer, that the sheriff had improperly released the seizure of the property, which was sufficient to pay their debt, and that Canale had disappeared without leaving any property to be seized under execution, the plaintiffs brought this suit for damages resulting from the illegal release of the seizure by the sheriff and from the improper injunction by Mora, and prayed judgment against them insólido for the amount of their judgment against Canale, $941 85, which sum they failed to realize by reason of the illegal acts of said Avery, sheriff, and Mora.

Avery called in warranty Mora and the surety on his injunction bond, Jose Garcia y Boros. The court gave judgment for the amount-claimed against Avery and Mora, and also gave Avery judgment in warranty for like amount against Mora & Boros. From this judgmentMora & Boros have appealed. Avery did not appeal.

We fail to perceive any obligation existing between the appellants and the appellees. The suit is not on the injunction bond. The injunction was dissolved, and this court condemned the principal and the surety on that bond in solido to pay the plaintiffs twenty per cent, damages on the amount of the writ injoined. 22 An. 417.

The immediate cause of the damage complained of was the illegal-release of the seizure by the sheriff pending the injunction. For this loss the sheriff and the sureties on his bond might be held liable, because it resulted from a dereliction of duty by that officer. This-illegal release was an event occurring subsequent to the injunction, and did not result necessarily from the exercise of that writ. Now,, whether the property after the release was disposed of by Canale orMora is immaterial. After the release it was Canale’s property, and he might legally dispose of it or permit Mora to do so. That Mora, disposed of a judgment debtor’s property after it had been released from seizure, did not create a legal obligation against him in favor of the judgment creditor of the party whose property he had disposed of. Legal obligations do not arise in that way.

We also fail to perceive any legal obligation to be enforced under-the call in warranty. The principal and surety on the injunction bond did not contract to warrant the sheriff against the consequences of his-own illegal acts. The injunction in no manner compelled him to release the seizure of the property.

We think the judgment against the appellants should be reversed.

It is therefore ordered that the judgment of the plaintiffs against the defendant Mora and the judgment in warranty of the defendant Avery against Mora & Boros bp annulled, and it is now ordered that there be judgment in favor of the appellants, appellees paying costs of appeal.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 3307.
    Baker B. Pegram v. John B. Cooper.
    On the trial of this case the defendant offered in evidence a written instrument to show tho contract entered into between the parties, and proposed to prove by witnesses then present that the plaintiff had failed on his part to comply with the written agreement. The judge a quo erred in refusing to admit this evidence. It was incumbent upon the defendant, under the allegations of his answer, to prove the alleged failure of consideration, and he was entitled to the benefit of any logal evidence in his power to establish said allegations.
    Appeal from the Sixth District Court, parish of Orleans. Oooley, J.

      JET. I[. Bryan, Jr., for plaintiff and appellee. Oase & Bouse, for defendant and appellant.
   Taliaferro, J.

The defendant is sued on several promissory notes amounting to $1000. The defendant pleaded failure of consideration. The plaintiff had judgment and defendant appealed.

A bill of exceptions taken by the defendant during the trial of the case in the court below will first be considered.

The plaintiff and defendant were formerly partners in business in New Orleans, under the name and style of John B. Cooper & Co. It-seems that their business was to attend upon the levee and landing, to-receiving cargoes of merchandise of various kinds for other merchants, and having the goods taken care of and delivered. It seems further that the plaintiff was the more prominent partner, and wielded a strong influence among their employes. Upon the dissolution of partnership a written instrument was signed in duplicate, by which it was agreed that in consideration for the plaintiff’s interest in their partnership, and for the further'consideration of the plaintiff’s using his influence to retain and secure customers and patrons for the benefit of the defendant, who intended to follow the same business in which the partnership had been engaged, the defendant agreed to pay the sum for which the notes were executed.

On the trial of the case the defendant offered in evidence the written instrument to show the contract between the parties, and proposed to prove by witnesses then present that the plaintiff had failed on his part to comply with the written agreement. The judge a quo refused to admit the evidence offered, and the defendant excepted and reserved a bill.

We think the evidence should have been admitted. It was incumbent upon the defendant, under the allegations of his answer, to prove the alleged failure of consideration, and he was entitled to the benefit of any legal evidence in his power to establish the allegation. The case must be remanded for that purpose.

It is therefore ordered that the judgment appealed from be annulled and set aside. It is further ordered that this case be remanded to the court below with instructions to admit the evidence offered by the defendant, and further to be proceeded with according to law, the plaintiff and appellee paying costs of this appeal.

Eehearing refused.


text:
    No. 4892.
    Gabrielle Correjolles v. Succession of Louis Foucher.
    only question presented in this suit was decided in the case of Marquez v. the city of New Orleans, 13 An. 320. The court held that the middle ground of Claiborne street belonged to the city as a locus publicus, and that the city was bound to bear one-half of the expense of constructing a road on the north side of Claiborne street, the entire expense of which it was sought to impose upon the proprietors on the north side. That case and the one at bar seem to be identical.
    Appeal from the Second District Court, parish of Orleans, lissot, J.

      Alfred Philips, for plaintiff and appellant. JS. Bermudez, for defendant and appellee.
   Taliaferro, J.

On the third of February, 1869, the plaintiff entered into a contract with the police jury of the parish of Jefferson, left bank, to build a shell road on Nayades street (now St. Charles street), from the upper boundary of the city of Carrollton, on the north side of that street, for a fixed price. This contract was entered into under the authority of an act of the Legislature passed in 1868, authorizing the police jury of the parish of Jefferson to order the making of a shell road, or Nicolson pavement. The work having been performed by the contractor, the bills against thewarious owners of property fronting on the street, were made out by the proper parish officers and delivered to the contractor for collection.

Among the proprietors owning property on this street was the late Louis Foucher, Marquis de Circé. His property is situated on the south side of St. Charles street, and the shell road, as we have seen, was constructed on the north side of that street. The payment of the plaintiff’s bill is resisted on the plea that tbe middle ground of the street, which is used by the New Orleans and Carrollton Railroad Company as a train way, is either the property of the railroad or of the public, and, in either case, is bound to sustain its portion of the expense of shelling the road. The defendant denies that his lands, lying south of the street, are bound for any part of the taxes. He further contends that the act of the Legislature of 1868, authorizing the making of a shell road, is unconstitutional for the reason that the second object of the act is not expressed in its title.

Judgment was rendered for the defendant and the plaintiff has appealed.

It seems that the only question in which the defendant is concerned, presented in this case, was decided in the case of Marquez v. the city of New Orleans, 13 An. 320. In that case the court held that the middle ground of Claiborne street belonged to the city as a locus pub-liens, and that the city was bound to bear one-half the expense of constructing a road on the north side of Claiborne street, the entire expense of which it was sought to impose upon the proprietors on the north side. That case and the one at bar seem to be identical. With that view of the case the judge a quo decided in favor of the defendant, and we think correctly. The plea of the unconsBitutionality of the law is without weight.

It is therefore ordered that the judgment of the district court be affirmed with costs.


author: Howell, J.

text:
    No. 5051.
    T. A. Dahlgreen v. Stephen Duncan et als.
    The possessory action is not the mode to test the right to enforce amortgage or the regularity and validity of the proceedings in the execution of judgments. To recognize the notion of plaintiff in this instance would give to every third possessor of mortgaged property the right to obtain and hold possession of such property against and in despite of the legal proceedings by the mortgage creditor to enforce his claim.
    The law has provided the remedy for the protection of the rights of a third possessor, but it is not the possessory action.
    Appeal from the Thirteenth Judicial District Court, parish of Tensas. Hough, J.

      Samuel B. & O. D. Walker and Drake & Garrett, for plaintiff and appellee. William B. Spencer and T. B. Farrar, for defendants and appellants.
   Howell, J.

This is a possessory action, based on the allegations that plaintiff had been in possession, as owner, of a certain plantation for more than a year, when the sheriff of the parish, by virtue of six writs of seizure and sale, issued by defendants on judgments obtained by them against' Charles G. Dahlgreen, disturbed his possession by seizing said plantation, advertising, and selling it to the defendants.

One of the grounds of the defense is, that whatever possession the plaintiff had was legally’terminated and ended by the seizure and sale of the property, under the precedent and superior rights of the defendants, and that the seizure and sale under defendants’ mortgage, which contained the pact de non alienando, was not a disturbance under the law, and gave no right to the possessory action.

This position seems to us to be correct in law. The possessory action is not the mode to test the right to enforce a mortgage or the regularity and validity of the proceedings in the execution of judgments. To recognize this action of the plaintiff, would give to every third possessor of mortgage property the right to obtain and hold possession of such property against, and in despite of, the legal proceedings by the mortgage creditor to enforce his claim. The law has provided the remedy for the protection of the rights of a third possessor, but it is not the possessory action.

It is therefore ordered that, the judgment appealed from be reversed and that the demand of the plaintiff be rejected with costs in both courts.


text:
    No. 3268.
    The Widow and Heirs of Jean Pardo v. A. A. Pardo.
    The widow and heirs of Jean Pardo claim a house and lot, formerly belonging to A. A. Pardor on which the deceased had a mortgage, and which, in 1858, he bought at an auction sale ordered by the Second District Court under insolvent proceedings in consequence of the bankruptcy of A. A. Pardo, the defendant in this case, who was, however, permitted by the purchaser to retain possession of the property.
    The defense set up that the price paid for the property was money which the deceased was-owing to defendant, is utterly without foundation.
    The defendant, in the face of the schedule which he filed in bankruptcy as syndic of his creditors, and which is verified by his own oath, can not be heard setting up an account against his brother extending back to 1840, eighteen years previous to his insolvency and which is not mentioned in the schedule. He is estopped from denying the truth of his-oaths and judicial admissions in the insolvent proceedings.
    If the account aforesaid was a valid claim, it should have been put on the schedule as an asset of the insolvent. If he colludod with his brother in suppressing this claim and allowing him to carry off the property as first mortgage creditor, this court will not aid him in seeking to derive a benefit from the fraud.
    Appeal from the Sixth District Court, parish of Orleans. Oooley, J.

      Hays & New, for plaintiffs and appellees. Armand Pitot and PI, Bermudez, for defendant and appellant.
   Wyly, J.

In March, 1858, A. A. Pardo mortgaged his house and lot on Royal street to his brother, Jean Pardo, for $6145 72..

In September following, A. A. Pardo filed bis petition for the surrender of his property under the insolvent laws in the Second District Court, placing on the schedule, verified by his oath, this debt due his brother for $6145 72.

On twenty-seventh November, 1858, the property upon which Jean Pardo had a mortgage was sold by order of the Second District Court under the insolvent proceedings, and he became the purchaser for the price of $5600.

In February, 1859, the account of A. A. Pardo, syndic of his creditors, was homologated by the Second District Court. On this account he placed Jean Pardo as first mortgage creditor, entitled to receive assets amounting to $5079 15. After the death of Jean Pardo, his widow and heirs brought this suit for the property acquired by him at the adjudication under the insolvent proceedings, A. A. Pardo having retained possession since said sale. The answer admits the purchase in the name of Jean Pardo, but avers that said purchase was made for the benefit of defendant, and that the price was paid by the money which the deceased became indebted for to the defendant, and that the title was to be transferred to him upon settlement of their affairs. The defendant sets up, as the basis of an equitable demand against his deceased brother, Jean Pardo, a claim of $25,000, consisting mainly of items or charges for the board and lodging of various members of his brother’s family during a period of over a quarter of a century. He alleges he did not as a merchant keep an account current with his brother, and if he had not become poor after helping his brother to a better fortune, he might not and he would not have demanded settlement ; but being obliged to go into insolvency, although he did not consider his brother as a regular debtor, whose account was to be surrendered, he expected his brother, as he had helped him out before and entertained his family for so many years, to do something for his (defendant’s) minor children, by purchasing the property in which he lived and passing the title to him afterwards.

Respondent further alleges that his account against Jean Pardo was prescribed as far as creditors could be interested therein, but the debt was a just one, exceeding by thousands of dollars the paltry price of $4600 paid for the house, and it was an act of justice that the deceased should do for his brother, in a small proportion, what that brother had done for him.

The court gave judgment for the plaintiffs, and the defendant appeals.

In this case we see no legal ground upon which the defendant can succeed. He is estopped from denying the truth of his oaths and judicial admissions in the insolvent proceedings. He can not be heard to deny that his brother was his mortgage creditor for $6145 72, and that the consideration of the purchase of the property in controversy was part of the sum accorded by him as syndic to Jean Pardo as first-mortgage creditor.

The defense, then, that the price paid for the property was money which the deceased was owing the defendant, is utterly without foundation. In the face of the schedule filed by the defendant and verified by his oath, he can not be heard setting up an account against his brother extending back to 1840, eighteen years prior to his. insolvency. If that account was a valid claim it should have been put on the schedule as an asset of the insolvent. If he colluded with his brother in suppressing this claim and allowing him to carry off the-property as first mortgage creditor, this court will not aid him in seeking to derive a benefit from the fraud.

The defense is utterly without merit.

Judgment affirmed.


text:
    No. 5095.
    John Gordon, Administrator, v. Fahrenberg & Penn.
    Where, in a oontest for the ownership of laafls, proof was admitted as secondary evidence, tlie destruction of tlio primary evidence being shown, and the court a qua held that the* objections went rather to the effect than to the admissibility, the ruling was correct.
    The evidence, however, fails to identify sufficiently the land in dispute as the land embraced in the destroyed deed, but in the capacity of one of the heirs of John Butli, who, it is. admitted, entered the land at the Land Office at Monroe, Jonn K. Buth, or his succession, represented by the plaintiff, can maintain this petitory action against the defendants-who are possessors without title.
    The constructions made by Penn, one of the defendants, being partly on plaintiffs land and partly on defendant’s, plaintiff can not keep them by paying defendant the costs of construction, pursuant to article 508 of the Bevised Code, because the building is not entirely on plaintiff’s soil. The defendant is not entitled to a judgment in reconvention for the* value of his constructions, but must be allowed to remove that part of them erected by him and resting on the soil of the plaintiff.
    Appeal from the Thirteenth Judicial District Court, parish of Tensas. Sough, J.

      Kennard, Some & Prentiss, S. B. Steele,. Brake & Garrett and Beeves Lewis, for plaintiff and appellee. L. V. Beeves and W. B. Spencer, for defendants and appellants.
   Wyly, J.

The defendants in this petitory action appeal from the judgment decreeing the plaintiff, the administrator of the succession of John K. Euth, to be the owner of the four hundred and fifty-six acres of land described in the petition, together with a sawmill, engine and fifty thousand feet of lumber, subject however to D. B. Penn’s reconventional demand for improvements to the extent of $1500, which is to-be paid before eviction.

It is proved that John K. Euth had a deed from his father, John Euth, for some four or five hundred acres back of the Blackwater plantation owned by the defendant, D. B. Penn, and that this deed was destroyed by fire. No advertisement of the destruction of this deed was necessary in order that the plaintiff might prove its contents. Beebe v. McNeil, 8 An 130. See also 15 An. 463.

The defendants objected to the evidence of Mrs. Fenwick in regard to the destroyed deed, on the ground that on being preliminarily cross-examined by them she stated that she did not recollect the date of the deed nor the price or terms, nor the description of the lands as embraced in said deed. They further objected to the question asked said witness, whether said deed purported to be an absolute conveyance of said property. They also objected to the question propounded to Mrs. Margaret S. Ruth, whether John K. Ruth had a title to the land in controversy. The defendants further objected to the introduction of the inventory of the succession of John K. Ruth on the ground that it was made only a short time before the institution of this suit, and that it was only in fact the declarations of the notary on the statements of others. All this proof was admitted as secondary evidence, the destruction of the primary evidence being shown; and the court held that the objections went rather to the effect than to the admissibility of said evidence. We think the ruling of the court was correct.

The land in controversy was entered at the land office by John Ruth, the father of John K. Ruth, who died before his son. That he conveyed to John K. Ruth four hundred and fifty-six acres back of the Blackwater plantation, there is no doubt. But the evidence fails to identify sufficiently the land in dispute as the land embraced in the destroyed deed. As one of the heirs, however, of John Ruth, who, it is admitted, entered the land at the land office at Monroe, John K. Ruth or his succession, represented by the plaintiff, can maintain this petitory action against the defendants, who are possessors without title, the title set up by D. B. Penn not embracing the land in controversy. As against a mere possessor without title, a joint heir or a joint owner can maintain a petitory action.” Compton v. Mathews, 3 La. 128.

The judgment for the land in favor of plaintiff is correct. There is error, however, in regard to the fifty thousand feet of lumber. Plaintiff shows no title to this; nor does he show that the timber out of which it was sawed was cut from the land in controversy. There is also error in regard to the judgment for $1500 in reconvention for the value of improvements constructed by the defendant, D. B. Penn. The sawmill was not constructed entirely on the soil of the plaintiff j it is partly on the land of the plaintiff and partly on .the land of the defendant, D. B. Penn. Therefore the plaintiff can not keep the sawmill and fixtures by paying the defendant the costs of construction, pursuant to article 508 of the Revised Code, because the construction is not entirely on plaintiff’s soil.

There being no express law applicable to a case like this, we think it equitable (Revised Code, article 21), to allow the defendant, D. B. Penn, to remove that part of the construction erected by him resting on the soil of the plaintiff.

It is therefore ordered that the iudgment herein be amended by striking out that part decreeing the plaintiff the owner of the fifty thousand feet of lumber, and also by striking out the judgment in reconvention, reserving to the defendant, D. B. Penn, the right to remove that part of the sawmill and appurtenances constructed by him, resting on the soil of the plaintiff, and as thus amended it is ordered that the judgment be affirmed, appellee paying costs of appeal.


author: Morgan, J. Morgan, J.

text:
    No. 3355 and 3088.
    Patrick Higgins v. C. C. Haley.
    The plaintiff moved, for a new trial in the court below on the ground that, during the recosa of the court, the jury was illegally and improperly influenced by the defendant and his accomplices to render a verdict in favor of said defendant, notwithstanding the judge had warned the jury that they were to hold no conversation with any person upon the merits of the case before them. On the trial of this motion, plaintiff attempted to prove his allegations by witnesses, which he was not permitted to do. The judge a quo erred in refusing to hear the testimony offered.
    Appeal from tbe Fifth District Court, parish of Orleans. Leaumont, J. Jury trial.

      Hays & New, for plaintiff and appellant. H. 0. Miller and John Livingston, for defendant and appellee.
   Morgan, J.

These two different records- form in reality but one case. Plaintiff moved the court for a new trial on the ground that on the day of trial, after the court had adjourned at three o’clock to meet at six o’clock of the same day, notwithstanding the judge warned the jury that they were to hold no conversation with any person upon the merits of the case before them, a portion of the jury did hold conversation with the defendant, and with his agents and instruments upon the merits of the cause, and were illegally and improperly influenced by the defendant and his agents and accomplices to render a verdict in favor of the defendant; that improper influences were brought to bear upon the jury, or a portion thereof, during the said recess; and he swore that he had received this information from one Daniel Haley; all of which he offered to prove by witnesses, and all of which he was prohibited from doing by the court.

The judge erred. His admonitions were to be obeyed. If it was a fact that the jury were guilty of misconduct, and that their verdict was improperly obtained, it should have been set aside, and this was a fact which the plaintiff had a right to establish by evidence.

It is therefore ordered, adjudged and decreed that the judgments in these consolidated cases be avoided, annulled and reversed, and that they be remanded to be tried de novo, appellees to pay costs,of appeal.

On Rehearing.

Morgan, J.

In our former judgment we ordered the case to be remanded to be tried de novo. This was wrong.

Plaintiff in the court below moved for a new trial on the ground that the jury had been improperly influenced. On the trial of his motion he offered to prove the fact alleged by witnesses. The court refused to hear them, and he reserved his bill. The district judge ■erred. Plaintiff should have been heard. As the case now stands before us, we can only pass upon the correctness of the ruling of the judge with regard to his refusal to hear testimony as to the improper ■conduct of the jury.

It is therefore ordered, adjudged and decreed that our former judgment be set aside; and it is further ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed and the case remanded, and that the district judge be instructed to hear the testimony offered by plaintiff on his motion for a new trial, the costs of appeal to be paid by defendant.


author: Morgan, J.

text:
    No. 3285.
    William J. Taylor v. Kehlor, Updike & Co.
    ‘This case originating in the dismissal of the employ© by the employer is governed by art. 2749 of the Civil Code.
    Appeal from the Sixth District Court, parish of Orleans. Oooley, J..

      Gilmore & Sons, for plaintiff and appellant. J. W. Thomas, for defendants and appellees.
   Morgan, J.

Defendants made a contract in writing by which they •employed the plaintiff for one year to act as their salesman, the •engagement to commence from the first of August, 1869. After a few months’ service the plaintiff was discharged, and without cause. His case is governed by the art. 2749 of the Civil Code. See the case of Budinski v. Bidwell et als., just decided.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that the plaintiff have and recover judgment against the defendants for sixteen hundred dollars, with legal interest from judicial demand, and costs of both courts, with'privilege upon the property attached.


text:
    No. 5149.
    Mrs. A. G. O’Hara, Natural Tutrix, v. J. N. Folwell.
    The proceeding sought to be injoined in this case was predicated on the mortgage note of-Joseph O’Hara, deceased, and in order to make a valid sale of the mortgaged property, the legal representative of his succession should have been made a party to said proceeding.
    Hotices served upon the plaintiff before she was confirmed as natural tutrix, and as such administering said succession, were not sufficient. The proceeding taken against her before her appointment, was in no sense a proceeding had contradictorily with the succession of O’Hara, the mortgage debtor.
    This court can not assent to the proposition set up in defense, that the notices were sufficient, because subsequently to the mortgage, O’Hara donated the mortgaged property to the-plaintiff, his wife, and that the succession of O’Hara, having no interest in the mortgaged property, was not a necessary party.
    The proceeding was on the mortgage note of O’Hara, and therefore the legal representative-of his succession was a necessary party to any suit or other proceeding on that note.
    Besides, if it were true that the property passed into third hands subsequently to the mortgage, no proceeding by executory process could be had, because in the act of mortgage-there was not the non alienando clause.
    The plaintiff, however, can not disavow her judicial averment that the mortgaged property belongs to the succession of her deceased husband.
    Appeal from the Fifth District Court, parish of Orleans. Oullom, J.

      JR. O. Elliott, for plaintiff and appellant. Edward Phillips, for defendant and appellee.
   Wyly, J.

The plaintiff appeals from the judgment dissolving her injunction restraining the executory proceedings sued out by the defendant J. N. Folwell on the mortgage note of $550, made by Joseph O’Hara, deceased.

The ground for the injunction is, there was no sufficient notice of the order of seizure and sale, nor notice of seizure; because at the time the said notices were served upon her, she had not yet qualified as natural tutrix, and as such administering the succession of Joseph O’Hara.

The notice of the granting of the order of seizure and sale was. served on ninth September, 1873, and the notice of seizure of the mortgaged property was served on thirteenth of said month. Plaintiff" was not confirmed as natural tutrix till fifteenth January, 1874.

The proceeding was on the mortgage note of Joseph O’Hara, deceased, and in order to make a valid sale of the mortgaged property,, the legal representative of his succession should have been made a. party to said proceeding. Notices served upon the plaintiff before she was confirmed as natural tutrix, and as such administering said succession, were not sufficient. The proceeding taken against her before her appointment was in no sense a proceeding had contradictorily with the succession of O’Hara, the mortgage debtor.

The defendant, Folwell, however, contends that the notices were sufficient, because subsequent to the mortgage O’Hara donated the mortgaged property to the plaintiff, Mrs. O’Hara, his wife, and the succession.of O’Hara having no interest in the mortgaged property, was not a necessary party. To this proposition we can not assent. The proceeding was on the mortgage note of O’Hara, and the legal representative of his succession was a necessary party to any suit or other proceeding on that note. Besides, if it be true the property passed into third hands subsequent to the mortgage, no proceeding by executory process can be had, because in the act of mortgage there is not-the non alienando clause. The plaintiff, however, can not disavow her judicial averment that the mortgaged property belongs to the succession of her deceased husband.

It is therefore ordered that the judgment appealed from be annulled,, and it is now ordered that the injunction herein be perpetuated, with costs of both courts. .


author: Ludeling, C. J. Taliaferro, J. Wyly, J.

text:
    No. 2978.
    William O’Hern v. A. B. Gouldy et als.
    Where the parties who claimed liens under the law granting a privilege to mechanics being jggff cited, to enable them to establish their claims and receive their pro rata of the amount £££. deposited, appeared and contested with the plaintiff, it matters not whether some of the parties received a judgment for the whole of their claims or not. An appeal will lie from the judgment.
    The plaintiff employed defendant to construct a house for him according to contract. Defendant, before completing the work abandoned it and left the State. Having put defendant in mora, plaintiff employed other workmen to complete the job at the expense of defendant. There are various claims by material men for materials furnished to the contractor and used in erecting plaintiff’s building, who has instituted this action to-avoid a multiplicity of suits and bring together the various claimants in concursa for the purpose of having their rights and privileges adjusted, and to have the Bum of §527. deposited by him in court distributed pro rata among the several parties — said amount being the balance due, as he represents, to the defendant under the contract, and which should go pro rata towards paying the material men their claims, for which he alleges that defendant is bound.
    This court is satisfied that the claims of certain of the material men in whose favor judgment was given against O’Hern personally, were debts contracted by Gouldy, against whom the bills were made out ,• that credit was given for the materials to the contractor Gouldy, and not to O’Hern, the owner of the lot. Therefore the alleged promise of plaintiff to pay these claims can not be proved by parol. There is no ground for a personal judgment against the plaintiff for the amount of those claims.
    Appeal from the Seventh District Court, parish of Orleans. Oollens',. J.

      Ootton & Levy, for plaintiff and appellant. O. T. Rufft, R. Zb Ogden, O. JE. Schmidt, Randolph, Singleton <& Browne, for appellees.
   On Motion to Dismiss.

Ludeling, C. J.

In January, 1868, W. O’Hern employed A. B'. Gouldy to erect a frame house for him. Gouldy commenced the building and worked until the second installment was paid when he abandoned the work. O’Hern, having put him in default, completed the building. 'O’Hern then deposited in court $527, which he alleged was the balance ■due on the contract with Gouldy, and he cited the parties, who claimed liens under the law granting a privilege to mechanics, to enable them to establish their claims and receive their pro rata of the amount deposited. The parties cited appeared and contested with O’Hern, and it matters not whether some of the parties received a judgment for the whole of their claims or not, an appeal will lie from the judgment. 16 An. 252; '15 An. 662; 13 An. 592.

The motion to dismiss is refused.

On the Merits.

Taliaferro, J.

The plaintiff in January, 1868, engaged the defendant, a builder, to construct a house for him on Camp street, in New Orleans, according to a plan and specifications set forth in a written contract. Defendant, however, before completing the work abandoned it and left the State. The plaintiff having put him in mora employed other workmen to complete the job at the expense of defendant. Various suits were instituted against the plaintiff in the Third District Court by material men for material of various kinds furnished by them and used in erecting the plaintiff’s building.

The plaintiff it seems instituted this action in the Seventh District Court, as his petition declares, in order to avoid a multiplicity of suits and bring the various claimants into a concursa, for the purpose of having their rights and privileges adjusted, and to have the sum of >$527, deposited by him in court, distributed pro rata among these several parties, that amount being, as he represented, the balance due by him to the defendant Gouldy under the contract, and which should go pro tanto towards paying the material men their claims, for which ,he alleged Gouldy was bound. An order was rendered making the transfer of the various suits from the Third to the Second District Court, and citations were issued to the several parties thus made defendants, who filed separate answers, some averring that the plaintiff .himself was bound to them under special agreements; others that the plaintiff and defendant were bound to them in solido, and others claimed only privileges on the fund deposited.

A mass of testimony was taken from which the district judge was satisfied that three of the defendants, viz: Mason & Co., F. Zimmerman and G. W. Lyman, had made good their allegations that the plaintiff had bound himself specially for their debts. Judgment was ■accordingly rendered in their favor, decreeing that the plaintiff should pay respectively to Mason & Co. $525 81, with legal interest from the twenty-fifth April, 1868 ; to Zimmerman $109, with like interest from the same time; and to Lyman $238, with like interest from the same time. The snm deposited by plaintiff was distributed among the other defendants on the basis of twenty-five per cent, of their respective claims. From this judgment the plaintiff appealed.

We think there is error in the judgment. The creditors, to whom it is shown that O’Hern is personally bound, should have been first required to participate pro rata with all the other parties in the fund presented by O’Hern, as the sum owing by him to Gouldy, and to have had judgment against O’Hern for the remainder. The judgment must be corrected in this respect.

It is therefore ordered that in so far as the judgment decrees that the several creditors — Mason & Co., Zimmerman and Lyman — shall recover the entire amount of their respective claims from O’Hern, be annulled, avoided and set aside ; and it is now ordered that said creditors be required first to participate pro rata with all the other creditors whose names and the amount of whose claims respectively are set forth in the judgment of the lower court, in the aforesaid fund, on the basis of twenty-five per cent, of their respective claims as fixed by the said judgment, and that they have each judgment personally against O’Hern for the remainder of their claims respectively, with interest on those remainders as specified in the judgment of the lower court.

It is further ordered that the said Mason & Co., Zimmerman and Lyman shall pay out of their respective shares, to be received on the1 pro rata distribution, the costs fif clerk and sheriff for petition and citation and service thereof, in like manner as ordered by the lower court against the other creditors; the said plaintiff, O’Hern, to pay the costs of suit, except those herein above-mentioned and referred to; and-as thus modified that the judgment of the district court be affirmed, the appellees paying costs of this appeal.

On Rehearing.

Wyly, J.

On further examination of the evidence in this case we are satisfied that the claim set up by Mason & Co., Zimmerman, Lyman and Covington, are debts contracted by Gouldy, against whom the bills were made out; that credit for the materials was given to the contractor Gouldy, and not to O’Hern, the owner of the lot upon which the building was to be erected. Finding, therefore, that tile debts set up were owing by Gouldy, the promise of plaintiff to pay them can not be proved by parol. Merz v. Labuzan, 23 An. 747; Levy & Dieter v. DuBois, 24 An. 309; Thompson & Barnes v. Pagaud, lately •decided. There is no ground, therefore, for a personal judgment •against the plaintiff for the amount of these claims.

It is therefore ordered that the judgment of this court, rendered in this case on the fifteenth December, 1873,.be amended so as to annul entirely that part of the judgment appealed from, decreeing a personal-judgment against the plaintiff in favor of Mason & Co., Zimmerman, Lyman and Covington, and as thus amended it is ordered that our former decree herein remain undisturbed.


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    No. 4808.
    State ex rel. P. P. Carroll v. Philogene Jorda.
    Til© peremptory exception to tlie right of the relator to maintain this action on the ground that the intrusion act under which this suit is brought is repealed by the special act of 1873, entitled “An Act to regulate proceedings in contestations between persons claiming a judicial office,” approved March 5, 1873, is not well taken.
    There is no conflict between the essential provisions of the two acts; the only points of difference are that the later act is of a less general' application and the proceedings under it of a more summary character. According to the return of both Returning Boards for the election held in November, 1872, the defendant was defeated. It is clear that the defense is without merit.
    Appeal from tbe Second Judicial District Court, parish of St. Bernard. Pardee, J.

      KeKay, District Attorney, for plaintiff and appellee. Bambola & Pueros, for defendant and appellant.
   Taliaferro, J.

This is a suit brought under the intrusion act on the relation of Carroll, who claims to have been duly elected parish judge of the parish of St. Bernard, at the geiieral election held in November, 1872, and in pursuance thereof to have been duly commissioned to 2)old that office by Acting Governor P. B. S. Pinchback, whose commission he introduces in evidence. He complains that the defendant, .Jorda, has intruded himself into and unlawfully holds and illegally exercises the functions of that office. He prays that Jorda be decreed accordingly an usurper and intruder into the said office, and that the plaintiff be decreed the legal parish judge of the parish of St. Bernard.

The defendant denies generally the allegations of the petition, and avers that he was duly elected to the office in controversy on the fourth •of November, 1872, although the Board of Returning Officers of the •State, by their proclamation of the twenty-fifth of December, 1872, have declared the said Carroll to be the successful candidate. He introduces in evidence a commission issued to him by H. C. Warmoth on the fourth of November, 1872, and his oath of office as parish judge taken on the second day of December following. He also adduces in evidence a suit instituted by himself on the fourteenth of November, 1872, contesting the right of A. G. Thornton to the office of parish judge of the aforesaid parish, alleging that “it was rumored and pretended that A. G. Thornton was the successful candidate with a majority of three votes over him.”

In this court the defendant has filed a peremptory exception to the right of the relator to maintain this action on the ground that the intrusion act, under which this suit is brought, is repealed by the ■special act of 1873, entitled “ An Act to regulate proceedings in contestations between persons claiming a judicial office,” approved March .5, 1873. We think the exception is not well taken. We perceive no eonfliction between the essential provisions of the two acts; the only points of difference are that the later act is of less general application -and the proceedings under it of a more summary character.

It is clear that the defense is without merit. The commission issued to the defendant by Governor Warmoth on the fourth day of November, 1872, before the returns of the general election were made as required by law, before a commission could legally be issued, was a nullity, and conferred upon the defendant no right to the office. The plaintiff holds the legal commission and the lower court properly Tendered its decree in his favor.

It may be noticed that according to the report of both the Returning Boards, the defendant was defeated in the election; the one returning Thornton and the other Carroll, the plaintiff.

Judgment affirmed.


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    No. 5110.
    F. S. Garner, Administrator, v. Watson M. Gay and Sheriff.
    Art. 244G of the Revised Civil Code provides that a contract of sale between husband and wife can take place only in the three cases which it mentions.
    Tn this instance, the husband and wife had no right to contract in the manner attempted, and the mortgage sought to ba enforced by executory process is utterly void.
    The defendant erroneously contends that, as a third holder before the mortgage paper, resulting from this illegal contract, became due, he is not affected by said nullity.
    The act of mortgage with which the notes were identified by the official paraph of the notary, showed on its face that the instrument was a contract between husband and wife, made in contravention of law. The defendant, therefore, took the notes, presumably with a knowledge of the incapacity of the parties to make the contract. Besides, a mortgage is not commercial paper governed by the rule invoked by defendant.
    Appeal from the Thirteenth Judicial District Court, parish of Carroll. Sough, J.

      Montgomery & Selony, for plaintiff and appellant. Sparrow & Montgomery, for defendant and appellee.
   Wyly, J.

The plaintiff, the administrator of the succession of Warren M. Benton, injoins the executory proceeding sued out by the defendant on two mortgage notes executed by the deceased for $4713 .each, on the ground that said notes and mortgage were executed for the benefit of Mrs. Mary Hughes, wife of said Benton, during the marriage, and théy are void because the law prohibits the husband and wife from making contracts of this kind.

The court gave judgment for the defendant dissolving the injunction and ordering the executory process to proceed. The plaintiff' appeals.

It appears that in 1867 Mrs. Benton obtained judgment against her husband, Warren M. Benton, for $9426, with recognition of a tacit mortgage on his property, and also a decree of separation of property. Execution issued on this judgment, and Mrs. Benton bought the greater part of the property of her husband.

Subsequently, to wit: in March 1871, she and her husband entered into a contract whereby she agreed to convey all the property acquired under said judgment to her husband in consideration of the notes and mortgage now soughtto.be enforced. Article 2446 of the Revised Code provides that — “ A contract of sale between husband and wife, can take place only in the three following cases :

Mrst — When one of the spouses makes a transfer of property to> the other, who is judicially separated from him or her, in payment of his or her rights.

Second — When the transfer made by the husband to his wife, even though not separated — has a legitimate cause, as the replacing of her dotal or other effects alienated.

Third — When the wife makes a transfer of property to her husband in payment of a sum promised to him as a dowery; saving, in these-three cases, to the heirs of the contracting parties, their rights, if there exist any indirect advantage.”

We think it is evident that Mrs. Mary Benton and her husband had no right to contract in the manner attempted in this instance, and that the mortgage sought to be enforced by executory process is utterly void.

The defendant, however, contends that as a third holder beiore due-of this mortgage paper, he is not affected by the nullity complained of.

The act of mortgage with which the notes were identified by the-official paraph of the notary, showed on its face that the instrument was a contract between husband and wife, made in contravention of law. The defendant, therefore, took the notes, presumably, with a. knowledge of the incapacity of the parties to make the contract. Besides, a mortgage is not commercial paper, governed by the rule invoked by the defendant.

It is therefore ordered, that the judgment appealed from be annulled, and it is now ordered, that the injunction herein be perpetuate® and that the defendant pay costs of both courts. See Spurlock v. Mainer, 1 An. 302; Heyden v. Nutt, 4 An. 65.


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    No. 4032.
    State of Louisiana v. Frank Carro.
    The objection that the proceeding by information against the defendant was illegal on the ground that it was'violativ© of the fifth article of the Constitution of the United States • which declares — “ That no person shall be held to answer for a eapital or otherwise infamous crime unless on a presentment or indictment of a grand jury,” is not well taken. The provisions of the Constitution of the United States in relation to trials by jury apply only to the Federal courts.
    The charge in the indictment that the defendant did feloniously and violently seize, take and carry away, etc., “the sum of one hundred dollars in paper currency of the United States of America, of the goods, property and chattels of,” etc., is sufficient. It is a substantial compliance with the provisions of the statute. Revised Statutes, section 1061.
    The objection that the name of one C. R. Schaffer is indorsed on the verdict as foreman of the jury, when it does not appear elsewhere that a man of that name served upon the ■ jury, is without weight. The name of C. A. Schaffer appears on the list of jurors who sat on the trial. The discrepancy in the letter of the middle name is clearly a clerical error.
    Appeal from the First District Court, parish of Orleans. Abell, J. Criminal case.

      Simeon Belden, for the State. A. G. Semmes, for defendant and appellant.
   Taliaferro, J.

The defendant appeals from a judgment sentencing him to four years imprisonment at hard labor in the penitentiary for the crime of robbery. The case came up on an assignment of errors. These are alleged to be :

First — Being tried upon an information filed by the District Attorney, on the charge of robbery, a crime deemed infamous in law, the proceeding against him was illegal in this, that it was violative of the fifth article of the Constitution of the United States, which declares that “no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury.”

Second — The charge that defendant violently seized, took and carried away from the person of John Tujuque the sum of one hundred dollars in paper currency of the United States of America, of the goods, property and chattels of the said John Tujuque,” etc., is defective and-void in this, that there is no averment of the value of the currency, because currency per se is not susceptible of larceny under the laws of Louisiana.

Third — The name of one “ Chs. Schafferis indorsed upon the verdict as foreman of the jury, when it does not appear elsewhere that a man of that name served upon the jury.

I. The provisions of the Constitution of the United States relative to-trials by jury applies only to the Federal courts. 2 Kent Com. p. 13.

II. The statute provides in such a case that “ it shall be sufficient to describe such money or bank note simply as money, without specifying any particular coin or bank note, and such .allegation, as far as regards the description of the property, shall be sustained by proof of any amount of coin or any bank note,” etc. The indictment charges that the defendant did feloniously and violently seize, take and carry away, etc., “the sum of one hundred dollars in paper currency of the United States of America, of the goods, property and chattels,” etc. We think this a substantial compliance with the provisions of the statute. Revised Statutes, section 1061.

III. This objection is without weight. The indorsement is “ C. R. Schaffer, foreman.” That name appears upon the list of jurors impanneled to serve at the April term, 1872, the term at which the defendant was tried. The name, C. A. Schaffer, appears upon the list of jurors who sat upon the trial. The discrepancy in the letter of the middle name is clearly a clerical error.

It is ordered that the judgment of the court a qua be affirmed.


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    No. 4933.
    New Orleans Sugar Shed Co. v. H. H. Harris, Tax Collector.
    Tlie capital of the plaintiffs is invested in a sugar shed constructed in a locus publicus, pursuant to a contract with the city of New Orleans. They have two hundred and forty thousand dollars of capital invested in the enterprise j they employ this sum in administering the business of keeping a sugar shed on this locus publicus. Such an investment can not fairly be considered as an investment in real estate within the meaning of act No. 42 of the acts of 1871.
    If the plaintiffs had invested their capital in and become owners of real estate to the amount thereof, it would be manifestly unjust to assess that property and at the same time to tax the sum so invested as capital stock.
    Under the provisions of the act in question intended to exempt property from double taxation, no warrant whatever can be found in support of the pretensions of the plaintiffs in regard to an entire exemption of their property from taxation.
    Appeals from the Superior District Court, parish of Orleans. Hcm-Icrns, J.

      Semmes & Mott, for plaintiff and appellant. Henry Dibble, for defendant and appellee.
   Wyly, J.

The plaintiffs appeal from the judgment dissolving their injunction restraining the defendant from collecting taxes from them, on the ground that their capital, $240,000, is invested in real estate, and therefore can not be taxed as capital stock, pursuant to act No. 42 of the acts of 1871.

The capital of the plaintiffs is invested in a sugar shed constructed on a locus publicus, pursuant to the contract of the city with Fleitas, whose rights the plaintiffs have acquired. They have two hundred and forty thousand dollars of capital invested in the enterprise; they employ this sum in administering the business of keeping a sugar shed on this locuspublieus. Such an investment can not fairly be considered as an investment in real estate within the meaning of the act No. 42 of the acts of 1871. The obvious reason for the'exemption announced in said act is, that capital invested in real estate is liable to taxation, and if it be also included in fhe assessment as capital stock, the incorporated company will be liable to double taxation on the same property. If the plaintiffs had invested their capital and become owners of real estate to the amount thereof, it would be inianifestly unjust to assess that property and at the same time to tax the sum so invested as capital stock.

Under the provisions of the act in question, intended to exempt property from double taxation, we find no warrant whatever in support of the pretensions of the plaintiffs in regard to an entire exemption of their property from taxation.

Judgment affirmed. '


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    No. 4943.
    F. C. Mahan v. E. B. Benton.
    The present case, like that of Ogleshy v. Helm, previously decided, is an injunction suit to restrain proceedings in relation to a sum amounting to just five hundred dollars. It is clear that this court has no jurisdiction.
    Appeal from the Pifth' District Court, parish of Orleans. Oullom,. ■ J.

      Ootion & Levy for plaintiff and appellant. Hays & Hew for defendant and appellee.
   On Motion to Dismiss.

Taliaferro, J.

The grounds for the motion are : First — The record has not been filed within the time of extension granted by the court.

Second — Want of jurisdiction, the amount involved being only five hundred dollars.

This case is not distinguishable' from that of Oglesby v. Helm, decided not long sirice by this court. 26 An. .61.

The present case, like that of Oglesby v. Helm, is an injunction suit to restrain proceedings in relation to a sum amounting to just five hundred dollars. It is clear this court has not jurisdiction.

It is ordered therefore that this suit be dismissed at appellant’s costs. ^

Rehearing refused.


author: Wyly, J. Morgan, J.

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    No. 3112.
    P. Bradley & Co. v. H. N. McCrea.
    This case is like the one of P. Bradley & Co., which precedes and is governed by it.
    Appeal from tile Seventh District Court, parish of Orleans. Gollens-, J.

      JBudd <& Grover, for plaintiffs and appellees., JBentmek Bgan, for defendant and appellant.
   Wyly, J.

This case is like the one of P. Bradley v. Mrs. S. A. Wood-ruff et al., just decided, and for thfe reasons stated therein it is ordered that the judgment appealed from be annulled, and it is now ordered that the sequestration be set aside and the cause be dismissed at plaintiffs’ costs in both courts. C. P. 162.

Morgan, J.

The facts in this case are, in my opinion, different from the one just decided. The suit was instituted on the seventeenth January, 1870. On the twenty-fourth sequestration issued. On hearing a rule to that end, the sequestration was set aside. Defendant excepted to the jurisdiction of the court on the ground that he is a. resident of the parish of Plaquemines. This exception was maintained in so far as a personal judgment was asked for against him.

No appeal was taken from the 'judgment which set aside the sequestration. No appeal was taken from the judgment which dismissed the suit as regards the personal demand. ' There was then neither person nor property before the court, and no one, nor anything, against whom, or upon which, a judgment could be founded. The judgment was therefore improperly rendered.

Upon these grounds I concur in the decree.


author: Taliaeerro, J.

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    No. 4928.
    Widow Anatole Villere v. Succession of Hugues Villere.
    It is well settled that an administrator or executor is without tho power to renounce or waive prescription after it has been acquired in favor of the estate he represents.
    Appeal from tlie Second Judicial District Court, parish of Plaque-mines. Pardee, J.

      McOaleb, for plaintiff and appellant. B. Pugné, for defendant and appellee.
   Taliaeerro, J.

This suit is brought on a promissory note for $10,866 66, with interest at eight per cent, per annum" from June 5, 1865. The defense is prescription and'illegal consideration. There was judgment for the defendant and the plaintiff has appealed.

The note bears date in 1851. There are three credits upon it. The first on the twenty-sixth of November, 1862; the second June 21, 1864; the third on the fifteenth October, 1868. Citation was served on the twenty-ninth of October of that year. An interval of more than ten years ■ elapsed between the maturity of the note and the date of the first payment; between the date of the second credit, June [21, 1864, and that of the third, more than five years intervened. The question then is as to whether the credit which appears, upon the note of the fifteenth of October, 1869, is of such a character as to take it out of prescription.

The defendant cóntends that the peVson who entered that credit was without authority to renounce or waive prescription that had already accrued. The credit it seems was entered by the tutor of Hugues Villeré’s minor children ; and it is contended that this tutor, by virtue of his appointment as tutor became, ipso facto, administrator of their, father’s estate, and that he has acknowledged the debt in a petition filed in the parish court of Plaquemines. It is well settled that an administrator or executor is without the power to renounce or waive prescription after it has been acquired in favor of the estate he repre- . .sents. 21 An. 373 ; lb. p. 748 ; 23 An. 193; 24 An. 83.

Prom the facts presented in this case we are unable to find that there has been any act done that legally bars the prescription of five years, and therefore conclude the judgment of the district court was properly rendered.

Judgment affirmed.


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    No. 3044.
    James Longstreet v. R. Marsh Denman & Co.
    Tlie plaintiff claims the value of a carriage and harness lie purchased from defendants and left with them on storage. He had paid a portion of the price in cash, and for the balance gave the defendants a note of J". B. Hood to the order of and indorsed by plaintiff which was taken as a payment of the bill for the carriage, and a receipt in fall given. The note was not paid at maturity, but the defendants do not seem to have taken the steps necessary to bind the plaintiff as indorser. But, in any view of their rights, they had no authority to sell the plaintiff’s property which was stored with them subject to his order.
    Appeal from the Sixth District Court, parish of Orleans. Oooley, J.
    J. M. Bonner, for plaintiff and appellee. Foster & Merrick, Brice <& Mitehel, for defendants and appellants.
   Howell, J.

The defendants have appealed from a judgment against them for the value of a carriage and harness purchased by plaintiff from them and left with them on storage. The evidence satisfies us, as it did the judge a quo, that after the purchase of the carriage there was a settlement between the parties, by which the plaintiff paid a portion of the price in cash and for the balance gave the defendants a note of J. B. Hood, to the order of and indorsed by plaintiff, which was taken as a payment of the bill for the carriage and a receipt in full given. The note was not paid at maturity, but the defendants do not seem to have taken the steps necessary to bind the plaintiff as. indorser. But, in any view of their rights, they had no authority to sell the plaintiff’s property, which was stored with them subject to his order; what occurred after the maturity of the note did not amount to a new agreement or obligation on the part of plaintiff, nor give the defendants the right to sell as they did.

Judgment affirmed.


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    No. 3470.
    L. McCarthy v. G. Baze et al. R. Lloyd, Third Opponent.
    Tr> this suit Lloyd has intervened and claimed the property seized. He had leased the office in which the movables were found to defendants. At the time of the lease some of the property seized was in the office. This property, belonging to Lloyd, was not subject to plaintiff’s judgment, and the court a qua did not err in so deciding.
    The balance of the property Lloyd claims under a bill of sale from the defendants, who, at the time of the sale, were in his debt for rent. The property, however, remained in the possession and under the control of the defendants. Lloyd alleges that it so remained with them as his agents. But there was no delivery, and this was essential. Therefore, on this point, the decision of the judge a quo against the intervenor is correct.
    There was error, however, in condemning Lloyd to pay the costs. A portion of the property belonged to him. He injoined the sale thereof. Judgment having been rendered in his favor for a part of the claim, the costs should have followed the judgment.
    Appeal from the Fifth District Court, parish of Orleans. JLécmmont, J.

      Albert VoorMes, for plaintiff and appellee. James Brewer, for intervenor and appellant.
   Morgan, J.

Plaintiff obtained judgment against the defendants. In execution thereof he seized certain movables found in their office. Lloyd intervened and claimed the property. He had leased the office in which the movables were found to defendants. At the time of the lease some of the property seized was in the office. It belonged to Lloyd. This property was not subject to the plaintiff’s judgment, and the district court did not err in so deciding.

The balance of the property Lloyd claims under a bill of sale which he produces. At the time the sale was passed the defendants owed him only sixty dollars, and this for rent. The property remained in the possession and under the control of the defendants. Lloyd says it so remained with them as his agent, etc.. But there was no delivery, and this was essential. The judgment of the district court upon this point was correct.

There was error, however, in condemning Lloyd to pay the costs. A portion of the property seized belonged to him. He injoined the sale thereof. Judgment was rendered in his favor for a part of his claim. The costs should have followed the judgment.

It is therefore ordered, adjudged and decreed that in so far as the judgment of the district court condemns the intervenor and third opponent to. pay the costs of the suit, it be avoided, annulled and reversed, and that in all other respects it be affirmed. Costs of appeal to be paid by plaintiff.


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    No. 5097.
    State of Louisiana v. William L. Bower.
    The point in this case is, that the judge erred in refusing a new trial on the showing made that one of the jurors was a British subject, and therefore incompetent to sit at the trial. •

    The xeoord contains no mention of the reason of the judge for refusing the application for a new trial — whether because he found the fact not satisfactorily established, or whether,, as a question of law, the defendant was not entitled to it — conceding the fact to be satisfactorily proved.
    If the finding of the judge a quo was based on a question of fact, it can not be revised by this court, because, in criminal cases, only questions of law are cognizable by this tribunal. But assuming that the finding of the judge in refusing a new trial was upon a question of law, the conclusion of this court is that he was correct.
    The defendant, duly served with a list of the jurors by whom it was proposed that he should be tried, had ample opportunity to consider any objection he might have to their capacity or competency, and he should have made whatever objections he had at the time each juror was offered.
    In his affidavit for a new trial, the defendant states that he did not know the fact of which he complains till after the trial. If he neglected to ask the juror at the time he was offered whether he was a citizen or not, it was a neglect of which he can not now complain.
    Appeal from the Ninth Judicial District Court, parish of Rapides. Orsborn, J. Criminal ease.

      Henry 0. Dibble, Assistant Attorney General, for the State. Ryan, for defendant.
   Wyly, J.

The defendant, who was tried and convicted of horse stealing and sentenced to the penitentiary for three years, appeals from the judgment of the court below. There is no bill of exceptions nor assignment of errors.

The objection is that the judge erred in refusing a new trial on the showing made that one of the jurors was a British subject, and therefore incompetent to sit at the trial.

The record contains no mention of the reason of the judge for refusing the application for a new trial — whether because he found the fact not satisfactorily established, or whether, as a question of law the defendant was not entitled to it, conceding the fact to be satisfactorily proved.

If the finding of the judge was based on a question of fact, it can not be revised by this court, because in criminal cases only questions of law are cognizable by this tribunal. But assuming that the finding of the judge in refusing a new trial was upon a question of law, we are of the opinion that his conclusion was correct.

The defendant, duly served with a list of the jurors by whom it was proposed that he should be tried, had ample opportunity to consider any objection he might have to their capacity or competency, and he should have made whatever objections he had at the time each juror was offered. 13 An. 276.

In his affidavit for new trial, however, the defendant states he did not know the fact- of which he complains till after the trial. If he neglected to ask the juror at the time he was offered, whether he was a citizen, it was a neglect of which he can not now complain.

Judgment affirmed.


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    No. 3545.
    Mrs. M. E. Winn v. J. F. Spearing.
    The defendant was not justified in refusing to pay rent to plaintiff, on the ground that the house he leased from her was not put in repair, according to contract. His remedy was to put his lessor in default and make the repairs, deducting the amount thereof.
    Under this view of the case, the ruling of the judge a quo, refusing to hear testimony as to the repairs that were necessary, was correct.
    Appeal from the Eighth District Court, parish of Orleans. Dibble, J.

      Desaneon, Cotton & Levy, for plaintiff and appellee. J. H. Ferguson, for defendant and appellant.
   Morgan, J.

Plaintiff leased to the defendant a dwelling for ten months, commencing on December 1, 1870.

She brings this suit for nine months rent, and ten per cent., the agreed attorney’s fees in case of suit.

The lease is admitted, but defendant claims that by his contract the house was to be put in good repair prior to the first of February following, which he says was not done.

We do not think him justified in occupying the house free of rent because it was not put in repair. His remedy was to put his lessor in default and make the repairs, deducting the amount thereof. Under this view of the case the ruling of the judge refusing to hear testimony as to the repairs that were necessary, was correct. The appeal was evidently taken for delay.

Judgment affirmed with ten per cent, damages for a frivolous appeal.


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    No. 5204.
    State of Louisiana, ex rel. L. C. Rasberry, v. Parish Judge of the Parish of Bossier.
    Where the issue made by a rule to show cause was, whether a judgment rendered against the succession, administered by the relator should be paid and satisfied out of the indi* vidual estate of the administrator, on the ground that the administrator refused or neglected to pay it out of the funds of the estate, and that he failed or refused to file an account of his administration,* and where the decision was that execution issue against the individual property of the administrator, to be seized and sold to satisfy the judg ment against the succession, it is clear that the right of appeal lies from such a decision.
    Application for a mandamus, directed to the parish judge of the parish of Bossier.

      John Bay, Fort <& McDonald, for relator.
   Taliaferro, J.

The relator complains that he is refused an appeal from an order of the defendant making absolute a rule taken against the relator to show cause why execution should not issue against his own property, and that it be seized and sold to pay and satisfy a judgment rendered against him as administrator of the succession of L. F. Steele, in course of administration in the parish of Bossier.

The grounds stated by the respondent for refusing the appeal, we think, are insufficient. The issue made by the rule was, whether a judgment rendered against the succession administered by the relator should be paid and satisfied out of the individual estate of the administrator, on the ground that the administrator refused or neglected to pay it out of the funds of the estate, and failed or refused to file an account of his administration. The decision was that execution issue against the individual property of the administrator, and that it be seized and sold to satisfy the judgment against the succession. It is clear the respondent has the right to appeal.

It is therefore ordered that the rule be made absolute, and the respondent ordered to grant the appeal prayed for. -


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    No. 3949.
    William J. McLean v. A. Foster Elliot et als.
    The jurisprudence of tbis State is settled upon tbe point of tlie slave consideration in contracts, and this court will not disturb it.
    Appeal from, the Filth District Court, parish of Orleans. Beaumont, J.

      Hornor & Benedict, for plaintiff and appellee. F, W. Huntington, for defendants and appellants.
   Morgan, J.

This case was remanded to take evidence upon, and fix the relative values of, the land and slaves, which were the consideration of the note sued on. The evidence shows that this proportion is $444 81. The judgment of the lower court was for $1350, with eight per cent, interest from twenty-seventh November, 1867.

Plaintiff presses upon us that what we now call the slave consideration in contracts should not be entertained; but the jurisprudence of the State, we think, is settled upon this point, and we will not disturb it.

It is therefore ordered, adjudged and decreed that the judgment of the district court be amended so as to reduce the amount allowed to plaintiff from $1350 to $444 81, with eight per cent, interest thereon from twenty-seventh November, 1867, until paid; plaintiff to pay the costs of appeal.


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    No. 3432.
    Edward Matthews v. Crescent City Mutual Insurance Company.
    Plaintiff alleges tliat he is the owner of a certain insurance scrip of the Crescent Mutual Insurance Company and of certain dividends accrued thereon, which the defendants refuse to deliver to him. Defendants admit that they held such scrip and dividends, but aver that the same wero garnisheed in their hands by one Hillman, a judgment creditor of plaintiff; that, subsequently, judgment was rendered in favor of Hillman against defendants, as garnishees, who have paid said scrip and dividends to said Hillman; and they therefore deny any liability to plaintiff.
    There are two insurmountable difficulties in the way of the defense set up by respondents:

      First — Plaintiff’s assets or property in their hands was not seized by the garnishment process, ‘because the fieri facias was not in the sheriff’s hands, when the interrogatories were answered ; and the judgment against them in that proceeding was a consent judgment not binding on the plaintiff, nor in any manner divesting his title to the property in question.

      Second — The judgment upon which the pretended garnishment process issued, was an absolute nullity, because there was no citation served on Matthews against whom it was rendered; and a seizure or sale under a judgment, void from want of a citation, neither confers a right nor divests a title.
    Appeal from the Seventh District Court, parish of Orleans. Oollens, J.

      Eornor & Eenediot, for plaintiff and appellee. T. Ewnton, for defendant and appellant.
   Wyly, J.

Plaintiff alleges that he is the owner of certain insurance scrip of the Crescent Mutual Insurance Company, of the full value of six hundred and forty dollars and dividends accrued thereon to the sixth of July. 186t3, viz: one hundred and ninety-two dollars, with interest; that he made due application to said insurance company for said scrip, dividends and interest, and they refuse to deliver the same to him, and that they have been duly placed in default therefor.

Issi.e was joined by defendants, who admitted that they held such scrip and dividends, but that the same were, on the sixth day of July, 1868, garnisheed in their hands by one Daniel Hillman, a judgment creditor of plaintiff in suit No. 17,817 of the docket of the late Fourth District Court of New Orleans; that subsequently judgment was rendered in favor of said Hillman against respondent, said insurance company, as garnishee, and that thereunder they have paid the said scrip and dividend to said Hillman, and they therefore deny any liability to said Matthews.

The court gave judgment for the plaintiff and the defendants appeal. There are two insurmountable difficulties in the way of the defendants:

First — Plaintiff’s assets or property in their hands was. not seized by the garnishment process, because the fieri facias was not in the sheriff’s hands when the interrogatories were answered ; and the judgment against them in that proceeding was a consent judgment, not binding on the plaintiff nor in any manner divesting his title to the property in question.

Second — The judgment upon which the pretended garnishment process issued was an absolute nullity, because there was no citation served on Matthews, against whom it was rendered; and a seizure or sale under a judgment, void for want of a citation, neither confers a right nor divests a title.

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


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    No. 3478.
    John H. Stephenson v. James P. Broadwell.
    Where, on the trial, plaintiff introduce'd evidence in support of the averment of Ms petition, that Ms domicile is in the parish of Orleans, and therefore that defendant’s reconventional demand, being disconnected with plaintiff’s claim, could not be entertained, and the defendant offered a witness to contradict this evidence on the question of domicile, and the plaintiff excepted thereto;
    Held — That the court a qua erred in sustaining the exception. The question of the domicile ot the plaintiff was an important one, upon which depended to some extent, the fate of the plea in reconvention. If the plaintiff in fact had his domicile in the parish of Ascension, as alleged by defendant, the plea of reconvention could be heard. The defendant had an interest in contesting the point with plaintiff, and had the right to introduce evidence in support of Ms position, and to rebut the proof offered by plaintiff.
    Appeal from tbe Fourth District Court-, parish oí Orleans. Thécvrd, J.

      Eoselius & Philips, for plaintiff and appellee. Lea, Finney & Miller, for defendant and appellant.
   Wyly, J.

The plaintiff sued the defendant on his written obligation for $8000 ; and the defendant, alleging that the plaintiff resided in the parish of Ascension, set up a recouventional demand, disconnected with plaintiff’s demand, for $9000. On the trial the plaintiff introduced evidence in support of the averment of his petition, thsft Ms domicile is in the parish of Orleans, and therefore the demand in reconvention can not he entertained. The defendant offered a witness to contradict this evidence on the question of domicile, and the plaintiff objected on the ground that, as he had alleged in his petition and testified as a witness that his domicile was in the parish of Orleans, it would estop him from afterwards denying it, and therefore he might be sued here by the defendant. The court sustained the exception and the defendant took a bill of exceptions.

We think the court erred. The question of the domicile of the plain- - tiff was an important one, upon which depended to some extent the fate of the plea in reconvention. If the plaintiff in fact had his domicile in the parish of Ascension, the plea in reconvention could be heard. The defendant had an interest in contesting the point with the plaintiff, and had the right to introduce evidence in support of his position and to rebut the proof offered by the plaintiff.

It is therefore ordered that the judgment herein rejecting defendant’s ' reconventional demand and condemning him to pay plaintiff the amount claimed in the petition be set aside and annulled; and it is now ordered that this cause be remanded, with instructions to admit the evidence offered by the defendant and otherwise to be proceeded in according to law, appellee paying costs of appeal.


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    No. 3037.
    Abraham Vandine et al. v. Eherman & Lecanu et als.
    The exception tb the action must be sustained, where that action is a revocatory one and the petition itself discloses that there are, besides the defendants, other parties in interest who have not been made parties to the proceeding.
    Appeal from the Seventh District Court, parish of Orleans. Oollens, J.

      J. 8. Whitaher & Bice, Lacey <& Butler, for plaintiffs and appellants. Ootton & Levy, for defendants and appellees.
   Morgan, J.

The object of this suit is to set aside as simulated and fraudulent, a cerlain sale of property by Joseph Kaiser to Eherman & Lecanu and Peter Kaiser, made to the prejudice of creditors.

The action is therefore a revocatory one, and as the petition discloses other parties in interest besides those who are made defendants, who were not made parties, we think the exception of the defendants should have been sustained.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed; that the exceptions be maintained, and this suit be dismissed as in case of nonsuit. Appellants to pay the costs in both courts.

Rehearing refused.


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    No. 3467.
    A. Marchand v. The Loan and Pledge Association.
    A claim for money expended and time employed for the organization and benefit of the Loan and Pledge Association, before its incorporation, can not be regarded and enforced as a debt of that institution.
    It is impossible to imagine how the defendant, a juridical person, incurred a debt before its existence.
    Besides, it is shown that $1000 of plaintiff’s claim was for cash advanced for the purpose of influencing legislation; that is, bribing the Legislature to pass the act incorporating the Loan and Pledge Association.
    Bor the recovery of money thus expended, this court can give no relief. The guilty suitor must be left where his immorality has placed him.
    Appeal from the Fifth District Court, parish oí Orleans. Beaumont, J.

      W- 3. Hunt and Hornor & Benedict, for plaintiff and appellant. J. HauiMns and Hays & Hew, for defendant and appellee.
   Wyly, J.

Plaintiff sued defendant for the sum of $4000 for services, etc., as alleged, viz :

“That, as a preliminary to the formation of said corporation, your petitioner, at the instance of the stockholders and members thereof, visited the cities of New York, Philadelphia and Boston for the purpose of acquainting himself with the proper formation and efficient management and practical operation of similar institutions in said cities, and that in order to do so he was compelled to expend for his traveling expenses, for consultation with counsel, and for obtaining information, considerable sums of money, and that he is entitled to be paid for the value of his time and services expended during said visit, which consumed some eight weeks, and that said expenses and said loss of time and services amount to the sum of $1000.

“That petitioner furnished the charter for said corporation and gave zealous and efficient aid in presenting the same to the Legislature, in obtaining subscribers to the capital stock thereof, in organizing said corporation, in putting it in successful operation, in fitting up its place of business, in the purchase and erection of fixtures therefor, ami in the performance of its business and management of its affairs ior one month alter it commenced operations, and that his services in that behalf are well worth the furtner sum of $3000.”

The answer is a general denial, and the averment'that the association is not liable for services rendered before it went into operation as a corporation.

The court gave judgment for the plaintiff for $208 33, the value of one month’s service as president in organizing the company. From this judgment plaintiff appeals.

We see no error in the judgment. A claim for money expended and time employed, before the incorporation of the Loan and Pledge Association, can not be regarded as a debt of the institution.

How the defendant, a juridical person, incurred a debt before its existence we can not imagine.

Besides, it is shown that $1000 of the plaintiff’s claim was for cash advanced to S. F. Casanave for the purpose of influencing legislation; that is, bribing the Legislature to pass the act incorporating the Loan and Pledge Association.

For the recovery of money thus expended, this court can give no relief. The guilty suitor must be left where his immorality has placed him.

Judgment affirmed.


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    No. 5099.
    The State of Louisiana v. Jacob Turner.
    On the day of trial the sheriff had not made his return as to a subpena issued for a witness on behalf of the defendant. A motion ior a continuance on this ground was overruled. The case, however, was continued until the following day, when the sheriff made his return that the witness was not to be found. The application for a continuance should have been renewed after the return of the sheriff. This not having been done, the court a qua did not err in proceeding to trial.
    Appeal from the Fourteenth Judicial District Court, parish of More-house. Bay, J. Criminal case.

      O. T. Bunn, District Attorney, for the State. B. O. Morgan, Hewton <& Hall, for defendant and appellant.
   Morgan, J.

The day before the prisoner’s case was fixed for trial, he caused a subpena to issue directed to William R. P. Phillips. On the day of the trial the sheriff had not made his return.. The prisoner’s counsel moved for a continuance on this ground, which was refused. He then moved the court for time to prepare an affidavit (or a continuance, on the ground of the absence of the witness. This motion was also overruled. To these refusals he reserved a bill of exception.

The case was continued over until the following day, when the sheriff made his return, that the witness was not to be found. No application was made for a continuance after the return was made. He was not injured by the refusal of the judge to grant him a continuance on account of the absence of his witness, before the return of the sheriff had been made. His application should have been renewed when the sheriff returned that the witness could not be found.

The same may be said with reference to the other objections urged by him. They were all made at an improper time, or were made too late.

Judgment affirmed.


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    No. 3256.
    Samuel Ricker v. Widow and Heirs of John H. Pearson, and Samuel Ricker v. Annie C. Diggs, now Ross.
    This suit'is instituted by the plaintiff against the purchasers at sheriff’s sales, he claiming that the property was community property and belonged equally to his father and mother,* that when his mother died the community was dissolved; that his mother’s share descended to him; that his title thereto has never been divested; and that he should now be quieted therein.
    The property was sold to pay community debts. Therefore the plaintiff’s claim must be rejected.
    Appeal from the Fourth District Court, parish of Orleans. Théard’ J.
    -Miles Taylor, James Brewer, Leovy, Monroe c6 Hart, for plaintiff and appellee. Hornor & Benedict, Hays & New, for defendants and appellants.
   Morgan, J.

The mother of plaintiff was married to Samuel Ricker, his father, in September, 1840. Plaintiff was born on tenth November, 1847. His mother died on the eighteenth of the same month. He was the only issue of their marriage. His mother’s succession does not appear to have been opened.

On the seventeenth and eighteenth March, 1846, plaintiff’s father purchased k large quantity of land from Josephine Beale and James William Beale, and on the sixth May, 1846, his mother purchased land from Octavine Beale. All this land lies in the parish of Jefferson.

No marriage contract existed between the plaintiff’s father and mother. A community of acquets existed between them. The property above mentioned having been acquired during their marriage entered into the community. The debts contracted during the marriage were community debts.

In January, 1847, plaintiff’s mother brought suit against her husband for separation of property. He alleges that this judgment was inoperative and null for various reasons. We do not think it necessary to decide this issue. We, however, concede it.

On the second of September, 1846, during the marriage, after the property now in question had been acquired, and before the suit for separation of property had been instituted, Pearson & Co. instituted suit against Ricker & Pearson for $35,000, and on the tenth June, 1847, judgment by confession was rendered against them in solido for $32,152 92, with a stay of execution till the first December, 1847. The Ricker, of Ricker & Pearson, was plaintiff’s father.

In 1852 and in 1854 executions issued on this judgment, and the property bought by the plaintiff’s father and mother was sold by the sheriff. This suit is instituted by the plaintiff against the purchasers at these sheriff’s sales, he claiming that the property was community property and belonged equally to his father and mother j that when his mother died the community was dissolved; that his mother’s share descended to him; that his title thereto has never been divested, and that he should now be quieted therein.

. Under the authority of Brown v. Jacobs, 24 An. 530; Sadler v. Kimbrough 24 An. 534; Rusk v. Warren, Crawford & Co. 25 An. 314, and Phelan v. Ax, ib. 379, the plaintiff’s claims must be rejected.

It is therefore ordered, adjudged and decreed that the judgment of the district court in these two cases be avoided, annulled and set aside, and that in both cases there be judgment in favor of the defendants, with costs in both courts.