text:
    No. 4994.
    George M. Bayley, Testamentary Executor, v. David Denny.
    It is well settled that a coproprietor can not erect improvements on the common property and compel the other joint owner to contribute to pay for the same without the consent of the latter.
    The defendant in this case contends that as Bayley, the plaintiff, sold him the undivided half of a plantation which he held in common with Pugh, “together with the undivided half of the buildings and improvements thereon,” he sold him half of all the improvements,, including those erected by Pugh, without plaintiffs consent; that this sale was virtually an election to take half of said improvements made by Pugh; that it was an implied promise to pay for half the value thereof; and that from this instrument an obligation arose binding Bayley to pay for half the value of said improvements, which are proved tobe worth $4000, wherefore defendant refuses to pay for the last two installments due on his purchase.
    Pugh was not a party to the instrument, which is alleged to contain said implied election on his behalf. This court is of opinion that there was no such eleotion, implied or express, in that instrument, and as the plaintiff, Bayley, was not bound to pay Pugh for the improvements, he incurred no obligation in favor of Benny, the defendant, on the payment by the latter of $4000 to Pugh for half ot the improvements.
    Assuming that Bayley sold to the defendant the improvements erected by Pugh, which is denied, there is no eviction shown; consequently no obligation arising from warranty can be set up in defense of this action. Besides when, as in this case, the purchaser i» aware of the outstanding title of a third party, or the circumstances out of which the subsequent disturbance arose, he can not suspend payment of the price, nor require security against eviction.
    On the trial the court a qua, did not err in receiving the evidence offered to explain what improvements were intended by the parties to be sold — whether the improvement» belonging to the joint ownership only, or whether also the improvements belonging to one of the coproprietors. The object of this proof was to ascertain the value of the subject to which the instrument refers.
    Appeal from tlie Fifteenth. Judicial District Court, parish of Assumption. Beattie, J.

      Gilmore & Sons, Bush & Guión, for plaintiff and appellant. Nieholls & Boise, for defendant and appellee.
   Wyly, J.

In 1867 R. H. Bayley, whose succession is represented by the plaintiff, purchased at sheriff’s sale under the judgment in the case of Domas v. Seymour, the undivided half of a sugar plantation in the parish of Assumption, together with certain movable property thereon, and he leased the same to the defendant, David Denny, till the thirty-first December, 1870, for the price of $700 per annum. The other half of the plantation belonged to R. L. Pugh, the brother-in-law of Denny. Denny and Pugh lived on the plantation and cultivated it in partnership. The sugar house on the plantation had been destroyed by fire before it was acquired by the coproprietors, Pugh & Bayley. In 1868 Pugh urged Bayley to join him in rebuilding the sugar house and also in erecting other improvements upon the common property, each to bear half of the expenses. This Bayley positively refused to do, and Pugh threatened a judicial partition. The crop of 1868 was ground at a neighboring sugar house. In 1869 Pugh, without the consent of Bayley, rebuilt the sugar-house and erected six cabins on the plantation, at an expense of some eight thousand dollars. Negotiations were subsequently opened by Pugh with Bayley for the purchase of his share or interest in the plantation. This did not result in a sale, because the parties failed to agree as to terms. Bayley only proposed to sell his interest in the property, not including the improvements erected by Pugh. He also distinctly informed Pugh that he would bear no part of the expenses of said improvements.

He subsequently sold to his lessee, Denny, the brother-in-law of Pugh, who cultivated the land in partnership with him, and who knew that Bayley refused to contribute to pay for the improvements erected by Pugh on the common property. This sale was made in March, 1870, for the price of $12,843, one-fourth cash, and the balance in three equal installments of one, two and three years.

The second installment was paid, but when the third and fourth matured the defendant declined to pay them ; and the plaintiff brought this suit to foreclose the mortgage via ordinaria. The court maintained the defense that plaintiff’s demand should be reduced $4000; because after the purchase, to wit: in June, 1870, Denny paid that sum to Pugh for half the value of the improvements erected by him on the common property. Prom this judgment the plaintiff appeals.

It is well settled that a coproprietor can not erect improvements on the common property and compel the other joint owner to contribute to pay for the same, without the consent of the latter. Succession of Morgan v. P. L. Morgan, 23 An. 502.

Therefore, when R. L. Pugh erected the six cabins and rebuilt the sugar house on the plantation owned by him and Bayley, without the consent of Bayley, the latter incurred no obligation to contribute to pay for said improvements.

The defendant, however, contends that as Bayley sold him the undivided half of the plantation, together with the undivided half of the buildings and improvements thereon,” he sold him half of all the improvements, including those erected by Pugh; and that this sale was virtually an election to take half of said improvements erected by Pugh, with an implied promise to pay for half the value thereof; and that from this instrument an obligation arose binding Bayley to pay for half the value of said improvements, which is proved to be worth $4000. Pugh was not a party to the instrument, which is alleged to contain the implied election of Bayley to take half the improvements erected by Pugh on the common property and to pay for half the value thereof.

In that instrument, which is merely the sale from Bayley to Denny, there is no stipulation in favor of Pugh, nor is there an aggregatio mentirnrn between the parties on the subject of Bayley’s obligation to pay for improvements erected by Pugh on the common property. The subject is not mentioned, and we are of opinion that that instrument will be searched in vain to find any promise, express or implied, binding Bayley to pay Pugh, his coproprietor, for improvements erected by the latter, without his consent, on the common property. As Bayley was not bound to pay Pugh for the improvements, he incurred no obligation in favor of Denny by the payment by the latter of the $4000 to Pugh in June, 1870. There was no eviction shown in this case, {assuming that Bayley sold the defendant tho improvements erected by Pugh, which is denied); consequently no obligation arising from warranty can be set up in defense of this action. 13 An. 432, 17 La. 25, 3 An. 699, 2 An. 459.

It is true the sale of another’s property is null, and in such a case eviction by judicial action is not required to entitle the purchaser to relief. C. C. 2427, 9 R. 283, 10 R. 425, 3 An. 326.

But where, as in a case like this, the purchaser was aware of the outstanding title of a third party, or the circumstances out of which the subsequent disturbance arose, he can not suspend the payment of the price, nor require security against eviction. C. C. 2535, 8 N. S. 330, 15 La. 174, 19 La. 255, 3 An. 337, 5 An. 166-365, 10 An. 301, 11 An. 122, 9 R. 324.

The plaintiff, however, denies that his testator sold the defendant the improvements erected by P ugh; that it was only the share or interest of Bayley in the land and improvements that was intended to be conveyed. And this is supported by the evidence in the record. The defendant excepted to the introduction of parol evidence and the letters of Bayley, Denny and Pugh, on the ground that it was attempting to explain, add to, contradict and vary the deed and mortgage upon which the suit was based. The deed recites that Bayley sells to Denny the undivided half of the plantation therein described, “ together with the one undivided half of the buildings and improvements thereon and the agricultural implements thereunto appurtenant: being the same property which was acquired (except the eighteen acres above mentioned and reserved) at a sale made by the sheriff of the parish of Assumption on the twenty-fourth of April, 1867, at the suit of Amédée Domas v. John K. Seymour, No. 1384.” There were improvements belonging to the joint owners, and there .were improvements erected by Pugh and not claimed by Bayley. '

We think the court did not err in receiving the evidence to explain what improvements were intended by the parties to be sold •, whether the improvements belonging to the joint ownership only, or whether also the improvements belonging to one of the coproprietors.

The object of this proof was to ascertain the nature of the subject to which the instrument refers. Greenleaf on Evidence, chapter 15,, paragraph 286, and authorities there cited.

There are other questions, but they are not serious. It is therefore ordered that the judgment appealed from be amended by rejecting the reconventional demand of the defendant, and as thus amended that it. be affirmed, appellee paying costs of appeal.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    No. 4553.
    Bussey & Co. v. J. A. Rothschilds.
    In the jurisprudence of tliis State the writ of attachment is considered a harsh remedy, and should not be granted, except where the creditor is clearly entitled to it. The evidence-in this case does not make it clear that the defendant was about to convert his property into money or evidences of debt with the intent to place it beyond the reach of his-creditors, as alleged, and as the law prescribes.
    Appeal from the Thirteenth Judicial District Court, parish of Madison. Hough, J.

      JE. J). Farrar, for plaintiffs and appellants. J. 0. Seale and H. JR. Morrison, for defendant and appellee.
   Howell, J.

The plaintiffs have appealed from a judgment dissolving a writ of attachment obtained by them against the property of the-defendant, on the allegation that he was “about to convert his property into money or evidences of debt with intent to place it beyond the reach of his creditors.” A careful examination of the evidence-does not convince us that the judge a quo erred. In our jurisprudence-this writ is considered a harsh remedy, and should not be granted except where the creditor is clearly entitled to it. The evidence does not make it clear that the defendant was about to convert his property into money or evidences of debt with the intent to place it beyond the reach of his creditors, as alleged, and as the law prescribes as the-ground for the writ.

It seems that the plaintiffs had issued a writ of sequestration and a. writ of attachment, under which all the property of the defendant, including a stock of goods, a lot of cotton, work animals, etc., was seized, and upon a compromise between the parties was released and restored to the defendant, upon the promise, as alleged, that he would ship to plaintiffs all the cotton he could get from his lessees and debtors, and pay to them what he could realize upon the sales of his goods. The acts complained of and shown by the evidence are that a few days after this agreement the defendant sold four bales of cotton to pay his landlord, who had taken out a provisional seizure, and sent two or three of his work animals to his brother’s plantation, a few miles-distant.

The sale of the four bales of cotton, as made, was certainly not with the intent to place them beyond the reach of the creditors, for their proceeds went to pay a privileged and pressing debt, and there is no proof that he made any effort to sell his work animals or any of his goods out of the ordinary course of trade. But it is shown that on the very day the second attachment was levied he shipped on the railroad fifteen bales of cotton to the plaintiffs. It is true this lot of cotton seems to have been somewhat irregularly taken possession of by the sheriff under the writ of attachment, and two or three days after the writ had been executed upon other property, and was turned over to the sureties of the defendant on his release bond. But this can not be deemed a ground for the issuance of'the writ, having occurred after it was issued. While it may be true that the defendant may not have been fulfilling his promises to plaintiffs as faithfully and rapidly as the latter had a right possibly to expect, the .facts developed by the evidence do not justify the harsh and summary writ of attachment.

Judgment affirmed.


author: Morgan, J.

text:
    No. 5028.
    State of Louisiana, ex rel. P. A. Simmons, President, and Charles Leroy, Treasurer, v. D. H. Boullt.
    The defendant can not be proceeded against by mandamus to pay into the parish treasury §5000 which he has collected as tax collector.
    Appeal from the Ninth Judicial District Court, parish of Natchitoches. Orsborn, J.

      Jack & Pierson and M. J. Cmmingham, for plaintiffs and appellees. 0. Chaplin <& Sons, Pevy & Pierson, Morse & Pranguet, for defendant and appellant.
   Morgan, J.

The defendant appeals from a judgment commanding him by mandamus to pay into the parish treasury $5000 which he has collected.

Defendant contends that he can not be proceeded against by mandamus. We think with him.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled aud reversed, and that the proceeding by mandamus be dismissed without prejudice to the plaintiffs’ rights to proceed against him in the manner pointed out by law, plaintiffs to pay costs in both courts.

Rehearing refused.


text:
    No. 5034.
    Desiree Hickman v. Amos B. Thompson.
    ÍA. third opposition is allowed, first, when tlie third, person making the opposition pretends to be the owner of the thing seized; second, when he contends that he has a privilege on the proceeds.
    In this instance it is not contended that the minors on whose behalf an intervention is made, •own the property seized; and if' they had a privilege on its proceeds, about which this court says nothing, it could only be enforced when the sale had been effected. It has not been shown that there is any law authorizing a judge to order, as he did, the sheriff to make no title to property to be sold under execution unless it bring the price fixed upon by him.
    Appeal from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      T. 0. Manning, for plaintiff and appellant. B. T. Bowman, for defendant and appellee.
   Morgan, J.

Desirée Hickman mortgaged her interest in a piece of property which she owned as partner in the community which had existed between her deceased husband and herself. When Thompson, the owner of the mortgage, attempted to sell the property mortgaged, Mrs. Hickman injoined the sale, alleging that the property belonged to the succession of her late husband, which had never been closed, against which large claims had been preferred. This court set aside the injunction, and ordered the property to be sold to satisfy the mortgage held by Thompson. See 24 An. p. 264.

When the sheriff was about to sell the property in obedience to the decree rendered by this court, Thomas B. French, alleging himself to be the under tutor of the minors Hickman, filed a third opposition, alleging that the property advertised to be sold belongs to their tutrix; that their tutrix owes them $25,000; that their tacit mortgage to secure the same has been recorded within the time prescribed by law; that they are entitled to be paid out of the proceeds of the land to be sold the amount of their debt, and they prayed that the sheriff be ordered to retain in his hands the sum due set forth ($25,000) out of the proceeds of the sale, and if not paid in cash that he be ordered not to make title to the purchaser until said sum is paid. They further alleged that unless the property brings the amount of the first mortgage, viz: the sum of $25,000, with interest as claimed, the second mortgage creditor can not sell under his mortgage, and they prayed the court to order the sheriff to pronounce it no sale in that event, and not to adjudicate the property to any purchaser until the bid shall equal the amount of their mortgage. These orders were issued as prayed for. The property was offered for sale, and Thompson bid thereon two-thirds of the appraised value thereof, but the sheriff, by reason of the order just referred to, refused to adjudicate it to him. Then the plaintiff, alleging her necessitous circumstances, claimed to be entitled to one hundred and sixty acres of the land about to be sold4 or so much thereof as may be worth $2000, under the homestead act, and prayed that defendant and the sheriff be ordered to desist *rom selling or making title to the quantity of land above specified and the dwellings and improvements thereon. And the court ordered the sheriff to desist from making a title to the whole land until the rights and demands of the petitioner be heard and determined.

Both' oppositions were- dismissed, and the orders therein given revoked by the court which allowed them to be filed on a hearing, and the opponents have appealed.

There is no error in the judgment. A third opposition is allowed, first, when the third person making the opposition pretends to be the owner of the thing which has been seized: or, second, when he contends that he has a privilege on the proceeds of the thing seized and sold. C. P. 396. Here it is not contended that the minors own the property which had been seized, and if they had a privilege on its proceeds, with reference to which we say nothing, it could only be enforced when the sale had been effected. We have been referred to no law by the counsel for appellants, nor do we know of any, which authorizes a judge to order the sheriff to make no title to property to be sold by him under execution unless it bring the price fixed upon by him.

As to the plaintiff, she can not, we think, be considered in the indigent circumstances contemplated by the law. If her interest in the property seized was taken from her she would still have the usufruct of the balance.

Judgment affirmed.


author: Wyly, J.

text:
    No. 4862.
    Leonville Augustin v. Mrs. H. Dours et als.
    The plaintiff attempts to restrain by injunction the defendants, his daughters ■who are his judgment creditors, from selling under execution his dwelling house and other buildings which he erected on their lot, separately from the lot.
    As the plaintiff could transfer whatever right or ownership he may have to the buildings i standing on the defendants’ property, it is not seen why a forced sale thereof may not be made by the defendants, his judgment creditors.
    Appeal from the Second District Court, parish of Orleans. Tissoi, J.

      F. Filleul, for plaintiff and appellant. W. F.. Murphy, for defendants and appellees.
   Wyly, J.

The plaintiff appeals from the judgment dissolving the injunction restraining the defendants (his daughters), who are his judgment creditors, from selling under execution, his dwelling house and other buildings which he had erected on their lot, separately from the lot.

The plaintiff insists that the buildings can not be sold separately from the lot. The defendants contend that they are not bound to levy on their own lot in order to reach the buildings, the property of their debtor, illegally erected on their lot. As the plaintiff could transfer'1 whatever right or ownership he may have to the buildings standing on the defendants property, we do not see why a forced sale thereof may not be made by the defendants, his judgment creditors.

The case of the Citizens’ Bank v. Crook, 21 An. 324, cited by the plaintiff, is an entirely different case from the one before the court, and there is no analogy between them.

Judgment affirmed.


text:
    No. 4940.
    Mrs. Ann Eliza Rainey, wife of James H. Massey, v. Fanny Asher and Sheriff Harper.
    Plaintiff borrowed money to pay two notes wbicli were secured by mortgage upon tbe property she claims as lier own, and to prevent tbe sale of which sbe injoins tbe sheriff, and tbe two notes were paid with tbe proceeds of tbis loan. It is not, therefore, trae, as sbe alleges, that tbe money was borrowed and used for tbe benefit of her husband. This is established by the testimony of tbe notary who drew tbe act of mortgage and of tbe broker through whom the money was borrowed. It was a fact necessary to be established. Tbe objection to tbis evidence was properly overruled.
    The acts of mortgage under which plaintiff borrowed the money upon the note, tbe collection of which sbe has injoined, and which show her antecedent indebtedness, relate that sbe bad been specially authorized to borrow the money by tbe judge of the Third District Court of tbe parish of Orleans. Her objection to tbe introduction of these acts was not well founded. They were signed by her and were, therefore, her own acts and declarations. Admitting that they could be disproved by parol, tbe burden of doing so rested upon her.
    Tbe objection that tbe judge of the Third District Court of tbe parish of Orleans, where sbe resides, had no power to authorize her to make tbe loan, is without solid foundation.
    The judge of tbe Third District Court is as much a'district judge as any other district judge in tbe parish. The law says that a married woman who desires to borrow money and to mortgage her own property to secure tbe same, must be authorized so to do by the judge of the district or parish in which sbe resides. As tbe judge of tbe Third District Court, although having a limited jurisdiction for the convenience of business, is a district judge for the parish of Orleans, it follows that plaintiff was authorized by tbe judge of her district in the sense of tbe law.
    Appeal from the Fourth District Court, parish of Orleans. Lynch, J.

      Semmes & Mott, for plaintiff and appellant. BoseKus & Philips, for defendants and appellees.
   Morgan, J.

The defendant, holder and owner of an overdue promissory note, secured by mortgage, drawn by the plaintiff for $2250, obtained an order of seizure and sale thereon.

Plaintiff, alleging that she is the owner of the property under seizure, and alleging that on the twenty-third of June, 1871, through the improper influences of her husband, who constantly urged her thereto, «he granted the mortgage under which her property was seized; and alleging further that the note in question was negotiated by her husband, and that the proceeds were used by him; and alleging that the mortgage, the note, and the money, were all for the benefit of her husband, and that they were obtained from her by unlawful means; alleging that she was not examined and authorized, as by law required by section 3982 of the Revised Statutes, by the judge of the district or parish where she resides, separate and apart from her husband touching the object for which the money was borrowed; alleging that the judge of the Third District Court who gave the certificate annexed to the act of mortgage had no authority or jurisdiction to examine her «or to grant such certificate, the Third District Court for the parish of Orleans not being a court of general jurisdiction, but of limited jurisdiction, confined to appeals from justices of the peace, obtained an injunction prohibiting the defendant and the sheriff from proceeding with her execution. In these proceedings she is joined and assisted by her husband.

The evidence in the record satisfies us that her allegations with regard to improper influence on the part of her husband by which she was induced to create the debt and that the money which she borrowed was used by him for his benefit, are not true.

She borrowed the money to pay two other notes which were secured by mortgage upon the property in question, and the notes were paid with the proceeds of this loan. This is established by the testimony «oí Guyol, the notary who drew up the act of mortgage, and by Cammack, the broker through whom the money was borrowed. The ¡testimony of these witnesses was objected to by the plaintiff, but we think the court properly received it. It was a fact necessary to be established, and could, we think, be established by any witness who knew them. The allegation that before borrowing the money, the return of which is now about to be exacted from her, she was not examined by and authorized so to do, by the judge of the district or parish where she resides, separate and apart from her husband touching the object for which the money was borrowed, is not established. 'This is a fact whieh it was in her power to prove, and she introduced no evidence to establish it. The acts of mortgage under which she borrowed the money upon the note, the collection of which she has injoined and which show her antecedent indebtedness, relate that she had been specially authorized to borrow the money by the judge of the Third District Court of the parish of Orleans. Plaintiff objected to their introduction. We think they were properly received. They were signed by her and were, therefore, her own acts and declarations. Admitting that they could be disproved by parol, the burden of doing «o rested upon her.

Her last objection that the Third District Court for the parish of Orleans not being a court of general jurisdiction, but of limited jurisdiction, confined to appeals from justices of the peace, and, therefore, the matter here involved exceeding the jurisdiction of that court, the judge thereof had no power to authorize her to make the loan, is, we think, without a solid foundation. The judicial district of the parish of Orleans is divided into several district courts. For the proper dispatch of business certain of these courts are given exclusive jurisdiction, but the judge of the Third District Court is as much a district judge as is any other district judge in the parish. The law says that a married woman who desires to borrow money and to mortgage her own property to secure the same, must be authorized so to do by the judge of Ihe district or parish in which she resides. As the judge of the Third District Court is a district judge for the parish of Orleans, and as the plaintiff is a resident of the parish of Orleans, and as she was authorized by that judge, it follows, we think, that she was authorized by the judge of her district in the sense of the law.

The judgment of the lower court was against her.

Judgment affirmed.


text:
    No. 4871.
    Citizens’ Bank of Louisiana v. Clarence L. James.
    Defendant’s refusal to fulfill a certain agreement with the Citizens’ Bank in relation to th& sale of a plantation to said defendant, on the alleged ground of an error of fact in the agreement, can not avail him.
    Error is said to be the greatest defect that can occur in a contract, but the error must be m respect to the object of the agreement, the identity or quality of the subject. That is-called error of fact which proceeds either from ignorance of that which really exists,, or from a mistaken belief in the existence of that which has none.
    In this case the error as to the value of the property which defendant agreed to buy, was no error of fact, but if it existed, an error of judgment. This is an error for which the law furnishes no relief. Besides, certain allegations of the defendant in reconvening for damages resulting from the pretended noncompliance of the bank with its allegations^ contradict his own allegations as to his error about the value of the property.
    Tt is not in the power of this court to forco defendant to comply with his contract. The penalty he incurs for violating it, is the damage he has occasioned.
    Appeal from the Thirteenth Judicial District Court, parish of Tensas. Sough, J.
    Jury trial. Pitot, Labatt, Aroni & Olintonr for plaintiff and appellant. Spencer, Parrar & Peeves, for defendant and appellee.
   Morgan, J.

Joshua James was indebted to the plaintiffs in a sum exceeding $109,000, of which $61,489 were due, on account of arreared installments and interest, and the balance, $47,620, in Ilia stock note due on the first of April, 1867. To secure this debt, his plantation was-mortgaged to the bank.

On the twelfth of March, 1867, the bank made an arrangement with Clarence L. James, through his father Joshua James (whose authority as agent is not disputed), by which the bank agreed to foreclose the mortgage against the plantation, and to bid thereon $55,000, and if purchased by it, to sell the same back with the mortgage stock attached to it to Clarence L. James for $50,000, payable in twenty years, in his stock note. It was also agreed that C. L. James was to deposit with the bank his notes of William T. Martin, trustee of the heirs of Barnard for $6250 each, to secure the payment of his stock note, the amount when paid to be used as follows : $10,000 to go in part payment of the stock note of C. L. James, and the balance to be used by him to improve the plantation.

The bank foreclosed the mortgage and bought in the plantation. It alleges that C. L. James has been in possession thereof from the date of their agreement; that he has never paid the installments due on stock debt; that the installments due amount to $6684, and that there is due ten per cent, on $50,000, according to its charter. It prays for judgment against him for $6684, with ten per cent, interest on $50,000 from fourteenth of March, 1868, and that the defendant be ordered to accept the sale of the property, and that he furnish his stock note for $42,216, payable fourteenth of March, 1871, and renewable according to the charter of the bank, or that in default thereof possession of the property be given to it, and that it have judgment against the defendant for $6000 for the use and enjoyment of the plantation since the date of his contract, and $5000 per annum from .udicial demand until possession is restored to it.

Defendant admits the agreement. But he says that he faithfully complied with all of his stipulations, by depositing with the bank the two notes of Martin, and by tendering his stock note for $50,000, payable in twenty years. He avers that the bank failed to buy in the plantation until the month of October, 1869 ; that it collected a portion of the two Martin notes, and compromised the balance at a loss of more than half of the value thereof, and refused to accept his note in accordance with the terms of their agreement, and refused to make him a title to the property as was agreed; that on the faith of the agreement between them, he built upon the plantation improvements worth $5000; that in consequence of the uncertainty of his title, he has been prevented from improving the property so as to render the same productive, and has been unable to cultivate the same, and that he has thus, and by the bad faith of the bank, been damaged to the extent of $50,000. He avers further that the bank has not only ignored his rights to become the owner of the plantation under their agreement, but that, with the view of damaging him, actually bargained the place to one P. J. Kennedy. He avers that at the time their agreement was entered into, and at the time the bank purchased, the property was not worth $20,000, and that the bank actually purchased it for $15,000, and that now, taking advantage of its position, it is attempting to extort from him double the price it paid for it. He avers that he entered into the agreement under the belief that he would be called upon to pay, in all, at the expiration of twenty years only $50,000, and that if his agreement is held to have obliged him to pay more than that sum, then he avers that his consent was given in error of fact, and should be declared null and void; in which event he avers that he is entitled to recover back from the bank the value of his improvements — $5000—and the amount of the Martin notes, now amounting to $25,000.

He also reconvened, and prayed for judgment against the bank for $50,000, resulting from its bad faith and tortious conduct, and that he be quieted in his title and decreed to be the owner of the property.

The case appears to have been submitted to a jury, who found a verdict for the defendant, and in accordance therewith a judgment was rendered amending the agreement sued upon for error, giving to the plaintiff possession of the property, and giving to the defendant a judgment for $5000, with legal interest thereon from twentieth July, 1870, till paid, and condemning plaintiff to pay costs.

Plaintiff has appealed.

Defendant’s objection to complying with his agreement that the bank failed to buy in the plantation until October, 1869, is no excuse. The bank sold the property as soon as the papers necessary to carry bn the suit, which had been lost, were found. Besides, the defendant went into possession of the property as soon as his agreement with the bank was made. Neither can he object to what was done with the Martin notes. The bank sued Martin on them. Martin offered a compromise, and the defendant agreed to it on condition that out of the $10,000 which Martin was to pay, $5000 was to go to him, and these $5000 he received. His defense that if his agreement with the bank made him responsible for more than $50,000, to be paid without interest, it is void on account of error of fact, can not, we think, avail him. Error is said to be the greatest defect that can occur in a contract, but the error must be in respect to the object of the agreement, the identity or quality of the subject. Pothier, p. 10. That is called error of fact which proceeds either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none.” C. C. 1821. Now the defendant was not in error as to the existence of the thing which was the subject of his agreement with the bank, or its identity or quality. His error as to the value of the prop■erty which he agreed to buy was not error of fact, but, if it existed, error of judgment. This is an error for which the law furnishes no Telief.

If the bank refused to take the note which he offered, it was, we think, because it was not the note Which their agreement called for. It was expressly understood that the note to be given was a stock note, which by the charter of the bank bears interest. This must have been known to the defendant, as it was to his father, who conducted the negotiation for him, acting as his agent. In his testimony the father says he thought C. L.'James would have nothing to pay for several years, because the notes deposited by him would “pay the interest on the stock note to be given for several years to come, and the payment he would have to make would be about $2500 a year. The notes deposited with the Citizens’ Bank as collateral security would have paid the interest and the ten per cent, of the principal for several years.” Besides, the allegation that he has been damaged $50,000 by the bank not having complied with the terms of the agreement, is somewhat destructive of his allegation that he was to pay only $50,000 without interest. The damage he claims to have sustained is the profit he would have made if he had been enabled to cultivate the place. A place upon which a profit of $50,000 can be made in a few years, is certainly worth $50,000 to be paid for in twenty years, with six and a half per cent, interest per annum.

The allegation that he spent $5000 in improving the property, is rather inconsistent with his other allegation that the course of the bank prevented him from improving it so as to render it productive. We do not think it has been established that the negotiations which were for a moment pending between the bank and Kennedy with regard to selling the plantation to him, caused him any damage.

Defendant has been in possession of the plantation since the twelfth of March, 1867, and has enjoyed the revenues thereof. The number of acres of land under cultivation is fixed by the witnesses at two hundred. The rent of the land is worth five dollars per acre. He would, therefore, owe, in rent, $7000. The bank has received $5000 The improvements are worth $2500.

The bank asks that the defendant should be compelled to comply with his contract. It is not in our power to force him to do so. The penalty he incurs for violating it is the damage he has occasioned.

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 Citizens’ Bank, and against the defendant Clarence L. James, ordering him to accept the sale of the property and stock formerly belonging to Joshua James, and described in the sheriff’s deed of sale of the eighth of October, 1869, and furnish his stock note, dated March 12, 1867, and payable the fourteenth of March, 1871, for $50,000, with a credit thereon of $5000, and renewable according to the charter of the bank, or that in default thereof, within sixty days from the recording of this decree, that a writ of possession issue in favor of the bank putting it in possession of the property above described, upon paying to the defendant the sum of $500; defendant to pay costs in both courts.


author: Howell J.

text:
    No. 5101.
    State of Louisiana v. Succession of Masters et als.
    In tliis suit against the succession of a defaulting tax collector and his sureties, a bill of exceptions is taken by defendants to the admission of a certified extract from the books oí the State Auditor, showing the indebtedness of the deceased tax collector to the State, on the ground that it was not the best evidence, but a copy and the absence of the original was not accounted for, and such original could not furnish proof of the statements contained in the copy.
    The instrument objected to is a certified transcript of the tax collector’s account in the Auditor’s books and not a certificate merely of facts.
    It was the duty of the Auditor, a sworn officer of the State, to keep an account with the said tax collector and charge the latter with items of defalcation, and he is authorized by law to give certificates of the contents of such books and of the records of his office under his official seal.
    Appeal from the Tenth Judicial District Court, parish of Carroll. Hough J.

      Hiram JR. Steel, District Attorney, and J. W. Montgomery, for plaintiff and appellee. J. JE. Leonard, for defendants and appellants.
   Howell J.

This is a suit against the succession of a defaulting tax collector and his sureties, and the principal question is presented in a hill of exceptions taken by defendant to the admission of a certified extract from the books of the State Auditor, showing the indebtedness of the deceased tax collector to the State, objected to on the ground that it was not the best evidence, but a copy and the absence of the original was not accounted for, and such original would not furnish proof of the statements contained in the copy.

The instrument objected to is a certified transcript of the tax collect- or’s account in the Auditor’s books, and not a certificate merely of facts.

It was the duty of the Auditor, a sworn officer of the State, to keep an account with the said tax collector and charge the latter with items of defalcation, and he is authorized by law to give certificates of the contents of such books and of the records of Ms office, under his official seal. R. S. sections, 174, 182, 191, 253, 255.

In the case of Hughey v. Barrow, 4 An. 252, the Court said. If the Auditor was bound to record the fact, the proper evidence is a copy of the record duly authenticated and referred to, 1. Greenleaf, section 498. And in State v. McDonnell, 12 An. 741, which was a suit on the bond of a tax collector, as is this, it was held that the account of the Auditor when introduced, makes evidence against the collector and his sureties. The question of the admissibility of such account, duly authenticated, was not before the court, and what was said in reference to its being received without objection, was to show the impropriety of raising the question on appeal as to its sufficiency. We do not understand the language used to imply that the account, if duly authenticated, would have been excluded if it had been duly objected to.

It is unnecessary to pass on plaintiff’s bill of exceptions. We see no force in any of the other points suggested in defendant’s brief. The only party who appealed, is the representative of Master’s succession.

Judgment affirmed.


author: Ludeling, C. J.

text:
    No. 5148.
    Bettie Clemens, Guardian, etc., v. Francis Augustus Comfort.
    In 1861, by an act of the Legislature, a part of the territory of the parish of Madison, embracing the plantation claimed in this suit, was transferred to the parish of Tensas after the decease of the owner, who died m 1855.
    In 1867 an attempt was made to open the succession of the deceased in the parish of Tensas, by appointing a curator of absent heirs, who caused the property to be sold to pay debts, as it is alleged. It is through this sale that the defendant claims to hold.
    The probate court of Madison parish, where the deceased had his domicile at the time of his death, had exclusive jurisdiction of his succession. Everything done in that succession in the parish of Tensas-was therefore null and void.
    Appeal from the Thirteenth Judicial District Court, parish of Tensas. Hough, J.
    Jury trial. F. D. Farrar and John May, for plaintiff and appellee. Drake <& Garrett, Thomas P. Farrar and F. H. Farrar, for defendant and warrantors, appellants.
   Ludeling, C. J.

This is a petitory action. F. A. Comfort, who was in the actual possession of the land claimed, disclaimed title, but alleged it was in Mrs. Julia Trezevant. Mrs. Trezevant for answer alleged that she was the owner under a just title, and called J, E. Slicer in warranty. The case was then continued till the next term of the court, when Slicer filed his answer, averring that he transferred to Mrs. Trezevant a valid title, the same having been homologated by a judgment of monition,” etc.

The case was tried by a jury, who rendered a verdict in favor of the plaintiff for the land and for rents at the rate of $510 per annum from first January, 1868, and costs.

The plaintiff entered a remittitur for $750 for taxes paid by defendant and for value of improvements made- on the lands, and judgment was rendered in accordance with the verdict and remittitur.

The defendant has appealed.

The evidence shows that the plaintiff’s wards are the children and heirs of I-I. H. Groves, who died in 1855; that at the date of his death he was the owner of the place in controversy, upon which he resided, and which was then situated in the parish of Madison. It further appears that his widow was confirmed as natural tutrix to his children; that an inventory of the property was made and letters of tutorship were issued to her.

In 1861, by an act of the Legislature, a part of the territory of the-parish of Madison, embracing the plantation in question, was transferred to the parish of Tensas. In 1867 an attempt was made to open the succession of H. H. Groves in the parish of Tensas by appointing-a curator of absent heirs, who caused the property to be sold to pay debts, it is alleged. It is through this sale that the defendant claims-to hold.

The probate court of Madison parish, where the deceased had hisdorqicile at the time of his death, had exclusive jurisdiction of his succession. C. C. 935; C. P. 929; Succession of Williamson, 3 An. 261; 21 An. 399. Everything done in that succession in the parish of' Tensas was therefore null and void.

This view of the case renders it unnecessary to pass upon the bills-of exceptions taken on the trial.

It is therefore ordered and adjudged that the judgment of the lower-court be affirmed with costs of appeal.

Rehearing refused.


text:
    No. 5023.
    Julius Levin et als. v. John De Lacey, Sheriff, et als.
    Article 261 C. P., authorizing tlie sale, for certain causes, of property under attachment,. does not direct the sheriff to take from the purchasers bonds in the nature of judgments, as in sales under executions, and the expressions “to have the force and effect of a judgment at law.” used in said bonds, must be considered as mere surplusage. This, court knows of no law which gives to such bonds the form of a judgment upon which an . execution may issue. Therefore, the injunction in this case should have been maintained without prejudice to the rights of parties upon the said bonds.
    Appeal from the Ninth Judicial District Court, parish of Rapides.. Orsborn, J.

      Jamies G. White, for plaintiffs and appellants. B. A. Hunter, for defendants and appellees.
   Howell, J.

In the case of Joseph Hoy & Co. v. B. Weiss, No. 1713 of the docket of the lower court, property of the said defendant was attached, and on a rule judgment was rendered dissolving the attachment, from which the plaintiffs, Joseph Hoy & Co., appealed suspen— sively. Afterwards they obtained an order, under Article 261 C. P., to the sheriff, to sell the said property according to law and retain the proceeds in his hands subject to the order of court. The property was advertised to be 'sold for cash, but two-thirds of the appraisement not being bid, it was again advertised and sold on twelve months credit, the purchaser giving three bonds in favor of the sheriff, with the plaintiffs in this suit as his sureties. More than a year after their maturity, three several writs of fi. fa. were issued on them and the property of the plaintiffs was seized, whereupon they injoined the sale thereof on the grounds that the said instruments are informal and null, not being taken in accordance with law and not authorizing execution thereon, as in case of twelve months bonds given in the execution of judgments.

The assignees of Joseph Hoy & Co. answered, disclaiming any part in the attempt to collect said bonds, and averring that under the judgment in their above named suit they caused the said bonds to be seized by garnishment process against the sheriff to the extent of $807. The sheriff answered, setting up the order to sell and his proceedings thereunder, and alleging that the said bonds were taken for the several different amounts to suit the claims of intervening parties, that the assignees of Joseph Hoy & Co. had obtained judgment against him as garnishee for the excess above the claims of said intervenors, that all his acts' were in accordance with law and the orders of court, and the plaintiffs having voluntarily executed said bonds can not urge informalities or except to their binding effect, and he prayed that the injunction be dissolved. Several parties intervened, claiming privilege upon the said bonds, and asked that the injunction be dissolved. From a judgment in favor of the defendants the plaintiffs appealed.

Without expressing an opinion as to the validity of the said bonds, we think executions improperly issued upon them, as Article 261 C. P. authorizing the sale, for certain causes, of property under attachment, does not direct the sheriff to take from the purchasers bonds in the nature of judgments, as in sales under executions, and the expression “ to have the force and effect of a judgment at law” used in said bonds, must be considered mere surplusage. We know of no law and have been referred to none which gives to such bonds the force of a judgment upon which an execution may issue. We think the injunction should have been maintained without prejudice to the rights of parties-upon the said bouds.

It is therefore ordered that the judgment appealed from be reversed, and that the injunction herein be perpetuated, reserving to all parties in interest their rights, if any they have, in or upon the bonds referred to and described in the pleadings herein. The appellees to pay costs in both, courts.


author: Ludeling, C. J. Howell, J.

text:
    No. 4917.
    Enos M. Cramer v. Alexander V. Brown.
    This is a contest for office. The appeal should have been made returnable within ten days after the judgment. The appeal granted by the District Court was incorrectly made returnable on the second Monday of February, and when the error was discovered the appellant'had a proper return day fixed according to law. The motion to dismiss the appeal can not prevail.
    Plaintiff, alleging to be the sheriff for the parish of Madison, injoined defendant from acting or assuming to act as sheriff, irom possessing or attempting to possess the books, papers, and archives of the said office, and from intruding or attempting to intrude himself therein. The defendant excepted to the form of action, averring that it should have been brought under the intrusion act and in the name of the State and the proper law officer of the State. The exception is well taken and should have been maintained. The injunction must be dissolved.
    APPEAL from the Thirteenth Judicial District Court, parish of Madison. Hough, J.

      Wells, Spencer, Seale & Harrison, Labatt, Aroni <& Clinton, for plaintiff and appellee. Crawford <& Coleman, for defendant and appellant.
   On Motion to Dismiss.

Ludeling, C. J.

The appellee moves to dismiss this appeal on the grounds:

First — That the suit is not a preference case.

Second — That the district judge granted an appeal which was made returnable on the second Monday of February, and the bond was given according to law, and the case was no longer within the jurisdiction of said district court.

Third — That the parish judge had no right to grant an appeal in the case; and

Fourth — That the parish judge has revoked his order for an appeal.

There is no merit in any of the grounds stated for dismissing the appeal. The first two grounds, if true, might be a reason for not trying the case on the merits, until the second Monday of February next, but not for dismissing the appeal. And' the same thing may be said of the third and fourth grounds for dismissal. But we think that this is a contest for office, and the appeal should have been made returnable within ten days after the judgment. The appeal granted by the district judge was incorrectly made returnable on the second Monday of February, and when the error was discovered the appellant had a proper return day fixed, according to law. 10 An. 488; 2 An. 484; 25 An. E. Evans, wife et al., v. Sauvinet et al.

The motion is therefore refused.

On the Merits.

Howell, J.

The plaintiff alleges that he is the legally elected and qualified sheriff of the parish of Madison, and as such has been dis■charging the duties and receiving the emoluments thereof; that recently the defendant, pretending to hold a commission for said office and styling himself sheriff of said parish, has disturbed him, plaintiff, in the exercise and enjoyment of his said office, and interfered with and hindered him in the discharge of his duties by holding himself out and pretending to act as the sheriff of said parish; and he prays that he be quieted in the possession of his office; that defendant be ordered to desist from his unlawful interference and injoined from acting or assuming to act as sheriff, from possessing or attempting to possess himself of the books, papers and archives of the said office, and from intruding or attempting to intrude himself therein.

The defendant excepted to the form of action, averring that it should have been brought under the intrusion act and in the name of the State and the proper law officer of the State. The exception was referred to the merits and an answer filed alleging a commission, bond and oatfi as sheriff, and the entering upon the duties thereof with the consent of the plaintiff, and unmolested continuance therein from June 16, 1873, until the institution of this suit in November following. Upon a trial the judge a quo decided in favor of the plaintiff, and the defendant appealed.

The exception, in our opinion, was well taken and should have been maintained. This case is similar, in this respect, to that of Hayes v. Thompson, 21 An. 655, where the action was dismissed as improperly brought, although no exception was filed. See also State ex rel. Wickliffe v. Delassize, 21 An. 710.

It is therefore ordered that the judgment appealed from be reversed, and that the injunction be dissolved and the suit dismissed at the costs of plaintiff, in both courts.


text:
    No. 5055.
    New Orleans Canal and Banking Company v. Linn Tanner, Administrator.
    Two of the mortgage notes of the defendant, held by the bank, plaintiff in this case, were about to prescribe, when, in order to avert this loss and to recover the claim, the attorney for the bank presented the petition to the person in possession of the office of clerk of the court and acting as such, and caused due process to issue. This was sufficient to interrupt prescription.
    The clerk was a de facto officer and his official acts were valid, however indifferent his title to the office.
    Appeal from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      Maiming, for plaintiff and appellant. James 0. White, for defendant and appellee.
   Wyly, J.

The plaintiff sues on five promissory notes of Esther P. Tanner, deceased, whose succession is represented by the defendant,, and also to foreclose the mortgage securing their payment. The defense is prescription. There is no doubt that the first note, payable on the fifteenth December, 1867, is prescribed. As to this there is no-controversy. The dispute is as to the next two notes, maturing-twenty-second February, 1868.

It is not pretended that the last two notes, maturing twenty-second, February, 1869, are prescribed.

On the twenty-fourth February, 1873, the day before prescription would accrue on the two notes about which there is a controversy, the plaintiff caused a citation to be served on the defendant. The copy of' the petition and the citation, however, were signed by S. A. Ballio, as clerk, holding a commission from Governor Warmotli, of date fourth December, 1872. Ballio was at the time in possession of the clerk’s office, together with the records, papers and seal of said office. The seal of the court was affixed to the citation. The controversy is as to the validity of the official acts of Ballio in regard to the plaintiff and the public, who have dealt with him in that capacity.

There is no dispute as to the validity of the official acts of the sheriff.

The defendant contends that Hastmyer, holding commission under Acting Governor Pinchback, was the legal clerk; that Ballio was a usurper and all his official acts are absolute nullities. As before remarked Ballio was, at the time of the citation, the acting clerk in possession of the office, the seal and all the books and papers. He had been for more than a month before and he continued to be acting clerk for several months after the citation in question issued.

After the present clerk O. K. Hawley was appointed by Governor Kellogg and got possession of the clerks’ office, the plaintiff caused new process to be issued by him and upon this the case was tried.

The process issued by Ballio is relied on by plaintiff as sufficient to interrupt prescription. And we think it had the effect contended for by the plaintiff.

Two of the mortgaged notes of the defendant, held by the bank were about to prescribe. In order to avert this loss and to recover on the claim the attorney for the bank presented the petition to the-person in possession of the office and acting as clerk and caused the process to be issued. He was a de facto officer and his official acts were valid, however indifferent his title to the office might be.. 3 An. 631; 10 An. 524; 13 An. 404; 13 An. 607; 22 An. 33; 15 Mass. 171, 183; 9 Johnson 135; 16 Peters 71.

It is therefore ordered that the judgment in favor of the plaintiff for the amount only of the last, two notes be amended so as to embrace the amount of the other two notes maturing twenty-second of February, 1868, one for six hundred and the other for seven hundred dollars, both bearing eight per cent, interest from the twenty-second February 1867, together with recognition of mortgage for said amounts, and as thus amended it is ordered that the judgment be affirmed, appellee paying costs of appeal.

Rehearing refused


author: Taliaferro, J.

text:
    No. 3042.
    E. T. Parker v. A. & X. Bernard.
    The plaintiff sues for the sum of §590 92, the amount of a conditional bond which reads as follows: “That whenever the syndic shall erase the tacit mortgage in favor of the minor XiOuis Roy, surviving child of Delicien Roy, which exists on the lot of ground and improvements, purchased by Auguste Bernard at the sale of E. T. Parker, syndic v. Joseph G-relier, Ho. — of the docket of the Second District Court of Hew Orleans, then and in that case this bond shall have force and virtue. ”
    The defense that the tacit mortgage is not raised can not prevail. It is fully established that by order of court plaintiff paid Grelier the amount of the conditional bond, and that, if the minor ever had a tacit mortgage on the property, itwas lost from failure to record the evidences of it prior tothe first of January, 1870, under the provisions of the Constitution of 1868.
    Appeal from the Ninth District Court, parish of Orleans. Oooley J.

      W. O. Denegre, for plaintiff and appellee. Sambola & Ducros, for defendants and appellants.
   Taliaferro, J.

At a syndic’s sale of an insolvent’s estate made by the plaintiff, sheriff and ex-officio syndic, on May 1, 1858, there was adjudicated to one Grelier a certain piece of landed property on Magazine street for $5210 for which he paid part in cash and for the residue furnished notes. Having failed to pay the last note for $1953 75, Parker who held the note as syndic, sued out executory process against the property, and on the seventh of August, 1860, adjudicated it to A. Bernard one of the defendants for $5350 08, of which amount he paid $4759,08, and for the remainder he executed the bond now sued on for $590 92. The bond was executed for this reason : Bernard, after the property was adjudicated to him, set up an objection to paying the entire sum bid, on the ground that there existed a tacit mortgage against the property he purchased in favor of a minor child of Mrs. Voiselle, the insolvent, who formerly owned the property; that this mortgage subsisted for the sum of $590 92, the amount of the bond which was conditioned as follows : That whenever the syndic shall erase the tacit mortgage in favor of the minor Louis Roy, surviving child of Felicien Roy, which exists on the lot of ground and improvements purchased by Auguste Bernard at the sale of E. T. Parker, syndic v. Joseph Grelier, No. — of the docket of the Second District Court of New Orleans, then and in that case this bond shall have force and virtue. ” This instrument was executed on the nineteenth of September, 1860. Grelier, against whom the executory proceedings had been taken, after the sale and the writ satisfied, took a rule on Parker to pay over to him the balance of the price of adjudication after satisfying the writ. This he did with the exception of the part represented by the bond, and answered that no part of the $590 92 had ever come into his hands, but that that sum was retained by Auguste Bernard out of the price of the property adjudicated to him on the seventh of August, 1860. Parker called the defendants and Esther Voiselle, tutrix of the minor, in warranty. Bernard answered declaring the mortgage was not erased, etc. The rule was tried in February, 1861, and was made absolute against Parker, who had judgment over against Bernard. An appeal to this court was taken and the judgment against Bernard was reversed. 18 An. 167. The ground on which the judgment was reversed was that it was not shown that Parker had paid the suspended sum due to Grelier.

This suit was instituted on the bond in June, 1866, and the judgment of the lower court was rendered in favor of the plaintiff on the twenty-eighth of April, 1870. The defendants have appealed.

The judgment was correctly rendered; it is fully established that Parker paid Grelier the amount of the bond and that if the minor ever had a tacit mortgage on the property it was lost from failure to record the evidences of it prior to first of January, 1870, under the provisions of the Constitution of 1868.

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

Rehearing refused.


text:
    No. 5014.
    George Collins et als. v. Mississippi and Mexican Ship Canal and Draining Company.
    This is made up of separate suits; the judgments were separate; and in none of tlie oases were $500 demanded. They were consolidated and taken as it was merely for convenience. It follows that this court has no jurisdiction.
    Appeal from the Superior District Court, parish of Orleans. Hawkins, J.

      W. JB. Koonig, for plaintiffs and appellees. Mice & Whitalcer, for Van Orden, appellant. George 8. Laeey, City Attorney, for the city of New Orleans, garnishee.
   Morgan, J.

The plaintiffs, seven in number, instituted separate suits against the defendant and obtained judgment. Neither of the claims sued upon amounted to $500. They then garnisheed the city, and subsequently traversed the answers. The rule traversing the answers was taken in the cases as they were numbered, but was expressed in one motion. Judgment was rendered against the garnishees, who have appealed.

The suits were separate, the judgments were separate, and in none of the cases was $500 demanded. The rule, although written on one piece of paper, mentions each case by its number separately, and must, we think, be considered as a separate rule in each case, and taken as it was merely for convenience. It follows that we have no jurisdiction. The motion to dismiss must prevail.

Appeal dismissed.


text:
    No. 5030.
    P. A. Simmons, President Police Jury, and Charles Leroy, Treasurer, Parish of Natchitoches, v. D. H. Boullt, Tax Collector.
    The predecessors of the plaintiffs, who administered the offices of police jurors and parish treasurer during the years 1867, 1868, 1869, 1870, 1871 and 1872, had authority to settle with the defendant for parish taxes collected .by him during those years. If they permitted him to settle without taking the oath required by law, that he had not speculated in parish funds, this fact can not invalidate the settlements, although it shows a dereliction of duty on the part of those administering tbe parish as a municipal corporation. These settlements are final.
    After partial settlements made in April and May, 1873, for parish taxes collected during that year, defendant owing a certain balance thereof due up to the first of duly of the same year, tendered it in parish warrants to the parish treasurer, who properly refused to receive them, because tbe tender was not accompanied with the oath required by law. Failing to verify by bis oatb tbat the warrants tendered were actually received by him from the taxpayers, the defendant should have tendered United States currency to the amount due by him.
    A special tax having been levied and collected to pay judgments against the parish, plaintiffs claim judgment against defendant for the full amount thereof on tho ground that, as tax collector, the defendant had no authority to pay the same to the judgment creditors, it being his duty to pay over all funds collected by himself for the parish to the parish treasurer, to be disbursed by tbat officer according to law.
    . There is no doubt that this was the duty of the defendant; but as he applied the sum aforesaid to the discharge of the judgments for which said sum was assessed and collected, this court fails to perceive any injury that has resulted to the parish from this irregular proceeding. It would bo inequitable for the plaintiffs to recover judgment against the defendant for said amount; for, alter all, the funds received their proper destination, though the channel through which they passed was not the right one.
    APPEAL from the Ninth Judicial District Court, parish of Natchifoches. Orsborn, J.
    Jury trial. Jaelc & Pierson, for plaintiffs and appellees. Levy & Pierson, Ohaplin & Sons, Morse & Drcmguet, for defendant and appellant.
   Wyly, J.

The plaintiffs sue the defendant for $10,211 61 for the balance due by him for general parish taxes collected by Mm for the years 1867 and 1868; for $5364 33, for balance due for the year 1869 •, for $16,640, for parish taxes for 1871; for $22,650, for parish taxes for 1872; for the amount of parish taxes collected by him for the quarter ending July 1, 1873; and for $167,000, the amount of special taxes eollected, in currency, in 1869, 1870, 1871 and 1872, to pay judgments against the parish. They also sue to annul the settlements made by the defendant with the parish treasurer during the years 1871 and 1872. And they allege that said settlements were made in parish warrants, which were illegally issued and not such'as he actually received from the taxpayers; that he bought up said warrants at a low price to be used in said settlements; and that in making said settlements he failed to make oath that he had not speculated in the funds of the parish. They further allege that the defendant during the years 1869, 1871 and 1872, collected large sums in currency from the taxpayers in settlement of general parish taxes which he has withheld from the parish treasury, paying over instead thereof, worthless, spurious and illegal warrants.

The court gave judgment, on the verdict of a jury, against the defendant for $40,000, and he has appealed.

The predecessors of the plaintiffs, who administered the offices of police jurors and parish treasurer during the years 1867, 1868, 1869, 1870, 1871 and 1872, had authority to settle with the defendant for parish taxes collected by him during those years; and the receipts which are in evidence show that the defendant has fully settled for the taxes collected by him during those years. That they permitted him to settle without taking the oath required by law, that he had not speculated in parish funds, can not invalidate the settlements, although it shows a dereliction of duty on the part of those administering the parish as a municipal corporation. We regard these settlements as final.

It is shown that the defendant made partial settlements in April and May, 1873, for parish taxes collected by him during that year, and that up to first July, 1873, he owed a balance of $1890 17, which he tendered in parish warrants to the parish treasurer. We think the parish treasurer properly refused to accept the warrants, because the tender was not accompanied with the oath required by law. Failing to verify by his oatli that the warrants tendered were actually received by him from the taxpayers, the defendant should have tendered United States currency to the amount due by him as aforesaid for the quarter ending July 1, 1873.

For this amount there should be judgment against the defendant.

A special tax was levied to pay judgments against the parish during the years 1869, 1870, 1871 and 1872, amounting in the aggregate to $147,856 31.

On this assessment it is shown that the defendant eollected in currency $95,634 33.

Retaining his commissions, $9563 43, the defendant paid over the balance, $86,202 66, to the judgment creditors.

The plaintiffs concede that payments to this amount were made by the defendant, and that the judgments against the parish were reduced to that extent; but they claim judgment against him for the full amount thereof, on the ground that, as tax collector, the defendant had no authority to make said payments, it being his duty to pay over ■all funds collected for the parish by him to the parish treasurer, to be •disbursed by that officer according to law.

There is no doubt it was the duty of the defendant to pay over the funds in question to the parish treasurer; but having applied the $86,202 66 to the discharge, in part, of the judgments for which said sum was assessed and collected, we fail to perceive that any injury has resulted to the parish from this irregular proceeding, and we think it would be inequitable for the plaintiffs to recover judgment against the defendant for said amount. For after all, the funds received their proper destination, though the channel through which they passed was not the right one.

There are many interesting questions discussed in the elaborate briefs filed by the learned counsel engaged in this'litigation, which ■from the view we have taken of the subject it becomes unnecessary to •consider.

It is therefore ordered that the judgment herein for $40,000 against the defendant be reduced so as to amount to $1890 17, and as thus -amended that it be affirmed. It is further ordered that appellees pay ■costs of this appeal.

Rehearing refused.


text:
    No. 5032.
    Frederic Fluke v. Mrs. Mary A. Martin.
    The plaintiff sues defendant for the balance of an account for supplies furnished to make a crop, which he alleges inured to her benefit. It was incumbent on plaintiff to prove that the articles thus furnished had inured to the benefit of defendant, as alleged, but he has failed to do so. Besides, this court is satisfied as to the correctness of the defense— which is — that the debt is a community debt for which the defendant, who was a maraed woman, can not be held responsible.
    Appeal from tbe Ninth Judicial District Court, Parish of Rapides. Bowman, Judge ad hoc.

      B. A. Hunter, for plaintiff and appellee. T." O. Manning, for defendant and appellant.
   Howell, J.

The plaintiff sues Mrs. Martin for the balance of an account for supplies furnished for the use of the plantation to makethecrop of 1866, which he alleges inured to the benefit of the defendant. The defense is that the debt is a community debt for which the defendant, who was a married woman, can not be held responsible.

It was incumbent on the plaintiff to prove that the articles furnished by him inured, as he alleges, to the separate advantage of the defendant, in which however, we think, he has failed. The land, it is shown, was the separate property of defendant, but the admission that there existed a community between herself and her husband and other proof in the record satisfy us that the cultivation of the crop was under the control of the husband and the debt in suit is a community debt.

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

Rehearing refused.


author: Taliaferro J.

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    No. 3095.
    C. S. Sauvinet v. Thomas S. Maxwell.
    An incoming sheriff has not the right to require his predecessor to deliver to him the moneys realized by the latter on executed writs and for which the outgoing sheriff and sureties-are liable on his official bond.
    It will hardly be held that when a sheriff becomes functus officio he can execute writs and process of courts in his possession remaining unexecuted. His mission is completed and his authority to actively enforce the laws is at an end. But there is no impropriety or unfitness in his paying over moneys which he has in hand to the party legally entitled to receive it. Hois responsible'for it and not tho incoming sheriff, and the right of the-latter is unwarranted by law.
    Appeal from tbe Eighth District Court, parish of Orleans. Dibble J.

      D. Filleul, Eornor & Benedict, for plaintiff and appellee. A.Ff. & H. FT. Ogden, for defendant and appellant.
   Taliaferro J.

At the general election of tbe State in November 1870, the plaintiff was elected sheriff of the parish of Orleans. He complains that on coming into office he found that tbe defendant his predecessor had taken away all the public records of the sheriff’s office, tbe books, papers, writs and processes of every kind. He obtained an order of court to regain possession of tbe archives of the office and to-restrain the defendant from interfering with him in tbe discharge of bis official duties. Under this order all the records, books, papers, etc. were returned, but tbe defendant refused to deliver to the plaintiff the moneys that had come into his hands while in office as sheriff and •which belonged to parties in various cases. From the order in its entirety the defendant has appealed.

The only question left for consideration is : Has an incoming sheriff tbe right to require his predecessor to deliver to him the moneys realized by the latter on executed writs and for which the outgoing sheriff and his, sureties are liable on his official bond 9 The judge a quo found from an extensive examination of common law authorities that they established the doctrine that the outgoing sheriff should continue and complete any execution he may have begun; and according to this rule he deduced that the defendant would be in the right in holding all moneys realized by him on writs until paid to the creditor or taken possession of by the court from which the writ issued. But the judge was unable to find that this question has heretofore been directly presented to the courts of this State for adjudication. He found no reported case touching the issue and seems to have been governed in rendering his decision by inferences from a few cases (10 An. 310 — 12 An. 340 and 7 Rob. 500), that bear in his opinion, indirectly on the subject, and from his views of the genius and character of our government. It will scarcely be held that when a sheriff becomes functus offido he can execute writs and process of courts in his possession remaining unexecuted. His mission is completed and his authority to actively enforce the laws is at an end. But we see no impropriety or unfitness in his paying over moneys which he has on hand to the party legally entitled to receive it. He is responsible for it and not the incoming sheriff, and the right of the latter is unwarranted by law. We think therefore the judge a quo erred.

It is accordingly ordered and adjudged that the judgment of the dis-„ trict court be annulled and avoided. It is further ordered that there be judgment for the defendant, the plaintiff paying costs in both courts.

Rehearing refused.


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    No. 5024.
    William L. Morgan & Co. v. Police Jury of the Parish of Rapides.
    The police jury of the parish of Rapides is a political corporation of limited powers. Under-authority to clear the banks of navigable rivers “for the purpose of securing a free passage for boats and other small river craft,” R. S. sec. 2743, the police jury can not- • remove nor break up the woodyard of the plaintiffs, established years ago, and which in no manner interferes with the free navigation of Red river.
    The police jury has authority to control the roads of the parish, Revised Statutes, sec. 3364, but the ordinance complained of does not profess to have been passed, and obviously was-not passed, in the exercise of this power. Besides, a sufficient ground to defeat the pretensions of the police jury is that they have no authority to deprive plaintiffs of the right to pursue their occupation as keepers of a woodyar^, which is not alleged to-encroach on any public road.
    Appeal from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      William A. Seay, for plaintiffs and appellants. B. P. Hunter, District Attorney pro tern., for defendants and appellees.
   Wyly, J.

The plaintiffs, the owners of a woodyard in front of their property in the unincorporated village of Pineville, on Eed river, injoin the police jury of the parish of Eapides from enforcing the ordinance .adopted by said body, prohibiting, under penalty of fine and imprisonment, the petitioners from keeping for a certain period more than fifty cords, and prohibiting them absolutely from keeping wood for sale after a certain day, to wit: first January, 1874.

The court dissolved the injunction and the plaintiffs appeal.

It is proved that the woodyard does not in the least interfere with ■or obstruct the navigation of Bid river, or the landing and taking on of freight for the inhabitants, nor is it shown that it encroaches upon or obstructs the public road laid off on the bank of the river. The parish of Eapides is a political corporation of limited powers; and looking to the statutes conferring these powers, we fail to find authority for the police jury to pass the ordinances complained of.

Under authority to clear the banks of navigable rivers, “for the purpose of securing a free passage for boats and other small river ■crafts,” Eevised Statutes, sec. 2743, the police jury can not remove or break up the woodyard of the plaintiffs, established years ago, and which in no manner interferes with the free navigation of the river. There is no other statute giving the police jury authority in regard to the navigation of the rivers.

They have authority to control the roads of the parish, Eevised Statutes, sec. 3364, but the ordinance complained of does not profess to have been passed, and it obviously was not passed in the exercise •of this power. If the police jury have authority to prevent the plaintiffs from keeping a woodyard in front of their property in the unincorporated village of Pineville, they can likewise prevent the ■establishment and administration of a woodyard in any other part of the parish; and thus they can arbitrarily break up the- legitimate occupation of those engaged in supplying boats with fuel, and, to that •extent, aiding in the navigation of Eed river. But a sufficient ground to defeat the pretensions of the police jury is, they have no authority to deprive the plaintiffs of the right to pursue their occupation as keepers of a woodyard. If this -woodyard encroaches upon the land laid out as a public road, of course the police jury can cause the entire road to be opened and remove whatever obstruction there may be to said road.

It is therefore ordered that the judgment herein be annulled, and it is now ordered that there be judgment perpetuating the injunction in this case, appellees paying costs of both courts.


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    No. 3087.
    H. Pottier v. David Grant and W. R. Bell.
    In Ootober, 1867, David Grant injoined tbe execution of a judgment which his partner, George MeGibbon, had confessed against the commercial firm of Grant & MeGibbon in favor of R. 0. Hyatt, and the defendant, W. R. Bell, signed as security the injunction bond. Before the trial of the injunction suit, Hyatt transferred to the plaintiff, H. Pottier, all his right* title and interest in and to the judgment. The injunction was subsequently dissolved by a judgment in the court below which, on appeal, was affirmed in this court.
    This suit is brought by Pottier, the transferree, to recover damages on the injunction bond. It is contended by defendants that there is no privity between them and the plaintiff, because the bond is not in his favor, and the right to claim damages for the illegal in* junction was not transferred to plaintiff together with the transfer of the judgment injoined.
    This defense is not well founded. The injunction suit passed as an accessary to the plaintiff with the judgment he bought from Hyatt. After said purchase the plaintiff alone had an interest in resisting the injunction which had but a short time before been taken out, and became the real defendant in said suit, because he was the owner of the judgment injoined, and the injunction bond, although in favor of Hyatt, must he held to he in favor of the owner of said judgment, who acquired the essential right to execute it and also to claim damages for the illegal restraint of the exercise of that right.
    Appeal from the Fourth District Court, parish of Orleans. Théard, J.

      Breaux & Benner, for plaintiff and appellee. Bartlette, BoseUus & Philips, for defendants and appellants.
   Wyly, J.

The defendants, the principal and the surety, on an injunction bond in the case of David Grant v. R. C. Hyatt and sheriff, appeal from the judgment condeming them in solido to pay the plaintiff $1314 48, the amount of general and special damages alleged to have been suffered by him by reason of said injunction.

It appears that in October, 1867, David Grant injoined tbe execution of the judgment which his partner, George MeGibbon, had confessed against the commercial firm of Grant & MeGibbon in favor of R. C. Hyatt, and that William R. Bell, tbe defendant, signed as surety the injunction bond. Before the trial of this suit R. C. Hyatt transferred to the plaintiff, H. Pottier, all his right, title and interest in and to the judgment injoined.

The injunction was subsequently dissolved in the lower court and. on appeal the judgment was affirmed by this court. 22 An. 411.

The important question is : Can the plaintiff, the transferree of the judgment injoined by tbe defendants, recover damages on the injunction bond subscribed by them in favor of R. C. Hyatt and sheriff?

On the part of the defendants it is contended that there is no privity between them and tbe plaintiff, tbe bond not being in his favor and tbe interest of Hyatt in the injunction suit, to wit: Tbe right to claim damages for the illegal ini unction, not having been transferred to the plaintiff together with tbe transfer of tbe judgment injoined. And in support of this position they cite tbe case of Tete v. Villavasa, 6 An. 271. On the other hand the plaintiff contends that the judgment having been transferred to him immediately after the injunction, the suit last named was really conducted by the defendants contradictorily with him until it was finally decided two years thereafter by this-court; that he was the real defendant during all the litigation of the injunction suit and he was the real party damaged thereby, although Hyatt was the nominal defendant. We are of the opinion that the injunction suit passed as an accessory to the plaintiff with the judgment he bought from Hyatt. In acquiring the judgment he necessarily acquired the right to execute the same, and also to resist the injunction of the defendants restraining the exercise of this right. That after said purchase the plaintiff alone had an interest in resisting the injunction which the defendants but a short time before had taken out f and that he became the real defendant in said suit, because he was the owner of the judmenfr injoined. And the injunction bond, although in favor of Hyatt, must be held to be in favor of the owner of the judgment injoined. The transfer of the judgment would have been a vain thing, if it did not carry with it the essential right to execute it and also to claim damages for the illegal restraint of the exercise of this right by the injunction of the defendants.

For nearly two years after the plaintiff bought the judgment from Hyatt the defendants kept up the litigation of the injunction suit, restraining the plaintiff from executing his judgment and otherwise greatly damaging him. If they can escape liability to him, they will escape all liability; because Hyatt, the former owner, can not recover from them damages which he did not suffer, but which were incurred by the plaintiff. The defendants would thus be permitted to damage the owner of a judgment by the illegal exercise of the writ of injunction and incur no liability whatever on account thereof.

The case of Tete v. Villavosa, 6 An. 271, is not like the one now before the court. There the injunction was dissolved with damage» before the transfer of the original judgment by Cantrelle & Villavasa to the Ocean Insurance Company. At the time of the transfer Cantrelle & Villavasa had two judgments, one for the amount of their original demand against their judgment debtor, and the other for the amount of damages which they incurred by the illegal injunction taken out by their judgment debtor. They only transferred the original judgment. And when they sought to enforce their other judgment for damages, the judgment debtor injoined on the ground that he had settled it with the transferree of the original judgment; and that the transfer of the original judgment carried with it as an accessary the judgment for damages.

The court correctly held that the judgment for damages did not pass as an accessary with the sale of the original judgment. Here Hyatt transferred the original judgment very soon after the injunction was taken outj and the two years’ litigation of the last named suit was ■contradictorily with the plaintiff, the transferree of Hyatt, who was restrained during this period in the exercise of his legal right and who suffered the damages resulting from the illegal injunction. In the case cited the transferree suffered no damage and was not restrained in the exercise of a legal right, because the injunction had been dissolved with damages before said tiansfer. Here, however, the plaintiff was the real party in the two years’ litigation of the injunction suit and he has suffered the damages of which he complains.

Judgment affirmed.


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    No. 5052.
    Mrs. Julia Scott and Husband v. The World.
    At a succession sale of the property of the estate of Horace Groves, deceased, made in the parish of Tensas on the eighteenth of April, 1868, a certain tract of land was adjudicated to E. Slicer. He afterwards sold the land to Mrs. Julia Scott, who obtained a monition in the parish of Tensas to secure her title, and said monition was homologated by judgment of the district court on the twentieth of October, 1873, from which judgment an ,yj appeal has been taken by certain heirs of the deceased, on the ground that said succession had been fraudulently opened in the parish of Tensas, when it was well known that it had been opened and was being administered in the parish of Madison, where the land in question was situated, before its being subsequently located in the parish of Tensas, in consequence of a change of boundaries by virtue of an act of the Legislature.
    In this case, Mrs. Julia Scott seeks by a monition taken out in the parish of Tensas to defeat a claim set up against her in the district court of the parish of Madison for the very tract of land sought to be disencumbered of all adverse claims by the monition. To this petitory action of the appellants in the district court of the parish of Madison, Mrs. Scott had answered, and when this suit was in progress in the proper court, she applied for a monition in another parish. It would be subversive of all propriety of legal proceeding if Mrs. Scott could by a flank movement of this sort conclude the rights of the appellants and confirm irrevocably her title to the land.
    The appellants are not therefore affected by the judgment homologating the monition. Their judicial demand, claiming to be the owner of the land, was to all intents and purposes as effectual notice to Mrs. Scott, as if they had presented themselves in the parish of Tensas and made a formal opposition to the monition.
    from the Thirteenth Judicial District Court, parish of Tensas. Hough, J.

      Thomas P. Farrar, for appellees. F¡. D. Farrar and John Pay, for appellants.
   Taliaferro, J.

This case is brought up by an appeal taken from a judgment of the district court homologating a monition. The history of this litigation seems to be as follows: At a succession sale of the property of the estate of Horace Groves, deceased, made in the parish of Tensas on the eighteenth of April, 1868, a tract of land containing three hundred and twenty-four acres, more or less, was adjudicated to-on e J. Edwin Slicer at the price of $486. Subsequently, in December,, 1870, Slicer sold the land to Mrs. Julia Scott. In the sheriff’s prooes verbal of sale the land is designated as “lots or fractional sections-forty-six and forty-seven of township fifteen north, of ranges nine and ten east.” In September, 1873, Mrs. Scott, alleging there was error in the description of the land by the sheriff in his deed to Slicer, the land sold constituting lots or fractional sections forty-six and forty-seven of township fifteen north, of range thirteen east, petitioned the district court of the parish of Tensas for a monition to quiet her title to the land under the proper description, and by that means to correct, the error of description made in the sheriff’s deed. The monition was-granted, and after advertisement of thirty days it was homologated by judgment of the district court rendered on the twentieth of October,. 1873.

The appeal from this judgment was taken by Rachael Lee Groves- and Catherine Groves, the wife of one McDonald. These appellants represent themselves as beiug residents of Ohio county, State of West Virginia. They allege that they are the children and only heirs of Horace Groves, deceased, late of the parish of Madison, Louisiana;, that their father at his decease left as part of his succession a tract of land with improvements upon it lying within the parish of Madison, as the boundaries of that parish existed at the opening of their father’s succession; that long subsequent to that time, by an act of the State Legislature, a change was made in the location of the division line between the parishes of Madison and Tensas, by which the land in question was included within the newly established boundaries of the parish of Tensas. They allege that subsequent to this change of boundary, their uncle, one Elijah W. Groves, fraudulently caused the succession of their father to be opened anew in the parish of Tensas,, well knowing that it had been opened in the parish of Madison, and was then being administered there; that by means of this fraudulent proceeding he caused the land of their father’s succession to be sold under color of judicial proceeding, and through an interposed person became the owner thereof in the name of his wife, Julia M. Scott, who,, after the death of Elijah W. Groves, intermarried with one George T. Trezevant, and still claims and holds possession of said land. They allege that in the year 1872, the appellants being both minors, their mother and guardian instituted a petitory action for the recovery of tbe aforesaid land;.that Julia Scott and husband were made parties to that suit and duly cited; that they have answered, and that the suit is now pending; that after the said parties had been cited and made answer, and before a final trial could be had in the ordinary course of litigation, they took out the monition fraudulently and surreptitiously, without the knowledge of the appellants, and when they were utterly ignorant of the proceeding; that they caused the monition to be homologated contrary to law for the following reasons:

First — -The parties were not entitled to the monition, a suit against-' them actually pending for the property which they seek to obtain title-to by an ex parte proceeding in the form of a monition.

SecondsThat the judgment of homologation was rendered on the first day of the term, which was irregular for the reason that being in the nature of a citation, no legal action could be taken on it that day.

Third — That the monition was granted by the parish judge, who is not authorized by law in matters of monition to render orders in the absence of the district judge.

Under the facts and circumstances of this case, the monition can not avail Mrs. Scott as against the appellants. - Here the party seeks by a monition taken out in the parish of Tensas to defeat a claim set up against her in the district court of the parish of Madison, for the very tract of land sought to be disencumbered of all adverse claims by the monition. To this petitory action of the appellants Mrs. Scott has-answered, and the suit is in process in the proper court, and was so when she applied for the monition. It would be subversive of all propriety of legal proceedings if she could by a flank movement of this sort conclude the rights of the appellants and confirm irrevocably her title to the land. The appellants are not affected by the judgment homologating the monition. They had, before the monition was applied for, come forward and made known by a formal judicial demand, claiming to be the owners of the land and denying all title to it in Mrs. Scott, the grounds upon which they objected to her being quieted and confirmed in her claim. This was to all intents and purposes as-effectual notice to Mrs. Scott as if they had presented themselves in the parish of Tensas within the thirty days required, and asserted their title by a formal opposition.

The second and third points made by the appellants it becomes unnecessary to examine.

It is therefore ordered that the judgment appealed from be and it is hereby decreed and declared to be null and inoperative as regards the rights and claims of the appellants to the land in controversy, and the judgment homologating the monition is in that respect amended. It is further ordered that as thus altered and amended the judgment be affirmed, the appellees paying costs of this appeal.

Rehearing refused.


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    No. 4784.
    State ex rel. Attorney General v. Accommodation Bank of Louisiana.
    The important question in this case is: Has act Ho. 77, of the legislative session of 1870, entitled “ An Act to authorize the stockholders of the Loan and Pledge Association ” to change the name of the incorporation, and to grant certain privileges to said association, been properly accepted ¶
    The answer must be in the negative. .The acceptance of an act which fundamentally changed the character of the institution, should have Deen by the unanimous consent of the stockholders. The assent which was given by a majority is not sufficient.
    Legislative alterations of the charter of a private corporation, when merely auxiliary and not fundamental, may be adopted by a majority of the corporators, and such acceptance will bind the whole; but if such alterations be fundamental, the acceptance must be unanimous.
    Appeal from the Superior District Court, parish, of Orleans. SawIcins, J.

      A. JP. Field, Attorney General, John Bay, Ootton & Levy, for plaintiff and appellee. Says & Few, for defendant and appellant.
   Wyly, J.

On thirty-first October, 1868, the Legislature passed act No.'212, entitled “An Act to'incorporate the Loan and Pledge Association.” The object of the association was to loan money on pledge of movable property.

On ninth March, 1870, they passed act No. 77, entitled “An Act to authorize the stockholders of the Loan and Pledge Association to change the name of the incorporation and to grant certain privileges to said Association.” Section 4 of said act provides' that “ the said Association shall have power to receive money on deposit, and shall have and exercise all the privileges of private banks.”

This suit was brought by the Attorney General, under the intrusion act, against the defendants, on the ground that they are exercising the powers conferred by act No. 77 without having legally accepted the same, and therefore they are exercising the functions of a banking corporation without being legally incorporated. The defendants pleaded the general denial and alleged that act No. 77, entitled “ An Act to authorize the Loan and Pledge Association to change the name of the incorporation and to grant certain privileges to the said Association,” has been complied with in every respect.

The important question is, has act No. 77 been properly accepted ? The alteration proposed by this act to the charter of the Loan and Pledge Association fundamentally changes its character. Instead of merely to loan money at a certain rate of interest on movable property, the corporation, under the amendment proposed, is authorized to receive deposits and to do a general banking business. The acceptance of this grant should have been by the unanimous consent of the stockholders. The assent of a majority, which was given, was not sufficient.

Legislative alterations of the charter of a private corporation when merely auxiliary and not fundamental, may be accepted by a majority of the corporators, and such acceptance will bind the whole; but if such alterations be fundamental, the acceptance must be unanimous. Woolfolk v. Union Bank, 3 Caldwell’s Reports, page 489: The assent of the subscribers must be obtained to any amendment of the charter which materially or essentially alters the conditions upon which the original contract of the parties was made.” 11 Georgia 433. See also 2 Metcalf 314.

It is therefore ordered that the judgment herein in favor of the plaintiff be affirmed with costs.