author: Wyly, J. Taliaferro, J.

text:
    No. 2923.
    Eugene E. Levy v. Pike, Brother & Co.
    The depositary is “bound to use the same diligence in preserving the deposit that he uses in preserving his own property.
    “Where the deposit was a gratuitous one, and where the abstraction of the thing deposited seems to have been one of those bold and adroit acts which are carried out successfully in defiance of ordinary prudence and diligence, and the possibility of which is seen only after its accomplishment, the depositary is not liable, as he would be if the loss arose from gross or inexcusable negligence on his part.
    APPEAL from the Seventh District Court, parish of Orleans. Oollens, J. (Special jury trial.)

      Hyams & Jonas, for plaintiff and appellant. Hays & New, for defendants and appellees.
   Wyly, J.

The plaintiff, a money broker of the city of New Orleans, sues the defendants, who are engaged in a banking business, for $7504 54, the value of the contents of a tin box deposited by plaintiff with the defendants for safe keeping, which was stolen by thieves on thirteenth day of December, 1869, and for the further sum of $400, the reward paid to recover a portion of the contents of said box, not included in the above estimate of loss, and also $100 costs of advertising the robbery. The plaintiff alleges that this loss was occasioned by the negligence and want of care of the defendants, the depositaries.

The defendants deny that there was a want of care on their part, and aver that they exercised the same attention in preserving the tin box of plaintiff they exercised in preserving similar boxes belonging to other depositors, and the same they exercised in keeping their own property; and this attention and method of acting were well known to plaintiff, who acquiesced in and took advantage thereof for his own ■convenience.

On the verdict of a special jury, the court gave judgment for the ■defendants, and the plaintiff appeals.

It appears that during the year 1869 the plaintiff deposited his money and kept his account with defendants; he also deposited with them every night the tin box in which he kept his stocks, bonds, scrips, uncurrent money, warrants, jewelry, gold, and marketable securities •of every description.

He was in the habit of delivering the box to them between 4 and 5 P. M., every evening, and calling for it every morning, between 8 and S A. M.

On receiving the box, the defendants would give plaintiff a metallic check, “No. 1786,” on which, besides, was engraved these words: “ Pike, Lapeyre & Brother, deliver to bearer,” and the box would only be returned to the plaintiff on presentation of this check.

It was the custom of the defendants to take care of similar boxes for their depositors, and sometimes for those who did not keep bank accounts with them. They had a large vault in the rear of their building, in which over a thousand boxes of a similar character, belonging to various persons, were deposited for safe keeping.

It is proved that the plaintiff sustained the loss complained of by reason of the loss of the tin box, which was deposited with defendants for sake keeping.

It appears that on the morning of the thirteenth of December, 1869, before business hours, the receiving teller of the defendants brought the box in question, with several others, from the vault in the rear of the building, and placed it on or under a table, on the side of the office occupied by him, for the purpose of having those boxes convenient to be delivered to their owners during business hours, and for the purpose of saving the time that would be consumed in going to the vault for them when called for.

At this time, there was no one in the office, except the paying teller, who occupied the opposite side, with his back to the receiving teller, and who was engaged preparing and watching the money lying before him for the day’s business. The front door was partly open, and the door to the office of the president of the bank, on the same side of the bank, that was occupied by the receiving teller, was not locked; and the door from the president’s room leading into the bank, near the table, where the boxes were placed, was also unlocked.

In this condition of things, after placing the boxes on or near the table as before said, the receiving teller had occasion to go to the privy in the back yard, and was absent from the office ten or fifteen minutes. On his return, it was found that the box of the plaintiff had been stolen. No one, as before said, was in the bank, except the paying teller, who was occupied, with his back to the table, and the part of the office occupied by the receiving teller. It is probable that the thief or thieves entered the front door, and finding the receiving teller not at his place, and no one else in the office, except the paying teller, whose back was turned, they passed into the president’s room, and from there into the bank through the unlocked doors referred to, and got the tin box of the plaintiff from the table, or the place where it was placed near the table, and made their escape with it, before the return of the receiving teller to the office.

It is shown that frequently the plaintiff, when depositing the box of an evening, saw it placed on the table referred to, and on one occasion he entered the bank and placed it there himself; but on such occasions there were always several clerks and other persons in the bank, so that there was little or no danger of thieves stealing it from the table where it was temporarily left.

The object of depositing the tin box was undoubtedly for the purpose of having it kept safely in the large vault, which the defendants had prepared for their customers, and where a thousand valuable-boxes were kept every night.

The plaintiff had a good bank account with the defendants, and they doubtless found it profitable to receive cash deposits from their customers. It is not probable that the defendants prepared this large vault, the numerous metallic checks, and made such ample preparation to receive and take care of boxes containing valuable articles, scrips, bonds and marketable securities of every kind merely as an act of disinterested benevolence. On the contrary; it is shown that the owners of nearly all the boxes kept their currency deposited with the defendants ; and we believe the object of this vault, holding out to business, men a safe place to keep their valuable boxes, was to induce the deposit of money in the bank of the deiendants.

Their object was doubtless to increase their deposits and, of course,, enhance their profits; and to accomplish it they held themselves out to the business community as prepared to take care of their valuable-boxes.

The taking care, therefore, of these boxes was a part of the business-of the bank, by which they doubtless induced cash deposits and made-considerable profits. We, therefore, do not regard the deposit in question as only a gratuitous one. Something more than no gross negligence or fraud was expected from the defendants. They were not merely gratuitous bailees, receiving a voluntary deposit, and liable-only for “gross negligence or fraud;” they were bound to exercise such diligence as prudent bankers would exercise in taking care of and-preserving a thing of that character deposited with them.

Even were the defendants only bound for gross negligence, we think they were grossly negligent in this case. “ In determining what gross negligence is (says Judge Story) we must take into consideration what is the thing bailed. * * * Care and diligence are to be propor-

tioned to the value of the goods, the temptation and facilities of stealing them, and the danger of losing them.” And to illustrate it, he says : “ If a bag of apples were left for a short time without a guard

it would be no more than ordinary neglect, but if the bag were of jewels or gold, it would be gross negligence.”

The box in question was very valuable ¡ it was a great temptation to thieves coming into the bank, and finding the doors leading to it unlocked, and the receiving teller absent from his place, with no one to protect it, the paying teller being engaged in his own duties and his back turned to the box. We think it was gross negligence for the receiving teller to bring from the vault the tin box in question, and leave it unguarded, with the doors unlocked. And for this negligence the defendants, his employers, are responsible.

It is therefore ordered that the judgment herein be annulled; and it is further ordered that the plaintiff recover of the defendants $8000 54, with legal interest thereon from tenth January, 1870, and costs of both, courts.

On Rehearing.

Taliaferro, J.

Prom a re-examination of the facts of this case,, we think it is shown that the deposit was a gratuitous one. Then the-depositary is not to be held to that rigid accountability he would have-been had the contract been one of hiring, or had the deposit been made at the request of the depositary, or solely for his advantage, or had it been expressly agreed that he should be answerable for all neglects. C. C. 2938. None of these conditions appear to have entered into the-agreement of the parties in this case. “The depositary is bound topsq the same diligence in preserving the deposit that he uses in pre serving his own property.” C. C., article 2937. We do not find that the depositary in this instance has failed to comply with the obligation imposed upon him by this article of the Code, nor can we say, from all the circumstances shown, that the loss arose from gross or inexcusable negligence on his part. The abstraction of the box seems to have been one of those bold and adroit acts which are occasionally ■carried out successfully in defiance of ordinary prudence and diligence. Being accomplished, its possibility is seen. Before it was attempted, 1ts probability would scarcely have been conjectured. Seeing now how it might have been prevented, is no sound reason for contending that there was not proper diligence used to prevent it.

A review of the law and evidence of the case brings us to the conclusion that our former decree should be changed.

It is therefore ordered that the judgment first'rendered by this court in the present case be annulled and set aside. It is now ordered that the judgment of the district court be affirmed, with costs.

Mr. Justice Wyly adheres to the original opinion.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 4644.
    Marcel Guidry v. J. Jeanneaud & Co.
    "Where certain funds belonging to A were sequestered in tlie bands of B, bis agent, at the suit of C, and said funds were paid to 0, by virtue of a judgment wbicb was not appealed from;
    Held — That tbe payment was good against A, wlio could not recover tlie amount from B, on tbe plea tliat be was not cited, and therefore was not bound by tbe judgment, because it was proved that be bad ample notice and knowledge of tbe proceedings. He needed not tbe permission of B, bis agent, and tbe garnishee in tbe suit, to appear in said suit, and could have appealed from tbe judgment, bad be seen fit to do so. Under tbe circumstances of tbe case, as they appear in tbe record, B can not be forced to pay to A what be was compelled to pay to A’s creditors by a court of competent jurisdiction.
    APPEAL from the Sixth District Court, parish of Orleans. Leauniont, J.

      Charles Louqm, for plaintiff and appellant. J. A. Seghers, for defendants and appellees.
   Taliaferro, J.

The defendants, in November, 1871, acting as the agents of the plaintiff, received for him, from the Queen's Insurance -Company, $4500. Of this sum the defendants, at the instance of and ■by the sanction of the plaintiff, paid out to different parties $3900, leaving a balance of $600 in their hands, and in relation to this balance arose the controversy forming the subject of this suit.

The defense is, that by a judgment of the Sixth District Court, rendered in favor of Blancand & Guitet, against them, commenced by sequestration, they were compelled to pay out of this balance of $600 in their hands the sum of $491 61, a debt owing by Guidry, the plaintiff, to Blancand-& Guitet; that they paid the costs of that suit, amounting to $30 70, and the remainder, $77 69, was allowed the defendants, by order of court, for attorney’s fees, etc., incurred and paid by them as garnishees in the proceedings in court, and which they defended in the interests of the plaintiff. In the court below there was judgment in favor of the defendants, and the plaintiff appealed.

This case turns upon a question raised by a bill of exceptions in the record. The plaintiff objected to the introduction in evidence by ■defendants of the judgment of Blancand & Guitet, offered to show the disposal of $491 61, a part of the balance of the $600 in the hands ■of the defendants. The objection was that Guidry, the plaintiff, not •having been a party to the judgment, was not bound by it. The court overruled the objection on the ground that the letter of Guidry’s •counsel, addressed to the defendants, Jeanneaud & Co , at the time the suit was instituted, and Guidry’s receipt to the defendants, both of which are in evidence, sufficiently identify Guidry with the suit. The letter of the attorney is in these words:

“New Orleans, December 20, 1871.
“Messrs. Jeanneaud & Oo :
“ Gentlemen — At the request of Marcel Guidry allow me to inform you that he is not made a party to the suit brought by Blancand & ■Guitet against you before the Sixth District Court for the parish of Orleans, under No. 2886 of its docket; that the money sequestered and ■claimed is not the property of Messrs. Blancand & Guitet, and that ■said Marcel Guidry is not indebted unto them for the amount claimed. The interest of Marcel Guidry being solely at stake, with your permission, he will defend the suit so brought, and pay the expenses of court and of the attorney, relieving you from all responsibility. In case you fail to accept this proposition, or to defend the suit properly, the said Guidry will hold you personally responsible for all damages he may ■suffer in the premises.
“Very respectfully, your obedient servant,
“ CH. LOÜQUE, Attorney.”

'The receipt reads as follows:

“Nouvelle Orleans, 27 Novembre, 1874.
■“Begu de Messieurs J. Jeanneaud & Cie. la somme de cinq cent cinquante piastres et quarante-et-un sous pour balance me revenant de mon assurance, moins six cents piastres que ces Messieursgardent pour un (garnishee) de la maison Blancand & Guitet, et deux mille piastres pour la maison Bochereau & Co.
“(Signed) M. GUIDBT.”

It seems clear from the evidence that Guidry had full knowledge of the pendency of the suit of Blancand & Guitet, and that he had ample time to set up all the defenses in his power by appearing and defending himself in person.

But it has been frequently held by this court that no valid judgment can be rendered against a party unless he has been legally cited; 2t An. 630, or voluntarily answers to the suit. Knowledge of the suit brought home to the defendant in any other way will not cure a defective citation ; 19 An. 360. Guidry not having been made a party to the proceeding in which his rights were to be affected, no valid judgment could be rendered in that proceeding to affect those rights. 7 N. S., 161 ; 13 An. 374.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that the plain tiff recover from the defendants, Jean Jeanneaud and J. Y. Cathalogne, in soUdo, the sum of sis hundred dollars, with five per cent, interest per annum from the twenty-third day of November, 1871, and all costs of suit.

On Rehearing.

Morgan, J. Marcel Guidry, who resides in the parish of St. James, was entitled to receive a considerable sum of money from one of the insurance offices of this city. He appointed Jeanneaud & Co. to receive this money. It was paid to them. Guidry owed a number of parties in New Orleans; among others, Blancand & Guitet, to whom he addressed the following letter:

“St. Jacques, ce ler Novembre, 1871.
Messieurs Blancand & Guitet:
Je viens de recevoir votre lettre. Yeuillez, je vous prie, porter mon compte & Monsieur Jeanneaud & Cié., qui vous payera aussitót que l’assurance lui aura payé. Tout á vous. M. GUIDRY.”

This letter was presented to Jeanneaud & Co. by Blancand & Guitet, and they promised to pay the sum due as soon as the insurance money should have been collected. Subsequently, however, Guidry countermanded these instructions, and Jeanneaud refused to pay. "Thereupon Blancand & Guitet brought suit, and sequestered the money in Jeanneaud & Co.’s hands. •

There was judgment ordering the sum claimed by Blancand & Guitet to be paid to them; from which judgment no appeal was taken. Under it Jeanneaud & Co. paid the money. It was objected to the introduction of this judgment, that Guidry was not properly cited, and was, in fact, no party to the suit. In a former proceeding, instituted on the eighteenth November, 1871, Blancand & Guitet proceeded against these funds in the hands of Jeanneaud & Co., by which they were injoined from paying over this money to Guidry. Subsequently, to wit, on the twenty-seventh Novémber, 1871, Guidry seems to have had a settlement with Jeanneaud & Co., as appears from the following receipt:

“Nouvelle-Orleans, 27 Novembre, 1871.
“Repu de Messieurs J. Jeanneaud & Cie, la somme de cinq cent cinquante piastres et quarante-et-un sous, pour balance me revenant de mon assurance, moins six cents piastres que ces Messieurs gardent pour un (garnishee) de la maison Blancand & Guitet, et deux mille piastres pour la maison Rochereau & Cie.
“M. GUIDRY.”

This proceeding seems to have been set aside, but the money still remaining in the hands of Jeanneaud & Co. was again proceeded against. It was in this proceeding that judgment was rendered in favor of Blancand & Guitet, and under which Jeanneaud & Co. paid. Of these proceedings Guidry had ample notice. His counsel, as is shown in the letter to Jeanneaud & Co., notified them that Guidry’s interest alone was at stake, and that with their permission he would appear and defend the suit, otherwise they would be held responsible. He needed not the permission of Jeanneaud & Co. to appear in the suit; they could not have hindered him from doing so, bad he liked; he could have appealed from the judgment, had he seen fit to do so. He did neither. Jeanneaud & Co. only paid a debt which he had acknowledged to be due, and the money for which he had left in their hands to pay. They paid only after they were ordered to pay by a ■court of competent jurisdiction, over them at least, and we do not think that under these circumstances they can be forced to pay to ■Guidry what they were compelled to pay Guidry’s creditor.

It is therefore ordered, adjudged and decreed, that the judgment •heretofore rendered by us be annulled, avoided and reversed, and it is further ordered, adjudged and decreed that the judgment of the District Court be affirmed with costs.


author: Wyly, J. Morgan, J.

text:
    No. 4328.
    Charles A. M. Poutz v. Auguste Reggio, Blanchin & Giraud, Garnishees.
    It lias never been field that, to make a valid inscription of a conventional mortgage, an entire copy of tlie authentic act in which, it is granted should be spread upon the public record. The object of registration is public notice, with reasonable certainty, of the substantial particulars of the mortgage; and when this is done, the purpose of the law is satisfied.
    The roiiiseription on the fourth of December, 1869, of a mortgage given in 1844, reinstated the inscription thereof, to take effect from the date of its inscription; and as this reinscription took place anterior to the plaintiff’s judgment, it follows that when the mortgaged property was sold under that judgment, it was first subject to the payment of the mortgage debt.
    APPEAL from the Seventh District Court, parish of Orleans. Oollens, J.

      JS. Howard MoOaleb, tor plaintiff and appellee. Sambola & Huaros, for defendants and appellants.
   Wyly, J.

In 1867, the defendant, Auguste Reggio, sold to the plaintiff one-half .of his sugar plantation in the parish of Plaquemines.

Subsequently there was a suit for partition, and the property was-sold by order of court to effect the partition.

Out of the half of the proceeds coming to Auguste Reggio, the purchasers, Blanchin & Giraud, retained in their hands $14,900, the amount of a conventional mortgage given by Auguste Reggio to his-brother, Edmond Reggio, in 1844.

The plaintiff subsequently obtained judgment against Auguste Reggio, caused execution to issue,’ and garnishment process to be served on Blanchin & Giraud. They answered the interrogatories,, stating: that they held this $14,900, belonging to Auguste Reggio, in order to discharge the mortgage existing on the plantation in favor off Edmond’ Reggio; and that all the other funds of said Auguste Reggio, remaining in their hands at the time of the purchase, were paid over to him, and they are in no manner indebted to him.

The plaintiff then took proceedings to traverse these answers and to-obtain judgment against said garnishees for the amount of hisfi.fa.,. making Octave Reggio, the curator of Edmond Reggio, who was inter-dieted, a party to the said proceedings.

The court came to the conclusion that the mortgage in favor of Edmond Reggio was perempted, and gave judgment requiring the garnishees to pay over to the sheriff the amount of the fi. fa. issued by the plaintiff.

The defendants and the garnishees objected to the form of the proceedings, and they contend that a revocatory action should have been resorted to, in order to set aside the mortgage and the judgment rendered thereon in favor of Edmond Reggio.

If the mortgage was never legally reinscribed since it was given in 1844, as appears by the evidence, it is without effect as to third persons, and it is no incumberance on the property in the hands of the garnishees.

As to the plaintiff, and as to the garnishees, the mortgage of Edmond Reggio is without effect for want of reinscription, and the latter has no preference on the funds of Auguste Reggio retained in the hands off said garnishees. The plaintiff, who has acquired the privilege of a seizing creditor on the funds by reason of the garnishment process, had no cause to bring a revocatory action to set aside the mortgage of Edmond Reggio, which was dead as to him for want of reinscription.

We therefore conclude that the court did not err in rendering the judgment appealed from.

Judgment affirmed.

On Rehearing.

Morgan, J.

On the twenty-fourth of November, 1871, Poutz obtained two judgments against Auguste Reggio, one for $1047 75, with legal interest from judicial demand, and the other for $6843 59, with eight per cent, interest from twenty-eighth December, 1867, less a credit of $1500, paid on the second February, 1869.

Fi. fas. issued on these judgments, and Blanchin & Giraud were made garnishees, and interrogatories were propounded to them. They answer and deny being indebted to Auguste Reggio in any sum of money, or that they have any property of any description in their hands belonging to him. Their answers were traversed, and Poutz. affirms that they are false. He alleges that Blanchin & Giraud held $14,900 in their hands nominally to pay a certain mortgage and judgment in favor of Octave Reggio, in his capacity of curator to his brother Edmond Reggio, which sum is really the property of Auguste Reggio, his debtor; that the mortgage resulting from this judgment is null and void as against Mm; that when it, the mortgage, was reinscribed in 1869, it was barred by the prescription of ten and twenty years; that the consideration of the mortgage was the price of slaves, and therefore without validity; that the pretended judgment rendered in the suit of Octave Reggio, curator of Edmond Reggio v. Auguste Reggio, is also null and void, because the court which rendered it had no jurisdiction ; because the proceedings were wholly ex parte and illegal;. because it was rendered and signed at chambers, and out of term time, and was never read or entered upon the minutes of the court; because the judgment was rendered and signed on first February, 1871, while the petition praying for it was not filed until the fifth; that there was. no suit pending when the judgment was signed, and that the subsequent filing of the petition could not give a retroactive effect to the judgment, which was of itself illegal; that the inscription of this judgment, its rendition and signature, was the result of a conspiracy and fraud between Octave Reggio, curator of his brother Edmond, Auguste Reggio, the defendant, and BlancMn & Giraud, the garnishees, for the purpose of putting Auguste Reggio’s property beyond the reach of his. creditors, and particularly to protect it against the claims of the plaintiff.

The evidence, consisting of the accounts between Blanchin & Giraud and Auguste Reggio, produced under a subpena duees tecum obtained by the plaintiff, establishes that when the interrogatories were propounded, Auguste Reggio was in debt to Blanchin & Giraud. It also established that at that time Blanchin & Giraud held in their hands $14,899 75, in the name of Octave Reggio, as curator of Edmond Reggio. The question which we have to decide is, to whom does this, money belong? To Edmond Reggio or to Auguste Reggio? To make satisfactory answers to these questions, the facts upon which they are propounded, so far as they relate to the parties, must be stated.

The Pointe aux Chénes plantation, with the slaves thereon, was inker■ited by th'e Reggios from their father and mother. It was sold in order to effect a partition. Auguste Reggio purchased it for $90,000. Among the children who inherited was Edmond Reggio, who was a .minor at the date of sale. Auguste Reggio was his tutor. His interest ■in the succession of his parents amounted to $14,899 79. Auguste Reggio became his debtor for that sum, to secure which a special mortgage and vendor’s privilege was reserved on the plantation sold. The sale took place, and the mortgage was recorded about the first April, 1844. At that time Edmond Reggio, as appeal's from the testimony, was about twenty years of age. This mortgage, it is contended, was reinscribed on the fourth December, 1869.

Edmond Reggio has been all his life insane. He was interdicted by judgment oi the court of his domicile on the fifteenth January, 1870. Octave Reggio, his brother, was appointed his curator. He is made a party to these proceedings by the plaintiff. On the first February, 1870, Octave Reggio, in his capacity of curator to Edmond Reggio, obtained judgment, in favor of his ward and against Auguste Reggio, for $14,899 79, and his right of mortgage on the Pointe aux Chénes plantation was recognized. The suit was brought at the common domicile of all the parties, and in the parish where the property was situated. It was brought out of term time, and was decided in chambers, and upon the confession of the defendants. The petition upon which the judgment was rendered was not filed until the fifth February. On that day fi. fa. issued, and the property mortgaged was seized thereunder.

We must now return to the transactions between Auguste Reggio and Poutz, tue plaintiff.

As we have before seen, Auguste Reggio became the owner of the plantation in question, subject to Edmond Reggio’s mortgage, about the .first April, 1844. He continued to be the sole owner thereof until the twenty-eighth November, 1867, when he sold the undivided half thereof to Poutz, the plaintiff, for $35,000 cash. In this act of sale it is-recited that the mortgage of Edmond Reggio rested on the property, and Auguste Reggio bound himself to have it released. This he never did. On the contrary, he caused it to be reinscribod, in December, 1869. It is thus apparent that in November, 1867, Poutz knew that the property which he purchased was encumbered with a mortgage in favor'of Edmond Reggio. On the sixteenth December, 1869, Poutz obtained a judgment against Auguste Reggio for the partition of the plantation (Pointe aux Chenes), held in common between them. In obedience to this judgment, the plantation was sold on the fifth February, 1870. It was on this day that Octave Reggio, curator, issued ■execution under the judgment which he had obtained against Auguste Reggio. The plantation was sold under the two fi. fas., and was pur•chased, by Blanchin & Giraud. The curator dispensed the purchasers from paying the amount due to his ward in cash. At this sale, the purchase price was $47,000.

The purchasers reserved in their hands an amount sufficient to pay some incumbrances which rested upon the property, and about which there is no dispute, and paid to the sheriff $14,320 in cash, being the amount coming to Poutz. They also reserved $14,899 79 “with which to satisfy the privilege and mortgage of Edmond Reggio.” All of which appears to have been done with the knowledge and consent of Poutz. Thus, when he purchased his interest in the Point. íiux Chénes plantation, he knew that it was'incumbered with Edmond Reggio’s privilege and mortgage ; and, when it was sold, he knew that the debt which it was given to secure remained unpaid. Although the amount which he had paid for his share of the plantation largely exceeded the debt due by his vendor to Edmond Reggio, and although his vendor had agreed to cause the mortgage by which it was secured to be released, he took no steps to compel him to comply with his contract. Thus he was reckless in purchasing property which was incumbered at the time of purchase, and careless in not seeing to it ■that the incumbrance was removed when he had the opportunity to do ■so. If he suffers, he has himself alone to blame. The first question which we are called upon to decide is, whether or no the reinscription of the mortgage of the first April, 1844, on the first December, 1869, •reinstated it. Plaintiff contends, first, that it was not reinstated in the manner required by the law j and, second, that it was barred by the prescription of ten and twenty years.

First — The mortgage is to be found, first, in the act of sale and partition between the heirs of the first April, 1844, in which the property is fully described, and in which it is declared: “Pour la part des mineurs Edmond et Octave Reggio, s’élevant h la somme de $29,790 50, le dit sieur acquéreur, en sa qualité de tuteur en prend charge. Pour garantir le paiement des dix billets ci-dessus dócrits á leur échéance respective et l’avoir des dits mineurs Edmond et Octave Reggio, dans le produit de cette vente, l’habitation et les esclaves, objets de la présente vente, sont et demeurent spécialement hypothóqués, ainsi que pour tout intérét óventuel qui pouvait résulter du non-paiement des dits billets et de l’avoir des dits mineurs.

On the same day a distinct mortgage on the same property was separately inscribed in the office of the Recorder of Mortgages, in book 4, folio 241, No. 860.

On its face the mortgage is perempted by the lapse of time. The •curator, however, contends that it was reinscribed in the manner and form required by law.

For the plaintiff it is contended that the only evidence of its reinscription is to be found in the following entry made by the Recorder immediately under the original deed, in book D of 1844, viz: “ Rein-scribed at the request of Mr. Auguste Reggio, this fourth day of December, 1869signed, E. Butler, Recorder. This, he says, amounts to nothing. Of this opinion was the District Judge, and of the same opinion were we when the case was first presented to us, and so thinking we gave judgment in favor of the plaintiff. Upon the law, applied to this state of facts, our minds have undergone no change. But a further examination has satisfied us that we, as well as the District Judge, erred as to the facts.

The original mortgage, which is contained in the act of sale and partition, and in which the debt due to the minor and the mortgage given to secure the same, is specifically set forth, and in which the property mortgaged is fully described, was recorded on the first of April, 1844. Another recital of the same mortgage in which the debt due the minor and the property are described at length, and identified with the firstact, was recorded on the same day in book 4, folio 241, No. 860. The reinscription was made on the fourth of December, 1869, in book D, No. 1708, folio 78. The two first named acts are in the French language,

I the third is in English. It commences: “Auguste Reggio, in favor of Edmond Reggio, as per act passed before Gilbert Leonard, then Parish Judge and ex-offieio notary public in and for this parish, on the first day of April, 1844, to secure full and punctual payment of the sum of $14,899 79, being the share or portion accruing to said minor from the succession of Nicholas Reggio and Caroline Jorda, his deceased father and mother, specially mortgaged and hypothecated in favor of said minor.” And here follows the description of the property, which description is a literal copy of the one in the act of the first of April, 1844, except as to the slaves which are not mentioned at all; as they did not exist at the time, there was no need to mention them. It was in fact the reinscription of the mortgage of 1844, and the recital of the Recorder that it was reinscribed at the request of Auguste Reggio, refers to the act of reinscription and not to the original mortgage. It can mean nothing else, as it is not found on the margin of the act of 1844, and is only found in the act of reinscription of the fourth of December, 1869. It is urged that under the decision in Shepperd v. Cotton Press, 2 An., the reinscription was not made in accordance with the law, because the entire act in which the mortgage is contained is not copied in lull.

“It has never been held, that to make a valid inscription of a conventional mortgage, an entire copy of an authentic act in which it is granted should be spread upon the public record. The object of registration is public notice, with reasonable certainty of the substantial particulars of the mortgage; and when this is done, the purpose of the law is satisfied. Suppose a mortgage creditor should go to the mortgage office and verbally state to the recorder all the essential-particulars of the authentic act of mortgage or judgment under which he claimed, and the recorder, instead of requiring a copy of the act or judgment, as he might do (articles 3330, 3331), should inscribe the particulars as stated; this would be good. Such is the spirit of what we held in Ellis v. Sims, 2 An. 254;” Bonnafé v. Lane, 5 An. 225. The case supposed by Mr. Justice Slidell in the decision just quoted is the case at bar, except that here it is the debtor who acknowledges the debt and causes the inscription, instead of the creditor, and causes to be stated in full the original amount by him due, and describes critically the property mortgaged to secure its payment.

In the succession of Pate, 6 An. p. 242, Mr. Justice Slidell again said: “The principal objection to the sufficiency of the registry is that they did not cause the acts of mortgage to be inscribed in full, but merely inscribed certificates of the parish judge before whom the mortgages were executed, in which, respectively, he certifies that an act of mortgage had been executed before him, the material and substantial details of which are stated. * * * We have hitherto said that the object of registration is public notice, with reasonable certainty; and we can not sanction a construction which would avoid the registry of a mortgage upon the ground that the entire deed of mortgage was not spread verbatim and literatim upon the public records.”

In Rogers v. Chander, 6 An. 349, it was said : It has been held in relation to the inscription of mortgages that although the law requires a copy of the act offered for record to be presented to the recorder of mortgages, it is not indispensable to the validity of the inscription that the entire act should be copied in the books of the recorder; and that a declaration that the mortgage exists, with a statement of dates and amounts, and a full description of the property, are sufficient.” These cases were all determined by the court which decided the Shepperd case, and are not considered as interfering with the doctrine of registry as laid down in that case. With them before us, we think we may say that in deciding that where a tutor causes the mortgage he has given in favor of one who has been his ward to be reiuscribed— the reinscription containing the date of the debt, and the amount thereof in principal, together with a description of the property subject to the mortgage upon the books of the recorder of mortgages, the law has been complied with — we are only following the line of safe precedents which has been marked out by our predecessors, whose opinions upon this subject entirely agree with our own.

Second — Was the debt, which the mortgage was given to secure, prescribed at the time the mortgage was reinscribed ?

That it existed at one time is not disputed. That Poutz knew it, is apparent from the fact that it is recited in the deed by which he became part owner of the property which was mortgaged to secure its payment. Auguste Reggio swears that he constantly acknowledged this debt. Octave Reggio swears to the same thing. They both swear that it was often acknowledged in the presence of Poutz; and this evidence is not contradicted This constant acknowledgment kept the debt alive. The reinscription of the mortgage of 1844, on the fourth December, 1869, re-established the inscription, to take effect from the date of its reinscription; and as this reinscription took place anterior to Poutz’ judgment, it follows that when the property was sold under that judgment, it was first subject- to the payment of this debt.

The next objection to the mortgage is, that it was given to secure the price of slaves, and is therefore immoral, illegal and without any validity whatever. Counsel for Edmond Reggio admits that the debt in question was partly the price of slaves — that is to say, to the extent of one-third of the amount. But he contends that the question of consideration of the sale of slave property is finally settled in favor of the bearer of such claims by the decisions of the Supreme Court of the United States, in the cases of White v. Hart and Osborn v. Nicholson, 13 Wallace, 647, 654. The interests of the parties in the case before us do not make it necessary that' we should discuss this question.

Since the year 1855, all debts bear interest at the rate of five per cent, per annum. The relative price of the slaves on the Pointe aux Chénes plantation to the land was, as it is established by the testimony, one-third for the slaves, two-thirds for the land. The price of the land, therefore, would be about $13,000. The interest on this sum at five per cent., since 1855 to the day of sale to Blanchin & Giraud — fifth February, 1870 — makes the debt due on the land alone far exceed the amount in the garnishees’ hands. This law we feel bound to apply to the protection oí the litigant before us, although it has not been invoked in his behalf.

The conclusions we have arrived at upon these points make it unnecessary for us to consider the question of the validity of the judgment obtained by Octave Reggio, curator, against Auguste Reggio; and so we are enabled to prevent the ruin of one who, once a minor, under a tutor, and always an insane person, and thus doubly the ward of the courts and entitled to their protection, without being called upon to review the settled jurisprudence of the State with regard to what is termed the slave consideration in contracts, and without changing in any manner our own decisions upon the subject of the reinscription of mortgages.

It is therefore ordered, adjudged and decreed that the judgment heretofore rendered by us be avoided, annulled and reversed. And it is now 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 garnishees, Blanchin & Giraud, and Octave' Reggio, curator of Edmond Reggio, and that plaintiff pay costs in' both courts.


author: Morgan, J.

text:
    No. 2986.
    Philip Drumm v. Hanna, Hitchcock & Sewell.
    Were it admitted that a partner can shield himself from responsibility by publishing that he -will not be responsible for debts contracted by Ms copartners in the interest of th'eir common venture, still the notice, even if sufficient, must be brought home to the party "who contracts on the responsibility of the firm. His telling his partners that he would not be responsible, does not affect the plaintiff, who was not notified.
    Under such circumstances, a copartner, who stood by and saw, without objections, a work done which was necessary for the prosecution of the business in which he was engaged, is bound to pay for it.
    from the Seventh District Court, parish of Orleans. Col-lens, J.

      Cotton & Levy, for plaintiff and appellee. Baee, Foster & Merrielc, for Hanna, defendant and appellant.
   Morgan, J.

We consider it established that the defendants were partners, carrying on a distillery near the bank of the Mississippi river. Sewell was the superintendent thereof. The distillery obtained its supply of water by means of a pipe which led to the river. This pipe was liable to be broken by steamboats, drift logs, etc., which were constantly passing.

It was considered necessary to protect this pipe. This was done by the plaintiff, who drove piles about and around it. The work was done at the instance of Sewell. Plaintiff charged one thousand one hundred dollars for it. Payment has been demanded and refused. He brings this suit to recover the amount due him. The work, it is proved, is worth the sum charged.

There was judgment against all the defendants.

Hanna alone has appealed. He denies the partnership; denies his-liability; and protests that he can not be held liable, because he had > notified the public that he would not be responsible, or pay any bills ■ contracted in his name, without his written order.

The notice does not allude to the partnership existing between the' parties, or mention the names of the copartners.

Assuming that a partner can shield himself from responsibility by publishing to the world that he will not be responsible for debts contracted by his copartners in the interest of their common venture— upon which it is not necessary that we should express any opinion— still it is evident to our minds that the notice, if sufficient, must be brought home to the party who contracts on the responsibility of the firm. In this ease, it is not shown that Drumm knew that any such notice had been published. Even if it had been, Hanna was present when the work was being done; he made no objection thereto; on the •contrary, we think the testimony shows he acquiesced in it. True, he told his copartners that he would not be responsible for the amount to be paid, but to bind the plaintiff, he should have notified him. This he did not do. As he stood by and saw the work done without objection, and as the work was necessary for the prosecution of the business in which he was engaged, he is bound to pay for it.

Of this opinion was the District Judge, and we agree with him.

Judgment affirmed.

Rehearing refused.


author: Wyly, J. Ltjdeling C. J.

text:
    No. 4337.
    Succession of J. M. Caballero.—Oppositions of Charles Maduel, Dative Testamentary Executor, et als.
    The account rendered to tlie lieir being a copy of the one previously homologated, contradictorily with the creditors, is prima facie correct.
    If the items thereof wore exorbitant and undue, the opponents should have administered proof to overcome the presumption of correctness existing in favor of the accountant by reason of the judgment of homologation. This has not been done. Illegal charges, however apparent on the face of the record, can be corrected.
    An executor can not keep in his hands the funds which, according to law, he was bound to deposit in bank, on the plea of retaining only the amount of a legacy duo to him, when the testamentary diposition in his favor, by the express terms of the will, was to be discharged out of a particular fund in Havana, Island of Cuba, of which he had not the seizin. The funds in controversy in this case wore not derived from that source, and ought not to have been retained and used by the executor.
    The sureties of the executor not having been cited and not appearing in this suit, the judgment rendered against them was annulled on rehearing.
    from the Second District Court, parish of Orleans. JDuvigneevud, J.

      Q. L. Bright, for dative testamentary executor and appellants. A. Voorhies, for Martinez et als., appellees.
   Wyly, J.

In February, 1872, this court decided that Maria Dolores Felicité Caballero, wife of Joseph Maria Conte, was the legitimate «daughter and sole heir at law of J. M. Caballero; annulled the will of said Caballero of date the twenty-first of March, 1852, and ratified in January, 1856, and ordered the dative testamentary executor to sender a full and complete account of his administration. F. P. Martinez, the dative testamentary executor, who had previously resigned, Tendered his account, crediting the succession with $16,692, the amount •of funds on hand and collected, and debiting it with charges amounting in the aggregate to $10,733 26.

To this account, Charles Maduel, the present dative executor, and Mrs. Conte, the sole heir at law, made opposition, disputing every •item charged against the succession, and alleging that the said account >does not contain a correct statement of the receipts and disbursements of said executor; that the accountant never paid, or was authorized to pay, the items with which he credits himself, the same being illegal, exorbitant and undue by the succession, ought not to be charged against it; that said executor is not entitled to any commissions, because his services have resulted in nothing but injury to the estate.

The opponents further show that the said executor received $16,692, of which $2157 50 was in gold, and did not, in compliance with law, deposit said moneys in a chartered bank and keep in his official capacity a bank book, consequently he is liable and should be condemned, jointly and severally with his sureties, to pay to said estate twenty per cent, per annum interest on said amount not so deposited, from the twenty-sixth day of November, 1866, until final payment; that he has not used proper diligence in collecting certain claims due the estate, amounting in the aggregate to $17,904 55, and by his neglect and inattention he has caused the estate to lose that amount, for which he becomes liable; and that he has utterly• failed and neglected to rent a valuable residence belonging to the estate on St. Louis street, causing a loss of $1800, for which he is also liable. The court dismissed the oppositions and' permitted the accountant to retain the balance of the money, for which he credited the estate, as a payment on the legacies made to him and his children by the will of Caballero. From this judgment the opponents appeal.

The account rendered to the heir being a copy of the one previously homologated, contradictorily with the creditors, is prima facie correct.

If the items thereof were exorbitant and undue, as alleged, the opponents should have administered proof to overcome the presumption of correctness existing in favor of the accountant by reason of the judgment of homologation. This has not been done.

There are several items of the account, however, that we can correct:

First — The charge of $50, reserved for future costs for the clerk; as the executor has resigned, the succession should not be charged therewith in his account.

Second — The item of $100, for affixing and removing seals, is illegal, the law only allowing $3 to the notary for such service. It must be reduced to the sum mentioned.

Third — Inventory and supplemental inventory and copies, $605; this charge should be reduced to $25; the inventories being before us, and the law fixing the fees of notaries.

Fourth — The item of $3000, to P. Soulé and L. Charvet for attorneys’ fees, should be reduced to $500; the extent of their professional labors appearing in the transcript, and the court being authorized to determine the value of their services.

Fifth — The item of $1000, to Q. A. Thomas, attorney of absent heirs, should be reduced to $100.

Sixth — The item of $300, charged for the services of appraisers, should be reduced to $16, the amount to which they were entitled under act No. 33 of the statutes of 1870.

Seventh — 'The items due to Ferrer, Gonzales and Bances, amounting in the aggregate to $1012 70, should be stricken from the account, as the proof is they have not been paid by the accountant.

Eighth — The item of $1331 59, charged as the executor’s commissions, should be stricken from the account. From the record before us, and in view of the illegal and exorbitant charges he has permitted to be allowed against the estate, we are satisfied that his administration has been an injury rather than a benefit to the succession. 4 An. 578:

Actually administering $16,692, this executor has presented charges amounting to some $9000, consisting almost entirely of funeral charges, attorneys’ fees, his own commissions, clerks’ fees, notary and appraisers’ costs, and auction charges.

Instead of renting out the residence belonging to the estate, inventoried at $30,000, he permits it to lie idle, and sets up charges for a keeper amounting to $246. An executor so_remiss and positively unfaithful in the discharge of his duties, deserves no remuneration for his services.

The charges, therefore, for fixing seals, inventories, attorneys’ fees- and appraisers’ costs, should be reduced from $5005 in the aggregate to $644 in the aggregate. While the sum retained for future costs of the clerk, the executor’s commissions, and the items charged as due to Ferrer, Gonzales and Bance, amounting in the aggregate to $2394 29, should be stricken from the account. $6755 29 should, therefore, be deducted from the $10,733 26 with which the executor credits himself in the account. This leaves the total charges $3977 97, which, deducted from the $16,692, funds belonging to the estate in the hands of the executor, leaves $12,714 23 due by him. This sum the executor should pay over to the opponents, with twenty per cent, per annum interest, because he failed to keep the same deposited in a chartered bank of this State, according to law. (Revised Statutes of 1870, p. 8, sec. 7.) The executor, however, contends that he was not bound to deposit this sum in bank, because under the will there was a legacy to him, in discharge of which he had the right to retain the funds in controversy. In support of this position he cites articles 1627 and 1628 of the Revised Code.

Article 1627 is not applicable, because the “ thing bequeathed” was-not in his possession at the opening of the succession. He acquired the funds in controversy subsequently, in his fiduciary capacity.

Article 1628 permits the testamentary executor, having seizin of the effects of the succession, to retain in his possession the amount of the legacy due him, subject to a restitution for the payment of debts.

The accountant, however, was not a testamentary executor; he was-only a dative executor. Assuming, however, that he had the right accorded by article 1628, this executor could not retain the funds in controversy, because the disposition in his favor, by the express terms-of the will, was to be discharged out of a particular fund in the hands-of Juan A. Bance, in Havana, Cuba. The funds in controversy were-not derived from that source, and ought not to have been retained and used by the executor.

As to the claims for damages against the executor, for failing to collect the several sums due the estate and for failing to rent out the-residence, we will remark that the opponents have not adduced sufficient proof to fix his liability.

It is therefore ordered that the judgment appealed from be annulled,, and it is now ordered that the opponents recover judgment against the accountant, E. P. Martinez, for ten thousand five hundred and fifty-six dollars and seventy-three cents, payable in currency, and the further sum of twenty-one hundred and fifty-seven dollars and fifty cents, payable in gold (the amount inventoried as belonging to the succession); and it is further ordered that there be judgment against said F. P. Martinez and his sureties, jointly and severally, for twenty per cent, per annum interest on twelve thousand seven hundred and fourteen dollars and twenty-three cents, from the twenty-sixth day of November, 1866, till paid.

It is further ordered that said Martinez pay costs of both courts.

Revised Code 1191, 1674; Revised Statutes of 1870, section 1465;, Verret v. Aubert, 6 L. 353; 14 An. 707; Revised Code, Art. 1150; 6 An. 427 ; 9 An. 412 ; 12 An. 445.

On Rehearing.

Ltjdeling C. J.

In the decree of this court rendered on the thirteenth of January, 1873, the securities of the executor were condemned to pay twenty per centum damages, under the penal statute of the State, because the executor had failed to deposit moneys collected by him as required by the law. R. S. p. 8, sec. 7.

Our attention was called to the fact that the securities were not parties to this suit, and for that reason we granted a rehearing.

The securities were not cited, nor have they appeared in the suit;, the judgment against them in this suit was, therefore, improperly rendered. 6. N. S. 635; 3 La. 434; 9 An. 85.

It is therefore ordered that so much of the decree of this court heretofore rendered in this case, as condemns the securities of the executor to pay the damages aforesaid and costs, be annulled, and that in other-respects the decree remain undisturbed.


author: Howell, J.

text:
    No. 4631.
    City of New Orleans v. Salamander Insurance Company.
    Each proviso, tlie one in section 15 of act Uo. 42, approved March 3, 1871, and the other in section 15 of act Uo. 14, approved March 5, 1872, refers simply to the license tax, and not to taxation on the property, capital, etc., of insurance companies.
    Under the act of 1871, the payment of $1000 as a license, and of one per centum on the premiums earned from policies issued through agencies in the State, in addition to said license, will exempt the company from any other license for doing business throughout or in any part of the State — the one per centum being considered sufficient from the agencies in the State, and the $1000 from the mother company.
    The act of 1872 treats only of the subject of licenses, and is limited to that only.
    "When a law is susceptible of two constructions, the one which will give effect to the law, rather than the one which would render the law unconstitutional, must be adopted.
    APPEAL from the Superior District Court, parish of Orleans. HawIcims, J.

      lioselims <& Philips, for defendant and appellant. Q. 8. Lacey, city attorney, for plaintiff and appellee.
   Howell, J.

The only question for decision in this case is, according to the statement of facts, “whether the Salamander Insurance Company could be taxed for the payment of any municipal tax whatever — said company having paid to the State the license tax of $1000, called for under paragraph No. 15, section No. 3, of act No. 42, of the Legislature of Louisiana, approved March 3, 1871, and paragraph No. 15, section No. 1, of act No. 14, approved March 5, 1872, during said years 1871 and 1872.”

The portions of said acts applicable to the question are as follow: Section 3 (act 1871). “ That there shall be levied and collected an annual amount as a license or tax:

Fifteenth — “From each insurance company with a capital of one hundred thousand dollars or more, incorporated by or under the laws of this State, and transacting an insurance business therein, one thousand ■ dollars; * „ * * * provided, that no insurance company whose

license tax shall be one thousand dollars shall be liable to any assessment throughout the State other than that imposed by this article and by section six of this act.”

■Section 6. “ That from every insurer or insurance company transacting an insurance business in this State, there shall be collected, in addition to the licenses in such cases hereinbefore provided for, an annual tax of one per centum upon the gross amount of the premiums earned each year from policies issued through agencies in the State.”

Section 1 (act 1872). “ That there shall be levied and collected an •annual amount as a license or tax :

Fifteenth — “ From each agent or representative of an insurance company, by or under the laws of this State, and transacting an insurance business therein, one thousand dollars; * * * provided, that no insurance company whose license tax shall be one thousand dollars, shall be liable to any assessment — State, parish or municipal throughout the State — other than that imposed by this article and by section six of this act.’’

Section six of this act simply makes the act take effect from and after its passage.

Notwithstanding the above legislation, the city of New Orleans, in the years 1871 and 1872, imposed a tax upon the defendant under the head of “ Merchandise, Capital and Money at Interest.”

Upon examining the above statutes, we have come to the conclusion that each proviso refers simply to the license tax, and not to taxation on the property, capital, etc., of insurance companies. Under the act of 1871, the payment of one thousand dollars as a license, and of one per centum on the premiums earned from policies issued through agencies in the State, in addition to the said license, will exempt the company from any other license for doing business throughout or in any part of the State, the one per centum being considered sufficient from the agencies in the State, and the one thousand dollars for the mother company.

The act of 1872 treats only of the subject for licenses, and is limited to that one subject.

When' a law is susceptible of two constructions, we will adopt the one whicli will give effect to the law, rather than the one which would render the law unconstitutional.

Judgment affirmed.

Rehearing refused.


author: Howell, J. Howell, J. Morgan, J.

text:
    No. 4394.
    Mrs. A. M. Jennings v. Mrs. F. M. McConnico.
    28b appeal is to be entertained from an order allowing an intervenor, as owner, to bond property provisionally seized. Tlie right to do so is expressly conferred by law (section 2915 ü. S.); and the judge a quo had no discretion but to grant the order — the bond furnished tailing the place of the property released. There can therefore be no irreparable injury resulting from the granting of the order, and the law has provided ample remedy in case the order should not be properly executed. An appeal would be without practical benefit.
    from the Fourth District Court, parish of Orleans. TMard, J.

      B. Ii. Borman, for plaintiff and appellant. B. S. Huntington, for sub-lessee, John P. Fowler, defendant and appellee. M. W. Sandlin, for C. R. Poole, intervenor and appellee. M. M. Oohen, for Louis Grünewald, intervenor and appellee. Bl. Billeuil, for C. S. Sauvinet, civil sheriff.
   Howell, J.

The plaintiff sued the defendant for rent, and caused the furniture in the leased premises to be provisionally seized. Three parties, J. P. Fowler, E. R. Poole, agent, and L. Grünewald, intervened separately, and obtained orders to release the property severally •claimed by them. The plaintiff appealed from the said orders, and also from a judgment on a rule taken by her to rescind the order in favor of said Fowler.

Grünewald and Fowler move to dismiss the appeal from the orders- or judgments in their favor, on the grounds:

First — That the claim of said Grünewald is for a piano shown to be worth only $200.

Second — The judgment, making absolute the rules to bond, is interlocutory, and does not work an irreparable injury.

I. The first ground is well taken, and the appeal, as to Grünewald, must be dismissed. The proceeding can not be likened to a conemsus, in which the value of all the property gives jurisdiction; but is simply a separate demand, made by a third party intervening, who claims to-be the owner of specific property under seizure, and it is the amount of his demand, or the value of the property claimed by him, which is the matter in dispute, and this is below $500. Had he failed in his demand to bond, it is clear that he could not have appealed, and having succeeded, his opponent or antagonist can not appeal for the same reason, the matter in dispute not exceeding $500.

II. The second ground presents more difficulty, but we are constrained to apply the doctrine repeatedly recognized by this Court, that-where the party is compelled to resort to another suit to obtain redress, the injury caused by an interlocutory order must be held to be irreparable, and to maintain the appeal as to J. P. Fowler, whose claim is over five hundred dollars. See 23 An. 51 and the cases there cited. The plaintiff, in this instance, if successful, will have to pursue Fowler on the bond of release, which takes the place of the property seized and released.

It is therefore ordered that the appeal, as to Grünewald, be dismissed, at the costs of appellant j and, in other respects, the motion to-dismiss is overruled.

On Rehearing.

Howell, J.

A rehearing was granted in this case, because we doubted the application, in this instance, of the doctrine that where the party is compelled to resort to another suit to obtain redress, the injury caused by an interlocutory order must be held to be irreparable, and an appeal allowable.

After further reflection and examination, we conclude that it should' not be applied in this case, where the plaintiff has- appealed from an order allowing an intervenor, as owner, to bond the property provisionally seized herein. The right to do so is expressly conferred by law (sec. 2915 B. S.), and the judge, it would seem, had no discretion but to grant the order, the bond furnished taking the place of the property released. There can, therefore, be no irreparable injury resulting from the granting of the order. The law has provided ample remedy in case the order should not be properly executed. An appeal would be without practical benefit, as we would likewise have to recognize the right of the intervenor and mandate of the law.

It is therefore ordered that our decree herein, so far as it maintains the appeal of J. P. Fowler, be set aside, and that the said appeal be dismissed, with costs; and that, in other respects, the said decree remain undisturbed.

Morgan, J.

This case is now before us on its merits.

The appellant has assigned no errors in the judgment appealed from; has filed no brief; made no argument. We can not say that the district judge erred.

Judgment affirmed.


author: Taliaferro, J. Howell J., Wxlx, J.,

text:
    No. 4787.
    State of Louisiana, ex rel. Mrs. Sarah Richardson, v. The Judge of the Fourteenth Judicial District Court.
    When an injunction issues against am order of seizure and sale, and a suspensivo appeal is taken from tlie judgment dissolving tlie injunction, tlie amount of the Rond must Re measured, not Ry the amount involved in tlie injunction suit, Rut by tbe amount of tie judgment ordering tbe seizure and sale staid Ry tbe injunction.
    A judgment dissolving an injunction against an order of seizure and sale without damages is simply a judgment of nonsuit, and seems naturally to blend itself with that ordering tbe sale; or, in other terms, it is in substance a repetition of the order first granted.
    It is not considered that the import of a suspensive appeal in such a case has any other effect than that of suspending the original order of sale. Tlie judgment dissolving the injunction does not constitute a separate, independent judgment, that could be appealed from for any other purpose than that of affecting the original order of seizure and sale.
    APPLICATION for a writ of mandamus, directed to Bobert Bay, Judge of the Fourteenth Judicial District Court.

      Barrow (& Pope and Morrison ds Parmer, for relator. Bobert Bay, in propria persona.

   Taliaferro, J.

A creditor of the relator having obtained an order of seizure and sale against her property, she injoined the execution of the writ, alleging various grounds for the proceeding. The injunction was dissolved, and the relator moved the court for a suspensive appeal, tendering a bond with surety for five hundred dollars to cover costs. Tbe court ordered that a devolutive appeal be granted her on giving bond in tbe sum of one hundred dollars, and a suspensive appeal on furnishing bond in the amount required by law. The relator thereupon applied to this court for a writ of mandamus, directed to the Judge of the Fourteenth District, commanding him. to grant the suspensive appeal applied for on bond of five hundred dollars. A rule nisi was granted, returnable before this court on the first Monday of November, 1873, and all proceedings in the case staid in the lower court.

To this rule the judge a quo answers :

First — That the proceeding entitled Sarah Richardson v. B. H. Dink-grave, Sheriff, et al., is not by law an independent suit or proceeding coupled with the conservatory writ of injunction, as contemplated by Code of Practice, articles 296 et seq., which is instituted by petition, oath and bond; but is, in its nature and all its bearings, an opposition and answer to the petition for order of seizure and sale. 4 La. 89; ib. 293; 3 Rob. 347.

Second — That the doctrine enunciated in the case of the State, ex rel. Stackhouse, v. the Judge of the Fourth District Court of New Orleans, 21 An. 152, referred to in the rule nisi granted by this court against respondent, and the ruling in that case, does not conflict with the judgment and ruling of respondent in the present case, for the reason that the relators, Stackhouse et al., in 21 An. p. 152, obtained an injunction upon giving bond with security for $1000; that Zunts filed an answer, praying for a dissolution of the injunction; whereas, in the case at bar, Mrs. Richardson did not obtain an injunction upon giving bond in any amount, claiming the benefit of article 739 of the Code of Practice, to sue out her injunction or opposition without giving bond.

Third — That Mrs. Richardson having failed to sustain the allegations in her petition, when called on by plaintiff by rule to do so, respondent regarded the fiat or orders issued by him in the proceeding as the only judgment extant in the case, and that in order to obtain an appeal the amount of the judgment in the case of Pargoud v. Richardson must govern. While the law grants to creditors having title importing confession of judgment the right of executory process to seize and sell the property of their debtors summarily, it accords to debtors protection against injury and inconvenience they might otherwise suffer from an undue and improper exercise of that right on the part of creditors. Accordingly it presents specifically by article 739 of the Code of Practice the only grounds upon which a sale of property, seized under executory process, may be arrested. Articles 738 and 740 grant the debtor the ready means of preventing an improper sale of his property, by swearing to the alleged fact authorizing a suspension of the sale, and may obtain his injunction without giving security. Article 741 then declares that: “The plaintiff against whom, the injunction has been obtained, may compel the defendant to prove, in a summary manner before the judge, the truth of the facts alleged in his opposition.” And article 742 proceeds: “If, on being thus, required, the defendant proves that the action on which the seizure-has been obtained is extinct or prescribed, or that the cause of it is void, or that the debt on which it is founded is paid, remitted or compensated, the judge shall revoke the order of seizure and condemn the plaintiff to pay costs.” Article 743 follows, announcing that “ if the defendant does not prove the truth of the facts alleged in his opposition, or if it appears that he has paid, or can plead in compensation for only a part of the debt, the judge shall dissolve the injunction he has-granted, and the sale of the property shall proceed, either for the whole debt or for a part, as the case may be.”

The terms of this article are peremptory, that, upon the dissolution of the injunction, the sale shall proceed. It assumes that the party has exercised the liberal right accorded to him of suspending the sale by injunction without giving security — that he has been heard by the judge and the grounds for his injunction found to be frivolous and not warranted by law. We find nothing in the entire chapter, treating of executory process, that justifies the inference that a defendant, in an order of seizure and sale, is to be indulged further in delaying his creditor in the enforcements of his rights without affording him indemnity against contingent injury and loss that might arise from delay. The judgment in the case at bar, dissolving the injunction without damages, is simply a judgment of nonsuit, and it seems naturally to blend itself with that ordering the sale, or, in other terms, it is in substance a repetition of the order first granted. We do not readily see the import of a suspensive appeal in such a case as having any other effect than that of suspending the original order of sale. Disconnected, entirely from that order, a suspensive appeal from the order dissolving the injunction would be nugatory. The judgment dissolving the injunction would not constitute a separate, independent judgment that could be appealed from, for any purpose other than that of affecting the original order of seizure and sale. We have not found a case in our jurisprudence where a suspensive appeal, from a judgment dissolving an injunction taken out to suspend the execution of a writ of seizure and sale, has been taken on a mere nominal bond for costs. In the case on which the relator more especially relies, that of the State, ex rel. W. and H. Stackhouse, v. The Judge of the Fifth District Court of New Orleans, 21 An. 154, security was given for one-half over and, above the sum awarded as damages and costs, which made the bond, about $20,000.

We are not inclined, after further consideration of the law and tlieseveral decisions bearing on the prominent point in the case before us, to adhere to all the views we expressed in the Stackhouse case just referred to. We find that these views are not sustained by the previous decisions, and we regard them as antagonistic to the case of The State v. The Judge of the Third District (18 La. 444), which we now ■consider embodies the true interpretation of the articles of the Code of Practice bearing on the subject.

The case of The State v. The Judge of the First District (19 La. 167), was where the injunction in the first place was, not to restrain -the execution of an order of seizure and sale, but to prevent an order of seizure and sale from issuing — the party giving a bond for $20,000. Subsequently, on rule, this injunction was dissolved witli damages. An appeal from the order dissolving the injunction was taken on a bond of $6000. Afterwards, on the trial of the injunction on its merits, a judgment of nonsuit was rendered against the plaintiff, from which he appealed — giving bond to cover costs only. The court regarded the appeal as suspensive, but it went on to say : “ We know of no law that requires a plaintiff in injunction, who has given ■his bond to secure the damages which may be sustained by the defendant, and who, on appealing, gives another bond to secure the damages recovered against him, to furnish an additional bond for the purpose ■of securing the amount of the debt.” A writ of prohibition was ■granted, but the plaintiff was first required to furnish an additional bond for $75,000 to protect the bank in case it should appear the injunction had been wrongfully taken out.

The cases referred to in twentieth and twenty-second annuals have -no direct analogy to the case under consideration.

Entertaining these views, we conclude that the relator can only avail herself of a suspensive appeal in this case by conforming to the requirements of article 575 of the Code of Practice, by furnishing bond with security in a sum exceeding by one-half the amount of the order or judgment rendered against her.

It is therefore ordered, adjudged and decreed that the rule taken in this case be discharged at relator’s cost. It is further ordered that a suspensive appeal be granted to the relator in this case ; provided that within fifteen days from the rendition of this decree she furnish bond with security, according to law and in conformity with this decree, in .favor of the plaintiff, J. F. Pargoud.

Howell J.,

dissenting. I think the doctrine in the Stackhouse case in 21 An. p. 152, should be adhered to, and I can add nothing to what is said therein in support of the doctrine which I consider applicable to this case, and think the prohibition herein should be made perpetual.

Wxlx, J.,

dissenting. The relator injoined under articles 739 and ■740 Code of Practice the order of seizure and sale sued out by J. Frank Pargoud against her to enforce a special mortgage. At the trial the court dissolved the injunction without damages, and the relator sought to take a suspensive appeal from the judgment, tendering a bond sufficient for costs and for damages for frivolous appeal. The court, however, refused to allow a suspensive appeal, unless the relator would furnish bond for one-half over and above the amount of the mortgage debt for which the order of seizure and sale issued.

The question is, was the relator bound to furnish the bond required by the judge 1

As no appeal was sought from the order of seizure and sale, no bond was necessary to stay the execution thereof — that had already been ■suspended by the injunction. The question is what bond is necessary to suspend the judgment dissolving the injunction 1

That was the precise question presented in the case of State, ex rel. 'Stackhouse, v. Judge of Fifth District Court (21 An. 152). And there, after examining the authorities, this court held that a bond for one-half over and above the amount of the judgment dissolving the injunction will be sufficient for a suspensive appeal. This is all that is required by article 575 Code of Practice.

The bond tendered by the relator, in my opinion, was ample; and the judge had no right to require a bond for one-half over and above the amount of the order of seizure and sale. But, it is urged, that the injunction was obtained under articles 739 and 740 Code of Practice, without bond, and that if the relator gets a suspensive appeal there will be no security for the amount of the executory process injoined.

To this the reply is, the injunction issued according to law, there being no question that the relator complied with the requirement of articles 739, 740. If the law permits an injunction of executory process in certain cases without bond, the judge has no right to defeat the law, because, in his opinion, there should be some security tor the mortgage creditor pending the litigation of the injunction suit.

If the law-giver had intended additional security to be given to maintain the injunction granted under articles 739, 740, during a protracted litigation arising from an appeal having been taken from the judgment dissolving the injunction, or arising from any other cause, a provision to that effect would have been inserted in the law.

In the absence of any such provision limiting the right conferred by articles 739 and 740 C. P., I am of the opinion that the suspensive ■appeal sought by the relator must be granted pursuant to article 575 C. P., which only requires bond for one-half over and above the amount of the judgment dissolving the injunction. Such a bond has been tendered by the relator. But the judge a quo says: no, the amount of the bond is not to be measured, in this case, by the amount •of the judgment in the injunction suit which you seek to appeal from, but the amount of the bond must be measured by the amount of another judgment or order of seizure and sale staid by the injunction.

Now, I maintain that this ruling violates the express provisions of article 575 and the well settled adjudications of this Court, to the effect that, in determining the amount of a bond for a suspensive appeal, the amount of the judgment sought to be appealed from alone must be considered.

The effect of a suspensive appeal from the judgment dissolving the injunction in this case, would be to leave the writ granted under articles 739 and 740 in full force until the fiual disposition of the case in this Court. Now, whether such an appeal will subject the mortgage creditor to loss unless a bond be given to secure the debt, or whatever hardship may occur to him on account thereof, is a question not to be considered by the Court. The only proper view of the subject is, the law allows the injunction without bond, and the law allows a suspensive appeal with a bond for one-half over and above the amount of the judgment dissolving the injunction. If the enforcement of the law, in the case under consideration, produces hardship or loss to the mortgage creditor, the court must, nevertheless, enforce the law. We have no. right to deny the relator a suspensive appeal, in view of the bond which she tenders conformably to article 575 C. P.

The right to an injunction and the right to an appeal are given by the law upon the conditions therein required. The relator in this case has complied with the law, and, in my judgment, is entitled to a suspensive appeal. I therefore dissent in this case.


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

text:
    No. 4773.
    W. J. W. Woodruff v. William S. Lobdell.
    The exceptions to the proceedings in this case are substantially similar to those set up in the case of Morgan v. Kennard. 25 An. p. 238, and which this court held to be untenable-See also Bonner v. Lynch, 25 An. p.
    APPEAL from the Fifth Judicial District Court-, parish of West Baton Rouge. Cole, J.

      G. A. Griffith, R. W. Knickerbocker and Stafford, Belden é Foley, for plaintiff and appellee. K. M. Favroi,. Barrow & Bojpe, for defendant and appellant.
   Ludeling C. J.

This is a suit for the office of Parish Judge of West Baton Rouge, under act No. 39, of the G-eneral Assembly of 1873, The defendant urged several exceptions to the proceedings, which' were overruled by the judge a quo. They were substantially similar to-those set up in the case of Morgan v. Kennard, and which this court held to be untenable.

The defendant then filed a lengthy and verbose answer, whereupon the plaintiff moved to strike out portions of the answer which referred, to and were based upon an election said to have been holden in November, 1872, on the ground that in a suit like this no inquiry could be had concerning the election. Without deciding whether it be the better practice to move to strike out any irrelevant matter in an answer, or to object to evidence on the subject when offered, about which no question was made in this case, it is now well settled that the judge a quo ruled correctly in refusing an inquiry in regard to the election. See Bonner v. Lynch. He also ruled correctly in refusing a jury trial. Morgan v. Kennard. 25 An. 238.

It appears that the plaintiff has been duly commissioned by Governor W. Pitt Kellogg, and that he has qualified according to law. The defendant has offered no commission to the office whatever. The judgment of the District Judge in favor of the plaintiff is manifestly correct.

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

Wyly, J.,

dissenting. This is a proceeding by rule, under act No. 39, of the statutes of 1873, for the office of parish judge.

I think the suit should be dismissed, because the law under which it is brought is unconstitutional. My reasons for this conclusion were expressed in my dissenting opinions in Morgan v. Kennard, 25 An. 238, and Hughes v. Pitkin, 25 An. 127.

But laying out of view the unconstitutionality of the act, I still think this demand should be rejected, because the suit is not authorized by the statute under which it was brought. Act No. 39 is not a general law, or a law providing a remedy generally for cases where there is a controversy for office. It is a statute authorizing a summary proceeding by rule in the particular cases mentioned in the act, and none others. It authorizes a proceeding by rule where there is a dispute or controversy for a judicial office only, in the following cases :

First — Where the plaintiff was appointed judge by the Governor, confirmed by the Senate, and commissioned.

Second — Where he has been elected, and commissioned in pursuance of said election.

In these two cases only the statute declares that the commission shall be prima facie proof of the right of such person to hold and exercise such office * * * and such person, so commissioned, shall

have the right to proceed by rule before any court of competent jurisdiction to have himself declared to be entitled to such office, and to be inducted therein.” Sections 1 and 2, of act No. 39, acts 1873.

Woodruff does not pretend to have been commissioned in pursuance of an election. On the contrary, he alleges that he was appointed and commissioned by the Governor. He was not, however, confirmed by the Senate, the Legislature having adjourned before he was appointed.

Without legislating, this court can not declare the plaintiff entitled, to the benefit ol the act under which he sues, because it does not embrace his case. The law requires an appointment, a commission, and a confirmation of the appointment by the Senate. The plaintiff does not pretend that the Senate ever confirmed his appointment. He therefore has no more right to proceed under act No. 39 than any other contestant for office. His remedy is under the intrusion law. I dissent.


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

text:
    No. 3556.
    Q. A. Thomas v. The City of New Orleans.
    Tlio plaintiff in this caso is bound by the modified contract to which he gave bis assent, and by his own interpretation of it.
    The city is not in default, and consequently not liable in damages.
    APPEAL from the Fifth District Court, parish of Orleans. Cooley, J. Jury trial. Cooley,

      Eornor & Benedict, for plaintiff and appellee. George 8. Lacey, City Attorney, for defendant and appellant.
   Taliaferro, J.

The plaintiff’s demand against the city is made up of alleged losses incurred by him in the nature of damages arising, as he avers, irom the failure on the part of the defendant to comply, on its part, with a contract entered into with him to furnish a large quantity of shells to be used on the public streets of the city. He avers loss to a large amount in the discount of certain certificates of indebtedness received by him in part payment of portions of the quantity of shells delivered by him, the defendant, as he avers, being bound to make payment in money, which it failed to do. He alleges loss to the amount of $1120 on seven thousand barrels of shells brought to New Orleans in pursuance of his contract with the city, which it refused to take, compelling the plaintiff thereby to sell them at private sale.- He claims, besides, $4100 for loss sustained from various sums expended in the purchase of suitable boats in which to transport the shells through Harvey’s Canal, and for divers other appliances, which he alleges were necessary for him to obtain in order to enable him to comply with his contract to furnish one hundred and fifty thousand barrels of shells. The boats and the various implements' necessary for -the works, houses built at the shell banks for the accommodation of his laborers, a large supply of ropes, and many other necessary things in the prosecution of so large an engagement, he alleges, became valueless by the default of the city to comply with its contract; and, in addition, he estimates a large loss in profits he would have realized had he gone on to complete his undertaking, which he' alleges he was willing and able to perform.

The ease was tried before a jury. A verdict was rendered in the plaintiff’s favor for $14,298 04, with interest at ñve per cent, from the twelfth June, 1871.

Judgment being entered for that sum, the defendant has appealed.

Proposals were made, in the usual manner, to persons inclined to enter into a contract for furnishing the city with one hundred and fifty thousand barrels of shells, and bids were invited. The plaintiff’s bid turned out to be the lowest. By the proposals, it was stated that the city reserved the right to reject any and all bids. On the twenty-sixth of July, 1870, West, Administrator of Improvements, in his report, suggested that Thomas’ bid be accepted for fifty thousand barrels of shells, with reservation on the part of .the city to-accept or reject, within sixty days, the remaining one hundred thousand barrels. The city, through its proper agents, on the twenty-eighth July, accepted the bid in conformity with the Administrator’s-report. In conformity with this report and acceptance, the contract was entered into on the twenty-ninth of July, by the Mayor and Thomas, by notarial act.

It does not appear that any formal acceptance or rejection of the remaining one hundred thousand barrels was ever made. We are not prepared to infer from this fact that the city was bound to extend the contract beyond the fifty thousand barrels. The fact that the city,, having first proposed for one hundred and fifty thousand barrels and accepting a contract for only fifty thousand barrels, the inference, we think, is reasonable that the city, by its silence, intended to reject the contract as to the surplus. At all events, the conclusion seems as strong as would be the opposite one, that the failure to reject implied an intention to accept. If it were merely a matter of doubt, ti e construction should be in favor of the city.

There is a large amount of oral testimony offered to show the damages alleged to have been sustained by the plaintiff. An impression, it seems, is aimed to be made, both by the tenor of the plaintiff’s own testimony and by his counsel’s brief, that the plaintiff was compelled by the rigid course alleged to have been pursued against the plaintiff by a powerful corporation, to accept, through his personal necessities,, the paper of the city instead of money, as the plaintiff says, the contract calls for. The evidence does not induce us to think there was any failure to comply with the contract on the part of the city. We think it is fairly to be inferred that the plaintiff was informed that cash in hand was not to be expected. The plaintiff -on the nineteenth of July, 1870, ten days before the contract was signed before the notary, wrote to the Administrator of Improvements as follows :

“ To J. B. West, Administrator of Improvements — Sir: I hereby agree to accept in payment for one hundred and fifty thousand barrels of .shells to be delivered to the city of New Orleans, as per acceptance 'of my bid by the Council this day, bonds of the city of New Orleans payable ten years after date with interest at the rate of seven and three-tenths per cent, per annum, at the rate of ninety cents on the dollar. It being understood as part of and essential to this agreement that the city shall provide by ordinance for the issue of such bonds, and shall set apart from the receipts of wharfage and levee dues a sufficient sum annually to pay the interest and extinguish the principal of the same within ten years from the date of their issue.
“Q. A. THOMAS.
■“New Orleans, July 19, 1870.”

It is shown by various receipts in the record that the plaintiff from time to time received what were termed “ convertible certificates,” in which it was stated that the receipts were redeemable in cash on or before the first February, 1871, or in bonds of the city to be issued as ■described in the certificate. These bonds draw seven and three-tenths ■per cent, interest.

The contract by notarial act contains this clause: “Payments to be made in cash, or certificates issued by the City Surveyor, approved by the Administrator of Improvements, on the acceptance and measurement of each ten thousand barrels or more barrels.” The plaintiff received the “convertible certificates” for large amounts and sold them in the market for whatever he could get for them, and his transferrees, it would appear, obtained tiie seven three-tenth per cent, bonds for them.

The damages claimed are for the most part of the speculative kind and not recoverable. We do not find the city was in deiault, and con-' sequently it is not liable in damages.

It is thereiore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that there be judgment in favor of the defendanl, the plaintiff and appellee paying costs in both courts.

On Rehearing.

Ludeling, C. J.

Are-examination of the facts and the law satisfies us that there was no error in the original opinion rendered in this case.

It is true that, under a resolution of the City Council of the tenth of June, 1870, proposals for furnishing one hundred and fifty thousand barrels of shells were invited. This invitation for bids was subject to the condition that the city could reject all bids. As Thomas’ bid was the lowest, the Administrator of Improvements advised that a contract be adjudicated to him for fifty thousand barrels, with a right reserved to the city to accept or reject the remaining one hundred thousand barrels within sixty days. The City Council adopted the suggestion. The city thus modified the contract. The resolution of the twenty-sixth of July, 1870, adjudicated a contract to Thomas for fifry thousand barrels of shells, and this is the only adjudication or contract between the parties. It is said that the city could not modify the contract without Thomas’ consent. The city had the right to reject the bid in toto, or she might propose a modification of the contract bid for by the plaintiff, and, of course, such modified contract would only be binding on Thomas if he assented to it. This he did in the notarial act signed by him. And the term cash used in the notarial act is explained by the letter of the plaintiff, written ten days before the contract was made, to the Administrator of Improvements — that is, money, or bonds of the city at ninety cents on the dollar. This interpretation of the contract appears to have been put upon the contract by the plaintiff himself, by taking convertible certificates for said bonds in payment for shells delivered under the contract.

We think the city has not been in default. We therefore adhere to ■the decree hitherto made in this case.


author: Wyly, J.

text:
    No. 4705.
    Mrs. Charlotte M. Conner v. Mrs. A. L. Brasher et al.
    ^Express mention must be made in the nuncupative will by public act that tbe witnesses were present at tbe time it was received by tbe notary and dictated by tbe testator, otherwise tbe instrument does net conform to tbe requirements of article 1578 of tbe Revised Code, and is therefore void.
    That tbe witnesses came with tbe testator to tbe office of tbe notary and were present when tbe will was read to him, is not sufficient. This might be strictly true, and yet tbe witnesses might not be present at tbe dictating and writing of tbe testament.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      Horner á Benedict, for plaintiff and appellant.. Bace, Foster & Merrick, for defendant and appellee.
   Wyly, J.

The plaintiff appeals from the judgment rejecting her ■demand to annul the nuncupative will by public act of John Thomas Osburn, deceased, on the ground that the formalities required by ^article 1578 of the Bevised Code were not observed in making it. The instrument states that personally appeared before the notary, William L. Pool, at his office, “John Thomas Osburn, an old resident of this •city, and with him also came the three witnesses hereinafter named and hereto subscribing, which said John T. Osburn declared, although he was in the enjoyment of his ordinary good health, suffering more from blindness than from any other malady, yet he felt admonished by his advancing age of the uncertainty of lite, and that while blessed with sound mind, memory and understanding, it was only a measure ■of becoming consistency that he should adjust the affairs of his estate -and effects according to his own discretion and judgment, and he therefore requested of me, notary, to receive his last will and testament as he would dictate the same to me, in the following words, to» wit.” (Here iollow the dispositions, which need not be considered.) And the testament closes: Thus, I, notary, have written the foregoing will without interruption or turning aside to other acts, as the said testator dictated the same to me, and having read the same to him in the presence of the witnesses, in a loud and intelligible voice, he, said' testator, declared that he heard and understood the same perfectly well, and persisted therein. Done in the presence of Aaron Johnson French, Louis Choate and Isaac T. Hinton, all witnesses of the lawful age of majority, and domiciliated in this city, who hereto sign their names; with said testator and me, notary (the said testator making his mark hereto, being prevented from writing his name ever since his affliction of blindness); all on the day, month and year hereinbefore written.”

We find in this will no express mention that the witnesses were present at the time it was received by the notary, and dictated by the testator. That they came with him to the office of the notary, and! were present when the will was read to him was not sufficient. This might be strictly true, and yet the witnesses might not be present at the dictating and writing of the testament. The instrument does not confoim to the requirements of article 1578 of the Revised Code, and it is therefore void. 21 An. 115; 12 La. 117; 8 An. 469; 11 An. 108; 20; An. 203.

It is therefore ordered that the judgment herein be annulled and! reversed, and it is further ordered that the nuncupative will by public act of John Thomas Osburn be annulled and avoided; that the probate thereof be revoked, and all proceedings thereunder be set aside, defendants paying costs of both courts.