text:
    No. 433.
    Mrs. Sarah Richardson v. B. H. Dinkgrave, Sheriff et al.
    The judge a quo did not err in refusing to allow the plaintiff to take a judgment by default •on the supplemental petition which had been filed by her, in which she set forth additional reasons why an injunction should issue. The allegations were not sworn to. Admitting that a supplemental petition to an application for an injunction is permissible, which it is not necessary to determine in this instance, still the truth of the allegations in the supplemental petition should, be sworn to.
    Before proceeding to trial, plaintiff moved that the rule taken upon her by Pargoud, to prove the truth -of her allegations in a summary manner, should be considered as an answer. The judge did not err in refusing the motion. Defendant had the right to call upon the plaintiff to verify the truth of her allegations without an answer.
    Defendant having testified that he had received account sales for all the cotton which had been sent to him by plaintiff, and that he had delivered the same to his attorneys who were then in court, was asked to produce them. This was objected to by defendant. The objection was correctly sustained under article 140 of the Code of Practice. Besides, there are account sales in the record regarding five hundred and twenty-nine bales of cotton, which is all the cotton received by the defendant from the plaintiff.
    The plaintiff’s allegations charge the defendant with bad faith and fraud. Under the pleadings these were allegations which it devolved upon her to establish, and if she had not done so, perhaps the defendant might have contented himself with leaving the case where she did, but there is no reason why, it he chose, he should not be allowed to show by positive testimony that such grave charges against his honesty and honor were without foundation. The judge a quo did not err in permitting him to do so, and overruling plaintiffs objection to the introduction of such testimony.
    On the trial, plaintiff’s counsel moved the court to continue the case to enable her to procure her testimony, or that they might be permitted to send for her, she being only a short distance from the courthouse. The judge properlyrefused and ordered them to proceed. Plaintiff had not been subpenaed as a witness, and there was no process by which her attendance could have been compelled. If she had intended to be heard in her own behalf, she should have been present to testify when the time came.
    The testimony offered by plaintiff to show that other persons than Pargoud had furnished her with supplies and made improvements on her plantation, was properly rejected as irrelevant. It did not follow that the defendant had not done the same for her.
    The judge a quo did not err in not allowing the defendant to open and close the argument. This right belongs to the plaintiff in injunction. Ueither did he err in permitting the plaintiff to call for papers necessary to make out her case, after the entry had been made on the minutes that the testimony was closed. This was a matter entirely within his discretion.
    It is false doctrine to say that, where a factor who has made advances to a planter, and who has a mortgage upon his plantation to secure an antecedent debt, receives the crop of the planter, the proceeds 'of the crop must be imputed first to the payment of the mortgage debt, the residue going to discharge the debt incurred for supplies. The privilege rests upon the crop, and this privilege the crop must first discharge before any part of it may be applied to any other obligation.
    Appeal irom the Fourteenth Judicial District Court, parish of Ouachita. Bay, J.

      Morrison & Farmer, I). Bf. Barrow, for plaintiff and appellant. S. F. M. McFnery, B. G. Gobb, for defendant and appellee.
   Morgan, J.

Buckner, tutor, was a mortgage creditor of the late J. T. Richardson. So was J. Frank Pargoud. Buckner foreclosed his mortgage. Pargoud bought the property — the Ingleside plantation. This on the fifth September, 1868. On the twelfth November, 1868, Pargoud addressed to the plaintiff the following note:

“Lower Plantation, November 12, 1868.

“ Dear Madam — When I purchased the property known as Ingleside Plantation, and belonging to the late J. N. T. Richardson, your husband, I had no other intention but to secure what he owed me. Therefore I take pleasure in informing you that if at once the amount due me, with eight per cent, interest, will be paid by yourself or by any one in your name, the property will be yours again. Hoping this will meet with your approval.

“I am, madam, respectfully and truly yours,

J. FRANK PARGOUD,

Mrs. Sarah Richardson, her plantation.’’

Mrs. Richardson remained on the plantation, working the same. Pargoud furnishing her the money and supplies necessary thereto.

On the thirtieth October, 1871, Pargoud wrote to Mrs. Richardson, telling her that, in the interest to them, and still more to her daughter, it was time for him to sell to her the Ingleside plantation. His proposition was to sell it for one-half of the debt which it owed him cash, and the balance at twelve months. The debt he states to be between $34,000 and $35,000.

On the ninth November, 1871, he wrote to her again upon the same subject. In this letter he states the indebtedness of the plantation to be $28,406 54, and he proposed to sell it to her for that amount— $10,000 cash and the balance in four notes, payable in one, two, three and four years. In case the cash payment of $10,000 is made, he proposes to deduct the year’s interest on $28,606 54, which, he states, will amount to near $2,000.

On the twenty-seventh December, 1871, Pargoud sold to Mrs. Richardson the Ingleside plantation for $28,400. The terms were, one note for $10,400, payable on the first January, 1873, and the balance in four equal annual installments of $4500 each, with interest at eight per cent, per annum from date until paid. To secure the payment of these notes, a mortgage on the property sold was reserved. The first note was not paid at maturity. Pargoud obtained an order of seizure and sale. Mrs. Richardson inj'oined.

The allegations upon which the injunction issued are, that when Pargoud purchased the Ingleside plantation the debt due to him was $28,000; that before the purchase it was understood and agreed that he should become the purchaser in order to secure to him the payment of his debt; that in accordance with this agreement Pargoud furnished his counter letter, in which the foregoing agreement was acknowledged; that she has paid the debt for which she has been sued; that during the years 1869,1870 and 1871 she held possession of the property; that she made large crops of cotton and other produce thereon, all of which was delivered to Pargoud to be applied to the liquidation and payment of the indebtedness, and which, if they had been justly and legally applied, would have canceled and annulled the whole of this indebtedness; that in the years above set forth she delivered to Pargoud about five hundred and seventy bales of cotton, which sold for more than $50,000, all of which was received by him, and which, if legally applied, would have extinguished the mortgages and claims then existing on the property; that Pargoud never furnished her with any detailed account of the manner in which he disposed of her cotton; that on the ninth November, 1871, Pargoud fraudulently and erroneously represented that the indebtedness amounted to $38,406 54, and then proposed to transfer to her the plantation for that amount, which she finally agreed to. She avers that but for fraudulent concealment by Pargoud of the true statement of her accounts, and but for his false representations that the original mortgage claims still subsisted, when in truth they had been extinguished by legal imputation of the funds received by him during the years 1868, 1869, 1870 and 1871, she would not have executed the mortgage, but would have required him to comply with the conditions of his counter letter and to make her a title to the property, and left him to pursue his legal rights for any other indebtedness, or the settlement of any other accounts that might have existed between them; that on these false and fraudulent representations, believing she could not enforce her counter letter on account of the original indebtedness not being paid, she was imposed upon, and consented to secure the said debt of $28,406 54. She avers that a true, just and legal statement of the accounts between Pargoud and herself will show that the amount due by her did not amount to $28,406 54, by fully the amount now sought to be recovered from her, and therefore that her property can not be sold to pay the same.

Pargoud, representing that the injunction was obtained without bond, and that the allegations in the petition therefor were false, took a rule upon the plaintiff to show cause why she should not, within ten days after notice, prove the truth of the allegations contained in her petition in a summary manner. Citation issued as prayed for, returnable on the second day of the following term, general or special, of the court, and after hearing the injunction was dissolved. Plaintiff appeals.

The litigation seems to have been violently contested, and the record comes to us crowded with bills of exceptions, which we proceed to consider.

The judge did not err in refusing to allow the plaintiff to take a judgment by deiault on the supplemental petition which had been filed by her on the sixteenth August, 1873, in which she set forth additional reasons why an injunction should issue. The allegations were not sworn to. Admitting that a supplemental petition to an application for an injunction is permissible, which it is not necessary for us now to determine, still the truth of the allegations in the supplemental petition should be sworn to.

Before proceeding to trial, plaintiff moved that the rule taken by Pargo’ud should be considered as an answer. The judge did not err in refusing the motion. Defendant had the right to call upon the plaintiff to verity the truth of her allegations without an answer.

Defendant having testified that he had received account sales for all the cotton he had received from plaintiff, and that he had delivered the same to his attorneys, who were then in court, was asked to produce them. This was objected to by the defendants. The objection was correctly sustained under article 140 of the Code of Practice. Besides, there are account sales in the record regarding five hundred and twenty-nine bales of cotton, which is all the cotton received by the defendant from the plaintiff.

Defendant was asked: “Did you ever furnish to Mrs. Richardson a. detailed account showing how her account stood with you from time to time on your books, and showing the dates, names and items, and amounts, credits and debts, interest and commissions?” To which he answered: “ I gave Mrs. Richardson at several times details of what I had purchased for her, according to her orders, and price of the articles.. Accounts of merchants in Monroe she had directly from them, I paying the accounts after her order. This is all my answer.” He was also asked: “Were these statements of items furnished by you contained in an account showing a succession of charges, debts and credits, or were they in separate statements?” To which he answered: “Whenever any of the goodsMrs. Richardson ordered came, they were delivered to her and at the price sent to her, in order that she might know what they cost; and when they were on separate bills from mine the bills were sent to her, as the goods were landed at some place designated by her in Monroe. As far as I can remember the goods were landed once or twice at Chamberlain’s warehouse.” Upon each of the foregoing answers being made, counsel for plaintiff moved that the witness be required to answer the questions over, as his answers were not responsive. The judge refused, and we think correctly, as it appears to us that the questions were substantially answered. If plaintiff had wished more categorical answers, the questions should have been more categorical. If she wished to know whether the defendant had furnished her with detailed accounts showing the number of bales of' cotton he had received for her account; the price they sold for; what had been done with the proceeds; what commissions had been charged,. etc., it would have been easy to have asked the question, so that the answer would necessarily have informed the court of the fact she desired to elicit.

Defendant was allowed to introduce evidence to prove that he had furnished plaintiff with supplies, paid her personal expenses, taxes, repairs, and improvements on the Ingleside plantation, to the amount of all the cotton he had ever received of the plaintiff. To the introduction of this testimony the plaintiff objected on the ground that he had not alleged the same, and that to allow him to make the proof was taking her by surprise, and deprived her of an opportunity of being prepared with evidence to rebut whatever proof he might adduce, and that this evidence was not offered in rebuttal of anything offered by her.

The plaintiff’s allegations are distinct that defendant received cotton belonging to her, and that if the proceeds thereof had been properly applied his debt would have been paid, and he is, in terms, charged with bad faith and fraud. Under the pleadings there were allegations which it devolved upon her to establish, and if she had not done so, perhaps the defendant might have been justified in contenting himself with leaving the case where she did-. But we see no reason why he, if he chose, should not be allowed to show by positive testimony that such grave charges against his honesty and honor were without foundation, and we do not think that the judge erred in permitting him to do so.

On the trial plaintiff’s counsel moved the court to continue the case until Monday in order to enable them to procure her testimony, or that they might be permitted time to send for her, she being only a short distance from the courthouse. The judge refused and ordered them to proceed. A messenger was dispatched after the plaintiff, but before she reached the courtroom the evidence was closed. To this action of the judge plaintiff reserved a bill. The judge did not err. Plaintiff had not been subpenaed as a witness, and there was no process by which her attendance could have been compelled. If she had intended to be heard in her own behalf she should have been present to testify when the time came — her proximity to the courthouse is no reason why she should have been sent for. The same principle would apply if she had been at the other end of the parish. The question is whether she had the right to have the case postponed in order to give her an opportunity of being heard. She unquestionably had not the right, and the judge did not therefore err in refusing to continue or postpone the case on account of her absence.

Plaintiff offered two witnesses to prove that they had worked on the Ingleside plantation, furnishing materials to the defendant, and to prove by them' what buildings had been put up by them and what repairs they had made, for the purpose of rebutting the testimony of Pargoud and others with regard to the improvements made upon the place, for which he had paid large sums of money. The judge correctly rejected the testimony. It was irrelevant. They might have done a great deal of work on the plantation, but whatever work they did did not establish the fact that Pargoud had not paid for the improvements which he swears to.

The judge erred in refusing to allow the witness, Scarborough, to testify as to what Pargoud stated to Goodrich with reference to the correctness of the accounts between himself and Mrs. Richardson. But his evidence, if admitted, would not have controlled the case or affected the result, and we will not therefore remand it on that point. Neither did he err in refusing to permit Hilliard and others to prove that they were laborers, working on shares on the Ingleside plantation during the years 1869, 1870, 1871, and that Pargoud furnished them with no supplies. Their testimony, if received, would not have rebutted the testimony of Pargoud that he had furnished the supplies he charged for. The testimony is, that the Ingleside plantation was worked, in part, on shares; part of the land was rented, and part was cultivated with hired labor. Nor do we find any error in the judge’s refusal to admit the account of S. Meyer in evidence. It would have had no effect if it had been received. Because the plaintiff procured supplies from Meyers it does not follow that she did not procure them from the defendant also.

Pargoud was asked by plaintiff whether he had not supplied and furnished money, plantation supplies, mules and other things necessary for carrying on a plantation, to Mrs. Wilson, Mrs. Mason, J D. MeEnery, J. G. Wilderson, Holmes, Umberly, R. Wilderson and P. Ranson, on the same terms on which he had furnished the Ingleside plantation. The judge did not err in refusing to permit this question to be answered. If answered.we do not see that it would have proved anything beyond the fact that the defendant was willing to assist his neighbors. It would not have rebutted the testimony of the defendant that he furnished supplies to the plaintiff. On the contrary, the statement in this regard in the bill seems to be an admission that he did furnish her with supplies, and thus does away with the idea conveyed by her other bills that the defendant did not furnish them.

The judge did not err in not allowing the defendant to open and close the argument. This right belongs to the plaintiff in injunction. Neither did he err in permitting the plaintiff to call for papers necessary to make out her case, after the entry had been made on the minutes that the testimony was closed. This was a matter entirely within his discretion.

Seriatim, we have tafeen up the bills of exception. Having disposed of them, we now turn to the case on its merits.

Pargoud’s letter of the twelfth of November, 1868, to Mrs. Richardson, was a proposition to convey to her the Ingleside plantation upon certain conditions. It is evident that Mrs. Richardson accepted the proposition, as she remained in possession of the property. The conditions were that the transfer should be made whenever the debt due thereon to him should have been paid. Matters remained in this state until the thirtieth of October, 1871, when Pargoud. wrote to her, telling her that it was best he should sell her the plantation. . In this letter he proposed certain terms of sale. On the ninth of November, of the same year, he again wrote to her. In this letter he states the indebtedness of the place to be $28,406 54, and he proposed to sell it to her for that sum, $10,000 to be paid in cash, and the balance in four equal annual installments.

. On the twenty-seventh December, 1871 he sold the plantation to her for $28,000, $10,000 payable on the first of January, 1873, and the balance in four equal annual installments. The first note was not paid. Executory process issued upon it. Then came this injunction. Error on the part of the plaintiff, fraud on the part of the defendant, and improper application of her funds, are the alleged grounds upon which the injunction rests.

When Pargoud purchased the Ingleside plantation, the debt due to him, added to the one he controlled, amounted to $27,366. When Mrs. Richardson retained the property under his letter of the twelfth of November, 1868, she appears to have been unable to make the necessary arrangements for getting plantation supplies. Pargoud then came to her assistance and furnished them. This he continued to do for several years. She sent him her cotton, which he sold. The amount received by him exceeded the amount of his debt, and the main theory upon which the plaintiff relies in support of her claim is that the money received by him should have been imputed to the payment of the original debt. In other words, and indeed in almost the terms of her petition, that the mortgage should have been paid out of the proceeds of her crops, leaving whatever sum might be due for the advances which enabled her to make'the crops a matter to be settled afterwards. But the parties-occupied two positions towards each other. One was that of debtor and creditor, the other principal and factor. The creditor was secured by mortgage; the factor was secured by privilege upon such produce as had been made with the moneys and supplies furnished by him. One debt was secured by a convention j the other was secured by the law, and both were independent one of the other. It is therefore false doctrine to say that, where a factor who has made advances to a planter, and who has a mortgage upon his plantation insecure an antecedent debt, receives the crop of the planter, the proceeds of the crop must be imputed first to the payment of the mortgage debt, the residue going to discharge the debt incurred for supplies. The privilege rests upon the crop, and this privilege the crop must first discharge before any part of it may be applied to any other obligation.

The error complained of is that she was misinformed as to the state of her accounts with the defendant when she agreed to give the price she contracted to give for the plantation. The evidence does not establish this fact. It is in evidence that she had access to the defendant’s books, in which her accounts were kept; that she frequently examined them; that such errors as were pointed out by her were corrected. It does not seem to us that after the letter of the ninth November, in which the indebtedness is stated, was received by her, and after she made the purchase for the amount therein stated, with the exception of a few hundred dollars, she can not now say that there was error in the price or her indebtedness.

Neither do we see any evidence upon which to support the allegations of fraud which are contained in the petition. The affirmative of this giave accusation was on the plaintiff, and neither she nor any of her witnesses have established any fact upon which such an allegation could properly rest. The record satisfies us that instead of attempting to despoil the plaintiff, he has been endeavoring to befriend her; offering to convey to her property which he was not bound to convey; furnishing her with money and supplies as she called for them after she had failed to get them elsewhere ; selling her the property eutirely on credit, and receiving her thanks — as we find them expressed in her letters — until he exacted a performance of her contract. Under these circumstances the district judge did not err when he dissolved the injunction which kept him out of his rights.

Judgment affirmed.

Rehearing refused.


source: Caselaw Access Project

author: Wyly, J.

license: Public Domain

text:
    No. 488.
    S. Q. C. Stafford, Tutor, v. Wm. L. Pearson and R. F. Williams.
    Tobacco, pipes, whisky, cards, perfumery, etc., etc., are in no sense supplies necessary to make a crop. 3Tor suck supplies the law allows no privilege.
    Appeal from the Fourteenth Judicial District Court, parish of Kichland. Say, J.

      Todd & Potts, for plaintiff and appellee. F. P. Stubbs, for defendants and appellants.
   Wyly, J.

The defendants appeal from the judgment against them for $2085 45, with recognition of furnisher of supplies privilege ón their crops.

They assign as error oí law that of the account sued on, items amounting in the aggregate, to $378 98. were not necessary supplies; and therefore, the privilege to that extent should be reduced. The items objected to, consisting mainly of tobacco, pipes, whisky, cards, perfumery, etc., etc., are in no sense supplies necessary to make acrop. 23 An. 469. For such supplies the law allows no privilege.

It is therefore ordered that the judgment be amended by reducing the amount of the privilege three hundred and seventy eight dollars and ninety-eight, cents, and .as thus amended let'it be affirmed, appellee paying costs of appeal.


author: Morgan, J.

text:
    No. 509 — No. 8383, 8454, 8606 — consolidated.
    Hoss & Elder, Administrator v. George J. Jones.
    ‘ As the administrator of an estate can not bind the estate he represents ex contractu, without the authority of the judge, the estate can not be bound by a breach thereof.
    The plea of payment and that of novation aré inconsistent. A debt paid can not be novateA* There is nothing to novate. ,
    An administrator has no power to novate a debt due to the succession under his charge, without at least having been authorized to do so.
    Under no circumstances can the administrator of an estate take in payment of the rent oi property a draft payable at the end of the lease, and thus give up the privilege which the estate he represents has on the growing crop.
    Appeal from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      Egan <& Wise, Land <& Taylor, for plaintiffs and appellees. Eutt & Leonard, for defendant and appellant.
   Morgan, J.

A plantation, belonging to the succession of which plaintiffs were administrators, was rented annually, under order of court, by public auction. At each offering the defendant became the lessee.

For the year 1870, he agreed to pay a rent of $2600, giving his endorsed note tor that amount, payable on the first January, 1871.

For the year 1871, he agreed to pay a rent of $2600, giving his draft for that amount on Payne, Dameron & Co., of New Orleans.

For the year 1872, he agreed to pay a rent of $1200, giving his endorsed note therefor.

The first year’s rent was not paid. Suit was brought therefor, and a writ of provisional seizure issued. So with regard to the second year’s rent. And so with regard to the third.

To the first demand he pleads specially payment and novation! Reconvening, he claims damages to a large amount for the failure of the administrators to replace a gin house and mill on the plantation which had burned down before he took possession, and which prevented him from grinding corn and delayed him in the gathering of his crop; which caused som.e of his cotton and cotton seed to rot, etc.

To the second suit he answers that he gave his draft on Payne, Dameron & Co. in payment of the rent; that this draft is still held by them, and that his liability therein has been extinguished in consequence of the failure of the administrators to present said draft for payment, and because the draft was not legally protested for non-payment. He also alleges that the succession is indebted to him in sums as set forth in his answer to the first suit, which he makes part of his second answer, and that it is indebted to him in the further sum of ■$100 for building a house on the plantation under contract with the administrators, and in the further sum of $320, rent of dwelling house occupied by Cornelia Hart, and in the further sum of $1789 87 for lumber, etc., purchased by the administrators from defendant for use of the plantation.

To the third suit he alleges that the succession of Hart is largely indebted to him, as set forth in his answers to the two preceding suits.

¡If his pretensions are well founded, the result will be that instead of receiving the rent which he agreed to pay for the property, which he occupied for three years, and upon which he made crops, the succession of Hart will have to pay him some $16,000.

The cases were consolidated, and from a judgment against him he ^has appealed.

A motion to dismiss the appeal is made on the ground of acquiescence. We do not find that acquiescence which gives to the judgment the authority of the thing adjudged. The motion to dismiss is therefore refused.

The defendant in the court below moved for a new trial, on the ground that the judgment had been rendered aud signed .in chambers. But we think .that as he agreed that this should be done, the agreement being on the minutes of the court, the judge did not err in refusing it. A motion was made by the plaintiff to strike out the defendant’s reconventional demand. The conclusion to which we have arrived on the merits make it. unnecessary that we should pass upon this motion. With regard to the reconventional demand contained in his answer to the first suit, it is sufficient to say that, as an administrator of an estate can not bind the estate he represents ex eontraetu, without the authority of the judge, the estate can not be bound by a breach thereof. As regards the novation which he pleads, his position is inconsistent. He pleads payment and novation. A debt paid can not be novated; there is nothing to novate. Besides, admitting the novation, which we are far from doing — on the contrary, we think there was none — -we think an administrator lias no power to novate a debt due to the succession under his charge, without at least having been authorized to make it. The alleged novation consisted in this:' When the note became due in July, 1871, it was not paid. The defendant then gave a draft on Payne, Dameron & Co. for the amount thereof, payable on the first April following, and his note was given up to him. He then notified Payne, Dameron &. Co. not to accept or pay the draft, and it was not accepted. Whether this was a novation or not, the administrator had no right to make it. See Landry v. Percy, 25 An. 183.

In that case it was said: “An administrator exceeds his proper functions when he enters into an agreement with the debtors of an estate to extend the term of payment beyond that fixed by the original contract. The exercise of such a power by an administrator may be assimilated to acts done by agents, which do not come within the purview of their power, and which are, therefore, not regarded as binding on their principals.

“If an administrator could, by his private contracts, bind an estate, or make it liable for his fault, negligence or non-performance in the matter of his contracts, the interests of heirs and creditors would be in constant jeopardy. As said by Judge Martin in the case of Flower v. Swift, 8 N. S. 452, in regard to the indorsement of a note by an. executor: ‘ Such a contract is not in the scope of an executor’s authority, i. e., he can not thereby bind the estate to pay damages or even to refund the amount of the note; for if he could, he could ruin the estate by making it liable to pay the amount of notes of its insolvent debtors. As the executor can not bind the estate by indorsement, it follows that the liability resulting from those he makes is personal.’”

His defense to the second suit that the rent was paid by draft, given in anticipation, on Payne, Dameron & Co. is not good. The draft was not paid, and if it be true that it was neither presented or paid, as is alleged, defendant should at least have shown' that he had funds with-the drawees to meet the draft at maturity. This he has not done. Under no circumstances can the administrator of an estate take in payment of the rent of property a draft payable at the end of the lease, and thus give up the privilege which the estate he represents has on the growing crop.

His reconventional demand is governed by what we have already said with regard to similar claims in the first suit.

The defense to the third suit rests on the grounds alleged in the two preceding ones, and is disposed of in the same way.

The judgment of the district court reserves to him his rights against the administrators personally for any damages which their conduct' may have caused him. This is all that can be accorded to him.

Plaintiffs have prayed that the judgments be amended by recognizing a privilege on the property provisionally seized and attached in these suits. We think they are entitled to this.

It is therefore ordered, adjudged and decreed that the judgments of the district court in these three consolidated cases be amended by allowing a privilege on all the property provisionally seized and attached therein, and for the amounts adjudged to be clue in each suit respectively, and that as thus amended they be affirmed with costs.


author: Taliaferro, J.

text:
    No. 492.
    Succession of E. Hart. Opposition of Cornelia Hart, Tutrix.
    The Public Administrator, in this instance, is only entitled to two and a half per cent, commissions on tlie collections he made. He was acting in the capacity of an ordinary administrator under appointment of the court. His pretensions to five per cent, commissions on the whole appraised value of the estate are extravagant. The preceding administrators who were in office four years and who had virtually closed the administration, were allowed two and a half per cent, on the amount of the inventory. For the brief space of ■ his administration during which there were but a few simple acts to be performed, his charge of five per cent, commissions on the whole value of the estate is totally unwarranted by law. In creating the office of public administrator, the Legislature can not have intended to sanction the spoliation of successions.
    Appeal from the Parish Court, parish of Caddo. Oresswell, J.

      Land & Taylor, for opponent and appellee. Kilpatrick & Pegues, for administrator and appellant.
   Taliaferro, J.

The Public Administrator of the parish was appointed to administer the estate of Hart, upon the death of Hoss and Elder, who were appointed to that office upon the opening of the succession and who continued their functions until the period of their respective deaths. Elder died in December, 1872, and Hoss in September, 1873. During an administration of nearly four years, all the debis, 'with but few exceptions were paid. At the time of the death of Hoss, a suit was pending in the Supreme Court for the estate between Cornelia Hart, widow of deceased and tutrix of her minor children, and the collateral kindred of E. Hart. The estate being solvent, no further administration was necessary after the recognition and putting in possession of the heirs which took place in the spring of 1874.

The Public Administrator about that time, in conformity with the decree of the Supreme Court, surrendered the property to the heirs and filed his final account. He charged five per cent, commissions on the amount of the inventory $68,308 50, less $409 50 cash received, leaving a balance of $3,005 92. He charges himself with $606 25, amount of rents received for the year 1873, He then credits himself with the sum of $7f 25, cash paid out, and $125 50 amount account of one Smith, leaving a balance of $409 50, taken as above stated from the amount of commissions charged. He puts down as privileged claims: Smith, for repairs $125 50; Gilmore, auctioneer $15 25; Crain, for survey $77; Hatch, clerk -; unpaid-; telegram for advertising this account $6.

Cornelia Hart, tutrix, opposed this account in several of its items as follows, viz: surveyor’s fees, greater than allowed by law. The item $125 allowed Smith, the same not being due as lessee of the Hart Island plantation. She opposes the account because the administrator does not charge himself with commissions received by him on collections in suits of Hoss and Elder administrators v. George J. Jones, amounting to about $250. She opposes the charge of five per cent, commissions on the amount of property mentioned, because, first — the succession had been previously administered three or four years by Hoss and Elder co-administrators; second — because the administration of the Public Administrator was only a partial and temporary one from October, 1873, to March, 1874, and during that brief period performed only a few acts of simple administration ; third — that it is only in cases where a public administrator opens, fully administers and closes a succession, that he is allowed five per cent, commissions.

On the trial of the opposition in the court below, it was sustained as to the five per cent, commissions claimed on the amount of inventory. The administrator was allowed $239 80, as five per cent, commissions -on collections during his administration, and the further sum of $606 25, amount of rents received as compensation for his partial administration, making the full sum of $645 05.

From this judgment the administrator has appealed. The opponent asks an amendment of the judgment in this court.

We think the administrator entitled only to two and a half per cent, commissions on collections. He was acting in the capacity of an ordinary administrator under appointment of the court. His pretensions to five per cent, commissions on the appraised value of the estate were •extravagant. The administrators who were in office lour years and who had virtually closed the administration were allowed two and a half per cent, on the amount of the inventory. For the brief space of •his administration during which there were but a few simple acts to be performed, his charge of five per cent, commissions on $68,308 50 is totally unwarranted by law. We are as incredulous as the judge a quo who could not believe that the legislature, iu creating a public office for public purposes, intended a “spoliation ” of successions. The amount allowed as commissions for collections, viz: $239 80, we reduce to half that sum.

It is therefore ordered that the judgment, of the Parish Court be amended by reducing the allowance of $239 80 as commissions for collections to $119 90 andas thus amended that the judgment be affirmed.


author: Ludeling, C. J.

text:
    No. 481.
    Peter James v. Mrs. M. J. Lewis and Husband.
    "Where it appears that the husband of the defendant, -who is separate in property from her,, -was authorized to employ servants for the hotel kept by the defendant and in which she-resides, to settle with them and to pay their wages, and that he had general superintendence and sole control and management of the hotel;
    Held — That this authority included the power to make a note for the wages due to servants-employed in the hotel.
    Even without specific powers the agent can bind the principal by drawing bills and signing-notes where it is necessary to raise funds to carry into effect the main object of the agency, A fortiori, would he have authority to acknowledge a debt due to the employe of a hotel whom he was authorized to employ and to settle with.
    The instrument sued upon would be valid as a certificate of indebtedness, if not as a note, and against it the prescription of ten years, but not of one year, would be applicable.
    It being proved that the defendant resided at the hotel during the term the services were-rendered by the plaintiff, it must he presumed that she was informed of what her agent did in regard to the settlements with the servants in her employ, and that she ratified. his acts, as it is not shown that she ever repudiated them — the plaintiff continuing in her service after the note was given.
    Appeal from the Fourteenth Judicial District Court, parish of Ouachita. ■ Say, J.

      J. & 8. D. McEnery, for plaintiff and appellee. Cobb & Gunby, for defendant and appellant.
   Ludeling, C. J.

The plaintiff sues Mrs. M. J. Lewis on a promissory note for $636 31, signed by Mr. Lewis, the husband of the-defendant. The note is subject to a credit of $100. It is alleged and proved that Mrs. Lewis was separatód in property from her husband; that she was the proprietress of the hotel in which the plaintiff' was employed, and that the note was' given for the wages of the plaintiff, as servant in said hotel, and that Mr. Lewis was the agent of Mrs. Lewis, who employed plaintiff, and who had full control and management of the said hotel.

.' These facts do not seem to be seriously denied, but it is alleged that the husband had not express and special authority to give that note,, and she pleaded the prescription of one year against plaintiff’s claim against her for Lis wages. The defense is without equity, and to sustain it would be to enrich the defendant at the expense of the plaintiff,, whose services in her hotel inured to the benefit of the defendant.

It appears that Mr. Lewis was authorized to employ servants for the hotel, to settle with them and to pay their wages; that he had general superintendence and sole control and management of the hotel. This authority, it would seem, included the power to make a note for the wages due to servants employed in the hotel. For “even without gpecific power, the agent can hind his principal by drawing bills and signing notes, when it is necessary to raise funds to carry into effect the main object of the agency.” Perrotin v. Cucullu, 6 La. 500; 8 R. 236; C. C. 3000. See also Leonard v. Hudson, tutor, 12 An. 840, 377; 4 La. 65; 4 An. 250.

A fortiori would he have authority to acknowledge a debt due to an employe of the hotel, whom he was authorized to employ and to settle with ; and the instrument sued upon would be valid as a. certificate of indebtedness, if not as a note, and against it the prescription of ten years, and not one year, would be applicable. Besides, it is proved that the' defendant resided at the hotel during the time the services were rendered by the plaintiff. It must be presumed, therefore, that she was informed of what her agent did in regard to the settlements with the servants in her employ, and that she ratified his acts, as it is not shown that she ever repudiated them.

The plaintiff continued in her service after the note was given, and he has lived in the town where defendant resides, ever since, and it does not appear that he was ever notified that the giving of said note was unauthorized by her. 11 La. 288; 2 R. 1; 6 R. 284; 2 An. 891.

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

Rehearing refused.


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    No. 450.
    Thomas B. Kilgore v. Thomas N. Willis et al.
    The authorization to the President of the Claiborne Manufacturing Company to confess judgment was a matter of fact, and this fact it was competent for the defendant to estab* lish by any sufficient evidence. The mere circumstance that the authority was not placed of record in the books of the company does not destroy the fact that it was given, and the party in whose favor the authority was to act could not be deprived ot his rights, simply because tlie officers of the company were negligent in the performance of what was perhaps their duty.
    Appeal from the Eleventh Judicial District Court, parish of Claiborne. Trimble, J.

      Egan & Hayes, for plaintiff and appellee. 2. & J. IF. Young, for defendant and appellant.
   Morgan, J.

This case differs from the case just decided, only in this that the authority of the president of the Claiborne Manufacturing Company to confess the judgment does not appear to have been recorded on the books of the company.

But by the charter of the company the president thereof is designated as the officer on whom citation was to be served when the corporation should be sued, and all suits by the corporation were to be brought in the name of the president thereof. If, notwithstanding the provision in the charter, special authority was necessary to enable the president to confess judment, we think it sufficiently established by parol testimony, which we think was competent evidence that such authority was expressly given. The authorization was a matter of fact, and this fact it was competent for the defendant to establish by any sufficient evidence. The mere circumstance that the authority was not placed of record in the books of the company does not destroy the fact that it was given, and the party in whose favor the authority was to act could not be deprived of his rights, simply because the officers of the company were negligent in the performance of what was, perhaps, their duty.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed and that the injunction herein be dismissed.


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    No. 452.
    Succession of Mary A. Gee. Opposition of heirs to the application of Public Administrator for administration.
    The fact of a husband being the bearer of an act which he presented as his wife’s power of attorney to himself and acting as her attorney in fact under it, might be shown, in order to establish his authorization to her, after it was distinctly proved that the wife signed the act.
    In this case the judgment of the court a qua appointing the public administrator to administer the succession was erroneous. It was not a vacant succession. There were no debts against the estate — the heirs were represented according to law and were claiming to be put in possession. "Under this state of facts his functions were not required.
    Appeal from the Parish Court, parish of Claiborne. Scott, J.

      J. & J. W. Young, for the applicant and appellee. JSgcm & Hayes, for opponents and appellants.
   Taliaferro, J.

Mary A. Gee died on the eleventh December, 1873, in the parish of Claiborne, intestate, leaving in that parish a succession appraised by inventory to near seven thousand dollars, and it does not appear there were any debts against it. The decedent left no heirs in the ascending or descending line. On the thirteenth of the same month the public administrator of the parish made application to the parish court to be appointed to administer the succession, alleging as grounds for his appointment, that Mrs. Gee “died without leaving any will, and left no heirs present or represented.” There was no alleg ition of indebtedness. On the twenty-ninth of the same month two nieces of the decedent and a nephew, a minor (who is represented by a guardian), made opposition to the appointment of the public administrator, alleging themselves to be the sole heirs of the deceased. The- nieces are married women. At the date of the filing of the opposition all the heirs were represented by an agent and attorney in fact, and also by attorneys at law. The proof of the rights of these opponents as heirs of this succession is fully made out. The power of attorney of Mrs. Haring, one of the heirs, to her husband, was objected to on the ground that there was no written authorization of the husband to the wife to sign her name to the act.

The opponent, Mrs. Haring, by her counsel offered to prove that the husband had brought the power of attorney tp the State himself and had acted under ic, the signature of Mrs. Haring to the power of attorney being first proved. The court excluded the evidence offered to prove an authorization and rejected the instrument. A bill of exceptions was reserved. The judge, we think, erred. The fact of the husband being the bearer of the act, presenting it as his wife’s power of attorney and acting as her attorney in fact under it, might be shown to establish his authorization aiter it was distinctly proved that the wife signed the act. The opposition of the heirs was overruled and the public administrator appointed to administer the succession.

The judgment is erroneous. This was not a vacant succession; there were no debts against the estate; the heirs were represented according to law and were claiming to be put into possession. Under this state of facts the public administrator had no right to take the estate under administration. In such a case his functions are not required and his appointment was irregular and illegal.

It is therefore ordered that the judgment of the parish judge appointing the public administrator to administer the succession of Mary A. Gee, deceased, be annulled, avoided and reversed. It is further ordered that the opponents be recognized as the legal heirs of said decedent, and put into possession as such; the public administrator, in his individual capacity, paying all costs of this suit.


author: Howell, J.

text:
    No. 439.
    Simon B. Miller v. M. C. Moseley.
    The nonpresentation of a check within a reasonable time may, under the circumstances of the case, amount to such laches as will release the indorser thereof.
    Appeal from the Eighteen Judicial District Court, parish of Webster. Turner, J.

      Watkins <& Fort, for plaintiff and appellant. A. B. George, tor defendant and appellee.
   Howell, J.

This is a suit by the holder against the indorser of a check, drawn at Holly Springs, Mississippi, December 21, 1872, by the Holly Springs Savings and Insurance Company on the Crescent City National Bank of New Orleans, Louisiana, the defense to which is a. release by the laches of the plaintiff in not presenting the check in due time and withholding it from circulation until the bank had failed.

The check was drawn to the order of defendant, who received it by mail in the early part of January, 1873, and on the first of February following sold and specially indorsed it to plaintiff, who retained it in his possession in Minden, Louisiana, until March 28, and it was protested for nonpayment on third April following. The bank suspended on March 17, at which time the drawers had over $1400 on deposit, considerably more than the amount of .the check, and it is proved that the check would have been paid if presented at any time from first of January to seventeenth March, when the bank failed. No good reason is shown by plaintiff for holding the check from first of February to twen.ty-eigi.th March, and we must consider it such laches as to release the defendant under the circumstances. The fact that the defendant had held it for nearly a month before selling it to the plaintiff, will not inure to the benefit of the plaintiff, if the latter had reasonable time to present the check for payment before the failure of the drawees; and we think it clear there was such. And the very doubt, which the plaintiff says he expressed at the time of purchasing the check, should have induced him to present it for payment promptly. The alleged guarantee made at the time, by defendant, as described by the plaintiff, did not authorize the latter to hold the check such an unreasonable length of time. The defendant did not warrant the indefinite or perpetual solvency of the drawees.

Judgment affirmed.


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    No. 470.
    R. C. & M. Oglesby v. M. P. Renwick & Co.
    The judge a quo erred in not permitting it to bo proved that an account which had been settled by a note was incorrect. Notwithstanding the note, the party interested had the right to show that the account upon which it rested was not right.
    Appeal from the Fourteenth J udicial District Court, parish of More-house. Bay, J.

      Newton & Rail, for plaintiffs and appellees. Morrison <& Farmer, for defendant and appellant.
   Morgan, J.

D. C. Moyan alone appeals from the judgment rendered against the firm of W. P. Renwick & Co., of which firm he was a member.

Some of the transactions between M. Oglesby and the defendant were settled by a note. Subsequent to this settlement, R. G. Oglesby entered into partnership with M. Oglesby. On the trial, Moyan attempted to prove that the account which had been settled by note was incorrect. He was not allowed to do so on the ground that the account had been closed by note, and on the further ground that the note was made in favor of M. Oglesby, and not R. C. & M. Oglesby. We think our brother eired. R. C. Oglesby can not be considered a third party and innocent holder of the note for value, and, notwithstanding the note, Moyan had the right to show that the account upon which it rested was incorrect.

Moyan offered also to prove that when the account was presented to him, he pointed out items amounting to some $2000, charged thereon, which bore date previous to the existence of the partnership of Renwick & Co. This was refused for the reason that these accounts had all been closed by note after the date named, and its correctness could not now be inquired into. We think the judge erred. The testimony should have been received.

It is therefore ordered, adjudged and decreed that the judgment of the district court, as regards the defendant, D. C. Moyan, be avoided, annulled and reversed, and that the case be remanded tor a new trial, plaintiffs to pay costs of appeal.


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    No. 459.
    Margaret S. Pool v. Annie Alexander and Husband.
    The plaintiff sold her interest in her father’s succession to her co-legatee and consequently co-owner, who is the defendant in this oase, and in the enjoyment of that interest it is not pretended that said defendant has been disturbed. It matters not whether that interest was a third or a half. The purchaser has received all that she purchased, to wit: the interest, whatever it is, and she must pay the price she has agreed to. It can not be seen under what error of law, as alleged, the defendant could have been, when making the purchase.
    The plea of want of consideration is not well founded. The plaintiff did not sell any slave, but only whatever interest she might have in her father’s estate. Besides, in 1867, the date of the defendant’s purchase, there were no slaves to buy or to sell.
    After the plaintiff sold all her interest in the succesion of her father to the defendant, she had nothing to do with whatever debts of the succession the defendant chose, or was compelled to pay. There was no error in the judgment which passed over in silence the defendant’s reconventional demand. To give judgment in favor of the plaintiff for the amount claimed, was practically to dismiss the reconventional demand — which dismissal the evidence justifies.
    The judge a quo did not err in refusing to allow the defendant to submit her pretensions on her reconventional demand to a jury. The suit being on a promissory note and no fraud being set up as a defense, no jury was allowed by law to try the issue. Beconvontion is an incidental demand. If the principal action could not be submitted to a jury, neither could that which was an incident thereto.
    It is too late to enter a remittitur after an appeal has been granted. After the judgment was signed, it could only be corrected on appeal.

      APPEAL from the Fourteenth Judicial District Court, parish of XA Morehouse. Bay, J.

      Neivton <& Hall, for plaintiff and appellee. ¡8. G. Parsons, for defendant and appellant.
   Morgan, J.

Plaintiff claims from the defendant $1518 75, balance due on a note of $4000. She also asks to have her hypothecary rights upon a certain piece of property, given to secure the payment of the sum due her, recognized. The defense is error of law and want of consideration.

Plaintiff’s father, at his death, left a widow and two children. The property he owned at his decease was community property. By will he divided his estate between his widow and his children, giving to each a third part thereof. His property consisted in land, slaves and personal property. He died in 1863. No effort was made to attack the will. The legatees seem to have acquiesced in its provisions. On the fourth January, 1867, plaintiff sold her interest in her father’s succession to his widow, the'present defendant. The executor’s account had, at that time, been presented and homologated, alter which it would seem that the heirs took possession of the estate. Bussey, a witness, swears that he thinks they did. Parsons says that upon the rendition of the account the property was turned over to the heirs and those who represented them, and that the executors were discharged.

The alleged error of law and want of consideration is this: The defendant says that the pioperty left by her husband was community property, of which she was the owner, in her own right, of the one-half, and that plaintiff could only sell her the one-third of the one-half thereof, instead of the one-third of the whole. Consequently she contends that, as the plaintiff sold her more than she had title to, she, the defendant, was in error of law when she purchased more than the plaiutiff had to sell. The proposition seems to us untenable.

The plaintiff sold her interest in her father’s succession, whatever that interest might have been. She sold to her co-legatee, and consequently co-owner. Whether that interest was a third or a half matters not. It was not a certain number of acres of land, or a certain quantity of movables which she sold, but her interest in the sucession of her father, and in the enjoyment of this interest it is not pretended that she has been disturbed. We can not see under what error of law the defendant could have been laboring when she made the purchase. Even if she was in error, this error was not the only or principal cause of her contract, and would not, therefore, either invalidate the sale or entitle her to a diminution of the price. C. C. 1846. She has received everything which she purchased, and she must pay the price which she agreed to pay therefor.

Another want of consideration urged is that the plaintiff sold her interest in the negroes, which formed a portion of her father’s estate. This is not the sale of a slave. In 1867, the date of the defendant’s purchase, there were no slaves to buy or to sell. Whatever interest she had she sold, and the defendant bought nothing else.

There was no error in the judgment which passed over in silence the defendant’s reconventioual demand. To give judgment in favor-of the plaintiff for the amount claimed is, practically, to dismiss the reconventioual demand, and this the evidence satisfies us was proper, as there is nothing in the record which would authorize a judgment in defendant’s favor on that demand. Admitting everything which she-alleges to be tru'e in this regard, after the plaintiff sold all her interest in the succession of her father to the defendant, she had nothing to do with whatever debts of the succession the defendant chose, or was forced to pay. Neither do we think the judge erred in refusing to allow the defendant to submit her pretensions, on her reconveutional demand, to a jury. The suit being on a promissory noto and no fraud being set up as a defense, no jury was allowed by law to try the issue. Reconvention is an incidental demand. If the principal action could not be submitted to a jury, neither could that which was an incident thereto be. There is error in the judgment in this, that it gives more to the plaintiff than she claimed in her petition. This error was sought to be corrected, and a remittitur was entered for the excess. But this remittitur was entered after an appeal had been granted. This was too late. After the judgment was signed it could only be corrected on appeal. But this error can be corrected here.

It is therefore ordered, adjudged and decreed that the judgment of the district court be amended by reducing the same to filteen hundred and eighteen dollars and seventy-five cents, with interest as claimed in plaintiff’s petition. The costs of the court below to be paid by the defendant, those of the appeal to be paid by the appellee.

Rehearing refused.


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    No. 508.
    City of Shreveport v. L. A. Levy.
    Before the constitution Jews and Gentiles are equal; by the law they must be treated alike, and the ordinance of a City Council which gives to one sect a privilege which it denies to another, violates both the constitution and the law, and is therefore null and void.
    Appeal from the Recorder’s Court, city of Shreveport, parish of Caddo. Wheaton, recorder.

      Nutt & Leonard, for defendant and appellant.
   Morgan, J.

The defendant appeals from a judgment condemning

him to pay a fine of ten dollars for having violated an ordinance passed by the authorities of the city of Shreveport. The ordinance violated provides that all business houses in the city of Shreveport shall be closed on Sundays from and after nine o’clock A. M., and that it shall not be lawful for any persons doing business in that city to sell anything in the usual course of their business during the timé and hours above mentioned, provided that this ordinance shall not apply to drug stores, hotels, barber shops, restaurants and livery stables. If the ordinance stopped here, perhaps it might do very well. But it goes on and provides further that it shall not apply to any person or persons doing business in the city who close up their places of business on Saturdays, and keep them closed during the whole day.

It is admitted in the record that a large proportion of persons engaged in mercantile pursuits in the city of Shreveport are Jews, many of whom observe the Jewish Sabbath. Before the constitution Jews and Gentiles are equal; by the law they must be treated alike, and the ordinance of a City Council which gives to one sect a privilege which it denies to another, violates both the constitution and the law, and is therefore null and void.

It is therefore ordered, adjudged and decreed that the judgment of the Recorder’s Court be avoided, annulled'and reversed, and that there be judgment in favor of the defendant, with costs in both courts.


text:
    No. 434.
    J. F. Pargoud v. Mrs. Sarah Richardson.
    The stamping of the note sued upon was not necessary as the act accompanying the noto was stamped.
    The objection that the note was not presented at the place of payment at its maturity, according to the agreement of parties, is not fatal. This agreement is not a stipulation in the act of sale and mortgage connected with the-note, but was added to the note some-some time after its date, and authentic proof of a compliance therewith can not be . required.
    The alleged insufficiency of the stamps, amounting to fifty cents on the act of mortgage, does not invalidate the writ of seizure and sale issued on the evidence of said mortgage act; it is on the authenticity of the evidence that such a writ is based. Here the evidence was authentic, and therefore the order properly issued. If the defendant was injured by the proceeding, she has not adopted the remedy by which her injuries could be inquired into.
    Appeal from the Fourteenth Judicial District Court, parish of Ouachita. Bay, J.

      S. D. MeEnery, Cobb & Gunby, for plaintiff and appellee. Morrison & Farmer, lor defendant and appellant.
   Morgan, J.

We are asked to dismiss this appeal on the following grounds:

First — That by taking an appeal in the suit in which the appellant injoined the order of seizure and sale from which the appeal is taken, appellant lost all right to appeal from the order.

Second — That by this appeal we are required to decide the same case twice, while it was the duty of the appellant to set up all her defenses in the injunction suit.

The grounds set up in the injunction suit are not the same as are presented in this case. The motion must therefore be denied.

On the Merits.

It is first objected that the note sued on is not stamped. This was not necessary as the act accompanying the note was stamped.

It is next objected that tbe note was not presented at the place of payment at its maturity, according to the agreement of the parties. This agreement is not a stipulation in the act of sale and mortgage, but was added to the note some time after its date, and authentic proof of a compliance therewith can not be required, as seems to have been considered necessary in the case of Moss v. Byrne, 12 La. 615. Third, the act of mortgage used as evidence to obtain the writ is not binding as a mortgage, and the courts are prohibited by the laws of the United States from admitting it in evidence, because it is not stamped as required by the internal revenue laws of the United States, and the evidence is otherwise insufficient to authorize the writ. The alleged insufficiency of stamps amounts to fifty cents.

It is the authenticity of the evidence upon which an order of seizure and sale issues. Here the evidence was authentic. This being the case the order properly issued. If the defendant was injured by the proceeding, she has not adopted the remedy by which her injuries could be inquired into.

Judgment affirmed.


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    No. 455.
    T. S. Dugan et al. v. Police Jury of the Parish of St. Charles et als.
    Plaintiffs have failed to allege or show the amount of their interest as tax payers in the mat* ters involved in this suit, and hence the motion to dismiss this appeal for want of jurisdiction must prevail.
    The simple allegation that the acts complained of will cause the plaintiffs damage to the amount of more than five hundred dollars does not show such interest as to give this court jurisdiction.
    APPEAL from the Fourth Judicial District Court, parish of St. Charles. Durrapau, parish judge, acting in the place of Flagg, district judge, who recused himself.

      M. Maries, for plaintiffs and appellants. F. JB. Farhart, J. D. Augustin, N. St. Martin, parish attorney, for defendants and appellees.
   Howell, J.

The plaintiffs, as taxpayers in the parish of St. Charles, set out the extravagant and wasteful administration of the financial affairs of said parish by the police jury, and their illegal issue of parish warrants and certificates of indebtedness in negotiable form, and prayed to injoin the police jury, the parish tax collector arid treasurer from paying the said warrants or receiving them in payment of parish taxes, but failed to allege or show the amount of their interest as taxpayers in the matters involved, and hence the motion to dismiss this appeal for want of jurisdiction must prevail.

The simple allegation that the acts complained of will cause the plaintiffs damage to the amount of more than five hundred dollars, does not show such interest as to give this court jurisdiction.

The questions and interests involved are doubtless of vast and serious importance to the inhabitants of St. Charles parish and the public generally; but howsoever disposed we may be to grant relief in such cases, the parties who appeal to the judiciary department must show in some way that the matter involved as to themselves will give jurisdiction of their demand to the tribunal to which they apply for relief. Our jurisdiction, as fixed by the constitution, not appearing from the record before us, we are not authorized to pass on the issues presented.

It is therefore ordered that this appeal be dismissed at costs of appellants.


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    No. 491.
    A. L. Slack, Administrator, v. James S. Ray, Assessor and Collector.
    Section 25 of the charter of the city of Monroe, confers full authority on the city to assess and collect taxes and to impose penalties for non-payment of taxes. The grant of full power to tax carries with it authority to use all means necessary to accomplish the object; and the imposition of penalties after due notice for non-payment of taxes, is a legitimate means of collecting revenue. The State can confer this power because there is no limitation in the constitution inhibiting it.
    There is no force in the objection that section 25 of the charter of the city of Monroe is not covered by the title, and therefore repugnant to article 114 of the constitution and void. The title of the charter is “an act to incorporate the city of Monroe, to fix its boundaries, to provide for the government,” etc. The statute would fail to provide for the government of the city of Monroe, if it failed to authorize the levy and collection of taxes for the support thereof.
    Appeal

      A. L. Slaclc, in propria persona, plaintiff and appellee. W. W. Farmer, city attorney, ior defendant and appellant.
   Wyly, J.

The plaintiff injoined the tax collector from selling certain property belonging to the succession represented by him for taxes due the city of Monroe for the year 1873, and also for the penalties for non-payment of said taxes.

The court dissolved the injunction as to the taxes, but maintained it in relation to the penalties.

From this judgment the defendant, the tax collector, has appealed. That the State can collect taxes and impose penalties for non-payment thereof, after giving due notice, was recently decided by this court in several cases, especially in the case of Morrison v. Larkin, tax collector. ■ Indeed, the proposition is not denied by the plaintiff.

It is denied, however, that this right has been conferred on the city of Monroe by the State; and, therefore, the defendant has no authority to sell the property of the plaintiff.

Looking to the charter of Monroe we find section 25 which provides:

“ That for the purpose of levying and collecting taxes and licenses, the Mayor and City Council are hereby invested with full power to pass all laws, not inconsistent with the Constitution of the United States or of this State, to compel the payment by compulsory process, of all taxes or licenses which may be due; and they are hereby authorized to confer on the assessor and collector power sufficient to carry into effect the laws and ordinances pertaining to the levying and collecting of such licenses and taxes.” Acts 1871, p. 242.

We think this section confers -full authority on the city of Monroe to assess and collect taxes, and to impose penalties for non-payment of taxes.

The grant of full power to tax, carries with it authority to use all means necessary to accomplish the object; and the imposition of penalties after due notice for non-payment of taxes, is a legitimate means of collecting revenue; and it is a means employed by the State in collecting its taxes.

The State can confer this power because there is no limitation in the constitution inhibiting it.

As the State can collect, in a summary manner, its taxes and the penalties for non-payment thereof after due notice, it can confer the same power on the political corporations which it employs in administering the government.

There is no force in the objection that section 25 of the charter of the city of Monroe is not covered by the title, and therefore repugnant to article 114 of the constitution and void.'

The title of the charter is: An act to incorporate the city of Mon-

roe ; to fix its boundaries; to provide for the government, and create a recorder’s court for the same.”

The statute would fail f‘to provide for the government” of the city of Monroe, if it failed to authorize the levy and collection of taxes for the support thereof. There are other objections, but they are without weight.

It is therefore ordered that the judgment appealed from be amended so as to dissolve entirely the injunction sued out by the plaintiffs, and as amended that it be affirmed, appellee paying costs of both courts.

Rehearing refused.


author: Sowell, J. Lud bring, C. J.,

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    No. 469.
    J. H. Brigham, Curator, v. A. L. Bussey et al.
    It is a rule of our jurisprudence that if a shorter prescription is not specially applied to personal actions, they are not prescribed by two years. There is no law fixing specially the prescription of actions against recorders.
    This is an action against the recorder of the parish of Morehouse and the securities on his official bond for the damages resulting from a failure of official duty by the deputy recorder in not reinsoribing a certain judgment within the proper time, as he, the deputy, was specially instructed to do, by which omission the debt due plaintiff was lost. This action is one ex contractu.

    The recorder had a special duty to perform, embraced within the obligation of his bond given according to law with two good securities, and his failure or that of his deputy, duly appointed to perform that duty, is a breach of his bond on which he and his deputies may be sued.
    The argument that it is not an action on the bond, because it is not established that the consent of the sureties was given to the appointment of the deputy, which was necessary to make them liable, and that its omission shows the action to be one against the recorder alone for his negligence, is not sound. It might perhaps result in releasing the securities on the trial, but can not change the character of the action.
    -Damages ex delicto flow from the violation of a general duty; damages ex contractu are the consequence of the breach of a special obligation, such as the special obligation imposed by law on the recorder, in this case, to reiuscribe a certain judgment.
    'The recorder and his securities had entered into a specific contract with the State, for the benefit of those interested, that he and his deputy would faithfully perform each duty of his office, and his failure in such respect is a breach of that contract. The action to Which it gives rise is not prescribed by one year.
    In this case, the deputy recorder promised to perform a special duty as requested on behalf of plaintiff, and the latter had the right to suppose the promise and duty would be observed by the officer. The failure of the plaintiff to go afterwards (as it would have been prudent for him to do) to see that the officer had -done his duty, is not such a negligence, under the circumstances, as to affect his right of action against the defendants. The other allegations of negligence against the plaintiff have no force.
    The objection that plaintiff or his attorney should have furnished the recorder with a certified copy of the judgment for reinscription and tendered the fee, if of any force under the circumstances, is removed by the promise of the deputy to make the inscription without requiring such copy or fee.
    The argument, on behalf of the sureties, that they can not be condemned to pay, because the the recorder did not obtain their written consent to the appointment of the deputy, as provided by law, can not avail one of the securities who is himself the deputy. As to the other, the matter should have been specially pleaded. It is raised for the first time, in this court, under the general issue.
    Appeal from the Fourteenth Judicial District Court, parish of More-house. Bay, J.
    Jury trial. Todd & Brigham, for plaintiff and appellee. Morrison & Farmer, Newton & Ball, James Bussey; for defendants and appellants.
   Sowell, J.

This is an action against A. L. Bussey, as recorder of the parish of Morehouse, and the sureties on his official bond, for the damages resulting from a failure of official duty by the deputy recorder in not reinscribing a certain judgment within the proper time, as he, the deputy, was specially instructed to do, by which the debt due plaintiff was lost.

To this action, under a general denial, the prescription of one year is opposed.

It is a rule of our jurisprudence and law that if a shorter prescript, tion is not specially applied to personal actions, they are prescribed by> two years. • We are referred to no law, and we know of none, fixing specially the prescription of actions-against recorders; but it is eon-i tended that this is an action for a quasi offense, and therefore prescribed: by one year. , :

In our opinion the action is one 'ex contractu. The recorder was required by law to enter into a bond with two good sureties for the faith-> ful performance of his official duties, and the law made it his duty to, reinscribe the judgment when duly called on to do so. It was then ar special duty embraced within the obligation of his bond, and his fail-; ure or that of his deputy, duly appointed, to perform that duty is a, breach £>f his bond, on which he and his sureties may be sued therefor. It is only through or by the bond that the sureties have any connec-; tion whatever with the acts or omissions of the recorder and his deputy, - The argument that it is not an action on the bond, because it is not, shown that the consent of the sureties to the appointment of the deputy which are necessary to make them liable, and its omission shows the. action to be one against the recorder alone for his negligence, is not. sound. It may perhaps result in releasing the sureties on the trial,, but can not change the character of the action.

We concur in the opinion that Mr. Marcadé has, in his commentary, on the Napoleon Code, “ developed the distinction between damages ex delicto and damages ex contractu with his usual brevity and felicity,. The former flow from a violation of a general duty, the-latter from; the breach of a special obligation.” It was the general duty of the recorder to do right — not to discharge the duties of his office in a vio.-, lent or oppressive manner — to observe the precepts of the law;” but: it was his special obligation imposed by the law to reinscribe the judg.-. ment in question when required by a party in interest to do so. Hei and his sureties entered into a specific contract with the State for the: benefit of those interested, that he and his deputy would faithfully per- -, form each duty of his office; and his failure in such respect is a breach, of that contract. If this is not a case in which the bond may be enforced, it is difficult to imagine one in which official bonds may be, made available. We therefore conclude that this action is not pre-scribed by one year. ;

The next important question — the first on the merits — is, was the, recorder or his deputy (for instructions to either is sufficient), instructed or directed in due time to reinscribe the judgment1?

The contest is between a curator of a succession as plaintiff and the-, recorder, his deputy and sureties as defendants. The deputy, Naff,,, who was actually discharging the duties of the office, swears positively that neither the plaintiff, his attorney nor any one else ever requested or directed him to make the reinscription. This is a denial by a party to the suit, made evidence by the law. On the other hand, Todd, one of the attorneys, of the plaintiff, swears as positively that he did give the instructions and describes the circumstances of his doing so; stating that he opened the book of judicial mortgages, turned to the page where the judgment was inscribed, and directing the attention of the deputy specially to it, requested him not to fail to reinscribe it, which the latter promised to do. Here is a direct mention of the details, the particular acts, which a witness, not a party to the suit, says he recollects distinctly. He also states that he informed the plaintiff of his action in the matter, and the latter states further, in this connection, that on that occasion his attorney first inquired of hitn if he had caused the reinscription to be made, and upon his, plaintiff’s, starting immediately to have it done, his counsel told him he need not go, as he, the counsel, had just ordered it to be done. This shows at least that the matter was thought and spoken of by those parties at the time, and served to fix it in their memories. As a part of the res gesto} this evidence was admissible. The jury and judge had these witnesses before them and gave credence to the testimony for the plaintiff, and we think it has the preponderance, and that Naff, the deputy, was guilty of the neglect of official duty as charged.

A third question is presented. If Naff was guilty of neglect, did not the negligence of plaintiff contribute to the loss and thus deprive him of the right to recover?

Ordinarily the contributory negligence must relate to or be connected with the act or event which causes the damage, and it is not pretended that any act of plaintiff contributed to the occurrence of the failure on the part of the deputy.to reinscribe the judgment; but it is urged that it was the duty of the plaintiff to see that the inscription had been made as directed, and the cases in 2 An. 547, 6 An. 172 and 7 An. 65 are cited in support of this position. Those cases refer to the duties of .creditors with such real rights, as they affect or relate to third persons, and not to the duties and rights as between the creditor and the delinquent officer. In this case the deputy recorder promised to perform a special duty, as requested, on behalf of plaintiff, and the latter had a right to suppose the promise and duty would be observed by the officer.

The failure of the plaintiff to go afterwards (as it would have been prudent in him to do) to see that the officer had done his duty, is not such negligence, under the circumstances as to affect his right of action against the defendants.

' It is also urged, in this connection, that the plaintiff was negligent in not speedily settling the estate he was administering and enforcing the special mortgage at a time when it might have paid the debtj in not recording the revised judgment and in not resorting in time to and prosecuting promptly hypothecary actions against the various properties affected by the judicial mortgage.

Conceding that these points are properly raised in the record where only the general issue is presented, no such negligence exists on the part of plaintiff, as to relieve these defendants from their liability. Within the legal delay the deputy recorder was instructed and-he promised to reinscribe the judgment, as authorized by law, the judgment was revived as required by law, and it is shown that, at the time, there was property subject to the judicial 'mortgage, which plaintiff could have purchased, but for the peremption of the mortgage, which mortgage he had a right, within ten years, to have reinscribed.

The objection that plaintiff or his attorney should have furnished the recorder with a certified copy of the judgment for reinscription and tendered the fee, if of any force under other circumstances, is removed by the promise of the deputy to make the inscription without requiring such copy or fee.

It is contended, in behalf of the sureties, that they can not ba condemned to pay because the recorder did not obtain their written consent to the appointment of the deputy as provided by section 3075 Revised Statutes.

This can not avail one of the sureties who is himself the deputy. He certainly consented to his own appointment. As to the other, we think the matter should have been specially pleaded. Non constat, if the point had been made in the defense, the plaintiff could have shown that the provisions of said section were complied with. It is raised for the first time here under the general issue.

Under all the circumstances presented in this record, we are not prepared to differ from the judge and jury below in their conclusion. We see no good cause to amend the judgment.

Judgment affirmed.

Lud bring, C. J.,

dissenting. This is a suit to render a recorder and his securities liable for the amount of a judgment which it is said he was instructed to record and he failed to do so. The evidence to establish this responsibility should be strong, clear and conclusive.

The only evidence in this case in favor of plaintiff is the- testimony of R. B. Todd, Esq., the attorney who obtained the postponement. His testimony is that he instructed the recorder, verbally, to re-register the judgment at the same time that he told him to re-register another judgment in another case, which latter judgment was re-registered. This the deputy recorder positively contradicts in his testimony. The declarations of Mr. Todd to his law partner, made just after these instructions to the deputy recorder were given, and made out of the presence of the recorder, were offered and received in evidence. I am inclined to the opinion that they should have been excluded for the reasons urged against their reception in the bill of exceptions — that it was hearsay.

But if the evidence be regarded as legal, because a part of res gestee, still I can not perceive how that strengthens the plaintiff’s case — it is still only the unsworn declarations of Mr. Todd, whose testimony was-already in the case. And we have the testimony of Mr. Todd opposed by the testimony of Mr. Naff — both unimpeached and both interested in the result. I have no reason to doubt the veracity of either witness, and the only hypothesis upon which both witnesses swore truthfully, is that Mr. Todd told Naff to re-record the judgment, but Naff did not. hear, or did not understand him. I must infer this to have been the-case, as the deputy recorder did register the one judgment and failed to re-register the other. He had no motive for not recording the judgment, whereas his interest in the fee for recording would have induced him to do it, if not his official duty. Besides, the presumption of the law, that every officer does his duty, is in his favor.

Upon the hypothesis aforesaid, who was to blame ? I maintain that it is the party who gave the verbal instructions, unaccompanied by a copy of the judgment to be recorded, or any written memorandum. Besides, it appears that the loss sustained was by the peremption of the mortgage, through the delays of the plaintiff, occasioned either through-negligence or a disposition to favor his debtors. He has, therefore, himself contributed to the loss, and the jurisprudence of this State is well settled, that one, whose negligence has contributed to an injury or loss, has no right to claim indemnity. 14 An. 524; 1 An. 374; 17 La. 391; 23 An. 464; 24 An. 464; and case against City Railroad Company recently decided at New Orleans.

In June, 1869, plaintiff instituted the hypothecary action on this judgment, and though no answer was filed or defense of any kind was made until May 23, 1871, no effort appears to have been made to make the judgment by default final, although the mortgage was not perempted until third July, 1870, and in the interim at least two terms of the court were held.

I therefore dissent from the opinion of the court.


author: Taliaferro. J. Morgan, J., Wyly, J.,

text:
    No. —.
    Mahle et al. v. Elder et al.
    This is a suit to recover a certain piece of land on the ground that the plaintiffs were unjustly .deprived of it hy illegal proceedings, among which was a certain compromise executed hy their tutor. All the proceedings complained of were duly homologated and confirmed* The power to effect the compromise was conferred upon the tutor hy a family meeting. The clerk, in rendering the order of homologation, had the authority to order the tutor, • in pursuauce of the directions of the family meeting, to carry out the compromise. The authorities in support of transactions of this kind are numerous in our own jurisprudence.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. J. O. Moncure, judge ad hoc in the place of Looney, district judge, recused.

      A. W. O. Hides & H. 0. Blanchard, for plaintiffs and appellants. Lcmd & Taylor, for executors. .Egan, Williamson & Wise, for defendants and appellees. 1
   Taliaferro. J.

This is a suit brought by plaintiffs as heirs of one John H. Mahle, who died in January, 1845. Nancy Mahle, his wife and mother of plaintiffs, died in August, 1847. It seems that in 1843 John K. Elgee, of the parish of Rapides, sold the land which these heirs are now suing to recover to John H. Mahle, together with a number of slaves for $11,600, for which Mahle executed his notes, payable in eight annual installments with ten per centum interest per annum after maturity, secured by special mortgage and vendor’s privilege on all the property conveyed. After the death of Mahle and his wife, the eldest of the children, John W. Mahle, qualified as tutor to the minors. During his tutorship proceedings were taken to effect a compromise and settlement of the debt of Elgee by retroceding the property to him. The retrocession was effected and the property, or at least that portion of it now in controversy, was sold by Elgee to the ancestor of the present defendants. The petition alleges that the plaintiffs were illegally and unjustly deprived of the property, that all the proceedings, transfers, etc., of the property they sue for, purporting to convey title thereto, are without effect, as having been executed in contravention of prohibitory laws. They claim two thousand dollars rent and pray to be recognized as the owners of the land sued for, and pray to be put in possession, as such. The defendants except that the plaintiffs can not indirectly and collaterally attack judicial proceedings and judgments of courts. They allege title in'themselves and plead the prescription of ten and twenty years.

The judgment of the lower court was in favor of the defendants and the plaintiffs have appealed.

We see no substantial grounds upon which the plaintiffs rest their claim to recover the property sued for. They seem to rely mainly upon alleged illegal proceedings resorted to to divest them of title, a,s they were minors when the retrocession of the land and slaves was made to Elgee, their ancestor’s vendor.

An examination of the record brings us to the conclusion that the proceedings in relation to the retrocession of the property to Elgee were regular and taken with circumspection. The ob'ection that these proceedings were superintended by Elgee himself, and the various legal instruments in the judicial proceedings written by him and signed by the tutor, do not vitiate them. ' It is fully shown that the ancestor of these claimants, John H. Mahle, had contracted a heavy debt in the purchase oí the plantation and slaves from Elgee, the vendor holding •a special mortgage and vendor’s privilege to secure the payment of the price. Mahle and his wife both died a few years after, leaving the succession burdened with a large debt bearing ten per cent, interest which the estate was utterly unable to pay.' Between the tutor of the minors, duly authorized by a family meeting, and the creditor, it seems to have been amicably agreed that the land should be. transferred to Elgee, and the notes given up, which was done, and the proceedings necessary to render the transaction legal appear to us from the record to be regular.

It is objected that the clerk had no power to authorize the tutor to make the retrocession to Elgee. The family meeting recommended the retrocession as an act highly advantageous to the minors, authorized'it to be carried into effect, and recommended that the tutors, of the minors be authorized to carry the compromise into effect. These proceedings were duly homologated and confirmed. The, power to effect the compromise was conierred upon the tutor by the family meeting. The clerk in rendering the order of homologation had the authority to order the tutor, in pursuance of the directions of the family meeting, to carry out the compromise.

The authorities in support of transactions of this kind are numerous in our own jurisprudence. 6 An. 2; 7 An. 135; 8 La. 81; 19 La. —; 3 An. 583; and various other authorities. C. C. 348; 15 An. 148.

The law and evidence justify the decree of the lower court-.

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

Morgan, J.,

dissenting. Retrocession is alienation. I find no autority which permits the alienation of real estate belonging to minors, as the result of a compromise between their tutor and persons presenting claims against them. The laws are intended to protect those who can not protect themselves. But, practically, it appears that the helpless are always wrong. When the law says that real estate belonging to minors can not be sold except by public auction, I think it meant what it said; and I do not think that their property can be taken away from them except in the way pointed out by law.

In this case the tutor not only reconveyed the property, but he paid money and contracted a debt to enable him to complete the re-rendition. I do not think he had that right, even though his course was sanctioned by a family meeting of the friends of the minors, and ratified by-the sanction of the clerk. All of them joined together had not, in my opinion, the right to allow their property to be disposed of except in the manner and form prescribed by law.

I therefore dissent from the conclusions arrived at by the majority of the court.

Wyly, J.,

dissenting. I concur in this dissenting opinion.


text:
    No. 457.
    E. D. Duckworth, individually and as administrator, v. Isaac B. Payne et al.
    This is a suit by plaintiff, individually and as administrator, to annul a certain order and judgment and the sale of certain lands made by the sheriff to defendant in fraud, as alleged, of the creditors of the succession of which he is the administrator.
    The sheriff in his return states that the sale, the validity of which is contested, was advertised by posting at the door of the courthouse and two other public places in the parish, there being no newspaper in the parish selected according to section 15, act No. 8, approved July 24,1868, to perform, print and publish parochial and judicial advertising. It is only after the official journal is selected and notioe thereof given to the sheriff, that his advertisements are null if not published in such journal. No such selection and notice are proven in this case ,* hence the presumption'must be in favor of the officer.
    The sale was made on a mortgage created before the provision of the constitution in regard to dividing lands into small lots was put in operation, and therefore can not be affected by it.
    The record does not show that the price was less than the first or previous mortgage. But it appears that the only mortgage of an older date than the ones on which the order of seizure and sale issued, was actually owned by the purchaser, plaintiff in the proceedings. The judge a quo did not err in excluding evidence offered to prove plaintiff’s alleged special mortgage, as the judgment obtained by him did not contain its recognition.
    The subject of the violation of an alleged agreement not to sell the property, but to cultivate the-lands, has already been settled by this court as not being a legal ground for not causing the property to be sold, and a fortiori, it is not a good ground to annul the sale.

      APPEAL from tbe Fourteenth Judicial District Court, parish of More-ill house. Bay, J.
    Jury trial. 8. <?. Parsons, for plaintiff and ap pellee. J. H. Brigham, David Todd, for Isaac B. Payne. Beaton & Hall, for R. B. Todd, curator.
   Howell, J.

The plaintiff, individually and as administrator of J. D. Duckworth, sues to annul a certain order and judgment and the sale of certain lands made by the sheriff to defendant, Payne, on first October, 1870, in fraud of creditors of the succession of J. T. Payne, as alleged, on the grounds:

First — The sale was not preceded by a legal advertisement, in the official journal or otherwise, nor by a legal appraisement.

Second — The land was not sold in lots of ten to fifty acres.

Third — The price bid for the said property was not equal to the previous special mortgage on it, and the provisions of acts 678 and 679 C. P. were not complied with.

Fourth — Isaac B. Payne was not a creditor of the succession at the time of sale.

Fifth — The notes which the land was sold to pay had been extinguished by the proceeds of cotton shipped by J. T. Payne to Fellows, Ferguson & Hervey.

Sixth — Isaac B. Payne had agreed with S. Gr. Ferguson, curator, at the time the succession was opened that the plantations should not be sold, but cultivated at the expense of the estate, which agreement was violated by the said Payne.

The separate answers of the defendants contain a general denial and an averment of the legality of the proceedings sought to be annulled. From a verdict and judgment in favor of plaintiff the defendants have appealed.

I. The sheriff in his return states that “the sale was advertised by posting at the door of the courthouse and two other public places in the parish, there being no newspaper in the parish selected according to section 15, act No. 8, approved July 24, 1868, to perform, print and publish parochial and judicial printing and advertising.”

The only evidence to contradict this is the testimony of one witness, who thinks there was a paper published at the time in the parish, but is not positive, and does not know that it was the official journal. It is only after the official journal is selected and notice thereof given to the sheriff that his advertisements are null if not published in such journal. No such selection and notice are proven, and we must adopt the presumption in favor of the officer. The appraisement appears to be regular.

II. The sale was made on a mortgage created before the provision of the constitution in regard to dividing lands into small lots was put in operation.

III. The record does not show that the price was less ttian the first or previous mortgage. But it appears that the only mortgage of an older date than the ones on which the order of seizure and sale issued» was actually owned by the purchaser and plaintiff in the proceedings. It is not made to appear in what particular the provisions of articles 678 and 679 were not complied with.

The judge did not err in excluding evidence offered to prove plaintiff’s alleged special mortgage, as the judgment obtained by him did not contain its recognition.

IY and V. The evidence in the record does not impeach the validity oí plaintiff’s claims on which the order of seizure and sale issued. The proof, unco,.tradicted, is that the proceeds of the cotton shipped to the factors of the debtor were to be applied first to the open account, which was not itself thereby extinguished.

YI. The subject of the violation of an alleged agreement not to sell the property, but to cultivate the lands, was settled in the case of Payne v. Ferguson, 23 An. 581, as not being a legal ground for not causing the property to be sold, and a fortiori, it is not a good ground to annul the sale.

After a careful examination of the record, we conclude that the case is with defendants.

It is therefore ordered that the judgment appealed from and the verdict below be set aside, and that there be judgment in favor of defendants, with costs in both courts.

Rehearing refused.