author: Howm, J. Taliaferro, J.

text:
    City of New Orleans v. The Citizens’ Mutual Insurance Company.
    That portion of the capital of tho Citizens Mutual Insurance Company, which i3 invested in bonds an d stocks exempt from taxation by statute, is subject to taxation as tho capital of tho corporation.
    For purposes of taxation, there is a distinction between the actual capital of tho corporation, and tho bonds or securities in which that capital is invested; and tho city of New Orleans, by tho provisions of its charter, can impose a tax on the entiro capital of the corporation invested in bonds and securities, irrespective of the character of such bonds or securities.
    APPEAL from the Second District Court of New Orleans,

      Whitaker, J. W. H. Hunt, for appellant. L. M. Day, for appellee.
   Howm, J.

The question to be settled in this suit is, whether or not that portion of the capital of the defendant, which is invested in bonds and stocks, exempt by statute from taxation, is subject to taxation as tho capital of the company.

Section 68 of the City Charter provides, “That all moneyed or stock corporations, deriving a profit from their capital, or otherwise, shall, for the purposes of this act, be liable to taxation on their capital, except such corporations as are now, by their charter, exempt from the same.” Section 70 directs, “That the president, or other public officer of every such incorporated company, shall, on the 1st of Maj of each year, deliver to the assessor a written statement on oath, specifying:

1st. The real estate, if any, owned at the time by such company ; tho assessment district in which it is situated, and the sums actually paid therefor.

2d. The capital stock actually paid in and secured to be paicC in, excepting therefrom the sums paid for real estate, and tho amount of capi • tal stock as may be owned by the State, dr by the city of New Orleans.

3d. The assessment district in which the office or place of business of such companies is located, or where they are liable to be taxed.”

Section 72 directs the assessor to insert in the first column of his assessment roll the names of each incorporated company in his district liable to taxation on'its capital, or otherwise, and thereunder the amount of its capital stock paid and secured to be paid in, and tho amount paid by said company for real estate thus belonging to it, wherever tho same may be situated, and the amount of its stock, if any, belonging to the State or-to the city of New Orleans ; in the second column, the quantity of real estate owned by said company within the assessment district; in the third column, the actual yalue thereof, estimated as in other cases ; and in the fourth column, the capital stock of every such company paid in and secured to be paid in, after deducting the sums paid out for all the real estate of such company, wherever situated and then belonging to it, and the amount of stock belonging to the State or the city of New Orleans.

In pursuance of these provisions of law, the city levied a tax of one and a half per cent, on tho capital paid in of the defendant, amounting, according to its annual statement, to $300,000; but the defendant, in its said return to the assessor, reported $119,80á of said sum invested, after it was paid, in bonds and stocks exempted from taxation, and refused to pay tho tax thereon as exempt by law.

It is urged, that, to tax this sum thus represented or invested, would bo to tax the bonds and stocks expressly exempted by law from taxation, and would bo a broach of the faith of tlie látate, as well as a violation of law. Wo do not so consider it. It is the policy of the law that every such incorporated company within the State shall have a well defined capita], on which its credit with the public and its business operations are based, and that this capital shall bo the subject of taxation, and it is as a sum fixed in the charter, or the required annual statement of such company expressly taxed, subject only to tho deductions specified in the 70th and 72d sections above quoted.

When the capital is not fixed or named in the charter, it is made known by tho company in tho statement made annually on oath.

Tho mistake of the defendant consists, we conceive, in treating this as a tax of tho bonds and stocks, when it is really a tax upon the capital of the company.

Capital, as used in this connection, means the amount of money contributed by the stockholders for the purposes of the corporation. It is to bo paid in, or secured to be paid in, and is known as tho “ capital stock” of the company, and is distinct from its property.

If tho whole capital consisted of United States treasury notes, which aro nob taxable, lying' in the vaults of the company, wo presume that exemption would not be claimed; nor could it, in ihatcase, be correctly said that the tax would be on the treasury notes specifically, but upon the capital — that from which tho company derives credit and profit — the amount, however represented, on which its business operations arc founded. Tho investing of the capital in bonds docs not destroy the capital, but is a temporary uso of it, at the will and risk of the company, independently of its main business, and without affecting the nature and purpose of tho capital in tho view of tho law.

If, as the defendant says, converting the capital into bonds docs not alter tho character of the bonds and their exemption, as such, from taxation, it may, with equal truth, be said that investing the capital in bonds does not alter the character of the capital and its liability as such to taxation. The law presumes that the company shall always have, as its capital, something, which all of its customer?, or those who deal with it, will readily receive in settlement of any claims against it. To ascertain the amount of capital subject to taxation, the law requires the company to make an annual statement to the assessor, in a certain form, and in which certain specified duductions are made, and it directs the assessor to assess this sum. ■

This report or statement, thus made, fixes or makes known the capital, and the only deductions made or authorized, are the sums paid therefrom for real estate, which is taxed as real estate, and the amounts thereof which may be owned by the State or city. No authority is given or implied, by which the company may make any other exception or deduction. The-terms of the 40th section of the City Charter, enumerating the property exempted from taxation, do not confer such authority.

That section exempts among other, real and personal property belonging to the city and State; and section 38 construes personal property to include capital, stocks, etc. Now, if the 40th section controls sections 68, 70 and 72, which regulate the assessment of the capital of incorporated companies, it would have been useless to specify in the latter the exemption of the portion of capital owned by the State and city,

Inclusio unius est exclusio altimus.

And the law is careful to declare this exemption to bo for the benefit of the city or State, and not of the institution -or incorporation taxed upon its' capital. (Section 41.)

This question has been judicially examined in several of the States of the Union, and the distinction between a tax upon the capital and on what the capital, or any portion thereof, may be'invested in, clearly maintained. See the cases of The People v. Commissioners of Tax in New York, reported in American Law Register, vol. 3, N. S. p. 535; Commonwealth of Pennsylvania v. Stride, same work, vol. 5, N. S. p. 435; Bank of the Republic v. The County of Hamilton, 2 Ill. R. 53.

In the first of these cases, the provisions of the law of New York taxing the capital of moneyed corporations, are in almost the the very words of our own; and the Court of Appeals of that State held the Bank of the Commonwealth to be properly taxed, on its whole capital, although a large portion thereof was invested in bonds of the United States, expressly exempted from taxation.

The principle sustaining such position is, that the tax is levied upon the capital wholly irrespective of what it may be invested in, subject to the deductions specially named in the sections of law imposing the tax.

A majority of the Court are of opinion that the whole of defendant’s capital, as reported to the assessor, is liable, under the statute, to taxation,

Judgment affirmed, with costs.

We concur with Judge Howell in the judgment in this case prepared by him.

Zenon Labatjve,

J. H. Xlsley.

Taliaferro, J.

dissenting. The stocks and bonds in question had their origin in objects of great public importance — the establishment of a sound currency and the construction of useful public works.

It is obvious that the purpose of tho Legislature, in declaring that they shall not be taxed, was to expedite the sale of them, to induce capitalists to make investments in securities, the value of which should not be impaired by taxation; that purpose should not be defeated by indirection.

The power granted to the city to tax capitalists should be limited to capital liable to taxation. I am of the opinion that bank stock and railroad bonds, exempted by law from taxation, preserve that immunity, in whatever form we may choose to consider them, or by whatever name wo may think proper to designate them; that this immunity is a character or status impressed upon them by law, and which they carry with them into whatever condition they pass.

I do not see that any use that they may be made to subserve can, in any manner, divest them of this inherent quality.

I concur in the opinion of Justice Taliaferro.

W. B, Hyman, Chief Justice.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    City of New Orleans, for the Use of Nicholson & Co., v. Samuel Stewart.
    Proceedings wore taken to pave a street in Now Orleans; a majority of the proporty owners, by a petition to the Common Council, duly signed in due time, opposod the improvement of the street; subsequently, the majority opposing tho improvement of the street withdrew thoir opposition, and tho Common Council proceeded to pass tho requisite resolution authorizing the sale and adjudication of tlie contract to pave :

      Held: — That the proceedings were regular, and property owners on tho street liable to pay for die paving, as provided by law.
    APPEAL from the Fifth District Court of New Orleans,

      Eggleston, J. C.Rosélius and T J. Durant, for appellant. Q. P. McPheeters, and Bonford, Singleton & Glaélt, for appellee.
   Howell, J.

Tho defendant has appealed from a judgment condemning him to pay the cost of paving tho street in front of his property, pursuant to a contract with the city authorities.

The defence is that a majority of the property owners on said street, by petition, presented in due time to the Common Council, opposed said improvement, the effect of which was to reject the application of the same, and no further proceedings in relation thereto could be had by the Council, unless a new application was filed and published, according to law; that, by improper influences, the President of the New Orleans, Jackson and_ Great Northern Railroad Company, induced many of the opponents to withdraw their said opposition and join in the pending application; whereupon the Council, in violation of the fixed rights of the opponent, passed the resolution authorizing the sale and adjudication of the contract for the paving of said street, and that prior to said adjudication, respondent and his co-opponents petitioned the Council to repeal said resolution on account of the illegal acts and doings of the parties concerned, and asserted.their non-liability for the expenses of the proposed work.

On the trial, the defendant offered to prove, by some twenty-two witnesses, that they signed the petition of opposition, and, after it was presented to the Council, were induced, by the promise of the said railroad company to pay their portion of the cost, to withdraw their opposition; which testimony was rejected by the Court, on the ground that no evidence cojild be heard as to facts behind the resolution and contract, or to show that the resolution had ' not been properly passed, or the contract not properly entered into. He also -offered in evidence the petition for the paving, and the. counter-petition, purporting to be the petition of a majority of the property owners on said street, against said work, which were rejected, on the ground that the defendant was precluded from going behind said resolution, adjudication and contract, to prove that a majority of the property owners have refused their assent, and that the Common Council were alone competent to determine such question.

It is unnecessary to pass upon this point, as the evidence, if admitted, would not, in our opinion, defeat plaintiff’s right to recover. Under the pleadings, it would establish the fact, that an opposition was filed within the delay by a majority, and, subsequently, that majority was changed to the support of the application; and we are of opinion that these owners of property had the right to make the change, whatever the motives operated upon by third parties, and that the Council could thereupon proceed to order the work to be done in accordance with the provisions of law upon the subject.

At the time the Council acted, it would appear from the pleadings and facts proposed to be proved, that the majority, instead of being opposed, were actually in favor of having the improvement, as petitioned for, and it would have been useless to require a new application and publication. A majority already appeared of record to demand the work. .

The object of the prescribed forms is to ascertain the will of the majority, impliedly or expressly, and it is immaterial for the Council or Court to inquire into the motives which may actuate that majority.

The law fixes the delay within which objection may bo made, but it does not preclude all action, if the objection is, in effect withdrawn; such withdrawal leaves the Council to act as though the majority had not opposed. If tho majority docs not actively oppose, the Council can act. If they do oppose, the Council cannot proceed while such opposition exists; but there is nothing in tho law which prevents tho rcasenablo withdrawal of the opposition. The presumption is that the Council acted rightly, and we cannot perceive that the evidence which -was rejected would destroy or impair that presumption in this case.

Judgment affirmed, with costs.


author: Htman, C. J.

text:
    Augustus William Walker v. Etienne Villavaso.
    A contract to pity a liiglior rate of interost than eight percent, per annum, is usurious, unless the interest agreed upon bo included in a written obligation and form a part of the amount for which the written obligation is given, and tho penalty for a usurious contract is tho forfeituro of the ontire interest so contracted. Ho who pays such usurious interest can rocovor tho amount so paid by him, if he sue for it within twelvo months from tho time of payment.
    APPEAL iron the District Court, Parish St. Bernard,

      Gazabat, J. L. M. Day, for appellant. O. Boselius, for appellee.
   Htman, C. J.

Joseph S. Cueullu gave a mortgage on certain immovable property, in the Parish of St. Bernard, to secure the payment of two notes of 110,000 each, owing by him to defendant stipulating in the act of mortgage, on his failing to pay the notes at their maturity, eight per cent, interest from maturity, and tho fees of the attorney whom defendant should employ to collect them, and that the fee of the attorney should be ton per cent, on the capital which might be owing.

Cueullu subsequently sold the property mortgaged to plaintiff, who assumed tho payment of the notes and mortgage.

Cueullu brought suit in the above named Court against plaintiff to have judgment rendered condemning plaintiff to pay the notes, and judgment was so rendered ; but on an appeal to this Court, tho judgment was reversed and the case remanded to the lower Court, permission having been granted in the decree of this Court to Cueullu, to make persons having an interest therein parties thereto.

On the return of the decree of this Court to the District Court, Cueullu amended his original petition, asking that defendant be cited to answer the demand of his original and amended petition, and that judgment be rendered as prayed for in his original petition.

Defendant answered, denying that Cueullu had any claim on him, averred that he (defendant) was the owner of the notes, that ho had obtained executory process to enforce their judgment, which process plaintiff had enjoined; that Cucullu had no control over the notes, and prayed that the suit might be dismissed. The executory process referred to in defendant’s answer, was issued February, 1861, and was enjoined at the suit of plaintiff. This injunction suit was dismissed, on motion, at plaintiff’s cost, and it appears, by plaintiff’s allegations, that the executory process was also discontinued.

On the 18th of October, 1861, defendants obtained from said District Court, a second order of seizure and sale of the property mortgaged, to enforce the payment of the aggregate amount of the notes, say twenty thousand dollars, with eight per cent, interest per annum, from the 4th of February, 1S61, the attorney’s fees, four hundred dollars for cost of protest, cost of notarial copies, and costs of suit. This process was instituted against plaintiff, styled Etienne Villavaso v. Augustus W. Walker, No. 413, and issued conformably, in every respect, to the prayer in defendant’s petition, and enjoined at the suit of the plaintiff on the grounds which will be stated hereafter.

Defendant answered this injunction suit, and denied the allegations of plaintiff; stated that the injunction was illegally issued and prayed that it might be dissolved, with damages.

Judgment was rendered on this injunction suit (which is now an appeal), dissolving the injunction, and condemning plaintiff to pay defendant $500 damages, and costs of suit.

Plaintiff appealed.

The first ground alleged by plaintiff for injunction, is, that the cost of the first named injunction suit had not been paid by defendant. The erroneous position is assumed, that defendant was bound to pay the cost of a suit which plaintiff was condemned, by the judgment of the Court, to pay.

The second ground for injunction, is, that defendant was a party to the suit instituted by Cucullu against plaintiff, which was yet pending. Plaintiff claims (we use the words of his petition), the benefit of the exception of lis pendens. No claim of any kind was made by defendant against plaintiff, or by plaintiff against defendant, in tho suit of Cucullu against plaintiff; and the fact that Cucullu caused citation.to be made in defendant to appear in the suit, did not make him, without his consent, a party claiming or suing for any decree whatsoever against plaintiff.

To sustain this exception, another suit should be pending, in another Court of concurrent jurisdiction, between plaintiff and defendant, wherein the one asked against the other a decree or judgment of the Court, in the same cause of action as that on which defendant obtained his order of seizure and sale. Code of Practice, No. 335.

i£]ig third ground, is, th$t b contract time had bgen givep him to pay the notes, the agreement was, that should plaintiff furnish A. Miltenburger & Co. as guarantees, that one of the notes would be paid within sixty days from the 4th o-f February, 1861, and that, should the notes be paid within that time, defendant was to postpone, for one year, the payment of the other note. After the agreement, defendant refused to take the guaranty.

Tho sixty days passed, and no payment was made by plaintiff, plaintiff not having complied with all the conditions precedent to his right by the agreement to have a term of a year to pay one of the notes ; the agreement was not binding on defendants.

The fourth and last ground, is, that he paid certain amounts of usurious interest, and for them he was entitled to a credit before defendant obtained his order of seizure and sale against Ms (plaintiff’s) property, which credit had not been given.

From the testimony of Avegno, and the interrogations on facts and articles propounded to defendant, which were ordered by the Court to be taken as confessed, it appears that defendant entered into agreements with plaintiff to prolong the term of the payment for the notes, from the 4th of February, 1858, to 4th of February, 1859, on Ms (plaintiff’s) paying, in advance, twelve per cent, on the amount of the notes, from 4th February, 1859, to 4th February, 1860, on his paying, in advance, ten per cent., from 4th February, 1860, to 4th February, 1861, on his paying, in advance, eleven per cent. Their agreements, changed for three years-^Sie rates of interest stipulated for in the written obligation, were complied with, and plaintiff paid the interest at the rates above named, in advance.

Their agreements and payments are termed by the parties renewals, though no change or renewal of tho notes was made. A contract to pay a higher rate of interest than eight per cent, per annum, is usurious, unless the interest agreed upon be included in a written obligation and •form a part of the amount for which the written obligation is given, and tho penalty for a usurious contract is the forfeiture of the entire interest so contracted. He who pays such usurious interest can recover the amount so paid by Mm, if he sue for it within twelve months from the time of payment. See Act to regulate the rate of interest, approved March 15th, 1855 ; also Acts relative to the rate of interest, approved March 20th, 1856, and March 2d, 1860. 5 Annual, 507.

Defendant has not pleaded that he is discharged, by effect of time, from his responsibility to plaintiff for the sums of usurious interest paid by plaintiff for him. No plea of prescription is filed. Indeed, were such a plea made by defendant, we are not sure that it would avail him, because, as plaintiff setting up this claim in defense the maxim of tho law, quae temporalia sunt ad agendum, perpetua sunt ad excipiendum, would sustain him. See 13 Annual, 234.

Defendant fully proved the damages allowed him in the judgment. He has asked, in this Court, that the judgment of the lower Court be confirmed. We are therefore exempted, from the duty of inquiring whether he would be, under different pleadings, entitled to more damages than were allowed in the judgment.

It is decreed, that the judgment of the lower Court be reversed. It is further decreed, that the injunction be perpetuated, so far as to restrain the sheriff from enforcing the collection under the order of seizure and sale, of a part of the sum ordered to be collected, to wit: The sum of six thousand and six hundred dollars, which is to bo credited on the above named notes, being the amounts of usurious interest paid by plaintiff to defendant. It is further decreed, that, in other respects, the injunction be dissolved, and that defendant recover of the plaintiff the sum of five hundred dollars, as damages for the wrongful obtaining of injunction to an extent not authorized by law. It is further decreed, that defendant pay the costs of this injunction suit, (both of this Court and the lower Court). It is further decreed, that the sheriff proceed with the sale of the mortgaged property, under the order of seizure and sale, to make the sum of thirteen thousand four hundred dollars, with interest thereon, at the rate of eight per cent, per annum, from the áth day of February, 1861, till paid — four hundred dollars,- attorney’s fee ; fourteen dollars, cost of protest; five dollars, cost of notarial copies ; and the costs of seizure and sale.


author: Labatjve, J.

text:
    The Same v. The Same.
    — Oh Rehearing.
    Tho answers of a party interrogated on facts and articles, form a part of tho ploadings, and oithei* party may uso them, without formally introducing them in evidence, in the same manner as either party may have the benefit of any admission in the petition or answer. They belong to the record from which they cannot bo withdrawn.
    So, where interrogatories on facts and articlos are propounded to a party, and are taken for confessod, the order of the Court taking tho interrogatories for confessed, stands in liou and place of the answers, and form a part of the record.
    "When a record in a cause, in which interrogatories on faots and articles have boon taken for confessod, is offered in evidence, the order of the Court taking the interrogatories for confessed, stand in lieu and place of the answers, and form a part of the record offered in evidence.
    And this, although the interrogatories so taken for confessed were filed in another suit between the samo partios and for the same causo of action, and which suit had been dismissed by plaintiff after the interrogatories had been taken for confessed.
    Where interrogatories on facts and articles are taken for confessed as against plaintiff, and tho suit subsequently dismissed by plaintiff, the defendant has the right to use them in evidence in a subsequent suit between the same parties for the same causo of action.
    A party paid a certain sum of monoy to obtain an extension of time on several notes:

      JTcUl: — That this money could not bo plead in part payment of tho notes; the sum'paid for delay was separate and independent of the notes. The notes formed one contract, the delay another; and the contract for delay was consummated, and could not bo questioned in an action on tho notes.
    A party seeking to recover money paid for usurious interest, must bring his action therefor within one year.
   Labatjve, J.

In this case we have granted a rehearing, being under tbe impression that we bad likely erred in taking for confessed certain interrogatories propounded by said plaintiff, Walker, to said defendant, Villavaso, in another suit of injunction concerning the same promissory notes known in this suit, and in the case of Augustus W. 'Walker y. Etienne Villavaso, No. 392 of the Docket of the District Court of St. Bernard, said interrogatories being as follows:

Interrogatories on facts and articles to be answered by the defendant, Etienne Villavaso.

1st. "Were not the notes sued on by you in your case against A. W. Walker, renewed with him during three years consecutive, that is to say, the years commencing in'Eebruary, 1858, 1859 and 1860?

2d. Were not said notes renewed the second year on the payment, in advance, of ten per cent, interest thereon, and of eleven per cent, interest the third year?

Those interrogatories were ordered to be answered on or before the 11th April, 1861; they were served together with tho order of the Court.

The following is an entry on the minutes of the Court, in the case when the said interrogatories wore filed and propounded. Entered on Friday, Oct. 11th: “On motion of P. A. Dueros, of counsel for plaintiff, and on showing to the Court that tho interrogatories on facts and articles, which were propo unded by plaintiff to the defendant, have not yet been answered, although the delay fixed for responding to the same is expired long ago. It is ordered by the Court, that said interrogatories may be taken for confessed.”

The record in the case now before us, shows that the suit being taken up, by consent, for trial below, L. Madison Day, counsel for plaintiff, offered, in evidence, tho records of that Court, bearing the numbers, “388, Etienne Villavaso v. A. W. Walker; 392, A. W. Walker v. Etienne Villavaso; 353, J. S. Cucullu v. A. W. Walker; 413, Etienne Villavaso v. A. W. Walker; 419, A. W. Walker v. Etienne Villavaso.”

Tho said interrogatories were filed and propounded, and tho answers thereto taken for confessed, on the minutes of the Court, in one of said cases, to wit: No. 392, A. W. Walker v. Etienne Villavaso, which was discontinued and not tried, and the said interrogatories taken for confessed, were not offered particularly in evidence. Now the question arises, did the offer of tho record, in evidence comprise and include the interrogatories on filo in the suit, and tho order of Court taking them for confessed, entered on tho minutes of the Court? And, as a consequence, were they before the Court below, and are they before us now as a part of tho evidence? It seems bo be settled, that the interrogatories propounded to, and the answers thereto, by a party, form a part of the pleadings.

In tho case of McKerall et al. v. McMillan et al. (9 R. 19), our predecessors said:

“Tho answers of a party interrogated on facts and articles, form a part of the pleadings, and either party may use them without formally introducing them in evidence, in the same manner as cither party may have tho benefit of any admission in tho petition or answer. They belong to tho record from which they cannot be withdrawn.”

They quoted Code of Practice, Arts. 348, 354. 5 Martin, 272, 592. 5 N. S. 179.

In this case, we consider that the order of Court taking the interrogatories for confessed, stood in lieu and. place of the answers, and formed a part of the record offered in evidence. Although these interrogatories so taken for confessed were filed in another suit, between the same parties and for the same cause, and which suit had been dismissed, Walker had the right to use them as evidence in this case. Whiling v. Ivey, 3 An. 649.

Since the granting of a rehearing, the defendant, Etienne Yillavaso, has filed the plea of prescription of one year against the demand of plaintiff, YZalker, for the sum of $7,344, usurious interest paid in advance for the renewal of the notes sued upon from year to year, and for three years consecutive, commencing in February, 1858, 1859 and 1860.

More than a year having elapsed since the respective payment of these usurious interest, and Walker having no longer any right to claim them back by a direct action, the question arises: Can he now plead them as a defence in payment pro tanto of the principal of the notes sued upon, and can he make the' rule quae temporalia sunt ad agendum, perpetua sunt ad excipiendum?

It must be borne in mind, that we have two contracts between these parties,

1st. Four notes sued upon, of $5,000 each, bearing eight per cent, interest after maturity.

2d. An agreement renewing said notes for one year, at three different times in February, 1858, 1859 and 1860, on Walker paying an usurious interest in advance for said delay or indulgence granted by Yillavaso; no interest is claimed in this suit for these three years extending to the 4th February, 1861.

This last contract has been carried fully into effect by the expiration of the delays and payment of the consideration for said .indulgence. Walker could have claimed back, within a year, the usurious interest so paid ; Yillavaso had no defence to set up against such a demand; he could not have pleaded that it was in payment of the notes sued upon, for it was, in fact, on a'new agreement for delay granted; he could not have placed his notes in compensation, because they were not due ; he had granted a delay of one year.

How, can Walker plead, in payment of the notes, the money he gave in consideration of the delay granted by the second contract, which has been consummated and carried into effect by both parties? This delay, for which he paid, was separate from and independent of the notes. The notes formed one contract, and the delay another. Walker is not sued upon this contract. If, instead of paying cash in advance, he had given his notes for this usurious interest, he could now, in this suit, invoke the rule quss temporalia, etc., against the payment of such notes, although one year had expired.

It is clear that Walker’s action to retain the interest so paid by him is prescribed (Act of 19th February, 1844, p. 15), and the rule quin temporalia sunt ad agendum, perpetua sunt ad excipiendum, cannot avail him. (Girod v. His Creditors, 2 An. 546; Boeto v. Lame, 3 An. 141; Mrs. Micael Cox v. Ellen McIntyre, 6 An. 470; Troplong, prescription, 2 vol., Arts. 827, 828.

It is therefore ordered and decreed, that the entire decree of our former decision be overruled; and it is further adjudged and decreed, that the judgment appealed from be affirmed, with costs.


author: InsBEY, J.

text:
    B. Kittridge & Co. v. Juan Ribas.
    A landlord, bp virtue of a provisional seizure in a proceeding to enforce tlie payment of rent due, seized property on tlie premises belonging to an absent sub-lessee wlio was not indebted to the lessee for rent, and caused tlie property seized to bo sold on final process:

      Held: — That the property of the under-tenant was illegally seized and sold, and that he could recover of the landlord the value of the property so sold.
    APPEAL from the Sixth District Court of New Orleans,

      Dwplaniier, J. W. H. Sunt, for appellant. Durant <& Sornor, for appellee.
   InsBEY, J.

The plaintiff claims from the defendant damages, and the sum of eight hundred and seventy dollars and fifty cents, the alleged value of three hundred and forty-nine empty molasses barrels belonging to them, which the defendants, the lessor of one G-. B. Dyke, had, by a proceeding in the United States Provisional Court, caused to be provisionally seized, and finally to be sold under final process.

The evidence in this case shows, that Dyke had rented from Ribas, the defendant, a certain warehouse in New Orleans, at a daily rent of two dollars; that Dyke subrented the property to the plaintiffs, B. Kittridge & Co., at a monthly rent of forty dollars, which they paid punctually at the end of each month, and not by anticipation, to the lessee, Dyke, np to the 8th March, 1863, but that this lessee being in arrears for his rent to his lessor, Ribas, he caused the property found in the store, the three hundred and forty-nine empty molasses barrels, belonging not to Dyke, but to B. Kittridge & Co., to be sold in the manner before stated, to satisfy Ms, lessor’s lien.

Under this statement of the case, we do not consider the articles of the Code and the decisions of the Court, which have reference to the property of third persons found on leased premises, as applicable to under-tenants, as the plaintiffs in tMs case certainly were. The law bearing upon sub-tenants is the Article 2676, Civil Code, expounded by this Court in the cases of Deslix v. Jones, 6 Rob. 294 ; Powers v. Florance, 7 An. 524 ; Wallace v. Smith, 8 An. 374.

It was held in the case of Simon and Frank v. Goldenburg, 15 An. 229, that the goods and effects of the sub-lessee found on the premises that are leased, are only subject to the privilege of the lessor to the extent of the sub-lessee’s indebtedness to the principal lessee ; but when such goods are seized by the lessor for rent due him, and the sub-lessee does not disclose the title under which he occupies the premises, the privilege of the lessor will cover the goods for the whole amount of the rent due; and this decision is confidently relied on by the defendant to sustain his position; that as the plaintiffs in this sriit did not, in due time, make manifest their right to the property found and seized upon the leased premises, the lessor’s privilege was lawfully exercised upon that property.

The doctrine taught in the case reported in 15 An., and just referred to, as well as in that of Miles Beach v. John McDonogh, 5 Rob. 352, amounts to this: When a sub-lessee stands by and sees his property in the leased premises sold under legal process to satisfy the lessor’s claim for rent, without making his claim to such property known, or objecting to the sale of it, he is thereby precluded, and it is a just and equitable doctrine when applied to sub-tenants on the spot and made aware of such disposal of their property ; but, is this doctrine' equally just when it is brought to bear against sub-lessees absent, not represented, and unaware of the seizure and sale of their property by the lessor? It was under this state of things that the plaintiff’s property was sold. It is, indeed, a hardship that the defendant, in this suit, in the honest pursuit of- a valid claim, and in utter ignorance that property found on premises leased by him, and which he might well suppose was subject to his lien, and which sold for barely sufficient to pay the costs of his suit, shauld afterwards find himself legally responsible to the owner of the property so, sold for the value thereof, exceeding, by far, the sum realized by the sale provoked by him, and yet, unless the rule of the law qui tacet consentiré videtur precludes the plaintiff, no legal reason exists why the fair value of their goods, so improperly sold, should not be restored to them by the defendant.

In determining the true value of the three hundred and forty-nine barrels, we will not confine ourselves to the valuation put upon them by the plaintiff’s witness, but will adopt in evidence between that valuation and the one made by the auctioneer, who sold the barrels for the United States marshal, in the leased warehouse, only a short time after seizure, and who testifies that they brought at the auction sale all they were worth, as they were in very bad order.

The medium rate or value of the barrels, based upon the two estimates, and which is a fair and reasonable one, is one dollar and thirty-seven and a half cents per barrel, thus making, for the three hundred and forty-nine barrels, the sum, total, of four hundred and seventy-nine dollars and ninety-two and a half cents, and for this sum, with interest thereon, at the rate of five per cent, per annum, from the 23d May, 1863, (see Act of 1852, page 95), the plaintiffs aro entitled to a judgment.

The decree of the District Court must therefore loe reversed.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed. And it is further ordered, adjudged and decreed, that judgment bo, and it is hereby rendered in favor of the plaintiffs, B. Kittridge & Co., and against the defendant, Jean Ribas, for the sum of four hundred and soventy-nino dollars and ninety-two and a half cents, with interest thereon, at the rate of five per cent, per annum, from the 23d May, 1863, 'till paid — the costs of the Court below to be paid by the defendant, and those of this Court by the plaintiff and appellee.


author: Hyman, C. J.

text:
    State of Louisiana v. Charles, (Colored).
    An indictment charged that tbe defendant "didlio in wait and sboofc with a dangerous weapon with intent to commit tlio crime of murder upon one,” oto:

      Held: — That this allegation is uncorfcain and indefinite, and subject to two meanings, and is not in language equivalent to the words of tbe statute upon which it is based.
    APPEAL from the District Court of East Baton Rouge,

      Posey, J. B. W. Knielcerbodcer, District Attorney. J. H. Gannon, for appellant,
   Hyman, C. J.

In this case the defendant was convicted by a jury, and sentenced by the District Judge to be punished with death.

Defendant has appealed.

The bill of indictment charges, that the defendant did lie in wait, and shoot with a dangerous weapon, with the intent to commit the crime of murder upon one Richard Odem, in the peace of the State of Louisiana, then and there being, contrary to the form of the statute of the State of Louisiana, in such case made and provided, in contempt of the authority of said State, and against the peace and dignity of the same.

The 7th section of the Act of the General Assembly of the State, entitled an Act relative to crimes and offences, approved March 14th, 1855, provides, “that if any person lying in wait, or in the preparation or attempt to perpetrate any arson, rape, robbery or burglary, shall shoot, stab or thrust any person with a dangerous weapon, with intent to commit the crime of murder, he shall, on conviction thereof, be punished with death.”

The defendant contends in this Court, that the words in the bill of indictment, charging that the defendant did lie in wait and shoot with o, dangerous yyeappp. ^yi$r th§ uitent to epraiiiit pri^).e.p| fsprcler Richard Odem, does not charge the defendant with shooting Odem, and thereforo the count is insufficient for a conviction and sentence. The-term shooting upon a person, is not exactly equivalent to shooting a person. It is subject to two meanings. It is evidently equivocal.

The shooting upon the earth docs not necessarily convey the idea that the earth was shot, neither does the statement that there was shooting upon a man necessarily convey the idea that the man was shot.

From such terms you may either infer, that the man was shot, or that his body was used as a rest for shooting.

The charge in the bill of indictment being equivocal, and subject to two different interpretations, and not being in language equivalent to the word of statutes, the judgment of the District Court must be reversed.

It is decreed, that the judgment against the defendant be arrested, and the proceedings against him be set aside, the judgment of the District Court being reversed.


author: InsnEV, j.

text:
    Succession of P. O. Lauve.
    Succession charges, inuring to the bonofit of all partios concerned, are of higher dignity than and (unless in an exceptional case) are to to bo paid before those of the deceased or the insolvent.
    APPEAL from the Second District Court of New Orleans,
    Thomas, J. J. E. Wallace, for McOloskey & Wallace, appellants. E. Bermudez, for F. Labatut. L. Costera, for appellee.
   InsnEV, j.

In the provisional tableau, filed in the Second District Court of New Orleans by the administratrix of the succession of P. O. Lauve, Felix Labatut and James McCloakey, are recognized, severally, as creditors of the deceased — the former with the privilege of vendor on certain immovable property, and the latter with a special mortgage on certain other immovable property, sold judicially, and with each of these creditors, a separate account is stated in and made a part of the tableau.

By these separate accounts, the proceeds of the sales of 'these immovables, so respectively encumbered, arc, with certain deductions for superi- or claims stated in the accounts allowed to those creditors. They object to those deductions being made to their prejudice, and by way of opposition they say, that there is other property in the succession not accounted for, and that this property and the cash assets in the hands of the administratrix must be first applied in satisfaction of the special privileges bearing on the property affected to them, before any portion of the said proceeds of sale cap b§ applied to the payment of any other than their respective olaims,

The only assets, besides those resulting from the sales of tho immovables affected as before stated, proceed from the sale of tho movables and some rents collected; and these assets arc insufficient to pay, in full, the general privilege and succession charges, and hence tho necessity for a contribution, charged pro rata to tho fund claimed by Labatut, and to that claimed by McOloskoy.

Tho creditors specially oppose certain charges identified on tho tableau by the numbers 8, 11, 12, 13 and 14, and which they say are not privileged — that of the autioneer, No. 14, being opposed as exorbitant.

These items are sustained by the Court below, except those numbered 11, 12 and 13, and which were properly rejected as privilege claims. Now, did the Court below err in allowing the item No. 14, the auctioneer’s account, which was sufficiently proved?

As to the claim of L. Castera, the attorney of the succession, not objected to as to amount, it was, with the following modification, properly allowed as a succession charge. See the cases of Succession of Whitehead, 3 An. 396; Succession of Vand, 11 An. 298; Bodelle v. Pu, 6 An. 135; and Cross v. Shaffer, 13 An. 110.

In Graham v. Friend’s Administrator, 10 La. 440, it was decided, that succession charges, inuring to tho benefit of all parties concerned, are of higher dignity than and (unless in an exceptional case) are to be paid before those of the deceased or the insolvent.

“Qui sentit commodum, sentiré debit et onus.” See also the case of Morel v. Misotere’s Syndic, 3 Martin, 363 — quoted in Graham v. Friend’s Administrator.

The principle invoked by Labatut resting on special legislation (see Article 3234, C. C., and Marsh v. His Creditors, 11 An. 469), that the fees of the counsel of the succession, as an expense of administration, shall take precedence of his privilege as vendor cannot bo controverted ; and so far as the Labatut fund is made by the account to contribute anything for that purpose, ho was properly relieved by the Court a qua; and this is admitted by the counsel himself, who undertakes, that the contribution charged to Labatut shall be deducted from his fees, so far as to give this charge for contribution preference over his claim.

The deductions from the Labatut fund were not made to meet general privileges or succession charges, but to pay taxes legally assessed against the very property affected to him, and taxes which, by the law, bore on that property, or the proceeds, a privilege higher than his own. See Act of the Legislature, 1855, No. 346, page 512, sec. 43 ; Act 1856, No. 160, page 160, sec. 110; Act 85, No. 57, page 57, sec. 3 and 4. And the same may be said of similar charges deducted from tho McCloskey fund.

As to the amount due to WaHqeo, also an opponent who prosecuted, as' McCloskey’s attorney, his mortgage claim at the expense of the mortgagor, by special stipulation in the act of mortgage, which was really 1592 10, and not $5QQ, allowed him by the Court below* that is deducted from and to be paid out of the proceeds of tho property affected to McCloskey at his own request.

The contributions charged in the tableau to the Labatut and McCloskey funds, by deducting the items Nos. 11, 12 and 13, which amount, together, to $123 67; and by adding to the cash assets $200 for rents collected, but omitted, are thereby reduced to $192 16, of which sum, $131 37, must be paid out of the fund allowed L. Castera, and in preference to him, and $60 79 out of the McCloskey fund by preference to him.

The Court below dispensed both the Labatut and McCloskey fund from any contributions, but the Court was in error in supposing that certain items disallowed by it increased the fund needed for general privileges, etc., as the items so rejected were not classed as privileged.

It was shown upon the trial of the oppositions, that the deceased had been a partner of a commercial firm, and .was, at the time of his death, a partner in another commercial firm; and that the affairs of these partnerships were in the course of settlement, and had not been liquidated, but the testimony showed it to be extremely improbable than anything would ever accrue to the succession from either of those partnerships.

Be this as it may, all the rights of creditors to any fund or property hereafter realized, whether proceeding from those sources or from any other, will be, in no manner, affected by the decree now rendered, which merely regulates the disposal of the cash assets in the hands of the administratrix.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court, so far as it sustains conformably to the decree the items in the tableau charged as general privileges or succession debts, and so far as it requires the administratrix to account for and put on the tableau, as cash assets, the sum of two hundred dollars for rents received by her, but omitted on the tableau; and so far as it recognizes the deductions made frota the Labatut and McCloskey funds in these separate accounts to pay privilege claims bearing on the property affected to Labatut, and on that affected to McCloskey, which are superior to their own claims on said funds; and so far as it dispenses theLabtut fund from any contribution fox general privileges or succession charges, be and the same is hereby affirmed; otherwise, but so far only as it passed on the funds now disposed of and distributed, that the said judgment be, and it is avoided, annulled and reversed.

It is further ordered, that J. E. Wallace, the opponent, be recognized as a creditor of the deceased for the sum of five hundred and ninety-two dollars and ten cents, and that the sum.be paid in preference over McCloskey, out of the proceeds of the property mortgaged to him.

It is further* ordered, that there be deducted from the amount allowed as a succession charge to L. Castera, the attorney of the succession, tho sum of one hundred and thirty-one dollars and thirty-seven cents, to pay the contribution charged to Felix Labatut — -which sum, now deducted, will still bo due to Castera by the succession ; and further, that there be deducted from the McOloskey fund, the sum of sixty dollars and seventynino cents, as pro rata contribution to pay privilege and succession debts.

And it is finally ordered, that the tableau, with the separate accounts of Labatut and McOloskey as parts thereof, as amended by the judgment of the District Court, and by the decree of this Court, bo and it is hereby homologated and made the final judgment of the Court.

It is further ordered, that the succession of P. O. Lauve pay all costs in both Courts.


text:
    Morris W. Smith v. Barque W. H. Wall, Captain and Owners.
    Damages should bo established by sale before a judgment for the recovery of damages can be had agaimat a carrier, for goods damaged while intrusted to his oare. ,
    APPEAL from the Second District Court of New Orleans,

      Thomas, J. A. Saucier, for appellants. E. W. Huntington, for appellee.
   Hyman, C. J.

This suit was brought against defendants, for damages of certain goods shipped from New York to New Orleans.

The goods were shipped in good order, and wefe delivered to plaintiff in Now Orleans. They were injured by salt water on their passage; and some witnesses state, that they were . damaged fifty per cent.; other witnesses state that they were damaged to a less extent.

No sale of the damaged goods was made to ascertain, with exactness, the extent of their damage. The opinion of this Court in the eases, Henderson & Gaines v. Ship Maid of Orleans, 12 An. 352; L. Elkin & Co. v. New York and New Orleans Steamship Company, 14 An. 647, was, that damages should be established by sale, before a judgment for the recovery of damages could be had against a carrier, for goods damaged while intrusted to his care.

It is decreed that the judgment of the District Court be annulled, avoided and reversed; and it is further decreed, that there bo judgment for the defendants as in case of nonsuit; the plaintiff to pay the costs in both Courts.


author: Byman, C. J.

text:
    Mrs. E. B. Harris v. E. Stubenrauch.
    Where the Supreme Court has jurisdiction of a cause at the time of appeal, the appeal will not be dismissed on account of a part payment of the judgment, which, if made before appeal, would have reduoed the amount below its jurisdiction.
    APPEAL from the Sixth District Court of New Orleans,

      Duplantier, J. E. Bermudez, for appellant. A. Derhes, for appellee.
   Byman, C. J.

The defendant, appellee, has moved to dismiss the appeal taken by plaintiff, on tbe ground, as averred by him, defendant, that he bas paid plaintiff tbe amount sued for by plaintiff, except tbe costs of suit, since tbe appeal was taken.

• It is not questioned that, when the appeal was taken, tbis Court bad jurisdiction of tbe case. Tbis Court once having jurisdiction is not divested thereof because of a part payment, which, if made before appeal, would have reduced tbe amount claimed to a sum below its jurisdiction.

Tbe motion to dismiss the appeal is overruled.


text:
    City of New Orleans v. Wm. Crappel.
    The fact that the taxing power is a party to the contract of lease, doos not impair tho right to tax the business pursuod, by virtue of that contract. The corporation, in each capacity, is acting for the public advantage.
    APPEAL from the Third Justice’s Court, Parish of Orleans.

      G. E. Schmidt, for appellant. T. H.-Hewes, for appellee.
   Howell, J.

The defendant bas appealed from a judgment condemning him to pay a license for tbe year 1865, as lessee of tbe Magazine Market. He calls in question tbe legality and constitutionality of 'the tax, averring that tbe statute authorizing and tbe ordinance imposing it are in conflict with Articles 109 and 124, of tbe State Constitution, and section 10, Article 1 of tbe Constitution of the United States.

It is contended that, as tbe ordinance was passed after tbe date of tbe contract with tbe city, by which be became tbe lessee'of tbe market, it' alters tbe conditions thereof, and it is retroactive in its operation.

The fact that tbe taxing power is a party to the contract of lease, does not impair tbe right to tax tbe business pursued, by virtue of that contract. Tbe corporation, in each capacity, is acting for tbe public advantage.

The act of the Legislature gives tbe corporation tbe authority to impose a license tax annually on every trade, profession, calling, or other business, including that of the defendant; and when be entered into tbe contract be knew that such right or authority existed, and be must be considered as having made it with reference thereto, and in law it was an implied condition of tbe contract; and, besides, it is shown that tbis right had been previously exercised.

■ His contract was for tbe year 1865, and tbe sum demanded of him was laid or fix'M prior to tbe first day of that year. Tbe ordinance .is therefore not retroactive.

Wo think tbe statute and ordinance, as applied to tbe business of Ihe defendant, not in conflict with the constitution or existing laws.

Judgment affirmed, with costs.


author: InsiiEY, J.

text:
    L. E. Perroux v. Pierre Lacoste.
    Without somo authentic evidence of the interruption of prescription, no action via oxocutiva can lay.
    APPEAL from the Third District Court of New Orleans,

      Fellowes, J. F. Bermudez, for appellant. L. Casiera, for appellee.
   InsiiEY, J.

It was held, in the case of John W Dodd v. Robert A. Crain et al., 6 Rob. p. 58, that the only inquiry for the Court, “when an order of seizure and sale is appealed from, is, whether the judge who issued it, had sufficient evidence before him to authorize his fiat;” and concurring, as we do fully, with the opinion thus expressed in that case, we have only now to ascertain if the evidence submitted with the petition to the judge, who granted the order of seizure and sale, was, in the present case, what the law requires in a proceeding via executiva.

It is urged by the appellant that the note sued on was, at the time of and previous to the issuing of the order of seizure and sale, prima facie prescribed; and this is evident on an inspection of the note, which matured on the 20th October, 1860, whilst suit was only instituted on the 25th November, 1865.

Without some authentic evidence of the interruption of prescription, which evidence is no where to be found in the record, no action via executiva can lay. The jurisprudence on this point is too firmly established to be questioned. See Splane v. Daniel, 11 Rob. 449. McMaster v. Mather, 4 An. 419. Union Bank of Louisiana v. Dolson, 7 A. 548. Fowler v. Beatty, 10 An. 275.

It is needless to examine the objection urged by the appellant, in regard to the want of internal revenue stamp on the note sued on.

It is therefore ordered, adjudged and decreed, that the order of seizure and sale granted by the Judge a quo, be and the same is hereby rescinded, and the suit dismissed, without prejudice to any legal right or remedy that the plaintiff and appellee may have; the costs of both Courts to be paid by the plaintiff and appellee.


author: Labauve, J.

text:
    Succession of Mary Fleming.
    A husband made application to be put in possession of the community property, as survivor and usu* fructuary of his wife, she having diod without leaving heirs, either ascendant or descendant. The Court grantod the application, without notice to the attorney for absent hoirs :
    ItoinThat the application could only bo gi'ilntod after due notice to tlio attorney representing absent heirs, and must bo determined Conttadiotorily with tho heirs.
    APPEAL from the Second District Court of New Orleans,

      Thomas, J. F. Bayne, Buchanan <& Gilmore, for appellants. F. W. Huntington, for appellee.
   Labauve, J.

Mary Duffy, wife of Thomas Fleming, died intestate in New Orleans, on the 9th September, 1865, leaving neither descendant nor ascendant. Her surviving husband, Thomas Fleming, on the 11th, applied for tho administration, and on the 14th, his demand was opposed by Catherine Harrigan, alleging that the deceased left no issue, and that, being his sister and heir, she had a bettei right to the administration.

On the 26th of same month, Fleming applied to discontinue his demand for letters, and ashing to be put in possession of the whole property, as survivor in community and usufructuary of the share of his wife, on tho ground that the deceased left no ascendants or descendants; that the property was community, and tho debts small, and that there was no necessity for an administration.

On the same day, the lower Court granted this demand by discontinuing the application for letters, and putting the petitioner in possession as usufructuary of all the property belonging to the community; proceedings were exparte ; no notice being given to the appellant or the attorney of absent heirs.

On the 28th September, 1865, Mrs. Catherine Harrigan had a rule served on Thomas Fleming, to show cause why she should not be appointed administratrix. Thomas Fleming answered, in substance, that Mary Fleming died intestate, leaving no ascendants or descendants; that the succession owes no debts, and there is no necessity for an administration ; that said succession consists exclusively of community property, which respondent, as survivor in community, is entitled to hold in usufruct, during his natural life.

After hearing the evidence, the District Court, on the 26th October, 1865, discharged the rule.

Mrs. Catherine Harrigan appealed from*both judgments rendered ; one on the 26th September, discontinuing the application for administration, and putting Thomas Fleming in possession, and the other on tho 26th October, discharging the rule.

The evidence clearly shows that the property, which has been duly inventoried and appraised, belongs to the community; that tho debts aro of no importance, and we are satisfied that there is' no necessity for a full administration. Whatever debts there may be, tho creditors may look directly to the husband for their payment; and if he choose to keop the property and pay the debts, we do not see that his heirs have any right to complain. Civil Code, Article 579.

No creditor is a party to this suit.

We are of opinion that the judgment rendered on tho 26th October, 1865, is correct; and that the one rendered on 26th September, 1865, upon ex parte proceedings, must be set aside, and the case remanded, in order that the demand to be put in possession bo determined contradictorily with the heirs.

It is therefore ordered, adjudged and decreed, that tho judgment ron« dered on the 26th October, 1865, discharging the rule be affirmed, ■

It is further ordered, adjudged and decreed, that the judgment rendered on tho 26th October, 1865, putting tho appellee in possession, bo annulled and avoided; that tho case be remanded, to be proceeded in according to law, and that tho appellee pay costs of appeal.


text:
    Succession of James Peter Curley.
    A sale of real estate bolonging to a succession, without appraisement, is null and void, and tho purchaser is not bound to comply with tho adjudication.
    Tho general rulo requires succession proporty to bo sold, aftor advertisomónt of ten days for movables and thirty days for real estate.
    Tlio expression, in tho Act of 17th January, 1838,' “ that the curator so appointod shall causo tho ollocts of said succession to be sold, and the proceeds to beapplied to the payment of the debts of tho dooeasod; the whole lo bo dono in as summary a manner as possible, to diminish costs, and under tho immediate direction'of the Judge,” does not convey any such meaning, nor substitute tho will of tho officer in lieu of tho law passed to protect tho creditor and the heirs, and to call as much competition as possible. In as summary a manner as possible, means as possible according to law, speedily and diligently as allowed by law, but not against law. The sale, therofore, was legally impossible, without previous advertisement of thirty days.
    APPEAL from the Second District Court of New Orleans,

      Thomas, J. Frank Haynes, for E. Burke, appellant. A. S. Villere, for Mrs. Curley, appellee.
   Labauve, J.

This is an appeal taken from a judgment, making tho following rule absolute:

On motion of Widow James Curley, administratrix of tho estate of James Peter Curley, her deceased son, and on suggesting to tho Court that, at a public sale made by R. M. Montgomery, auctioneer, pursuant to an order from this Court, the jiroporty described in the inventory, and situated on Martin street, was adjudicated to one E. Burke, of this city.

That, in order to give a clear title to the said purchaser, it becomes necessary to cause the mortgages recorded against said property, and fully set forth in the certificate this day filed, to bo erased. It is therefore ordered, that:

1. The recorder of mortgages ; 2. James Curley, tutor of the minors, Mary, Ellen and James Curley; 3. Tho New Orleans Draining Company ; 4. The said E. Burke, show cause, on Thursday, the 23d day of, November, 1865, at 11 o’clock, A. M., why tho said mortgages should not be erased and cancelled, and why the said Burke should not be condemned to comply with, tho adjudication of said property, or, in default thereof, why judgment should not be rendered against him' for the full sum of four hundred and fifty dollars, with interest and costs.

E. Burke answered that no appraisers were appointed and sworn, to-value said lot of ground. That the said lot was sold and adjudicated after ten days’ advertisement. That the property is incumbered by mortgages; one in favor of R. W. Montgomery, for $161; another for $500, for administration of Joseph Curley as tutor of minors, from whom he purchased draining privilege N. 0., and that the administrator must give him a good title.

The Court below, after hearing the evidence, made the rule absolute, and E. Burke appealed.

This succession being small, the administrator was appointed and the property ordered to be sold, under the provisions of the statute of 17th January, 183S, p. 5, amending the Article 1178 of the Civil Code. The evidence shows that the lot was not appraised by appraisers, appointed and sworn, and that it was sold under an order of Court, dated 13th October, on the 28th October, 1865, showing clearly that there was not thirty days’ advertisement.

We are of opinion that our learned brother erred; that the sale of said lot is null and void; and that, consequently, the purchaser and adjudicates is not bound to comply with the adjudication.

This property should have been estimated previous to the sale, by appraisers, appointed and sworn. Civil Codo, Arts. 1096, 1097, 1098, 1178. The general rule requires succession property to be sold after advertisement of ten days for movables, and thirty days for real estate. Civil Code, Art. 1159.

. The statute of 17th January, 1838, already referred to, docs not dispense with those essential delays.

The expression, that the curator so appointed shall cause the effects of said succession to be sold, and the proceeds to be applied to the payment of the debts of the deceased; the whole to be done in as summary a manner as possible, to diminish costs, and under the immediate direction of the Judge,” does not convey any such meaning, nor substitute the will of the officer in lieu of the law passed to protect the creditor and the heirs, and to call as much competition as possible. In as summary a manner as possible, means as possible according to law, speedily and diligently, as allowed by law, but not against law. The sale, therefore, was legally impossible, without previous advertisement of thirty days.

It is therefore ordered and depreed, that the judgment appealed from be annulled and avoided, and the rule be discharged and sot aside.

It is further adjudged and decreed, that E. Burke, the adjudicateo, bo released from all obligations'under the adjudication, which is declared a nullity, and that the succession pay all costs upon the rule in both Courts,


author: Tadiapeero, J.

text:
    B. Cestia & J. Seignouret v. Ferrandon & Cessac.
    Proceedings vroro institutdd against defendants, who wore non-rosidonts, or absent from tho Stato; a curator ad hoc was appointod to represent tho absent'dofondants. An exception was filed in the causo, sotting up that the defendants liad a duly appointod attorney in fact, rosiding in tho Stato, who was empoworod to ropresont thorn, and that ho should havo beon citod to defend the action. On the trial of tho oxcoption, it appoarod in ovidonco that tho attorney in fact had refused to accept tho mandato, but afterwards substituted anothor person to act for dofondants :

      ZTrld .- — That tho oxcoption was not woll taken; that the attorney in fact, who had refused to accopt tho mandato himself, could not substitute another porson as attorney under tho mandato; that tho appointment of tho curator ad hoc was regular and correct.
    APPEAL from tho Sixth District Court of Now Orleans,

      Buplantier, J. G. Roselius and A. Philips, for plaintiffs and appellants. J. L. Tissot, for defondants and appellees.
   Tadiapeero, J.

In May, 1859, the plaintiffs, as partners in commendam,. entered into a commercial partnership with tho defendants, under the name and stylo of Forrandon k Cessac. Tho association was engaged in tho dry goods business, in New Orleans, and, by its limitation, was to terminate at the end of the year 1865. It appears tliat the partnership became embarrassed in its commercial operations. In August, 1862, the store in which its business was conducted was closed, and it doos not appear that the house did much business afterwards. The creditors of the firm became clamorous, and efforts (for the most part ineffectual) were made to compromise with thorn. Tho defendants, Ferrandon & Cessac, loft the State in 1864; tho former in tho spring of tho year, the latter about tho first of July, one of them taking- with him about two thousand dollars in cash, or rather as the record shows, that sum was sent to him after ho left. With this state of affairs the plaintiffs, the partners in commendam, became dissatisfied. A few days after the departure of. Cessac, they sued out a writ of sequestration, under which the. entire stock of goods and assets of the concern wore seized. A receiver was appointed, and tho business of the firm put in liquidation. The proceedings were carried on contradictorily, with a curator ad hoc duly appointed at their incoption.

A short time before leaving the State, Oossac, acting in the name of the firm, executed by notarial act a power of attorney to Joseph Baylo, authorizing him to transact tho business of the partnership generally, and specifying, among other things, the authority to sue on the part of the firm, and to defend suits brought against it. The mandatory was not a party to this act, and nothing appears in tho instrument showing that he accepted tho mandato. But afterwards, on the 27th of July, he appointed Edward Dubois in his placo. This substitution appears not to have been accepted in any manner by Dubois, and Baylo, by public act, on the 24th of October of tho . same year, delegated his power to Charles Espenau. The record, shows an admission by the parties, that this second substitute engaged Mr. Tissot, an attorney at law, to defend the suit brought by the plaintiffs against the defendants, although the exception filed by the attorney representing the defendants appears to have been filed on the 21th of August, previous to the substitution of Espenau.

The receiver proceeded, under authority of the Court, to sell for cash, on the 20th of September, the stock of merchandize and the assets generally of the firm ; and, on the 15th of October following, presented his account and tableau. Oppositions were filed by the curator ad hoc and some of the creditors. These oppositions were afterwards withdrawn, and on the 29th of October the account was duly homologated, and an order rendered that payments to the creditors be made in conformity with the tableau.

The exception before referrod to is of the peremptory kind, and was tried on the 21th December, 1861. On the 9th of January following, the Court rendered judgment sustaining the exception and dismissing the suit, on the ground that, in the opinion of' th.e Court, defendants had established satisfactorily that they had an agent in New Orleans, and that the exception filed was a sufficient notice to plaintiffs to discontinue their proceedings.

From this judgment the plaintiffs have appealed.

We are unable to concur with the Judge a quo in the conclusions to which he arrived. The procuration from the defendants to Bayle seems to have been ignored by him. He states clearly in his own testimony, given in the caso, his refusal to act undor the mandate, and his reasons for refusing. This was, that ho was threatened that, if he acted under the power of attorney himself, he would be liable. Ho was cognizant- of the proceeding taken against the-defendants. He states, in particular, that he was notified of the taking of the inventory, and that ho refused to act. It is not shown or protended that his fear of liability, if he acted under the mandate, was in any manner brought about by the agency of the plaintiffs. From his own declarations, and refusal to participate on behalf of the defendants in any of the proceedings going on, to his knowledge, against them, wo do not see that the plaintiffs were bound to recognize him as agent of the defondants. Having declined to act, it is not clear that he could, afterward, by a substitution, impower another to perform under the mandate, acts which ho refused to perform himself.

For these reasons, wo think the judgment of the lower Court should be altered.

It is therefore ordorod, adjudged and decreed, that the judgment of the District Court bo annulled, avoided and reversed; that the exception be overruled; and it is further ordered, adjudged and decreed, that the receiver’s account and tableau bo homologated and confirmed, and payments made in conformity with the sanie, The defendants and appellees paying costs in both Courts.


author: Howell, J. Hyman, C. J.

text:
    Bailey & McKie v. Chase.
    — On Rehearing.
    A., by authentic act, convoyed to 15. certain immovable proporty; 15. gave to A.6 a countor-lotter, in wliich it was agroed that tho proporty was transferred to B., as security for tho payment of two specific debts; A. having tho right to pay tho dobts within a fixed delay, and have tho property recoil’ vcyod to him, othorwiso ho lost all right therein :

      Held: — 'That, although this may not have been a real salo, yob it had a real cause, and cannot bo invalidated as a simulated salo.
    APPEAL from the Fifth District Court of Now Orleans,

      Eggleston, J. J. Ad. Bozier, for appellants. Kennedy <& Miles, for appellees.
   Howell, J.

This is an hypothecary, action, in which plaintiffs, in February, 1858, obtained an order of seizuré and sale upon a judicial mortgage against certain vacant immovable property, situated in the Parish of Jefferson, and in tho possession of defendant, to satisfy a judgment recorded on 1st February, 1856, and held by them against ono Warrick Martin. The defendant enjoined the sale, on the ground that, by a notarial act of sale, dated 18th, and recorded on the 19th January, 1854, ho purchased for $37,360 cash, and has ever since owned and possessed, in good faith, the property seized.

In answer to the petition of injunction, plaintiffs aver that, by a counter-letter, dated 24th January, 1854, i? is expressly doclarod that said property is transferred to the defendant Chase, as a security for tho payment of a debt of $38,000, and interest, duo by Martin to-E. W. Clark & Bros., of St. Louis, and one of $53,000 and interest, duo by said Martin to E. W. Clark, Dodge & Co., of Now York, and not in payment of said dobts; that no possession passed to defendant, but all the burdens and advantages of ownership remained in Martin; that, on 5th May, 1856, Martin executed another notarial act of sale, of same property, to Chase, tho alleged consideration being the failure of Martin to pay tho said dobts; that, at tho date of the first act, Martin was notoriously, and to tho knowledgo of defendant, insolvent. That said act of 18th January, 1854, was a mero cover to shield tho property of Martin from his creditors, and was not intended to convoy title or possession; that tho judgment on such executory process, herein issued, having been duly recorded prior to the date of tho act of 5th May, 1856, could not -be affected by tho letter, which, not containing a description of the property, is -without effect as to third persons, and they prayed that tho injunction be dissolved, with damages.

In a former decree of the Court, the act of salo of 18th Jan. 1854, was declared simulated, null and void, but the injunction was perpetuated OH the ground that the ten days’ notice, to defendant, as the third possessor, was not given before the order of seizure and sale was obtained.

On application by defendant, a rehearing was granted, and his counsel presses upon our consideration the principle as recognized in our law and jurisprudence, and applicable to this case, that, although the contract road by the light of the counter-letter, may not be an absolute sale; yet, as it has a real cause, it cannot be invalidated, and cites Art. 1894, C. C.; 12 A. 529; 1 A. 432; 6 N. S. 583, and other authorities.

The Act of 18th January, 1854, is an authentic act of sale in due form, and by its terms conveyed the property and. possession absolutely to Ohase; but by the counter-letter executed several days thereafter, the parties agreed and stipulated, that the property in question was transferred to Chase, as security for the payment of two specific debts, and not in j>aymcnt thereof, giving Martin, the vendor, an opportunity to pay said-debts within a fixed delay, and have the property reoonveyed to him, and on his failure to pay any part of said debts, he was to forfeit all right in law or equity to any portion of said property, and Chase, the vendee, reserved the right to sell the same to pay said debts pro tanto.

It is evident that it was the intention of the parties to enter a serious contract, although not such a one as its language purports.

The debtor, by passing the title of his property to another, intended to make secure to two of his creditors, two debts, amounting to over §90,000, and actually due and owing, and put it beyond his own power to impair that security. Whatever may bo its effect as to conferring an unjust preference or advantage, we cannot properly stamp it as an absolute simulation- — a mere shield to cover a debtor’s property from the pursuit of his creditors. It seems clear that Martin Could make no disposition of the property to the prejudice of these claims. He could not, under any interpretation of the terms and stipulations of the counter-letter, treat the sale of 18th January as a simulation, and require the property to bo reconveyed to him, without first paying the two debts, and plaintiffs possessing no greater rights than Martin, their debtors could do no more. They base their right to proceed against this property upon the tenor and effect of this counter-letter, and can derive from it no greater right or remedy than it resei’ves to their debtor.

As is said, in the case of Wolf v. Wolf, 12 An. 531, it does not follow, because parties have clothed their contract in one form instead of another, that it will avail in either. There is no such penalty declared by the lawgiver, and the Courts cannot supply it. There is nothing immoral in using the contract of sale as the security of a bona fide debt. As he may make an absolute donation of his property, saving the rights of the parties injured, we see no reason to declare an act void because the vendor has contented himself with a falso course, a fictitious price, instead of inserting the true cause of the contract. C. C. 1894.

Viewing, then, the act of 18th January, 1854, on which Chase relies, as having substance and reality, and not prohibited as to form and purpose, by law or good morals, we must apply tho principio invoked by him, and not disregard it until duly sot aside for legal causo.

It is therefore ordered, that the decree heretofore rendered by us be sot aside, and it is now ordorod that the judgment of the lower Court be avoided and reversed; and it is further ordered, that the injunction heroin bo perpetuated, with costs in both Courts.

Hyman, C. J.

adheres to tho opinion formerly prepared and read by him.


author: IdsijEY, J.

text:
    W. W. Keith v. Renard & Co., and Shaw, Sheriff.
    An action commenced by attachment was instituted against a dofondant, and property claimed to boIong to the dofendant, but to which an absent third person had an apparont legal title, and tho third person was made a party to tho suit, and his title to tho property attached declared simulated.
    An aotion of nullity was brought by tho absent owner of tho attached proporty:

      Held: — 1That it would havo been legally competent for such third person to contest, by all legal means, tho validity of the claim of the plaintiffs to the debt they sought to rocover; and if ho succeodod in defeating it, his titlo to the property attached could not bo assailed.
    That the fact, that a dofondant is an absonteo, and had no notice of tho aotion brought against him, and no debt was duo, are good grounds for an action of nullity and rescission of judgment.
    That a foreign judgment, which is proscribed on its face, and which docs not appoar to havo boen revived by scire facias, or other means provided by tho laws of the Stato where tho judgmont was . obtained, is an extinguished obligation.
    A PPEAL from the Sixth District Court of New Orleans,

      Duplantier, J. Geo. S. Lacey, for appellant. H. B. Eggleston, for appellee. .
   IdsijEY, J.

On the 12tb day of April, 1864, Benard & Co., of the city of Now York, instituted, in the Sixth District Court of New Orleans, an attachment suit, having, for its basis, a judgment of the Supremo Court of the State of New York, rendered in June, of the year 1850, in favor of the plaintiffs in the said suit, and against Lewis S. Bobbins and other defendants, jointly and severally.

In this attachment suit against Lewis S. Bobbins,- W. W. Keith, the plaintiff in the present action of rescission, was made a party, and it was in tho said suit decreed, that certain immovable property, which stood recorded in Keith’s name, and which was, at tho time of the seizure thereof, in his possession, should be made subject1 to the attachment of Benard & Co., as the property of Lewis S. Bobbins, it being at tho same time decreed, tliat Keith’s titlo to the said property was a simulative and fraudulent one, and that the said property «belonged not to Keith, but in reality to Lewis S. Bobbins, against whom tho New York Judgment was recognized as a valid claim.

Both Lewis S. Bobbins and W. W. Keith being absontoes, each of them was represented and defended by a curator ad hoc, contradictorily with whom tho proceedings were carried on till final Judgmont; and it is to sot aside that Judgmont, so far as it affects Keith that he instituted the present recission action.

As grounds of nullity, he sets up various defects in the proceedings; but his main rebanee rests on Article 614, of the Code of Practice, that he was “a person absent, that he had no knowledge of the action having been brought against him, and that no debt existed, either for tho whole or a part of the sum for which Judgment was obtained, and the property seized for the purpose of satisfying it. Were this simply an action of nullity to set aside and annul the Judgment rendered in the attachment suit for dofects in tho Judicial proceedings connected with and portaining to the said suit, this Court would unhesitatingly have adopted the ruling of this tribunal in Seymour v. Cooley, page 79, 9 La. That the .defects complained of in this case could only be remedied on an appeal, and that an action of nullity was not the remedy; but Keith, the plaintiff, occupies a position, if he falls within the scope of Arts. 267, 268 and 614 of the Code of Practice, which renders it immaterial how the proceedings in tho attachment suit were conducted, legally or illegally. If he was an absentee, had no knowledge of the action having been brought against him and no debt was due, he must succeed in this suit unless the articles of tho Code on which he relies are absolutely restrictive, and can be invoked solely and exclusively by the absent debtor.

It is evident that Keith was an essential party to the attachment suit as his titlo to the property attached, legal on its face and his possession, had first to be declared simulated and fraudulent before that property could be made legally subject to the attachment.

It would have been leg’ally competent for Keith in that suit to controvert, by all legal means, the validity of the claim of Benard & Co. against Lewis S. Bobbins, as if he succeeded in this they would have no right to assail his title. See Dumas et al., v. Lebebvre, 10 Rob. 401; Fose v. Fose, 4 An. 135; Judson v. Connelly, 5 An. 400.

Would it not then be strange, indeed, if Keith, who, as well as Lewis S. Bobbins, had the legal right to show that Bobbins was not indebted to Benard & Co. for tho whole or a part of the. sum for which the Judgment was obtained, should although standing precisely in the same attitude as Bobbins in this particular, were yet unable, like him, to avail himself on a logal showing of this equitablo remedy, founded, as it is, on’ ’natural Justice, honesty and right. Wo cannot sanction a distinction which would open the door for relief to Lewis S. Bobbins, and close it to liis oo-defenclant, Keith, who, upon every principle of justice, is equally with Robbins, entitle^ to the full benefit of it; and we therefore maintain Keith’s action of rescission in the mode contemplated by Arts. 267, 268 and 614 of the Code of Practice.

Ho must, however, show, satisfactorily, that he was, at the time of the suit, absent from the State. An absentee who had no knowledge of the attachment suit to which he was made a party, and all this is proved beyond all doubt.

The evidence of the debt sued on consisted of a foreign judgment,, which was prescribed on its face, and which, it does not appear, was ever revived by means of a scire facias, as contemplated by law. We agree fully with the reasons assigned by the Judge of the District Court, .for regarding this judgment in no other light than as ah extinguished obligation. See section 1st, Act No. 274; Acts 1853, page 250.

Keith then brings himself fully within the equitablo remedy provided for by the articles of the Code of Practice before referred to ; and there is, therefore, no error in the judgment pronounced by the District Court.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, and that the appellant pay the costs of appeal.


author: Taliaferro, J.

text:
    No. 773.
    Bank of Louisiana, in Liquidation, v. Edward H. Wilson.
    An insolvent, after his surrender, cannot maintain an action against a faithless agent or mandatory. Such action, and the right to maintain revocatory actions, pass to the syndic, and can be maintained by him alone for the benefit of the creditors.
    By the decree of forfeituie, the corporation loses the faculty of suing in its corporate name.
    A PPEAL from the Fourth District Court of New Orleans, Theard, J.

      Miles Taylor and J. B. .Eustis, for plaintiff and appellant.

      A. (.1. Semines and IT. M. Spofford, for defendant and appellee.
   Taliaferro, J.

The defendant in this case, having- a large claim against the Bank of Louisiana, levied, on the 10th of July, 18G5, an attachment upon eight hundred and nine bales of the plaintiff’s cotton, at Montgomery, in the State of Alabama. The bank, represented by liquidators, sold this cotton to several joint purchasers, on the 20th of the same month and year, for §100,000 ; but, unable to deliver it, on account of the attachment, it brings this suit against the defendant, alleging that his proceeding in Alabama is illegal and unwarranted ; that the bank is in liquidation under an order of Gen. Banks, dated the 13th of Jnne, 1863, during the military occupation of New Orleans by the Federal armies ; that, by this order, the bapk wfis deplared insolvent, and that all its property and assets of every description, and all its affairs of whatsoever nature, were placed under the control and management of commissioners of liquidation, as provided for by law in insolvencies of individuals ; that the bank has, ever since the' date of said order,- been in due course of liquidation ; that, in consequence of this insolvency, the creditors of the bank can only be paid pro rata shares of its debts, after its assets have been converted into current funds and ready for distribution ; that defendant Wilson has no right to be paid in preference’to other creditors, or to be paid out of any particular portion of- the assets. The plaintiff therefore prays that the defendant be restrained by an injunction from taking any further action under the attachment proceeding begun by him in Alabama; that he be required to dismiss the attachment and to restore the cotton to the posesssion of plaintiff, upon the plaintiff’s giving bond, with solvent security, in such sum as the Court may determine, to secure the payment of such damages as said Wilson (who is alleged to be a citizen of Louisiana) may sustain, in case it should be decided that the injunction was wrongfully obtained. The plaintiff further prays, that the defendant be commanded by injunction to institute his action against petitioner, the said bank, in a competent Court in Louisiana, within three months from the date of the filing of plaintiff’s suit against defendant, to settle his rights against it. And, lastly, if the attachment sued out in Alabama shall not be dismissed, and the cotton attached restored to plaintiff, that judgment be rendered against defendant, in favor of plaintiff, for §100,000, the value of the cotton, and §20,000 damages, with interest from judicial demand.

The injunction was issued, as prayed for, and personal service of the same and of the petition was made on defendant, who thereupon, when the case came on for trial in the Court below, moved that the injunction be dissolved, on the following grounds :

1. That the Bank of Louisiana is without capacity to institute this suit, and therefore cannot stand in judgment.

2. That no sufficient injunction bond was given.

3. That the affidavit to obtain the injunction is insufficient.

On the trial of the rule the injunction was dissolved, and plaintiff has. appealed.

This suit is brought by the Bank of Louisiana, a corporation of the State of Louisiana, created by law and established in the city of New Orleans, and now in liquidation, and represented by Ambrose Lanfear, J. W. Burbridge and George Buleff, commissioners of liquidation for said bank. It is distinctly set out in the petition that the bank is insolvent and in process of liquidation, and the liquidators are named. The insolvency of the bank and its state of liquidation is alleged as the basis of the action against defendant, and the ground upon which it prays that defendant be restrained from prosecuting his claim against the property of the bank.

It is contended in argument by the counsel of the bank, that the military order declaring the insolvency of the bank, and appointing commissioners of liquidation to take charge of its assets, had not the effect to dissolve the corporation, and that no judicial decree has been rendered establishing the forfeiture of its charter. We see nothing requiring from us an opinion on this subject, If the corporation was not dissolved by-the military order, its validity is recognized and accepted by the bank, to the extent of the insolvency declared, and the appointment of liquidators to take possession of its property and to settle its affairs.

In the case of French and another, Commissioners, v. Landis et al., 12 Rob. 634, the Supreme Court said: “ The analogy is striking between an insolvent who has made a cessio bonorum and a corporation put in liquidation by virtue of the act of 1842. All the property, rights and actions of the insolvent become vested in his creditors, to be administered by the syndic. It never has been supposed that an insolvent, after his surrender, could maintain an action against a faithless agent or mandatory. ' Such an action, and even a right to maintain revocatory actions, passes to the syndic, and can be maintained by him alone for the benefit of the creditors. By the decree of forfeiture the corporation has no longer the faculty of suing in its corporate name.”

If, as held by the plaintiff, the corporation still has vitality, and retains the capacity to sue and be sued, there would seem to be an anomaly growing out of the existence, at the same time, of a corporation and commissioners to liquidate its affairs, both having the power to control its assets, and equally the power to exercise all its rights of action in courts of justice. But no such anomaly, we apprehend, exists. There being commissioners appointed to liquidate the business of the insolvent bank, they are the proper representatives of the creditors, whose interests it is the duty of the liquidators to protect, and in their names should all judicial' proceedings, in relation to the rights of the creditors, be taken. On the other hand, if the corporation still exists, and has the capacity to institute suits, this action should-have been brought in its corporate name. But, if the capacity of the bank to stand in judgment were left an open question, we think the injunction bond defective, and this alone would present a bar to the prosecution of this suit.

The bond is executed in the name of the bank, by the attorney-at-law of the bank, and by Ambrose Lanfear as surety. It is not essential that appeal bonds be signed by the principal; and the reason is obvious. But the same reason does not apply to injunction bonds. The defendant had the right to require a bond from the plaintiff, or some one duly authorized to execute it for him. 12 An. p. 448. The attorney-at-law could only execute the bond in the absence of his client, and the client in this case was not absent. There is, moreover, doubt, whether the authority granted to attorneys-at-law, to execute bonds in such cases, extends to corporations. There is a special law in regard to corporations, which limits their official acts to certain agents, and an attorney-at-law is not one of these agents. C. P. Art. 112. O. C. Arts. 428, 429 and 430.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.