text:
    No. 2984.
    Jacob Denney v. L. L. Johnson.
    Where a contract has for its consideration an illegal currency reprobated by law, the plaintiff suing on that contract can not recover.
    APPEAL from the-Seventh District Court, parish of Orleans. Gollens, J.

      F. W. Huntington, for plaintiff and appellee. Hace, Foster & Merrick, for defendant and appellant.
   Taliaferro, J.

This is a suit upon an account for 8950. The defendant repudiates the claim on the ground that the consideration upon which it was founded was the payment of Confederate money. The plaintiff had judgment as prayed for, and the defendant has ■appealed.

This, in one respect, belongs to a class of cases with which the courts have become familiar, that of plaintiff and defendant contradicting under oath the testimony of each other in the most direct ■terms, imposing upon courts and juries the task of determining on -which .side lies the preponderance of proof.

It appears that in the'early part of the year 1862, the plaintiff having a large quantity of molasses for ‘sale on his plantation in the parish of ■St. James, meeting in New Orleans the defendant and several other persons, proposed to them to sell molasses at twenty-five cents per ^gallon, to be paid for at the termination of the war then existing between the United Stales and the insurgent States, or so-called Confederate States. To the plaintiff, was sold one hundred barrels, to Joshua M. Craig a hundred barrels, to Daniel H, Sessions one hundred barrels, to Cyrus Johnson, Walter Sessions and Richard H. Sessions, «ach fifty barrels. This sale was entered into at the St. Charles Hotel, the parties all being present when it was.entered into. The defendant in his testimony says in positive terms that the molasses was to be paid for at the close of the war in Confederate money or Confederate bonds. The testimony of Walter Sessions, Daniel H. Sessions, Richard H. Sessions and Joshua M. Craig, four of the persons who purchased at the same time, taken under commission sent to Arkansas, fully corroborate the testimony of the defendant. These four witnesses all detail minutely the circumslanees under which the sale took place — the time, place, persous present, etc. They all say the same thing in respect to the terms. They all declare the contract was that the molasses was to be paid for at twenty-five cents per gallon in Confederate money or Confederate bonds at the close of the war. The defendant and four witnesses swear distinctly that these were the ■terms of sale. Against this evidence there is only the positive statement of the plaintiff that payment was to be made, “-in the currency of the country” after the war was over. But it is shown that, since the close of the war, the defendant paid the plaintiff $100, and it i& inferred by the judge a quo that this was made under a new promise,, there existing a natural obligation on the' defendant to pay for the property, and this inference he thinks is strengthened by the circumstance that defendant’s witnesses, who purchased at the same time,, have made similar new promises. Whatever may be the subsequent course these witnesses have thought proper to adopt in regard to-their-own affairs, it by no means affects the defendant, who stands upon the-inherent vice of the only engagement he made with the plaintiff, that of paying for the molasses at the close of the war in Confederate-money or Confederate bonds, a stipulation which four of the witnesses, substantially establish to have been made by the plaintiff and accepted by the purchasers. So far from entering into a new obligation to pay the plaintiff’s claim, the defendant’s own testimony is very positive-that no such new agreement was male. He says: “I gave the-plaintiff $100 since 1862, I think about two or three years ago in the-city of New Orleans. I gave the above sum to plaintiff to ge.t rid of the annoyance he caused me by trying to induce me to pay for the-molasses in United States currency." I considered the sum stated a. present to plaintiff, as I did not consider I owed him anything. I gave him the above sum with the request that he would never mention the molasses to me again, as I owed him nothing. I do not remember what I said at the time I gave him this sum. I remember he took the money, and did not take any offense at what I.said and did.” The-plaintiff’s own testimony is the only evidence that contradicts these statements. There is nothing in the record supporting the plaintiff’s, evidence to give it the preponderance over the defendant’s evidence. It is for the plaintiff to make out his case beyond doubt.

It may be adverted to, in considering issues of the kind heie presented, that the contemporaneous history of the late rebellion establishes that during the early period of the war, embracing the time when the contract was entered into in this case between the plaintiff' and defendant, there was throughout the insurgent States an almost universal conviction and belief that a revolution would be accomplished and a new government established in those States. The so-called Confederate money had then supplanted every other currency in the Southern States, and it had credit and value attached to it; and -at that time instances were rare ot persons who doubted the ultimate-success of the intended new government or the reliability of its currency. These facts we deem not without weight in a case like the present, where a confliction of evidence occurs as to whether Confederate money formed the consideration of the contract.

We conclude that the contract in this case had for its consideration an illicit currency reprobated by law, and that the plaintiff can not recover. 20 An. 37; 19 An. L65.

It is therefore ordered and decreed that the'judgment of the district court bo annulled, avoided and reversed. It is further ordered that the plaintiff’s demand be rejected and this suit dismissed at his costs.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 4920.
    State ex rel. Benton et al. v. Judge of the Superior District Court.
    ■Where the Judge of the Superior District Court refused a suspensive appeal from an order-rendered by him in a certain suit pending in that court, wherein the relators are defendants — which order was — that their books be produced in court and experts he appointed to examine them on or before the trial of the ease; _ .
    Held — That, from an examination of the record presented, this court is inclined to think that the appeal should have been granted.
    Application for a Writ of Mandamus against the Judge of the Superior District Court, parish of Orleans.

      Mays & Few, for relators.
   Taliaferro, J.

The complaint of the relators is that the Judge of the Superior District Court refused them a suspensive appeal from an order rendered by him in a cerlain suit pending in that court wherein they are defendants, that their books be produced in court and experts appointed to examine them on or before the trial of the case. Upon the relator’s application to this court for a writ of mandamus to compel the defendant to grant the appeal a rule nisi was granted, and the judge thereto answers:

First — That- the case McMahan v. Benton et al., No. 9247 on the docket of his court, has not been tried on its merits.

Second — That in rendering the order for the production of the defendant’s books and for the appointment of experts, he proceeded according to articles 140, 441, 442 and 443 of the Code of Practice.

Third — The order complained of is interlocutory and can not work an irreparable injury to the defendants.

Fourth — -That the defendants sought the appeal and not the Accommodation Bank. That it will be seen that the Accommodaiion -Bank is not the defendant or any party to this suit, and never applied for an ■ appeal in this ease.

Prom an examination of the record presented we are inclined to think the appeal should have been allowed.

It is therefore ordered that the rule be made' absolute, and that the defendant in rule be required to grant the relators a suspensive appeal as applied for upon their entering into bond and security as required by law.


text:
    No. 4826.
    State of Louisiana ex rel. Slack et al. v. F. A. Hall.
    Where the grounds to dismiss the appeal are, that the right to office is involved, and in such cases, when an appeal is taken, it should be made returnable in ten days after the rendition of the judgment appealed from in conformity with law; that the judgment of the lower court in this case was signed September 20, 1873; that on the twenty-second of the same month the appellants by motion in open court applied for and obtained an appeal returnable on the first Monday of November, 1873;
    Held -That the motion to dismiss the appeal must prevail.
    The policy of the law in requiring appeals in cases involving the right to office to be made returnable in ten days after rendition of judgment, is obviously to have such cases determined speedily and with the least possible delay. This requirement of the law must therefore be construed strictly.
    .The illegality of the return is not obviated from the fact that the appellate court was not in session when the judgment was rendered and not to convene again until the first Monday of November.
    Had the appeal been made returnable within ten days as the law requires, the appellant would not have lost Ms right of being heard on appeal as soon thereafter as the court should be in session.
    APPEAL from the Fourteenth Judicial District Court, parish of Onachita. Bay, J.

      A. L. Slack, District Attorney pro tem., E. J. <Jalckoell and John Bay, for relators and appellants. Morrison & Farmer, for defendant and appellee.
   On Motion to Dismiss.

Taliaferro, J.

The grounds presented in support of the motion to dismiss this appeal, are the following :

That the right to office is involved, and in such cases, when an appeal is taken, it should be made returnable in ten days after the rendition of the judgment appealed from, in conformity with section seven of the act No. 45, of the extra session of 1870, and section 1904 of tlie Revised Statutes, page 331.

That in the appeal taken in this case, the law has not been complied with. The judgment of the lower court was signed September 20, 1873. On the twenty-second of the same month the appellants, by motion in open court, applied for and obtained an appeal returnable on the first Monday of November, 1873.

That the appeal should have been made returnable on the thirtieth of September, and it was by the fault of the appellant that it was not. The authorities relied upon are Ingram v Doherty, 21 An. 174 ; State ex rel. Blandin v. Clay, 22 An. 596 ; State ex rel. Bovee v. Herron— not reported. We think the motion must prevail.

The policy of the law in requiring appeals in cases involving the right to office, to be made returnable in ten days after rendition of judgment, is, obviously, to have such cases determined speedily, and with the least possible delay. This requirement of the law must therefore be construed strictly.

It is argued with some plausibility that the appellate court not being in session, when the judgment was rendered, and not to sit again until the day on which the appeal was made returnable, it would have been nugatory to have the appeal made returnable within ten days. It may be said on the other hand, that had the appellate court been in •session, so that the appeal could have been presented within ten days, but being made-returnable on the first Monday of November, it clearly might have been dismissed on account of the illegality ot the return. That illegality is not obviated from the fact the appellate court was ■not in session when, the judgment was rendered, and not to convene again until the first Monday of November. Had the appeal been made returnable within ten days, as the law requires, the appellant would not have lost liis right of being heard on appeal as soon thereafter as the court should be in session.

It is ordered that the appeal be dismissed.


text:
    No. 4795.
    Stephen C. Sterling v. Parish of West Feliciana.
    It lias been frequently determined that police jurors are political corporations whose powers-are specially defined by the Legislature, and that they can legally exercise no other powers than those delegated to them.
    For all purposes for which they are by law authorized to create debts, they are authorized to levy and collect a tax for paying the same. But, without a special 5.rant of power by the Legislature for that purpose, they clearly have no authority to issue and put in circulation instruments of any hind.
    FJo special statute is shown in this case conferring upon the parish of "West Feliciana the authority to issue the negotiable notes or warrants upon which the plaintiff sues.
    The position that the warrants or negotiable instruments of indebtedness which are the objects of this suit, were issued to defray the necessary expenses of the parisli is not tenable. The police jury was not authorized to do it in any other way than by levying •and collecting a tax for that purpose. Said negotiable instruments are null and void.
    Appeal from the Seventh Judicial District Court, parish of West Feliciana. Hewes, J.
    Kennard, Howe & Prentiss and Samuel J. Powell, for plaintiff and appellee. W. W. Leake and Pace, Poster & Merrick, for defendant and appellant.
   Taliaferro, J.

The plaintiff sues for $3571 42 with interest. He founds this demand upon sundry obligations termed warrants issued to various persons under the authority of the police jury of the parish, -drawn in Javor of the payees or their order, and which the plaintiff alleges he holds as owner under the1 regular assignment and endorsement of the payees in due course of commercial business and for a valuable consideration. The instruments sued upon are in the following form:

“$20. West Feliciana, Louisiana, May 8, 1869. Warrant No. 114. The Treasurer of the parish oí West Feliciana will pay to E. L. Weber or order twenty dollars. J. D. Smith, E. D. Kemondet, parish auditor* Endorsed J. S. Wooster, treasurer. E. L. Weber. May 12, 1869.

These notes or warrants, of which the plaintiff sets himself out as holder, appear to have been duly protested for non-payment.

The answer is that there were no funds ,in the parish treasury when these warrants were issued, and that there have been none since that the warrants were illegally issued as bills of credit or money. The authority of the police jury or of its officers to issue the warrants is denied, and defendant alleges that no provision for their payment has been, made as required by law. Prescription of five years is pleaded. The plaintiff had judgment for the sum claimed with interest, and defendant lias appealed.

It has been frequently determined that police juries are political corporations whose powers are specially defined by the Legislature', and that they can legally exercise no other powers than those delegated to them. They are specially required by statute when, within the scope of their legitimate powers, they create a debt against the parish, to provide in the same act the means of paying it. For all purposes for which they are by law authorized to create debts they are authorized to levy and collect a tax for paying them. But without a special grant of power by the Legislature for that purpose, they clearly have no authority to issue and put in circulation negotiable instruments of any kind. No special statute is shown in this case conferring upon the parish of West Feliciana the authority to issue the negotiable notes or warrants upon which the plaintiff sues in this case. It is contended that, as these instruments were issued for the purpose of paying the necessary expenses of the parish, such as fees to the sheriff, to the jailor for maintenance of prisoners, to the district attorney of the district for services rendered in the parish, to the coroner of the parish, to a certain party for building a bridge, etc., they were therefore properly issued for a legitimate purpose, that of defraying the necessary expenses of the parish — that a distinction exists between this case and others where police juries have put in circulation notes or bonds for the purpose of raising money on them. The answer to this reasoning seems plain : that the police jury is vested with power to levy and collect a tax to defray all the necessary expenses of the parish, and that they are not authorized to do it in any other way. And it would seem from the very ease before us that£< to this complexion must it come at last,” for it is shown that, for several years past, the parish in question has annually issued instruments of the kind now sued upon, taking up old issues by new ones, that there has not been from 1866 to 1872 any taxes collected in currency, that there has not been a dollar in currency in the parish treasury since the war; and now the plaintiff in this case prays a decree of the court •ordering a tax to be assessed and collected to pay his claim.

■ The doctrine held in the case of Breaux v. The Parish of Iberville, 23 An. 232; and Marionneaux v. The Parish of Iberville, same volume, p. 251, and in the case of Edwards v. The Parish of Bossier, 24 An. 459. is applicable to the case at bar. We must then, seeing that the negotiable instruments sued upon'by plaintiff were issued without authority of law, regard them as null and void.

It is therefore ordered that the judgment of the district court be annulled and reversed. It is further ordered that there be judgment tor the defendant, the plaintiff paying costs in both courts.

The decree rendered in this case was not intended to conclude the right of the plaintiff to claim from the parish payment for services rendered the parish, but only to decide in conformity with previous •decisions that a parish unauthorized by legislative act, is without power to make and put into circulation negotiable paper, or instruments of any kind bearing on their face the character of commercial paper passing by indorsement or delivery like those upon which this suit was founded.

Behearing refused.


author: Wyly, J.

text:
    No. 3273.
    R. C. Oglesby v. Wm. B. Helm.
    Where an application is made for tlie revision of a judgment for five hundred dollars and costs of suit, this court, of its own motion, must dismiss the appeal on account of a want of jurisdiction mtione mateHce.

    In order to detormine the jurisdiction of the court, the amountin dispute at the time the suit was filed alone, must be considered. Costs, subsequently accruing, can not be estimated so as to give this court jurisdiction.
    An action not revisablo by an appeal is not revisable in this court by an action of nullity, or by an appeal f. om the judgment in the action of nullity.
    This court not having jurisdiction of a judgment because the matter in dispute did not exceed * five hundred dollars, has no jurisdiction to revise it in either of the modes prescribed by . the Code of Practice.
    Appeal from the Sixth District Court, parish of Orleans. Cooley, J.

      Fellows & Mills, for plaintiff and. appellant. Wooldridge & Thomas, for defendant and appellee.
   Wyly, J.

On sixteenth of December, 1870, the defendant obtained judgment against the plaintiff for five hundred dollars and costs of suit. On thirteenth of June, 1871, the plaintiff brought this suit to annul said judgment and injoined the execution thereof pending the action. This, then, is an effort to revise a judgment for five hundred dollars and costs of suit. Of our own motion we must dismiss the appeal, because this court is without jurisdiction ratione material.

In order to determine the jurisdiction of this court, the amount in dispute at the time the suit was filed, alone must be considered. The defendant then demanded of the plaintiff five hundred dollars, only. Costs subsequently accruing can not be estimated so as to give this court jurisdiction of the case, which it did not have when the litigation began. An action not revisable by an appeal is riot revisable in this court by an action of nullity or by an appeal from the judgment in the action of nullity. This court, not having jurisdiction of the judgment,, because the matter in dispute did not exceed five hundred dollars, has no jurisdiction to revise it in either of the modes provided by the Code of Practice. A different view was taken of the matter at the time the motion to dismiss was rejected by this court; but after more mature reflection, we are of the opinion that we erred in not dismissing the-appeal at that time. That error must be corrected now, because this-court can not rightfully assume a jurisdiction not conferred by the Constitution.

It is therefore ordered that the appeal herein be dismissed at appellants costs.


author: Howell, J.

text:
    No. 4812.
    State of Louisiana v. Austin E. Smith.
    Where the assignment of error is that the judge a quo erred in overruling the motion of defendant to quash the panel of tales jurors, because they were selected by the sheriff and not drawn from the list of registered voters as the regular panel, it was
    Hold — That the facts, as to this matter, having not been brought up in a bill of exceptions, it must be presumed that the judge and sheriff did their duty. But this court can properly state in this connection that talesmen are not regular jurors aüd are not to be drawn and summoned as such. They are necessarily to be summoned without observing the formalities of drawing and summoning the regular panel.
    Where the indictment recites that the grand jurors were duly impanneled and sworn, if it be sacramental for the expression, “upon their oath present, etc.,” to be used, this court has no doubt it was so used — the whole of said expression being in the transcript, except the word “ oath ” — which is necessarily a clerical error.
    Appeal from the First District Court, parish of Orleans. Abell, J. Criminal case.

      A. P. Field, Attorney General, for the State. 8-Belden, for defendant and appellant.
   Howell, J.

The defendant having been indicted for murder and found guilty of manslaughter, has appealed from the judgment sentencing him to imprisonment for five years at hard labor in the State penitentiary, and has assigned as error:

“First — That the judge a quo erred in overruling the motion of defendant to quash the panel of tales jurors selected by the sheriff.” The ground of the motion, as copied in the record, was that the said tales jurors were selected by the sheriff, and were not drawn fr.om the list of registered voters as the regular panel was. The facts, as to-this matter, are not brought up in a bill of exceptions, and we should presume that the judge and sheriff did their duty. But we can properly state in this connection that talesmen are not regular jurors and are not to be drawn and summoned as such. They are necessarily to. be summoned without observing the formalities of drawing and summoning the regular panel.

Second — That the indictment is insufficient in this, that it does not appear to be presented on the oath of the grand jury.”

The indictment recites that the grand jurors were duly impanneled and sworn, and if it be sacramental for the expression, úpon their oath present, etc.,” to be used, we have no doubt it is so used; the whole of said expression being in the transcript except the word “oath,” which is necessarily a clerical error in copying. We can. make no other rendering of the paragraph.

Judgment affirmed.

Rehearing refused.


author: Morgan, J.

text:
    No. 3012.
    Samuel Jamison v. J. H. Pothaus et als.
    In view of the facts detailed "by plaintiff himself, showing that he and his family, departing from Hew Orleans, where his usual residence used to be, lived and resided during the-war within the Confederate lines, it is evident that plaintiff did not reside in Hew Orleans on ihe sixth of April, 1863, the time of the protest of the note on which he appears as indorser, and that, as he had no known place of residence, the notice deposited for him by the notary in the post office, pursuant to the act of 1855, was sufficient to fix his. liability.
    Besides, the plaintiff, on the ground that he did not know he was legally released by the want of notice, can not be permitted to recover the sum. which he voluntarily paid as a. compromise for a larger sum claimed of him. He preferred to pay this sum to the hope of gaining, balanced by the danger of losing the law suit which the defendants were about to bring against him. The settlement or transaction has a force equal to the. authority of the thing adjudged.
    Appeal from tbe Seventh District Court, parish of Orleans. Col-lens, J.

      Thos. Hunton, for plaintiff and appellant. James Brewer, JI. Jj. Davis, for defendants and appellees.
   Morgan, J.

The plaintiff appeals from the judgment rejecting his demand to recover of the defendants $3175, the amount paid by him in compromise of a note on which he was an indorser. The ground for the action is, that plainfiff made the payment in ignorance of the fact he was not liable as indorser, because he had not been properly notified of the dishonor of the note.

The first question is, was the plaintiff properly notified of the dishonor of the note?

If his residence was in the city as he contends, at the time of the protest in August, 1863, the notice was insufficient, because it was not served personally, nor at-tlie domicile of the plaintiff. But if he did not reside here and had no known place of residence, as the defendants contend, the notice deposited in the postoffice for him, pursuant to the act of 1855, was sufficient to fix his liability.

It is true the plaintiff swears that his domicile was on Baronne street, where he has resided for the last twenty years ; still the facts detailed by him on cross examination show conclusively that he did not reside there in August, 1863, the time of the protest, and that he then had no known place of residence. He left the city in May, 1862, to go into Confederate lines; neither he nor his family resided here in 1863; he does not know where he was on the sixth August, 1863, but thinks he was at Opelousas or at Natchitoches; he did not return with his family to reside in New Orleans until after the war.

In view of the facts detailed by himself, showing that the plaintiff and his family lived and resided during the war in Confederate lines, we have no difficulty in finding that the plaintiff did not reside in New Orleans on the sixth August, 1863, the time of the protest of the note, notwithstanding his conclusion or opinion to the contrary.

He had no known place of residence and the notice put in the post-office for him by the notary was sufficient. 6 An. 364.

Besides, at the time of the compromise, the plaintiff knew he had not been served with notice of the dishonor of the note either in person or at his residence, because his person and his residence being-in Confederate lines at the time of the protest could not be reached by the notary. •

For $3175 the plaintiff settled or compromised the debt which amounted to some $4500, including interest. He preferred to pay this sum to the hope of gaining balanced by the danger of losing the lawsuit which the defendants were about to bring against him. The settlement or transaction has a force equal to the authority of the thing adjudged. And the plaintiff has failed to show sufficient grounds to annul it.

Judgment affirmed.


text:
    No. 4910.
    State ex rel. R. Taylor v. Judge of the Superior District Court.
    It has been so often decided that a defendant may release on bond the sequestration of his property that it can no longer be considered an open question.
    The right to appeal from the order refusing this right is equally well settled.
    It is -not true that the right to release on bond applies only to cases falling under article 275 C. P., and that a sequestration ordered ex officio by the court under article 274 can not be thus released.
    Article 279 C. P. means what it says. Its terms are general. Except in cases of failure, any sequestration may be released on bond. Were the meaning of article 279 doubtful, a liberal construction would be given to it, because the article is remedial in its character.
    Application for a mandamus against the judge of the Superior District Court, parish of Orleans.

      W. H. Hunt, for relator.
   Wyly, J.

The State sued to annul the lease or contract by virtue of which the relator controls and administers the New Canal and shell road extending from the city to the lake.

While this suit was pending for trial in the Superior District Court, the judge, on the suggestion of the Attorney General, made an ex parte order directing the sequestration of the “shell road, the canal, basin, dredge boats, toll gates, horses, mules and all other property connected with, used in its operation or in any wise appertaining thereto.” Under this order all the property was seized by the sheriff.

The relator then moved to set aside the sequestration on giving bond for the value of the property sequestered. Being refused this right, he sought in this court the mandamus upon which the case is now presented for examination.

It has been so often decided that a defendant may release on bond the sequestration of his property, that we consider it no longer an open question.

The right to appeal from the order refusing this right is equally well settled.

“The possession and use of the property of the defendant maybe necessary to the maintenance of his credit; to the performance of his obligations to others; nay, to the very existence of himself and family. A judgment rendered in his favor after years of litigation, restoring him to his property, would come too late to afford a remedy. The injury might be irreparable.” 5 N. S. 42.

The respondent, however, contends that the right to release on bond applies only to cases falling under article 275 C. P., and that a sequestration ordered ex officio by the court under article 274 can not be thus released.

“A defendant against whom a mandate of sequestration has been obtained, except in cases of failure, may have the same set aside by executing his obligation in favor of the sheriff, with one good, and solvent surety, for whatever amount the judge may determine, as being equal to the value of the property to be left in his possession. C. P. 279.

We think this article means what it says. Its terms are general. Except in cases of failure, any sequestration may be released on bond-Had the law giver intended the relief granted by article 279 to apply only to sequestrations issued under article 275, a limitation to that effect would have been expressed in the article. If its meaning were doubtful, a liberal construction would be given, because the article is-remedial in its character.

It is therefore ordered that the mandamus herein be made peremptory.


text:
    No. 4946.
    State of Louisiana ex rel. Garthwaite, Lewis & Miller v. The Judge of the Fourth District Court, Parish of Orleans.
    Wliere tlie judge a quo, on a rule to show cause, answered: that several days after the rendition of the judgment by the jury, the defendant’s counsel importuned him to sign a document tendered to him as a bill ol" exceptions; that respondent refused to sign the1 document presented, because it was not a bill of exceptions; that bills of exceptions can. only be taken in civil cases during the trial; that they must show upon their face that they wore signed at the trial, and that no bill of exceptions will lie after the trial and rendition of a verdict; that the counsel of the defendant on the Saturday previous to the Monday on which the verdict of the jury was rendered, did not ask to be allowed a bill of exceptions to the action of the court;
    Held — That the respondent, in the main, assigned reasonable cause for declining to sign the bill of exceptions.
    Application for a mandamus directed to the judge of the Fourth-District Court, parish of Orleans.

      Labatt, Aroni & Clinton, for relators. Judge Lynch, in propria persona. ■

   Taliaferro, J.

The relators complain that the judge of the Fourth District Court refused to sign a bill of exceptions taken on their behalf in a suit that was pending in that court, wherein J. H. Hopkins was plaintiff and Garthwaite, Lewis & Miller were defendants; that relators set forth that they are desirous of appealing from the judgment rendered against them in that case, founded upon the verdict of a jurjr, and that without the said bill of exceptions signed by the judge they would be unable to complete the transcript of appeal.

The following is the bill of exceptions relators complain the judge-refused to sign:

“Be it remembered that on Monday, the thirtieth of June, 1873,. immediately after the opening of this honorable court, and in presence of judge and jury, but before the reception and opening of their verdict and conclusions, and in order to preserve the rights of the defendants, so that they may not be prejudiced by silence, apparent-acquiescence or any omission, whether the said verdict be for ox against them; that David C. Labatt, one of the defendant’s counsel, in open court, in presence of judge and jury, heretofore sworn herein, then and there arose and excepted and objected to the reception of said verdict or sealed document by them presented on the following grounds:

“Mrst — That by the minutes of the court of Saturday, June 28,1873, in this case, which are made part hereof, this honorable court on said Saturday, after sending the jury into the jury room a second time to deliberate further, adjourned the court to Monday, June 30; that consequently there was intervening Sunday, twenty-ninth of June, on which the court could not and did not hold session, and did not intend to hold session, and by the terms of article 529, Code of Practice, the court was without lawful power or authority to direct a sealed verdict to be rendered in this case, or any other verdict, unless it adjourned to meet next day, and the same, whether sealed or not, is therefore absolutely null and void and vicious; that the court was in this case-composed of judge and jury, and when the court adjourned on Saturday, only to meet again on Monday, the jury ipso facto was jhmctus officio and ex necessitate rei defunct and discharged quoad this case, and utterly incompetent to render any verdict whatever.

“Second — That counsel for defendant did on said Saturday, just before the adjournment aforesaid, about 6:30 P. M., rise and inform the court that under the circumstances, as stated in the first ground above, a verdict obtained before twelve o’clock M. that night, unless the court was in session to receive it, or intended to be holden on Sunday, the next day, would be illegal, null and void; and counsel referred to the practice in this and other civil courts in that regard, and called upon the deputy clerk to state whether or not siich was his experience, and to which he assented; but the court declined to receive any advice or-suggestion, remarking that counsel was only acting in the interest of his client, who wanted the jury discharged, and that the point vyas. not well taken, and persisted in refusing to discharge the jury.

“ Third — That article 529, Code of Practice, is clear and distinct, and only permits a sealed verdict under certain circumstances, to wit .- When the court adjourns to meet the following day,’ which was not done in this case, and therefore the action of the jury was and is illegal, contrary to law, and coram non judiee absolutely null and void, and should not be received or recognized by the court.”

To a rule to show cause, the judge of the Fourth District Court responds that upon the Monday following the adjournment of the court, on the evening of the previous Saturday, when the sealed verdict of the jury, previously returned to. him at the hour of one o’clock A. M. of that day, was about to be read in open court, the defendant’s counsel rose and objected to the reception of the sealed verdict, and ■offered to read some document which he held in his hand, whereupon the counsel was informed by the court that he could not be permitted to read any document at that time or to prevent the reading of the verdict, and that the counsel was then informed that if there were anything irregular or illegal in the action of the jury or of the court, it would be ground that might be set up on a motion for a new trial, and in that way might be placed in the record and 'presented for examination by this court on appeal. The respondent says that several days after the rendition of the verdict by the iury, the defendant’s counsel importuned him to sign a document tendered to him as a bill of exceptions, and alleged to be the same the counsel had offered to read on Monday previous before the court and jury; that respondent refused to sign the document presented; that it is not a bill of exceptions; that bills of exception can only be taken in civil cases during the trial; that they must show upon their face that they were signed at the trial, and that no bill of exceptions will lie after the trial and rendition of the verdict; that the counsel of the defendant, on the Saturday previous to the Monday on which the verdict of the jury was rendered, did not ask to be allowed a bill of exceptions to the action of the court.

We think the respondent, in the main, assigns reasonable cause for ■declining to sign the bill of exceptions tendered.

■ It is therefore ordered that the rule be discharged at the cost of the relators.


author: Ludeling, C. J.

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    No. 4810.
    State of Louisiana v. Gregoire Russell.
    jCIio Attorney General lias tlie right to designate an attorney at law to assist the attorney for the State, or to prosecute alone in certain cases.
    Appeal of Orleans. Abell, J. Criminal case.

      A. Gastinel, for appellant. A. JP. Meld, Attorney General, for the State.
   Ludeling, C. J.

The defendant, having been convicted of the •crime of rape, moved the court to arrest the judgment, on the ground that the prosecution was conducted entirely by an attorney at law, ether than the Attorney General or district attorney of the State of Louisiana.

The Attorney General has the right to designate an attorney at law to assist the attorney of the State or to prosecute alone, in certain cases. See acts of 1872, pages 61 and 62. The motion was correctly ■overruled.

It is therefore ordered that the judgment be affirmed.


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    No. 2968.
    Antonio Dermani v. Home Mutual Insurance Company, of New Orleans.
    "Wliere the contract of insurance contained the following clause: “ This policy is not assignable unless by consent of this corporation manifested in writing, and in case of any transfer by sale or otherwise without such consent, this policy shall from thenceforth be void and of no effect;*’
    Held — That this prohibition does not apply to the assignment of the interests of one partner to the other, and that it can not be inferred to have been the intention of the contracting parties that the plaintiff could not buy out his partner and continue the business without-the consent of the defendants, on pain of forfeiting the policy.
    The prohibitory clause must be construed strictly, and if its application to the case before this court be doubtful, the doubt must be construed against the defendants, the obligors in the contract of insurance. s
    It is true the clause expressly prohibits the transfer by sale or otherwise of the policy; but" it does not expressly prohibit a change of interests among the partners, nor does it expressly prohibit the assignment of the interests of one partner to the other.
    If the defendants had intended to place such a limitation upon the rights of the assured, the intention should have been expressed in the instrument and not lelt to inference, because a prohibitory clause can not be extended by implication.
    In a contract of insurance, as in every other, it is the intention of the parties that must be-considered. In the instrument before the court there is nothing to be found to warrant the conclusion that the plaintiff forfeited the policy by accepting the assignment of his-partner’s interest in the business, without the written consent of the defendants.
    In the course of business partners often become dissatisfied, and change the firm by one* party transferring his interest to the other, as was done in this case. This occurrence is so common, that these parties must be presumed to have contracted, knowing it might-arise during the period of the insurance, and if it was desirable to put a limitation upon the right of the assured in this respect, a stipulation to that effect should have been inserted in the instrument.
    By the assignment in question no new party was introduced into the contract whom the defendants might not be willing to trust. In issuing the policy to Joseph H. Taboury & Co., they virtually declared the trustworthiness of each of the partners, so that it can not be objected that, by virtue of the assignment to plaintiff, the deiendants were forced to insure a person they had not consented to trust.
    Appeal from the Seventh District Court, parish of Orleans. Col-lens, J.

      Smnbola <& Dueros, for' plaintiff aüd appellee. Randolphf Singleton & Browne, for defendants and appellants.
   Wyly, J.

The defendants appeal from the judgment condemning them to pay the plaintiff $365 60 ón a policy of insurance issued by them to the commercial firm of Joseph H. Taboury & Co., for $4000 on their “merchandise, being stock in trade and on commissions contained in brick store situated on Front street, No. 27, and running back to Fulton street, No. 28.” The plaintiff joins in the appeal and. prays that the judgment be increased to $731, the amount prayed for in the petition.

About four months before the fire occurred Joseph H. Taboury retired from the firm of Joseph H. Taboury & Co., and dissolved his copartnership with the plaintiff, and it was stipulated in the act of dissolution that the said Antonio Dermani was to take the entire stock of merchandise belonging to said firm, together with the lease of the storebouse occupied by them, on the following terms and conditions: “The said Antonio Dermani promises and binds himself to pay all the debts and liabilities of said firm without exception, amounting to $3170 09.” * * * He also binds himself to pay the rent of said store when due, and also to pay Joseph H. Taboury the sum of $725, $362 thereof in ■cash, and the balance in thirty days. He was also authorized to collect all the claims and liquidate the affairs of the partnership.

If the partnership had continued there would be no question as to ■the liability of the defendants for the amount claimed. But in the ■contract ot insurance we find the following clause: “ This policy is ■¡not assignable unless by consent of this corporation, manifested in writing, and in ease of any transfer, either by sale or otherwise, without such consent, this policy shall from thenceforth be void and of no «effect.”

Under this prohibition the policy could not be transferred to a third party without the written consent of the insurers, so as to bind the latter or continue the risks. The question, however, is, does this prohibition apply to the assignment ot the interests of one partner to the «other? Was it the understanding of the parties that the plaintiff ■could not buy out his partner and continue the business, without the ■consent, of the defendants, on pain of forfeiting the policy ? The prohibitory clause must be construed strictly. And if its application to the case before us be doubtiul, the doubt must be construed against the defendants, the obligors in the contract of insurance. It is true, the clause expressly prohibits the transfer, by sale or otherwise, of the policy; but it does not expressly prohibit a change of interests among the partners, nor does it expressly prohibit the assignment of the interests of one partner to the other.

If the defendants had intended to place such a limitation upon the rights of the assured, the intention should have been expressed in the instrument, and not left to inference; because a prohibitory clause can not be extended by implication. Suppose Ta'boury had died, bequeathing his interests to his partner, the plaintiff, would that avoid the policy? Would the very purpose and object of the insurance be defeated simply because one of the partners in the course of nature should die, and his interest in the policy be transferred by succession to his heir or heirs ? Surely not. Because such a transfer is not within the meaning of the prohibitory clause; and because it would be absurd to suppose the parties intended the conditional obligation of the defendants to perish by the death of one of the assured, an occurrence not within their power to prevent.

In the contract of insurance, like every other contract, it is the intention of the parties that must be considered. And in the instrument before ns we find nothing to warrant the conclusion that the plaintiff forfeited the policy, by accepting the assignment of his partner’s interest in the business, without the written consent of the defendants. In the course of business partners often become dissatisfied and change the firm by one partner transferring his interest to the other, as was ■done in this case. This occurrence is so common that the parties are presumed to have contracted knowing it might arise during the period ■of the insurance j and if it was desirable to put a limitation upon the Tight of the assured in this respect, a stipulation to that effect should have been inserted in the instrument.

By the assignment in question, no new party is introduced into the ■contract whom the defendants might not be willing to trust. In issuing the policy to Joseph H. Taboury & Co. they virtually declared the trustworthiness of each of the partners. So therefore it can not be objected that by virtue of the assignment to plaintiff the defendants were forced to insure a person they had not consented to trust. 16 Barbour, S. C. JR.; 512; 32 N. Y. 406 j 13 N. Y. 412.

The other question is sufficiently answered in the written opinion of the judge a quo.

It is clearly proved that the plaintiff has sustained the loss complained of in the petition, and he should recover the amount prayed-for.

It is therefore ordered that the judgment appealed from be amended «o that it will amount to seven hundred and thirty-one dollars, and as thus amended that it be affirmed with costs.


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    No. 4794.
    State of Louisiana v. Henry Gibson.
    The indictment for perjury in this case is fatally defective. It does not charge that the question which the defendant is alleged to have answered falsely was material to the case then being examined by the grand jury. It does not set forth the substance of the offense; nor charge that the defendant willfully made oath to a statement of material fact,. which statement was false.
    Appeal from the Ninth Judicial District Court, .parish of Natchitoches. Orsborn, J.
    Criminal case. J. Pierson, for defendant and appellant. J. Bossier, District Attorney pro tern., for the State, appellee. *
   Wyly, J.

The defendant having been convicted of perjury appeals from the judgment sentencing him to hard labor for five years in the penitentiary.

The indictment charges: That Henry Gibson, late of the parish_ aforesaid, on the fourteenth day of August, 1873, with force,and arms, in the parish, district, and State aforesaid, and within the jurisdiction of the Ninth Judicial District Court, while under oath as a witness before the grand jury, the oath requii ed by law having been duly administered by J. A. Ducourneau, foreman of the grand jury, who had authority by law to administer said oath, and said Henry Gibson while so under oath and being questioned on certain matters under investigation in the case of the State v. Wheeler, stated falsely while so under oath, that he knew nothing about the hauling of any cotton from the warehouse of Belzare Slorens on or about the ninth day of November, 1872, and so the grand jury aforesaid, upon their oath aforesaid, do present that the said Henry Gibson, a witness before the grand jury as aforesaid, the foreman, J. A. Ducourneau, having sufficient authority to administer said oath, said Henry Gibson did in manner and form aforesaid, then and there commit willful and corrupt perjury contrary to the form,” etc.

This indictment is fatally defective. It does not charge that the question which the defendant is alleged to have answered falsely was-material to the case then being examined by the grand jury. It does not set forth the substance of the offense, nor chai'ge that the defendant williully made oath to a statement of material fact, which statement was false. Archibold, Criminal Pleading, vol. 3 page 592-12.

The motion in arrest of judgment should therefore be maintained.

It is therefore ordered that the judgment against the defendant be annulled and reversed, that the indictment herein be set aside.


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    No. 2961.
    Geo. W. Campbell v. C. A. Miltenberger.
    The plaintiff knew, as a chemist, that his iron fence, for which he had contracted with defendant, was joined together with material which would necessarily go to ruin, and he-saw the ruin commencing within a year after the work was completed. It was then that he should have compelled the defendant to do his work in a proper manner.
    It is not sufficient that plaintiff should have repeatedly called the defendant’s attention to the bad condition of the fence; he should, as he could, have forced him to a compliance-with his contract, and should not have waited seyen yeat s to claim, as damages, a greater amount than the fence originally cost. He is only entitled to recover irom the defendant the amount which it would have cost to put the fence in a proper condition when it was first discovered that the material used was not suitable*for the purposes for which it was. intended. *
    'The prescription of one year is not applicable to this case. It applies only to cases arising-from damages caused by the commission of an offense or quasi offense.
    Appeal from the Fifth District Court, parish of Orleans. Gullom,, J.

      Randolph, Singleton & Browne, for defendant and appellant. R. M. Marr & M. A. Route, for plaintiff and appellee.
   Morgan, J.

Plaintiff contracted with the defendant to build him an iron fence about his dwelling and premises. The fence was built afea cost of a little over $1000. It was erected in 1861.

This suit was instituted in January, 1868. Its object is to recover from the defendant twelve hundred dollars as damages caused by what the plaintiff alleges to be the defective and improper construction of the fence. The trouble seems to be that the top and bottom bars were-put on with sulphur, which, coming in contact with the air, forms sulphate of iron, and destroys the rods. Plaintiff says they should have-been put on with lead, and this seems to be the opinion of the witnesses who testified on the trial of the cause. The fence was put up while the plaintiff was absent, but he returned shortly afterward, and he says that it was about a year after the work was done that he observed the decay. He is a physician, and, as he says, “necessarily-acquainted with chemistry,” and he says that the formation of the' sulph'ate of iron is a necessary consequence of the sulphur and iron having been in contact with dampness ; it is impossible to place iron in contact with sulphur without forming sulphate of iron in dampness.” He therefore knew, as a chemist, that his fence was joined together with material which would necessarily go to ruin, and he saw the ruin commencing within a year after the work was completed. It was them he should have made his complaint, and compelled the defendant to do his work in a proper manner. It could have been repaired at an expense of some two hundred dollars. He says he repeatedly called the defendant’s attention to the condition of the fence, but this was not sufficient; he should, as he could, have forced him to a compliance with his contract. We think he can not be permitted to use the fence for seven years and then call upon the defendant for an amount of damages greater than the fence originally cost, and besides retain in his possession the materials of which it is made, worth, as scrap iron, some $380. But he is entitled to something. It is contended on the part of the defendant that he used the material commonly employed in putting up iron fences. This may be so in some climates, but not in this one. It was an experiment here and it did not succeed, and the defendant knew it had failed in time to make it perfect. He should have done so. He pleads the prescription of one year, relying upon article 2295 C. C., which provides that “every person is responsible for the damage he occasions, not merely by his acts, but by his negligence,, his imprudence, or his want of skill. ” This article governs cases arising from damages caused by the commission of an offense or of a quasi offense, and as ti.e present action is not based upon the one or the other, it does not apply.

We think the plaintiff is entitled to recover from the defendant the amount which it would have cost to put the fence in a proper condition. when it was first discovered that the material used was not suitable for the purposes for which it was intended, say two hundred dollars.

It is therefore ordered adjudged and decreed that the judgment appealed from be amended by reducing the amount allowed to two hundred dollars with legal interest from judicial demand. Appellant to pay the costs in the district court; those of this court to be paid by appellee, and that as thus amended the judgment of the district ■court be affirmed.

Rehearing refused.


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    No. 3003.
    A. C. Denouvion v. Rebecca A. McNight — W. C. Harrison, garnishee.
    -A rule was taken by plaintiff on the garnishee in this case to show cause why he should not pay a certain judgment against defendant, because he had in his possession, npthwitkstanding his negative answer which was alleged to bo false, property, rights and money of defendant to pay said judgment, and the garnishee on the day named for the trial of the rule, excepted to it on the ground that, being a new suit against him, it could not be tried in vacation. The exception was overruled, and the garnishee filed an answer in which he prayed for a jury. The exception should have been maintained; the issues presented were such as should have been submitted, if desired, to a jury.
    Appeal from the Sixth District Court, parish of Orleans. Cooley J.

      Oha/rcet & Duplantier, for plaintiff and appellee. Randolph, ¿Singleton & Browne, for garnishee and appellant.
   Howell, J.

The plaintiff, having obtained judgment for $8964 76f, with interest against the defendant individually and as tutrix, issued garnishment process and propounded the usual interrogatories to Wm. ■€. Harrison as garnishee, who answered each interrogatory in the negative, whereupon plaintiff took a rule on him to show cause, on a ■d.ay named, why he should not be condemued to pay the amount of «aid judgment; first, because his answers are neither categorical nor true, but false, evasive and fraudulent and calculated to screen the property of defendant from the pursuit of plaintiff; and second, because at the date of the service on the garnishee, he was the agent of defendant individually and as tutrix, and had and has now under his control and in his possession property, rights, money, etc., of defendant sufficient to pay said judgment. On the day nanled the .garnishee excepted to the trial of the rule on the grounds, that, being ■a new suit against him, it could not be tried in vacation. The exception was overruled and the garnishee filed an answer in which he prayed for a jury and he deposited the jury fee. The jury was refused, the trial proceeded and the rule was made absolute, condemning the garnishee to pay $7000, and he has appealed.

Under the ruling in the case of Hernandez v. James, 23 An. 483, the exception should have been maintained; the issues presented are such as should be submitted, if desired, to a jury.

It is therefore ordered that the judgment appealed from be reversed, and that this cause be remanded to be proceeded in according to law. Plaintiff and appellee to pay costs.


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    No. 4811.
    State of Louisiana v. Gaetano Rosa and Rosa Rosa.
    "Where the bill of exceptions was to tbe putting of leading questions by tbe Attorney General fco one of tbe witnesses under the pretense that the person testifying was an unwilling witness, and without having first propounded preliminary questions to the witness, and without a refusal by the witness to answer questions propounded to her in legal form on the examination in chief, which was permitted by the court, and all the leading questions were answered by the witness; and where the judge a quo subjoined to this statement in the bill of exceptions his own statement why he had permitted this course;
    Held — That the circumstances which induced the judge a quo to permit the mode of interrogation used by the Attorney General constitute matter of fact which it is not necessary to examine, as upon the bill of exceptions the court thinks the ruling correct.
    Where the exception was to the refusal of the judge a quo to send the jury back for further deliberation, after the jury had returned a verdict of guilty against the defendant Gaetano Rosa accompanied with the recommendation of mercy — the request being predicated upon the declaration of the foreman of the jury that, in rendering the verdict with recommendation to mercy, it was expected that the court might be enabled to inflict a milder sentence;
    Held — That the exception is not well founded and must be overruled.
    The court a qtta, decided correctly that the jury was sworn to biing in a verdict, and that the recommendation to clemency was mere surplusage.
    Appeal from tbe First District Court, parish of Orleans. Abell, J. Criminal case.

      A. P. Field, Attorney General, for tbe State. D. M. 0. Hughes, for defendants and appellants.
   Taliaferro, J.

Tbe defendants having been indicted and tried for the crime of arson, one of them, Geatano Eosa, was convicted and sentenced to hard labor in the penitentiary during his natural life. From this judgment he has appealed. The other defendant, Eosa Eosa, was acquitted.

We are furnished with no brief in this case, nor is there a statement of facts presented. We find, however, two bills of exceptions. The first is to the putting of leading questions by the Attorney General to one of the witnesses, under the pretense that the person testifying was an unwilling witness, and without having first propounded preliminary questions to the . witness, and without a refusal by the witness to answer questions propounded to her in legal form on the examination in chief, which irregular and illegal course was permitted by the court, and all the leading questions were answered by the witness. The court subjoins to this statement in the bill of exceptions that the witness had failed to obey the summons of the court and eluded the officers of the court aided by the police for several days, causing- one continuance of the case. That when brought into court by attachment and placed upon the stand she hesitated to testify, and when she did, her answers were evasive and for the purpose of contradicting and covering- up the testimony given before the recorder; that the demeanor of the witness on the stand satisfied him that she was an unwilling witness or in the interests of the defendants.

The circumstances which induced the judge a quo to permit the mode of interrogation used by the Attorney General, constitute matter of fact which it is not necessary to examine, as from the bill of exceptions, we think the ruling correct. The other bill of exceptions is to the refusal of the judge to send the jury back for further deliberation, after the jury had returned a verdict of guilty against the defendant Gaetano Rosa accompanied with the recommendation of mercy, the request to send back the jury, for further deliberations being predicated upon the declaration of the foreman of the jury that in rendering the verdict with recommendation to mercy, the court might be enabled to inflict a milder sentence.

The court sustained the objections of the Attorney General to such a course, and decided correctly, we think, that the jury was sworn ta bring in a verdict of guilty or not guilty, and that the recommendation to clemency was mere surplusage, founding its decision on the case of the State v. Bradley, 6 An. 555.

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


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    No. 4406.
    James J. O’Hara v. Succession of John Davidson.
    Tlie apjieal in this case must be dismissed, because the thing demanded is a sum of money less than five hundred dollars, although the appellant contends that the court has jurisdiction, on the ground that the demand grows out of a contract between the plaintiff and the city of New Orleans for grading and shelling along street, costing several thousand dollars, and that the validity of the contract is involved.
    The obligation of the defendant sought to be enforced involves only the sum of two hundred and sixty-seven dollars and seventy seven cents. To this extent only the contract in question concerns him. The inquiry here is not as to the obligations of other front proprietors.
    Appeal from the Second District Court, parish of Orleans, Pwvigneaud, J.

      8. P. Plano, for plaintiff and appellee. Ogden & Hillt for defendant and appellant.
   Wyly, J.

This is a suit for two hundred and sixty-seven dollars and seventy-seven cents for half the cost of a shell road constructed in front of defendant’s property on Locust street by the plaintiff, under a contract with the city of New Orleans, passed, before Andrew Hero, Jr., on the eighth of June, 1872.

The plaintiff, the appellee herein, moves to dismiss the appeal because :

First — This court is without jurisdiction, the matter in dispute being less than five hundred dollars.

¿Second — The bond is insufficient for a suspensive appeal.

On the first ground we think “the appeal must be dismissed, because the thing demanded is a sum of money less than five hundred dollars. The appellant, however, contends that the court has jurisdiction, because the demand grows out of a contract between the plaintiff and the city of New Orleans for grading and shelling a long street, costing several thousand dollars, and the validity of that contract is involved.

The obligation of the defendant sought to be enforced involves only the sum of two hundred and sixty-seven dollars and seventy-seven cents. To this extent only the contract in question concerns him. Whether the obligation of the defendant arises out of the same instrument that several obligations of other persons arise, or whether it springs from a separate contract, is immaterial. The inquiry here is not as to the obligations of other front proprietors. For aught that appears in the record they all may be discharged.

The question is, what is the amount involved in the legal obligation sought to be enforced against the defendant ? It is a sum of money less than five hundred dollars.

In Rooney v. Brown, 21 An. 51, the question was whether the defendant was bound to pay four hundred and twenty-one dollars and sixty-three cents, for curbing and gutter built in front of his property in the city of Jefferson under a contract with the city adjudicated to the plaintiff pursuant to an ordinance; and the suit was dismissed because the amount in dispute was less than five hundred dollars. Doubtless the amount of the contract in that case between the plaintiff and the city was largely over five hundred ' dollars; but the obligation of the defendant arising by operation of law, in view of that contract, was less than that amount.

In this case the contract between the plaintiff and the city involved several thousand dollars, and it produced a conventional obligation against the latter for an amount doubtless exceeding five hundred dollars. But the obligation sought to be enforced against the defendant is not a conventional obligation. The defendant was not a party to the instrument. It is an obligation arising by operation of law, in view of the adjudication, the contract and the construction of the work in front of defendant’s property on Locust street.

The case of Williams v. Vance 2 An. 909, is not in point. There the defendant was sued on a note for two hundred and forty-seven dollars and fifty cents, being one of a series given to the plaintiff for a tract of land. He pleaded failure of consideration, and that he had been deceived and defrauded by the plaintiff in the contract of sale. He prayed for judgment in his favor upon the note sued upon, and for a decree that the other notes be returned and the contract rescinded. There the defendant demanded the rescission of the sale, and his interest in that contract largely exceeded the amount necessary for the appellate jurisdiction of this court.

It is therefore ordered that the appeal herein be dismissed with costs.


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    No. 3023.
    C. J. O’Hara v. N. Schwab et al.
    Potlioff & Knight instituted a suit against Hill, the drawer of a note, obtained judgment,, issued execution, and on the judgment not being satisfied, sued O’Hara the indorser, who, after judgment against him, paid the amount thereof. The present suit is brought by O’Hara against the sheriff and his sureties to make him and them responsible for not having collected the amount of Potthoff & Knight’s judgment against Hall, alleging various acts of omission and commission amounting to malfeasance and nonfeasance in office.
    The error in this case lies in the assumption that there was any subrogation in the judgment of Potthoff & Knight against O’Hara, to any right which Potthoff & Knight had against Schwab and his sureties by reason of any neglect, if neglect there was, in executing'the fien facias which had been placed in his hands. The sheriff may have been responsible to them, but he was not responsible to O’Hara, who was no party to the suit from which execution issued.
    Therefore the conduct of the sheriff in the case of Potthoff & Knight v. Hill can not give rise to any action against him and his sureties in the case of Potthoff & Knight against O’Hara.
    Appeal from the Second Judicial District of Jefferson. Pardee, J.

      Billings <& Hughes, for plaintiff and appellee. Haiv-Mns é Tharp, Owvningham and J. J. Boman, for defendants and appellants.
   Morgan, J.

Potthoff & Knight owned a note for seven hundred and twenty-four dollars, drawn by S. L. Hill to his own order and indorsed by C. J. O’Hara. The note not having been paid at maturity,. Potthoff & Knight sued Hill, in February, 1868, and obtained judgment against him. Execution issued thereon, and property,.both real and personal, said to belong to Hill, was seized; but the property does not appear to have been sold.

O’Hara, the indorser on the note, was sued in New Orleans on the fourteenth April, 1869. He answered that the sheriff of Jefferson had seized real and personal property belonging to Hill sufficient to satisfy the judgment which.had been rendered against him; that thereafter Hill paid one hundred dollars, and gave his notes payable in installments at from two to eight months for the balance, and that thereupon Hill was granted á delay and stay of proceedings, and accepted the notes as payment and discharge of the original note, which operated his complete and final release and discharge from any liability. Judgment was rendered against him. It was satisfied.

This suit is instituted against Schawb and his sureties on his bond to-make him and them responsible for not haying collected the amount of Potthoff & Knight’s judgment against Hill, alleging various acts of omission and commission by which the sheriff made himself responsible, and as his sureties are bound with him for his malfeasance and nonfeasance in office, he asks a judgment against them for the amount he has been compelled to pay. There was a decree in his favor and the defendants have appealed.

The error lies in the assumption that there was any subrogation in the judgment of Potthoff & Knight against O’Hara, to any right which Potthoff & Knight had against Schwab and his sureties by reason of any neglect of his, if neglect there was, in executing the .fieri facia# which had been placed in his hands. The sheriff may have been responsible to them, but he was not responsible to O’Hara who was no-party to the suit from which execution issued. Potthoff & Knight controlled the judgment which they had obtained against Hill as well as the fieri fiadas-, they could have let the first lie dormant or have caused'the second to be returned, or they could have ignored the principal altogether and sued the indorser primarily, for he was responsible without regard to the maker of the note.

Therefore, the conduct of the sheriff in the case of Potthoff & Knight-v. Hill, can not give rise to any action against him and his sureties in the case of Potthoff & Knight against O’Hara.

It is therefore ordered, adjudged and decreed, that the judgment'of the district court be avoided, annulled and reversed, and that there be judgment in favor of the defendants with costs in both courts.


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    No. 4989.
    Lapene & Ferre v. Edward Meegel ; John H. McKee v. Edward Meegel — Consolidated with interventions and third oppositions of Greve, Wilderman et als.
    The recording of a privilege too late, is equivalent to not recording it at all, so far as the seizing creditors are concerned; and recording it after the property upon which, alone it <can be executed has been seized and taken possession of by the sheriff and thus put away from the control of the defendant, does not affect the seizing creditor’s rights.
    Appeal from the Fifteenth Judicial District Court, parish of Lafourche. Beattie, J.

      J. 8. Goode, for plaintiffs and appellees. JTennard, Howe & Prentiss and B. W. Blalce, for appellants.
   Morgan, J.

Plaintiffs, judgment creditors of defendant, seized under fieri facias certain sugars and molasses, portion of the crop of 1873, the sugar and molasses being at the time of seizure in defendant’s sugarhouse. The seizure was made on the thirteenth November, 3873. The sugar and molasses were sold, and the contest now is between plaintiffs and third opponents, as to whom the proceeds shall go.

Greve & Wilderman claim a privilege on the proceeds on the ground that they are commission merchants, and that they made the advances and. iurnished the supplies which were necessary to enable the defendant to make the crop.

Nelson and others claim the privilege of laborers who cultivated and took off the crop.

A motion has been made to dismiss the appeal in so far as Nelson and his co-laborers are concerned, because his and their individual -claim does not exceed five hundred dollars. But the aggregate amount of their claims greatly exceeds that sum. The fund, too, to be distributed, exceeds that amount. We think the motion to dismiss should be denied.

Greve & Wilderman allege that defendant’s indebtedness to them was recorded on the seventeenth November, 1873.

The pay roll showing the respective amounts due to Nelson and others was recorded on the fourteenth November, 1873.

The seizure, under plaintiffs’ fieri facias was made, as we have seen on the thirteenth November, 1873.

In the case of White v. Bird, 23 An. 270, where the sugar and molasses made on the plantation of Bird having been seized, and where Thibaut, a commission merchant, filed a third opposition, alleging that his claim for supplies furnished for the use of the plantation was a privileged debt, it was said “ the account of the third opponent has not been recorded. He can not, therefore, assert any privilege so as to affect the rights of the seizing creditors.”

In tlie case of Loeb v. Blum, 25 An. 232, it was held “as between Spor, the consignee, and Loeb & Co., the latter, as seizing creditors, are to be paid first. Assuming that Spor has the privilege which he •claims, but with regard to which we do not consider it necessary to ■express any opinion, still it was not recorded prior to Loeb’s seizure, and can not, therefore, prevail against it.” We think that the re•cording of a privilege too late, is equivalent to Dot recording it all, so far as seizing creditors are concerned, and that recording it after the property upon which alone it can be executed has been seized and taken possession of by the sheriff, and thus put away from the control ■of the defendant, does not affect the seizing creditors’ rights.

Judgment affirmed.


author: Taliaferro, J. Howell, J.

text:
    No. 4629.
    Citizens’ Bank of Louisiana v. A. Dubuclet, State Treasurer.
    TClie Citizens’ Bank obtained, by mandamus proceeding against tbe State Treasurer, a judgment in tlie Superior District Court ordering him to pay the bank $200,000, and the plaintiff now prays that an injunction issue to restrain the Treasurer from paying any warrant or warrants out of the general fund, until he shall have paid the petitioner the said sum of $200,000.
    TThe position taken as to the right to question in this suit the validity of plaintiff's claim, which is based on a final judgment, is correct; but the remedy sought by injunction can not be accorded. This is not the mode of enforcing or executing a judgment in a man' dainus suit.
    Appel from the Superior District Court, parish of Orleans. Raw-kins. J.

      A. Pitot, Finney & Miller, for plaintiff and appellant. A. P. Field, Attorney General, J. Q. A. Fellows & Whitaker, for defendant and appellee.
   Taliaferro, J.

The Citizens’ Bank alleges that in July, 1872, it had obtained by mandamus proceeding against the State Treasurer a judgment of the Eighth District Court of New Orleans, ordering him to pay the bank $200,000, with eight per cent, interest from twenty-seventh February, 1872, being the amount of State warrants issued in its favor in payment of an equal sum loaned to the State to pay the per diem of the members of the Legislature., which warrants were issued under authority of the statute No. 12, approved twenty-sixth February, 1872, entitled “An act to amend an act entitled an act defining the distances from the domiciles of members, etc., and making an appropriation to defray the expeuses of the General Assembly and to repeal act No. 52 oí 1869.” The act of twenty-sixth February, 1872, the plaintiff shows, provides “that warrants shall be paid out of any money in the treasury to the general fund, and out of the first money which shall be paid* into the treasury to the credit of the gene— ral fund, until all the warrants issued under the appropriation made in. this act shall have been paid.” The plaintiff complains that notwithstanding the judgment so obtained against the Treasurer, he has failed) and refused to pay the bank any money. The plaintiff alleges that large amounts have been paid into the treasury, and other warrants-paid by the Treasurer, to the great injury of the plaintiff. The plaintiff prayed that an injunction issue to restrain the Treasurer from, paying any warrant or warrants out of the general fund until he shall have paid the petitioner the said sum of $200,000, with interest correspondingly with the amount paid to the district judges since the-rendition of the judgment in favor of plaintiff on the third July, 1872, and not to pay any judicial salary for the future without paying to-petitioner its proportion of the funds in the treasury upon an equal footing and rank with the judges.

There was an order rendered to show cause, and a preliminary-restraining order issued until the rule nisi should be tried. Several interventions were filed offering the prayer of the petition to injoin..the Treasurer, as asked by the plaintiff. The Attorney General, on behalf of the State and the Treasurer, excepted that act No. 12 of 1872,. and especially the second section of the act, is unconstitutional and!, void, inasmuch as the subject matter of that section is not expressed!, in the title; that the duties of the Treasurer, as required of him in-the pleadings, are not merely ministerial, but of an executive character, and not such as a court can take cognizance of; that for his acts-he is responsible alone to the Legislature for any failure in the performance of his duties or for any misfeasance in office, and to the-parties injured in damages; that the petition and interventions set-forth no cause of action; that neither law nor equity authorizes any warrant on the general fund to be paid in preference to any other warrant on the same fund, only that each should be paid in the order in. which they were drawn, the first warrant or that of oldest date to be paid first out of any moneys which are in or may first come into the-treasury.

On these issues the case was tried. The injunction was refused and! the interventions dismissed. From this judgment the plaintiff, the-Citizens’ Bank, alone has taken the appeal.

It seems that the title to the act of twenty-sixth of February, 1872,. does not express all its objects in its title. It is “An act to amend anací entitled an act defining the distances from the domiciles of the members of the General Assembly to the State House, fixing the mode of ascertaining the per diem of members of the General Assembly for the time engaged in going to and returning from the State House and their mileage to be paid, and the number of employes of the General Assembly and their compensation, and defining their duties, and making an appropriation to defray the expenses of the General Assembly, and to repeal'act No. 52 of 1869.”

One of the objects, and the primary one, of this act is to borrow $200,000, whicli the second section of the act. authorizes the Governor to do. We think it is in repugnance with article 114 of the constitution of the State, which declares that “ every law shall express its object or objects in its title.” The act does not express the purpose to borrow $200,000.

The injunction sought for by the plaintiff would ■ operate an interference with and a control of the functions of the State Treasurer nob warranted by law. The act required of him is not merely ministerial. 17 An. 31Í; 15 An. 334; 21 An. 352. We think the decree of the lower-court correct.

It is therefore ordered that the judgment of the Superior District Court be affirmed with costs.

On Rehearing.

Howell, J.

Counsel for the bank press upon our attention the fact that the correctness and recognition of the claim herein against the State was definitively settled by a judgment of the Eighth District Court for the parish of Orleans, on the third of July, 1872, in the mandamus suit against the State Treasurer, represented therein by the Attorney General, who at the same time represented the State, and contend that as the said judgment is final, the unconstitutionality of the act authorizing the debt can not be raised in ' this proceeding, the object of which is only to injoin the Treasurer from paying any one until he shall have complied with the judgment in the said mandamus-suit by paying the plaintiff herein.

This position as to the right to question in this suit the validity of plaintiff’s claim is correct, but the remedy sought by injunction cannot be accorded. This is not the mode of enforcing or executing a, judgment in a mandamus suit.

The injunction was properly disallowed in the lower court; but as the judgment in favor of the bank in the mandamus proceeding is final and conclusive as to the existence and legality of the claim, we erred in making the constitutional question the reason for our affirmance of the said decree on the injunction. And we deem it unnecessary to express an opinion now upon the right of a court of justice to injoin the State Treasurer from paying certain parties to the prejudice of others, setting up an alleged legal preference.

For the reason herein given, it is ordered that our former decree affirming the judgment o'f the lower court remain undisturbed.


text:
    No. 4766.
    James Foulhouze v. Myra Clark Gaines
    The plaintiff, a judgment creditor of defendant, Mrs. Gaines, issued execution and instituted garnishment process against the city of New Orleans, the latter being a judgment debtor of Mrs. Gaines by virtu© of a judgment and decree of the United States Circuit , Court.
    The plaintiff moved that the city of New Orleans and other garnishees show cause why the said city of New Orleans should not be condemned and ordered to pay to the sheriff the amount oí plaintiff’s judgment and fieri facias, on the ground that by their answers it was shown that the city had sufficient funds to pay.
    On the trial, a bill oí exceptions was taken by the plaintiff to the ruling of the court sustaining objections to the introduction in evidence by plaintiff o1 a certified copy oí the fieri facias issued in the case of Mrs. Gaines v. The City of New Orleans in the United States Circuit Court, together with the returns on the fieri facias and to all evidence whatever in support of the averments made in the rule.
    The objections were, that plaintiff could not proceed summarily by rule against said garnishees ; that they were entitled to trial by jury; that the granting of the order asked for would interfere with the exclusive jurisdiction of the United States Circuit Court and bring the State court in conflict with it.
    The court a qua erred. If entitled to a jury, the garnishee, city of New Orleans, went into the trial without praying for one. She was a mere stakeholder in this case without interest on her part as to whom payment should bo made.
    The evidence erroneously rejected was intended to show that the fieri facias held by the United States Marshal was returned into court unsatisfied in whole; that no property Twas found to seize, and that nothing was made on the writ. The Circuit Court of the .United States had exercised its authority in the rendition of the judgment. That judgment was the property of Mrs. Gaines, and like any other property she owned, was lia- ' ble to seizure by her judgment creditors. It is impossible therefore to perceive how a . 'Conflict of jurisdiction could arise from the proceedings on garnishment.
    APPÉAL from the Fourth Distiict Court, parish of Orleans. Lynch, J.

      JE. Howard McGaléb, for plaintiff and appellant. Lacey, city ■■attorney, and Walsh, assistant city attorney, for the city of New Orleans. Fellows (É Mills, for S. M. Todd; Clarice, Bayne d¿ Benshaw, ior A1 Schreiber, garnishees.
   Taliaferro, J.

The plaintiff having obtained judgment against the defendant for the sum of ten thousand dollars, with legal interest thereon from the fourteenth of September, 187), issued execution and anstituted garnishment process against the city ot New Orleans, the latter'being a judgment debtor of Mrs. Gaines for $125,266, as fixed Ty a judgment and decree of the United States Circuit Court. A. rSdirieber, S. M. Todd, and S. B. Packard, United States Marshal, were ¡also cited in garnishment. The city of New Orleans answered, that at •the time of seizure and answer, it was indebted to Myra Clark Gaines inthe sum of $125,266 79; that the judgment has been seized by sundry persons; that the following' seizures are recorded in the office of the Administrator of Public Accounts, viz: James Emott v. Myra Clark Gaines, in October, April and August, 1873; that the said judgement in favor of Mrs. Gaines and against the city of New Orleaus (as g>er notice from them dated twenty-fifth' November, 1872), had been assigned to A. Schrieber and S. M. Todd; that a seizure had been made in the suit of A. B. Magruder and J. V. Chilton, v. Mrs. Gaines, No. 25,359, of the docket of the Fourth District Court; that Rhoda E» White had given notice on the eleventh of April, 1873, to the city to retain for her fifteen- per cent, of the sum due to her by Mrs. Gaines-by virtue of an alleged mortgage. A. Schrieber answered that as-trustee, with S. M. Todd, there may at some future date be a balance-in his hands, subject to the order of Mrs. Gaines, of which the nature,, description and amount, if any, is unknown to respondent. S. M-Todd answered : I am one of the two trustees to whom was trans— ferrred and assigned on the twenty-fifth of November, 1872, a certain-! judgment in favor of Mrs. Gaines against the city of New Orleans for $125,266 79, and all moneys that may be collected or received thereon; to pay first, James Emott $40,000, with seven per cent, interest from the first of November, 1872; and after the same is satisfied, to pay the-residue to Mrs. Gaines or her order; that previous to the service of these interrogatories I had received and accepted orders from Mrs-Gaines to pay a portion of the proceeds of said judgment to other-parties; also claims of parties claiming privilege and garnishment to-satisfy judgments against Mrs. Gaines, in all amounting to $120,006» Should, however, the judgment against the city of New Orleans, with interest thereon, be paid in full into the hands of this respondent^ there will probably be left, after satisfying the claims above alluded, to, a sufficient sum to satisfy the writ of fieri facias issued in this case,, unless there should be attorneys’ liens and other claims having preference, of which respondent knows nothing. S. B. Packard, the United-, States Marshal, answered that he holds an execution in favor of Mrs-Gaines against the city of New Orleans for said sum of $125,266 79,. but-has made no seizure-under it; that claims have-been made against, said sum as follows: Race, Foster & Merrick, attorneys, for $10,000; A. Schrieber and S. M. Todd, trustees and assignees of the judgment; Rhoda C. White fifteen per cent. Schrieber, Todd and Packard, answered that they had received no moneys or property for and were im no manner indebted to Mrs. Gaines or her assigns of the judgment, or.by virtue of the trust or pledge in favor of Emott.

Upon these answers being made, the plaintiff proceeded by rule-against the city to show cause why it should not be condemned to pay the plaintiff’s demand. In support of the motion various grounds-, were stated. Among these the principal are: That by its answer® the city shows that it is indebted to defendant in a sum exceeding the-amount of plaintiff’s judgment; that the answers of Schrieber and! Todd show that the transfer to them is a mere trust, and that, for a. sum far less than the debt due to the defendant by the city, and if the; beneficiary, Emott, was paid, there would remain a balance of $85,000 due Mrs. Gaines.

That the answers disclose explicitly no other charge on the fund ex,*cept the sum due Emott, $40,000; that due Race, Foster & Merrick, $10,000, and a sum due Magruder & Chilton. That in regard to every •other claim‘against the'fund the answers are not categorical, but evasive and contradictory, and must be construed against the city. 'That beyond the amount due Emott, the transfer is a confessed simulation.

To this motion the city filed au exception, setting forth: That the present proceeding is not cognizable by the court under a rule or summary proceeding. In its answer the city contended: That Todd and Sehrieber, Magruder, Chilton and Rhoda E. White, whose claims would absorb the whole fund, and who assert a superior privilege, should be made parties to the rule, and prayed that they be made parties by service of the rule and answers.

On • trial of the rule the court ordered it to be discharged. The plaintiff has appealed.

A bill of exceptions was taken by the plaintiff to the ruling of the ■court sustaining objections to the introduction in evidence by the plaintiff of a certified copy of the ■fieri facias, issued in the case of Myra Clark Gaines v. The city of New Orleans, No. 2695, United States Circuir- Court, District of Louisiana, together with the returns on the fieri facias, and to all evidence whatever in support of the averments made in the rule. The objections were: That plaintiff could not proceed summ.arily against them by rule. That they were entitled to ¡trial by jury. That the granting of the order asked for would interfere with the exclusive jurisdiction of the United States Circuit Court and bring this court in conflict with it.

We think the court erred. The document annexed to the bill of exceptions shows that the fieri facias held by the United States Marshal was returned into court unsatisfied in whole; that no property was found to seize, and that nothing was made on the writ. We do mot perceive that a confliction of jurisdiction could arise from the proceedings in garnishment. The Circuit Court of the United States had exercised its authority in the rendition of the judgment. A fieri facias bad been issued and returned nulla bona. The judgment was the property of Mrs. Gaines, and, like any other property she owned, was liable to seizure by her judgment creditors. . If entitled to a jury, the city went into the trial without praying for one. She was a mere stakeholder in this case, without interest on her part to whom payment should be made.

We conclude that it is clear from the answers of all the garnishees /¡that over and above the amounts of well established claims to be satisfied out of the proceeds of Mrs. Gaines’ judgment, and which have ■priority over the plaintiff’s claim, there remains a sufficient sum to pay and acquit his demand, and that he has by his garnishment process ¡secured it. Code, of Practice, articles 246, 642.

It is therefore ordered, adjudged and decreed that the judgment of •¡the district court be annulled, avoided and reversed. It is further ordered that the plaintiff have and recover from the city of New Orleans ¡as garnishee the sum of $10,000, with legal interest thereon from the ¡fourteenth September, 1871, with costs in both courts. .

Rehearing refused.


text:
    No. 3074.
    Charles Zapata v. Honorine Cifreo and Eliza Bougere.
    "When ¡v noto is negotiable, it is competent for plaintiff, in his capacity of agont, to treat the instrument, as between himself and all other i.orsons except his principal, as his own. In this case the defendants have shown no equitable grounds of defense they were entitled to set up against the maker of the note.
    Appeal rom-.the Seventh District Court, parish of Orleans. Gollens, J.

      W. O. Denegre, for plaintiff aiid appellee. J3. Bermudez, for •¡defendants and appellants.
   Taliaferro, J.

On the fifteenth May, 1857, one B. Guignon executed a promissory note for $2000, due two years after date, and drawn payable to his own order and by him' indorsed. Its payment was ¡secured by special mortgage on property in New Orleans. This note became the property of Pierre Morrisof, who afterwards transferred it •to the plaintiff.

It seems ¡hat Guignon, the maker of the note, in a settlement with ¡the defendants after the death of their mother, whom Guignon had ¡married, transferred to them a number of lots and buildings, and in -«consideration thereof they obligated themselves to pay and discharge in the place of Guignon the note for $2000 with the interest thereon. The object of this suit is to enforce the payment of the note against ¡the defendants under their obligation to pay it. The plaintiffs pray judgment against them accordingly and that their right of mortgage be recognized, etc.

Honorine Cifreo, one of the defendants, assisted by her husband, «denies any indebtedness on her part in relation to the demand of the plaintiffs, and avers that by special act of agreement with Eliza Bou¡gere, the other defendant, the latter had obligated herself to pay the .aforesaid obligation and release Mrs. Cifreo; that all claims against •¡the succession of their mother, of which the note in question appears. to have been one, the said Mrs. Bougere had assumed to pay, and the respondent prayed that as to her the plaintiff’s demand be dismissed.

The other defendant put in a general denial, and specially denies that the plaintiff is the owner of the note sued upon, and avers that it is owned by Morrisot, who is dead; that his succession has not been opened and against which the-defendant has valid defenses. She-pleads the prescription of five years, and avers that any stipulations she may have made concerning the note were not intended for the owner thereof, but for the benefit of the original debtor to whose rights- and obligations defendant has succeeded. Judgment was rendered in. favor of plaintiff and- defendants have appealed.

The defense appears to be that Zapata, who sues, can not avail himself of the stipulation in favor of Morrisot unless he shows an assignment of the rights of Morrisot to the note and mortgage. Tiiat the plaintiff in a motion for a new trial styled himself as agent; that he can not provoke a judgment as-he has not disclosed the name of his principal. That Mrs. Bougere the principal defendant who was bound to pay the debt to Morrisot in place of G-uignon the original obligor, and in the same manner that he was bound, can no longer be held liable, as whatever stipulations she may have made since May 1857, the date of the note, having remained unaccepted, prescription has accrued in her favor as it evidently has in favor of Guignon the original obligor.

We think these pleas can not avail the defendant. The note is negotiable. It was competent for the plaintiff, as agent, to treat the instrument as between himself and all other persons except his principal, as his own. Story on Bills sec. 198. In the case of Banks v. Easton 3 N. S. 291, Judge Porter Said: “The blank indorsement makes a bill transferable by the indorsee and every subsequent holder by mere delivery, and so long as the indorsement continues in blank it makes the bill or note payable to bearer. It appears to us, therefore, that, whether plaintiff was the owner of the note sued on or not was a question with which the defendant had nothing to do, for by virtue of the blank indorsement the holder was entitled to recover from the defendant, if not as real owner at least as trustee for the person having the real interest. There are exceptions to the general rule where the defendant has equitable grounds of defense of which he apprehends an-attempt is made to deprive him by an assignment which is not bonafide, or when the note has been lost and the plaintiff can not account, how he came by it. But when no such obligations are made, the holder of the note is entitled to recover, and a judgment in his favor will form res judicata against any other person claiming an interest in the bill, for tiie indorsement in blank makes the note payable to bearer.’1

In the ease at bar the defendants have shown no equitable grounds of defense they were entitled to set up against the maker of the noté.

Nest, as to the plea of prescription. It is shown clearly that there was a complete recognition of the debt, and an assumption to pay it by the defendants on the eighth of February, 1864, four years and nine months after the maturity of the note. By public act on the seventeenth of January, 1867, already referred to, the defendants in an act of partition recognized this debt, and Mrs. Bougere obligated herself to pay it. Citation was served on her on the eighteenth of February 1870. The plea of prescription is therefore unavailable.

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

- Rehearing refused.


text:
    No. 4852.
    Succession of Caleb Whittington.
    The language of the notary in the graces verbal of a will, “that the said testator, being-illiterate, signs his mark,” does not meet the requirements of article 1579 O. C., which prescribes that this declaration must be made by the testator himself.
    In this instance, the testator has not declared that he knows not how to sign, nor has express-mention of that declaration been made in the will. His testament is therefore null and. void.
    Appeal from the Second District Court, parish of Orleans. Tissot, J.

      Honor <& Benedict, for plaintiff and appellant. Bandolph, Singleton <& Browne, for third opponents. Paul Théard, for the absent heirs, appellees.
   Ludeling, C. J.

Caleb Whittington died in November, 1872. He left what purported to be a nuncupative will by public act, by which Thomas Duffy was constituted his universal legatee. The probate and registry is opposed by the legal heirs. The district court declared the will null and void.

The objection urged against the validity of the will is that the testator, not having signed the will, the notary undertook to declare the cause of the non-signing. The language of the notary in the proces verbal of the will is, “the said testator, being illiterate, signs liis. mark,” — and that this does not .meet the requirements of article-1579. We think the objection fatal. Conceding that the word illiterate means that the testator did not know how to sign his name, would not help the universal legatee’s case, for article 1579 requires this declaration to be dictated or made by the testator himself.

The article declares that “ this testament must be signed by the testator. If he declares that he knows not how, or is not able to signr ■express mention of his declaration, as also of the cause that hinders ■him from signing, must .be made in the act.”

The cases of Stafford v. Stafford, 12 La. 449, Shannon et al. v. Shannon’s executor, 16 An. 9, and Brand v. Baumgarden, 24 An. 628, do not support the views of the universal legatee.

The testator has not declared that he knows not how to sign, nor has express mention of that declaration been made in the will. The testament is therefore null and void. Marcadé, 4 vol., p. 22, edit. 1855.

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