author: Wylt, J.

text:
    No. 5721.
    State ex rel. W. Van Norden v. Judge of the Fifth District Court, Parish of Orleans.
    "When the suspensive appeal t)oncl was signed by Cox as agent for Palmer, if he had no authority to bind. Palmer, he certainly bound himself, and it is not shown that he is not solvent and good as a surety for the amount of the bond. Palmer has subsequently ratified his action in express terras. Therefore appellee has not been without a surety personally good and sufficient to protect his interest pending the appeal. He has no cause to complain, and the judge co quo erred in setting aside the appeal.
    Application for a writ of prohibition against the Judge of the Fifth District Court, parish of Orleans.

      Mice & Whitaker, for relator. Huntington, for respondent.
   Wylt, J.

In the case of Henry Legendre v. W. Yan Norden et al., the defendants obtained an order of appeal, and on the fifteenth of February, 1875, filed a suspensive appeal bond, E. C. Palmer, p. p. M. S. Cox, signing as security. The authority of Cox to sign the bond for Palmer was questioned in a rule to set aside the appeal for want of a proper surety on the appeal bond. Thereupon Palmer filed the following affidavit: “My name is signed to the bond of appeal in this case by M. S. Cox. He holds my general and special power of attorney, though it may not cover the right to sign for me as surety. I, however, ratify and confirm his action in the premises, and adopt the signature of my name made by him, as if made by me. I had myself already signed a like bond to be filed in this suit, which had been mislaid, and I was absent from the State when it became necessary from lapse of time that the bond should be filed.”

The court maintained the rule and set aside the appeal. Thereupon appellants sought and obtained from this court tbe prohibition by which the ruling of the district judge is now brought up for review.

We think the judge erred. The bond was signed by M. S. Cox, as agent for E. C. Palmer. If he had no authority to bind Palmer he certainly bound himself, and it is not shown that he is not solvent and good as a surety for the amount of the bond, which is forty-four hundred dollars. He now incurs this responsibility no longer, because Palmer has, in express terms, ratified his action in the premises.

Appellee in the case stated, has not, therefore, been without a surety presumably good and sufficient to protect his interest pending the appeal; he has no cause to complain.

It is therefore ordered that the prohibition herein be made perpetual, Henry Legendre paying costs of this proceeding.


source: Caselaw Access Project

author: Ludeling, C. J.

license: Public Domain

text:
    No. 4079.
    Henry Bidwell v. C. Cavaroc and The Bank of New Orleans.
    In this suit for damages for slander of title, Cavaroc filed a general denial; the hank, for answer, asserted title in Itself, and by this answer the hank changed the suit into a petitory action in which it became plaintiff. Therefore it must succeed or fail on the strength of its own title. To this answer plaintiff pleaded the prescription of ten and thirty years.
    The hank has failed to prove a valid title in its favor. But if the hank had shown that it had acquired a valid title at the marshal’s sale, on which it relies, the plaintiff has acquired a valid title since then by prescription.
    The plaintiff held possession since Juno, 1859, under titles translative of property and apparently good, till the institution of this suit in July, 1870. More than ten years had elapsed from the commencement of possession, and there is nothing in the record to show that it -was not in good faith. Therefore the plea of prescription must he maintained.
    APPEAL from tbe Eighth District Court, parish of Orleans. Dibble, J.

      Koonts & Blliott, Randolph, Singleton <& Browne, for plaintiff and appellant. Albert Yoorhies, for defendant and appellee.
   Ludeling, C. J.

Tbe plaintiff sued the defendants for damages for slander of title. Tbe bank for answer asserted title in itself, and Cavaroc filed a general denial.

By this answer the bank changed the suit into a petitory action, in which it became plaintiff, and it must succeed or fail on the strength of its own title. To this answer (or petition) Bidwell pleaded the prescription oí ten and thirty years.

The record shows that in 1804 the Widow Collet owned the property in question. In that year she parted with her title; and it is contended by the bank that this case must be determined by deciding who was the transferee of the Widow Collet — Jean Maserat, or his wife, Marie Savant — as the adverse titles presented are claimed to be derived from them

This position of the bank is not correct, as it assumes that it holds a title derived from one of those parties, which is not admitted or proved, and it further assumes that a title by prescription has not been acquired .

The bank acquired its title at a probate sale of the estate of Christoval Toledano, on the seventh of May, 1870. C. Toledano, it is alleged, acquired from Laden Herman, assignee of Holmes & Mills, bankrupts, at public sale by the United States Marshal, on the twentieth June, 1842. Holmes & Mills bought from the heirs of Marie Savant, on the ninth of June, 1835. The heirs of Marie Savant were put in possession ol the property by a judgment of court in the suit of Widow Maserat (Marie Savaut) v. J. A. Mascey, tutor et al. Mascey was tutor of his child, Eosalie Matilde, to whom the property had been bequeathed by her grandmother in June, 1822. The title under which the minor held was an unbroken chain from twenty-fifth November, 1805, and under the judgment just mentioned the minor was dispossessed in 1835. In 1842 the said judgment was declared null and void for want of citation, and the said Eosalie Matilde Mascey was put in possession under a judgment of a court of competent jurisdiction, on the fifteenth June, 1842, a few days before the property was adjudicated by Herman, assignee, to Christoval Toledano.

Eosalie Matilde Mascey retained possession until eighteenth June, 1859, when she sold to Mrs. Belknap. Mrs. Belknap sold to one Sylvester, who sold to the plaintiff Bidwell.

Possession was never given to Toledano, and so far as this record shows, he never made an effort to get possession of the property; and in November, 1846, four years after the alleged sale to Toledano by the assignee of Holmes & Mills, the said assignee sued Matilde Eosalie Mascey for this property, claiming that it belonged then to the estate of said bankrupts, and that she was preventing him from selling the properly for the benefit of the creditors. This suit was dismissed on technical grounds; it is referred to only to show that long after the pretended sale to Toledano, his alleged vendor claimed the property as that of the estate represented by Mm. Even if the parol evidence that the price paid by Toledano had been returned by the assignee,, because he could not deliver the property to Toledano, be disregarded, still we are convinced by the following facts that the title to him was never completed: The judgment under which Marie Rosalie Mascey was dispossessed in 1835, was annulled in 1842, and she was restored; to her possession just before the marshal’s sale to Toledano. Toledano, the adjudicatee at that sale, was never put in possession of the property, and although he lived in the place where the property is situated, more than twenty years after the alleged sale to him, he never máde an effort to get possession of the property, or to assert title to.it, and about four years after the alleged sale, the assignee Herman, his vendor, sued for the property as already stated.

We think that the bank has failed to prove a valid title in its favor. But if the bank had shown that it had acquired a valid title at the marshal’s sale, the plaintiff has acquired a valid title since then by prescription.

It appears that in June, 1859, Marie R. Mascey sold this property to Mrs. Belknap, and Mrs. Belknap and her vendees held possession under titles translative of property and apparently good, till the institution of this suit in July, 1870. More than ten years had elapsed from the commencement of Mrs. Belknap’s possession, and there is nothing in the record to show that she and her vendees were not possessors in good faith. The plea of prescription should be maintained.

It is therefore ordered and adjudged that the judgment of the lower court be reversed and annulled, and that there be judgment in favor of Henry Bidwell, decreeing him to be the owner of the property described in the petition, and for costs.


author: TaliafbeRo, J.

text:
    No. 4121.
    John Wolf v. The City of New Orleans.
    All actions against the city of Kew Orleans, for work or labor done, either under a contract or for damages, or extra work, are prescribed unless commenced in one year from the time such, work is required to be performed, or such damages are alleged to have arisen.
    APPEAL from the Fourth District Court, parish of Orleans. Theard, Jury trial.

      Leovy & Monroe, for plaintiff and appellee. B. F. Jonas, city attorney, for defendant and appellant.
   TaliafbeRo, J.

The plaintiff entered into a written contract with the city for digging, widening, deepening and cleaning the draining canal known as St. Anthony’s canal, from Josephine to Humanity streets, according to the following specifications:

The canal to be dug so as to have a width of fifteen feet at tlie top and three feet at its bottom, and a depth of six feet. Tlve testimony shows that after considerable progress had been made in the execution of the work, Surgi, then city surveyor, staked off that part of the canal extending from Marigny canal to the specified limit of the plaintiff’s work, so as to give the St. Anthony’s canal, from the Marigny canal, a width of twenty feet instead of fifteen, specified in the contract. The plaintiff swears that he was induced to do the additional work required to give the canal twenty feet of width from Marigny canal, upon the assurance of Surgi that he would be paid for it. The plaintiff performed the additional work indicated by Surgi, but received payment only for the quantity of work specified in the contract. He applied afterwards by petition to the City Council, after the death of Surgi, to be paid for the additional labor, but his claim was finally rejected. He thereupon brought this suit claiming $892 50, with interest, as the value of the extra work. The city avers payment in full to the plaintiff of the cost of the work contracted for, denies that any authority was given to any person to contract on the part of the city for extra work on the canal, and denies that the city surveyor had any power or right to alter the contract and specifications. In an amended answer the prescription of ODe year is pleaded in bar of the plaintiff’s action.

The judgment of the court below, rendered on the verdict of a jury, was in favor of the plaintiff for the amount claimed, and defendant has appealed.

It is clear the plaintiff has not established any legal liability upon the city to pay his demand. If, however, any ever had existed it is now released by the effect of prescription.

All actions for the enforcement of any contract entered into with the corporation of the city of New Orleans for work and labor to be performed, and for the recovery of any damages alleged to have arisen in favor of the contractors for any breach thereof on the part of the said corporation, shall be prescribed if not instituted within one year after the expiration of the time within which such contract is required to be performed, or such damages are alleged to have arisen.” Revised Statutes, section 2822.

By the contract under which the city was bound, the plaintiff was obligated to commence the work ten days after the approval by the City Council of the adjudication of the contract to him. The approval of the adjudication by the City Council was made on the twenty-fourth of April, 1869. Citation was served on the defendant in the present action on the third day of December, 1870, more than eighteen months having intervened.

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


author: Taliaferro, J. Wyly, J.

text:
    No. 5307.
    R. K. Callender v. Golsan Brothers. Jackson & Manson, Warrantors and Intervenors.
    At the time of the discount of the note, which is the subject of the present controversy, Hunter, one of the firm of Callender & Hunter, according to the import of his own evidence, was utterly without authority to do so. He had no right to indorse and discount a note belonging to Callender, the plaintiff, and payable to his order, it matters not how much Callender might owe the late firm of Hunter & Callender; If Callender had given him verbal authority, as contended by defendants and intervenors, the authority was revoked before exercised. But, even without a revocation, Hunter had no authority to indorse and disoount the note in question.
    Authority to indorse and disoount a note for one purpose can not be extended to another.
    As Hunter had no title to the note, his indorsees acquired none, because they had notice of the want of authority in Hunter to indorse and negotiate it.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      S. N. Ogden, for plaintiff and appellee. T. Oilmore & Sons, and appellants. Ciarle, Bayne é Benshaw, for defendants and appellants.
   Taliaferro, J.

The plaintiff sues the defendants on a promissory note for the sum of $774 34. The intervenors claim to he the owners of the note and oppose the payment of it to the plaintiff. There was judgment in the court below in favor of the plaintiff and the intervenors have appealed. The defendants appear to be mere stakeholders in the controversy. Callender & Hunter were commercial partners doing business in New Orleans. Golsan Brothers in some transaction with Callender, not in any manner connected with the partnership business of Hunter & Callender, became indebted to Callender individually, and gave him two promissory notes each for the above sum ; one of the notes fell due twelfth January, 1873, and the other on the twelfth July following. The firm of Hunter & Callender, it appears, was pressed for money during the latter part of the year 1872, and both members of the firm being in England about that time, Callender according to his statement, instructed Hunter, who preceded him a short time in returning to New Orleans, to negotiate one of the notes (the one to become due on the first of January) and apply the proceeds to partnership purposes. Hunter negotiated both the notes to the intervenors. He states in his testimony that he was authorized to sell both the notes. The authorization to .sell was verbal. On the return of Callender to New Orleans, finding the notes were both negotiated to Jackson & Manson the intervenors, he notified Golsan Brothers not to pay the note last falling due, the one sued upon, to Jackson & Manson, claiming the ownership of the note himself. Golsan Brothers deposited the amount of the note in the Hibernia Bank when it became due for the benefit of the party legally entitled to it. The intervenors assume the position of holders for value before maturity, and without notice of equity between prior parties. Some evidence was introduced for the purpose of showing that the note was not acquired Iona fide by the intervenors. A witness stated that he heard a conversation in Hunter’s office between Hunter and Jackson, one of the intervenors, in which Hunter expressed an apprehension that Callender would sue him for a note, that Jackson said “ let him sue, we can keep him out of it for four years.”

It seems that the partnership between Hunter and Callender was dissolved in January, 1873, and that the note was passed off after the dissolution. The notes appear to have been indorsed with the firm name.

Under the state of facts presented, and the contradictory character of the testimony, we are unable to conclude that the intervenors do not occupy the position they claim, and that they should not be protected.

It is therefore ordered that the judgment of the district court be annulled and reversed. It is further ordered and adjudged that the intervenors be and they are hereby recognized as the legal and proper owners of the proceeds of the note sued upon, and that the same be paid over to them. It is further ordered that the plaintiff’s claim be rejected, and that he pay costs in both courts.

Mr. Justice Wyly was absent and took no part in this decision.

On Rehearing.

Wyly, J.

In September, 1872, R. K. Callender, who had two notes made by Grolsan Brothers, for some seven hundred and seventy dollars each, payable to his own order, in the cash box of his partner Adam Hunter, gave the latter verbal authority, as he testifies, to indorse and collect the first note, payable twelfth January, 1873, but not the second, payable in July of the same year, and apply the proceeds to the payment of a certain draft drawn from Liverpool where both the partners then were, on the firm of Hunter & Callender at New Orleans, Louisiana.

j Hunter testifies that the verbal authority embraced the right to discount both of the notes for the purpose of providing funds, if necessary, to meet the time draft referred to. He, however, found means otherwise, and did not dispose of the notes of Callender for the purpose of providing funds to meet the payment of the Liverpool draft. Subsequently, to wit, early in January, 1873, a few days before the first note fell due, he discounted it with Jackson & Manson and put the proceeds to the credit of Callender on the boohs of Hunter & Cal-lender, indorsing said note as follows : “ R. K. Callender, per Adam Hunter, Hunter & Callender.”

Callender returned from Liverpool about this time and made no objection to the indorsement,and discount of the note. Subsequently the partnership of Hunter & Callender was dissolved and the partners quarreled, Hunter refusing to return to Callender the second note, maturing in July, 1873, when it was demanded by the latter.

Afterward, to wit, on twenty-seventh June, 1873, a few days before the maturity of the last note, Hunter discounted it with Jackson & Manson who knew of the dissolution of the partnership, the indorsement being the same as that written on the'flrst note.

At the time of the discount of this note, Hunter, according to the import of his own evidence, was utterly without authority to do so. He had no right to indorse and discount a note belonging to Callender and payable to his order, it matters not how much Callender might owe the late firm of Hunter & Callender.

If Callender had given him verbal authority in Liverpool in September, 1872, as contended by the defendants and intervenors, the authority was revoked beyond doubt, before it was exercised. But from the evidence we are satisfied, without a revocation, Hunter had no authority to indorse and discount the note in question.

Take his own testimony in regard to the authority to indorse and discount this note, which is flatly contradicted by the evidence of Cal-lender, and it only shows this power was given, if necessary, to provide funds to meet the Liverpool .draft, which the firm of Hunter & Callender succeeded in providing for without the discount of Callender’s notes. Authority to indorse and discount a note for one purpose can not be extended to another.

As Hunter had no title to the note, his indorsees Jackson & Manson, acquired none, because when they discounted the note payable to the order of R. K. Callender without his indorsement, and on the indorsement of Adam Hunter, they were charged with notice of his want of authority to indorse and negotiate said note.

The fact that Callender had ratiñe'd the indorsement and discount of the first note, imposed no obligation on Callender to ratify the indorsement and discount of the second note, especially as his relations as partner with Hunter had ceased, to the knowledge of Jackson & Manson.

It is therefore ordered that our former judgment be set aside, and it is decreed that the judgment appealed from be affirmed with costs.


author: Morgan, J.

text:
    No. 4330.
    Mrs. L. P. Commagere v. William Brown.
    There is certainly nothing immoral in renting property to he nsed. as a club room, and if it was converted into a gambling house', this is no reason why the lessee should not be bound by his contract, when there is no evidence that the lessor hnew that the object for which the rooms were to be employed was different from the one mentioned in the written lease.
    APPEAL from the Fifth District Court, parish of Orleans. Beaumont, J.

      Charles Louque, for plaintiff and appellant. T. S. MeGay, for defendant and appellee.
   Morgan, J.

Plaintiff sues on a contract of lease.

The answer is that the property was leased as a gambling house, and therefore the contract is an immoral one and can not be enforced.

The lease is in writing and recites that the property rented is to be used as a club room. There is no evidence that the plaintiff knew the object to which the rooms were to be employed other than what appears in the lease, although there is some testimony as to what her agent, who made the negotiations, knew about it. There is certainly nothing immoral in renting property to be used as a club room.

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 plaintiff, as prayed for in her petition, with the landlord’s lien and privilege on the property seized, appellant to pay costs.


text:
    No. 4409.
    A. W. Walker v. C. S. Sauvinet, Sheriff, et als.
    The motion to dismiss the appeal on the ground that there was no order of appeal came too late, said motion having been filed more than three days after the transcript was filed.
    The plea that the plaintiff is estopped from contesting the validity of the sale because he appointed an appraiser of the property sold is valid. He can not he permitted to avoid the responsibility of that act by stating that he did it under protest.
    APPEAL from the Fourth District Court, parish-of Orleans. Theard, J.

      T. & J. Bilis, B. K. Washington, for plaintiff and appellant. B. Bermudez, for James Welsh, defendant and appellee. B. Filleul, for Sauvinet, defendant and appellee. Homor & Benedict, for Southworth, recorder of mortgages, defendant and appellee.
   Ludeling, C. J.

The plaintiff sues to annul a sale of his property made under an order of seizure and sale against him, on various technical grounds.

The defendants filed an exception, alleging that the petition showed no cause of action, and that the plaintiff is estopped from contesting tie validity of the sale because he appointed an appraiser of the property sold; that he was in the parish and did not oppose the sale, and that he ratified the sale by authorizing his wife to claim the proceeds of the sale.

There was judgment in favor of the defendant, dismissing the suit, and plaintiff has appealed.

A motion has been made to dismiss the appeal on the ground that there is no order of appeal. The motion was filed more than three days after the transcript was filed. It came too late. 2 An. 138; 11 An. 613.

The plaintiff, when notifying the sheriff whom he had appointed as an appraiser of the property, stated that he made the appointment •under protest, alleging that there were informalities in the proceedings. We do not think he can thus avoid the responsibility of his act of appointing an appraiser.

We think the judgment of the lower court correct.

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


author: Ludeling. C. J.

text:
    No. 5686.
    Schmidt & Zeigler v. Mrs. Louise B. Williston et al. Alexander Thompson, third opponent.
    The ruling of the judge a quo permitting the husband of the defendant to testify in regard to the ownership of the property claimed by the third opponent, was correct. As between the third opponent and plaintiffs ho was a competent witness, because the wife was not a contestant in that controversy.
    The judge a quo did not err when refusing to allow a witness to state his opinions or conclusions as to the effect- had in giving defendant credit by placing the mules in controversy on her plantation.
    The objection by the seizing oreditors that the third opposition was not made in time, as it was not served on them until after the sale, is not well founded under the circumstances of the case as exhibited by the evidence on record.
    APPEAL APPEAL from the Fifth Judicial District Court, parish of Iberville. James L. Oole, parish judge, acting for the district judge, recused.

      Samuel Matthews anej, James JS. Grover, for plaintiffs and appellants. A. & B. Talbot and Barrow & Bope, for third opponent and appellee.
   Ludeling. C. J.

Smith & Zeigler obtained an order of seizure and sale of the plantation of the defendant, and caused the plantation, with all the farming implements, mules, etc., to be seized and advertised. Alex. Thompson intervened, and claime.d that fourteen mules, one cow, carts, plows, etc., belonged to him, and he prayed for the property or its value, which-he alleged to-be worth $1650, and for fifty dollars per month, the value of the use of said property, during the time he was deprived of it. He subsequently amended his petition alleging that the property was worth $2650. There was judgment for the third opponent for $2295 63, with legal interest from date of judg~ ment, unless the property were restored within thirty days from the rendition of the judgment. The plaintiff has appealed.

There are two bills of exceptions in the record. One to the ruling of the judge permitting the husband of the defendant to testify in regard to the ownership of the property-claimed by the third opponent. As between the third opponent and the plaintiff, he was a competent witness, and the wife was not aicontestant in that controversy.

The other bill of exceptions was to the refusal of the judge to allow a witness to state his opinions or conclusions as to the effect' placing the mules in controversy on the plantation had in giving defendant credit.

We think the ruling of the judge a quo correct. Besides, the debt of the plaintiff was created before the mules, etc., were placed' on said plantation.

Schmidt & Zeigler, seizing creditors, say that the third opposition was not in time, as it was not served on them till after the sale. The record shows that the petition was filed before the sale, and served on the sheriff. The seizing creditors resided in New Orleans; hence the delay in making the service. But it appears that one of the creditors was at the sale and was notified of the claim of the third opponent.

The judgment of the lower court is correct under the evidence in the record, which is not contradicted.

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

Rehearing refused.


author: Ludeeing, C. J.

text:
    No. 5669.
    Bussey & Co. v. J. A. Rothschild.
    This court can not sustain the bill of exceptions taken to the ruling oí the judge a quo, permitting the plaintiff to amend his petition by correcting the allegation in regard to the dates of the notes sued on, on the ground that it came too late, as the trial had commenced. Amendments should always be allowed when justice would be subserved thereby. If the defendant was taken by surprise, he might have obtained a continuance on that ground.
    APPEAL from the Thirteenth Judicial District Court, parish of Madison.

      Hough, J. JE. D. & W. Farrar and H. R. Steele, for plaintiffs and appellees. Seale <& Morrison, for defendant and appellant.
   Ludeeing, C. J.

The plaintiff sued the defendant on two promissory notes and obtained an attachment against his property. The attachment was dissolved. On appeal that judgment was affirmed.

Afterward, the case was tried on the merits, and the defendant having prayed for damages in reconvention, there was judgment in favor of the plaintiff for the sum due on the notes and in favor of the defendant on his reconventional demand. The defendant has appealed.

A bill of exceptions was taken to the ruling of the judge permitting the plaintiff to amend his petition by correcting' the allegation in regard to the dates of the notes sued on, on the ground that it came too late, as the trial had commenced. Amendments should always be allowed, when justice would be subserved thereby. If the defendant was taken by surprise thereby, which is not probable, he might have obtained a continuance on that ground.

The evidence supports the judgment of the lower court.

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


author: Ludbling-, C. J.

text:
    No. 5587.
    Charles E. Alter v. James E. Zunts.
    Parol and written evidence in this caso shows that defendant’s obligation was that of surety, for when one !i accedes to the existing obligation of another, and engages to see it performed, he becomes essentially a surety.”
    It is the essence rather than the form of a contract which must determine its character.
    “ Suretyship is an accessory promise by which' a person hinds himself for another already hound, and agrees with tho creditor to satisfy the obligation if the debtor does not.” Such seems to have been the obligation assumed by defendant. The renewal of the note witliont the consent of tho surety, discharges Mm.
    APPEAL from the Fifth District Gourt, parish of Orleans. 0idiom, J.

      M. M. Oohen, for plaintiff and appellee. J5. H. MoOaleb, for defendant and appellant.
   Ludbling-, C. J.

This suit is brought to recover the sum of $2528 75, interest, attorney’s fees, and costs, being the balance due on a mortgage note for $5000 drawn by-Charles A. Weed to his own order and by Mm indorsed in blank. The name of the defendant is not on the note, but he signed the act of mortgage executed by C. A. Weed in favor of the holder or bearer of the note. The act of mortgage contained the following stipulation: “And now personally intervened in these presents, Mr. James E. Zunts, of this city, who, after having taken cognizance of the foregoing act of mortgage, declared, that he does hereby bind himself jointly and in sólido with said O. A. Weed for the payment of the aforesaid note for five thousand dollars, at its maturity, in favor of L. E. G-eneres or any future holder of the same.”

The defense is that Zunts bound'himself as surety, and that he was released by the prolongation of the term of payment of the note, without his consent. The evidence leaves no doubt that the term of payment was prolonged for a valuable consideration and without the consent of Zunts.

The only question is, did Zunts bind himself as surety or as a principal ?

The parol evidence in this record (received without objection) would remove any doubt on that point, if the written act itself were ambiguous. Generes aud Weed as well as Zunts testified in substance that J. E. Zunts signed the act of mortgage as a surety or guarantor for Weed, who waá borrowing the five thousand dollars from Generes, a broker. But without this testimony, we think the written act shows that Zunts’ obligation was that of surety, tor when one “ accedes to the existing obligation of another and engages to see it performed he becomes essentially a surety.” It is the essence rather than the form of a contract which must determine its character. ‘‘ Suretyship is an accessory promise by which a person binds himself for another already bound, and agrees with the creditor to satisfy the obligation, if the debtor does not.” C. C. 3135; 14 La. 509. Such, from the written act, appears to have been the obligations assumed by J. E. Zunts.

The renewal of the note without the consent of the surety discharged him. C. C. 3063.

It is therefore ordered and adjudged that the judgment of the lower court bo annulled, and that there be judgment in favor of the defendant against the plaintiff, rejecting his demands with costs.


text:
    No. 4093.
    New Orleans, Florida, and Havana Steamship Company v. E. B. Briggs.
    The amount duo for unpaid stock must he paid. It is no defense to allege that the penalty for not paying said amount is the forfeiture of the stock.
    APPEAL from the Fourth District Court, parish of Orleans. Theard, J. Jury trial.

      Leovy & Monroe, for plaintiffs and appellants. Randolph, Singleton, & Browne, lor defendant and appellee.
   Morgan, J.

Plaintiff seeks to recover from the defendant an amount due by him for unpaid stock.

The defense is that the penalty for not paying the amount due is the forfeiture of the stock.

The agreement to pay was an obligation on the part of the defendant, and we think the plaintiff has th6 right to enforce it.

It is therefore ordered, adjudged, and decreed that the verdict of the jury be set aside, and that there be judgment in favor of the plaintiff for seven hundred and fifty dollars with legal interest thereon.


author: Wyly, J.

text:
    No. 5566.
    O. J. Flagg v. The Parish of St. Charles.
    Tax payors have a right to appeal from a judgment rendered against the parish, and in which a special tax is decreed.
    A bare inspection of the record was sufficient to indicate an appeal as the course for the district attorney jpro tern, to pursue, in view of his duty as an officer protecting the legal rights of his client, the parish of St. Charles. He took no appeal, however, and when the tax payers of said parish sought to exercise that right, not content with his own inaction, he joined the plaintiff in an effort to defeat the appeal,' to the prejudice of his client, the parish of St. Charles. This is an extraordinary feature; the conduct of that ^public officer is reprehensible.
    There is no proof in the record that the warrants or certificates offered in evidence were issued by the parish or were authorized to be issued by the police jury.
    If the warrants or certificates were authorized to be issued, they are not sufficient to justify the judgment of the court below. Police juries, in the administration of the limited powers confided to them, must provide means by taxation for the purpose and in the manner provided by law. They can not bind the parishes by putting in circulation their notes or warrants at pleasure.
    APPEAL APPEAL from the Fourth Judicial District Court, parish of St. Charles. Burapau, parish judge, acting in the place of the district judge, interested and recused.
    O. J. Flagg, in propria persona. M. Maries, F. B. Barhart aud J. B. Augustin, for said plaintiff and appellee. Breaux, Fenner & Ball, for defendants and appellants.
   Wyly, J.

O. J. Flagg, who is the Judge of the Fourth Judicial District, brought this suit against the parish of St. Charles, on numerous warrants or evidences of debt issued by the president of the police jury or by the secretary of that body, amounting in the aggregate to seven thousand and four dollars and ninety-nine cents, claiming that the same were transferred to him for a valuable consideration, and offering in evidence a list of said claims together with said warrants or evidences of indebtedness, he obtained judgment by default against the parish of St. Charles for the full amount demanded ; the parish judge presiding instead of the plaintiff, the district judge, who appeared to prosecute his own suit.

No other proof was adduced in support of the demand.

The defendant, the parish of St. Charles, made no defense and took no appeal.

S. N. Burbank, tutor, William B. Whitehead, Lesassier & Binder, Robert Patterson, O. B. Grfaham & Cuny, A. Rochereau, the Citizens’ Bank, and thirteen other tax payers in said parish, alleging under oath that their pecuniary interest in the matter in dispute largely exceeds five hundred dollars, and they are aggrieved, have taken an appeal from said judgment.

The plaintiff moves to dismiss the appeal on several grounds, the most important being that in their petition and affidavit they show no cause.for the appeal.

We think otherwise. Appellants, as tax payers, will have to contribute to pay the judgment of which they complain, a special tax being ordered in the decree, and their interest, they swear, exceeds five hundred dollars. If the tax payers of the parish, who will have to pay the judgment if it is put in force, have no interest to have it reversed on appeal because erroneous, it is difficult to imagine who has. As a legal entity the parish can not suffer by an unjust judgment; it is the people thereof or the tax payers who will feel the burden. C. P. 571; 22 An. 602; 23 An. 582, 678; 25 An. 627.

An’ extraordinary feature of the case is presented in the motion to dismiss the appeal filed by N. S. Martin, district attorney pro tem. in behalf of the parish, the defendant, who is condemned to pay $7004 99.

Why he should be anxious to join the plaintiff, the district judge, and defeat the appeal, to the prejudice of his client, the parish, which was condemned to pay a large sum, we are at a loss to imagine.

The conduct of this public officer is reprehensible. A bare inspection of the record was sufficient to indicate an appeal as the course for him to pursue, in view of his duty as an officer charged with protecting the legal rights of his client, the parish of St. Charles. He took no appeal, however; and when appellants, the tax payers of said parish, sought to exercise that right, not content with his own inaction, he files a motion joining with the plaintiff in an effort to defeat the appeal, to the prejudice of his client, the parish of St. Charles.

His reason for so doing, that the' police jury, at a special meeting, confessed and recognized similar claims in the suit of Morgan Morgans against the parish, and ordered the defense withdrawn, is no excuse for the course he has pursued in this case.

The motion is denied.

On the merits there are several reasons why the judgment should be reversed:

First — In this default confirmed against the defendant, there is no proof that the warrants or certificates offered in evidence were issued by the parish or were authorized to be issued by the police jury, there being no proof except these documents, adduced at the trial.

Second — If the warrants or certificates were authorized to be issued, they are not sufficient to authorize the judgment for the reasons stated in Sterling v. The parish of West Feliciana, 26 An. 59, a suit brought on warrants or scrip of the same kind and presenting the same question.

Police juries, in the administration of the limited powers confided to them, must provide means by taxation for the purpose and in the manner provided by law; they can not bind the parishes by putting in circulation their notes or warrants at pleasure.

Section 2786 of the Revised Statutes provides that “ the police juries of the several parishes*** shall not, hereafter, have power to contract any debt or pecuniary liability without fully providing in the ordinance Creating the debt the means of paying the principal and interest of the debt so contracted.”

Section 2787 provides that the ordinance providing means to pay the debt so contracted shall remain in force, that is, it shall not be repeal-able until the debt and interest are fully paid.

Section 2788 provides that where the police jury has provided for the payment of a debt by levying a tax, but refuses to cause it to be collected, relief may be had in the courts.

In the record plaintiff presents no case entitling him to relief.

The judgment must be reversed.

It is therefore ordered that the judgment appealed from be annulled, and that plaintiff’s demand be rejected with costs in both courts.

Rehearing refused.


author: Wylv, J.

text:
    No. 5564.
    Letitia Babbington v. The Parish of St. Charles.
    It is not to to discovered in tlie record nor is it possible to imagine what office O. J. Flagg held that constituted him “ex officio committing magistrate,” and that entitled him to draw a salary from the parish of St. Charles. If as district judge he discharged the duty of a committing magistrate, he was clearly entitled to no compensation from the parish, beoause the salary paid by the State is all that he can rightfully receive.
    APPEAL from th© Fourth Judicial District Court, parish of St. Charles. Flagg, J.

      M. Maries, F. B. Farhart and J. B. Augustin, for plaintiff and appellee. Breaux, Fenner & Ball, for appellants.
   Wylv, J.

This case is like those of O. J. Flagg, Arthur Robbins, and Morgan Morgans against the same defendant, the parish of St. Charles; and the motion to dismiss the appeal as well as the case on the merits, must be decided as they were decided.

A noticeable feature of this case is that many of the warrants sued on and which plaintiff claims as transferee, were drawn by parties no way connected with the police jury. The following is a sample, and there are several like it signed by th© same drawer:

“ Office Committing MagistRAte,
“Parish of St. Charles, October 1,1872.
“The Parish Treasurer will pay O. J. Flagg or order the sum of thirty-seven dollars and fifty cents for part of quarter salary, commencing July 1 and ending October I, 1872, as per resolution of the police jury. O. J. FLAGG,
“Ex officio Committing Magistrate.”

What office O. J. Flagg held that constituted him “ ex offieio committing magistrate,’’ and that entitled him to draw a salary from the parish, we are not informed by tbe record, and we are at a loss to imagine. If as district judge be discharged the duty of a committing magistrate, he was clearly entitled to no compensation from the parish, because the salary paid by the State is all that he can rightfully receive.

It is therefore ordered that the judgment appealed from be annulled, and that plaintiff’s demand be rejected with costs.

Rehearing refused.


author: Taliafep.ro, J.

text:
    No. 4334.
    John Chastant v. Joseph Elliott.
    Ie this suit, instituted by plaintiff, tbe nullity of tbe proceedings of defendant in Iberville against plaintiff, is set up on tbe ground that plaintiff was an absentee, was not cited and bad no knowledge of tbe suit brought against him there. 'Whether tbe proceedings in Iberville were regular or not is immaterial, inasmuch as plaintiff makes at tbe domicile of defendant tbe issue of tbe validity of tbe sale by defendant to him and prays judgment decreeing him to be tbe owner of tbe object sold.
    The mules, which are tbe subject of this controversy, having been sold to plaintiff upon bis promise to pay for them by a note well indorsed, payable at one year from date, bearing interest and being equivalent to cash, and after tbe shipping of the mules by tbe vendor according to tbe directions of plaintiff, tbe lattor having delivered to said vendor a note, both tbe drawer and indorser of which were insolvent at tbe time, thus making said note utterly worthless to tbe knowledge of plaintiff, tbe consideration of tbe contract fails and tbe sale must be annulled and set aside.
    APPEAL from the Fifth District Court, parish of Orleans. Lemmont, J.

      Albert Voorlvies, for plaintiff and appellee. Breaux, Benner <& Ball, for defendant and appellant.
   Taliafep.ro, J.

The plaintiff, a resident of the State of Mississippi, complains that the defendant by ex pew'te proceedings taken against him in the parish of Iberville, obtained possession of three mules, the property of the plaintiff, and brought them to New Orleans, for which illegal and tortious act he claims damages to the amount of five hundred dollars, the restoration of the mules, or in default thereof that he recover their value, which he alleges to be six hundred dollars*

The defendant alleges in his answer that the mules in question were sold to the plaintiff upon his promise to pay for them by a note, well indorsed, payable at one year from date, bearing interest and equivalent to cash; that after respondent had shipped the mules according to the directions of the plaintiff, the latter delivered to respondent’s agent a note for six hundred dollars, both the drawer and indorser of which were insolvent at the time, and the note utterly worthless to ■ the knowledge of the plaintiff; that the price of the property has not been paid, and that plaintiff has failed to comply with the contract on his part by furnishing defendant good and solvent paper in payment of the price. Defendant sets up in reconvention a demand that the sale be annulled, and the said note be returned to plaintiff, and that defendant be decreed to retain possession of the mules.

The judgment of the lower court was in favor of the plaintiff. It decreed the return of the mules to the plaintiff, or, in default thereof that plaintiff recover from the defendant six hundred dollars, the value of the mules. The judgment moreover awarded five hundred dollars damages in favor of the plaintiff. The defendant appealed.

Elliott, the defendant, sold by an agent the three mules in controversy to Chastant, the plaintiff, on the ninth of December, 1871, for vhich he delivered a note for six hundred dollars, and caused the mules to be put on board a steamer the next morning and sent to his son, in the parish of Iberville.

It appears that Elliott, as soon as he ascertained the fact of the sale and the character of the note that had been received by his agent in payment for the mules, took prompt action to recover the mules, for, on the twelfth of December, 1871, three days only after the sale, he instituted proceedings against Chastant in the parish of Iberville, and caused the mules to be sequestered', and after the lapse of ten days gave bond, took possession of the mules, and brought them back to New Orleans. In this suit, instituted by Chastant, the nullity of the proceedings of Elliott, in Iberville, is set up on the ground that Chastant, an absentee, was not cited and had no knowledge of the suit brought against him there. Whether the proceedings in Iberville were Tegular or not it is not important to inquire, inasmuch as Chastant makes at the domicile of the defendant the issue of the validity of the sale to him by the defendant’s agent, and prays judgment decreeing Mm to be the owner of the mules.

The evidence throws some suspicion upon the fairness of the transaction on the part of Chastant, relating to the sale of the mules. The note is shown to have been of no value whatever at the time it was given in payment, and it is not difficult to believe that Chastant knew it. His brother was the drawer of the note, and when he was inquired of in relation to the matter, expressed surprise that the plaintiff had passed the note to the agent of Elliott, declaring his inability to pay the note. The utter insolvency of the indorser was also shown. The agent of Elliott, who sold the mules to Chastant, called on him within two days after the sale and informed him of what his brother had said about the noté, and that there must be some other settlement made for the price of the mules as the note was not good, offering at the time to give him back the note. To all the remonstrances of the agent Chastant paid no regard, replying only you have the note and I have the mules.”

We conclude from the entire testimony that the judgment of the lower court was erroneous.

It is therefore ordered that the judgment of the district court be annulled and reversed. It is ordered that the plaintiff’s demand be rejected and judgment rendered against him. It is further ordered that the defendant have judgment in his favor on his reconventional demand; that tlie sale of the three mules by his agent to the plaintiff on the ninth December, 1871, be annulled and set aside; that the defendant be decreed to be entitled to the possession of the mules, and that the note in question be returned to the plaintiff. It is further ordered that plaintiff pay costs in both courts.

Rehearing refused.


text:
    No. 5439.
    Mrs. E. LeBlanc v. Succession of Charles Massieu-On rule against John Palsey, security on appeal bond.
    Tlie objection that plaintiff can not proceed by rule to compel the surety on the appeal bond to pay the judgment in her favor, but must resort to a regular action, is answered adversely by the textual provision of section 37 of the Revised Statutes and the settled jurisprudence of the State.
    The second objection that the court was without jurisdiction in this case, is also answered adversely to respondent, in precise terms, in section 3679 of the Revised Statutes. the
    It has been frequently held that where the creditor can not taire out execution against the principal on the appeal bond, as in this case, he may proceed directly against the surety. in
    The only really important question in this suit is, does the surety on a suspensive bond in an appeal taken by an administrator or an executor from a judgment for a specific sum of money, become liable for the debt in case the judgment is affirmed? The answer is affirmative. The case at bar falls within the express provision of article 575 of tlie Code of Practice. The succession of Massieu was sued on a promissory note, and it was condemned to pay plaintiff ten thousand dollars, a specific sum. not
    Where a bond is given in reference to the law, stipulations unauthorized thereby will not invalidate it.
    The assumption that the legal obligation of the succession on the note and judgment hold by plaintiff is only commensurate with the ability of the succession to pay it, is a fallacy. The obligation uf the surety’s principal — the succession of Massieu, a judicial person— is to pay the whole debt, regardless of its ability to do so. Therefore the respondent on the rule is liable on the'appeal bond for the amount of plaintiff’s judgment.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      Gustawus SehmAdt, for plaintiff and appellant. Charles F. Olaihorne, for defendant and appellee.
   Wyly, J.

Plaintiff recovered judgment against the succession of Charles Massieu on a promissory note for $10,000. A suspensive appeal was taken, and that judgment was affirmed by this court in 1873. After demanding, in vain, payment of this judgment from the legal representatives of the succession, the plaintiff instituted this proceeding by rule to compel John Palsey, the surety on the appeal bond, to pay said judgment. Her demand was rejected in the court below, and she has appealed.

The first objection, that plaintiff can not proceed by rule, but must resort to a regular action, is answered adversely to the respondent in the textual provision of section 37 of the Revised Statutes, and the jurisprudence on the point is settled. See 5 An. 523; 10 An. 544, and numerous later decisions.

The second objection, the court was without jurisdiction, is also answered adversely to respondent, in precise terms, in section 3679 of the Revised Statutes.

The third objection, the rule is premature, the plaintiff not having exhausted her remedy against the principal debtor, is likewise untenable. It has been frequently held by this court, where the creditor can not take out execution against the principal on the appeal bond, as in this case, he may proceed directly against the surety. 1 An. 122; 10 An. 284, 544; 11 An. 78, 271; 20 An. 512; 25 An. 125.

The next, and really the only important question in the case is, is the surety on a suspensive appeal bond in an appeal taken by an administrator or an executor from a judgment for a specific sum of money liable for the debt in case the judgment is affirmed ?

Article 575 of the Code of Practice provides that: “If an appeal has been taken within ten days, not including Sundays, after the judgment has been notified to the party cast in the suit, when such notice is required by law to be given, it shall stay execution and further proceedings, until definitive judgment be rendered on appeal; provided the appellant gives his obligation, with good and solvent security, residing within the jurisdiction of the court., in favor of the clerk of the court rendering the judgment, for a sum exceeding by one-half the amount for which judgment was given, if the same be for a specific sum, as security for the payment of the amount of such judgment, in case the same is affirmed by the court to which the appeal is taken.” * * *

In other words this article provides that for a suspensive appeal a bond exceeding by one-half the amount of the judgment, where the same is for a specific amount, must be given within ten days after judgment, as security for the payment thereof in case it is affirmed.

Article 576 provides : “If the judgment decree the delivery of some movable of a perishable nature, the court shall require security to an amount exceeding by one-half the estimated value of such movable.”

Article 577 provides that if the judgment be for the delivery of real estate, not of a perishable nature, surety shall only be required for an amount exceeding by one-half the estimated value of the.revenue thereof pending the appeal, and for such further amount as the judge may determine as security for deterioration of the property during the same period.

These are the articles of the Code of Practice in relation to suspensive appeals. The ease at bar falls within the express provision of article 575. The judgment was for ten thousand dollars, “a specific sum,” and in our opinion a bond exceeding by one-half the amount thereof was required in order to obtain a suspensive appeal.

A bond for that amount was given within ten days, and the effect thereof is not impaired in consequence of the following clause inserted therein: “ This bond furnished is to serve only if the five hundred dollar bond previously furnished is declared or proved insufficient.” The bond was given in reference to the law, and stipulations unauthorized thereby will not invalidate it. 6 N. S. 498; 2 La. 397; 16 La. 173; 9 R. 535; 4 An. 372 ; 7 An. 571; 12 An. 68; 13 An. 604; 15 An. 551.

The respondent, however, insists that where a succession is appellant, a bond only for costs is required in order to obtain a suspensive appeal, and in support of this position he cites the case of the State ex rel. Gausson v. the Judge of the Second District Court, 21 An. 43. It is true that the decision of this court, delivered by Mr. Justice Ilsley, maintains this position on the authority of Blanchin v. The Steamer Fashion, 10 An. 345, and the State ex rel. Hickey v. the Judge of the Fourth District Court, 20 An. 108. These and other authorities were examined at length in the dissenting'opinion of Mr. Justice Taliaferro in that case. After carefully considering the opinion and the dissenting opinion in that case, we feel constrained to overrule it, believing the doctrine stated in the case of Blanchin v. The Steamer Fashion, which was followed in the case of. the State ex rel. Hickey v. the Judge of the Fourth District Court, is not applicable to a case like this, where a defendant, condemned to pay a specific sum of money, takes a suspensive appeal.

The case of Blanchin was this : He obtained judgment against the owners of the steamer Fashion, with privilege on the boat. Execution issued, the boat was sold and the proceeds thereof were in the hands of the. sheriff, pending several third oppositions of parties claiming a privilege superior to the seizing creditor.

The court of the first instance, by its decree, distributed the funds among these third opponents, giving the seizing creditor, Blanchin, no part thereof. He took an appeal, giving bond within ten days for one hundred and fifty dollars, the amount fixed by the court. The question was whether this, bond was sufficient for a suspensive appeal ? This court held that there were cases where the requirement of article 575 C. P., in regard to the bond exceeding by one-half the amount of the judgment, is inapplicable; that this expression applies to a judgment where the appellant has been compelled to pay; that it seems inapplicable to a judgment where the appellant was condemned to pay nothing; that there was a judgment merely ordering the distribution of funds in the hands of the sheriff; 'that the appellant, Blanchin, was entitled to a suspensive appeal from the judgment which debarred him from a participation in a fund which had been provided by his own exertions; and that as there was no standard fixed by law for the bond and security to be given by him in obtaining such appeal, the judge obviously had the discretion to fix the amount of the ■ bond. In that case no judgment condemning Blanchin to pay “ a specific sum ” was sought or obtained. He had the right to appeal, and the fund in the sheriff’s hands should remain and not be distributed pending such appeal. This was necessary to protect his rights. Why should he give security for more than costs ? Why should he give bond and security for the fund in the hands of the sheriff? The.court very properly held that the case was not within the meaning of that part of article 575 C. P., requiring the amount of the bond to exceed by one-half the amount of the judgment, and as there was no standard fixed by law for the bond and security to be given in such a case, the judge could exercise his discretion. It would be unreasonable and manifestly unjust to compel a seizing creditor to give bond and security pending the litigation of a oonowsus for the funds in the hands of the sheriff. He might be driven by such a requirement to abandon his rights rather than incur such a responsibility.

The case at bar is entirely different. Here is no controversy for the distribution of funds in the hands of the sheriff, where there is no standard to fix the amount of the bond, because the appellant is condemned to pay no “specific sum.” On the contrary, the succession of Charles Massieu was sued on a promissory note, and it was condemned to pay plaintiff ten thousand dollars. The' case falls clearly within the provision of article 575 C. P., fixing a standard for the amount of a suspensive appeal bond. The law being clear and free from ambiguity, the letter thereof can not be disregarded under pretext of pursuing its spirit. Revised Code 13.

It is urged, however, that as a surety ought not to be bound to pay more than his principal is liable for, so that if he pays he may be fully subrogated, the respondent should "not be held liable for the full amount of plaintiff’s judgment, because at the final settlement of the succession of Massieu there may not be that amount due to plaintiff.

This fallacy lies in the assumption that the legal obligation of the succession on the note and judgment held by plaintiff is only commensurate with the ability of the succession to pay it. Such is not the case. The obligation of his principal, the succession of Massieu, a juridical person, is to pay the whole debt, regardless of its ability to do so. The obligation of the executors, however, is to discharge faithfully their duties; they are not individually bound to pay any of the debts.

Our conclusion is that John Palsey, the respondent in the rule, is liable on the appeal bond for the amount of plaintiff’s judgment.

It is therefore ordered that the judgment appealed from be annulled, and it is decreed that the rule herein be made absolute and that the plaintiff recover of the respondent, John Palsey, the full amount of the judgment, interest and costs recovered heretofore by plaintiff against the succession of Charles Massieu. It is further ordered that appellee pay costs of both courts.

Rehearing refused.


author: Taliaberro, J.

text:
    No. 5687.
    Succession of James N. Brown.-Homologation of accounts and opposition thereto.
    On the tenth of July, after a protracted contest, an order was rendered hy the court, homologating the accounts of the executor so far as not opposed. On the fifteenth of September of the same year, Isaac D. Brown, another of the heirs of the deceased, presented an opposition to the accounts. The executor properly objected to it on the ground that the judgment homologating the accounts formed res judicata as to his opponents.
    Credits claimed by the executor for payment of sums of money to certain heirs, except one not opposed, were correctly rejected by the judge a quo. These sums received by the heirs will more properly be adjusted by collation in a final partition among them of the succession.
    The court reserves to the executor the right to claim, in a final settlement and partition of the estate, all amounts he alleges to have paid to the heirs.
    The judge a quo properly struct from the executor’s accounts such items as do not come within that class of necessary articles indispensable in the cultivation of a plantation.
    APPEAL from the Parish Court, parish of Iberville. Crowell, J.
    Barrow, Pope & Bobertson, for accountant. Mathews & Wailes, for Mrs. Peltus and husband, opponent. J. O. Fuqua, A. & B. B. Talbot? for Isaac D. Brown. All the parties have appealed.
   Taliaberro, J.

The dative testamentary executor of. James N. Brown was required by an order of the parish court of Iberville, rendered on the sixteenth of November, 1869, at the instance of one of the heirs, to file an account of his administration of the estate. No regard, it seems, was paid to this order until the fifth of October, 1870, two days after a suit was brought against the executor to remove him from office, which was subsequently done by decree of the parish court of that parish and confirmed on appeal to this court. 24 An. 187.

The executor filed an account on the fifth of October, 1870; a second one on the twenty-fourth of that month, and a third on the sixteenth of October, 1871.

To these several accounts oppositions were filed by Mary E. Brown, one of the heirs (wife of Eeltus.) On the tenth of July, 1873, after a protracted contest, and the accumulation of evidence which has swelled the record to an inordinate size, an order was rendered by the court, homologating the accounts so far as not opposed.

On the fifteenth of September, 1873, Isaac D. Brown, another of the heirs, presented an opposition to the accounts.

This was objected to on the part of. the executor on the ground that-the judgment homologating the accounts formed res judieaia as to this opponent. The court allowed the opposition to be filed, and a bill of exceptions was taken.

We think the exception was well taken and that the opposition of Isaac D. Brown should not have been admitted. 23 An. 528; 20 An. 359; 1 La. 371; 22 An. 332; 3 An. 383.

We shall then consider this controversy as limited to the opposition of Mary E. Brown — Mrs. Eeltus. The property of the succession of James N. Brown, who died in th.e year 1859, consisted principally of two large plantations, one in the parish of Plaquemines, called the Oakland plantation, the other in the parish of Iberville, called the Manchac place. The two executors appointed by the will of James N. Brown, viz: his oldest son, John M. Brown, and Gilbert Hawkins, who qualified in October, 1859, died — the former in September, 1864, the latter previous to that time. James A. Yentress was, therefore, in October, 1864, appointed dative testamentary executor. The oppositions to his accounts form the subject matter of this litigation.

There appears to have been no debts against the estate. There are four heirs. Julia A. Brown, wife of James A. Ventress, the executor; Mrs. Eeltus, the opponent; the heirs pf John M. Brown (representing their father), and Isaac JD.. Brown.

The Oakland plantation, it appears, was taken possession of during the'war by the United States’ authority as captured or abandoned property. It was restored afterward — at what time does not appear; but not without some delay and at the cost of $2500, paid counsel for their legal efforts in obtaining its release. The executor’s first account commences with an exhibit of the proceeds of crops of the year 1864, and the first item on the credit side of that account is the sum of $2500, paid counsel for aid in regaining possession of the Oakland place. The executor’s first account includes the business affairs of the Oakland place, its revenues and expenses, the disbursements of the executor on account of the estate, etc., commencing with the crop of 1864, and coming down to the year 1869, inclusive. His second account purports to show the revenues, expenditures, etc., of the Manchae place for the same period. The third account shows the extent Of the crop of the Manchac place for the year 1870, the expenses incurred and net proceeds of the same.

The oppositions to these accounts present objections that are very numerous, and the contestation arising from them in the lower court was not free from a display of acrimony and embittered feeling.

On the trial of the case the court below sustained the oppositions mentioned in its judgment, amounting in the aggregate to $25,595 20 ; and judgment being rendered against the executor for that amount, all the parties have appealed.

The opponent, Mary E. Brown, prays an amendment by this court of the judgment of the lower court in favor of the estate of James N. Brown against the estate of James A. Yentress, for the sum of $19,968, on the following ground: That the executor used assets of the estate he administered to acquire property for himself and Feltus, as shown by the record, containing an act of sale from Waddell to James A. Ventress and H. J. Feltus of a large body of land, the consideration being the surrender to Waddell by Yentress of mortgage notes of the above amount, which the act of sale shows belonged to the estate of Brown.

She also prays an amendment of the judgment of the lower court in regard to the charge of $70,000 in the account against her, as the price of Oakland, and with respect to the charge of commissions thereon.

The opposition to this charge is that there has never been a legal sale of Oakland to her; that the pretended sale of it to her is a nullity.

The judge of the lower court refused to pass upon the question as to the validity of this.sale.

It may here be stated that the defense of the executor is placed mainly on the ground that although he was appointed dative testamentary executor and assumed the functions of executor, still, in point of fact, the succession was, by consent of the heirs, administered chiefly by himself and H. J. Feltus, acting on the part of his wife, the opponent in this case; that Feltus and family went on the Oakland plantation in 1865 to live; that by an agreement between the executor and Feltus, whatever was shipped to the plantation was for the use of the place, and that all disbursements and payments were made by Feltus ; that Feltus really had charge of the place; that there were no debts owing by the estate, and that it was managed for the benefit of the heirs; that the purchases made for the plantations and the expenditures incurred for carrying on the business upon them having been participated in and made by the sanction of the opponent and her husband, they should not now be heard in objecting to them.

The executor charges to the account of the estate and claims credit against it for purchases from and payments made to his own wife one of the heirs, amounting to about seven thousand dollars ; likewise for payments made to Mrs. Peltus for a similar amount, and for an amount exceeding three thousand dollars for payments to his sister, the widow of John M. Brown, deceased, one of the heirs. These credits, except the amount paid Mrs. Eeltus, not opposed, claimed by the executor, were rejected by the lower court, and we think correctly. These sums received by the heirs will more properly be adjusted by collation in a final partition among them of the succession. Examining next the other oppositions that were sustained, the first in order is that made to the accounts of George A. White presented as vouchers for the payment of supplies purchased for the Oakland plantation. It appears that the executor established a store and trading establishment on Oakland and sold to the laborers on the plantation and to others, goods of the description and kind usually kept in stores of that sort. These goods were purchased from White. Among them were articles of supplies necessary for the carrying on of a plantation. The judge a quo seems to have stricken from these accounts such items as do not come within that class of necessary articles indispensable in the cultivation of a plantation. This was properly done. The estate should not be made to pay for goods wholly unnecessary for the business of the place and from the sale of which the executor doubtless realized large profits. The executor’s commissions were allowed against the opposition made to it. For failing to file an account when ordered to do so, the executor, as we have seen, was removed from office by a formal judgment of the parish court of Iberville, confirmed by decree of this court. The judgment divesting him of his office did not impose upon him the penalties prescribed by article 1465 of the Revised Statutes nor deprive him of his commissions. We are not satisfied that the evidence clearly establishes a case like that of Lee, 4 An. 518, where the administrator was deprived of his commissions because his administration had been positively injurious to the succession instead of beneficial.

The items set down upon the account of the executor as discount on his notes issued to raise money, and those for commissions to Bur-bridge for indorsing them were properly rejected. Two or three witnesses say the estate was out of funds; but no exigency is shown to have existed making it absolutely necessary to raise money at extravagant rates and upon unfavorable terms.

The amendments prayed for by the opponent we see no just cause for making. It is satisfactorily shown in our opinion that the Waddell notes were not the property of the succession of James N. Brown, but that they belonged to the minor heirs and were under the control of John M. Brown their former tutor, and eventually in the hands of Ventress as tutor.

The claim of $19,968, alleged to have been due the estate of James N. Brown by the commercial firm of Hawkins & Norwood, and which the opponent contends the executor should be made to account for on the ground that he released Norwood, one of the partners, on condition of the extinguishment of the indebtedness of John M. Brown to that firm of $22,240, we think entitled to little consideration. This claim, if it have any merit, can not, any more than the Waddill notes, be brought into the settlement of the executor’s account. To the claim of the opponent, to have the sale of the Oakland plantation annulled, and that estate thrown back into the succession, the executor opposed very properly the plea of res judicata. That question was definitively settled adversely to. the opponent by decree of this court rendered in April, 1872. 24 An. 300.

After following out the various grounds of opposition set up, and the disposition made of them by the lower court, we are not inclined to alter the decree which it rendered.

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

The court reserves to the executor the right to claim in a final settlement and partition of the estate all amounts he alleges to have paid to the heirs.

Rehearing refused.


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    No. 5374.
    State of Louisiana ex rel. Attorney General, on information of Dr. J. B. Cooper, v. Dr. F. Schumaker et al.
    Act Ho. 92 of tlie acts of 1869, under which Dr. Cooper claims title as police surgeon of the Metropolitan force, fixes the term of the office, in the ninth section thereof, as being during good behavior. Act Ho. 60 of the acts of 1874 in no manner proposes to amend act Ho. 92, so as to change the term of office. The act of 1869 remains in force, with this limitation, however, resulting from act Ho. 60, that the police commissioners, in reducing the police force, may “honorably discharge such members as in their judgment may seem needful.” Thus, under this amendment they could have discharged Dr. Cooper, but they had no warrant to remove him as they did, merely to appoint Dr. Schumaker. Power granted for one purpose can not be employed for another.
    APPEAL from the Superior District Court, parish of Orleans. EawJoins, J.

      A. P. Field, Attorney General, BrcmgJm, Uncle & JDinlcelspiel, for relator and appellant. Win. E. Emit, for Schumaker. J. Q. A. Fellmvs, for J. S. Clarke, defendants and appellees.
   Wyly, J.

This is a controversy for the office of Police Surgeon of the Metropolitan Police District.

Act No. 92 of the acts of 1869, under which Dr. J. B. Cooper claims title, fixes the term of the office, in the ninth section thereof, during good behavior, and provides that the incumbent is liable to removal from office “only after written charges shall have been preferred against him, according to the rules ánd regulations of said board of commissioners.” No written charges were preferred against him. But on the twenty-third day of March, 1874,- lie received notice from the clerk of the Metropolitan Police Board that he was honorably discharged under the provision of section 3 of act No. 60 of the acts of 1874, and Dr. P. Schumaker was appointed in his place.

Act No. 60 of the acts of 1874 is a statute to amend sections 6 and 10 of act No. 92 of the acts of 1869. It in no manner proposes to amend section 9 of the said act fixing the term of office during good behavior.

The third section of this statute declares that the Board of Metropolitan Police Commissioners “ is hereby authorized and directed within sixty days after the passage of this act, to reduce its expenses and reorganize and reduce the Metropolitan Police force in such manner and to such extent as economy and the limitations of expenditures empowered by law may require, and to this end it may honorably discharge such members of the Metropolitan Police force as in its judgment may be needful and proper.”

This section authorizes the removal of an officer for the purpose of reducing the Metropolitan Police force, with a view to economy or to limiting the expenditures of the police commissioners.

It is “to this end,” in the language of the section, that'the power to discharge members of the Metropolitan Police force is granted.

Section 9 of act 92 of the act of 1869’, fixing the term of office during good behavior, is not repealed. It remains in force, with this limitation, however, that the police commissioners in reducing the police force may “honorably discharge such members” as in their judgment may be needful.

If they desired to reduce the number of police surgeons, the police commissioners under this amendment could have discharged Dr. J. B. Cooper. But in this law there is no warrant to remove him as they did, merely to appoint Dr. P. Schumaker. The removal of Cooper and the appointment of Schumaker was in no sense the exercise of -the authority granted for the purpose of reducing the number of police surgeons. Power granted for one purpose only can not be employed for another.

Giving effect to section 9 of act 92 of the acts af 1869, and also to the section of the act of 1874 quoted, we conclude that the police commissioners could not remove Dr. Cooper for the purpose of creating a vacancy to be filled by the appointment of Dr. Schumaker. No charges were preferred against Dr. Cooper, and he was not legally removed. He is entitled to the office.

It is therefore ordered that the judgment herein in favor of the defendant be annulled, and it is decreed that Dr. J. B. Cooper is entitled to the office of police surgeon; that Dr. F. Schumaker is illegally holding said office, and he is hereby enjoined and inhibited from interfering in the administration thereof. It is further ordered that the defendant, Dr. F. SchumaKer, pay costs of both courts.


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    No. 5722.
    State of Louisiana ex rel. Temple S. Coons v. The Judge of the Superior District Court.
    In the injunction case of Coons v. Cannon et als., on exception of no cause of action being disclosed by the petition, the injunction was dismissed as in case of nonsuit. Plaintiff, alleging that defendants were largely indebted to him, and in possession of the steamer Katie, of which he claimed to be part owner, and that they were about to sell her, had applied for an injunction restraining the sale, which was granted upon his furnishing bond in the sum of $1000. Prom the order dissolving said injunction as aforesaid, plaintiff prayed for a suspensive appeal on his furnishing his bond in tho sum of $250. The district judge refused a suspensive appeal except on a bond of $25,000, and appellant now applies for a mandamus to compel the judge a quo to allow the suspensive appeal on a bond of $250.
    It is true that no moneyed judgment is rendered against the relator, nor is he ordered to deliver any property, but he sought to restrain the defendants from selling a valuable piece of property worth $60,000. The court below dismissed his pretensions. If he obtains a suspensive appeal on a mere nominal bond, he perpetuates the injunction, at all ovonts, until his appeal is disposed of. His injunction bond boiug only lor $1000, it is easily seen that in case of failure, tho defendants are without that security for damages which tho law provides for them.
    Under those circumstances, tho bond which relator should be required to give on his suspensive appeal is not the value of the property in dispute, but tho amount of damages which may result from the improper issuing of the injunction, and which this court thinks would bo covered by the sum of five thousand dollars.
    Application for a writ of mandamus against the Judge of the Superior District Court, parish of Orleans.

      Thomas Hunton, Alfred Shaw, F. B. Farhart, for relator. Hawkins, respondent, in propria persona.

   Morgan, J.

In the suit of Coons v. Cannon et als., plaintiff brought suit to recover from the defendants a large sum of money, and to be decreed to bo part owner of the steamer Katie. Alleging that defendants were in possession of the steamer, and that they were about to-sell her, he applied for an injunction restraining the sale, which was granted to him upon Ms furnishing bond in the sum of $1000. On exception of no cause of action being disclosed by the petition, the suit was dissolved as in case of nonsuit. From this judgment he asked for a suspensive appeal upon his furnishing bond in the sum of $250. The district judge refused a suspensive appeal except on condition of the appellant’s giving bond in the sum of $25,000. He applies for a mandamus compelling him to allow the suspensive appeal upon a bond for $250.

The relator relies upon the case of Hickey v. The Judge of the Fourth District Court, 20 An. 108, in support of his application. The object of that suit was to annul a certain sale and transfer of all the plaintiff’s right, title and. interest in the successions of her grand parents, which she had made to the defendant. There was judgment against him, and he applied for a suspensive appeal, which the district judge refused him, except upon his furnishing bond in the sum of $25,000. This court ordered the district judge to grant the appeal upon his furnishing bond for $250. No moneyed judgment was rendered against the defendant. He was not ordered to restore any property. In effect the decree only reinstated her in her rights as an heir of her grand parents, and entitled her to a portion in their estates. The judgment was properly rendered and has remained undisturbed.

But here the case is different. It is true no moneyed judgment is rendered against the relator, nor is he ordered to deliver any property, but he sought to restrain the defendants from selling a valuable property. The court dismissed his pretensions. If he obtains a suspensive appeal upon a mere nominal bond, he perpetuates the injunction, at all events, until his appeal is disposed of. It.is true he has given an injunction bond in the sum of $1000, but the property is estimated to be worth some $60,000, and it is easily seen that in case of failure, the defendants are without that security responsive in damages, which the law guarantees to them.

In the case of the State v. The Judge of the First District Court, 19 La. 167, it was held that the judgment last appealed from being one of nonsuit only, it is clear that the appellant being bound to furnish his bond and security for a sum exceeding one-half the amount for which the judgment was given against him, and the said judgment being merely for costs, the bond was properly required for the sum of $250.”

In the case referred to, when Walden obtained his injunction, he gave bond in the sum of $20,000. The effect of the injunction was to restrain the City Bank from issuing any order of seizure and sale upon notes amounting to $200,000, secured by mortgage upon certain real estate. On the dissolution of the injunction, he and his sureties were condemned to pay in solido ten per cent, per aunum on the amount of the judgment bond. On appealing from this judgment he gave an appeal bond in the sum of $6000; when the order of seizure and sale first applied for. after the dissolution of the injunction was refused, the district judge was of the opiniou that the bank could not proceed against Walden by the via exeeutiva, so long as the appeal was pending, for that appeal necessarily revived the injunction. When the petition of appeal was presented to him, the lower judge only required a bond and security in the sum of $250.

“But,” say the court, “it is contended that in order to prevent the bank’s obtaining an order of seizure and sale, by virtue of the mortgage, that is to say, to give effect to and to revive the writ of injunction during the pendency of the cause before this court, the appellant ought to have furnished his appeal bond and security for $300,000, as the security on the injunction bond was only given to secure damages, and not the debt. We can not agree to this proposition ; we conceive that, by obtaining his writ of injunction and furnishing the security required by the judge, Walden became entitled to the protection of the court, and to its interposition so as to prevent the seizure and sale of the property mortgaged as long as the matter in controversy remained undetermined. On the dissolution of the injunction with damages in the court below, he took a regular suspensive appeal, which necessarily had the effect of maintaining the injunction, and of leaving the case, and all the orders under it, in the same state in which they were previous to its being dissolved.” But the court went on to say and to decide that “as the writ applied for is not a writ of right, and as we conceive it is in our power to grant it with such condition as will secure to the party who may suffer by it, a sufficient indemnity for the losses, trouble and delay which it may perhaps unjustly and improperly occasion him to sustain, we think it our duty under the circumstances of the case to require that, before the issuing of the writ of prohibition by him prayed for, the applicant shall file with the clerk of this court his additional bond, in favor of the City Bank, with good and sufficient security m solido for the sum of $75,000, conditioned that he shall pay all such damages as shall have been sustained by the said bank, in case it should be decided that the injunction heretofore obtained has been wrongfully sued out, and illegally and improperly kept in force on the appeal before this court.”

Under the authority of this case we feel justified in saying that the • relator is entitled to a suspensive appeal, and that the bond which he should be required to give is, not the value of the property in dispute, but the damages which may result from the improper issuance of the injunction. These damages would, we think, be covered by an additional bond for five thousand dollars.

It is therefore ordered that the rule be made absolute, and that a suspensive appeal be allowed to the relator upon his furnishing bond and security in the sum of five thousand dollars.


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    No. 5539.
    Eugene Rochereau & Co., in liquidation, v. H. Octave Colomb. Third opposition and injunction of Elizabeth Brooks, wife of H. Octave Colomb; W. H. Vredenburg v. Mrs. Elizabeth Brooks, wife of H. O. Colomb, and husband. Third opposition of E. Rochereau & Co., in liquidation. (Consolidated.)
    The only important, question in this case is, could a judicial mortgage, resulting from the recordation oi a judgment against the vendee, attach to the property sold, to the prejudice of the vendor’s privilege and mortgage to secure the price, in consequence of the delay in recording the mortgage ? The answer is negative. The mortgage and privilege were recorded in the parish oí St. dames, where the property is situated, simultaneously with the act of conveyance. As to third persons, the sale had no effect until it was duly recorded where the property is situated. It is certain that the creditors of the vendor might have seized and sold the property before the registry of the sale in St. ¿Tames • parish, free irom any claim of the vendee’s creditors, but if their judicial mortgage had attached as soon as the sale had been made, this could not be.
    APPEAL from the Fourth Judicial District Court, parisli of St. James. Flagg, J.

      Gaudet & Homan, for opponent and plaintiff in injunction and appellee. Berault & Legendre, for Rochereau & Co. in liquidation, appellants. Marr & Foute, for Paul Cook and Samuel Eugler, third opponents and intervenors. Tissot & JuUen Michel, for W. H. Vredenburg, plaintiff and appellee.
   Ludeling, C. J.

On the twentieth of December, 1869, D. F. Kenner, sold to Mrs. E. Brooks, wife of H. O. Colomb, a plantation, situated in the parish of St. James. For part of the price, a note for $7952, with interest, was executed, and a mortgage and vendor’s privilege were retained on the property to secure the payment. This act of sale and mortgage was passed in New Orleans, and the act was recorded in the book of conveyances and mortgages in St. James, ten days after it was executed.

The only important question in this case is, could a judicial mortgage, resulting from the recordation of a judgment against the vendee, attach to the property to the prejudice of the vendor’s privilege and mortgage to secure the price iu consequence of the delay in recording the mortgage ?

The mortgage and privilege were recorded simultaneously witli the act of conveyance. If the delay in recording the act in St. James parish could defeat the vendor’s privilege and mortgage, the necessary delay for recording the mortgage after the agreement to sell or after the signing of the act of sale would also defeat the vendor’s privilege, for the theory of the third opponents is. that as soon as the property was acquired by the vendee their judicial mortgage attached. They cite the case of Lombas v. Collet to support this theory. 20 An. 80. From the statement of the facts in that case we are not informed whether the act of sale had been recorded in the parish before the mortgage was recorded in the mortgage booh, and this point does not appear to have been considered.

As to third persons, the sale had no effect until it was duly recorded where the property is situated.

It is certain that the creditors of the vendor might have seized and sold the property before the registry of the sale in St. James parish free from any claim of the vendee’s creditors. But if their judicial mortgage had attached as soon as the sale had been made, this could not be.

“All sales, contracts and judgments affecting immovable property which shall not be recorded, shall be null and void, except between the parties thereto,” etc. C. C. 2266.

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

Rehearing refused.


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    No. 5111.

    Frank S. Garner, Administrator, v. R. K. Anderson, Tax Collector.
    The'position taken by the plaintiff that the tax collector has no right to sell forfeited lands is not correct. It has already been decided that when the plaintiff repudiates his own title and sets up that of the State he shows no cause to complain, and if the tax collector has no authority, as he alleges, to sell forfeited lands, there will be no divestiture of title, and no injury can result, at least to the plaintiff.
    The tax collector charged with the duty of collecting all the taxes, the delinquent list included, has authority to sell forfeited lands, reserving to the former owner the right of redemption according to the statutory provisions on the subject. The decision given in the case of Hall v. Hall, 23 An. 135, has no bearing on the statutes under consideration, because they were enacted subsequent to the controversy in that case.
    APPEAL from the Thirteenth Judicial District Court, parish of Carroll. Hough, J.

      F. J". Felony, for plaiutiff and appellee. Hiram H. Steele, district attorney, for defendant and appellant.
   Wyly, J.

The plaintiff, the administrator of the succession of Warren M. Benton, enjoins the defendant, the tax collector of Carroll parish, from selling the lands described in the petition for the taxes, penalties, and costs for the year 1871. The court perpetuated the injunction, and the defendant appeals.

Two grounds are urged in this court in support of the injunction:

First — The plea of payment.

Second — The property has been returned to the State on the delinquent list of 1871, and the tax collector has no right to sell forfeited lands.

The first point is a question of fact not established by the evidence. It is true a receipt given by the former tax collector shows a settlement of these taxes by a draft drawn by the deceased on John Chaffe, Bro. & Son. But proof was admitted, without objection, showing that the understanding of the parties was that the draft should not operate as a receipt for the taxes unless it should be honored by the drawees, and it was not so honored.

The position that the land has been forfeited to the State puts the plaintiff out of court, because, as was said in the case of Morrison v. Larkin, tax collector, 26 An., when the plaintiff repudiates his own title and sets up that of the State he shows no cause to complain, and if the tax collector has no authority, as he alleges, to sell forfeited lands, there will be no divestiture of title and no injury can result, at least to plaintiff.

But in the case referred to, after a thorough examination of the question, this court held that the tax collector charged with the duty of collecting all the taxes, the delinquent list included, has authority to sell forfeited lands, reserving to the former owner the right of redemption, stated in section 6 of the act 47 of the acts of 1873/ provided the amount bid shall exceed the total amount of taxes, penalties and costs due to the State. The plaintiff, however, cites the case of Hall v. Hall, 23 An. 135, to show that after lands have been forfeited to the State, the tax collector ceases to have authority in relation thereto. That case arose prior to the passage of the act No. 42 of the acts of 1871, conferring authority, as indicated in the title, upon tax collectors to collect back taxes, and authorizing the delinquent lists to be put in their hands for the purpose. The decision cited has no bearing on the statutes under consideration, because they were enacted subsequent to the controversy in that. case.

Our conclusion is the injunction must be dissolved without damages. See Morrison v. Larkin, tax collector, 26 An.

It is therefore ordered that the judgment herein be annulled, and it is decreed that the injunction be dissolved and plaintiff pay costs of both courts.


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    No. 3932.
    Charles Joseph Gourgues v. Charles T. Howard et als.
    There can “be no damages awarded for an illegal arrest, unless the same was maliciously procured.
    APPEAL from the Fifth District Court, parish of Orleans, heawmont, J. Jury trial.

      A. J. lissot, for plaintiff and appellee. Joseph P. ITornor, for defendants and appellants.
   Morgan, J.

Libano is an authorized vender of lottery tickets in the company of which Howard, one of the defendants, is a manager. Bernard is in the employ of Libano, and is authorized by him to sell tickets. Libano caused the plaintiff to be 'arrested on the charge of having forged a ticket purporting to have issued from his office. He was in actual custody and confined about an hour, when he was released ou bail. The charge was investigated by a committing magistrate. Plaintiff was sent before the Criminal Court. There the proceedings were dismissed.

He now sues Howard, Libano, and Bernard for $25,000 damages for malicious arrest and imprisonment. He had a verdict for $1000. Defendants appeal.

As regards Bernard, he seems to have had nothing to do with the arrest. Consequently, the judgment against him was wrong.

As regards Howard, he diu not make the affidavit upon which the arrest was made, nor did he cause the plaintiff to be arrested. As to what took place in his office between him and Libano and Gourgues, there appears to be some discrepancy in the evidence, Gourgues swearing that Howard told Libano to have him arrested, and Libano swearing that Howard only told him that “he knew what to do.” This is not sufficient grounds for making Howard responsible for malicious arrest.

As regards Libano, it appears that the plaintiff claimed from Bernard the payment of a prize represented by a ticket which the plaintiff alleges he purchased from Libano’s office through Bernard. Bernard pronounced the ticket a forgery, and refused to pay. Plaintiff then met Libano in the street and complained to him that his ticket had not been paid. Upon being shown the ticket Libano pronounced it to be a forgery. They went together to the office of the company and examined the list upon which, by regulation of the company, the numbers on the ticket should appear, the plaintiff protesting that he had nothing to do with the list, and claiming that having purchased the ticket he was entitled to be paid-the prize which it had drawn. Some altercation took place between them, each threatening the other with arrest, and each going together to the magistrate’s court to obtain a warrant of arrest. For some reason the magistrate refused to issue a warrant against Libano, but he issued one against Gourgues.

There can be no damages awarded for an illegal arrest-, unless the same was maliciously procured. 6 An. 577. And we do not see any malice on the part of Libano. He certainly believed that the ticket was a forgery, and in this belief he is fortified by the testimony of all those who knew Bernard’s writing. *

Under these circumstances we do not see any foundation for the plaintiff’s claim.

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.