text:
    No. 10,898.
    State of Louisiana vs. M. J. Hart.
    It is the settled jurisprudence of this court that the series of consolidated bonds of this [State known as Agricultural and Mechanical College and Seminary bonds are illegal and void, having been declared null by the Constitution of 1879; and this nullity may be reached and declared in the hands of any third holder, however innocent in their acquisition.

      2. That any one who shall collect from the State interest on coupons clipped from said bonds, after he has become adyised of the illegality of such bonds, is under obligation to make restitution to the State of the amounts thus paid by the State in error.
    3. In case the State Treasurer, having official custody and possession of said illegal bonds, shall fraudulently and feloniously convert same to his own use, and embezzle same, and collect unduly the interest thereon, any one aiding, assisting and conspiring with said treasurer in so doing becomes liable to the State for the amount of interest thus illegally obtained.
    4. In case such treasurer shall pledge such illegal bonds for a loan of money, and the pledgee shall, after obtaining knowledge of their illegality, repledge them again to other persons, this state of facts constitutes no defence to the State’s demand for possession of the bonds.
    5. It is within the power of the court, under such a state of facts, to reach and declare the nullity of the bonds, and decree the right of the State to have same surrendered to her.
    APPEAL from the Oivil District Court, Parish of Orleans. King, J.

      M. J. Cunningham, Attorney General, and Walter 3S. Rogers for Plaintiff and Appellee:
    The State is not responsible for bonds fraudulently issued and put into circulation.
    The defendant having received into his possession the trust funds of the State, when he had no right or claim to them, and covered them into liis own funds and returned them to the despoiler, must restore the same — a like condition results when he so receives the State funds and applies them to his personal use.

      Farrar, Jonas & Kruttsehniit for Defendant and Appellant:
    1. The State is not entitled to judgment for the surrender of the bonds claimed by her herein:

      (а) Because she has not prayed for that relief.
    (б) Because defendant acquired them bona fide, for value, and before maturity.
    (c) Because the State should not be allowed to invoke judicial process to wrest from the hands of her apparent oreditor the sole evidence of the latter’s claim against her. State vs. Gaines, decided by this Honorable Court, but pending on an application for a rehearing.
    The State is not entitled to recover the amounts alleged to have been collected by Hart from her for invalid coupons:
    (a) Because if defendant had collected the coupons, he would not be liable to return their amount. Cooke vs. the United States, 91 U. S. 404; State vs. Wells, Hargo & Co„ IB Cal. 336.
    (b) Because defendant did not collect the amount of any invalid coupons.

      3. The State is not entitled to recover from the defendant the amount of checks purporting to be in payment of coupons, and alleged to have been issued by the Treasurer without consideration:

      (a) Because it is not shown that they wore issued withoutconsideration, or that they were not issued in payment for coupons.
    (&) Because it is not shown — as to most of the checks — that Hart ever had any ■ thing to do with them.

      i. Where a firm business is conducted in the name of one of the partners, his signature to a note or contract, or any other act done by him or in his name, is prima facie what it purports to be, his personal act. In other words, the name presumptively represents the person, and not the firm. Bates on Partnership, Sec. 440, and authorities there cited.
   The opinion of the court was delivered by

Watkins, J.

In this suit three distinct claims are made against the defendant in behalf of the State as plaintiff, to-wit:

1. For ($30,760) thirty thousand seven hundred and sixty dollars, amount of certain checks issued by E. A. Burke, Treasurer, purporting to have been in payment of interest coupons on consolidated bonds that were in fact never surrendered, or, in other words, checks issued without any consideration, and payable to the defendant’s order.

2. For ($24,300) twenty-four thousand three hundred dollars, as the amount of interest alleged to have been collected by the defendant, or through his procurement, on State bonds alleged to be void.

3. For the surrender and delivery of certain bonds that are alleged to be illegal and void, and unlawfully in the defendant’s possession— that is to say, bonds bearing the numbers 728, 735, 755, 766, 775, 782, 814, 818, 829, 882, 897 and 890 of the denomination of $1000 each and aggreating $12,000 in amount, and the bonds bearing the numbers 1902, 1919, 1920, 1821, 1939, 1978, 1984, 2003, 2005, 2007, 2009, 1954, 1937, 2014, 1933, 1967, 1923, 1948, 1918, 1932, 1947, 2041, 2061,2052, 2040, 2042, 2043, 1928, 1915, 1972, 1873, 1979, 2022, 1955, 1985, 2033, 1945, 1968, 2064, 1930 and 1935 of the denomination of $500 each, aggregating $20,500 in amount.

The prayer of the petition substantially conforms to its averments, though it does not contain any alternate demand for the value of the bonds as a quantum meruit, nor any request that judgment condemn the defendant to surrender same — though it is concluded with a demand for general relief.

The cause was tried by a jury, and a general verdict was rendered in favor of the State for the sum of fifty-five thousand and sixty dollars (§55,060) without interest, sustaining the writ of sequestration and commanding the defendant to surrender and deliver up all of the bonds claimed; but the judgment rendered commanded him to deliver certain specified bonds — that is to say, all of the $1000 bonds claimed in the petition, except bonds numbered 766 and 775, and further except bonds of the denomination of $500, numbered 2007, 2009, 2052, 2042, 1915 and 2038. And the judgment further decrees the delivery of bonds numbered respectively 1955, 2023, 2027, 2029, 2058 and 1942 of the denomination of $500 each, which are not claimed in the suit at all.

From that judgment the defendant has appealed.

The theory upon which the Attorney General proposes to hold the defendant is, as we gather from his petition, substantially as follows, viz.:

That under the provisions of the Constitution of 1879, which effected a settlement of the public debt, certain bonds, which had been issued to the Agricultural and Mechanical Oollege and to the Louisiana State University or Seminary Fund under the act of 1874, were declared null and void, and ordered destroyed. That the sums due said institutions were recognized as a debt of the State, and ordered to be placed to the credit of said college and seminary of learning on the boohs of the State Auditor, and interest thereon paid out of the current school fund. That the aforesaid bonds were held by the State, through the Treasurer, in trust, and were in the possession of the 'Treasurer in 1879 and 1880 and up to April, 1888, as is evidenced by the official report he made to the Governor, and which was transmitted by him to the General Assembly in January, 1880, and which report was, by the General Assembly, printed and became a public document under the law, and contained a full and complete de.scription of said college and seminary bonds — setting out their numbers and amounts. That the Agricultural and Mechanical College •bonds were of the-denomination of $1000 each, issued in pursuance •of the funding act, it being Act No. 3 of 1874, and bore the numbers 710 to 905 inclusive, and aggregate in amount $196,300 — including two small bonds for $100 each; and that the university or seminary bonds were of the denomination of $500 each, likewise issued under the funding act of 1874, and bore the numbers 1902 to 2065 inclusive, consisting of 164, and aggregating in amount $82,200, including two small bonds of $100 each.

“That all of said data will more fully appear by reference to said official report of the Treasurer hereto annexed and made a part of (the petition) for greater certainty.

“That'the Legislature of the State, by a formal resolution duly passed and signed in accordance with law, ordered said bonds destroyed,” but that in fact said bonds were not destroyed, and that, on the contrary, said Treasurer “wrongfully and feloniously did convert the same to his' own use and embezzled said described bonds.”

That the defendant was interested with said Treasurer in his wrongful and illegal conversion of said bonds, and thereby became possessed of same, and pledged, dealt in, and negotiated by sale and exchange the. said bonds, “ and is the holder of a large quantity of them at this day.”

That not only was the defendant a broker and made such negotiations for himself, but he acted and operated through other brokers- and the stock exchange, and other agents, in selling and pledging .said bonds.

That he formed a copartnership with Alfred Jardet and opened an account with himself in the negotiation of State bonds; and that he carried on a similar business through Lawrence Conroy as his agent — he using the defendant’s name in signing notes, checks, etc.

Then the specific averment is made that the defendant did use, pledge and obtain money on said illegal and void bonds to the extent of $110,000, in this, to-wit:

That on the 17th of February, 1882, he pledged to the Germania National Bank $53,000 of said bonds, which he transferred as collateral, on that date, to E. H. Levy and L. Jardet.

That on the 8th of March, 1882, he pledged to the same bank, to secure a loan, $4000 of said bonds, and redeemed the same on May 12, 1882.

That on May 10, 1882, he pledged ito tsame bank $20,000 of said bonds, and redeemed the same on the 18th of that month.

. That on July 24, 1882, he pledged to said bank $18,000 of said bonds, and redeemed the same on the 19th of September following.

That on October 10, 1882, he secured a loan of $12,000 from the New Orleans National Bank on a pledge of such bonds, and on the 2d of November of same year he obtained another loan of $5000 on a pledge of such bonds.

The averment is then made “that in all of said transactions said Hart instructed his agents and partners to preserve the identical ■bonds delivered by him, and to all of which were attached coupons for interest past due and to become due.”

That in October, 1883, he borrowed from John Klein & Co. a sum of money and pledged $28,000 of said bonds to secure the loan, and took up same on the 27th of October, 1885.

That from July, 1884, to December 28, 1885, he pledged to Henry Bier $54,200 of said bonds to secure a loan of $30,800, and to all of said bonds were attached interest coupons due from July, 1880, with the exception of bonds numbered 809, 821, 823, 843, 844, 853, 884 and 889, from which said defendant had cut the coupons, up to and including No. 20, due January, 1884.

It is further averred that the defendant, “ in pursuance of his agreement and in consideration of his interest in said transactions with said E. A. Burke (treasurer) did compound, by way of account, with said Burke, as to all of said bonds — for it is true that said Burke did have in his possession coupons of one hundred and five of said bonds, part of which, in August, 1881, he, through his agent, one Cockerton, collected from the State, the State National Bank, all of which will appear in detail as follows, to-wit:

“ Bonds numbered 719, 721, 722, 723, 724, 725, 728, 730, 731, 732, 733, 734, 738, 739, 74.0, 741, 742, 745, 846, 747, 748, 749, 750, 751, 752, 753, 754, 755, 760, 761, 762, 768, 870, 771, 775, 778, 780, 783, 789 and 797 — a total of forty (40) coupons, bearing the number 25.

“Bonds numbered 732, 801, 802, 803, 806, 807, 808, 811, 814, 815, 816, 819, 821, 823, 824, 827, 831, 832, 835, 836, 837, 842, 843, 844, 851, 852, 853, 854, 863, 864, 865, 866, 867, 870, 872, 873, 877, 878, 882, 883, 884, 885, 886, 887, 889, 890, 891, 894, 895, 896, 802, 903, 904” — a total of fifty-three coupons, bearing the number 24.

Bonds numbered 3906, 5606, 5607, 5608, 5609, 5610, 5611, 5612, 5613, 5614, 5789 and 6185, a total of thirteen (13) coupons.

It is then averred “that the above numbers represent a total of 105 consolidated bonds of $1000 each, and are all numbers published as belonging to the Agricultural and Mechanical Oollege bonds, and of bonds exchanged for constitutional bonds and not destroyed.”

Besides these there were coupons of the five hundred dollar bonds of the following numbers, to-wit: 2,82, 1627, 1802, 1908, 1910, 1920, 1821, 1822, 1928, 1938, 1847, 1949, 1951, 1952, 1860, 1976, 1078, 1682 193, 194, 2002, 2003, 2005, 2041, 2013, 2018, 2037, 2029, 2032, 2035, 3840, 3041, 3042, 3043, 3047, 3048, 3055, 3056, 3058, 3059, 3060, 3061, 2438, 2440, a total of 44 coupons.

That the total amount represented by coupons is as follows, to-wit:

One coupon No. 24 at $20..........................................................................$20 00
105 coupons No, 25 at $20.........................................................................2,100 00
44 coupons No. 25 at $10....................................................................... 440 00
2 coupons No. 25 at $2.......................................................................... 4 00
Total amount..........................................................................$2,564 00

The averment is then made that in February, 1886, the defendant pledged to the Germania National Bank $109,700 of said bonds to secure a loan, and that said bonds remained thus pledged until the 21st of March, 1887; and on the 1st of April, 1887, he pledged to the Mutual National Bank $100,000 of said bonds to secure a loan of $85,000, which was paid on the 1st of November, 1887.

That said negotiations continued, until, in part, the pledging of said bonds was changed, to-wit: “In January, 1888, and from said date, up to September, 1888, when said Hart, through his broker, sold $65,000 of said bonds, and the same are now held by various persons in this city; and in addition thereto, the said Hart has now in his possession of said bonds ” numbers given above and reiterated in the judgment, aggregating $32,500 — that is to say, thirteen one thousand dollar bonds, and forty-one five hundred dollar bonds.

Then it is further alleged that the defendant, in addition to the bonds’enumerated, viz.: the Agricultural and Seminary bonds, “used as in the manner set forth, by pledging, and did pledge and negotiate by sale and exchange, certain consolidated bonds of the State, and numbered 5606, 5607, 5608, 5609, 5610, 5611 and 5612, each for the sum of $1000; that said bonds were delivered to said E. A. Burke, State Treasurer, whose duty it was to destroy the same; but, unmindful of his duty, he feloniously and corruptly converted same to his own use, and (the defendant) Hart, under his terms of agreement with said Burke, negotiated the same in the manner and form as above set forth.”

The charge is then directly made that after December, 1885, and possibly after August, 1886, the defendant “procured to be altered all of said bonds ” — that is to say tbe consolidated bonds — “ and coupons aforesaid, by adding to them the words : ‘ Interest reduced to two per centum per annum from January first, one thousand eight hundred and eighty, and four per centum per annum thereafter,’ purporting and pretending that said bonds were of full force and effect, and valid — making said alteration an essential change, with intent to deceive, and to give to said bonds an apparent validity, and to make them negotiable upon the market, and to collect the interest on said coupons.”

It is further averred that Burke, treasurer, did draw, by check, out of the public moneys of the State on deposit with the fiscal agent, the State National Bank, the sum of $30,760, purporting to be in payment of coupons numbered 13, 14, 15, 16, 17 and 18, without specifying the particular bonds either by class or number. “ That said checks were drawn to the order of M. J. Hart and Lawrence Conroy, but were all used for account of said Hart, and placed to his credit, and by him cheeked out in payment of his and the said Burke’s private 'or personal matters.”

Then follows a list or schedule of said checks, viz.:

“ October 17, 1882, to M. J. Hart, for $1040.

“ October 17, L882, to M. J. Hart, for $1040.

“ May 23, 1883, to Conroy, for $2500.

“ May 23, 1883, to L. Conroy, for $2500.

“ May 26, 1883, to M. J. Hart, for $2000.

“ May 26, 1883, to M. J. Hart, for $2000.

“ September 28, 1883, to L. Conroy, for $2000.

“ September 28, 1883, to L. Conroy, for $2000.

t! July 3, 1883, to L. Conroy, for $6000.

“July 3, 1883, to L. Conroy, for $2000.

“ April 10, 1884, to L. Conroy, for $2720.

“ April 15, 1884, to L. Conroy, for $2960.”

Then follows the averment that no consideration was given by said Hart for said funds; that said checks were false and fraudulent in their collection and appropriation, and the sums thereof should be refunded to the State.

That Hart well knew he was not entitled to the same, or to collect the same; and that the money was paid in error by the fiscal agent of the State.

In conclusion, the general allegation is made that Hart was possessed of full knowledge of the said transactions, and that in their arrangement and consummation a conspiracy existed between them —Hart and Burke — to defraud the State, and to use for their own personal gain the said securities and moneys, against good conscience and morals, and to the great injury and detriment of the State. Therefore the defendant is indebted to the State for the sums set forth in the sum of $30,760, illegally collected from the State treasury, on the cheeks of Burke, Treasurer.

But, in order to bring the discussion of the issues of the case within narrower limits, it will be necessary to paraphrase the allegations of the petition; and, by so doing, we find them to be of the fol - lowing purport, viz.:

First — That the Agricultural and Mechanical College, and Seminary bonds were held by the Treasurer in trust, and were actually in his physical custody and possession during the years 1879 to 1888, inclusive, and during which period of time same were by the Constitution declared void, and the General Assembly directed and required to destroy them.

Second — That the Treasurer having official custody of said bonds, unlawfully and fraudulently embezzled same, and converted them to his own use; and that the defendant was interested with said Treasurer in the aforesaid illegal conversion of said bonds, and dealt in same by pledge, negotiation, sale and exchange, and is the present holder of a large number of same.

Third — That in the course of his negotiations, the defendant, not only personally superintended same as a broker, but acted through other brokers and agents and obtained money on said illegal bonds to the extent of $110,000 — enumerating various transactions as having occurred between the dates February 17, 1882, and December, 1885.

Fourth — That matured interest coupons were attached to all of the aforesaid bonds from date July 1, 1880, with the exception of bonds numbered 809, 821, 823, 843, 844, 853, 884 and 889, “from which the defendant had clipped the coupons up to and inclusive of No. 20, due January, 1884.”

Fifth — That Burke, Treasurer, had in his possession coupons of 105 of said bonds, part of which he collected in August, 1881, through his agent, Cockerton, through the State National Bank — same being the seventy-seven bonds above enumerated.

Sixth — That in addition to the foregoing, there were coupons on the forty-four $500 bonds which are enumerated also — being those alleged to be in the possession of Burke.

Seventh — That the amount claimed of defendant, on the score of interest thus collected, aggregates $2564.

I.

First in order comes the check transactions, it being a claim made of the defendant for $30,760, for this, to-wit: that Burke, Treasurer, issued certain checks purporting to have been in payment of interest coupons on consolidated bonds, that were, in fact, never surrendered — that is to say, checks that were issued without consideration, and made payable to the defendant, or to his agent, and in this way same were unduly collected from the fiscal agent of the State in error.

It is alleged that the aggregate amount thus drawn purported to have been in payment of coupons numbered respectively 13, 14, 15, 16, 17 and 18, though the particular bonds to which said coupons belonged were not enumerated. But it is alleged that all of the sums collected were received and used by the defendant, being placed to his credit and by him cheeked out of bank in payment of his and Burke’s private or personal matters.

There are twelve checks in number, and they embrace the dates October 17, 1882, and April 15, 1884 — four of them, aggregating $6080, being alleged to have been made payable to the order of defendant, and the remaining eight, representing $24,680, alleged to have been made payable to the order of L. Conroy — who was defendant’s agent for certain purposes.

The theory upon which the plaintiff proposes to hold the defendant is, that Burke, Treasurer, having official custody of the consolidated bonds, unlawfully and feloniously embezzled same and converted them to his own use; that he issued the aforesaid cheeks, as in payment of certain interest coupons, which, in point of fact, he did not surrender; and that the defendant, being interested with said Burke in said illegal conversion, and the collection and appropriation of the money collected, for his own and Burke’s private account, was responsible therefor.

The judge a quo accepted this theory, and charged the jury accordingly, the portion of his charge which is applicable to this question being to the effect that if the jury find from the evidence that the State had paid interest on coupons, then it was their duty “to find from the evidence whether or not the defendant hasreceived such interest on the checks of the State; ” if so, then it was their duty to find a verdict “for the amount of interest received by the defendant, and for the amount of coupons so coZiecfecZ.'LFor the State, under the law, having received no consideration for the money so paid to the defendant, it must be returned by the defendant to the State, same having been paid in error, and the defendant having no legal right to collect or receive the same.”

He charged the jury further that if they should “find from the evidence that defendant did not receive said interest, or any portion thereof, (their) verdict must be for the defendant, rejecting the plaintiff’s demand for §30,760, the amount of said interest claimed to have been paid on the checks of the State.”

No objection was urged by plaintiff’s counsel to this charge, and we must presume that it was perfectly satisfactory.

We are, therefore, to ascertain whether the defendant was interested with Burke in the aforesaid illicit transactions; or, if he was not, whether he received money from the State, on the payment of coupons, through the medium of the Treasurer’s checks unlawfully issued.

Now, while it is true that with reference to the sums that were by Burke checked out of the treasury, there are no particular bonds designated, yet taking the list of cheeks that is furnished and their dates, and it is evident that all the transactions represented by them occurred between the 17th of October, 1882, and April 15, 1884, and during the lifetime of L. Oonroy.

Recurring to the dates specified in the petition as those on which the defendant was engaged in bond transactions, and it will be seen that same began on the 14th of February, 1882, by a pledge of $58,000 bonds to the Germania National Bank; and that the subsequent transactions occurred on the 8th of March, 1882; on the 10th of May, 1882; on the 12th of May, 1882; the 24th of July, 1882; on the 19th of September, 1882; on the 10th of October, 1882; on the 2d of November, 1882; on the 10th of July, 1884; on the 27th of October, 1885, and on the 28th of December, 1885. Comparing dates, and it appears that only one of the transactions which are detailed in the petition is alleged to have taken place within the period when those checks were issued; and the averment of the petition is that the transaction of that date was a loan, which the defendant secured from the New Orleans National Bank, of $5000, on a pledge of $18,000 of bonds, which had been previously pledged to the Germania National Bank, on the 24th of July, 1882, prior to the issuance of the first of said series of checks.

It further appears that the check transactions occurred antecedent to the date of defendant’s pledge of $54,000 of bonds to Henry Bier, on the 28th of December, 1885, from which it is alleged that the defendant had cut the coupons up to and inclusive of coupon No. 20, due January, 1884; and likewise antecedent to the date of defendant’s pledge to the Germania National Bank, of $109,700 of bonds, in February, 1886; and, also, antecedent to his pledge to the Mutual National Bank of $100,000 of bonds on the 1st of April, 1887.

It further appears from the allegations of the petition that in all the various bond transactions of the defendant, prior to the 1st of September, 1888, he acted as broker or agent in negotiating pledges of bonds; and that it was subsequent to that date that he acted in the capacity of owner of any of said bonds, or made sales of them in market.

Hence it is from this standpoint that we are to view the defendant’s liability for restitution of interest that is alleged to have been unduly collected from the State.

It is in proof that the defendant was absent habitually during the years 1883 and 1884, in New York, and was only in New Orleans for a few days at a time, and that most of the transactions that occurred in those years were negotiated through L. Oonroy.

One witness states that he received two checks of $2000 each, from L. Oonroy, on September 29, 1883, and credited same to the account of Hart and Oonroy, though the account was, ordinarily, kept in the name of Oonroy alone. He says: “ I presumed it was Hart and Oonroy, since Mr. Hart was always telling me that Mr. Oonroy was a partner with him in the city time business.”

He then makes this explanation, viz.:

That simply shows that, on September 29, 1883, I received two checks of $2000 each, and they were credited to the account of L. Conroy. I can tell no more about it. I don’t know what it was for, or anything; I simply know it is credited to his account.”

He further states that on July 3 he finds another entry on his cash book: “ L. Oonroy, $2000.”

That he knows “ nothing further than that he received the checks but does not know to whose order the checks were made payable. His books do not show to whom they were drawn, and he knows nothing beyond what his books show.”

The defendant, as a witness, states that L. Conroy had charge of Ms city time business, for a portion of the profits during the years 1883 and 1884.

That the money represented by the different checks was paid by Major Burke to Mr. Oonroy, for the accrued interest on Ms different loans.

Major Burke informed witness that he had given Mr. Oonroy the coupons to cover that, and asked me to give the checks to Oonroy. I found afterward that Conroy had drawn a check for a like amount on “ May 31, 1883, $4000.” “ Mr. Burke,” states the witness, “said that he did not like to draw the checks to his own order, being State Treasurer.”

They were coupons, he said, he had got from the bonds that he had' been carrying for different parties — I mean to say that other parties were carrying for him."

Q. “ Did Major Burke tell you who held the coupons? ”

A. “ He told me that Mr. Conroy held the coupons. I asked Mr. Conroy about it and he verified the statement.” .

Q. “ Conroy held the coupons and he got the checks?”

A. “Yes, sir.”

Q. “Are these the only two cheeks you received in person? ”

A. “ That is all.”

He says there is no record in his books — those kept by Oonroy — of the two checks of September 28, 1883, for $2000 each, ever having been deposited. Pinds no record of check dated July 3, 1883, for $2000, and one for $6000 payable to L. Conroy — no record of these checks having gone into the business.

He then refers to a check for $2960 which was deposited, but it was payable to the order of W. B. Stansberry, and bears date April 16, 1884. It is evident that this check is not embraced within the calls of the plaintiff’s petition, and need not be taken into account in argument.

This .witness distinctly and emphatically states that he “ never received any coupons, nor delivered any to Major Burke for which he ^gave a check. Never cut off interest coupons and collected them.’

Under this state of facts — and a critical examination of the entire record shows no other — it is difficult to resist the impression that this demand of the plaintiff’s petition is not made out.

The judge a quo charged the jury “that the burden of proof is upon the State to prove the allegations contained in her petition,” and that “ the proof offered must be sufficient to enable them * * * to grant the relief prayed for.”

He charged the jury further, that if they should “find from the evidence that L. Oonroy was the agent of defendant, or did business for him in his own name, then the defendant is only bound by the aets of Conroy while acting within the scope and in the course of said business.”

This is unquestionably the law, and the plaintiff’s counsel did not demur to the charge.

It appears evident that whatever agency Oonroy had in reference to the checks in question it did not come within the scope of his employment or defendant’s responsibility, and consequently he incurred no liability to the State on that score.

There is certainly no evidence to show that the checks were issued in payment of coupons or fraudulent bonds, and particularly in payment of coupons numbered 18, 14, 15, 16, 17 and 18 as charged, though it is clearly shown that they were actually given in payment of coupons, and consequently for a consideration.

II.

The second demand of the petition is that for |24,800 as the amount of interest that defendant is alleged to have collected, or which was collected through his procurement on illegal bonds.

First enumerating in detail the various bond transactions of the defendant with different persons between the 17th of February, 1882, and December 28, 1885, the petition alleges that “to all of said bonds were attached interest coupons, due from July, 1880, with the exception of bonds numbered 809, 821, 828, 844, 858, 884 and 889, from which said defendant had cut the coupons up to and including coupon No. 20, due January, 1884.”

And it further alleges that in pursuance of his “ agreement, and in consideration of his interest in said transactions with said Burke, defendant did compound by way of account with said Burke as to all of said bonds, and it is true that said Burke did have in his possession coupons of 105 of said bonds, part of which, in August, 1881, he, through his agent, one Oockerton, collected from the State” — enumerating them by numbers.

There are no other bond's that are indicated by numbers as those from which coupons were clipped by Burke or the defendant and collected from the State, but there are general averments which are sufficiently comprehensive to cover the residue of this particular demand.

We have made a painstaking examination of the record in the vain endeavor to ascertain the proof upon which the jury rested their verdict in favor, of the State on this demand.

The proof does not disclose that the defendant personally, or through any agent of his, made any collection of interest coupons while the bonds were in his possession. While the proof does show that the defendant did have many and large transactions in State bonds, aggregating hundreds of thousands of dollars — and many of such dealings with Major Burke — it does not show the number of illegal bonds that passed through his hands, and hence it is a matter of impossibility to trace the various coupons on such illegal bonds. State bonds were marketable, and were daily bought and sold on change without suspicion or doubt, and the defendant testifies that he was not aware of any doubt of the legality of the bonds he.dealt in until the bond exposé of 1889.

It is evident that the judge a quo understood the success of plaintiff’s case to depend upon proof of a combination or conspiracy between the defendant and Major Burke, as his charge to the jury on that question will attest, for it says: “If you find from the evidence that Burke, State Treasurer, wrongfully converted said bonds to his own use, and that the defendant was interested with him in said wrongful and illegal conversion, and assisted said Burke in negotiating said bonds, and in collecting the interest thereon. * * * And that the State paid interest thereon from January, 1880, to July 1, 1889, then your verdict must be for the plaintiff for $2é,300 interest on said bonds, or whatever portion thereof the evidence before you shows that the State has paid.”

And “ if you find from the evidence that the defendant was not interested with said Burke in said wrongful and illegal conversion, and did not assist Burke, as stated above, then your verdict must be for the defendant on the claim for interest made by the State for $24,800, on $100,000 State bonds.”

This portion of the charge appeared to have been acceptable to the plaintiff’s counsel, as he failed to except thereto or reserve objection.

Quite a number of brokers and bank officials were interrogated with regard to the defendant’s transactions in State bonds, without any circumstance being elicited tending to show the existence of such a conspiracy — though it did elicit the fact that there were many of the illegal bonds that figured in those dealings.

One witness who was on particularly intimate business relations with the defendant speaks of one lot of 180 coupons — detached coupons, which represented $1800 — which he is confident of having received from the defendant or some one of his employés or agents. But he afterward qualified this statement by saying that he “ could not say that they were all handed to him by Mr. Hart, but there were some of them that certainly were.” He could not say “that they all were, because there were several different amounts of them.”

This, however, the defendant positively denies. The present Treasurer states “that there is in his office no means of telling where any of the illegal payments of interest were made. Nothing to show upon what date any of the illegal payments of interest were made.”

The Auditor states that his office had nothing to do with the coupons, and he could not tell whether the Treasurer paid out money in payment of interest coupons prior to 1888 or not.

A confidential agent of Major Burke was interrogated on the part of the State, and while he admitted that he handled a large number of bonds for him — over $200,000 — by negotiating and borrowing money on them for Major Burke, and some from the defendant, yet he states nothing tending to show any conspiracy, or interest in these dealings on the part of the defendant. He says “there were many and large transactions between Major Burke and Mr. Hart, with which he was familiar. These transactions were conducted through Oonroy, and checks passed both ways.”

A clerk in the office of Major Burke during the time he was Treasurer — a gentleman who was evidently upon close business as well as friendly relations with him — was interrogated by the State, and he was asked this question:.

Q,. “Did you ever have any conversation with Mr. Hart, at any time, in relation to bonds? ”

A. “ Not in relation to any bonds or coupons, or anything of the kind. I met him occasionally. We have always been friends.”

Q. “Did you ever have any conversation with him about the checks?”

A. “No, sir; I never mentioned to him anything in regard to the checks.”

This witness states that from 1882 to 1888 he had almost exclusive control of the Treasurer’s office, because Major Burke was frequently absent.

After a close investigation of the record, we are unable to agree with the conclusions of the jury on the demand under consideration. There is certainly no evidence of any conspiracy between the defendant and Burke, and there is nothing to show, with any degree of certainty, the amount of interest Burke collected from the State. The State has .evidently failed to discharge the burden of proof that the law imposes upon every plaintiff, to make out a claim against the defendant with reasonable certainty. Failing in this she is not entitled to judgment on this score.

III.

On the last proposition of the plaintiff, that the defendant must surrender the bonds enumerated as being in his possession, there is neither much evidence to consider or argument to make.

Accepting the doctrine that is announced in Pugh vs. Moore, Hyams & Co., 44 An. 209 — and to which this court stands thoroughly committed — in reference to the illegality of the consolidated bonds in question, and treating them for the purposes of the argument as absolutely and inherently null and void, on what theory is the defendant to be held to surrender them under a judgment of this court?

The bonds claimed are described in detail by their respective numbers, and the verdict of the jury was in favor of the State commanding the surrender of those described, less certain exceptions already enumerated; and judgment was rendered accordingly — sustaining the writ of sequestration.

The writ of sequestration does not appear in the record, nor the sheriff’s return showing his action in the premises, notwithstanding an order was made for the issuance of the writ.

Referring to the defendant’s answer we find the following admission, to-wit:

That the defendant was, at the time of the institution of the suit, in possession of twelve bonds of $1000 each, and forty-one of $500 each, aggregating $32,500 — of the denomination called consolidated qonds; but said bonds “ had, long prior to the institution of this suit, been, by defendant, pledged as security for debt due by him to persons residing outside of the State of Louisiana, who still hold same.”

On this question there is but little testimony other than that of the defendant himself, and the substance of it is as follows:

That he acquired the $32,500 of bonds mentioned from Major Burke as pledges for money loaned on them; but at the time he had no knowledge of their illegality, and no reason to suspect their validity; but that said bonds-are not in his possession.

Q. “And you gave the consideration which you have already mentioned to him for them?”

A. “Yes, sir.”

Q. “ Burke pledged those bonds to you?”

A. “Yes, sir.”

Q. “And you have held them in pledge since?”

A. “Yes, sir.”

Q. “Before the institution of this suit, what had you done with these bonds Mr. Hart? Where were they at the time this suit was filed — say on the 25th of February, 1890?”

A. “ I pledged the bonds, sir.”

Q,. “ They were in this State, at the time, were they?”

A.'“No, sir.”

Q,. “ Were they here at the time of the expose of Burke, say in September, 1889?”

A. “Yes, sir.”

Q. “ How long did they remain here after that?”

A. “Oh! sometime.”

Q. “ Well, about?”

A. “I think that I had given them to the party about a month previous to this suit, to the best of my recollection.”

Q,. “A month previous to the institution of this suit?”

A. “Yes, sir.”

On the trial the judge a quo charged the jury on this question as follows, viz.:

“ If you find from the evidence that Burke pledged to the defendant bonds not belonging to him, and that defendant gave Burke money therefor, and holds said bonds under said pledge, or that the defendant after being informed that said bonds were invalid pledged them to other persons, then I charge you that these facts are no defence to the State’s suit for the bonds, and your verdict must be on the bonds for the plaintiff.”

This part of the charge does not come within the scope and provisions of the defendant’s exception, and consequently it may be considered satisfactory; and, as it is a fact admitted by defendant, that he repledged the bonds to parties residing outside of the State, after it had become known that they were illegal and fraudulent, such pledge is no defence to the action of the State — on the theory of the case of Pugh vs. Moore, Hyams & Co., 44 An. 209, and Herwig vs. Richardson & May, 44 An. 703. See, also, State of Louisiana vs. M. J. Hart, No. 10,652, just decided.

While it is true that these bonds are not actually in possession of the defendant, technically they are — same having been pledged only, and may be recalled at any time the debt is paid.

Under these circumstances this court, in the exercise of ils equity powers, may decree the right of the State to have and recover said bonds from the defendant, and to declare them absolutely null and void in his hands, or that of any present or future holder thereof.

On the admissions of the defendant in his answer, the judgment should be so amended as to make it correspond, in respect to the numbers and amounts of the bonds, with the allegations of the petition ; and it should be further altered and amended so as to reject and disallow the plaintiff’s money demands.

The judge a quo charged the jury that they must not entertain, in any manner, defendant’s reconventional demand, stating that although it is styled a reconventional demand, it is a claim and suit against the State of Louisiana, and the State can not be sued directly or indirectly in her own courts without legislative permission.

Of a similar reconventional demand we had occasion to express the 'following opinion in the case of State vs. Hart, No. 10,652, just decided, to-wit:

‘1 In so far as the defendant’s reconventional demand is concerned, little need be said, for the reason that it merely alleges the legality and binding force of the bonds in his hands, as obligations of the State_ And, inasmuch as, in the course of our opinion on the merits of the principal demand, we were necessitated to pass upon the primary validity of the bonds, there is nothing left in the reconventional demand to decide — we therefore pretermit any expression of opinion on the question of law raised with regard to the jurisdiction and authority of this court to render a judgment against the State.” To-that opinion we adhere.

It is therefore ordered, adjudged and decreed that the judgment-appealed from be so amended as to make the numbers, amounts and description of the bonds to be surrendered to correspond with the averments of the petition; and further amended so as to reject and disallow the demand of the plaintiff for the restitution of interest collected; and, as thus amended, the judgment is affirmed with costs of appeal taxed against the plaintiff and appellee.

Mr. Justice Parlange, not being a member of this court at the time of the argument and submission of this cause, takes no part in the decision.

Mr. Justice MeEnery, absent (sick).


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 11,250.
    Interdiction of B. Onorato.
    The adjudication of property at a judicial sale is itself a complete title, which can not be divested, unless the purchaser refuses to comply with the terms.
    The purchaser having complied with his bid by paying the price, the delay to execute an act of sale did not have' the effect of annulling the adjudication, nor did it in any respect affect the rights of the owner.
    The person interdicted is like the minor, who is under a tutor. The administration, of his estate is governed by similar rules.
    The curator paid debts of the interdict; incurred for'him.
    They were paid after the death of the interdict and after the curator’s functions-* had expired. , (
    The payment of debts manifestly due remains unaffected, for it would serve no useful purpose to cancel them and require payment of these amounts by the curator, to the executor of the interdict’s succession, in order that he, the executor, may pay them to the creditors.
    The amounts being due, the only difference would be payment by the executor instead of payment by the curator.

      When payments exonerate the estate from legal charges the executor must show that they are unfounded and excessive, or they will be allowed as a credit on the curator’s account.
    The executor opposes certain items of the curator’s 'account that are not proven.
    APPEAL from the Oivil District Court for the Parish of Orleans. Ellis, J.

      C. F. Buck and Max Dinkelspiel for the Executor, Appellant.

      E. Howard MeGaleb for Peoples’ Bank of New Orleans, Appellee.

      Guy M. Hornor for the Curator, Appellee.
   The opinion of the court was delivered by

Breaux, J.

B. Onorato was interdicted. Joseph L. Onorato was his curator.

After his interdiction, and, in due proceeding, the sale of property was ordered to pay debts.

Under these proceedings the People’s Bank became adjudicatee of certain real estate, on the 14th day of November, 1891, for the price of $21,000.

There were mortgages preceding, in rank, the mortgage of the bank. They were paid by the adjudicatee, the amount of its own claim was deducted, and the remainder, $1483.28 in cash, was paid to the auctioneer.

On a rule issued upon the motion of the attorneys of the interdict, the court ordered the recorder of mortgages to cancel and erase the mortgages on the property sold, and referred the mortgagees for payment to the proceeds of the sale of the property.

This adjudication transferred the property to the purchaser. O. P. 690.

His title under the adjudication is indefeasible, unless he refuses to comply with the terms of the sale. Washburn vs. Green, 13 An. 332.

The purchaser had complied with the terms of the sale.

The notarial deed of sale was signed after the death of the interdict.

The executor of his will moved for a rule on the adjudicatee, the People’s Bank, in which he alleged that the property had been adjudicated to that bank, and that the adjudication had not been complied with; that he had offered to sign a deed and receive the price.

Concluding, he asked that the adjadicatee show cause why it should not comply with the adjudication and pay the price to the mover, or in default, for cancellation of the adjudication.

After the sale had been complied with by the adjudicatee, the interdict being dead, the executor took a rule on the curator for an account and delivery of the property to him.

The curator filed an account.

The executor filed an opposition on the ground that the account should have been rendered to him; that the authority of the curator ends with the death of the interdict, and that he has no power after that time to do anything but render his account.

That the sale of the property adjudicated to the People’s Bank has never been passed, and that he alone has the authority to distribute the proceeds of that sale.

' The opponent opposes all the other items of the account and demands proof in support of each.

Recurring to the adjudication to the bank, the proof is unquestioned that the property was adjudicated as alleged. This adjudication conveys title without any subsequent deed. Lane vs. Cameron, 36 An. 773.

In the ease cited by appellant of Collins vs. Demorest, 45 An. p. 108, there was not a completed adjudication and specific compliance with the terms of sale on the part of the adjudicatee, as was done in the case at bar.

On this branch of the case, the District Court rightly and tersely says:

“As to all the proceeds realized, except 11483.23, distribution had been made prior to the interdict’s death; all the mortgages, in their order according to their rank, being paid in the execution and completion of that sale itself.

“ The late curator’s account only recites this fact and states the amount that had thus been paid. He has not distributed, nor is he seeking to distribute. The order of sale was to pay these very mortgage debts. By order anteceding the sale, the mortgagees and claimants were referred to the proceeds of the sale when made, that inscriptions might be erased and the title pass free to the purchaser. At the sale the People’s Bank bid and paid, as herein above recited, and so of the other purchaser at the other sale.

“Ranking claims were paid in cash, the compensation did its work, authorizing retention pro tanto, and the remaining surplus was paid over to the curator’s hands, all before the interdict’s death.”

The curator’s account of the proceeds of saléis correct, and therefore the opposition against this adjudication was not well taken.

The account of the curator was due to the court. Succession of Webre, 36 An. 313.

The mode of rendering the account is similar to that followed by the tutor in rendering an account to his ward. C. C. 415.

That mode has been followed in this case. He accounts to the court and through the court to the executor.

The remaining grounds for decision are that the distribution of the proceeds could not legally be made by the curator, but only by the opponent as executor.

The interdict died on April 25, 1892, and opponent, Hart, became executor of the succession.

Regarding the executor and the adjudication to the People’s Bank we agree with the court a qua in the statement, and further quote from its decision, that “ it may not amount to a full estoppel, but it goes far in that direction, that the gentleman who, as executor, took the rule on the bank was the gentleman who, as representative of the ranking special mortgages, received, before the interdict’s death, from said bank, as purchaser and adjudicatee, at said auction sale, $13,630.20 of the total price bid and paid, say $21,000. I take it, that he has, as executor, taken this rule as a matter of precaution for his own security in his said trust, which is proper.”

Passing from the adjudication of the property of the interdict to the other grounds of opposition:

The records do not disclose any attempt at unfairness on the part of the curator.

The payment of certain debts contracted by him during the existence of the interdict, after the death of his principal, will.not meet with approval nor commend itself as proper in settling the affairs of which he had charge under the appointment of the court.

As a practical question, in the present case, it would not serve any useful purpose to have these payments recalled in order that they may be carried in the account of another administration.

It is not alleged that the heirs or the creditors are affected by the mode of settlement followed.

The argument of the opponent is that the curator’s authority ceased at the death of the interdict, and that it was then his duty to pay over to the executor amounts in his hands.

Technically the executor represented the succession, and should have delivered the funds as contended.

This alone does not offer sufficient grounds to set aside these payments.

But they must be proven correct by him, and in the event of his failure he becomes responsible.

This is the penalty to which he has exposed himself.

It is in place to state that none of the debts paid by him were contracted after the death of the interdict.

The judge of the first instance has approved the account as presented by the curator.

This court has decided that the acknowledgment and payment of debts by tutors and curators which they knew to be owing by the estate which they administer are prima facie evidence of their correctness. Kilgour vs. Ratcliff’s Heirs, 2 Mart. N. S. 298; Baillis vs. Wilson, 6 Mart. N. S. 335; Succession of Franklin, 3 R. 287.

An appearance of good faith and good management in the settlement of accounts are important considerations, and relieve to some extent from the necessity of having witnesses to the various transactions.

The accountant thus protected is not obliged to prove the signature of every receipt for needful expenses and debts paid.

Proof of every item, however small and correct, from the mere statement, would involve the estate in heavy and useless expense. Succession of Bauman, 30 An. 1138.

Applying this rule in proving up the curator’s account in this case, the judgment appealed from is affirmed as to all the items, except the following:

The item of $436.55 carried on the account as amount paid by J. A. Newsham, gardener, for preserving property.”

This item, to the curator’s credit, may be correct.

The executor opposes it, on the ground that it is not supported by any evidence.

The item for attorney’s fee, $1820, is equally unsupported by evi dence.

The entry on the account is all that appears in support.

Being opposed they should be proven up contradictorily with the executor.

The curator credits himself with $660.93, his own commission as executor.

It is stated in the account that it is 2 1-2 per cent, commission on the amount of the inventory.

No commission is charged upon the revenues. The claim for this commission will not be passed upon at this time.

Béfore passing upon it, it is proper to ascertain whether there was any productive property forming part of the estate.

Any right to recover the three items just mentioned is reserved.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed in all respects except in so far as relates to the items carried in the account as having been paid by Newsham, viz.: $436,55; attorney’s fees, $1820; curator’s commissions, $660.93. As to these three items the case is remanded for a new trial.

Appellee to pay costs of appeal.


author: Nicholls, 0. J.

text:
    No. 11,321.
    State of Louisiana ex rel. Mrs. Penelope A. Violett et al. vs. Frederick D. King, Judge of the Civil District Court for the Parish of Orleans.
    1 Where an injunction does not order the closing up of defendant’s business but restrains him simply from carrying it on in a manner resulting in an alleged continuing nuisance to the health and comfort of plaintiff and his family, it should not be set aside on bond, as the effect of the dissolution is to authorize and permit the defendant to continue to do the act complained of and restrained during the pendency of the suit.
    2. The law does not limit its protection-to parties who arc aggrieved in dollars and cents by a continuing nuisance. The fact that the plaintiff in injunction does not own the premises which he occupies, but occupies them as tenant does not withdraw from him and his family the protection of the law against a nuisance affecting their health and comfort.

      3. The failure of the owner of the property who has joined with the tenant in an application for an injunction to perfect the injunction by giving bond does not destroy the right of the tenant,who is before the court standing on his own rights, and not depending upon those of the owner, to the benefit of the injunction, when he has himself given bond.
    y^PPLIOATION for Mandamus.

      Farrar, Jonas & Kruttschnitt for the Relators.
    Respondent in propria persona.

   The opinion of the court was delivered by

Nicholls, 0. J.

The relators are Mrs. Penelope A. Violett, widow of the late William A. Violett, and Atwood Violett.

They allege that they instituted suit in the Oivil District Court for the parish of Orleans, in which suit they represented that relator, Mrs. Violett, was the owner, and relator, Atwood Violett, the occupant of certain premises in their petition described, and that F. Johnson & Son, a commercial firm domiciled in the city of New Orleans, and the individual members thereof, had established a livery stable adjoining the property in said petition described, in which livery stable they kept a large number of horses; that from said livery stable arose the most offensive smells, and that the same caused swarms of insects to infest the premises belonging to said Mrs. Violett and occupied by Atwood Violett, and that said smells were so offensive and disgusting as to subject relator, Atwood Violett, the occupant of said premises, to the most intolerable annoyance; that in said petition relators further represented that said livery stable so located in the vicinity of said dwelling house as aforesaid, as also of other dwelling houses, and in a neighborhood of dwelling houses, and the business of conducting said livery stable at said location in the manner in which it was conducted constituted a nuisance which relators were entitled to have suppressed, and praying for an injunction in the premises. That upon said petition an order was duly entered ordering an injunction to issue in the premises as by relators prayed for. That said injunction duly issued; that the defendants therein subsequently took a rule upon relators to show cause why said injunction should not he dissolved upon bond; that said rule was, after hearing, made absolute by the Oivil District Oourt, and defendants allowed to bond said injunction, all of which, with other necessary particulars, it was averred would more fully appear from the record of said suit now pending in the Oivil District Oourt, which is referred to as part of their petition, and which in the original or duly certified copy thereof would be presented to the Supreme Oourt at the hearing. That the injunction prayed for was not against the conducting of said livery stable, provided the same be conducted in such a manner as not to inflict a nuisance upon relators, but merely enjoined said defendants from continuing to conduct said livery stable in the manner and form in which they did conduct the same — that is to say, in such a manner as to give rise'„to the most offensive and disgusting smells, rendering the dwelling house of relators untenantable. That by said order to bond an irreparable injury was and is inflicted upon relators, and they did seasonably apply to the court for a suspensive appeal from said order, but that the court, through Frederick D. King (the judge of Division “B,” thereof, sitting in lieu of the Hon. George H. Theard, judge of Division “ E” thereof, absent on leave, and to which Division “E” said cause had been allotted), who tried said rule and to whom said application for an appeal was made, has wrongfully refused and declined to render an order of appeal in the premises. They prayed for the issuing of an alternative writ of mandamus to the judge of Division “B,” sitting in place of the judge of Division “E,” commanding him to grant relators a suspensive appeal [nuno pro tune as of date of August 4, 1898 — date when application was made therefor] from the order allowing the dissolution of the injunction on bond.

An alternative writ of mandamus, having issued, the district judge has filed an answer in which he declares that on the trial of the rule to bond the injunction it appeared that no irreparable injury resulted or could result from the act complained of, and that the damage complained of could be made good or repaired by the payment of money. That it appeared said premises of relator were leased and that the only loss that could result was a loss to the tenant appreciable in money. That the suit was brought jointly by Mrs. Penelope A. Violett as owner of the property and Atwood Violett as tenant of the property — that no injunction had been issued on behalf of Mrs. Penelope Violett, the owner of the property, as no bond had been furnished, and the injunction issued was on behalf of the tenant of the property, and the dissolution of the writ was accordingly of the writ issued on behalf of the tenant. That the judgment dissolving the injunction was rendered in the exercise of the discretion vested in the court under Art. 307 of the Code of Practice. He prayed that the writ of mandamus be refused.

The application to bond contained no reasons for the same. It was a simple motion requesting “ on motion of counsel for defendant that plaintiff show cause on the 24th July, 1893, why the injunction should not be dissolved on defendant’s furnishing bond conditioned according to law.”

The district judge, in making the rule absolute, declared that he did so for reasons orally assigned and considering the law applicable to the case. We presume the reasons referred to were the same as those assigned in the answer or return herein. On the the 20th July, 1893, defendant in injunction obtained a rule on plaintiff to show cause on the 24th July, 1893 (the same day on which the rule on the motion to bond was returnable), why the injunction issued should not be set aside on the grounds: (1) that the court was without jurisdiction ratione materiai; (2) that even if the court had jurisdiction, the allegations contained in plaintiff’s petition were untrue and not such as would authorize the issuance of the writ; (3) that the petition on which the injunction issued set forth no cause of action ; (4) the bond is not good, valid, or sufficient.

The record does not show what action, if any, was taken in the matter of this last rale.

The fact stated by the judge in his answer, that an order dissolving an injunction on bond is granted by a district judge in the exercise of a judicial discretion expressly conferred upon him by law, does not withdraw that order absolutely from being made the subject of review by this court. When the district judge, on application made to him by a defendant in injunction, permits the bonding of the injunction, plaintiff has the legal right to apply for a suspensive appeal from the order to that effect. Should this be denied him, he has the undoubted right to have tested in this court, as is now being done by the relator in this case, the question whether the judge was warranted and justified in this refusal. On such an inquiry this court has necessarily to determine whether the judge’s discretion, which only extends legally to eases wherein the dissolution of the injunction would not work irreparable injury to the plaintiff, has been legally .applied or not. If we find it has not we grant relief, otherwise relator takes nothing by his application to us. As has been said several times by this court, each case must stand or fall upon its own special facts and circumstances. White vs. Cazenave, 14 An. 57; Blanc vs. Murray, 36 An. 167.

For the purposes of our decision, we take as true the allegations •of fact contained in the petition for injunction, confining ourselves to the restricted issue on the pleadings as to the correctness vel non of the judge’s action in the matter of the refusal of the appeal, which carries with it the determination of the question whether the bonding of the particular case would or would not work irreparable injury to the plaintiff. If we could under any circumstances extend our inquiries to matters touching the injunction proper, the matters which we could consider would have to be very exceptional and radical in their character. This whole subject has been very fully discussed in the case of State ex rel. Puckette vs. Hicks, 39 An. 901, where a mandamus was asked by plaintiff in injunction to compel the defendant judge to grant a suspensive appeal from an order dissolving a preliminary injunction.

The court, referring to the fact that by Art. 307 of the Code of Practice courts which grant injunctions are authorized “in their discretion ” to dissolve an injunction on bond, said that the discretion thus vested was limited by the article to cases where the act prohibited may not work an irreparable injury — that in the latter case they have no right or power to dissolve, and that an order dissolving on bond in such cases is itself an interlocutory judgment, which may cause irreparable injury, and is therefore appealable under Art. 566 ■of the Code of Practice, which provides that “ one may appeal from all interlocutory judgments when such judgments may cause him an irreparable injury.” It further said that where the judge refuses to grant an appeal from such an order the plaintiff might resort to the Supreme Court for a mandamus to compel him to do so — that on ap - plication for such mandamus the inquiry in that court was simply whether the act which is prohibited by the injunction and is unfettered by the dissolution is such as may cause to plaintiff an irreparable injury. If found to be such the mandamus is granted, if not so found it is denied — that in this inquiry the allegations of the plaintiff’s petition are taken for true so far as the facts therein set forth are concerned — that by this is not meant that the court was to be ■concluded by mere allegations in the petition that the acts restrained will occasion irreparable injury; that such allegations are mere inferences and deductions from the acts and facts charged, the verity and soundness of which the Supreme Oourt could review (see Crescent City vs. Police Jury, 32 An. 1194, 1195, 1196). That it had to examine the facts charged, and the nature and character of the injury which might be inflicted by the acts complained of, and is thus to determine whether such injury might be irreparable vel non. The court then proceeded to say that it was difficult to lay down any precise rule as to what gives to an injury the quality of being irreparable, but that the general principle was that an injury the damage from which is merely in the nature of pecuniary loss and could be exactly and fully repaired by compensation in money is a reparable injury, for which a bond of sufficient amount and properly secured would afford all adequate indemnity. The court quoted approvingly from the case of Crescent City vs. Police Jury, 32 An. 1194, where on a former occasion it had said:

“ There are many injuries which in the very nature of things can not be repaired by any money consideration, such for instance as result from acts which outrage the feelings and wound the sensibilities, or deprive us of objects of affection, or of things which, trivial in themselves, but of inestimable value by reason solely of being associated with some precious memory or touching incident of our lives. ■Or it may be that the maintenance of the writ was required to preserve to us our homes and to establish us in a state or condition which lost for the moment can never be recovered nor the loss atoned for by money. In this class of eases the injunction should be maintained because the injury from its dissolution would be irreparable.”

This extract was quoted not as an.exhaustive but as an illustrative statement of the kind of injuries which were to be considered irr - parable. The eases of Delacroix vs. Villeré, 11 An. 39; White vs. Casenave, 14 An. 57; Marion vs. Johnson, 22 An. 512; Boedicker vs. East, 24 An. 154; Sigur vs. Judge, 33 An. 133; Waterworks vs. Oser, 36 An. 918; and Knabe vs. Ferrot, 14 An. 847, were also cited as illustrations of the principles guiding this court on those matters. Each particular case (it was declared) would have to be considered on its own facts and circumstances and the relief determined thereby.

The court further said that it was impossible and eminently improper for it to enter into a discussion of the legality and propriety of the injunction itself, unless on the face of the papers it was perfectly manifest that the granting of the injunction was an abuse of the power of the court (see Crescent City vs. Police Jury, 32 An. 1196).

The court held the relator to be entitled to a suspensive appeal and made the provisional writ of mandamus which had issued to peremptory.

In the case at bar the injunction was not sought to restrain the defendants from carrying on their business as keepers of a livery stable, but only from doing so in the manner complained of, which it was claimed was resulting in the commission of a nuisance intolerable to the plaintiffs.

The fact that the particular plaintiff who perfected the injunction by giving bond does not own the premises which he occupies, but occupies it as a tenant, does not withdraw from him and his family the protection of the law against a nuisance affecting their health or their comfort. The law in this State does not limit its protection to parties who are aggrieved in dollars and cents by a continuing nuisance (Blanc vs. Murray, 36 An. 164). The right of the tenant as plaintiff in injunction is destroyed neither because of the joinder with him of the owner of the premises in the petition for an injunction, and her failure to give bond, nor by the fact that she joins him in this court as one of the relators herein. If the owner has failed to give bond she may have no standing in court and should be so adjudged, but the tenant is before us standing on his own rights and not depending on hers.

The effect of the dissolution in this case would be to authorize and permit the defendant in injunction to do the act complained of and restrained — in other words, defendants, through the judge’s order, would not only be authorized to pursue and carry on their business as keepers of a livery stable, but to do so regardless of what are alleged to be plaintiff’s legal rights. Had the injunction taken out had as its effect the entire closing up at once of defendant’s establishment this case would have been presented to us in a very different aspect from that which it actually has. Under the pleadings plaintiff has a vital present interest in having defendant’s business conducted in such a manner as would not result in a nuisance to him. The injunction would have no greater effect than that. If defendants’ business should be properly and legally conducted, they would have nothing to fear from the injunction and’ therefore nothing to complain of as being irreparable in its injury to them. They could not reasonably ask the court to permit them to carry on their business improperly and illegally without restraint of any kind to the termination of this litigation.

It may be that the petition for injunction is not as specific in its details as it should have been, and that the injunction is more general than is desirable, (Patten vs. Marden, 14 Wisconsin, 473), but the defendants sought no modification from the court below. That the granting of the injunction may subject defendants to a liability to charges of contempt of court for alleged violation of the provisions may be true, but that consideration is very remote in the discussion of the matter before us. We can not assume that the plaintiff will seek to harass defendants by contempt proceedings, nor can we assume that such proceedings would work irreparable injury to them. The generality of the terms of the injunction could in such proceedings but work to their benefit and plaintiff’s detriment.

In view of the fact that the petition for the injunction does not claim defendant’s business ro be per se a nuisance — does not claim that it was carried on in an unauthorized locality, does not pretend that the common council of New Orleans has enacted regulations in respect to it which defendants have violated, the district judge would unquestionably on a matter of contempt bear in mind that within reasonable limits the individual citizen has to submit to some annoyance and inconvenience from the legal exercise of the rights of others, and would only hold defendants responsible on strict proof of a clear disregard by the defendant in injunction of those obligations which Art. 666 O. O. declares citizens owe to each other under the law, independently of all agreement.” Wood on Nuisances, Sec. 498.

In Delacroix vs. Villere, 11 An. 40, the court, alluding to a number of cases where defendants in injunction had been permitted to bond the injunction, said that an examination of them would show that they were cases in which the injury was really appreciable in money and where the continuance of the injunction was likely to work a more serious injury to the other side. That there were some things that bonds would not cover and which could not be estimated in dollars and cents, and if our law can not protect in cases like those it but poorly earned the encomiums bestowed upon it. In Blanc vs. Murray the court said: “In determining the question of nuisance vel non it is necessary to balance the rights of the parties in view of all. the circumstances and say whether or not the use of the property in the manner complained of is reasonable and in accordance with the relative rights of the parties.”

This remark was made after a trial on the merits, but the relative-rights of parties as they appear prima facie in the pleadings are-easily discoverable in this case.

The parties to this litigation do not stand before the court by any means with an equality of right. The plaintiff has everything to-lose and the defendant nothing legally to gain by bonding the injunction.

It might well be asked (altering a little the words of Mr. Justice Egan, in his dissenting opinion in the case of State ex rel. Druillet vs.. Judge, 29 An. 870), “who can recall or repair the effect of a continuing nuisance to¡the health and comfort of plaintiff and his family, and; what is the effect of allowing a dissolution of the injunction in this case if it be not to permit defendants to continue and keep up the nuisance complained of during the pendency of the suit, however-long.”

We are of the opinion that the plaintiff was entitled to a continuance of the injunction until the hearing of the case on its merits and-that the dissolving of the same on bond would work irreparable injury to .the relator, Atwood Violett. He is entitled to the suspensive appeal for which he applied.

It is therefore ordered and decreed that the provisional writ of mandamus herein issued be and the same is hereby made peremptory in favor of the relator, Atwood Violett. Mrs. Penelope A. Violett not. having perfected the injunction by bond in the lower court the mandamus asked for is as to her refused.


author: Parlance, J.

text:
    No. 11,884.
    City of New Orleans vs. New Orleans Coffee Company, Limited.
    Exemptions from taxation are strictly construed. A corporation claiming to own a secret non-patented process by wbicli, without the use of any chemical, it is. enabled to mate selections of green coffees which, through careful and cleanly roasting and a secret process of cooling, produce “brands” of unground roasted coffees, each one of which is claimed to have a recognizable taste — is not a “ manufacturer ” within the meaning of Art. 206 of the Constitution, and is not exempt under that article from the payment of a license.

      Childress, J. PPEAL from the First City Court of New Orleans.

      Geo. W. Flynn, Assistant City Attorney, and E. A. O’Sullivan, City Attorney, for Plaintiff and Appellant.

      Moise & Cahn for Defendant and Appellee.
   The opinion of the court was delivered by

Parlance, J.

The defendant corporation claims to be a manufacturer of coffee,” and to be as such exempt under Article 206 of the Constitutii n from the payment of a license.

The defendant corporation contends that by means of a secret non-patented process, it is enabled to make a selection of green coffees having the qualities required for the purpose intended, which coffees, after being subjected to manipulation, being roasted and being allowed to cool in a particular manner, produce certain brands of coffee, each having a recognizable taste and flavor.

The defendant corporation says and insists that no chemicals of any kind are used during the secret process, and it is upon the production of its different brands of roasted coffee that it relies to be held to be “ a manufacturer of coffee.”

We have considered the evidence and the pleadings with care, and we are satisfied that the defendant corporation does not claim that it is a manufacturer by reason of grinding coffee and thereby changing its form, and while some incidental statements to be found in the testimony might indicate that exceptionally the defendant corporation may grind the coffee which it manipulates, its claim to be a manufacturer of coffee is based wholly on the production of brands of unground roasted coffee.

These brands, as stated, are claimed to be the result as well as the object of the secret process above referred to, which process the defendant claims is valuable, $1000 having been offered for it.

Whatever this secret process may be, we are to decide whether the defendant corporation is a manufacturer, on the tangible results of the manipulation to which they subject green coffees, bearing in mind the assertion of the defendant corporation that it uses no chemicals, and that the coffee after the manipulation is still pure coffee.

The defendant corporation virtually admits that a “ coffee roaster ” is not a manufacturer, but denies that such a designation can properly be applied to it. A “ coffee roaster” is testified by the witness for the defendant corporation to be a person “ who takes a sack of coffee and simply puts it in a roaster and turns that coffee out after it is roasted.”

Exemptions from taxation are strictly construed, the general rule being that every citizen must bear his share of the expenses of government. Is the defendant corporation a manufacturer? Admitting that it has a secret process for the selection of green coffees, the result of which is the production of brands of coffee” suitable to different tastes and recognizable from each other, and admitting further its claims of careful and cleanly roasting and its other secret process of cooling the roasted coffee, is the result a manufactured article? We think not.

It is not every employment of labor which will make the thing upon which it is employed a manufacture. It has been held that the great and laborious pursuits of mining and ship building are not manufacturing occupations. In another order, this court has held that a maker of ice cream, even on a considerable scale, is not a manufacturer (New Orleans vs. Mannessier, 82 An. 1075). In that case this court said that the mammoth kitchen of a hotel is not a manufactory. Yet, the confectionery and the kitchen yield products in which the identity of the articles from which they are made is almost lost.

In the case of Hartranft vs. Wiegmann, 121 U. S. 609, the Supreme Court of the United States held that where the outer layer of shells was cleaned off by acid and the second layer was then ground off by an emery wheel, so as to expose the brilliant inner layer, the result was not a manufactured article.

We quote further from Hartranft vs. Wiegmann, as follows:

“We are of opinion that the shells in question here were not manufactured and were not manufactures of shells. * * * They were still shells. They had not been manufactured into a new and different article, having a distinctive name, character or use from that of a shell. The application of labor to an article, either by hand or by mechanism, does not make the article necessarily a manufactured article, within the meaning of that term as used in the tariff laws. Washing and scouring wool does not make the result a manufacture of wool. Gleaning and ginning cotton does not make the result a manufacture of cotton. In Schedule M of Sec. 2504, R. S., a duty of 30 per cent, ad, valorem, is imposed on ‘coral, cut or manufactured;’ and in Sec. 2505, ‘coral, marine, unmanufactured,’ is made exempt from duty. These provisions clearly imply that but for the special provision imposing the duty on cut coral it would not be regarded as a manufactured article, although labor was employed in cutting it. In Frazee vs. Moffitt, 20 Blatchford, 267, it was held that hay pressed in bales, ready for market, was not a manufactured article, though labor had been bestowed in cutting and drying the grass and baling the hay. In Lawrence vs. Allen, 7 How. 785, it was held that India-rubber shoes, made in Brazil, by simply allowing the sap of the India-rubber tree to harden upon a mould, were a manufactured article, because it was capable of use in that shape as a shoe, and had been put into a new form, capable of use and designed to be used in such new form. In United States vs. Potts, 5 Cranch, 284, round copperplates, turned up and raised at the edges from four to five inches by the application of labor, to fit them for subsequent use in the manufacture of copper vessels, but which were still bought by the pound as copper for use in making copper vessels, were held not to be manufactured copper. In the case of United States vs. Wilson, 1 Hunt’s Merchants’ Magazine, Judge Betts held that marble which had been cut into blocks for the convenience of transportation was not manufactured marble, but was free from duty, as being unmanufactured.”

The evidence in the instant case and the spirit of the decisions cited satisfy us that the defendant corporation is not a manufacturer of coffee, as claimed by it, so as to entitlejit to exemption from license under Art. 206 of the Constitution.

The Ernst case, 35 An. 746, relied on by the defendant corporation, is not applicable. To clean rice, a long and laborious process is required ; a large and expensive plant, including powerful and complicated machinery,is necessary; and from the “ paddy,” several marketable by-products are obtained, besides the cleaned rice.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and the same is hereby reversed, annulled and set aside, and that said defendant corporation pay to the plaintiff the sum of fifty dollars as a license due said plaintiff by said defendant for carrying on the business of wholesale dealers for the year 1893; and that said defendant further pay said plaintiff 2 per cent, per month interest on said amount from March 1, 1893, and all costs.