author: InsiiEY, J,

text:
    Thomas Penniston et al., Executors, v. The City of Jefferson.
    An action, prematurely brought, wUl be sustained unless the defendant makes objection m limine..

    APPEAL from the District Court of the Parish of Jefferson.

      Cazabai, J. Cyprian JDufour, for plaintiff. B. L. Lynch, for defendant.
   InsiiEY, J,

The plaintiff claims from the defendant the sum of two-thousand one hundred and thirty-four dollars and seventy-seven cents, with interest at the rate of five per cent, per annum, as stated in the-petition, represented by eight certificates, issued by the parish committee-of the Parish of Jefferson, by which, as it is alleged, the city of Jefferson. is indebted to W. R. Miller for one certificate, amounting to twenty-four dollars; and to Guy Dreux, late Sheriff of the Parish of Jefferson, for the other seven certificates ; and, further, that of the said eight certificates, the plaintiff is the owner and holder.

And for answer to this petition, the defendant pleads the general issue;: admits that the parish committee did make and sign the certificates annexed to the petition ; but denies that the .said city is, in any way or manner, bound to the plaintiff or to any other person or persons whomsoever for the payment of the said certificates, or either of them, or for the pretended debts alleged to be covered by the said certificates.

The Court below rendered judgment in favor of the plaintiff for the. whole amount claimed, except for the sum of twenty-four dollars as per warrant No. 500, the plea of five years prescription, as to that amount, being sustained; and from the said judgment the defendant has. appealed.

It is sufficiently shown that the plaintiff, D. Penniston, is the bona fide owner and holder of the certificates, which were regularly issued, drawn and authorized by the parish committee of Jefferson, approving certain bills due by the whole Parish, and setting forth the proportion thereof due, to be paid by the city of Jefferson.

It is also shown by the testimony of Jacob Miller, the Secretary of the-Parish Committee, that the committee acts under the statute of the State-of Louisiana, enacted in the year 1856.

By the second section of the said statute, entitled An act authorizing-the appointment of a parish committee" by the several corporations, comprising the Parish of Jefferson; the said parish committee is duly empowered and authorized to determine and fix the pro rata of contribution of each corporation towards defraying the expenditures, bearing upon the whole Parish, also to examine and report upon all bills or claims-against the Parish.

By the first section of the same act the City of Jefferson, in common with the other corporations, etc., comprising the Parish of Jefferson, was to be, and it must be presumed was, represented in the said parish committee ; and the action of the said parish committee in determining and fixing the pro rata of contributions by each corporation, defraying the expenses bearing upon the whole parish; .also, to examine and report upon all bills or claims against the parish, being within the sphere of its duties, carries with it the presumption of the validity and correctness of" the certificates issued by it, which justifies the plaintiff in claiming from-the defendant its pro rata of contribution of common parish liabilities for costs incurred in criminal prosecutions, for elections, Sheriff’s fees, jail fees, etc.

It appears, however, by reference to the ordinance of the City of Jefferson, that all parish committee warrants, regularly drawn and authenticated by the Secretary of the parish committee, shall be submitted for approval to the finance committee; and, upon being signed by the. chairman of said committee, the President is authorized to issue his warrant on the Treasurer for payment; and said Treasurer shall report, at each regular sitting, the warrants so drawn.

This requirement has not been complied with, nor is it shown that the President, previous to the inception of this suit, had objected on a proper ^exhibition of the approval of the finance committee, signed by its chairman and to issue his warrant, we should, therefore, have deemed the action instituted by the plaintiff premature; but, as this is not urged by the defendant, which sets the claim itself at issue, we think the plaintiff is entitled to relief.

The liability of the defendant results from the statute, above referred to, and not from the action of the parish committte, whose province only it is to determine and fix the pro rata of contribution by each corporation, etc.; in other words, to liquidate the amount of its liability so that Art. 1888, C. C., cited by the appellant, has no application whatever to the •case before us.

We sustain the judgment of the Court below.

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


source: Caselaw Access Project

author: InsLBV, J.

license: Public Domain

text:
    Edward Barnett et al., Executors, v. C. E. Cate & Co.
    Whore there is a special allegation of a tacit reconduotion of a lease in the petition, and it is not traversed, it will be taken as true.
    APPEAL from the Sixth District Court of New Orleans,

      Leaumont, J. ' O. Boselius, for plaintiffs. W. S. Sunt, for defendants.
   InsLBV, J.

This is an action on a contract of lease; and thereupon .the plaintiffs claim from the defendants the sum of three hundred and •twenty dollars, exclusive of interest and costs. The said sum is represented by two promissory notes, or part of a series of twelve notes, each for •one hundred and sixty dollars, being the annual rent .of certain property described in the petition, from the 1st day of November, 1861, to the 1st day of November, 1862, each note representing the rent of the premises for one calendar month; the notes sued on maturing respectively on the 1st day of October and the 1st day of November, 1862.

The plaintiffs further represent that the said defendants still remained in possession of the leased premises, and that the said lease, by a tacit re-conduction, has been renewed from month to month, and they ask for judgment for the said sum of three hundred and twenty dollars, with eight per cent, interest thereon on one-half thereof, from 1st October, 1862, and for the remaining half from 1st November, 1862; and they also pray for judgment for such other sum as may have fallen due for rent up to the time when such judgment is rendered, with the lessor’s lien and privilege, and for a provisional seizure.

The defendants admit in their answer that they entered into the contract of lease, and that they executed the notes sued on; but they aver that they are entitled to a diminution of rent to the extent of two-thirds of the amount originally stipulated to be paid by them, and that they are justly liable to pay only one-third of the sum the said notes called for, from the 1st day of May, 1862, up to the period of the termination of the said lease. They aver that the said diminution is due in consequence of the interruption they have sustained in the occupancy and enjoyment of the premises leased, and in the prosecution of their business, by reason of the capture and possession of the city by the forces of the United States Government, and the changes in the population and trade of the city; and it is only in accordance with the usage universally adopted in this city, with regard to leased property, and in conformity with law and equity, and they pray for relief accordingly.

This case, with two other similar cases, were submitted to a jury, which was to render a separate verdict in each case, and the said jury rendered its verdict as follows :

“We, the jurors, agree that, by diminution of one-third, the sum of two hundred and thirteen dollars and thirty-five cents be paid by the defendant, with interest on it.”

The Court, having set aside the verdict and granted a new trial, after hearing pleadings, evidence and counsel, rendered judgment in favor of the plaintiffs and against the defendants, for one hundred and sixty dollars, with interest at the rate of eight per cent, on eighty dollars, respectively, from the first day of October and November, 1862, until paid ; and for the further sum of two thousand and eighty dollars, with eight per cent, interest on each sum of eighty dollars from the first day of September, 1862, and from the first day of each month from January to December, 1863, and from January to December, 1864, and from the first January, 1865, all until paid, and costs of suit; and the said defendants to be entitled to a credit of whatever sums they may have paid to the United States military or other authorities, upon their exhibiting the proper vouchers.

There is no evidence in the record to show that the defendants retained the possession of the leased premises, after the expiration of the lease which is exhibited; but, as it is specially alleged in the petition that the lease declared on, had, by a tacit reeonduetion, been renewed from month to month, and this allegation is not traversed by the answer, it must be deemed true.

The Court below (on what proof we know not) reduced the plaintiffs’ -claim by one-half; but, as the plaintiffs do not complain of this, we cannot perceive on what legal or equitable grounds the defendants should, the more particularly, as they may deduct from the amount of the judment whatever sum they may have paid to the United States, military or other authorities, upon their (the defendants) exhibiting the-proper vouchers.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be, and the same is hereby affirmed, the costs of appeal to be paid by appellant.


author: Ilsley, J.

text:
    The Same v. P. O’Donnell.
   Ilsley, J.

The features of this case are very similar with those in the-case of the same plaintiffs v. C. E. Cate & Co., just decided, and for the reasons therein assigned :

It is ordered, adjudged and decreed, that the judgment of the Court below be affirmed, at the costs of appellant.


author: Labatjve, J.

text:
    The Same v. F. Newhall.
   Labatjve, J.

In this case, involving the same facts and defence as in the case of same plaintiffs v. C. E. Cate & Co., No. 556, in this Court, just decided, it was agreed by counsel that one decision should govern; consequently, for the reasons given in said case, No. 556, in the opinion of this Court, just delivered, the judgment appealed from must be affirmed.

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


author: Insi/BV, J.

text:
      J. McClendon v. Kemp, Sheriff.
    A submission is a covenant by which persons who have a lawsuit or difference with one another, name arbitrators to decide the matter, and bind themselves, reciprocally, to perform what shall be arbitrated.
    A submission must be reduced to writing.
    So long as the Sheriff’s sale of the property is not set aside by a judgment of the Court in a direct action, he may invoke that title against the seizure of it by the defendants in injunction.
    APPEAL from the Fourth District Court of New Orleans,

      Price, J. Eugué- S Ereux and Bussell, for plaintiff.

      E. E. Eennen, for defendant.

    — Plaintiff enjoins seizure by Sheriff against a third party, on the ground that he, plaintiff, is the owner of the property. He sets forth that title. Defendant answers, and alleges nullity of plaintiff’s title, and prays judgment decreeing its nullity.

      A jury is sworn to try the issues joined, and the points as they present themselves are these :
    1. Is it the Sheriff’s return or his deed that is the proper evidence of his acts under the writ ?
    2. Can the Sheriff make seizure after expiration of his writ, under a copy of the original retained, under the acts 1855 ?
    3. Must not a sale at twelve months’ credit, “for what it will bring,” be for a serious price, or one having a proportion to the value of the property ?
    For the validity of a Sheriff’s sale it is essential to show a Judge’s writ and return. 9 A. 271, Gurí v. Miles.

    It was attempted to show a return by Mr. Childress’ testimony. But it does not appear what that return is, whether the property was seized before the expiration of the writ, etc., etc. On the contrary, it appears by his testimony, that the Sheriff kept a copy for the ‘ ‘purpose of completing the seizure.”
    The Supreme Court say (13 A. 451, Hyman v. Bailey), that the Sheriff’s deed is not “ of itself a title translative of property.” We must look to the return to know what was done under the execution. 8 A. 138, Bede v. Boguille; Bams v. Wilingen, 5 A. 584.
    If the Sheriff retained a copy of the writ of fl. fa., which expired in September, 1855, non constat by any evidence as to contents of the last return, that the seizure was made under the original writ: if made under the copy it was illegal. 14 A. 65, Fulson v. Anderson.

    But the testimony of Childress shows that the Sheriff retained a copy for the purpose of making a seizure; the writ then being expired, the Sheriff was without authority to make any seizure (14 A. 65), and the adjudication to McClendon is a nullity. The act of 1855, p. 253, did not authorize more to be done under a copy than could be done under the original; under the original writ the seizure after return day was a nullity, ergo, under the copy equally so.
    At the time the Sheriff made the sale, November, 1855, he had no authority to make the sale, for according to Childress’ testimony the seizure had not been made before the expiration of the return day, but was made, consequently, under the copy which he (the Sheriff) retained, for the purpose of making the seizure.
    It is clear, if the Sheriff had no authority, he could make no title ; that he had none is clear from the authority cited. (14 A. 65).
    What a Sheriff does when he has a writ (authority) in his hands may be presumed to be legally done ; but his authority or writ cannot be presumed. 5 Little (Kentucky) Reports, 19 Buddv. Johnson.

    If it be insisted that the recitals in the Sheriff’s deed shall supply the return to the writ, then it appears from that deed (pxd. 8, 12) that the property on the sale at twelve months’ credit was not advertised properly. It should have been stated that the bond would bear interest. See 10 Rob. p. 31, WrigM v. Higginbotham; and the irregularity preceding the sale affects it with the vice of nullity.
    Further, it does not appear that the seizure and sale was. made on a copy of writ retained under act of 1855, by any recitals in the deed; the contrary appears.
    The adjudication to McClendon has a radical defect. As a sale, it is defective in that which constitutes the essence of the contract, to wit, a price. It is true that at this second adjudication the property must be sold for “whatever it will bring;” (C. P. 682); but still it must “bring” a price ; if not, it is obvious there is no sale. Now there is no price unless there be a serious price; that is, a sum bearing some proportion to its value; not an infinitesimally small price, that it could never enter into the mind of either the seller to receive or the buyer to give. In such cases they do not seem to consent. C. C. 2439. See Pothier, vente 19. Wood v. Hennen, 9 A. 264.
    There are several kinds of price :tlie “juste prix,” and the “vil prix,” and one so low as to give rise to lesion, but still there is a price; a third category is one where the price is purely illusory. There is, morally, no price, no proportion to the value.
    The case in question. It is true, there is no lesion in judicial sales; (0. C. 1863), but lesion is founded on the hyjoothesis that there is a price, although that price be a “vil prix.” Our argument is, there is no price.
    Farther, gross inadequacy of price avoids a sale, and is evidence of fraud. 5 Porters (Ind.) Reports, p. 213 and authorities there quoted. And our bill of exceptions (p. 36) is well taken to the refusal of the Judge to so instruct the jury. See also 3 A. 536, Boss v. Boss.

    This case evidently comes within the provisions of Art. 21 of'Civil Code, authorizing the Judge to decide according to equity w$.en there is no precise law. It would seem to be most inequitable for the plaintiff, under the circumstances of this case, where property admitted at time of the sale to be worth §10 an acre or §5,990, is sold at twelve months’ for §50.
    No direct action is necessary to annul that which has no legal existence; but if it were, the issue was made and tendered by the defendant’s answer. Under our practice, no application being permitted, plaintiffs are supposed to join issue on the matters set up in the answer. (Hennen’s Digest, p. 1173 2 10).
    To obviate this consequence, plaintiff have excepted to the matters set up in the answer of tthe nature of a reeonventional demand, and not have allowed the jury tobe sworn to try the issues that had been joinedbetween the parties. See 14 A. 390, Sharp v. Bright.

   Insi/BV, J.

This is an injunction suit by way of third opposition.

The plaintiff claims to be the owner of certain lands described in his petition, purchased by him at a sheriff’s sale, made on the third day of November, 1855, under and by virtue of a writ of fi. fa., issued from the Fifth District Court of New Orleans, in the suit of Hugh McDooling v. The New Orleans and Nashville Railroad Company.

He further represents that, notwithstanding his ownership of the said property, the said Hugh McDooling, the plaintiff in said suit, has illegally and wrongfully caused a pretended writ of fi. fa. to be issued from the said Fifth District Court of New Orleans, in the said suit, against the said New Orleans and Nashville Railroad Company, directed to the Sheriff of the Parish of St. Helena, who, in pursuance thereof, has wrongfully and illegally seized upon, and offered for sale, and will sell on the 3d day of May, 1856, the said lands belonging to the said petitioner, to his great loss and injury, unless restrained by injunction.

He claims three hundred dollars damages for the wrongful and illegal seizure of his said property.^

A mandate of injunction was granted, as prayed for.

Previous to the filing of his answer, the defendant filed an exception, to the effect that the matters in controversy in this suit were submitted for decision by the plaintiff, J. McClendon, and by the consent of the defendant to Alfred Hennen, who, after taking the same into consideration, decided the same against the plaintiff and in favor of the defendant, as appears by the written statement, on record, of Penn & Martin, the counsel for the plaintiff; and these defendants pleaded the said judgment and decree of the said Alfred Hennen, in favor of the defendant, as a peremptory execution, and pray for the dismissal of the plaintiff’s action, which exception was properly overruled, because the alleged agreement to submit was not in -writing, as is required by Arts. 3066, 3067 La. Code. N. Raguet v. Carmouche, 3 A. 133.

The defendants then filed their answer, pleading the general issue, and averring that the plaintiff has no just and legal title to the property claimed; that the titles set forth by the plaintiff are illegal, and that the same were obtained by fraud. They subsequently filed, by leave of Court, an amended answer, specifying thereby the irregularities, defects, illegalities and frauds pleaded in the original answer, and say that the Sheriff had no legal fi. fa. in his hands when he made the seizure and sale of the lands in controversy, and was without authority to sell, as the writ of fi. fa., originally void, illegal and informal, had expired, and was of no avail to make the sale ; that the said Sheriff never gave any notice of demand of payment of the defendant on the writ of fi. fa., nor any notice of seizure of any property, nor required any property to be pointed out to him for seizure; nor did he ever make any legal and valid seizure of the tracts of land; nor did he ever give notice to appoint appraisers of the property seized; nor was the same ever legally appraised; nor were any legal, correct, descriptive advertisement of the property'made and posted up, as required by law; and the said illegal sale was made without a compliance of- any of the legal formalities, etc.

They further represent that the said property was illegally offered for sale, because there was no bidders at the time and place of selling the same, and there could be no sale for want of bidders; and further, that the properly was worth ten thousand dollars, and that the pretended bid of the plaintiff of twenty-five dollars was no bid at all, as it was not proportionate to the value of the property; that there was a combination with others, by the plaintiff, to obtain the said land for a mere nominal bid; and the sale of the same was not legal, fair and upright, and the same is against good conscience and equity, and that the whole proceedings are null and void.

A motion was. made by the plaintiff to strike out that portion of the defendant’s answer seeking to attack, collaterally, the alleged nullities of the sale by the Sheriff to the plaintiff, upon the ground that the said nullities, if any exist, are relative, and cannot be attacked without making all the parties to the-said transaction parties to the suit.

That it is only by a direct action of nullity that said irregularities can be inquired into. The Court overruled the motion and decided that it would more properly come up whenever the defendant should offer testimony in support of the averments in his answer; and, subsequently, when evidence was so offered, it was objected to by the plaintiff, but was received by the Court. The plaintiff’s bill of exceptions to the ruling of the Court is found in the record.

Before submitting the case to the jury, the plaintiff requested the Court to charge it, and the defendant asked that the charge be reduced to writing; whereupon the Judge charged:

1. That the only question for the consideration of the jury was whether or not the plaintiff was the owner of the property seized at the time of such seizure; and that, if they believed, from the evidence, that he was the owner of the same property, at the date of the seizure, then they should find for the plaintiff.

2. That the Sheriff in making the sale was presumed to have done his duty; if the jury believed, from the evidence, that he was acting under a fi. fa., legally issued, ora certified copy of the same; and that the jury are not to infer fraud or collusion from the fact that the price bid at the second offering of the property bore no proportion to the real value of the property sold.

3. That the Act No. 199, approved March 15, 1855, is not repealed by $he Act No. 337, approved March 16, 1855; but they must be construed together, so that no clause, sentence or word in them be superfluous, void or insignificant.

4 That the sale to the plaintiff by the Sheriff could not be attacked collaterally, unless the jury believed from the evidence that the same was fraudulent and simulated.

5. That the declarations of the Sheriff, in his deed of sale to the plaintiff, are to be regarded as true, unless rebutted by counter-evidence.

A bill of exceptions, taken by the defendant to this charge, is also found in the record; but, in this Court, the only part of the charge objected to was that in paragraph two : to the effect that the jury were not to infer fraud or collusion from the fact that the price bid at the •second offering of the property bore no proportion to the real value of the property sold.

The charge objected to was evidently correct, although, if no fraud or simulation appeared in the sale to the plaintiff, it was unnecessary to enquire into any ground of nullity. It was simply incumbent on the plaintiff to adduce, as we think he has done, sufficient legal evidence to raise, in regard to the sale to him, the presumption omina rect acta; .and this we think he has done, so far, at least, as to protect him from a direct seizure of the property in his hands, by the same plaintiff, in the the identical suit, in and under which his title was derived. So long as the Sheriff’s sale of the property is not set aside by a judgment of the Court, in a direct action, he may invoke that title against the seizure of it by the defendants in injunction. Lawrence v. Birdsall, 6 A. 688.

We find no error in the judgment of the Court which reserves to the ■defendant any right he may have to claim the nullity of the sale in a ■direct action, and it is therefore unnecessary to pass upon the bills of exception filed in the suit.

It it is therefore ordered, adjudged and decreed, that the verdict of the jury and the judgment of the Court below be affirmed; the costs of .appeal to be paid by the appellant.


author: Labajjve, J.

text:
    E. T. Parker, Syndic, v. Joseph Grelier, and Joseph Grelier, Plaintiff in Rule, v. E. T. Parker, et. als.
    • The debtor is entitled to the amount received over and above what is due by him on the judgment at a Sheriff’s sale on execution; and no stipulation which the Sheriff may make with the purchaser shall estop him from claiming it.
    APPEAL from the Second District Court of New Orleans,

      Morgan, J. Hunt & Denegre, for Sheriff Parker. Bonford and Leggett & Bed■mond, for Grelier. Frank Haynes, for A. & X. Bernard, warrantors.
   Labajjve, J.

On the 26th June, 1860, Parker obtained an order of seizure and sale against certain mortgaged lots of Joseph Grelier, and, after the legal advertisement, E. T. Parker, Sheriff, adjudicated the -said property to Auguste Bernard for $5,350, payable cash, and which he .acknowledged to have received. Auguste Bernard, the purchaser, executed a bond, or obligation, as follows :

“We, Auguste Bernard, as principal, and Xavier Bernard, as security, -are held and bound unto E. T. Parker, syndic of insolvency of Esther Goivelle, in the sum of $590 92, for which we bind ourselves, our heirs and administrators firmly by these presents.

New Orleans, September 19th, 1860.

Now the condition of this obligation is such that whenever said syndic shall erase the tacit mortgage in favor of the minor Louis Roy, surviving child of Felician Roy, which exists on the lot of ground and improvements, purchased by Auguste Bernard, at the sale of E. T. Parker, syndic, v. Joseph Grelier, No. ——, of the docket of the Second District Court of New Orleans, then and in that case this bond shall have full-force and virtue, otherwise to be null and void.”

On the 20th February, 1861, Joseph Grelier, the seized debtor, obtained a rule upon E. T. Parker, the Sheriff, syndic ex-officio, to show-' cause, on 25th February, 1861, at 10 o’clock, a. m., why it should not be-decreed that he pay over to the appearer, the sum of $634, with interest,, from 7th August, 1860, said amount being the surplus of proceeds of sale of appearer’s property, situated at the corner of Harmony and Magazine streets, in the Fourth District of this city, sold on said date, under an order of seizure and sale, issued at the suit of said syndic, against appearer, case No. 16,919 of this Court.

E. T. Parker answered, in substance, that no part of said sum came in his hands, but that the same was retained by Auguste Bernard; and that said Auguste Bernard and his security, Xavier Bernard, are liable, in solido, to pay said sum, in case it be determined that the plaintiff, in this rule, is entitled thereto, etc. He concluded by calling in warranty the said Auguste and Xavier Bernard. Auguste Bernard answered, in substance, that he was ready to pay whenever the tacit mortgage referred to was erased.

The District Court ordered that the rule be made absolute, and that E. T. Parker, Sheriff, ex-officio syndic, pay to Joseph Grelier $634, with legal interest, from the 7th August, 1860, till paid; and that E. T. Parker, syndic, have same judgment against Auguste and Xavier Bernard, in solido.

Auguste Bernard and Xavier Bernard took this appeal.

The said E. T. Parker declared, in the act of sale of the property, that he received the whole amount in cash; and it is not disputed that tho excess, claimed by Joseph Grelier, was coming to him, and he has nothing to do with the bond in question; that is a matter between E.'T. Parker, syndic, and Auguste and Xavier Bernard. •

We have found no evidence in the record showing that E. T. Parker,, syndic, had fulfilled the condition of the bond; and, until he does comply with that part of his obligation, he cannot recover. The judgment, therefore, rendered against Auguste and Xavier Bernard, in favor of said Parker, is erroneous.

It is therefore ordered and decreed, that the judgment of the District Court be affirmed, so far as it makes the rule absolute; and decrees that E. T. 'Parker, Sheriff, to pay to Joseph Grelier the sum of $634, with< interest. It is further ordered and decreed, that that part of the judgment decreeing Auguste Bernard and Xavier Bernard to pay same judgment to E. T. Parker, syndic, be annulled and reversed. It is further-ordered and decreed, that there be a judgment of nonsuit in favor of said Auguste Bernard and Xavier Bernard against said E. T. Parker, syndic; and that said E. T. Parker pay costs in both Courts.


author: Labattve, J.

text:
    Pierre Deverges v. His Creditors.
    With the exception, of special privileges, which exist on immovables in favor of the vendor, of workmen and furnishers of materials, as declared above, the debts privileged on the movables and immovables generally, ought to be paid, if the movables are insufficient, out of the products of the immovables and slaves belonging to the debtor, in preference to all other privileged and mortgaged creditors. The loss which may then result from their payment must be borne by the creditor whose mortgage is least ancient, and so in succession, ascending according to the order of the mortgages, or by pro rata contributions where two or more of the mortgages have the same date.
    When the debts privileged on the movables and immovables cannot be paid entirely, either because the movable effects are of small value, or subject to special privileges which claim a preference, or because the movables and immovables together do not suffice, the deficiency must not be borne proportionally among the debtors, but the debts must be paid according to the order established above, and the loss must fall on those which are of inferior dignity.
    APPEAL from tlie Second District Court of New Orleans,

      Morgan, J.. L. Costera and G. LeGardeur, for B. Soulie, syndic and appellant.—
    In ter opposition Mrs. de St. Romes contended ttat tte note, for securing tte payment of wtict tte special mortgage of 1855 tad been granted, was in ter possession and still unpaid; ttat if tte mortgage ever was canceled, tte cancelment of it was erroneous and wrongful, done wittout ter knowledge, eitter ttrough error or coEusion, and was, therefore, null and void; and tte Court maintained ter opposition upon tte ground ttat “tte note wasstülinter tands; ttat it tad never been paid nor canceled; ttat tte mortgage, it is true, tad been erased on tte books of tte Recorder; but ttere was no proof ttat ste tad auttorized suet erasure.” In otter words, in a case wtere tte acts of two pubtc officers, tte Rotary and tte Recorder, were assaEed, the Court, in violation of tte legal presumption omnia rité acta, stiffs tte burden of proof from tte party wtoassaEs, to tte innocent third parties wto defend, tte correctness of these acts. Ttis is manifestly erroneous.
    In tte case of Belavigne, syndic, v. Gaiennie and others, 11 Rob., p. 175, ttis Court said: “Under our laws, tte principle of publicity of mortgages is important and inviolable; it is tte basis upon wtict tte rights of mortgage creditors rest, and tte source from wtict they are derived: and, were we to recognize ttat, with regard to third persons, strangers to anterior judicial proceedings, erasures of mortgages, apparently legal and. sanctioned by a judgment of a Court of competent jurisdiction, can be -enquired into and successfully disputed; and that such, mortgages can be reinstated with all their previous and anterior effects, there would result the greatest confusion in our system of mortgages; no reliance could be placed on the certificates of their Recorders; no man would dare to transact any business in which this contract would be the basis of the transaction; and our laws upon this subject, instead of being a protection to honesty, and a beacon to our citizens in one of their most ordinary transactions of life, would be used as a means by which frauds could be successfully practiced, or as snares to the unconscious and unwary. We cannot sanction the doctrine adopted by the judgment appealed from, by which, as Duranton says, the principle of the publicity of mortgages is violated in its consequences; and we conclude that the Judge á quo erred in reinstating the plaintiff’s judicial mortgage, in its effects against the rights acquired, since its erasure, by the appellant.
    In the case of Kemp v. Rowly, 2 A. 318, your predecessors held that the release of a mortgage in favor of a minor by the tutor who acknowledges payment, though fraudulently, was good and valid in favor of third parties, and said: “The reasons of the Court in the case of Delavigne v. ■Gaiennie (above quoted) have a direct application to the facts in this case, •and were a contrary doctrine established, the purpose of the laws concerning the recording of mortgages would be completely frustrated. ”
    In Adle v. Aniy, 5 A. 633, this Court again said: “ The argument of the plaintiff is that the want of reinscription cannot be attributed to the fault of the creditors. But, in our oqoinion, this argument is unsatisfactory. The judicial mortgage exists and has vitality only by inscription. It is this which gives the public notice, and establishes a lien against third persons. If there be no inscription, there is no judicial mortgage. It is not what the Recorder ought to or might have done, but what he does, that we must look to in order to ascertain the rights of parties. If the public record is considered as the sole standard by which those rights are :to be determined, the community can always know with certainty what conventional or judicial mortgages exist on a man’s property, and can deal with him securely. But if, instead of looking to the record, Courts let in proof of unsuccessful diligence of the creditors to get his mortgages recorded, and the remissness or fault of the public officer, all the security -and certainty contemplated by our registry system is gone, and a wide door is opened to injustice and frauds. The remedy of the creditor who loses his rights by want of proper inscription is against the officer, in -dainages. His fault or fraud is not to be visited upon the public. ”
    2. The syndic, following the express provisions of the Code and the ruling of this Court in the case of Devron v. His Creditors, 11 A. 482, had applied the proceeds of the mortgaged property to the payment of the privileges in the order in which the property was mortgaged, commencing with the most recent and ascending to the most ancient. But this mode «of contribution was objected to by Mills, Judson & Co. upon the ground that “ conventional mortgages in cine form upon different things, are of equal dignity, irrespective of their dates”; and the lower Court, adopting their views, ordered “ that their opposition should be maintained so far as it relates to the mode of contribution among the mortgage creditors, and that the mode of distribution of the tableau be so changed that, after exhausting the proceeds of movables and unencumbered immovables, the several properties mortgaged must contribute pro rata towards the discharge of what remains to be paid of the general privileges, senior mortgages on the same property being preferred to those of more recent date, and mortgages of the same date on the same property being made equally subject to a pro rata loss.
    In coming to that conclusion, the lower Court evidently disregarded the provisions of Arts. 3236 of the Civil Code, and overruled the interpretation placed upon them by this Court in the case of Bevron v. His Gr editors,”

      J. Mcigne, for F. Boumieu.

    — 1. The mortgage was regularly erased on the mortgagor presenting to the notary the mortgage note; and this is conclusive as to innocent third parties.
    Again, an act cannot be declared null and void, collaterally, particularly as to third parties. It is said that the insolvent being the agent of the widow, he availed himself of that situation to erase fraudulently that mortgage. But this pretended fraud of the insolvent is a mere surmise, unsupported by any evidence; and then, the fact, were it proved, could not help her in this case, for this obvious reason, that, whenever out of two persons one must suffer, it is the one who is in fault which must suffer, and not the one who is not in fault. Walhery. Gassaway, 4 An. pp. 19, 20.
    But there is another legal ground which renders the pretension of Widow St. Bornes untenable. The note came to the hands of the mortgagor, as shown by the certificate of erasure of the notary; nay, as shown by the testimony of the notary and of- Foulon, it appears not only that the note was in the hands of Deverges, but that the mortgage was erased with the consent of said Widow St. Bornes. Now, the note having come to the mortgagor’s hands, the debt was ipso facto extinguished, and the mortgage gone. C. C. 2126, 3251, 3252, 3374, par. 4. 1 Hen. Dig. (new ed.) p. 959, No. 10, p. 960, Nos. 15, 17. Hill v. Hall, 4 Bob. 416. C. C. 2214. Peels v. Wilson, 19 La. 480. LeBeau v. Glasé, 8 An. 474-477, and authorities quoted there.
    H. The pro rata system, which was adopted by the District Judge, contrary to the decision of the Supreme Court, in the leading case of Bevron v. His Gredito?-s, 11 An. 482, is (in our humble opinion) erroneous and in direct opposition to the principles of the law of mortgages embodied in our Codes.
    Article 3236 C. C. reads thus: “With the exception of special privileges which exist on immovables in favor of the vendor, of workmen and furnishers of materials, as above declared, the debts privileged on the movables ^nd immovables generally, ought to be paid, if the movables are-insufficient, out of the product of the immovables and slaves belonging to the debtor, in preference to all other privileged and mortgage creditors. The loss which may then result from their payment must be borne-by the creditor whose mortgage is least ancient, and so in succession, ascending according to the order of the mortgages, or by pro rata contributions where two or more of the mortgages have the same date.”
    This language is clear and conclusive, and in strict accordance with our theory of mortgages: “qui prior est tempore, potior est jure.” O. C. 3297.
    Under the old French law, this principle was admitted without contradiction: “ O’est véritablement une regie premiere et principale says Basnage, que le plus ancien créancier doit étre mis le premier en ordre: qui prior est tempore, potior est jure. L. G-eneraliter D. qui pot. in pign. hab.; Basnage, Traité des Hypotheques, vol. 2, p. 17; Pothier des Hypotheques, l 3; 7 Pothier’s Pandects, p. 400.”
    The Napoleon Code, from which our mortgage laws were taken, does not contain any express provision like the one embodied in our Art. 3236; but it is so clearly a deduction or corollary from the principles of the hypothecary law, that it was adopted by the most eminent jurists and commentators there, and acted upon and sanctioned by the tribunals as good law. Grenier, Traité des Hypotheques, vol. 1, p. 376 et seq., fully elucidates this subject; and he emphatically says that he cannot conceive how a contrary opinion could ever have come across the mind of any jurist. Troplong, Hypotheques, vol. 3, p. 325 et seq., adopts the same doctrine, as well as Battur Traité des Privileges et Hypothéques, vol. 4, p. 206, No. 669.
    In the case of Broussous v. Ignon, 21 Sirey, p. 360, the Cour de Cassation held that where a general mortgage, anterior to all the special ones, reduces the proceeds of the sale in such a way that all the special mortgages cannot be paid in full, the price of the property more recently mortgaged is to be first taken, and so on going up.
    “In the concurso of several creditors having, every one of them, a special mortgage on different immovables, with a creditor having a general mortgage anterior to all the special ones, the immovables subject to special mortgages must contribute to the payment of the general mortgage creditor, according to the date of their respective inscriptions or registry, beginning by the last one. The last registered creditors cannot require that the general mortgage be taken pro rata on all the immovables, without heeding the date of their registry. ” Gazard v. Grimal et al., Cour de Riom, 31 Sirey 2 Partie, p. 310. Same decision, in Glereau v. Bonoi, Poiters, 30 Dalloz, 2 part, p. 125; Leroy v. Besson, Cassation, 30 Dalloz, 1 part, p. 304 ; Bouton v. Bouvier, Aix. 1834, Dalloz, 2 part, p. 124 ; Morange v. Lesohanvps, Cassation, 1847, Sirey, 1 part, p. 830.
    All these decisions, although rendered in cases where it was a first general mortgage which had to be paid, instead of privilege charges, as is the case here, are, however, strictly in point; because, in a concurso, the anterior general mortgagors, like the privilege creditors, must be first paid any how ; and that, in both cases, the only question is : how is the sum necessary to pay the same to be assessed ? Or, in other words, “whether it is to be taken out of the proceeds of the property specially mortgaged, indiscriminately and pro rata, or out of the proceeds of the same property, beginning with the more recent mortgages and going-up according to the dates of their registry ? ”
    Hence, we think, to be justified in drawing the conclusion, that the pro rata system being rejected in France, it ought to have been rejected here also, under the old Code ; because the mortgage laws of France are the same as the mortgage laws of Louisiana were under the old Code (1808), and up to 1826.
    It appears, however, that the pro rata system prevailed here under our old Civil Code, as is shown by the case of Delor v. Montegut, 5 M. R. p. 468. So that there was a diversity of jurisprudence under the same written laws. So that, again, supposing that the jurisprudence in France had been favorable to the pro rata system, it could not shake our position, for this obvious reason : that Art. 3236, and various Articles of the Code of Practice, enacted^ in 1825, were not to be found before in our legislation, and are not to be found up to this very day in the French legislation, and that these new provisions are conclusive in our favor.
    A brief review of the adjudicated cases on which our adversaries rely -cannot be considered as out of place nor devoid of interest.
    The cases of Delor v. Montegut, 5 M. 46S, and Goforth v. His Creditors, 6 M. 519, were rendered in 1818 and 1819, under the old Code ; and, we verily believe, that the jurists who amended the Code in 1824, inserted ■that very Art. 3236, for the express purpose of correcting- the erroneous interpretation of the old Code on that point.
    Some time after the promulgation of the new Code of 1825, in which Art. 3236 was engrafted, the same question of contribution arose again, in the ease of Dreux v. His Ci'ediiors, 7N. S. 635 and seq.; the Court, through Judge Porter, admitted that Art. 3236 of the new Code, established a principle contrary to the pro rata system ; but, inasmuch as the insolvency had taken place, and the rights of the creditors before the Court had been acquired, previous to the amendment (3236), introduced in the Code of 1825, the case was decided in conformity with the anterior law as applied in Delor v. Montegut, and the Court, going- on, said : “ The -other question, whether the mortgage creditors should contribute ratably to the costs in ease of a failure of movable property, is not settled by any positive provision of our law, previous to the amendments to our late -Code. In the case of Montegut v. Delor, it was decided in this Court that the mortgage creditors should contribute pro rata to the costs. This decision we think correct under the law as it then stood ; and, as this case does not come within the change lately made by the Legislature, it should receive a similar decision.”
    In Janin v. His Creditors, 10 La. 554, Art. 3236 C. C., was not invoked, not mentioned; the point was not made, not even suggested ; and the case was decided merely on the previous decisions of Helor v. Mordegut and Goforth v. His Creditors, rendered under the old Code.
    The case of Monbouehets curator v. Ferrand, 18 La. 373, is not applicable ; it decided merely that a purchasing creditor retaining the price, is botmd to refund or pay over his share of the law charges of an insolvent estate ; non constat that he was not the only creditor, or even that he was a mortgage creditor.
    In Cazeau v. His Creditors, 6 Rob. 268, there was no mortgage creditor,, no real estate ; and the case passed only upon the conflicting pretensions of privilege creditors on movable effects.
    So that from the promulgation of the Code of 1825 and up to June-1856, when the case of Hevron v. His Creditors, was presented for adjudication, a single solitary case, Janin v. His Oi'ediiors, came before the Supreme Court, in which application could have been made of Art. 3236 C. C., and no mention of it was made by neither Court nor counsel; and the Court decided the case merely and exclusively according to the two aforementioned decisions rendered under the old Code, and before the important amendment introduced into our Legislation in 1825, had been enacted.
    We say, then, without fear of contradiction, that so late as 1856, the point had never been made, and the change brought about by Art. 3236, C. C., never suggested to the Supreme Court. And so it was admitted to-be the fact by the Supreme Court in June, 1856, in the case of Hevron v. His Creditors, 11 An. 482, in which the principle for which we contend was, after a long and full investigation adopted, and the pro rata system rejected. Says the Court: “We consider the provision of our Code clear and unambiguous, and that hitherto there has been any interpretation placed upon the articles cited, which could weigh as an authority against what appears to us to be their obvious meaning. ” P. 485.
    It was contended below that Art. 3236 C. C. applied, exclusively, to the different special mortgages lying on the same property. But the very text of the Article resists such an interpretation. Besides, it never was doubted that among the several special mortgages on the same property, priority of date gave priority of right.
    The old Code (1808) contained clear and positive provisions to that effect (page 452, Art. 2, p. 460, Arts. 39, 41, etc.); provisions re-enacted in the new Code (1825) under Arts. 3247, 3360, 3362, etc. Then the enactment of Art. 3236 was unnecessary for that purpose ; but it was necessary to carry on the application of the same principle to special mortgages on several pieces of property, in consequence of the decisions rendered under the old Code. See also C. P. 684, 685, 682 to-715.
    This, if we are not mistaken, leaves no room for doubt. Article 3236-applies to special mortgages on different and separate property, 3297. “Thecreditors, whose inscriptions have been made on the same day,. (and it is not said on the same property) possess a concurrent mortgage.” C. C. 3321, qui concurrent tempore, concurrent jure. Hence the priority of inscription gives a priority of right generally. O. C. 3360, par. 3.
    Again, “ when it is necessary to reduce donations, in order to give to the forced heirs their reserved quantum, the reduction must be made by beginning with the last donation, and then, successively, ascending from the last to the first.” O. O. 1495.
    “If the donee,has, successively, sold several objects of real estate-liable to an action of revendication, that action must be brought against third persons, holders of the property, according to the order of their purchases, beginning with the last, and ascending in succession from the last to the first.” C. C. 1505.
    “The purchaser (at judicial sales) against whom a suit is commenced by a creditor having a legal and judicial mortgage on the property of the debtor sued, may require the creditor to discuss the other property which-the debtor has in his possession, and even that which he has alienated since the purchase, because the creditor, who has a general mortgage, can only act against the property of which his debtor has disposed in the-order in which the alienations have been made, beginning at the most recent, and ascending to the most ancient. ” C. P. 715.
    All which, by a close analogy, corroborates our right and sanctions our-doctrine ; prior est tempore, potior est jure.
   Labattve, J.

B. Soulé, syndic of the creditors of the said insolvent, filed a tableau of distribution, on the 25th January, 1862.

Various oppositions were filed to the said tableau; and our attention-has been called particularly to the following objectionable parts thereof :

The movables being insufficient to pay the debts privileged on the movables and immovables, the creditor whose mortgage was the least ancient, was made to contribute first to the loss resulting from theinsuffieiency.

The ground of opposition is that the deficiency of movables to pay privileged debts should be charged pro rata on all the mortgage creditors.

The said tableau being also silent, as to a mortgage in favor of Madam de St. Homes, to secure the payment of a note in her favor, for $12,988 95, secured by a mortgage, granted on certain property, on the 2d March, 1855; the said Mistress de St. Homes opposed said tableau, alleging, in substance, that she is the holder of said note which is wholly due to her; that the mortgaged property has been sold by the syndic,, who has failed to put her on said tableau as a mortgage creditor and as-being entitled by preference to the proceeds, and that she has never released the said mortgage; and that, if any entry has been made on the-books of the register of mortgages cancelling said mortgage, the same was erroneous and made without her consent. She prayed that the proceeds of the mortgage property be applied to the payment Of said note.

The Court sustained the said oppositions; ordered that the deficiency of movables to pay the debts privileged on the movables and immovables be charged pro rata on the mortgage creditors, and that Mrs. de St. Eomes should be also placed on the tableau as a mortgage creditor, to be paid by preference on the proceeds of the property mortgaged to her.

The syndic and various creditors took this appeal.

The question as to what mortgage creditors should contribute, in case of deficiency of movables, to pay debts privileged on movables and immovables, depends on the interpretation of Arts. 3236 and 3237 of our Civil Code. We are called, then, to review the decision by our predecessors, upon those two very Articles, in the case of August Devron v. His Creditors, 11 A. 482. In that case, a majority of the Court (Judges Spofford and Lea dissenting) decided that the loss resulting from the deficiency of movables to pay debts privileged on movables and immovables, must be borne by the creditors whose mortgage is the least ancient, and so in succession, ascending according to the order of the mortgages. We are of opinion that these Articles have been correctly interpreted in that decision, and, consequently, that the judgment rendered below in this case is erroneous on that question. See the case of Succession of Thomas O’Laughlin, lately decided, and not yet reported.

It appears that the mortgage in question, in favor of Widow de St. Eomes, was erased from the records of mortgages, on the 8th July, 1857, and that the mortgage note is still in the possession of Mrs. de St. Eomes, apparently fully due and uncancelled.

It is contended that Deverges, .the debtor and mortgagor, came in possession of the mortgage note, went to the Notary before whom the act of mortgage had been passed, and asked the Notary to cancel the mortgage; and that the mortgage was accordingly erased. We have found in the record no satisfactory testimony in support of that assertion. We are referred to the statement or report of Walton, an auditor, wherein we find that said Walton says: “Now Joseph Lisbony, in his statement to the auditors, says that Pierre Deverges came to his office with this note, some time after its maturity, and asked him to cancel the mortgage, that, by virtue of Art. 3346 O. C., he did so, and granted a certificate to that effect; he further states that, through an oversight, he did not erase the name of the drawer. ” This is not legal testimony before us.

The opposition to Mrs. de St. Eomes’ mortgage, relies entirely on a copy from the book of the.recorder ©f mortgages, showing an entry on the margin opposite the mortgage, as follows :

“ Eteinte et annullée conformément á Particle 3346 du Code Civil, et suivant le certificat de Jos. Lisbony, notaire, en date du 6 Juillet, 1857, et déposé ce jour en ce bureau. Nlle-Orléans, 8 Juillet, 1857.”

From this entry, it is contended that the mortgage of Mrs. de St. Eomes was effectually erased and cancelled, and that she has now no right, as mortgagee, to the proceeds of the property so mortgaged to her.

We must bear in mind that the mortgage fnote is now unpaid and uncancelled, and in the possession of Mrs.de St. Romes, the payee and mortgagee, and negatives the fact that it has ever been exhibited to the notary according to Art. 3346 C. C.; and if the notary did grant the certificate without the production of the note as paid, that certificate was unauthorized and null, and not binding on the mortgagee, and the erasure of the mortgage thereupon by the Recorder might possibly not affect Mrs. de St. Romes’ rights, or at least it is a very important legal question, which we reserve. We are of opinion that the remanding of the case may afford the interested parties an opportunity to show, by legal evidence, that the certificate in question, of the notary, was properly and legally granted.

It is therefore ordered and decreed, that the judgment of the District Court be reversed, and the case be remanded to be proceeded in according to law and in conformity with this decision; Mrs. de St. Romes, appellee, to pay the costs of this appeal.


author: Howeuci, J.

text:
    Joseph Lallande v. Conrad F. McRae.—Brady, Gorman & Co., et als, Third Opponents.
    AU parties interested in maintaining the judgment appealed from, must be brought before the Court in due form by the appellant.
    "Where the appellant has failed to give bond in favor of all the parties interested, in maintaining the judgment, the appeal must be dismissed.
    APPEAL from the District Court of the Parish of Pointe Coupée,

      Reynolds, J. Singleton & Glaelc, J. W. Hardie & F. H. Farrar, for opponents. Olarlc <& Bayne, for assignees of McKleroy & Bradford, and W. B. Winter, for Mrs. Stirling. T. J. <& W. R Gooley and R. M. Spofford, for McRae.
   Howeuci, J.

A motion is made to dismiss the appeal taken by Brady, Gorman & Co., in this case, on the ground that all parties in interest are not parties to the appeal.

The property, owned by C. F. & R. W. McRae, and seized herein, was sold at Sheriff’s sale for $120,000, and on the trial of the various oppositions, this fund was, by the judgment appealed from (rendered June 30, 1860), distributed as follows, viz : 1. The Clerk’s costs; 2. Sheriff’s •costs for certain taxes; 3. To Mrs. M. C. Stirling, sundry claims acquired by her, viz : $5000, with eight per cent, interest, from November 4, 1851 to March 5,1859, the day of sale; $6,150, with eight per cent, interest from January 10,-1856, to same date; $5,000, with eight per cent, interest from November 4, 1852, to same date; and $13,879 99, a judgpent in favor of Burton and others; 4. Z. Porche, $16,000, with eight per cent, interest from February 1, 1853, subject to a credit of $3,080 on February 1, 1855, and like sum on February 1, 1856; 5. Mrs. M. O. Stirling as assignee of J. Lallande, $46,699 96, with eight per cent, interest from •April 21, 1858 to March 5, 1859, and $2,678 58, subject to a deduction of $2,759 58.

The residue of the fund was then divided into two equal parts, and distributed among the individual creditors of R. W. McRae and C. F. McRae, as follows : out of R. "W. McRae’s half thereof ; 6. To Gladden & Seixas $4,799 05, with five per cent interest from June 17,1854, to March 5, 1859, and costs ; 7. J. T. Motlow $4,896, with eight per cent, interest from January 1, 1856, to day of sale.

“ Next in order of registry,” says the decree, “is the claim of Brady, Gormon & Co., bearing upon the interest of R. W. McRae; but as the fund or share belonging to R. W. McRae is already exhausted by the distribution heretofore, and there only remains the one-half belonging to C. F. McRae, after deducting the sums ordered to be paid for costs, and to Mrs. Stirling and to Zanon Porche, I do not,” proceeds the Jqdge, “ consider it necessary to go into an examination of the question presented as to the extinguishment of said claim.” He thereupon dismissed their opposition, and distributed C. F. McRae’s portion as follows : 8. To MeKleroy & Bradford $11,521 86, with eight per cent, interest from December 31, 1838 to March 5, 1859, with costs, immediately after Mrs. Stirling and Z. Porche; 9. To Thos. Claycomb, $322, with interest from May 8,1854, if any of said fund exist; and 10. Whatever balance thereafter to C. F. McRae.

Of those parties only Mrs. Stirling, Jos. Lallande, Hall, Rodd & Putnam, MeKleroy & Bradford and C. F. McRae, are cited as appellees. The Clerk, the Sheriff, Z. Porche, Gladden & Seixas, J. T. Motlow and Thos. Claycomb, have not been made parties to the appeal. Two of them, Gladden & Seixes and J. T. Motlow, individual creditors of R. W. McRae, are mentioned in the petition, with the averment that they are not cited, because their rank is not contested.

The appellants, claiming to be creditors of R. W. McRae, by judgment for $12,490 40, with 8 per cent, interest from January 24, 1856, and $800 with like interest from February 1st, 1856, subject to a credit of $160, and duly recorded on 22d April, 1856, contend that their judicial mortgage upon the fund distributed is superior in rank to the claim of Mrs. Stirling on the account for $46,699 96, allowed against the partnership interest, with the rank and amount given to each of the other parties, they are satisfied; and the effect of the position “taken by them is, that the amount of their claim must be carved out of said sum allowed to Mrs. Stirling, who must lose to that extent, as the rights of the others are not to be impaired. But as the Court might not adopt their view in this regard, the necessity for making all those interested in maintaining the judgment as it is, parties to the appeal, becomes apparent. To meet this difficulty, they argue that, as they wish only to correct the judgment as between themselves and Mrs. Stirling, if she desires a change as to others, she should have appealed as against them, and cite the case of Converse v. Lucy Robinson, where it was held that this Court is only seized of jurisdiction to amend the judgment as between _ appellant and appellee, and not as between the appellees. This, in our opinion, is an incorrect application of the doctrine of that case; which by no means implies that an appellant may impose upon his appellee the duty of appealing as against other parties, in order to be protected against the result of his appeal. The reverse of this was held in the case of Howson v. Creswell, 10 A. 232, where it was also decided that all parties interested in maintaining the judgment appealed from must be brought before the Court, in due form, by the appellant. See also 12 R. 180, 203; 8 A. 72; 12 An. 775; 15 A. 496; Succession Bevaugine, not yet reported.

That the parties who are omitted in this appeal have an interest in maintaining the judgment as it is, is manifest. The fund distributed is limited, and the granting of the appellants’ demand might disturb the whole order of distribution, and result in cutting some off, in part or entirely, who have received by the judgment. The claim of Mrs. Stirling, of which the appellants complain, is a partnership debt, while theirs is against one of the partners; and it is clear that the individual creditors of that partner, who have been paid by the judgment and have not been cited, have a right to be heard, as to whether the appellants shall super-cede them, and perhaps absorb the funds appropriated to them.

We cannot recognize in appellants the right to single out one or more of the successful contestants for a particular fund, and omit the others, as the litigation must be terminated in a single trial, provoked by their action alone.

It is therefore ordered that the appeal in this case be dismissed, at the costs of the apimllants.


author: Labauvb, J.

text:
    Ex. rel. Henry H. Walsh v. Reuben W. Knickerbocker.
    Er order that no inconvenience may result to the public service from the taking effect of this Constitution, no officer shall be superceded thereby; but the laws of this State relative to the duties of the several offioers, executive, judicial and military, except those made void by military-authority, and by the ordinance of emancipation, shall remain in full force, though the same be contrary to this Constitution; and the several duties shall be performed by the respective officers of the State, according to the existing laws, until the organization of the Goverment under this Constitution, and the entering into’office of the new officers to be appointed under said Government, and no longer.
    The District Attorneys shall be elected by the qualified voters of their respective districts, for a term of four years. Constitution of 1864.
    APPEAL from the Fifth Judicial District Court for the Parish of East Baton Bouge, Posey, J.

      JDunn & Serrón, for relator and appellant.

    — The respondent and appellee, B. W. Knickerbocker, was appointed District Attorney of the Fifth Judicial District of Louisiana, on the 12th of April, 1864, during the recess of the Senate, by Governor Hahn. This recess nomination was never confirmed by the Senate, which met on the 4th of October following.
    The relator, H. H. Walsh, was appointed and duly commissioned District Attorney of the Fifth Judicial District of Louisiana, by the present Governor, J. M. Wells, on the 27th day of April, 1865. He took the oath of office, as required by the Constitution, on the 1st of May, 1865. B. W. Knickerbocker having refused to vacate the office and to deliver the indictments, books, keys, etc., appertaining to it, to the relator, the latter sued out a mandamus to compel him so to do; and, from the judgment of the Court refusing the mandamus, relator has appealed.
    The above statement of facts are not disputed, and the only question raised by the pleadings are, first: Had the term of office of Knickerbocker expired when Governor Wells appointed Walsh to succeed him; for, if it had, then it was not only the right, but the duty of the Executive, to fill the vacancy; second: Was there any constitutional appointment made, or officer vested with constitutional authority, until the adoption of the Constitution of 1864 ?
    Knickerbocker claims the appointment made by Hahn, under the Constitution of 1852, to fill the vacancy occasioned by the death of J. D. íátuart, elected under that Constitution.
    Article 48; Constitution 1852, provides that the Governor shall have power to fill vacancies that may happen during the recess of the Senate by granting commissions, which shall expire at the end of the next session. Knickerbocker’s appointment was made during the recess of the Senate; and, at tlie next session, which took place in the month erf October following his apointment, no confirmation was made of the appointment, as will be shown by reference to the journals of the Senate j consequently, the commission of Knickerbocker expired at that session, and is not pretended, as shown by the record.
    But, again, the Constitution of 1864 superceded and abrogated the Constitution of 1852, and, consequently, all powers of Government under the old Constitution ceased, except so far as they were maintained by the new one.
    No one had such a vested right to office as to resist the necessary consequence of the entire abrogation by the people of the Constitution, under the authority of which he holds it. See Segur v. Crenshaw, 8 An. p. 401. The officers of the Constitution of 1852 are not the officers of the Constitution of 1864; and, as long as the former continue in office, the present Government will continue and remain pro tanto unorganized.
    Governer Wells succeeded Governor Hahn, and became the constitutional Governor of Louisiana, by Article 47 of the present Constitution. He was the creature of a distinct and different creator; he exercises Ms constitutional rights in their entirety.
    The Governor elected in 1864, February 22d, was vested with no legal and constitutional rights or power prior to the ratification of the Constitution of 1864. The order of General Banks for the election, was unauthorized by the Constitution of 1852. Under that Constitution, there was no vacancy in the office of Governor; and no power, beyond that of a temporary nature, could be conferred by an election under an order emanating from a military commander, consequently, all persons, appointed to office by Governor Hahn, prior to the ratification of the C'oastitution of 1864, held their offices from a source without constitutional power or qualification to confer any beyond temporary, appointments. These temporary officers are only “tenants at will,” to be removed as soon as the particular department to which they owe their birth, anal under whose control they. are, is ready to exercise its constitutional functions. To continue them longer would be to prolong, without causey the temporary Government.
    Article 90, Constitution 1852, requires that all offioers, before entering upon the duties of their office, shall take the following oath :
    “I do solemnly swear or affirm that I will support the Constitution; ©f the United States and of this State.”
    What constitution ? The Constitution of 1852. Is the respondent- am officer of the State ? Certainly not. He is an officer of the State ©a* Government of 1852, as he claims from his apointment, and not of idas Government of 1864; and, as long as he continues under his original appointment, he is not a qualified officer of the present Government asr Constitution of 1864.
    Article 154, Constitution 1864, recognized the State officers elected in February, 1864. It provides the terms of office of the State officers elected on the 22d February, 1864, shall expire on the installation of their successors, as herein provided for, etc. Knickerbocker having been appointed by Governor Hahn, in April, 1864, prior to his recognition as Governor by the Constitution of 1864, held his office by temporary tenure. Governor Wells appointed Walsh after the adoption of the Constitution of 1864. This appointment is the first legal filling of the vacancy existing in the office since the death of the former incumbent, J. D. Stuart, elected under the Constitution of 1852.
    It is submitted that, even if Governor Hahn’s power to appoint under the Constitution of 1852 were unquestionable, the adoption of the Constitution of 1864, and the entering into office of the new Governer jrnder it, by Article 47, new Constitution, superceded and abrogated appointments made by Hahn prior to the adoption of the Constitution.
    I refrain from arguing the case further, simply referring the Court to the very able and lucid argument of L. J. Segur, in the case of Segur v. (h'enshaw, 8 An. as well as the decision of the Court in that case.

      J. Q. Fuqua, for defendant

    — R. W. Knickerbocker was appointed to fill a vacancy, or supposed vacancy, in the office of District Attorney for the Fifth Judicial District, occasioned by the failure of the people, or that portion of them within the Federal lines, to elect a District Attorney in November, 1863 ; he was appointed to fill that unexpired term which extended to the next regular election, viz : November, 1867.
    But it is contended that circumstances have occurred since his appointment which have vacated his office, and rendered a new appointment necessary. What are these circumstances ?
    First, it is said that, as the order of General Banks directing an election to be held for State officers in February, 1864, was not sustained by the Constitution of 1852, or any law made thereunder, the appointments made by Governor Hahn were not made under the Constitution, and are not to be governed by it. That the election of Governor Hahn was effected only by the exercise of military power, I am ready to admit, but after his election? I know not by what law he was to be governed if not by the Constitution of 1852, and the laws thereunder.
    Even if Louisiana is to be regarded as, at that time, a conquered territory, so much of the former law would remain in force as was not abolished by the conqueror.
    The appointment, then, was made under the Constitution of 1852, and must be governed by it, as to duties and duration, except so far as modified by the Constitution of 1864. Let us see, then, what are the provisions of the Constitution of 1852, and whether this appointment, under that Constitution, required to be confirmed by the Senate.
    Article 48, of that instrument, is as follows :
    “The Governor shall have power to fill vacancies that may happen in the recess of the Senate by granting commissions, which shall expire at the end of the next session, unless otherwise provided for in this Constitution.” If this language is not wholly unmeaning, and mere surplusage, it must mean that there are cases where the concurrence of the Senate in an appointment to office is not necessary, and that these cases are otherwise provided for in the Constitution itself. These cases are “ otherwise provided for ” in two ways :
    1. By express constitutional provision, as in case of Sheriff and. Coroner, who, in case of vacancy, are to be appointed by the Governor alone, and not by the Governor, by and with the advice and consent of the Senate, and who, it is expressly declared, “shall continue in office until their successors in office are elected and qualified.” Article 80.
    2. The Legislature is authorized to provide the mode of filling vacancies in certain offices, among others, that of District Attorney. Article 84.
    Under the authority here conferred, the Legislature might have devised any mode they thought proper ; they might have provided for the filling of these vacancies by the District Judge, by the Clerks of the •Courts, or by the members of the Bar. Either of these modes would, under the power granted, be perfectly constitutional, and surely, neither of them would require confirmation by the Senate.
    The Legislature has, with reference to the office in question, acted upon the authority given and provided by the act of 1855, that a vacancy in the office of District Attorney shall be filled by the Governor. If they had intended the Senate should concur in this appointment, surely théy would have said so, and as they have not done this, surely the Courts* are not called on to annex to continuance in the office a condition not required by the Legislature. * .... . 1
    The legislation of our State abounds with instances of offices,' neither the appointment to fill vacancies in, nor the original appointment toj which require confirmation by the Senate. See Revised Statutes, p. 321, 16; p. 425, g 3; p. 426, g 4; p. 454, g 1.
    It will be seen, also, that whenever the Legislature have thought proper to require confirmation by the Senate, they have said so in express terms. .See Revised Statutes, p. 72, g 1; p. 179, $ 2; p. 240, $ 1; p. 248, § 2.
    Thus, it will be seen, that, in conformity with Article 47, the Legislature has established several modes of appointment to office. In some •cases, the appointment may be made by the District Judge, as in the case of vacancy in the offices of Clerk or Recorder ; in some, by the Recorder* •as in the case of vacany in the office of Assessor, but more generally by the Governor. That there are two classes of appointments by the Gov-ernor, one of which requires confirmation by the Senate, and the other does not; that the office of District Attorney belongs to the latter class, and does not come within the meaning of the first clause of Article 48, for the reason that, in accordance with the provisions of the latter clause, it -has been “ otherwise provided for.”

      But, it is said, with singular inconsistency, that, while the Constitution of J.864 imparted new life to Governor Wells, it killed everybody else. In this respect it seemed to have worked like some poisons, which, though fatal to some animals, are highly beneficial to others.
    I know of no provision in that Constitution, nor has the appellant cited any, which draws any distinction between the office of Governor and any other office. So far as I have been able to understand, a document so remarkable in its history, and so -wise in its provisions, all the officers in office at the time of its adoption, are placed upon the same footing ; and, if a vacancy was created in the office of District Attorney, by the adoption or ratification of that instrument, a vacancy was at the same time created in the office of Governor; but this, I imagine, would be proving too much for the appellant.
    The appellant has appealed to the Constitution of 1864, which he claims as the law which is to decide this case. Although I do not concur in this opinion, and do not believe that it is the organic law of the State, or that the circumstances attending its pretended adoption and ratification were such as to give it any claim to to be regarded as the will of the people of Louisiana, I am willing, for the purposes of this argument, to consider it as the law of the land, and to be governed by its provisions.
    Did the Constitution of 1864, then, vacate the office of District Attorney in the Fifth Judicial District ?
    Article 150 of that instrument seems directly to negative such a proposition. It provides, in express terms, that no, offices shall be super-ceded until the organization of the new Government, and the entering into office of the new officers “ to be appointed under said government, and no longer.”
    Has the new Government been organized, and have the new offioers appointed under it entered upon their duties ? If so, when did all this-occur ? There has been no election for Governor, Secretary of State, Auditor, etc., since the 22d February, 1864. The framers of the Constitution seem to have anticipated that, in consequence of the war, the-complete organization of the Government under it might be indefinitely postponed, and they sought to provide for this state of things, by directing that those in office should hold over until an election could be held in all the parishes of the State, or until the second Monday of January, 1868. Article 154. This appears, to me, to settle the whole matter.. The case of Segur v. Crenshaw, cited by appellant, does not apply to this state of facts; in that case, the Government had been fully organized, under the new Constitution, and Segur was the appointee of the new Governor.
    It has not been pretended that the Governor has the power to remove any officer at pleasure, and it is therefore unnecessary to discuss that, point.
   Labauvb, J.

This is a contest between the parties, for the office of District Attorney of the said District, and the questions involved in this case are purely of law.

The defendant, Knickerbocker, who is in possession, of the. office, was appointed by Governor Hahn, on the 12th April, 1864; his commission does not state that the appointment was made with and by the advice and consent of the Senate.

The relator was appointed to th$ same office by Governor Wells on the 7th April, 1865; his commission does not purport that he was appointed with and by the advice and consent of the Senate.

• The appointment of Knickerbocker was made under the Constitution of 1852. The Article 47 of that instrument, alluding to the Governor, reads thus:

He shall nominate, and by and with the advice and consent of the Senate, appoint all officers whose offices are established by this Constitution, and whose appointments are not herein otherwise provided for. Provided, however, that the Legislature shall have a right to prescribe the mode of appointment to all other offices established by law.

Art. 48. The Governor shall have power to fill vacancies that may hap-' pen during the recess of the Senate, by granting commissions which shall expire at the end of the next session, unless otherwise provided for in this Constitution. * * * Arts. 74, 149. District Attorneys were to hold their offices for four years, and the regular term was to commence at a new election on the first Monday of November, 1855.

In conformity with this Constitution, the Legislature enaoted (Revised Statutes, p. 182, ¡¡ 1): That there shall be elected, on the first Monday of November, 1855, and every four years thereafter, in and for each Judicial District in this State, by the qualified voters thereof, one District Attorney, for the term of four years.

Section 3, same book and page: In .case any vacancy should occur by death, resignation, refusal to qualify, or otherwise, the Governor shall fill such vacancy.

T. D. Stuart, the former incumbent, was elected on first Monday of November, 1859, and having died, left a vacancy in the office of District Attorney; and there having been no election held on the first Monday of November, 1863, the office remained vacant and the vacancy was filled by Governor Hahn, without the advice and consent of the Senate, on the 12th April, 1864, in appointing the defendant, Reuben Knickerbocker.

In the interval between the appointment of Knickerbocker, on the 12th April, 1864, and that of the relator, Walsh, on the 7th April, 1865, a session of the Senate intervened, and it is now contended that the commission issued by Governor Hahn to Knickerbocker expired at the end of the next following session of the Senate, and that the office became vacant, and was so at the time when the relator was appointed. Here the question arises, whether the appointment of Knickerbocker was one contemplated by the sections 47 and 48 of the Constitution, and whether the Legislature, in conferring the right of appointment, in oases of vacancy, upon the Governor, intended that the said Articles 47 and 48 of the Constitution should apply. We are of opinion that these Articles contemplate appointments made in the first instance by the Governor with' and by the advice and consent of the Senate, and have in view vacancies occurring in these offices; and we therefore believe that they had no application to the appointment in question, and that the Governor, in filling said vacancy, acted under the Act of the Legislature, and that, in that case, the action of the Senate was not required: the legislative Act says: The Governor shall fill such vacancy. The constitutional words: by and with the advice and consent of the Senate, are not used by the legislator’, and we cannot add the expression to the law.

The appointment by Governor Hahn.was final and absolute, and the appointee was to hold the office until superceded by a successor elected by the people. Constitution of 1864, Arts. 150, 83.

It is therefore ordered and decreed, that the judgment appealed from be affirmed, the appellant to pay costs of appeal..


author: Hyman, C. J.

text:
    Mr. & Mrs. Wiltz v. Widow De St. Romes.
    After issue joined, no advantage can be taken by evidence, or otherwise, of the fact that the suit was prematurely commenced.
    APPEAL from the Third District Court of New Orleans,

      Handlin, J. A. Robert, for plaintiffs. J. E. Holland, for defendant and appellant.
   Hyman, C. J.

Defendant, sued on her note of hand, filed an answer, denying therein all the allegations of plaintiffs’ petition.

She subsequently filed the plea of prescription of five years.

On the trial of the ease in the lower Court, she offered to prove that the written renunciation of prescription (which was introduced in evidence by plaintiffs) was made on condition that delay, such as she desired, would be given her to pay the note.

The Court refused to admit such evidence.

Defence : that the action was premature, should have been made by a dilatory exception, in limine litis.

After issue joined, no advantage can be taken by evidence or otherwise, of the fact that the suit was prematurely commenced. 1 La. R. 420.

The plaintiffs have fully proven up their claim. There is no error in the judgment of the lower Court. Let it be affirmed, with costs.


author: Hxman, C. J.

text:
    J. E. Braunsdorff v. E. Fay & Masson.
    Before a cause is at issue, either expressly or tacitly, a final judgment cannot be validly rendered-
    APPEAL from the Sixth District Court of New Orleans,

      Howell, J. Durant <& Hornor, for plaintiff and appellee. J. Q. A. Fellows, for defendants and appellants.
   Hxman, C. J.

Defendants are appellants from a final judgment rendered against them in this suit.

No issue was joined between the parties, by appearance or answer of defendants, or by judgment by default taken against them.

From the evidence, it appears that defendants are indebted to plaintiff; but, as the cause is not at issue, no judgment can be given.

Before a cause is at issue, either expressly or tacitly, a final judgment cannot be validly rendered. See 7 N. S. 287.

It is therefore decreed that the judgment of the District Court be avoided and reversed, that plaintiff pay the costs of appeal, and that the case be remanded to said Court for further proceedings.

HowEnn, J., recused.


author: Hhuajs, O. J.

text:
    Joseph Lallande v. William G. Hope.
    A notice of dishonor of a draft to the drawer at the Post Office nearest his residence, is sufficient. The laws of Louisiana do not require witnesses to protests, made by a Notary Public, of Bills of Exchange, promissory notes, or orders for the payment of money.
    APPEAL from the Parish of St. Helena,
    Marlin, J. E. P. & C. W. Ellis, for plaintiff.

      J). N. Mermen, for defendant and appellant.

    — The defendant and appellant, who is the drawer and payee of the bill of exchange sued on, maintains that there is error in the judgment against him ; in this :
    I. That the notice of protest was directed to the wrong post office. The testimony of "Weil (plaintiff’s witness), late post master at Areola, shows that defendant receives his letters at Areola. The certificate of the notary shows notice was addressed to defendant at “Prospect Hill;” shows that formerly the office was called “Prospect Hill;” as to the time when, he is not precise; it may be nine months, and upwards of that time. The plaintiff should make his case certain (legally), and not probable. The obligation of the drawer and endorser is conditional; that due notice be given him of the bill’s dishonor by the acceptor ; proof of that fact is a condition precedent to recovery. Burden of proof on plaintiff to show that the condition has been complied with.
    EC. The evidence that notices of protest were sent, rests upon a certificate of a notary. By law effect is given to such certificate as complete proof of notices on certain forms or conditions. That is, that the certificate of the notary be signed by two witnesses. This is to prevent its being ante-dated. This is the law of 1821 and 1827 (Sessions Acts), re-enacted. See Revised Statutes p, 45 % 7, 8.
    These two provisions are not inconsistent, although no mention is made in the latter section (§8 ) as to the two witnesses. See 19 La. p. 449, Gaslight Company v. Nuiall.

    The above point should have been made as to the jrrotest; that has no witnesses to it.
    Ed. Lastly, if we fail in our appeal, no damages for frivolous appeal can be recovered; the appeal was devolutive, and plaintiff has not been delayed in executing the judgment. 18 L. 31.
   Hhuajs, O. J.

Defendant has appealed from a judgment rendered against him as drawer of a draft, condemning him to pay its amount, interest, cost of protest, and cost of suit.

He sets forth two grounds of defence in this Court.

The first is, that the notice of protest was directed to the wrong post office. The evidence is that the post office nearest his residence, at the time the notice of dishonor of the draft was sent through the mail, was “Pleasant Hill,” and that the notice was addressed and directed to him at “ Prospect Hill,” Lá.

The defendant must have mistaken the evidence. •

The second ground of defence is, that the protest of the notary had no witnesses to it.

The laws of Louisiana do not require witnesses to protests, made by a notary public, of bills of exchange, promissory notes, or orders for the payment of money. See eighth section of “An act relative to bills of exchange and promissory notes,” approved March 9, 1855. 9 Robinson’s Reports, 243.

Judgment affirmed, with dosts.


text:
    Alexander Swift & Co. v. John Armstrong.

      A party must show cause by rule why evidence taken in limine should not be read in Court. His opponent must answer the rule, or else he waives his objections.
    APPEAL from the Sixth District Court of New Orleans,

      Howell, J. G. Redmond, for defendant and appellant. Durant & Horno?’, for plaintiff.
   Labatjve, J.

The plaintiffs claim from the defendant the sum of $1,412 39, with interest on an open account.

Interrogatories annexed to. the petition:

1.' Look at the annexed account lettered S. Is the same true and ■correct in every respect, and do you know that the sum therein expressed is now due and payable to plaintiff ?

2. If you say that the bill S is incorrect in any particular, will you state in what the error consists, and distinctly describe in what the error consists ?

They were ordered by the Judge to be answered.

The defendant answered the petition by a general denial, and annexed to his answer the following answers to the interrogatories:

To the first interrogatory he answers: no.

To the second interrogatory he answers:

Plaintiff’s bill S and claim are erroneous in the following particulars:

1. Because the sum of $101 56, amount of annexed freight bill marked A, 'should be deducted; the plaintiffs having agreed to deliver the iron free of charge.

2. The items of ten plates 5-16 iron, amounting to $199 75, should be stricken out as representing in pa?'t a previous shipment of similar iron, invoice of 7th January, 1860, which was sent to in place, and which had proved defective. This deduction does not cover the value of defective iron in said invoice of 7th. January, 1860, much less my losses occasioned by its bad quality.

On motion of plaintiff’s counsel, it was ordered by the Court below that the defendant show cause, on Wednesday, 8th April, 1863, at 10' o’clock A. M., why judgment should not be rendered for the said amount of $1,121 08, with interest, leaving the other items in dispute for further proceedings. The time fixed for the rule having arrived and no cause being shown, judgment was accordingly rendered.

The defendant took this appeal.

The appellant contends that the case should have been placed on the issue docket and tried together; that the answers to the interrogatories were matters of evidence to be adduced on trial in support; of the allegations of plaintiffs. The objection comes too late: the defendant should have shown that for cause in answer to the rule, and not having done so,, the Court was bound to give judgment on the sworn admissions.

Judgment affirmed, with costs of appeal.

Howehh, J., recused.


author: Howelh, J.

text:
    R. Johnson v. J. H. Jennison.
    It is a confounding of terms to call a motion to dismiss an answer to the appeal; and to allow it to be so considered would, in that respect, overturn tho rules of pleading. The effect of dismissing an appeal will not, in all cases, be the final confirmation of the judgment appealed from, as the appellant may, under certain circumstances, be permitted to take another appeal.
    APPEAL from the Sixth District Court of New Orleans. Duplaniier, J.
   Howelh, J.

A motion is made to dismiss the appeal in this case, on the following grounds, to wit:

1. Because the appeal bond does not exceed, by one-half, the amount for which judgment was rendered.

2. Because the transcript does not contain all the evidence produced on the trial.

The record was filed on May 6th, 1865, and this motion was filed on 26th February, 1866. More than three judicial days had elapsed, and, consequently, the motion based on said grounds is too late.

The counsel for appellee contend, however, that there is no law limiting, in express terms, the right to such motion to three judicial days after the filing of the transcript of appeal; that it is only inferred from Articles 590, 591, 886, 887, 889, 890 and 891 C. P., and that a motion to dismisses,. in effect, a prayer for confirmation of the judgment, which, by Article 890, the appellee may file at any time until the day of argument.

It is a confounding of terms to call a motion to dismiss an answer to the appeal; and to allow it to be so considered would, in that respect, overturn the rules of pleading. The effect of dismissing an appeal will not, in all cases, be the final confirmation of the judgment appealed from, as the appellant may, under certain circumstances, be permitted to take another appeal.

We consider the construction of the law upon this point no longer an open question. It has been the uniform interpretation of Article 886, C. P., from the case of Murray v. Bacon, 7 N. S. 271, decided in 1828, until the present day. There are certain cases for dismissal, which do not come within this rule of law ; but those urged in the motion before us are not within the exception. The second ground may be remedied by another mode of proceeding.

Let the motion be overruled, at the costs of the mover.

Hxsian, C. J., recused.


author: —jabatjve, J.

text:
    John B. Murison & Co. v. Andrew J. Butler.
    A motion to dismiss an appeal comes too late after three judicial days have expired from the filing-of the transcript.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.
   —jabatjve, J.

This case is before us on a motion to dismiss the appeal; on the grounds that Butler, the appellant, has failed to make Allen a party to the appeal, and that the appeal bond is not made according to-law, etc.

This motion comes too late." The appeal was made returnable in this. Court, on the fourth Monday of June, 1863, the record filed on the third April, 1865, and the motion to dismiss on the 16th February, 1866. More than three judicial days having elapsed before the filing of said motion, we cannot entertain it. C. P. Articles 886, 890. 2 A. 138. 3 A. 326. á A. 514 11 A. 613. 12 A. 715. 7 N. S. 271.

Motion to dismiss overruled.

Howedd, J., recused.


author: Losley, J.

text:
    George Jeckell v. Jacob Fried.
    Tlie sale or transfer of a debt includes everything which is an accessory to the same as suretyship, privileges, and mortgages.
    APPEAL from the Third District Court of New Orleans,

      Fellowes, J. F. J. Wench, for defendant. W. W. Handlin, for plaintiff. John Henderson, Jr., for intervenor.
   Losley, J.

The plaintiff, a judgment creditor of the defendant, by virtue of an execution in the suit of George Jeckell v. (No. 17,504) Jacob Fried, caused to be seized as the property of the defendant, a certain cracker machine, which the defendant, Fried, had purchased from one Sturne ; Sturne being indebted to one Beard in the sum of four hundred dollars, it was agreed among the parties, that Fried, the purchaser, should execute his note, as part of the price of the cracker machine, for the amount due to Beard. This note having been transferred to one Daniel Sheehan, he intervened in the said suit, by way of third opposition, and •claimed under the vendor’s privilege to be paid by preference out of the proceeds of the sale of the cracker machine.

The opposition of Daniel Sheehan was sustained in the Court below, •and from the judgment of the Court, George Jeekell has ajipealed.

The appellant contends that the judgment of the lower Court contains errors to his prejudice, on the grounds, to wit: 1. Because, even if all the facts and allegations contained in opponent’s petition were taken as true, he has no privilege on the property seized, nor on the proceeds of the sale.

2.Because, by his own showing a new debtor is substituted for the old one, who is discharged by the creditor.

3.When a note is given in satisfaction of a debt and the creditor accepts it as a payment.

4.Beeause the judgment of the District Court does not- state against whom the judgment is rendered.

I. The intervenor’s petition represents that he is the legal owner of the promissory note executed by Fried to G. R. Beard, as a part consideration of the cracker machine, sold by Sturne to Fried. That the said note, by the common consent of the parties to the sale, was so made to satisfy a debt due by Sturne to Beard. That being a sale note, the payment of it is secured by the vendor’s privilege on the cracker machine, and that he is entitled to payment out of the proceeds of the Sheriff’s sale.

Had the note been made payable to Sturne, and been secured by the vendor’s privilege, no reason can be perceived why, under the circumstances of the case, the note made payable to Beard, should not likewise carry with it the same security. It was, in effect, 'a transfer from Sturne to Beard, of a part of the consideration of Sturne’s sale to Fried, in the particular form agreed on by the contracting parties, and the transfer of the claim evidenced by the note, carried with it the accessory of the privilege of vendor. C. C. 2615.

H and 1U. If Sturne is discharged from Beard’s claim by the latter’s receiving for it Fried’s note, Fried still owes his privilege note to Beard, or his assignee.

IT. The claim of the third opponent was against the fund, but, in any contingency, the reasons assigned for the decree form a part of it, and the title of the suit is thereto prefixed. Judgment is rendered in favor of intervehor for the amount claimed by him, to be paid out of the proceeds -of the sale of the property now in the hands of the Sheriff, with costs of intervention, and vendor’s privilege. This would form a res judicata.

There is no error in the judgment of the Court below.

It is therefore ordered, adjudged and decreed, that the judgment of 'the lower Court be affirmed; the costs of appeal to be paid .by the appellant.


author: Jokes, J.

text:
    Robert Jump v. Jean J. Peltier.
    A note payble in gold can be satisfied by tbe tender of United States Treasury notes of an equal amount.
    An appeal taken for an amount less tban three hundred dollars will be dismissed
    APPEAL from the Sixth District Court of New Orleans,

      Buplaniier, J. J. W. Gxvrley, for plaintiff. F7. Bermudez and G. Redmond, for defendant and appellant.
   Jokes, J.

This Court must, ex officio, dismiss this appeal, as the subject-matter in controversy is less than three hundred dollars. Under the •decision of this Court we held, a note payable in gold could be satisfied by the tender of United States Treasury notes, of equal amount.

Appeal dismissed, with costs.