New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1875-01-10

aver the policy is void on the ground that
the plaintiff fraudulently overstated the
loss or damage by the fire. The case involves
only questions of fact. The evidence is
contradictory, but the court is satisfied that
the weight of testimony is with plaintiff,
and Judgment is affirmed with costs.
No. 52l3 State of Louisiana ex rel. the
Crescent City WaterwOrks Company vs.. p.
G. Deslonde, Secretary of State.-From the
Superior District Court. Application for
mandamus was made by REALTORS to the Su-
perIor District Court to direct the defend
ant to promulgate law of the State in the
official journal, which REALTORS alleged passed
at the session of the Legislature, commenc-
ing in January, 1871, entitled ian act to in
corporate the Crescent City Waterworks,"
etc. Defendant, in answer to the rule,
through the Attorney General, said that
there was not in his office, nor had there
been since his induction to Office, an act as
set forth in REALTORS petition. The rule was
dismissed, and REALTORS appealed. The record
shows that the act duly passed both houses
of the Legislature, was enrolled and pre-
sented to the Governor, but failed to receive
his approval; that after ward, in the month
of April after the adjournment of the
Legislature, the Speaker of the House
and the Lieutenant Governor caused to
be made a duplicate bill from the en-
crossed bill in the hands of the
Clerk of the House; it was signed ard certi-
fed by them and the Secretary OF State, IN
the usual manner when bills are not returned
by the Governor to the Secretary of State
within the time prescribed by the cOnsutu-
ton. The official printer refused to publish
it. The duplicate is not now in the office OF
the Secretary of State. At the next session,
in 1872, the Governor, by special message,
vetoed the bill, but the bill itself was not
returned with the message, and has not
been found. clerk, engaged IN the office
of the Secretary of State in 1871 and 1872,
recognized the copy now extant Of the du-
plicate enrolled bill as the same copy he
made from that duplicate about August ~,
1871, to be sent to the State printer. After
being handed to the Secretary of State, the
private secretary of the Lieutenant Gov
ernor requested the erasure of the name of
Oscar j. Dunn, az he did not care to have
his name on the bill. The Secretary claimed
to act under instructions, and the name was
erased. The original bill could not be re-
corded by the Secretary of State, except on
certificate of the Clerk of the House that it
passed over the Governors veto. No
such record Is found. Its authority
and condition to become law is matter
of grave doubt. Courts have no power to
prOmulgate laws, OF Issue orders for pro-
mitigation. The corrective must be sought
in the executive and legislative depart
ments, end not in the judicial. Judgment
of the lower court is affirmed.
No. 53O7. r. R. Calender VS.. Golson
Brothers, jackson g. Manson, intervenOrs,
appellants.-Appeal from Sixth District
Court for Orleans. Plaintiff sues on prOmis-
sorry note of STA "a, of which intervenors
claim to be owners. Defendants appear to
be mere Stockholders in the controversy
Golson Brothers became indebted to Cal
lender individually, and gave their two in
dividual notes. The firm was of Hunter &
Calender. Being pressed for money in
1872, ami both members of the firm being
in England, Calender instructed Hunter,
on his return to New Orleans, to negotiate
one of the notes and apply the proceeds to
partnership purposes, Hunter negotiated
both the notes to intervenOrs, stating that
he was authorized to do 80. His in
structions were verbal. On his return
Calender finding both the notes negotiated
to jackson g. Manson, notified GOlsOn
Brothers not to pay the last note, claiming
its ownership himself. GOlsOn Brothers de-
posted the amount of the note in the Hi
hernia Bank, for the benefit of the party
legally entitled to 1t. The partnership be-
tween Hunter and Calender was dissolved
in January 1873, and the note was passed
off after the dissolution. The notes were
Endorsed with the firm name. Under this
state of facts and the contradictory charac-
ter of the testimony, the court concludes
that the intervenors occupy the position
they claim. Judgment annulled and re-
versed, and interveuOrs are recognized as
the owners of the proceeds of the mole sued
upOn, and the note is to be paid them.
Plaintiffs claim rejected aud to pay costs in
both courts.
BY JUSTICE MORGAN.
No. 1920. Mrs. o. X Dunning We. John
Coleman ct al.-From Seventh District
Court May 7, 1869, Edmund Murphy exc
cuted his promissory note, payable to his
a. CE0Un I,r al
mortgage on city real estate, and recorded
in the mortgage Office May TO- 1869. Cole
man g. Co. paved the street in front of this
property, under authority of the Council
This authority was given August 30, 1862
to be completed in ten years. In 1868 the
time WAS extended to November |, 1870.
The contract was recorded May Is, 1870,
nearly ten years after it was agreed upon,
and nearly one year after the mortgage.
Coleman e. Co. obtained Judgment and
caused properly to be sold to satisfy it.
Plaintiff took out an order of seizure and
sale, which was returned by the sheriff in
consequence of property having been pre-
VIously sold under Coleman g. Co.'s iudg-
ment. Plaintiff asks that that sale be an
nulled, and the privilege of Coleman & Co.
be erased from the mortgage books and
shall confer NO priority over her mortgage.
The property sold for less than the sum due
plaintiff ''If the price bid is not sufficient
TO discharge the privileges and mortgages
on the property, and which have preference
over the Judgment creditor, there shall be
no adjudication, and the sheriff shall proceed
to sell other property. etc. &C.. P. art 684.)
There was no legal adjudication if defend
ants asserted privilege had no preference
over the plaintiffs mortgage. Privileges
are strict jllglis. and must be rigidly CON
strued. Article 374 of the Civil Code
declares that no privilege shall have effect
against third persons unless legally recorded
in the parish whore the property affected is
situated; it shall confer no preference on the
creditor who holds it, over creditors who
have acquired mortgage, unless evidence
of debt be recorded on the day contract is
entered into. There was no privilege until
the work wac done, and thon IL must be
"duIy recorded" or recorded ON the day
when evidence of debt was given. That
day was February %, 1870. It was not
recorded until May IS, 1870, too late to
affect plaintiffs mortgage. The statute of
1870 does not repeal or change the article of
the code In regard 20 the time when the
privilege shall be recorded, but fxes the
length Of time which the privilege is 70
endure. Judgment Of the lower court Is
affirmed. M
No $40. John Pemberton ct al VS. Jules
Maynan.--ErOm Fourth District Court.
Suit was Instituted on fenr prOmiasOry
notes Of $500 each, dated June 8, 1868,
and payable in one, two, three and four
years, with interest from date. The defense
Is prescription. On each Of the notes pay
ment Of interest Il indOrsed, taking 1t out
Of the limit Of the statute Of limitation.
Defendant contends ae never authorized the
Endorsements. He admita that be paid the
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