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as if all the letters of the name had been plainly traced upon the paper.

Plaintiff's counsel charge the widow and children of Jacobs with gross ingratitude to a man who was their benefactor, and who, in the very matter of these notes, had taken them up as a friend, and to assist them. While this may be so, and we might agree with them that defendants' conduct was reprehensible, passed upon from the standpoint of gratitude and propriety, this court would be utterly without justification, were it to stretch the law of prescription in order to do away with the unpleasant and hard features which the case presents. The plea is one which the law authorizes to be made, and which is not weakened in its effect by bad faith on the part of the persons setting it up. Civ. Code, art. 3540.

The defendants in this case are the widow and children of Henry Jacobs. The widow has accepted the community unconditionally, and the heirs of Jacobs have accepted his succession as unconditionally.

It is a general rule in matters of succession that the unconditional heir of a person is his representative, and stands in his place and his rights (Civ. Code, art. 894); that these rights are transmitted to the heir with all its defects as well as its advantages; that the extent of the rights of the deceased regulates those of the heirs who succeed to all his rights which can be transmitted-that is, to all those which are not, like usufruct, attached to the person of the deceased. Civ. Code, art. 943.

The consequence usually of this doctrine is that any act which binds or estops the deceased binds or estops those heirs, but the lawmaker has thought proper to modify this rule under certain circumstances and for certain purposes, and it has done this in this very matter of the interruption or renunciation of prescription. The heirs, for obvious reasons, have been authorized to demand from holders of claims against their father much higher and stronger evidence of acknowledgment of debts and promises to pay than the father himself could have required had he been alive. The acknowledgment or promises of the father being once established by the evidence and proof required by law, the heirs, as such, are, as to their rights and

obligations, governed by the general rules of law.

Plaintiff's counsel contend that the widow in community occupies a position as to the acts done by the husband during the community different from that which the heirs occupy as to the acts of their father during his lifetime.

They say that "the law looks upon the community in the light of a partnership; that during marriage the husband is the administrator-the managing director of the concern, so to speak. On the death of the husband the wife has the privilege of accepting or renouncing it, as she may deem most to her interest. If she accepts, she is considered as having always been a member of the community partnership. If she renounces it, it is considered that the community never existed.

"By her acceptance the wife acquires the rights and incurs the obligations which exist, on the theory that there had always been a community partnership. The obligations which she incurs are community obligations; that is, they are not her own direct and immediate obligations, but they reach and bind her indirectly, through the fact that she is a member of the community partnership. Her liability is secondary and derivative. The law considers that the community has existed as a distinct legal personage during the marriage. The wife's relation to the community debt is therefore analogous to the relation of a partner to a partnership debt."

They quote Laurent, Principes du Droit Civil, vol. 22, p. 408, as saying: "La femme par suite de son acceptation est censée avoir été partie dans tous les actes faits par le mari comme chef de la communauté. Pothier lui meme applique ce passif. Par son acceptation, dit il, la femme devient débitrice pour sa part dans la communauté de toutes les dettes de la communauté: elle est censée les avoir contractée en sa qualité de commune conjointement avec son mari"-and add: "This being so, the statute does not apply so as to exclude evidence of the husband's acts and acknowledgments touching a community debt in his capacity of administrator to the community. The statute regulates the admission of evidence in cases

where the deceased alone owed the debt. It was not concerned with debts which were due by a partnership, firm, or other body of which the deceased was a member. The law might suspect parol evidence concerning a debt that rested on the deceased alone, but there is no such reason for suspecting parol evidence concerning a debt due by a partnership.

"In such case the acts and acknowledgments of the husband should stand on the same fooling as the acts and acknowledgments of a member of a firm."

There can be no doubt that, when the wife accepts absolutely the community of acquets and debts, she becomes liable personally for one-half of the community debts, and that the acts and acknowledgments of the husband, when they have been shown, bind her; but, in order to bind her, these acts and acknowledgments must first be proved to have been made by him, and, for the purpose of interrupting prescription or renouncing prescription upon a claim prima facie prescribed through acts and acknowledgments of the debtor, the same character of evidence is required to be adduced to establish these acts in the case of community debts as would be necessary in the case of separate debts. No good reason can be adduced why there should be any difference as resulting from the character of the debts. The community is not a "partnership," as claimed by the plaintiff. Civ. Code, art. 2807. But even if it were a partnership, the statute applies as well to the proof of the acts and acknowledgments of a deceased which would be necessary to take a partnership debt out of prescription as to acts and acknowledgments necessary to take an individual debt of the partner out of prescription. The fact which impelled the General Assembly to enact the particular statute referred to was the same in all these cases, namely, the death of the party claimed to have made the acknowledgments, which made refutation or contradiction of the evidence which would be offered to establish the same very difficult, and in many cases impossible.

The plaintiff brings forward as a fact interrupting the running of prescription upon the notes that when he purchased the notes, December 26, 1890, Jacobs transferred to him certain fire policies then outstanding, which he

had taken out for protection against loss by fire on the property which by special mortgage and vendor's privilege secured payment of the notes so purchased.

It appears that these notes represented the credit portion of the price of property which had been purchased by Jacobs, and the act of purchase contained a clause binding the latter to take out and transfer a policy of fire insurance on the house, and authorizing the holder of the notes himself to keep up the insurance in case Jacobs failed to do so. Plaintiff says policies so transferred were in favor of Jacobs, loss, if any, payable to Weil, as holder of the notes; and, when these policies expired, Weil took out similar policies, and so continued to do from year to year until Jacobs' death. Counsel urge that the policies s taken out were taken as collateral security for the payment of the notes, and possession of the policies operated a continuing pledge in Weil's favor, suspending the running of prescription under the decision in Begue v. St. Marc, 47 La. Ann. 1163, 17 South. 700: that Weil, in taking out the policies, was acting as the agent of Jacobs, under authority so to do contained in the notarial act of sale. The clause referred to was as follows:

Insurance Clause.

"And the said purchaser (Jacobs) furthermore binds himself to keep the buildings on said property constantly insured against the loss by fire to an amount not less than sixteen hundred dollars, and to transfer the Policy of Insurance to the said vendor until the full and final payment of said note, hereby consenting and agreeing that said vendor shall have the right to transfer such policy to any future holder or holders of the said note, and that in the case of failure on the part of such purchaser to effect such insurance the holder or holders of the said note shall have the right to do so, and the reimbursement of all sums paid for that purpose shall be secured by the mortgage herein granted, and the amount of the premiums thus paid by said holder or holders never to exceed the sum of one hundred dollars per annum; but this clause shall not be construed as obligating on such holder or holders as making them liable for any loss, damage, or injury which may result from the noninsurance of the said buildings."

We do not think the taking out by Weil of the policies referred to had the effect of interrupting prescription upon the notes. The policy taken out in the Begue Case was taken out by the debtor, and not, as in the case at bar, by the creditors, and the debtor was still alive when the evidence was introduced.

It is urged by the plaintiff that the widow of Henry Jacobs after the death of her husband acknowledged the continued existence of the notes held by plaintiff, when she signed the inventory taken in the matter of the interdiction of her son Isidore Jacobs, and prayed for the homologation of the same. In this inventory the debt was referred to as existing and secured by a mortgage on the property inventoried. At that date prescription had run against the debt. A mere recognition of the existence of the debt made under such circumstances did not revive the debt against Mrs. Jacobs. She made no promise to pay it. This feature of the case is covered by the decisions of this court rendered in the matter of the Succession of Slaughter, 108 La. 492, 32 South. 379, 58 L. R. A. 408, which had not been rendered at the time this present case was passed upon by the Court of Appeal.

For the reasons herein assigned, it is hereby ordered, adjudged, and decreed that the judgment of the Court of Appeal, in so far as it annuls, avoids, and reverses the judgment of the district court in favor of the heirs of Henry Jacobs, sustaining the plea of prescription filed by them, is itself annulled, avoided, and reversed, and the judgment of the district court in favor of said heirs, sustaining said plea, be, and it is, hereby, affirmed.

It is further ordered, adjudged, and decreed that the judgment of the Court of Appeal, in so far as it affirms the judgment of the district court overruling the plea of prescription filed by the widow of Henry Jacobs, and renders judgment against her in favor of the plaintiff, be, and the same is hereby, annulled, avoided, and reversed, and the judgment so decreed against said widow by the district court is hereby annulled, avoided, and reversed, and

It is now ordered, adjudged, and decreed that plaintiff's entire demand be, and it is, rejected, and his suit dismissed, at his costs in both courts.

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MUNICIPAL CORPORATIONS-JUDGMENTS
AGAINST CITY-PAYMENT.

1. Under section 2, p. 39, of Act No. 32 of 1902, judgments against the city of New Orleans for debts of former years can be paid only after statutory, necessary, and usual charges of the municipal government have been provided for out of the revenues of each year.

2. The determination of what are necessary and usual charges is left to the discretion of the city authorities, free from the interference of the courts.

(Syllabus by the Court.)

Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.

Application by the state, on the relation of W. S. Benedict, for a writ of mandamus to the city of New Orleans. Judgment for defendant, and relator appeals. Affirmed.

Dinkelspiel & Hart, for appellant. Arthur McGuirk, Asst. City Atty., for appellee.

PROVOSTY, J. By Act No. 5 of 1870, creditors of the city of New Orleans are denied all remedy for the enforcement of their moneyed judgments against the city, except that provided for in the act itself, namely, that the creditor may register his judgment in the office of the comptroller or other auditing officer of the city, and that when the judgment is so registered "it shall be the duty of the comptroller to warrant on the treasurer or disbursing officer of the corporation for the amount due thereon without any special appropriation of money therefor by the common council: provided, always, that there shall be sufficient money in the treasury to pay such judgment specially designated and set apart for that purpose in the annual budget or detailed statement of items of liability and expenditure required by the charter of the city to be made." The relator's judgments in this case have been duly registered for several years, but there has been no money in the treasury to pay

Rehearing denied January 18, 1904.

111 374 119 636

der the act of 1870 could be paid; and, second, that relator's judgments are the only registered judgments against the city, or, at any rate, the first in point of registry, and, as such, entitled to be paid out of such surplus in the event of there being one.

them, and none has been set apart for that | plus out of which judgments registered unpurpose, and they are unpaid. The city authorities are about to prepare the budget for 1903, and the relator prays for a mandamus ordering the city, "through its said council, to set apart in its next budget of receipts and expenditures to be made a sufficient sum with which to pay the judgments of the relator aforesaid."

There is no dispute as to the facts. The city has no funds out of which the appropriation asked for could be made, unless it be the revenues of 1903; and these revenues constitute a fixed and determinate sum, out of which all expenses and obligations of the city government are to be met. The city does not possess the unlimited right to tax, but its right to tax is limited by the Constitution to 10 mills on the assessment of each year.

The proposition of the relator is, therefore, that the court order his judgments to be paid out of this limited fund.

At once the question arises, what other claims are there entitled to be satisfied out of this fund, and in what order are the claims entitled to be paid?

This question is in part answered by section 2 of Act 32 of 1902, which provides as follows:

"That the revenues of the several parishes and municipal corporations of this state, of each year, shall be dedicated, as follows: First, all statutory charges shall be paid from the respective funds upon which they are imposed; second, all charges for services rendered annually under time contracts; third, all necessary usual charges provided for by resolution or ordinance. Any excess of revenue over statutory, necessary and usual charges may be applied to the payment of amounts due and unpaid out of the revenues of former years."

Relator's judgments fall within the fourth of the categories here created. They are debts of former years, entitled to be paid out of "any excess of revenue over statutory, necessary and usual charges."

It might be a sufficient answer to relator's demand to say that, in the absence of all evidence on the subject, this court cannot find, first, that after all "statutory, necessary and usual charges" are satisfied out of the revenues of 1903, there will be a sur

But the case might as well be decided on broader grounds. Relator is not asking that his claim be ordered to be paid out of a surplus, but that it be ordered to be paid absolutely. He is asking that the city be compelled to pay him, even if thereby a part of the revenues of 1903 is to be taken, which would otherwise be attributed by the city authorities to "necessary and usual charges" of the city government.

This cannot be done, for the reason that under the act of 1902 these "necessary usual charges" are entitled to be satisfied by preference to debts of former years, and that the discretion to determine what are the "necessary usual charges" of the city government is confided by law to the city authorities, and cannot be controlled by the courts. To that effect is the express decision of the Supreme Court of the United States in the case of East St. Louis v. United States, 110U. S. 324, 4 Sup. Ct. 21, 28 L. Ed. 162 (a case precisely in point), where, as here, a mandamus to compel a city of limited taxing authority to pay a debt was asked in advance of the framing of a city budget; and to the same effect are the cases of Moore v. City, 32 La. Ann. 748, 749, Saloy v. City, 33 La. Ann. 82, and Marchand v. City, 37 La. Ann. 18, where this court based its decision in great part on the proposition that the determination of what amount is required for the necessary expenses of the city government is a legislative, not a judicial, question. Said the court in the Moore Case:

"We are not vested with power to frame a budget for the city of New Orleans; to assume the administration of its affairs; to constitute ourselves, in effect, the mayor and administrators of the city of New Orleans, for the purpose of determining what are and what are not proper or desirable municipal functions to be performed, and what are, or are not, reasonable allowances for the performance thereof. These matters are confided by the law to the discretion and control of the corporate authorities. They have

actually framed their estimate and budget of revenues and expenditures, and have appropriated the whole of the ten-mills tax to administrative purposes. If these are excessive or extravagant, the remedy lies, not with the judiciary, but with the Legislature. The Legislature has the perfect right to limit the administrative expenditures of the city. That is a subject within the absolute control of legislative power. It has not done so, except within the limit of the ten-mills tax. Holding, first, that the necessary expenses of the city must first be paid out of the proceeds of that tax; and, second, that the determination of what are necessary expenses is not a judicial function, but a function of the municipal government-we find ourselves unable to give relief against any excessive appropriation within ten mills made for that purpose."

Relator would have the mandamus issue nevertheless, on the authority of the decisions of this court in the cases of State ex rel. Carondelet Canal Co. v. City, 30 La. Ann. 129; Marchand v. City, 37 La. Ann. 13; and Thorn v. City, 37 La. Ann. 528. But the problem in those cases was entirely different from the problem in this case. In those cases the court was dealing with a city unhampered by a limitation upon her right to levy taxes for the payment of her debts, the judgments there in question having been founded on contractual obligations unaffected by the limitation subsequently imposed upon the city's right to tax. "Of course, a city that can pay its judgment debts by simply increasing its customary rate of taxation must do so, and mandamus is the proper remedy to enforce the duty. But in the instant case the court has to deal with a city whose right to tax is limited, and that limit reached; a city, therefore, possessed of only a limited fund out of which to meet all obligations. In those cases the proposition was to compel the city to make provision for the payment of her just debts; in the instant case it is to control the city in the distribution or apportionment of the fund placed by law at her disposal for carrying on the city government. There is no analogy between the cases.

As for the case of Stewart v. City, decided by the federal Circuit Court of Appeals for this circuit, and reported in 49 Fed. Rep., at

pages 40 et seq., also cited by relator in support of his demand, suffice to distinguish it by pointing out that it dealt with a budget already made.

Judgment affirmed.

(35 South. 607.) No. 14,826.

AGURS v. BELCHER & CRESWELL.* (Dec. 14, 1903.)

SIGNATURE-WHAT

CONSTITUTES-MARK-ER

ROR OF NOTARY-RECORD-NOTICE.

1. A mau unable to write may make his mark. In such case the true signature is his act making his mark, not what the notary wrote as his name. An error in the name does not vitiate the signature.

2. Where the notary errs as to the vendor's name, and writes it "Willie Jones" instead of "Willie Johnson," and the error is carried into the index to the conveyance records, it cannot have the effect of depriving the vendee of his property. The index is no part of the record. It is simply for the convenience of those examining the records.

3. The body of the act gave the true name, "Willie Johnson." The index gave "Willie Jones." Defendants, by reading the act, would have learned from its recitals that it was Willie Johnson who appeared before the notary and made the sale, and thus would have been brought home to them sufficient notice to put them on guard, even though the name at the foot of the deed was written thus:

(Syllabus by the Court.)

his "Willie X Jones." mark.

Appeal from First Judicial District Court, Parish of Caddo; Alfred Dillingham Land, Judge.

Action by W. C. Agurs against Belcher & Creswell. Judgment for plaintiff. Defendants appeal. Affirmed.

Murff & Webb, for appellants. Alexander & Wilkinson and Thigpen & Foster, for appellee.

The opinion and judgment of the court in the following case, prepared by BLANCHARD, J., prior to his retirement from the bench, and adopted by the court in consultation, is now handed down for the court by NICHOLLS, C. J.:

*Rehearing denied January 18, 1904.

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