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State ex rel. Zuntz & Sporl vs. the Judge of the Fifth District Court.

these cases that the contract was a waiver of the personal privilege of domicile, and made the sureties amenable to the tribunal in which the main action was pending.

All of these decisions were anterior to the act of 1861, amending art. 162 of the Code of Practice, which forbids the election of a domicile or residence for the purpose of being sued; and it may be questioned whether a person could, validly, agree in advance, at the time of signing a judicial bond, to submit to the jurisdiction of a court to which he was not otherwise amenable, merely for the purpose of qualifying himself as surety.

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The decisions just referred to, which relate to suits against joint obligors, and many others might be cited to the same effect, are based upon art. 2080, of the Civil Code-2085 of the Revised Civil Code-which provides that, In every suit on a joint contract, all the obligors must be made defendants." Of course, if they resided in different parishes, they could be cited to answer in the parish, the domicile of one of them, in which the plaintiff might choose to bring his suit; and the Revised Code of Practice, art. 165, No. 6, did but formulate this neces sary rule, by providing that, "when the defendants are joint obligers, they may be cited at the domicile of any one of them."

It may be that, under the dominion of this rule, one of the sureties in an appeal' bond, in which each of them bound himself for part of the amount only, could not have pleaded his domicile successfully; but act No. 103 of 1870, published in the acts of 1871, page 18, enacts, section 2, "that hereafter, in all suits against joint obligors, it shall be unneces sary to make all the joint obligors parties to the suit; but each of the joint obligors may be sued and a judgment obtained against them separately for the proportion of the debt or obligation due by them respectively, whether all are joined in the suit or not."

It logically follows that the argument ex necessitate has lost its force; and that joint obligors can no longer be compelled on that ground alone, but only in virtue of positive law, to answer before a tribunal to the jurisdiction of which they are not amenable, generally, by reason of their domicile.

The decisions relied upon are wholly inapplicable. If it were true that a surety in an appeal bond, not solidary but joint only, could be compelled, notwithstanding the act No. 103 of 1870, without regard to his domicile, to answer before the tribunal in which the original suit was brought, it would not thence follow that the appellee would be bound to accept him as surety. It is the right of the appellee to demand and to insist that the security upon which his right to enforce his judgment is suspended shall be in strict conformity to law. He may, if he chooses, accept without objection, a surety residing in a distant parish, or whose

State ex rel. Zuntz & Sporl vs. the Judge of the Fifth District Court.

entire property liable to seizure is in another State; but the law does not compel him to accept any other than "good and solvent security, residing within the jurisdiction of the court, and having property liable to seizure, to the amount of the obligation, within the State." Act of 1876, page 49, 50.

If the mere fact of signing a judicial bond invests the surety with the quality of "residing within the jurisdiction of the court," this requirement of the law is without meaning or effect. It might be proper to hold that the person who has signed a judicial bond as surety should be concluded, and not permitted to set up the plea of domicile in a proceeding to enforce the bond; but a judicial tribunal has no more power to accept as surety in an appeal bond a person not residing within the jurisdiction of the court, than it would have to accept as such surety a person not having within the State property liable to seizure to the amount of the obligation.

The amount for which the three unquestioned sureties bound themselves in this case does not exceed by one half the amount of the judgment, including principal and interest due up to the date at which it was rendered. The other surety, Britton, lacked the qualification of residing within the jurisdiction of the court, as required by law; and the district court had not, nor have we, the power to relieve the relators of the consequences of this fatal objection.

The writs of mandamus and prohibition prayed for are refused; and this proceeding is dismissed at the cost of relators.

No. 6889.

ROBERT MONATT vs. E. T. PARKER, PUBLIC ADMINISTRATOR.

One who has made a donation inter vivos of immovable property to his concubine, can not, on the latter's death, recover the property, on the ground that the donation violated a prohibitory law, and was opposed to good morals.

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PPEAL from the Fifth District Court, parish of Orleans. Rogers, J.

Edward Phillips for plaintiff and appellant.

W. O. Denègre for defendant and appellee.

The opinion of the court was delivered by

MARR, J. The plaintiff alleges in his petition that he purchased a mulattress slave named Mathilde in 1847, whom he emancipated in 1858; and that he lived in concubinage with her from the date of his purchase until her death, which occurred in April, 1877.

That on the third of May, 1870, he purchased a certain lot of ground for $1500, for which he paid.

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Monatt vs. Parker.

That being about to make a voyage to Europe, and desiring to make provision for his concubine in the event of his death during his absence, he caused the title to this lot to be taken in her name by notarial act.

That he was absent in Europe about six months, and on his return he had buildings and improvements put on the property, which cost some $3000, all of which he paid; that he also paid the taxes on the property, collected the rents and gave receipts for them in his name: that Mathilde had no means; that he is the lawful owner of the prop erty; and has been in possession since the purchase, in 1870.

That after the death of Mathilde he paid the expenses of her last illness, funeral expenses, and all the debts of the succession; that she had nothing, and her succession owed nothing; and that she left no ascendants, nor descendants, nor collateral relatives, nor legal heirs.

That Parker, public administrator, has been appointed administra tor of her succession; and has taken possession of the property in question, as belonging to the succession, and has obtained an order of court requiring it to be inventoried as well.

That the notarial act of May 3, 1870, the conveyance of the property to Mathilde, is null and of no effect, and in violation of "positive prohibitory law;" and if the act can have any effect, it is only as a donation from petitioner to his concubine, which is prohibited by law, and is contrary to good morals and public policy.

The suit is brought to recover the property, and thirty dollars a month for rent during the time the administrator holds possession; and to have the act of May 3, 1870, so far as it purports to convey any right or title to Mathilde, decreed to be absolutely null and void and of no effect whatsoever.

The administrator excepted that the petition exhibits no cause of action against him; and plaintiff is appellant from the judgment maintaining that exception and dismissing the suit.

We think the reference to "good morals and public policy" comes with rather a bad grace from plaintiff, who prostituted his own slave, made her his concubine, and lived with her in that degraded relation for thirty years, in flagrant violation of "good morals, public policy," and common decency.

The law does, indeed, prohibit donations of immovables between those who have lived in concubinage; and of movables exceeding one tenth of the value of their estates, respectively: R. C. C. 1481; but such dispositions can not be attacked by the parties themselves. The heirs or the creditors of the donor may invoke the nullity of donations in fraud of the law and of their rights by alleging and proving his turpitude, which he would not have been permitted to do in his own behalf.

That which one promises to give for an illegal or immoral consid

Monatt vs. Parker.

eration he can not be compelled to give; and that which he has given on such a consideration he can not recover. The law will not afford relief to either party, in pari causâ turpitudinis; but leaves them just where they have have placed themselves. See Mulhollan vs. Voorhies, 3 N. S. 46; Gravier vs. Carraby, 17 La. 118; Pucket vs. Clarke, 3 Rob. 82.

The Roman law did not permit that to be recovered which had been given for an illegal or immoral consideration; nor did it allow any action to enforce promises and undertakings made on such consideration. Such an action as that brought by plaintiff in this case would not have been tolerated under that system :

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"Si ob stuprum datum sit quod meretrici datur, repeti non potest." Dig. lib. 12, tit. 5, 1. 4. The rule and the reason for it are stated very clearly and forcibly by the Emperor Antoninus:

"Cum te propter turpem causam, contra disciplinam temporum meorum, domum adversariæ dedisse profitearis: frustra eam tibi restitui desideras, cum in pari causâ possessoris conditio melior habeatur." Code, lib. 4, tit. 7, 1. 2.

It may be questioned whether the concubine of her master who continues in that relation after her emancipation is in pari causâ turpitudinis with him. It is certain that he could not, during her lifetime, have maintained an action against her for the recovery of the property; and her death has not invested him with any right which he had not during her life. All that plaintiff alleges in his petition may be true; it must be assumed to be true for the purposes of this decision; but it only serves to show that he is attempting now to avoid the legitimate consequences of his own acts and conduct in violation of "good morals and public policy."

The exception was properly maintained, and the judgment appealed from is affirmed with costs.

No. 7059.

BROADWAY SAVINGS BANK OF ST. LOUIS VS. EDWARD VORSTER ET AL.

here an agent, clothed with power to accept bills, has accepted a bill in the name of his principal, the latter can not escape liability as acceptor, on the ground that he had no interest in the transaction in which the bill was given, and that he had received no consideration, unless he proves that his agent, to the knowledge of the holder of the bill, has abused his power.

PPEAL from the Third District Court, parish of Orleans. Monroe,

Braughn, Buck & Dinkelspiel for plaintiff and appellee.
Sam. R. & C. L. Walker for defendants and appellants.

The opinion of the court was delivered by

MARR, J. Separate suits were brought and separate judgments

Broadway Savings Bank of St. Louis vs. Vorster.

were rendered against appellant in favor of the Broadway Savings Bank of St. Louis, on two bills of exchange, drawn by A. W. Schulenburg, to the order of I. B. Kreiger, Jr., cashier, dated at St. Louis; one, twentyfifth July, 1877, for two thousand dollars, the other thirtieth August, 1877, for twenty-five hundred dollars; with exchange on New York, addressed to Edward Vorster, at New Orleans, accepted by writing across the face "p. p. Edward Vorster, I. Linden Schmidt."

The defense is want of authority in Linden Schmidt, and want of consideration; and by agreement, one appeal was taken, and one bond given, and both cases brought up as one.

Interrogatories on facts and articles were propounded to Vorster; and he answered that "Linden Schmidt did hold my power of attorney for the transaction of my business, at the date of the draft sued on, which procuration had been executed in contemplation of my absence from this city in the year 1876; the same was in writing, and is now on file in the New Orleans National Bank."

He submits to the consideration of the court whether this power authorized Linden Schmidt to use his name for accepting bills of third parties, "or the draft sued on, in which I had no interest and for which there was no consideration in my behalf."

He also states that he is advised by his counsel that he is neither morally nor legally bound for the payment, "the said draft being solely for a transaction for the benefit of A. W. Schulenburg alone, in which I was not interested, and for which I had received no consideration."

The power of attorney was produced on subpoena duces terum, directed to the president of the New Orleans National Bank, in which it had been deposited, for the reason, no doubt, that Vorster kept his account in that bank. It is dated twenty-third March, 1876, and is in the usual form, that is, it is such a power as the merchants of New Or leans are in the habit of giving to their confidential clerks. It gives authority to the agent, among other things, "to make and indorse promissory notes in the name of the constituent, and to draw, indorse, and accept bills of exchange."

There is nothing that Vorster could have done, in person, that Linden Schmidt could not have done, under the power, in and about the business, contracts, and property of Vorster. No doubt Vorster understood and intended, and all other business men would so understand, that this power was not to be used for any business or purposes of Linden Schmidt, but only for the business of Vorster.

It is by no means unusual, it is of daily occurrence, for merchants at St. Louis to draw bill on their correspondents, merchants of New Or leans. Indeed, the commercial relations between the two cities make this a necessity. A merchant at St. Louis draws a bill on a merchant at

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