*1 discloses intervener The record Shreveport present the tank STATE was COM’RS ex rel. PERRY v. BOARD OF and attached to was delivered to his brother intervener’s brother under OF FOURTH JEFFERSON DRAINAGE truck, being then used et DIST. al.* of conditional sort trade some No. 14717. them. It is not shown that inter- between price paid, all not vener knew that was Appeal Court of Orleans. Louisiana. though suppose is reasonable he did 27, Nov. 1933. facts' know about it. Even if he knew the necessarily sale, mean this does not unpaid balance of he did know the purchased price paid had not been when he tank; and if at that did time know paid, not been this fact would the balance had matter, convict him fraud Hayes Maddox, 645; v. La. Ann. Crockett Garmouche, 798, 59; v. Pierson 146 La. 84 So. 237, Crow, App. v. Carr 10 La. 120 So. 783. urged fact that defendant brothers, and intervener were that the sale between them of movable reduced to writing, price and that the the tank for value, argue than was much less strongly its true support charge of fraud question. the sale relationship mere brothers is not Rouquer, of fraud. Maurin evidence & Co. v. they La. 594. The fact that are brothers naturally distrust creates some as to the transactions, verity of their when assailed. price paid thing The fact below its actual value does authorize a presumption party conclusive either sale actuated fraudulent motives Montgomery Wilson, or intent. 196. 31 La. v. Ann. go persons pains When of execut- ing property, a written transfer of movable price cash, of which is declared to be not, knowledge when the law does one, every require that such a transaction solemnity, suspicions be clothed with

excited; suspicions but alone do not consti- proof. They may beginning tute standing alone, proof, but amount to little. alleges Plaintiff the tank never left possession from of defendant the date of acquisition thereof to his evidence does not its seizure. The support charge. , this There are other circumstances dis which, in closed the the evidence view of all case, partake suspicious facts of of a yield

character, these must to the affirma proof tive testimonial case. Fraud is presumed. Like all other never material is case, in a it must be sues established á preponderance of evidence. This has not been done. The amount allowed the lower court as

attorney’s sequestration dissolving fees writ fair and. reasonable. appealed judgment is affirmed. 1934. writ *Rehearing January Supreme February Court denied denied certiorari *2 142 $2,394,000. value At that the dis- time in trict was principal default in of both and the result interest default, there was formed bond- protective committee,

holders to which we shall hereinafter refer as “The Commit- tee.” outstanding bonds, except Of the all representing $76,000 face value of had or had deposited been with the placed been under its control. Of the bonds which were not under the committee, twenty, $1,000 each, face value of were held relator, to whom we shall refer hereinafter “Perry.” developed there was available tax total collection for the retirement coupons 1932, only $68,- maturing in bond 542.02, required $143,- whereas there was pay coupons 640 all of the out- standing bonds, bonds since said bore cent, per per interest 6 annum. Negotiations between the and Perry in which took no part, agreement as led to an the result of $4,560 was deducted the said $68,542.02, total balance, fund available the the $63,982.02, paid was over district to the committee to com- among mittee distributed holders the various bond- represented by it. $4,560 deposited sum of The said then bank, solvent, in a which is still and which deposit fund still has the available. The agreement pro- made under only that withdrawals could made vided upon joint order of the district and the committee. the amount It will be at noted once placed credit of Alexandria, Provosty, of R. LeDoux cent, account, wit, $4,560, exactly per 6 Grady Price, H. all of Dart and Dart & $76,000, figure represents which latter for'appellant. Orleans, New value the bonds which face were not con- Milling Godchaux, Milling, Saal trolled the committee. Orleans, Knight, Jr., all of New B. Nat fund, wit, the balance of the When appellee. paid $63,982.02, the committee among rep- for distribution bondholders JANVIER, Judge. by it, the committee resented surrendered gave rise this contro- facts district and the district to the of canceled all only dispute in versy coupons in certain com- which hád been attached unimportant paratively details. bonds to those con- the. committee drainage trolled. Jefferson district Fourth Jefferson, legal authority parish, Perry with there contends that fund body governing enough pay $4,560 of the subdrain- in full and as the the out- of. coupons standing issued certain bonds which age No. which have not district been public general seeks, by and which canceled and sold surrendered were were principal mandamus, interest the committee and the property necessary within levied to draw the check taxes subdrainage $1,- district. We shall him here- said checks th.at drainage 200, twenty each, said district and is the owner and since he holder of refer after $1,000 thereof as of the face “The Dis- value of commissioners bonds of which is attached two to each cou- trict.” each-, pons $30 due originally May, the bonds In is- outstanding prayer sued, court below the of relator were total In the there face that, although they respondents or- felt granted were were'within their and the was dered to The committee rights making compromise agreement necessary or checks. check draw the appealed. committee, they thereby with the affect the could not alone has rights any coupon holders not major defenses on which are two There *3 represented by the committee. And mani Perry’s refusing re- in relies the committee quest: First, festly they They recognized could not. the manda- maintained that it is posses obvious fact that in the fund their performance compel of to the mus will lie only purpose, sion could be devoted but to one duty plain it is con- ministerial and coupons; they the retirement of the 1932 and is, that, there even in the district tended any coupon further were saw if holders circumstances, plain minis- no under the willing accept compromise to set full, duty pay Perry’s coupons in terial to claims, though tlement of their even other second, and, relationship, no there is it is asserted that either contractual or coupon parties holders not com legal, be- promise agreement might, as the result Perry cre- tween and the committee thereof, benefited, nevertheless, those Perry manda- in to institute ates mus in other the others were entitled to those benefits and could not be made to proceedings against the committee— accept anything less any words, privity kind that no than the full amount due them. Perry committee. the exists between and per- in which was is evidence the record There When the committee surrendered and puipose showing coupons the for the adduced mitted the cancellation of all the represented by it, wiped committee and actuated the reason which out of existence $4,500. depositing against except in sum of the the district all the claims those by not the not'rep- contends that it was committee The purpose provide coupons held the bondholders who were parties agreement by pretense to that of the resented it. There is no that payment in full of those against par- for the there are other claims by by Perry controlled the which were not ticular fund than those held and committee, Perry, hand, coupon other on the those other holders whose claims agreement interprets compromised by contract as an the have not been tee. the commit- parties bondholders, were not who agreement, on demand receive the find, then, We that .there is a fund coupons. value of their full face the may by particular which purpose—-thepayment law is dedicated to a fund mention that the be well to coupons—and committee for dis- over to the turned in there remains to the fund a sufficient amount repre- among those bondholders tribution pay in full all who were entitled to make pay to each of it was sufficient sented such is, then, plain claim thereon. There min cent, per only about 40 bondholders duty in isterial the custodian of that fund coupon. on each amount due of the payment. to make who, attorney MeCaleb, for the Mr. governed part leading The district is district, controlled taken a the had Louisiana, par- plain- state of the laws the negotiations ly with the ticularly agreement Act No. 85 of the Extra opinion Ses- the contem- the Legislature 1921, which, Perry sion of the payment plated full to to oth- 48, provides: parties agreement. section were not ers who testimony subject on that is as follows: His Drainage amount “A sufficient of the Tax appropriated Board shall be missioners the of Com- I, “Q. Milling, you remember when Mr. Do purpose paying for the tbie payment Drainage Board from the demanded of the bonds, principal and interest of the said coupons Perry? interest due Mr. taxes, collected, when and the said shall Yes, sir. A. separate, preserved in a for that “Q. you not tell me then that the Did * * * purpose and no other. purpose money pay- for the was available * * * Board of “The said Commissioners shall coupons? you, ing Milling, IA. told these Mr. deposited place pay- cause to be had been set aside that there four pay maturing funds sufficient ment sixty thousand, five hundred and dollars to * ** coupons bonds due. payment of cases such take care as bondholders, deposited your who had not no There was district the Committee. bonds with their provide that its funds could be checked you MeCaleb, body, “Q. by any for, upon did Mr. state to other board or Drainage act,'in willing District was section we same find: me to holders’ check? get if amount we could Bond- District shall be “Funds of the withdrawn sign Protective Committee to only warrants checks of or the A. Yes.” signed in Board of Commissioners manner, provided by the of Commis- Board examination of the contract An sioners.”. study testimony with reference to a the physical power up, negotiations which led to it But it is said cannot been the said fund has lost as to show that the district authorities draw fail feel that mandamus could have We resorted to to under which result á been make its exclusive which district given control over had the funds remained fund. control, for, the facts legal right however, was, There plain shown, there was power and its own or limit restrict district control duty in do so. ministerial There is no doubt whatever for, funds, in section over its public that a quoted, have above we from which act the the words commission, has collected board or money provided “signed in the manner par law is dedicated to a surely can- Commissioners” Board of mandamus, purpose, may, by ticular pelled pose. be com hoard, interpreted giving pur money to devote that to that it, or, right against have called we Bailey Corpus In 2 Habeas power draw its own to restrict *4 Special Remedies, appears page 1065, by giving to some funds its own following: body, the else, hoard or other or some one remedy appropriate “Mandamus is the to “signed joint The words right control. of compel municipal pay to authorities to a by provided Board manner municipal ‘bona fide’ holder of bonds the simply that the board mean Commissioners” money pursuant that has been to collected designate or one shall of commissioners purpose payment meeting law for the signatures shall whose its officials more obligations, of such refuse.” where such authorities checks, necessary not does its on be mean per- may designate some other it that son, not connected with hoard some In State ex rel. Nav. or other Carondelet Canal Pilsbury, Mayor, district. of commissioners Co. Ann. is board v. La. very interesting found case which the a a con- entered into When the committee Supreme Court of that man- Louisiana held partial control it assumed tract which proper by damus is the method which mu- is since it of the the funds of charged nicipal may compelled authorities to be de- law, knowledge of the it is to. with payment against judgments vote to the cognizant of the it was assumed that be fact that was .municipality, moneys aré, which duty which, undertaking a it apart special should devoted to that set be into a law, In not exorcise. it could under other purpose. opinion In that words, portion of the contract that following paragraph: is found the nullity. effect, complete a it was was And the much nullity gives for, a us it was contends fact that “No one the au- forbid, concern, we find it difficult thorities resort-to the writ man- because nothing accomplished that, be damus where is to the said con- convince ourselves if to by it; general joint and it’ is true that if a giving committee to the tract corporation duty nullity, should, by or officer whose it is to a we fund is over the pay money sign hasn’t it sufficient mandamus, compel that is an- the committee to Moses, however, lays' swer to the writ. Perry desires because to which check be, down the rule and we think it joint control, sign to exercise check is such correct, duty ‘if that one it is under whose has no we believe might the misapplied have law had funds had he not exercise. them, he bound is as much lies the fact that But the solution Therefore, if had he them. be heard refuse cannot tó the committee to public moneys by taxation raised for ground sign on the the check that specific puiposes placed in the hands that, illegal. must be assumed contract county’ (for may of the here we read into the contract it entered when which city) ‘treasurer, be joint to exercise con it undertook boards, auditing of certain orders treasurer fund, intended it checks trol pays money pur- out the for other against properly drawn the said fund would poses money than which the those may, by signed We find it. the check be which erly raised, pelled notwithstanding, be com- Perry, prop desires now should be pay the order on him drawn feel, the said fund drawn and we money satisfy raised;’ claims which the committee cannot be heard re re-, that fuse fusal the to cites and he a number of authori- sign check and to base its support proposition ties in mon sense of this of com- illegality its own contract. honesty.” and common contract, Since, a of that result “Moses” referred to is the well known may justified a bank which is now of the treatise on mandamus. author cheek, signed refusing to honor unless parties, by follows the commit In it State ex Globe Const. Co. v. both rel. Town al., protec 69, by Plaquemine cannot benefit and et La. 143 So. tee derive of a and, company time, contracting sought at the of the contract same mandamus tion provisions compel levy carry municipality out the an refuse to it assess may proceeds pay consider- onerous. and to devote the to the ment ited as relator should contends it be. claim for the ment of the relator’s price group committee is the of individuals. Had laying sidewalks. certain control contract been entered into extraordinary such It was contended by any composing the the one the individuals remedy “man of since availed could not he now made the contention proceeding proper to collect damus is * n * manifestly ground relator would less. We believe dis While the court did a debt. may person where one question of the cuss the compelled by be which is two do an mandamus to act relator of mandamus the purely ministerial, fact collected, did hold it amount as was persons or more combine to do the act levying of the relator could force the that the prevent persons cannot shield assessment, inference held rights enforcement of of mandamus by the been collected after the funds had parties. group other The committee is a municipality, payment con- thereof individuals; tity has en made itself an mandamus. ti actor be enforced which, and has done act if done an making collection after The court held that of such individual, subject would the individual special taxes, assessments or such processes enforceable court particular are, by law, to a dedicated through is, mandamus. The committee purpose, municipality makes the therefore, subject process to the same as the as to the dis discretion has no collection individual would have been. may therefore, thereof, position *5 judgment appealed compelled is affirmed mandamus respondent. at the cost of there are entitled to those who collections to. Affirmed. com Since the district WESTEREIELD, Judge. pelled by Perry’s coupons, to make mandamus plaintiff’s I believe that claim should the claim and since impounded funds, comes, be out of the I committee if district, it, all, also believe that through comes at attempted interpose con- the hoard to surrender the committee, cannot be heard to public money trol mittee mandamus com- to the bondholders’ is which was not available a defense nullity an absolute to the district. proper remedy. is not the manifestly adequate rem There is Perry.- edy The fund is available to law possession the district and of the may if mandamus be of, procedure ordinary legal availed may to, be with must drawn before dered. resorted purposes long to other or devoted judgment can be ren final at law CO., Inc., DEALERS’ FINANCE v. WOOD ARD. If the contract between the committee and No. 4402. process by legal first the district must annulled then another set aside and Appeal of Court of Louisiana. Second alone, brought suit Circuit. elapse before the relator months would could Dec. obtain the result to which now entitled. We no merit find contention in since the committee is neither an corporation, nor dividual mandamus will not lie to members thereof act. This contention is based on a too narrow construction of article 829 the Code of Practice, which article mandamus is man in which it declared that defined and * n * an order addressed damus “is corporation, or court in individual * * * jurisdiction. It is ferior contended mandamus should not that freely extended, limited but should be specifically persons and those cases those provided think law. But we do not strictly lim can be so word “individual”