author: ■Hxman, C. J.

text:
    State of Louisiana—On the Relation of Jean Minlocq, v. The Judge of the Fourth Judicial District Court, Parish of St. Charles.
    The Supreme Gourfc, except in cases hereafter provided, shall have appellate jurisdiction only; which jurisdiction shall extend to all cases when the matter in dispute shall exceed three hundred dollars; to all cases in which the constitutionality or legality of any tax, toll or impost whatsoever, or of any fine, forfeiture or ponalty imposed by a municipal corporation, shall be in contestation; and to all criminal cases on questions of law alone whenever tho offence charged is punishable with death or imprisonment at hard labor, or when a fine exceeding throe hundred dollars is actually impose^
    No appeal lies to the Supreme Court where the amount in dispute does not oxceed three hundred dollars. The value of property seized by a Sheriff to pay taxes, the sale of which was enjoined by plaintiff, cannot givo jurisdiction, where the amount of taxes due is less than throe hundred dollars.
    APPLYING for a Mandamus.
   ■Hxman, C. J.

The relator, in suit styled Jean Minlocq v. Paul Yancey et al., and E. H. Young, constable, sued to annul several small judgments against Mm, amounting in the aggregate to $244 25, and obtained an injunction restraining their enforcement.

In said suit relator aEeged that the property seized to enforce the payment of the judgments exceeded in value $1,000.

The Judge rendered judgment, dismissing said suit and dissolving the injunction, and the complaint by the relator is that the judge refused to grant him an appeal from the judgment. The matter in dispute is the judgments sued to be annulled. The amount in dispute does not exceed $300. This Court has no jurisdiction of the suit, and can take no cognizance thereof. See 70th Article of the Constitution of 1864.

The property seized is not in dispute, and its value being over $300, cannot invest this Court with jurisdiction, because, in order to release the property from seizure, it would become necessary to decide on the validity of proceedings in a suit over which we have no jurisdiction. See 9 Rob. 7. 12 An. 784. 16 An. 41.

The application for a mandamus is dismissed, at appellant’s costs.


source: Caselaw Access Project

author: HowEnn, J.

license: Public Domain

text:
    James Harlan v. White & Trufant.

      A second rule cannot be entertained, when one to the same purport; and effect has been taken, actod upon and decided, unless for a new cause, arising after the first has been decided.
    APPEAL from tlie District Court, Parish of Plaquemines,

      Burthe, J. Charles N. Morse, for plaintiff and appeUanl. — The facts on which this suit originates are not contested.
    The plaintiff instituted suit in November, 1861, against White & Trufant for the sum of $2,332 76, with interest, and obtained an order of sequestration of certain property, situated in the Parish of Plaquemines, on which he claimed a privilege.
    The writ of sequestration was executed by the Sheriff taking into his possession nine mules and twenty-five hogsheads of sugar, belonging to the defendants. On the 2d of December, of the same year, the latter came in and prayed that the sequestration be set aside, on their executing their bond according to law, which was ordered.
    On the 27th of March, 1862, the defendants paid the amount of the claim with interest, to wit: $2,470 56, to Armand Lartigue, Clerk of the Court lor that parish, and paid it in Confederate notes. No notice of this payment was given by Lartigue to the plaintiff or his attorney.
    The latter, nearly a year after this payment, learned through Martin, the Sheriff, that the claim had been paid,'and shortly afterwards called on Lartigue to account for the same.
    Lartigue admitted having received payment from the defendants in Confederate notes, and offered to pay the amount in that description of notes. The plaintiff's attorney refused to receive Confederate notes, because they were then worthless, and their circulation prohibited by military orders.
    At some subsequent period, when, does not appear by the record, Lartigue paid some two or three hundred dollars in current funds, and took receipts for the same. Here, whether on account of disturbance of the legal machinery, or for some other reason, the matter dropped for a time.
    On the 19th of June, 1865, the Court was again in session in the Parish of Plaquemines, and Lartigue again the Clerk of the same, and on that day the plaintiff took a rule on Lartigue, to show cause why he should not pay over the amount received for plaintiff, or be committed for contempt.
    Lartigue accepted service, and the same day filed an answer, excepting to the proceedings by rule, and answering over to the merits of the rule, admitted his receipt of $2,470 56 in Confederate notes, and producing Confederate notes to that amount, prayed that the plaintiff be ordered to receive them in satisfaction of the rule. Whereupon, the plaintiff amended his rule so as to pray that Lartigue be ordered to pay over the amount in ourrent funds.
    Evidence was then offered by plaintiff and defendant, and after argument of counsel, the Judge decided that the tender in Court of Confederate notes made by the defendant in rule, was a compliance with the mandate of the Court.
    Lartigue then filed an exception to what ho calls the second rule, and the Judge a quo rendered another judgment sustaining the exception, on the ground that the object of the first rule had been different; that the proceeding by rule was irregular; that the plaintiff should have proceeded by an ordinary action, and the rule was dismissed.
    Whereupon the plaintiff appealed.
    The pleadings present the following points for the consideration and decision of the appellate Court :
    1. Was the act of placing the amount of plaintiff’s claim, withinterost, etc., in Confederate notes in the hands of the Clerk, a legal tender of the amount due ?
    The Code of Practice, Article 407, defines a tender of money due to be “onemade to the creditor himself, or at his actual or chosen domicil, by the debtor or his agent, in the presence of two witnesses residing in the place, by tendering to such creditor the sum which is due him, with the interest, and such costs as he may have incurred, and exhibiting such sum to him in the presence of such witnesses in the current coin of the United States.” • v
    It was then not a legal tender of tho amount due.
    2. Was it a payment of the debt to tho plaintiff, such as would of itself bind tho latter, and discharge the debt ? The Supreme Court held in 14 An. 328: “ The deposit of the money in Court with the Clerk was not a payment to the creditor, nor to any person authorized by him, or by a Court or by law, to receive it for him.” C. C. 2136.
    3. Was it a deposit of so much money with the Clerk, subject to the order of the plaintiff, which the latter by accepting from the Clerk, could convert into a valid payment, and discharge of the debt, as decided in Alexandrie v. Saloy, 14 An. 328, quoted above ?
    This depends directly upon the judicial determination of the question, whether Confederate Treasury notes were or were not money.
    And upon the decision of this question hinges the whole case.
    If Confederate notes, at that time at par of gold and silver, cannot be recognized as having ever possessed the attributes of money, because they were the issues of a government which existed only in the imaginations of its supporters, (and this reasoning would have denied any value even to gold and silver coinage, had it borne the impress of the Confederate . Government), then we are entitled to regard the delivery of these notes by Trufant to Lartigue, as a transfer by the former gentleman to the latter, of certain, ourious engravings, in which we have no interest, and to which we have no claim, as the defendants owed us money, and not numismatic or art curiosities.
    But if they had the quality of money, for what purpose were they received by the Clerk ?
    Did he receive them as a simple deposit, as he now contends, entailing no responsibility on him, and which he was only obliged to deliver to tho creditor, or return to the debtor in kind ? Tho whole record negatives the idea. On the contrary, the delivery of the notes was intended by tho defendants as a payment of their debt, the Clerk received them as a payment of the debt, and it would have been so accepted by the plaintiff had they been turned over to him by Lartigue at the time. All parties concerned treated the transaction as a payment, and unless the Court should decide that the notes were absolutely void of any character as money, we think the transaction must be so regarded. See Guiin v. Breedlove, 2 How. p. 28.
    Did he receive these notes in his capacity of Clerk of the Court, or did he act as our agent in doing so ?
    No order of Court authorized his reception of these notes as Clerk of the Court. Had he a general power as Clerk to receive them, not as a deposit, as we have attempted above to show, but in payment of plaintiff’s claim ? As Clerk, he could only receive them as a deposit; if he intended to receive them, and did receive them as a payment, his office could not prevent him from assuming, nor shield him from tho consequences of the assumption of tho character of plaintiff’s agent.
    If he assumed the quality of an agent, was he not bound under the provisions of the Code, promptly to have notified the plaintiff of his acceptance of these notes, and to have offered to transfer them to him, or in default thereof, to incur the risk of their depreciation ?
    On this point see Hen. Dig. Art. Payment!, No. 16; C. O. 2163 — 5; C. P. 404, 407, 412, et seq.; 12 An. 267.

      P. Soule c& L. Gharvel, and II. Train and II. B. Grandmonl, for defendant.

    — -The Court below decided on the trial of the second rule, that a summary proceeding by rule, was not legal- and proper; that tho party should proceed by an ordinary action, in order to make defendant liable by judgment for the amount claimed.
    From that judgment tho plaintiff appealed.
    The foregoing brief statement shows the case in its true light. Tho Clerk of the Court received the amount in dispute in Confederate notes. He produced it as he received it. Then he is called upon in June, 3865, to pay in United States Treasury notes what he received in Confederate notes on the 24th of March, 1862.'
    We maintain that the exceptions taken by him are well founded. We now come to the law applicable to the case.

      First exception: See case of Buelv. New York Steamer et al., 17 La. 541.
    Second exception :
    The right to summary process cannot be extended beyond the cases expressly authorized by law. C. P., Arts. 98, 170, 754, 755, 756, 757; Baker et al. v. Boane et al., 3 An. p. 434; Austin, Sumner & Co. v. A. T. Dunbar, 12 An. p. 182; Nolan’s Heirs v. Louisa J. Taylor, 12 An. p. 201; Copley y. Conine, 3 An. p. 206.
    There is no warrant in the law for the mode of proceeding adopted by the plaintiff and appellant. His remedy was by an action. The only proceeding which ought to be followed is that alone which conforms to the law of actions. The defendant has a right to have the issue tried by a jury. That right should not be cut off by the resort to summary process, under the pretence that the proceeding is incident to the suit between the original parties, in which light it cannot properly be viewed. The appellee was not a party to that suit.
    Third exception :
    See case of J. Irwin v. J. Kinney, 1 Rob. p. 217. The exceptions were properly and legally taken, and decided by the Court below. The appellee cannot but be confident that the judgment appealed from will be affirmed.
   HowEnn, J.

In November, 1861, plaintiff brought suit against defendants, for $2,332 76, in the Second Judicial District Court for the Parish of Plaquemines, and obtained a sequestration of their property, which was set aside upon their furnishing a release bond. No further proceedings appear until 19th June, 1865, when a rule was taken by plaintiff on the Clerk of said Court, to compel him to “pay over the moneys received for plaintiff in this case or be committed for contempt of Court;” to which the Clerk on the 20th same month excepted as to form of proceeding, and answered, admitting having received in March, 1862, the sum of $2,470, in Confederate notes from defendants as a deposit for plaintiff. On the same day the plaintiff filed another rule on the Clerk to “ show cause instanter, why he should not pay the amount of the money collected by him in current funds, he having kept the Confederate notes in his possession, without having deposited them in bank or complied with the law, and having assumed to pay and having really paid some portion in current funds, or in default to be committed for contempt of Court.” On the same day (the 20th) the first rule was tried and set aside, on the ground that the defendant therein had “ complied with the mandate of the Court, in producing into Court the amount claimed and received by him in Confederate notes, and deposited by him in the safe of the Clerk’s office.” Thereupon, on the same day the Clerk excepted to the second rule, on the grounds that another rule had been taken for the same object between the same parties, and decided in his favor; that plaintiff cannot proceed by rule, but must bring a direct action; and that if a rule be allowed, he is entitled to at least three days to answer. These exceptions were tried on the next day, the 21st, and that to the form of proceeding was sustained, from the judgment on this rule, and plaintiff appealed.

The only question to be determined is, whether or not the Oourt erred in sustaining the exceptions to the second rule.

There were evidently two rules, tried separately and on different days, and both, in our opinion, had the same object in view, to wit: to compel the Clerk to pay to plaintiff the amount of money Alleged to have been received by him for plaintiff. The addition in the second rule of the words, “in current funds,” was mere surplusuge; for if the Olerk were really liable to pay plaintiff money, he could only have been condemned to pay the amount in dollars.

In the case of Buel v. New York Steamer, 17 L. 541, it was held that a second rule cannot be entertained, when one to the same purport and effect has been taken, acted upon and decided, unless for a new cause, arising after the first had been decided.

We think it clear that after disposing of the first rule in this instance, the second could not be entertained, and that the first ground of exception was well taken. Such a mode of proceeding would result in vexatious and interminable litigation.

If, however, the second rule should be considered as different from the first, because of the alleged assumption to pay in current funds, then the second ground of exception should be maintained, as there is no suit pending between these parties in which a rule could be taken, and plaintiff could enforce such a demand only in an ordinary action by petition and citation.

Judgment affirmed, with costs.


author: Labatjve, J.

text:
    Succession of Jean Martin Amat.
    Our laws have always permitted Frenchmen to enjoy the right of possessing and owning property in Louisiana, and under the treaty of 1853, they cannot be subjected to taxes on transfers, inheritance, or any others, different from those paid by the citizens of the United States, or to taxes which aro not equally imposed. >
    APPEAL from the Second District Court of New Orleans,

      Thomas, J, A. Bobert, for curator. <7! A. Thomas, for absent heirs.

      JS. Bermudez, for Stale Auditor.

    — There being no dispute about the facts, the only question presented in this case is whether, by virtue of the 7th Articlo of the Consular Convention of August 12th, 1853, between the United States and France, the subjects of the latter are exempt from the payment to the State of Louisiana of the ten per cent, tax imposed by its laws upon inheritances accruing to her subjects not domiciled in this State.
    In the matter of the Succession of Duf our, 10 A. 391, the Supreme Court of this State said:
    ‘ ‘ That the said provision of said treaty was within the constitutional power of the President and Senate of the United State; that said provision being constitutionally valid, must be obeyed as supreme law; that, consequently, the statute of Louisiana has become, pro tanto, inoperative during the continuance of said treaty'.”
    But, in the matter of the Succession of Prevost, 12 A. 577, the Supreme Court of the United States (19 Howard p. 1) declared, that the obligation of the treaty and its operation in the State, after it was made, depend on the laws of Louisiana; the treaty not claiming for the United States the right of controlling the succession of real or personal property in a State.
    Here is the language of Chief Justice Taney, who was the organ of the Court in that case:
    “........It is proper to say that the obligation of the treaty, and its operation in the State, after it was made, depend upon the laws of Louisiana. The treaty does not claim for the United States the right of controlling the succession of real or personal property in a State, and its operation is expressly limited to the States of the Union whose laws permit it, so long and to the same extent as those laws shall remain in force.”........
    Taking for granted that the view just taken of this case is erroneous, it certainly cannot be claimed that French subjects have been, by that treaty, allowed immunities greater than those enjoyed by citizens of Louisiana residing abroad.
    Let us suppose, then, that at his mother’s death, J. M. Amat, who was then residing abroad, ■ was a citizen of Louisiana, would he have been exempt from the ten per cent, tax on the assets ©f her succession, liquidated here, and amounting to upwards of fifteen thousand dollars? Assuredly not.
    In the case of the State v. Poydras, 9 A. 165, the Supreme Court held that “the tax attaches not only to property falling to alien heirs, who are non-residents, but also to citizens of our own State residing abroad.”
   Labatjve, J.

The Auditor of Public Accounts, and as such representing the State of Louisiana, states ¡¡that T. L. Pele and the succession of Jean Martin Amat are severally indebted unto tbe s?tjd State in thq sum of $1,502, for this, to wit:

That said T.' L. Pele, while testamentary executor of the late Raymond Cazeaux, has failed to retain in his hands, as he was bound to do, the tax of ten per cent, due the State on the amount inherited in said succession by said Jean Martin Amat, from his grandmother, Marie G-rossard, widow of said Raymond Cazeaux, and which amounted to $15,020. That said widow Cazeaux departed this life on 26th August, 1863, and that said Jean Martin Amat was not domiciled in this State, and was not a citizen of any other State or territory of the Union, but was a foreigner not exempt from said tax, and has of late departed this life, in this city, and his estate has been opened, and is now administered by Alexis Robert, as curator.

He prays for judgment accordingly.

The answer is a general denial. That the said Julian Neville is not duly elected Auditor of the State of Louisiana; and further, that the law of this State, upon which said plaintiff claims a tax of ten per cent, on all inheritances of foreigners, is unconstitutional and contrary to Article 6 of the Constitution of the United States and Article 7 of the Consular Convention between the United States and France, passed and signed in 1853.

The District Court gave judgment in favor of defendants, and the State of Louisiana took this appeal.

The defendants claim to be exempt from paying the tax claimed against said succession, under the authority of the treaty entered into between France and this Government, signed on the 23d February, 1853, ratified by the United States oh the 1st of April, 1853, exchanged on the 11th of August, 1853, and proclaimed by the President on 'the 12th of August, 1853. The 7th Article of said treaty is relied on to support the defence, reading as follows:

“In all the States of the Union whose laws permit it, so long and to the same extent as the said laws shall remain in force, Frenchmen shall enjoy the right of possessing personal and real property, by the same title and in the same manner as the citizens of the United States. They shall bo free to dispose of it as they may please, either gratuitously or for value received, by donation, testament, or otherwise, just as those citizens themselves; and in no case shall they be subjected to taxes on transfers, inheritance, or any others, different from those paid by the latter, or to taxes which shall not be equally imposed.”

This very identical question was decided adversely to the claim of the State, by this Court, Mr. Justice Ogden dissenting, in the case of the Succession of Louis Dufour, 10 A. 391; but the State Auditor, appellant, relies on a remark or obiter dictum of the Supreme Court of the United States in the case carried up from this Court on a writ of error, in Jean Louis Prevost, plaintiff in error, v. Charles E. Greneaux, Treasurer of the State of Louisiana, That Court said:

“In. affirming this judgment, it is proper to say that the obligation of the treaty, and its operation in the State, after it was made, depend upon the laws of Louisiana. The treaty does not claim for the United States the right of controlling the succession of real or personal property in the State. And its operation is expressly limited “ to the States of the Union whose laws permit it, so long and to the same extent as those laws shall remain in force. ” And, as there is no Act of the Legislature of Louisiana repealing this law and accepting the provisions of the treaty, so as to secure to her citizens similar rights in France, this Court might feel some difficulty in saying that it was repealed by this treaty, if the State Court had not so expounded its own laws, and held that Louisiana was one of the States in which the proposed arrangements of the treaty were •to be carried into effect.”

In that case, the decision of this Court was affirmed, on the ground that the right of this State to claim the tax, had been acquired by the opening of the succession in 1848, before the existence of the treaty; so that, the remark of that Court does not amount to a decision of the question, but strongly intimates what would be their decision in a case like this, had not our predecessors, by their decision in the JDufour Succession, virtually decided that Louisiana had accepted the proposed arrangements of the treaty.

We have revised the decision of this Court in the Succession of Louis Dufour, 10 A. 391, and we are of opinion that the Court properly applied and correctly interpreted the 7th Article of said treaty.

Our laws have always permitted Frenchmen to enjoy the right of possessing and owning property in Louisiana; and, under the treaty of 1853, they cannot be subjected to taxes on transfers, inheritance, or any others, different from those paid by the citizens of the United States, or to taxes which are not equally imposed.

The judgment of the District Court is affirmed, with costs.


author: Hitman, C. J.

text:
    John Howard v. Michael Zeyer—Timothy Kimball, Warrantor.
    Every marriage in the Stake superinduces a community of acquets and gains, unless there ho a stipulation to the contrary.
    A warrantor is not hound to look beyond the decree of a Court ordering tho sale of succession property; and he acquires all the right of the deceased to said property, and no more.
    The right which a possessor has, in case of eviction from the thing reclaimed, to retain it, until he is reimbursed, brings with it the expenses he may have incurred on it.
    APPEAL from the District Court of the Parish of Jefferson,

      Gazabat, J. B. L. Lynch, for plaintiff. J. E. Holland, for defendant. L. Gasteva, for warrantor, appellants.
   Hitman, C. J.

Plaintiff brought suit to recover a lot of ground in defendant’s possession, alleging in bis petition that he bought it from William Bode, in March, 1852.

The lot is in Mechanic’s Tillage, Parish of Jefferson.

He prayed that he he decreed the owner of the same; that it be restored to his possession, and that he have judgment for its fruits and revenues, and for damages.

Defendant, Zeyer, in answer, denied plaintiff’s allegations, averred that he was the bona fide owner of the lot, and asked for judgment quieting his possession, and for damages. He called in warranty his vendor, Timothy Kimball, who answered, denying that he was bound in warranty to defendant, and averring that he bought the lot at a public sale of the property of the succession of Bridget Dillon, plaintiff’s deceased wife, under a decree of the District Court of the Parish of Jefferson, where the succession was opened. -

The Judge gave judgment, decreeing that the plaintiff was owner of the lot, and that a writ issue to put him in possession thereof, condemning Kimball to pay defendant, his vendee, $483, the price that defendant had paid Kimball for it.

Defendant, Zeyer, and Kimball have appealed from this judgment.

At the time plaintiff bought the lot, 12th March, 1852, he was married to Bridget Dillon. She died subsequently, and the lot was sold at public sale, under an order of Court, by the administrator of her succession, to Kimball, as belonging to her succession, who sold it thereafter to defendant, Zeyer, for $483, with full warranty. Zeyer, before he was sued, put some improvements on the lot, which oost him $100.

Neither plaintiff nor defendant has proved any damages. Plaintiff has not produced any evidence of what were the fruits and revenues of the lot.

Every marriage in the State superinduces a community of acquets and gains, unless there be a stipulation to the contrary. C. C. 2369.

There is no evidence that plaintiff and Bridget Dillon entered into any stipulation affecting the community of acquets and gains at the time tlieir marriage; and, without evidence to that effect, the conclusion is that there was no such stipulation, and that a community existed between them during their marriage.

The lot was a part of the community, and plaintiff, at his wife’s death, was the owner of an undivided half thereof. The other undivided half belonged to her, Bridget Dillon’s, estate.

Plaintiff does not sue as deriving any title from his wife by inheritance or otherwise, and he has only.shown that he is owner by virtue of his purchase in 1852, of an undivided half of the lot.

Kimball was not bound to look beyond the decree of the Court, ordering the sale of the property of Bridget Dillon’s succession (see 11 La. 149; 3 B. 119); and he derived from the sale to him whatever title her succession had in the lot, and no more.

The sale by Kimball to defendant, Zeyer, of the whole of the lot, gave him such title only as Kimball had, but it made him a possessor in good faith of the whole of the lot, as he had just reason to believe that he was sole owner. While defendant possessed in good faith he had a right to put improvements on the property, and when evicted therefrom, he must be paid for expenses incurred by him for improvements thereon. See C. C. 3416, £ 2.

Appellants contend that as the sale of the lot was made under a decree of the Court to pay the debts, that the community between plaintiff and deceased, Bridget Dillon, owed, the sale was rightly made, and divested plaintiff of his title to the lot. It is unnecessary to examine this position, as there is no evidence that the lot was sold to pay community debts.

Appellants further contend that, as plaintiff knew that the sale of his property was ordered by a decree of the Court, and as he did not oppose the sale, his silence and inaction ratified it.

The answer to this is, that there is no proof that he knew of such a decree.

It is ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; it is further ordered that plaintiff recover one undivided half of the lot described in his petition.

It is further decreed that plaintiff recover the costs of suit in the lower Court, from defendant.

It is further decreed that defendant recover of plaintiff the sum of fifty dollars, being a half of the expenses for improvements on the lot.

. It is further decreed that defendant recover of his vendor, Timothy Kimball, the sum of two hundred and fifty-one dollars and fifty cents, with five per cent, per annum interest thereon, from the date of defendant’s eviction, and the costs of suit incurred in the call of warranty in District Court.

It is further decreed that the plaintiff pay the costs of this appeal.


author: JusiiHY, J.

text:
    Succession of Mrs. Louis Foucher.
    ít is the province of Oourfcs of Law, in the interpretation of last wills and testaments to endeavor to asoertain the intention of a testator, and to give effect thereto; provided the ascertained disposition he not contrary to law and pubiio policy.
    The testamentary dispositionbecom.es without effcot, if the person instituted or the legatee does not survive the tostator.
    The instituted heirs having taken ths whole suooession of the testatrix, no part of it could pass by representation to the heirs of a collateral, whose rights as testamentary heir, became legally divested by his predecease.
    Accretion take3 plaoe for the benefit of tho legatees, in oase of the legaoy being made to several oonjointly.
    The legacy shall be reputed to be made conjointly, when it is made by one and tho same disposition, without the testator’s having assigned tire part of such co-legatoe in. the thing bequeathed.
    APPEAL from the Second District Court of New Orleans,

      Thomas, J. -A. Pitot, for appellant. E. Bermudez, contra.
   JusiiHY, J.

The last will of Mrs. Foucher contains the following olause: “I name for my heirs and universal legatees, 1st : My brother, Frangois Saulet; 2. The children of my brother, Balthazar Saulet; 3d. The children of my late sister, Mrs. Y. DeGruy; 4th. And the children of my other sister, the late Mrs. A. Foucher, Jr., such as the law itself has provided for “ ainsi que la loi l’ordonne.”

Frangois Saulet, one of the named legatees, having died before the testatrix, her executor regarding the bequest to him as lapsed, under Artiole 1690 of the Civil Code, filed a tableau in which he distributed the residue of her estate among the children of Balthazar, and the children of the two sisters of the testatrix, respectively, regarding these heirs as having acquired by accretion under Article 1700 O. O., the share of their predeceased uncle, Frangois.

The heirs of Frangois Saulet opposed this tableau, asserting that they were entitled to one-fourth of the succession.

This pretension is predicated upon their construction'of the will, which they maintain, if interpreted conformably to the intention of the testator, •would entitle them to their father’s share. -

It is the province of Courts of law, in the interpretation of last wills and testaments to endeavor to ascertain the intention of a testator, and to give effect thereto, provided the ascertained disposition be not contrary to law and public policy.

The language of the testatrix in the clause referred to, is neither inaccurate nor ambiguous, for had Frangois Saulet survived his sister, no question could have arisen as to the mode of distributing her estate.

By his death during the lifetime of the testatrix, her will under Article 1690, would be read as if his name had never been mentioned in it, unless a different intention of the testatrix could be gathered from the face of the instrument; but which could not be sought for aliunde. Theall v. Theall, 7 La. 230; Domat b. 3, tit. 1, && 6 and 7; Coine Delisle, D. and T., p. 448, No. 15.

It is only where the language of a testator is uncertain, that extrinsic evidence can be resorted to, to ascertain his intention. Oxley v. Clay, 7 Rob. 425, and the judgment of a Court, in expounding a will should be simply declaratory of what is in the instrument; and hence the heirs of F. Saulet properly object to the introduction of any extrinsic evidence to prove the intention of the testatrix, for where the enquiry is, what the words of a will express, as distinguished from what the testator meant by the words, evidence of declarations of intention, of instructions given by the testator for preparing his will, or any evidence of a similar nature, is obviously inapplicable to the point of enquiry. Such evidence, therefore, is for the purpose of such an enquiry, inadmissible.

The opponents’ construction of the will, which they contend is warranted by the mode of distribution directed by the testatrix in the use of the words “ ainsi que la loi 1’ordonne” is, that the testatrix intended that her estate should be distributed among her relatives, in the manner the law provides, had she made no will; and their engagement rests on the consideration that the instituted heirs and universal legatees were her nearest relatives, and as such, would have been entitled to her successsion had she died intestate.

This argument is certainly plausible, but far from conclusive.

The testatrix having no forced heirs, was not controlled by the law in the disposal of her property. It was optional with her to bequeath or withhold from her relatives; and the construction of the clause relied on by the opponents to sustain their position, must yield to the more mutual one that she desired her property to be distributed among her instituted heirs per stripes, and not per capita.

We are not to presume that the testatrix was ignorant of the law, and unless a contrary intention be manifest, we must suppose that she intended that her will should have its legal effect, which would necessarily exclude her brother, Frangois, and his heirs from any share in her estate. That such was her intention seems manifest from the fact that, being aware that the demise 'of her brother, Frangois, rendered void the bequest to him, yet she did not cancel the institution of her other named testamentary heirs and universal legatees, or provide for the heir of Frangois, by a subsequent testamentary disposition in the same manner as she had done for those originally instituted.

The heirs of Frangois virtually claim to come in by representation as heirs of their father.

The instituted heirs having taken the whole succession of the testatrix, ho part of it could pass by representation to the heirs of a collateral, whose rights as testamentary heir, became legally divested by his predecease. See A. LeBaun et al. v. Trudeau, Testamentary Executor, 10 An. 164; 1700 C. C.

To recognize these opponents as the instituted heirs of Mrs. Foueher, a new will must be made for her, and this is entirely beyond the power of the Oourt. '

The will of Mrs. Foueher is extant, has been admitted to probate and must be executed, and as there is nothing intrinsic in the words of the disposition expressed in the will to persuade us judicially that the testatrix intended that the legacy to Francois Saulet should enure to her heirs, we must give effect to Articles 1690 and 1700 of the Civil Code.

The Court below maintained the opposition of the heirs of Francois Saulet, and its decision must be reversed.

It is therefore ordered, adjudged and decreed, that the judgment of the Oourt below be annulled, avoided and reversed, and proceeding to give such judgment as should have been rendered by said Court: It is ordered, adjudged and decreed, that the opposition of the heirs of Francois Saulet to the tableau of distribution filed by the testamentary executor of the last will and testament of Mrs. Louis Foueher be dismissed and judgment is hereby rendered against the said opponents, and in favor of her testamentary heirs and universal legatees, viz : the children of her (predeceased) brother, Balthazar Saulet; the children of her (predeceased) sister, Mrs. Y. de G-ruy; the children of her (predeceased) sister, Mrs. A. Foueher, Jr., recognizing them as the sole testamentary heirs and universal legatees of the said Mrs. Foueher.

It is further ordered, that the tableau of distribution filed by the said testamentary executor, be and the same is hereby approved and homologated; and that the costs of the opposition in both Courts, be paid by the opponents.


author: Howrll, J.

text:
    W. C. Gray v. Thomas, Griswold & Co.
    Whore an obligation sued upon i3 not negotiable, tho assignee can aoquiro no greater rights than tho assignor; and any legal defoncos whioh the latter oan urge, can bo urged against his assignee.
    This Oourt will not look for objections out of the bill; and general expressions therein, such as “illegally taken,” “tho law has not boon complied with,” “it is not tho best evidence,” “is inadmissible,” and the like, are insufficient. The party taking the bill must spread on tho faco of it everything noooBsary to enable the appollato Oourt to say that tho Oourt below erred.
    APPEAL from the Sixth District Court of New Orleans,

      Duplantíer, J. Whitaker, Fellows S Mills, for plaintiff and appellants. George S. Lacey, for defendants.
   Howrll, J.

This is an action by plaintiff, as assignor, to obtain from defendants a certain portion of real estate in this city, and in default thereof to recover the sum of $10,000, as tho stipulated penalty.

The suit is based on the following act, under private signature :

“ To all whom it may concarn : This will serve to certify that, on the 25th day of March, 1862, we, the undersigned, Thomas Griswold & Co., of New Orleans, did sell, bargain and convey to E. A. Mejia, of the City of Mexico, a lot of ground on Third street, between Bacchus andDryades streets, in the city of New Orleans, together with all the buildings and improvements thereon, known as the Confederate Rifle Factory, for the sum of ten thousand dollars.

And we do hereby bind ourselves, in the sum of ten thousand dollars, to furnish to E. A. Mejia, or to his assigns, a good and legal title to the above named property, at the earliest practicable opportunity.

In witness whereof I, Henry Thomas, Jr., of the firm of Thomas, Griswold & Co., do subscribe the name of my firm to this obligation, this 22d day of July, 1862.

(Signed) Thomas, Griswold & Co.

Witnesses to signature of Thomas, Griswold & Co., by H. Thomas, Jr.

(Signed John S. Clark,

W. D. McGinnis.”

Tho defendants answered, admitting the signature of the firm, denying generally the other allegations, and specially the ownership and interest of the plaintiff, and averring that the instrument sued on is held by him subject to the equities and defences which may be urged against Mejia, his assignor. They further allege that the said Mejia had no actual interest in said instrument, but was an interposed party acting for another; that, if they were bound to furnish him a title to the property in question, the obligation sued on is, of itself, a sufficient title; and, if defective, it was well known to him, and is of such a character as to relieve them from all liability on account thereof.

Upon these pleadings the parties went to trial, and judgment was rendered in favor of defendants, from which plaintiff appealed.

Our attention is directed to two bills of exception taken by plaintiff.

The first is to the admission of parol evidence to prove the contents of two acts of sale of the property in controversy: one from the defendants to Mejia, and the other from the said Mejia to one Mansfield Lovell, or other officer, for the Confederate States, in April, 1862, after defendants had made affidavit of the existence of said instruments, under private signature, without being recorded, and of their being beyond the knowledge or control of plaintiffs. The grounds of objection were:

1. That such testimony could have effect only in a controversy between this plaintiff and the alleged Confederate States.

2. That the Confederate States were the only party interested in such evidence, and should have been called in to defend their rights.

3. That said acts, under private signature, being translative of property, can be proved only by interrogatories addressed to the parties making or receiving the transfers.

4. That the instrument sued on, being a bond for the deed of real estate in the hands of a bona fide transferree, cannot be impeached by the obligors, by proving that previous to its date the same property was sold by them to the obligee or a third party, in order to defeat plaintiff’s action.

5. That they cannot do this by parol, but only, if at all, by interrogatories on facts and articles, and that it cannot be done to affect plaintiff, an innocent transferreé, without notice.

These objections were properly overruled.

The plaintiff acquired no greater rights than his assignor had, and any legal defences which the defendants could set up. against the latter, can be urged against his assignor. The obligation sued on is not a negotiable instrument.

The evidenoe was offered to prove the contents of two act's under private signature, which, so far as the objections raised avail, it was competent for defendants to do, if a proper foundation was laid, which is not denied.

The second bill of exceptions was taken to the testimony of the witness, Thebault, offered to establish the consideration of the bond sued on, and the transactions between the defendant a!nd Mejia, in regard to the transfer of this property, on the grounds that it is not admissible against an innocent assignee without notice, and “that so far as it refers to the bond sued on, parol testimony is inadmissible.”

The first objection as we have seen is untenable, and the second is so vaguely stated that we do not know the particular grounds on which it is based.

It has been repeatedly held that this Court will not look for objections out of the bill, and that general expressions therein, such as “illegally taken,” “ the law has not been complied with,” “ it is not the best evidence,” “is inadmissible,” and the like, are insufficient. The party taking the bill must spread on the face of -it everything necessary to enable the appellate Court to say that the Court below erred. See authorities cited in Hennen’s Digest, p. 492, No. 1.

The plaintiff seems to rely mainly on the ground that the equities or defences, which defendants might set up against Mejia, the obligee cannot be urged against him, the assignor of Mejia, which is an erroneous theory, as the latter could not assign greater rights than he possessed.

With the evidence before us, it is manifest that the object qf the defendants and Mejia, a Mexican citizen, was to shield the property in question from confiscation by the Government, and preserve it for the benefit and in aid of the late rebellion; an object which Courts of justice cannot for a moment countenance either directly orjndirectly. The illegal character of such acts is not changed or mitigated by the assignment of the pretended rights of one of the contracting parties to a third person, however ignorant he may bo of the real design of said parties. Nor can one be permitted to profit therefrom through the instrumentality of such third person.

The suit should have been dismissed.

It is therefore ordered that the judgment of the District Court be reversed; and it is now ordered, adjudged and decreed, that tho petition of plaintiff be dismissed, at his costs, in the lower Court; the costs of appeal to be paid by defendants.


author: Howell, J.

text:
    Mrs. E. A. Halls v. J. A. Cartwright.
    Married persons may reoiprooally claim a separation and divorce on account of habitual intemperance, excesses, cruel treatment, or outrages of one of them towards the other, if such intemperanco or such ill treatment is of such a nature as to render their living togethor insupportable; but where there is a condonation or reconciliation after the offence, it waives the right to claim a divorce.

      Per CuriamPublio policy, good morals, the highest interests of society require that the marriage relations should be surrounded with every safeguard, and their severance allowed only for the causes specified by the law, and clearly proven.
    APPEAL from the Third District Court of New Orleans,

      FeUovies, J. J. II. Van Balsón, for plaintiff. H. B. Eggleston, for defendant and appellant.
   Howell, J.

This is a suit for a separation from bed and board and divorce, on account of alleged excesses, cruel treatment, habitual drunkenness, and failure to provide for the support of plaintiff and her child.

The defendant reconvened, charging the plaintiff with many improprieties, defamation, bad temper, etc., and prayed for a judgment of separation in his favor.

There was judgment for plaintiff, and defendant appealed.

The evidence in the record presents much that is unfavorable to both parties in their conjugal relations, but which furnishes no ground in law for dissolving the marriage tie. Some facts are shown, which might authorize a judgment in favor of plaintiff, had not a reconciliation resulted, and no sufficient legal cause of separation is shown to have occurred since the reconciliation. O. C. 149. 6 B. 135.

An effort was made to establish the habit of drunkenness, in which, however, we think, plaintiff has failed.

The act of 1855, relative to divorce (p. 376), provides that no divorce shall be granted except for the causes therein named, and declares that “ married persons may reciprocally claim a separation and divorce on account of habitual intemperance, excesses, cruel treatment, or outrages of one of them towards the other, if such intemperance, or such ill treatment is of such a nature as to render their living together insupportable.”

The intemperance charged to defendant is not shown to be habitual and of such a character as to render it insupportable to plaintiff. There is no justification for his offence in this respect, but occasional drunkenness is not made a cause of separation.

The only ground of complaint, urged by plaintiff in her letter to defendant, on the day she left him, is, “not trying- to take care of his wife and child;” which is certainly a dereliction of duty; but in this instance, if in any, it is not such ill treatment as to warrant the interference of a court of justice. There is evidence that he attempted to get employment, and when he succeeded he gave his wife some of his earnings.

We think it the duty of the Courts of the State to enforce the laws on the subject of divorce with as much strictness as on any other subject. Public policy, good morals, the highest interests of society require that the marriage relations should be surrounded with every safeguard, and their severance allowed only for the causes specified by the law, and clearly proven. .

The defendant has exposed some improprieties on the part of his wife, but has not established a right to a judgment on his reconventional demand.

Both parties must be dismissed from Court, and left to an amendment of their conduct.

It is therefore ordered that the judgment of the lower Court be reversed, and the demands of both parties dismissed; the costs of the main action in the lower Court to be paid by plaintiff; those of the reconventional demand to be paid by the defendant, and those of appeal by the plaintiff and appellee.


author: Howoüll, J.

text:
    City of New Orleans v. Union Insurance Company.
    The law requires tlio tax to be levied on the capital stock of an insurance oompany aofcually paid in and secured to be paid, excopting therefrom the sums paid for real estato and the amount of capital stook owned by the State or city of New Orleans.
    APPEAL from the Second District Court of New Orleans,

      Whitaker, J. L. M. Bay, City Attorney, for plaintiff. Wm. II. Hunt, for defendant and appellant.
   Howoüll, J.

This is a suit to recover from the Union Insurance Company the tax levied on its capital for the year 1861; and the only question presented is, whether or not, the sum represented by the premium notes held by the Company, is a part of the capital, and subject to taxation.

The facts of the case are contained in the following admissions and the tax receipt on file:

“It is admitted that the City of New Orleans levied and assessed, according to law, on this Company, in the year 1861, a tax of one and one-half per cent, on $300,000 capital stock, paid in and secured to be paid in, of said Company.

By the charter of said Company the capital stock is fixed at $250,000. That, of the aforesaid amount, the said Company had $156,156 25 in premium notes, a copy of one of which is herewith filed, and that these notes are now, and always have been, in the possession of the Company, and that the Oompany has paid one and one-half per cent, on $93,843 75 of the capital stock, with attorney’s commissions on the same.

It is further admitted that the name of the defendant was not published in the list of defaulting tax payers.

The notes are in the following form:

“No.--, New Orleans,-, 186-. On demand of the President and Directors of the Union Insurance Oompany of New Orleans, -- promise to pay to the order of said Company, and in the manner provided for by the third article of the charter, the sum of-dollars, being eighty dollars per share on-shares owned by ——— in the capital stock of said Company.”

The charter is not before us.

The plaintiff claimed the tax on $300,000, as the capital of the Company actually paid in and secured to be paid in, as returned under the 70th section of the City Charter.

Judgment was rendered in the lower Court for the tax on the amount of the premium notes, being the difference between the sum on which the defendant paid, and $250,000, the amount of the capital stock fixed by the charter, from which the Company appealed.

The City does not ask that the judgment be amended.

The law requires the tax to be levied on the capital stock actually paid in and secured to b.e paid, excepting therefrom the sums paid for real estate and the amount of capital stock owned by the State or City of New Orleans; and the admissions and the form of tho notes in the record show that the premium notes held by the defendant constitute a part of its capital stock and are in terms the capital stock “secured to be paid in.”

The fact that they are still in the possession of the Company, instead of changing, substantiates this character; and should the exigencies of the Company require it, they would, so far as this record shows, be used just as the capital actually paid in would be.

We can see no good reason why the amount of the capital secured by these notes (called premium notes) should be exempt from taxation. Such exemption would relieve the Company, to that extent, from a burden plainly imposed by law, and would in effect reduce its capital, or declare that not to be capital which is returned, upon a sworn statement, as capital, according to law, or is fixed as such by the charter.

It is the capital, without which the corporation would not be complete, and upon which it operates, that the law taxes.

Judgment affirmed, with costs.


author: Hvman, C. J.

text:
    Daniel Block v. T. F. McGuire and F. Slouty.
    Although the general rule is that damages are the amount of the loss the creditor has sustained, or of the gain of whioh he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party.
    Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality, or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach; a contract for a religious or charitable foundation, a promise of marriage, or an .engagement for a work of some of the fine arts, are objects and examples of this rule. In the assessment of damages under this rule-, as well as in cases of offences, quasi offences, and quasi contracts, much discretion must be left to the Judge or jury, while in other cases they have none, but are bound to give such damages undor the above rules as will fully indemnify the creditors, whenever the contract has been broken by the fault, negligence, fraud, or bad faith of the debtor.
    The Constitution, Art. 76, requires Judges in all cases to adduce the reasons on which their judgments are founded.
    APPEAL from tbe Third District Court of New Orleans,

      Handlin, J. Wm. Piles, for plaintiff. Cutler & Thomas, for defendants and appellants.
   Hvman, C. J.

This ease was dismissed because the Court was led into error, by motion-of appellee’s counsel, stating that the transcript had not been filed on the return day, and that no motion had been made by appellant within three judicial days from the return day, to extend the time for filing the transcript, but on application for rehearing we discovered our mistake and granted a rehearing.

A motion had been made by appellant, within the legal delay, for further time to bring up the transcript; time had been given, and the transcript had been filed within the time granted by this Court.

This suit is for damages. The District Court rendered judgment against defendants in solido for $150, as damages done by them to plaintiff.

Defendants have appealed.

There is no proof whatsoever against the defendant, Slouty; but there is proof that McGuire, who was a constable, arrested plaintiff without any warrant or authority of law, and deprived him of his personal liberty for the purpose of subserving his, defendant’s, private interest.-

It is impossible to estimate the mental pain a person may suffer by the violation of his right of personal liberty. The law has left discretion in the Judge to assess damages, without calculating altogether on the pecuniary loss in offences of this kind. See C. C. No. 1928, $ 3.

We see nothing in the evidence to induce us to set a lighter estimate of the damages than the District Judge has assessed.

There is evidence that plaintiff bought wood of defendant, McGuire, which he did not pay for. His failure to pay was no excuse for this personal wrong and violation of law by an officer of the law.

The District Judge gave no reason for the judgment rendered by him. The Constitution, Art. 76, requires Judges in all cases to adduce the reasons on which their judgments are founded.

The judgment must, therefore, be reversed.

It is ordered, adjudged and decreed, that the judgment of the District Court be reversed. It is further decreed that plaintiff have judgment against the defendant, T. F. McGuire, and that he recover of said McGuire the sum of one hundred and fifty dollars. The costs of suit in the District Court, the half to be paid by McGuire, and the half by plaintiff ; that defendant, F. Slouty, have judgment against plaintiff, as of nonsuit; it is further decreed that plaintiff pay1 the costs of the appeal.