author: Wyly, J. Howell, J., Lxjdelixg, C. J.,

text:
    No. 5519.
    State of Louisiana vs. Charles Morgan.

    All legislative contracts must lie construed most favorably to the State, if there is any doubt as to their meaning or interpretation, and a party claiming exemption from taxation must come strictly within the provisions oí the statute granting it.
    Considering tho provisions oí sections two, three, and eleven of the ehartor, tho conclusion is that tho exemption from taxation granted to the New Orleans, Opelousas, and Great western Railroad was not a transferable right; that the State never intended to confer on tho grantee the power to convoy this right or privilege to another corporation or to a natural person. The privileges granted were to the person of tho grantee. It was never intended to attach to the property oí the corporation, and to follow it into third hand- when sold on execution.
    Tho franchises oí a railroad company can not bo alienated without tho consent of tho Stale which granted them. When the State covenants and agrees that a certain corporation shall administer certain franchises, the ordinary judgment creditors of that corporation may seize and sell its property, but not tho franchises. It is a State prerogative to put the administration of its franchises into such hands as it may choose, and thoy can not he transferred without tho consent of the State.
    Therefore tho sale of 1870 by the ordinary judgment creditors of the New Orleans, Opelousas, and Great Western Railroad Company to the plaintiff, Charles Morgan, who had previously bought tho first division of tho road extending from Algiers to Berwick’s Bay, of the unfinished division of the same extending from Borwiek’s Bay to Opelousas, and the division from Opelousas to tho Sabine, upon which no work had ever been done, transferred to tho purchaser whatever property the corporation had embraced within thoso divisions; but the person of the corporation and tho franchises which tho State had committed to its hands wore not alienated.

      Section nine oí the charter oí 1853 authorized the corporation' to borrow money as might bo required lor certain purposes and to mortgage tho property oí tho company to accomplish that object, but no authority was given to mortgage the franchises.
    In 1855 the State passed a general act authorizing railroad companies to mortgage their property and franchises, until this act was passed the franchises of a railroad company in this Stato could not bo mortgaged. Otherwise, that act would have been unnecessary.
    Charles Morgan did-not acquire the privilege of exemption from taxation by virtue of tho adjudication to him of tho first great division of tho railroad which was granted by the charter to the capital stock and other property of said corporation. Tho obligation underlying this right of exemption from taxation was, an indivisible obligation, and tho obligation underlying tho right of exemption of tho officers and employees of said corporation from jury duty and military duty was also an indivisible obligation. Neither of these can be broken up at the option of the incorporators and divided into as many obligations and rights as they may desire.
    Tho right of corporate existence can not be divided up and made applicable to tho different divisions of a railroad. Nor can the right to expropriate property bo parceled out among the purchasers of the various divisions of a railroad.
    Several corporations, possessing tho rights and franchises stated, can not spring into existence by tho act of a railroad company in mortgaging and selling separate divisions of their road with tho rights and franchises applicable to each division, because this would be the exercise of a prerogative by a creature that belongs exclusively to its creator.
    Hence tho plaintiff did hot, by tho adjudication under the foreclosure of tho mortgage on the first division of the road with tho rights and privileges applicable t.o it, acquire the privilege of exemption from taxation, assuming that such privilege was acquirable under a mortgage and adjudication of all tho franchises and property of tho New Orleans, Opelousas, and Great Western Railroad Company, pursuant to tho act of 1850.
    But, assuming that by the purchase of all tho shares of stock or otherwise tho plaintiff stands before tho court representing tho Now Orleans, Opelousas, and Great Western Railroad Company, he can not claim the exemption from taxation mentioned in the charter, in view of the fact that the railroad has not been completed within tho limits.of the State, although more than twenty years have elapsed since the charter was granted.
    The charge that the. State, in assessing tho taxes now sought to be collected, has violated the obligation of her contract with tho New Orleans, Opelousas, and Great Western Railroad Company can not bo maintained. The State never agreed to exempt from taxation forever tho property of that corporation. .
    Tho stipulation in tho charter was that the capital stock and other property of said company “ shall bo exempt from taxation for ton years after the completion of said road within the limits of this State.” Tho consideration of this grant was, of course, the promise of the corporation to prosecute to completion tho building of the railroad. Over twenty years have passed, and nothing of tho kind has been done, and there is no visible prospect of its completion.
    In tho fa-o of such a palpable abandonment of tho enterprise and such a flagrant breach of contract, it is with bad grace that tho defendant, when taxed on the property described in this srrit, complains that tho State is impairing its obligations. To permit tho corporation by its own derelictions to prolong tho period of exemption from taxation would be to allow it to take advantage of its own wrong; and what tho corporation can not do the defendant claiming under it can not accomplish.
    APPEAL from, the Superior District Court, parish of Orleans. Haiv-Idns, J.

      Henry 0. Dibble, Assistant Attorney General, and W. B. mils, for plaintiff and appellee.

      Leory & Monroe, for defendant and appellant.

      Carried by writ of error to the Supreme Court of the United States.

   Wyly, J.

This is a controversy between the State and Charles Morgan in regard to the collection of taxes assessed against him on certain real estate, rolling stock, and ferryboats described in the suit. The defense is:

First — This property is not liable to taxation, because it was acquired by Charles Morgan from the New Orleans, Opelousas, and Great ’Western Railroad Company, and by the second section of the charter of said corporation all its property was exempted from taxation.

Second — The assessment of the property was excessive.

As the record does not present a case entitling defendant to relief on the second ground, we will turn to the first, which presents the important question in this litigation.

Before entering upon the discussion, however, it will be necessary to notice some of the provisions of the charter of the New Orleans, Ope-lousas, and Great Western Railroad Company, and to state some of the facts disclosed by the record.

By act No. 149 of the acts of 1853 the General Assembly incorporated the New Orleans, Opelousas, and Great Western Railroad Company “for the purpose of constructing, working, and maintaining a railroad from Algiers, on the opposite side of the Mississippi liver from New Orleans, and thence westward to Bayou Lafourche, thence to Berwick’s Bay, thence to Washington, or near it, on the Courtableau, in the parish of St. Landry, and from thence hereafter to be continued to the point on the Sabine river most favorable for the purpose of continuing said road through the State of Texas to El Faso, on the Rio Grande.”

Section one creates said railroad company into a body corporate and politic with “full power to sue and be sued, plead and be impleaded, to do and perform all other acts, and enjoy all the rights and privileges incident to corporations.”

Section two provides that “ the capital stock of said company shall be exempt from taxation, and its works, fixtures, workshops, warehouses, vehicles of transportation, and other appurtenances, shall be exempt from taxation for ten years after the completion of said road within the limits of this State.”

Section three provides that “ the president, engineers, clerks, agents, and servants of said company shall be exempt from jury duty and from military duty, except in case of invasion or insurrection.”

■ Section five fixes the capital stock of said company at six millions of dollars, divided into two hundred and forty thousand shares.

Section nine provides that “ the president and directors of said New Orleans, Opelousas, and Great Western Railroad Company may borrow, from time to time, such sums of money as may be required for the construction of said road, over and above the amount received from subscriptions to its capital stock, provided the amounts borrowed do not exceed six millions of dollars ; and said president and directors be and are hereby authorized to secure said loans by mortgaging the property of the company, in whole or in part, as they may deem expedient; .and any mortgage so given neednotbereinscribod to continue said mortgage in force.”

Section eleven provides that “ said New Orleans, Opelousas, and Great Western Railroad Company shall have perpetual existence, unless said corporation is dissolved by a vote of three fourths of its stockholders at a meeting called specially for the purpose, or unless said corporation shall fail or be insolvent* * * * * * * *

These are the only sections of this statute that need be noticed.

In 1856 the General Assembly passed a general law, being act No. 194, entitled “ An Act to extend the Powers of Railroad Companies.”

Section one provides that “ in addition to the powers conferred by law upon railroad companies, any railroad company established under the laws of this State may borrow, from time to time, such sums of money as may be required for the construction or repairs of any railroad, and for this purpose may issue bonds or their obligations, secured by mortgage upon the franchises and all tho property of said companies, and payable at such times and places as the president and directors may designate, with power to sell, pledge, or otherwise dispose of said bonds on such terms as the president and directors may deem expedient.”

Early in 1857 the first division of tho Now Orleans, Opelousas, and Great Western Railroad was completed to Berwick’s Báy, a distance of eighty miles.

Eor the purpose of obtaining means for the further completion of the road, in March, 1859, tho board of directors of said company passed resolutions authorizing the president to issue two thousand bonds of the New Orleans, Opelousas, and Great Western Railroad Company for one thousand dollars each; and to secure the ’payment of said bonds and tho interest thereon by a first mortgage on tho first grand division of the railroad, from Algiers to Berwick’s Bay, “ together with the land over ■which said road is constructed, the equipments, appurtenances, rights, and franchises of the company applicable to this portion of the road.”

Under this authority and the iDower conferred by the statutes quoted, the president in April, 1859, issued tho bonds and executed the mortgage on the first division of the road, extending from Algiers to Berwick’s Bay.

With the funds arising- from this source the company continued the work and almost completed the entire grading to Opelousas, a distance of eighty-five miles beyond Berwick’s Bay, when, in 1862, further operations were discontinued on said road on account of the war, the road having been seized by the military forces of the United States.

When the road was restored to the company, in 1806, it made every possible effort to resume work and to complete the road, but without success. No work has since been done by the company.

The result of its labors was the completion of the first division of the road, a distance-of eighty miles, and the clearing and partial grading of the second division, extending from Berwick’s Bay to Opelousas, a distance of eighty-five miles. The third division, from Opelousas to tho Sabine, a distance of ninety-eight miles, remains untouched.

In 1869 Charles Morgan, the holder of certain of the mortgage bonds, foreclosed the mortgage on tho first division, and purchased it under executory process issued by the United States Circuit Court. In 1870 lie purchased, under ordinary writs of fieri facias, issued in certain judgments against said company in tho district courts of the parish of Orleans, all and singular the balance of the property of tho Now Orleans, Opelousas, and Great Western Railroad Company. Subsequently, to wit: on the twelfth of December, 1871, Charles Morgan conveyed to the New Orleans, Mobile, and Texas Railroad Company “ the franchises, rights, and privileges now owned by said Charles Morgan for the construction and maintenance of a line of railroad running from Brashear City north-westwardly so as to connect with the main line of railroad of the New Orleans, Mobile, and Texas Railroad at or near Vermilion ville, and thence northwestwardly to tho Red river, together with all the lands and rights of way for or in respect to such railroad from Brashear City northwestwardly to such point of connection at or near Vermilion ville, and likewise for a railroad north of that point to Red river, which the said Charles Morgan now owns or is entitled to, and the benefit of all work heretofore done and improvements heretofore made upon the same in the shape of grading or otherwise.” * * * * * *

Subsequent to this conveyance the New Orleans, Mobile, and Texas Railroad Company expended from eighty to one hundred thousand dollars on the road from Brashear City to Vermilion ville, and in August, 1872, suspended all further operations on said road.

Charles Morgan, since his' purchase, has expended large sums in improving the first division from Algiers to Berwick’s Bay, but no work has been done by him on the road beyond. This statement of facts and quotation from the statutes applicable to this case bring us to the consideration of the following questions:

. Firs&wkey;Was the exemption from taxation stated in the second section of the charter of said company transferable ?

Second — If so, was it conveyed to Charles Morgan by the purchase which he made of the railroad ?

Third — If so, is he entitled to claim said exemption from taxation, in view of the fact that said railroad has not been completed within .the limits oí the State, although more than twenty years have elapsed since the charter was granted ?

First — All legislative contracts must be construed most favorably to the State, if there is any doubt as to their moaning or interpretation. And a party claiming exemption from taxation must come strictly within the provisions of the statute granting it. 1 Black. 436; 8 Wallace, 431.

. Considering the provisions of sections two, throe, and eleven of the charter, we are of opinion that the exemption from, taxation granted to the New Orleans, Opelousas, and Great Western Railroad was not a transferable right; that the State never intended to confer on the grantee the power to convey this right or privilege to another corporation or to a natural person. Mark the language of the statute, which declares, not that certain property shall be forever exempt from taxation, but that “ the capital stock of said company shall be exempt from taxation, and its works, fixtures, workshops, warehouses, vehicles of transportation, and other appurtenances shall be exempt from taxation for ten years after the completion of said road within the limits of this State.”

Also, consider the phraseology of section three, which declares that “ the president, engineers, clerks, agents, and servants of said company shall be exempt from jury duty and from military duty, except in case of invasion or insurrection.”

Can this right of exemption for a limited time from taxation, conferred in precise terms upon a certain railroad corporation, and this right of exemption from jury and military duty conferred upon the •" president, clerks, agents, and servants of said company,” be extended, by any fair construction of the statute, so as to authorize and empower the grantee to transfer those rights or privileges to another corporation or to a natural person1? We think not. The consideration to the State was the stipulation or engagement of the company to build the railroad to the Texas line. For this, in addition to other privileges granted, the State agreed to exempt the capital stock and other property of said corporation from taxation for ten years after the completion of the work, and also to exempt from jury and military duty the officers, agents, and servants of said company. The grant of these privileges was to the person of the grantee. It was never intended to attach to the property of the corporation and to follow it into third hands when sold on execution.

The case of New Jersey vs. Melier, 7 Cranch. 499, cited by the defendant, was not like the one now before the court. There the land pur- • chased by the State for the Indians was exempted by a legislative act from taxation, and the court maintained the exemption of such land in third hands, on the ground that the land had been sold with the assent of the State with all its privileges and immunities, and that the “ privilege, though, for the benefit of the Indians, is annexed, by the terms of the act which created it to the land itself, not to their person.”

The case of the Home of tho Friendless vs. Rouse, 8 Wal. 431, closely resembles the one now under consideration so far as the' point in discussion is concerned. There was a statute which gave to a charitable institution a charter, and declared by it that the property of said corporation shall be exempt from taxation, and tho court, held that as soon as the corporation was organized tho contract became completed, “and its property is not subject to taxation so long as the corporation owns it and applies it to the purpose for which tho charter -was granted.” Here, to encourage the New Orleans, Opelousas, and Great Western Railroad Company to build tho road to the Sabine, or tho Texas line, the State, in precise terms, agreed to exempt its capital stock and other property from taxation for ton years after the completion of said road; but during-this period it was manifestly the intention that the exemption should apply only to the property owned by said corporation.

Second — But, assuming the transferability of the right or privilege in question, the inquiry is, was it conveyed to Charles Morgan by the purchase which he made of the railroad ?

However difficult it may bo to form a satisfactory opinion as to the extent of the franchises of a railroad company that arc liable to pass to a purchaser under tho foreclosure of a mortgage authorized by legislative enactment, on account of the conflicting adjudications of the courts in different States, wo find no difficulty in arriving at tho conclusion that the franchises of a railroad corporation can not be alienated without the consent of tho State which granted them. As all franchises belong exclusively to the State, no one will be permitted to possess and administer any of them without the consent of the State.

When the State covenants and agrees that a certain corporation shall administer certain franchises, tho ordinary judgment creditors of that corporation may seize and sell its property, but not the franchises. They are beyond the reach of an ordinary execution. It is a State prerogative to put the administration of its franchises into such hands as it may choose. And they can not bo transferred to other hands without the consent of the State.

When, in 1853, the State gave to the Now Orleans, Opelousas, and Great Western Railroad Company corporate existence and the franchises necessary to construct and operate a railroad from Algiers to the Sabine, together with a limited exemption from taxation of its capital stock and other property, the State did not consent that these franchises should be transferred to third hands by a sale on execution by the ordinary judgment creditors of said corporation. Therefore the sale of 1870 by the ordinary judgment creditors of said corporation to Charles Morgan of the unfinished division of the New Orleans, Opelousas, and Great Western Railroad extending from Berwick’s Bay to Opelousas, and the division of ninety-eight miles from Opelousas to the Sabine (upon which no-work had ever been done), transferred to the purchaser whatever property the corporation had embraced within those divisions, but the person of the corporation and the franchises which the State had committed to-its hands wore not alienated.

The fact that he had previously bought the first division under^the foreclosure of the mortgage which the corporation was authorized to give, gave to Charles Morgan no greater rights under the adjudication of the ordinary executions than any other purchaser would have acquired.

Section nine of the charter of 1858 authorized the corporation to borrow money, from time to time, as might be required for the construction of said road, and “ to secure said loans by mortgaging the property of the company, in whole or in part, as they shall deem expedient,” but no authority was given to mortgage the franchises of said corporation. The State, however, in 1856 passed a general law declaring that “ any' railroad company established under the laws of this State may borrow, from-time to time, such sums of money as may be required for the construction or repairs of any railroad, and for this purpose may issue bonds, or tboir obligations, secured by mortgage upon the franchises and property of said company.” * * * Until the act of 1856 the franchises of a railroad corporation in this State could not bo mortgaged; otherwise that act would have been unnecessary.

Assuming, for the purpose of argument, that the privilege of exemption from taxation conferred on the Now Orleans, Opelousas, and Groat Western Railroad Company was transferable under the foreclosure oí a mortgage of all its franchises and all its property, pursuant to the provisions of the act of 1S56, the question is, did Charles Morgan acquire this privilege by virtue of the adjudication to him in 1869 of the first /grand division of the railroad under the foreclosure of the mortgage ? /Did he, by that adjudication, succeed to all the franchises and property * of said corporation ? He did not. He only acquired what was embraced in the mortgage, to wit: the first grand division of the railroad, from Algiers to Berwick’s Bay, “ together with the land over which said road is constructed, the equipments, appurtenances, rights, and franchises of the company applicable to this portion of the road.”

Taking the construction most favorable to the State, as we will do in all contracts of this kind, the conclusion is inevitable that the mortgage and alienation of the rights and franchises applicable to this division of the road did not embrace the exemption from taxation which was granted by the charter to the capital stock and other property of said corporation.

. The obligation underlying this right o£ exemption from taxation was an indivisible obligation. And the obligation underlying' ■ the right of exemption of the officers and employees of said corporation from jury duty and from “military duty was also an indivisible obligation. Neither of these can be broken up at the option of the incorporators and divided into as many obligations and rights as they may desire.

I The right of corporate existence can not bo divided up and made ap-Iplicablo to the different divisions of a railroad. Nor can the right to expropriate property be parceled out among the purchasers of the various divisions of a railroad. Several corporations possessing the rights and franchises stated can not spring into existence by the act of a railroad company in mortgaging and selling separate divisions of their road, with the rights and franchises applicable to each division; because this would be the exercise of a prerogative by a creature that belongs exclusively to its creator.

Our conclusion is that Charles Morgan did not, by the adj udication under the foreclosure of the mortgage on the first division of the road with the rights and privileges applicable to it, acquire the privilege of exemption from taxation, assuming that such privilege was acquirable under a mortgage and adjudication of all the franchises and property of the New Orleans, Opelousas, and Great Western Railroad Company, pursuant to the act of 1856. •

Third — But, for the purpose of argument, let us assume that Chas. Morgan, by the adjudication stated, succeeded to all the rights and franchises ■of the corporation, including the right of corporate existence and the privilege of exemption from taxation stated in the charter. In other words, let us assume that by the purchase of all the shares of stock, or otherwise, Charles Morgan stood before the court representing the New Orleans, Opelousas, and Great Western Railroad Company, and the question was, whether said corporation was entitled to claim the exemption from taxation mentioned in the charter, in view of the fact that the railroad has not been completed within the limits of the State, although more than twenty years have passed since the charter was granted, and our conclusion would be, from the evidence in the record, that the right ■of exemption could not bo successfully maintained.

The charge that the State, in assessing the taxes now sought to be collected, has violated the obligation of her contract with the New Orleans, Opelousas, and Great Western Railroad Company, can not be maintained when the second section of the charter is read in the light of the facts disclosed in the record.

The State never agreed to exempt from taxation forever the property of that corporation.

The stipulation in the charter was, that the capital stock and other property of said company “shall he exempt from taxation fa'ten years after the completion of said road ivitlvin the limits of this State.” The •consideration of the grant of this privilege was, of course, the promise ■of the corporation to prosecute to completion the work of building the railroad to the Sabine, or the Texas line. No time was fixed for the completion of the work ; but the understanding doubtless was that it should be completed within the time usually occupied in accomplishing such enterprises.

Now, what has the corporation done toward the completion of the road, ■■and what is the prospect of its completion ? Eighty miles were promptly ■completed, eighty-five miles beyond that have been partially graded, ■and ninety-eight miles of the road remain untouched. This is all that has been accomplished since the charter was granted, in 1853, a period of over twenty years. Besides, there is no prospect of the completion •of the road, no work having been done under the charter beyond Ber-wick’s Bay since 1862, a period of over ten years. Over twenty years have elapsed, and the road has not been half completed. Over ten years have passed, and no't a rod has boon graded or a rail laid or a bridge built, or any work whatever done on the unfinished divisions of the road by the corporation or by Charles Morgan.

In the face of such a palpable abandonment of the enterprise,' and ¡such a flagrant breach of contract, it is with bad grace that the charge is made by the defendant that the State, in making the assessment and demanding the taxes on the property described in this suit, is impairing the obligation of her contract.

■ By whose fault is it that after a period of over twenty years the road has not been half completed ? By whose neglect is it that for over ten .years no work has been done toward completing the unfinished divisions of the road ?

To permit the corporation, by its own derelictions, to prolong the period of exemption from taxation as fixed by the charter, for ten years after ■the completion of the work, to an indefinite period (for there is now no prospect of a completion of the road] would be to allow it to take advantage .of its own wrong. And what the corporation can not do, the defendant, claiming under it, can not accomplish.

How can he claim the exemption from taxation for the property he ■¡acquired when it was conditioned upon the completion of the road, and that enterprise has been abandoned for years ? Will a party who has wholly failed to give or perform the consideration of a contract be permitted to hold the opposite party to the obligation contracted as the equivalent for such consideration ?

Between ordinary litigants a void contract, or a contract the consideration of which has wholly failed, can not successfully be opposed to the enforcement of a legal right. The State certainly has in its own courts the right which it accords to every litigant, and it can certainly show the invalidity of a contract set up to defeat tho right which it asserts to its revenues. If the principle contended for by the defendant be true, and no taxes can be collected on tho property comprised within the first division of the road, because tho other divisions have not been completed, when will the State ever be able to derive any revenue from the property in question ? By this theory, in order to make a limited exemption from taxation a perpetual one all that is necessary is to lot tho unfinished divisions remain unfinished and the desired result will bo accomplished. Such a proposition can not be maintained. Tho corporation contracting with the State when tho charter was made and accepted can not, by its own laches or its own derelictions, make the obligation of the State more onerous; it can not make a conditional and limited grant of immunity from taxation an absolute and perpetual one.

It is therefore ordered that the judgment herein in favor of plaintiff be affirmed with costs.

Howell, J.,

concurring. I concur in the conclusion and decree in this case.

Lxjdelixg, C. J.,

dissenting. This suit is to collect taxes, alleged to bo duo by the defendant on account of his Louisiana and Texas Railroad. The defendant claims that the capital stock and all property attached to the railway is exempt from all taxation.

Tho New Orleans, Opelousas, and Great Western Railroad Company was chartered by act of the Legislature in April, 1853.

The second section of the charter declares that “ tho capital stock of said company shall bo exempt from taxation, and its works, fixtures, workshops; warehouses, vehicles of transportation, and other appurtenances shall be exempt from taxation for ten years after the completion of said road within the limits of this State.” And act No. 194 of the General Assembly of 1856 provides that “ in addition to the powers conferred by law upon railroad companies, any railroad company established under the laws of this State may borrow, from time to time, such sums of money as may be required for tho construction or repairs of any railroad, and for this purpose may issue bonds or their obligations, secured by mortgage upon the franchises and all the property of said companies,” etc. Acts of 1856.

Section nine of the charter of the company also authorized tho conr-pany to borrow money on bonds, and “ to secure said bonds by mortgaging-the property of the company, in whole or in part, as they shall deem proper.” Acts of 1853, p. 121.

Under these statutes the company executed two thousand bonds oí one thousand dollars each and secured their payment by mortgaging the completed grand division oí the road, extending from New Orleans to Brashear, including depots, lands, equipments, franchises, etc.

After the war this mortgage was foreclosed, and Charles Morgan bought the railroad with its franchises from New Orleans to Brashear, that is, the property covered by the mortgage. Subsequently, he purchased the other portions of the road to the State line, which was partially graded, with the franchises, etc. Thus he became the owner of the entire road, with all the rights' and franchises of the original company.

I am at a loss to imagine why the property is not exempt from taxation. The Legislature had unquestionably the power to exempt the property from taxation, and it did exempt it, and it authorized the franchises to be mortgaged and sold. Morgan acquired at public sale all the property and franchises of the company. Is not the exemption from taxation a franchise property ? At this day this is not an open question in this country. 7 Cranch. 165; 1 Black. 536; 8-Wall. 437; 13 Wall. 264, 269; 16 Wall. 244; 18 Wall. 392; 20 Wall. 36; 21 Wall. 492; 11 Ala. 437; 28 Ala. 321; 4 Met. 200; 30 Vermont 182; 70 Penn. 355; 17 Conn. 40; Redfield on Railway, 477, 480.

By the textual provisions of the Code, not only corporeal objects may be sold, “ but also incorporeal things, such as a debt, an inheritance, a servitude, or any other rights.” C. C. 2449.

Franchises, therefore, are incorporeal hereditaments, known as a species of property, as well as any estate in lands. ' Bouvier says: “A franchise is a certain privilege conferred by grant from the government.” Worcester defines it to be “ a certain privilege or exemption bestowed by grant from the government and vested in individuals — immunity.”

Had the franchise been forfeited ? I think not. There is no limit to the grant, except that it should cease to exist after ten years after the completion of the road to the State line. The road is not yet completed. It is said, however, that the defendant is not trying to complete the road. Be that as it may, no steps have as yet been taken to forfeit the grant, and, in my opinion, it can not be done in this suit.

I therefore dissent from the opinion of the majority of my associate justices.

Rehearing refused.


source: Caselaw Access Project

author: MORGAN, J.

license: Public Domain

text:
    No. 6213.
    Mrs. Mason Pilcher vs. Walter Pugh and Louis Schwartz.
    Plaintiff, a married woman separate in property from her husband, brings this suit claiming' title to a certain piece oí property seized and sold under execution. She sets up the mortgage under which it was sold, but she says that the debt contracted and the mortgage executed by her were null and void and in no manner binding on her. The pretensions ol plaintiff are not well founded.
    The application made by plaintiff to 'the district judge to authorize her to borrow money was made in conformity with tho requirements of the law.
    Tho judge’s certificate shows that tho formalities required by the law, as to her having boon examined separate and apart from her husband, are in due form. Tho act of mortgage was duly and properly executed.
    The proceedings, as they appear of record, would show to any one interested therein, that the plaintiff was authorized both by thefdistrict judge and her husband to contract the obligations and grant the mortgage which wore executed.
    Tho holder of the mortgage notes, as aforesaid given by her, was authorized to enforce their payment ac maturity, and the proceedings under which this enforcement took place wore regular and legal. The sale made thereunder was in due-form and convoyed title to the property sold.
    Tho plaintiff can not, in tho absence of any allegation or proof of fraud as against tho defendants, sot up tho falsity oi her own allegations in the petition which she presented to the judge to be authorized to contract the debt which has resulted in the sale of her property, or to establish, as against these defendants, that the certificate of the judge upon her application was false, or to show that the money which she borrowed was not used for her own benefit.
    Ail which was necessary for tho holder of tho obligations to know under such circumstances was, that the requirements of tho law hayo been complied with. This has been done.
    APPEAL from tho Fourth District Court, parish of Orleans. Lynch, J-

      George L. Bright and David N. Barrow, for plaintiff and appellant.

      Senvmes & Mott and Johnson & Denis, for Walter Pugh, defendant and appellant.

      Buck & Dlnkelspiel & Bravghn, for Louis Schwartz, defendant and appellant.
   MORGAN, J.

On tho tenth of April, 1871, Mrs. Pilcher, the plaintiff,, who was then, as she alleged, separate in property from her husband by judgment of a competent court, presented a petition to tho judge of the Sixth District Court of Now Orleans, in which she represented that she had contracted for the purchase of a sugar plantation in tho parish of St. Mary, and that, for the purpose of making a payment on. tho same, and for the uso and benefit thereof, and for her individual use,, benefit, and necessities, and not for the use, benefit, or advantage, in whole or in part, of her husband, she desired to be authorized to borrow tho sum of ton thousand dollars, and to secure the loan which she proposed to negotiate on a certain parcel of land, with all the buildings and improvements thereon, the same being her separate property, being the square bounded by Levee, Tchoupitoulas, Arabella, and Joseph streets, in the Sixth District of New Orleans.

Upon this petition the district judge certified that he had examined tho petitioner separate and apart from lior husband touching the objects. for which the money mentioned in her petition was sought to be borro'wed* and the notes and mortgage to be executed, and being satisfied that the-allegations of the petition were true, and that the notes and mortgage-were to be used solely for the separate advantage and use of the petitioner and for the benefit of her separate property, and intended in noway to pay her husband’s debts or for his benefit or advantage, or for the benefit of his separate estate, or of the community between herself and her husband, if any existed, authorized her to borrow the said sum of ten thousand dollars, and to execute the notes and mortgage prayed for before any notary public in the State of Louisiana.

Thereupon, on the eleventh of April, 1871, the plaintiff went before Thoo. Guyol, a notary public of this city, and there madé her notes for ten thousand dollars, payable eleven and twelve months after date, and executed a mortgage upon the property above described to secure their payment.

The act recites that “she is duly assisted and authorized by her husband, and, moreover, empowered to act in the premises by the judge of the Sixth District Court for the parish of Orleans, whose certificate to that effect, under date of the tenth day of the present month, is hereunto annexed.”

Walter Pugh became the owner of these notes. They were not paid at maturity. He caused executory process to issue thereon. The property mortgaged was seized, due notice thereof was given to the mortgagee, no objections wore made to the proceedings, and it was sold by the sheriff after the requirements of the law had been complied with. At the sheriff’s sale Louis Schwartz became the purchaser.

Plaintiff brings this suit claiming title to the property above described. She sets up the mortgage under which it was sold, but she says that the debt contracted and the mortgage executed by her were null and void and in no manner binding upon her because —

First — The debt for which the notes wore given and the mortgage executed, was not her debt, but was the debt of her husband, who received and used the money obtained on them to pay his debts, and that the mortgage was executed solely to secure the debt of her husband; and

Second — That she was never legally authorized to execute the mortgage; that the certificate of the judge recited therein, in so far as it states that she appeared in person before'the judge and was examined by him, is false.

We find that the application made by the plaintiff to the district judge to authorize her to borrow-money was made in conformity with the requirements of the law; that his certificate shows that the formalities required by the law as to her having been examined separate and apart from her husband arc in due form; that the act of mortgage was duly and properly executed; that these proceedings, as they appear oí record, would show to any one interested therein that the plaintiff was authorized both by the district judge and her husband to contract the obligations and grant the mortgage therein executed; that the holder oí these notes, so as aforesaid given by her, was authorized to enforce their payment at maturity; that the proceedings unde]’ which this enforcement took place were regular and legal; that the sale made thereunder was in duo form and conveyed title to the property sold; and that the plaintiff can not, in the absence of any allegation or proof of fraud as against the defendants, set up the falsity of her own allegations in the petition which she presented to the judge to bo authorized to contract the debt which has resulted in the sale of her property, or to establish, as against these defendants, that the certificate of the judge upon her application was false, or to show that the money which she borrowed was not used for her own benefit. All, in our opinion, which the holder of the note under such circumstances had to know is that the requirements of the law have been complied with. And in this case wo think they were.

It is therefore ordered that the judgment of the district court be affirmed with costs.

Rehearing refused.


author: Wyly, J.

text:
    No. 5395.
    New Orleans Savings Institution vs. P. W. Leslie. On Rule to cancel and erase Mortgages for Taxes of City of New Orleans and State.
    Registry is necessary to proservo the privilege of taxes. Subsequent registry can not flx an incumbrance which did not exist as to third persons when thoi r rights wore acquired. It is well settled that in this State registry is essential to give effect, as to third persons, to all mortgages and privileges.
    APPEAL from the Superior District Court, parish of Orleans. Ilaw-Idns, J.

      E. J. Ellin and Clarice, Bayne & Bennhaw, for plaintiffs in rule and appellants.

      II. C. Dibble, Assistant Attorney General, for the State, defendant and appellee.

      Samuel P. Plana, Assistant City Attorney, for the •city of New Orleans, defendant and appellee.

      Ilornor & Benedict, for the recorder of mortgages, defendant and appellee, and for Civil Sheriff ■Harper, defendant and appellee.
   Wyly, J.

P. W. Leslie executed a special mortgage in favor of L. F. O-ínóres, on certain property described in this ease, to secure a note for three thousand dollars. This mortgage was recorded on the twenty-first of June, 1871.

Plaintiff acquired the note and caused the sale, by executory process, of the mortgaged property. Plaintiff thou took this rule to cause subsequent mortgages and incumbrances to be erased, Lhc proceeds of the sale being only sufficient to pay the amount of this mortgage.

In this court the question is, whether the city of-New Orleans has a privilege superior to the mortgage in question for the taxes of 1868 and 1869, which wore not recorded until 1873, two years after the mortgage in question was granted ? The precise question was before this court in the case of John I. Adams & Co. vs. Samuel Wakefield, tax collector, 26 An. 592, and it was held that registry was necessary to preserve the privilege for taxes, and that subsequent registry could not fix an incum-brance which did not exist as to third persons when plaintiffs’ rights were acquired. We adhere to the ruling. Constitution, article 123; act No. 42 of the acts of 1871, sections sixty-six and sixty-seven; act No. 95 of 1869; 22 An. 278; 23 An. 270, 694, 695; 24 An. 25; 25 An. 232; 26 An. 80, 350, 351. It is well settled that in this State registry is essential to give effect as to third persons to all mortgages and privileges.

It is therefore ordered that the judgment appealed from, discharging the rule, be annulled, and that the said rule be made absolute, requiring the recorder to erase the privilege of the city for taxes of 1868 and 1869 on the property in question, and that the city of New Orleans pay costs in both courts.

Rehearing refused.


author: Wyly, J. MORGAN, J.,

text:
    No. 6272.
    City of New Orleans vs. St. Charles-Street Railroad Company.
    The sole question in this case is whether, under an ordinance adopted November 15, 1805, “ for the sale ot the right of way on Ht. Charles street and other streets in the city of New Orleans,” and under a contract passed in accordance with said ordinance, the city is bound to exempt the property owned by defendant from taxation. The answer must be in the negative. The city had no authority to exempt property from taxation. It had no power to defeat the command of its creator, the General Assembly, requiring it to levy annually " an equal and uniform tax upon all real and personal property in said city.”
    APPEAL from the District Court, parish of Orleans. Hawkins, J.

      Samuel P. Blanc, Assistant City Attorney, for plaintiff and appellant.

      Breaux, Fenner &• Hall, for defendant and appellee.
   Wyly, J.

In defense to the demand for city taxes for the year 1875 defendant “ pleads the general denial, and further, specially answering, says that the property upon which the tax herein is claimed is exempt from taxation by the city of Now Orleans under the terms of the contract between defendant and .said city.” The taxes are upon certain real estate owned by the defendant and used as depots for its street cars.

Defendant acquired the contract from Nicholson & Co., who contracted for the privilege of running street cars with the mayor of New Orleans, under an ordinance adopted on the eleventh of November, 1865, “for tho sale of tho right of way to establish a railroad on St. Charles and other streets in the city of New Orleans.” This ordinance provides for the sale of the right of way for a period of twenty years, and “ on tho expiration of tho lease, the road, rolling-stock, equipments, depots, and fixtures to be taken by tho city at an appraised valuation.” * * * “ That tho said Nicholson & Co. shall pay nine sixteenths of one por cent for each passenger carried as a bonus for the privilege given.” * * * Also, “ that for and in consideration of the bonus aforesaid, the contractors shall bo exempt from all taxation upon the value of tho track, rolling-stock, equipments, and depots.”

The theory of the defense is that the bonus stipulated in tho ordinance and contract is a substitute for city taxes, or a commutation of taxes.

To this the answer is, the municipal corporation can only exorcise powers delegated to it by the State; and in the ease at bar the power to commute taxes was not given to the city of Now Orleans, and all parties dealing with the city are charged with notice of the extent of the powers it possesses. So far from granting power to commute taxes, the charter of 1856, in force when the ordinance in question wTas adopted, declares that “all real and personal property within the city of New Orleans, whether owned by individuals or corporations, shall, for tho purposes of this act, be liable to taxation.” * * * Also, that the city shall levy annually “ an equal and uniform tax upon all property real and personal in said city.” No act or contract of'the city of New Orleans could defeat the expression of legislative will contained in the clauses of the charter quoted.

What effect the enforcement or collection of taxes by the city may have on the contract made with Nicholson & Go., now owned by defendant, or whether it will impair its validity or not, is a question not before the court.

As the defendant fails to show it paid tho bonus for 1875, tho question is not presented whether the city is entitled to' the taxes of 1875, and also to keep the bonus received for that year.

The sole question is, is the city of New Orleans bound by the ordinance and contract in question to exempt the property owned by defendant from taxation ? We say no. The city had no authority to exempt property from taxation. It had no power to defeat tho commands of its creator, the General Assembly, requiring it to levy annually “ an equal and uniform tax upon all real and personal property in said city

It is therefore ordered that the judgment herein in favor of defendant be annulled, and it is decreed that the city of New Orleans recover of defendant three hundred and twenty dollars for city taxes for 1875, with privilege on the property described in this case, and interest from judicial demand as allowed by law. It is further ordered that defendant pay costs of both courts. '

MORGAN, J.,

di&ientuHj. The agreement between the city and the railroad company was that in consideration of the company accounting to-the city a bonus of nine sixteenths of one per cent for each and every passenger carried the company was to be exempted from all city taxation upon the value of the track, rolling-stock, equipments, and depots. The city brings suit to recover taxes on the company’s real estate, which, as I understand it, comprises its depots. I think there is a contract between the city and the company which prohibits this, and I do not think that the city should be permitted to violate it. If the company has paid its bonus, and is now compelled to pay a tax, it will have to pay two taxes. One, I think, is enough.

I think this case is governed by the case of the Louisiana State Lottery Company vs. the City, 24 An. 86, and that case stands on authority which, to my mind, is entirely satisfactory.

I think the judgment of the district court should bo affirmed.

I therefore dissent.

Rehearing refused.


author: Taliaferro, J.

text:
    No. 6005.
    Succession of John Youenes.
    The opponent contends that the general expenses o£ administration should be borne ratably by all the property, whereas they were all place,d upon the proceeds o£ sale of one piece of property mortgaged to opponent. But it is shown by the record that said piece o£ property was the only real estate o£ the succession that was sold. The other real estate was not sold for the reason that there was no bid for it. The succession is insolvent.
    APPEAL from the Second District Court, parish of Orleans. T'mot,. J.

      T. II. Kennedy, for opponent and appellant.

      IS. Bermudez and A. J. VUIeré, for administrator and appellee.
   Taliaferro, J.

The administratrix of the succession having filed her final account of administration and her tableau of distribution, an opposition thereto was filed by a mortgage creditor of the estate for over eight thousand dollars. The opponent displays the various grounds of his opposition under some ten or eleven heads or divisions. The judge a quo in his reasons for tho judgment he rendered examined these separate divisions óf the opposition seriatim, and, after reducing the fees of the notary from one hundred dollars to fifty dollars, and the appraiser’s fees from forty-eight dollars to eight dollars, and dismissing the claim of Baquié, overruled tho opposition and homologated the account and tableau. From this judgment the opponent appealed.

Tho opponent in his amended opposition contends that tho general expenses of administration should be borne ratably by all the property, whereas they were all placed upon tho proceeds of sale of tho St. Ann-street property mortgaged to Donly, the opponent. But it is shown by the record that the St. Aim-street property was the only real estate of the succession that was sold. The other real estate was not sold, for the reason that there was no bid for it. The estate was utterly insolvent. The opponent purchased the St. Ann-street property, on which lie held a mortgage, and in compliance with the terms of sale paid one third of the price in cash and executed two notes for the other two thirds. The taxes on all the property amounted to about twenty-five hundred dollars. In order to raise tho money to pay tho taxes, which was necessary to be done before title could bo made, the administratrix was compelled to obtain an’ order of court authorizing her to have one of the notes'of Donly discounted, tho proceeds of which together with tho cash proceeds of tho sale of the mortgaged property barely sufficed to pay the taxes and general privileges. Tho attorney’s fees, five hundred dollars, and the physician’s bill, for the same amount, were strongly opposed, especially the latter. It is shown that the services of the attorney were more than the ordinary routine services of opening and conducting the settlement of a succession of that amount. The services of the physician, too, during the last illness wore shown to be worth the sum charged.

After a review of the opposition to the account and tableau of the ad-ministratrix and the grounds stated by the judge a quo for his decree, we find nothing in that decree to justify an alteration of it.

Judgment affirmed.


author: "Wyly, J". MorgaN, J., Moruax, J. Wyly, J.,

text:
    No. 5755.
    Randell Hunt vs. James E. Zuntz.
    Tho appeal referred to in article 3130 oí tho Revised Code is an appeal from the judgment or decision oí arbitrators to the court of original jurisdiction. It lias no application to the appellate jurisdiction of this court. The article cited in no manner modifies tho jurisdiction oí this court as fixed in article seventy-íbur oí the constitution and also-in the Code of Practice.
    Tho case at bar is a suit brought by plaintiff on a contract and the award of arbitrators thereon. Tho court below has decided that the decision was properly made, and that tho deiendant should pay tho amount awarded and also tho further sum of ten thousand dollars, liquidated damages, for failing to comply with the arbitration within tho timo stipulated. "Whether an amount has boon properly awarded, and whether defendant is guilty of non-compliance with thoaward, and incurred tho penalty stipulated, aro questions passed on in the court a qua, and there is no law forbidding tho review by this court of tho judgment of said court. Defendant, who complains that he is aggrieved, has tho constitutional right of appeal, however indifferent his defense may be on the merits. Tho motion to dismiss can not prevail.
    There is nothing in tho constitution or laws which prohibits parties from submitting their differences to arbitration; nor is thoro any authority for saying that parties can not bind themselves in any penalty to abide by tho dooision of arbitrators selected by themselves,
    The objection that the defendant was not given a proper opportunity to be heard before tho umpire is n ot well founded. On tho contrary, it is shown that he was notified when and whero the umpire was to commence his investigations, and that he did not appear before him at tho timo and place designated, either in person or by counsel.
    The article 3108 of tho Codo recognizes the rights of parties to contract that thoy will bo held in a penalty in case thoy do not abide by the award of parties of their own selection, or selected under their authority, to whom they have agreed to submit their differences.
    If they could not affix a penalty as tho result of thoir non-compliance, the article of the Code just -quoted would be meaningless. If, having affixed a penalty, it; should he hold that the award and penalty can not both bo exacted, tho rosult might lead to an absurdity.
    Article 2123 of the Code, relied on hy defendant, is rather conclusive against him than otherwise. He is bound for the amount of the penalty claimed of Mm by reason of the decision of the umpire, to which ho promised to submit, and be-. cause he agreed to pay said penalty unless ho complied with his covenant.
    APPEAL from the Sixth District Court, parish oí Orleans. Saucier, J.

      Bcindell Hunt, Clarice, Bayne & Renahaw, D. S. Bryon, and Robert G. Duíju >, for plaintiff and appellee.

      A. & W. Voot'Mes, for defendant and appellant.
   On Motion to Dismiss.

"Wyly, J".

Plaintiff and defendant being unable to agree as to the amount due the former by the latter for professional services in a certain litigation, submitted the matter to arbitration, indicating in the contract the names of the arbitrators and the name of an umpire in case his services should be required. They also bound themselves to. abide by the judgment of the arbitrators, and to pay the amount thereof within five days after the decision; and thoy further bound themselves “ to each other in the sum of ten thousand dollars liquidated damages, to be paid in case of non-compliance within the time named.” The arbitrators failing to agree, the matter was referred to tho umpire, who fixe.d the amount to be paid plaintiff by defendant at fifty-seven hundred dollars. Defendant having failed, after due notice for more than five days, to comply with the award, the plaintiff brought this suit to recover the amount of the award and also the ten thousand dollars liquidated damages stipulated to be paid in case of failure for more than five days after a decision to comply with the arbitration.

The court gave judgment as prayed for, and defendant has appealed.

• Plaintiff now moves to dismiss this appeal on the ground that defendant has been condemned to pay the amount awarded by arbitrators and ■ a penalty for failing to comply therewith and no appeal lies in a case of this kind. In support of the motion article 3130 of the Revised Code is •cir.ed, which reads as follows: “He who is not satisfied with the award may appeal from it, though the parties have renounced such appeal by the submission; but the appellant, before being heard on his appeal, ought to pay the penalty stipulated in the submission, if any has been stipulated.” * * * The appeal here referred to is. an appeal from the judgment or decision of arbitrators to the court. It has no application to the appellate jurisdiction of this court. The article cited in no manner modifies the jurisdiction of this court as fixed in article seventy-four of ■the constitution and also in the Code of Practice.

The case at bar is a suit brought by plaintiff on a contract and the award of arbitrators thereon. The court below lias decided that the arbitration was properly made and that the defendant should pay the amount awarded, and also the further sum of ten thousand dollars liquidated damages, for failing to comply with the arbitration within the time stipulated. Whether an amount has been properly awarded, and whether defendant is guilty of non-compliance with the award, and incurred the penalty stipulated, are questions that have been passed on by the court below, and there is no law forbidding the review by this court of the judgment of the court below. Defendant, who complains that he is aggrieved, has the constitutional right of appeal, however indifferent his defense may be on the merits.

The motion is denied.

MorgaN, J.,

dissenting. A submission is a covenant by which persons who have a lawsuit or difference with one another name arbitrators to decide the matter and bind themselves reciprocally to perform what shall be arbitrated. C. C. 3099. Parties may submit either all their differences or only some of them in particular, and likewise they may submit to arbitration a lawsuit already instituted or only in contemplation, and generally every thing which they are concerned in or which they may dispose of. C. C. 3102.

It is usual to undergo a penalty of a certain sum of money in the submission, which the person vrho shall contravene the award, or bring appeal therefrom, shall be bound to pay to the other who is willing to abide by it; but this covenant is not essential, and the submission may subsist without the penalty. C. C. 5100.

The award, in order to be put in execution, ought to be approved by the judge, but this formality is only intended to invest the award ivith a sufficient authority to insure its execution, and not to submit to the judge the examination of its merits, except an appeal is brought before him. C. C. 3129.

He who is not satisfied with the award may appeal from it, though the parties had renounced such appeal by the submission; but the appellant, before being heard on his appeal, ought to pay the penalty stipulated in ■the submission, if any has been stipulated. O. 0. 3130.

The foregoing are literal extracts from the Civil Code.

Plaintiff claimed from the defendant a sum of money. They differed with one another as to the indebtedness. They agreed to submit their-differences to arbitrators. They stipulated a penalty of ten-thousand dollars in case either party refused to abide by the award which might be made. The arbitrators fixed the sum due to plaintiff. Zuntz refused to comply with their award. To put the award in execution Hunt sought the approval of the judge. He sought it in the only way he could obtain it, that is, by suit. Suit was the only way by which he could execute it, for the mere approval of the j udge would have amounted to nothing unless his approval had the force of a judgment which could be executed. The judge approved of the award by rendering judgment in Hunt’s favor. Zuntz appeals. He is entitled to his appeal under the law cited, but there is a condition precedent to this right; this is, that he should pay the penalty stipulated. This he has not done. I do not think that he should be heard until he has complied with his self-imposed contract. In my opinion, his appeal should be dismissed.

Ox THE MERITS.

Moruax, J.

The relation of counsel and client existed between the plaintiff and defendant. When this relation ceased, a disagreement arose between them as to the compensation which the one was to receive and. the other was to pay. They could come to no satisfactory arrangement, and a lawsuit was threatened. They agreed to submit their differences to arbitrators, who were to bo amicable compounders, and they reciprocally bound themselves to abide by the award which the arbitrators might make. In ease of disagreement between the arbitrators an umpire was to be chosen. The decision of the umpire was to be final.

The power to make such a covenant is expressly recognized by the Code, articles 3099, 3102.

The covenant was as follows:

“ It is agreed by and between Eandell Hunt and James E. Zuntz that this claim (for professional services and advice in the cases of James E. Zuntz vs. W. H. Stackhouse, and of W. H. Stackhouse vs. J. E. Zuntz,) be submitted to Judge J. H. ilsley and Hon. Thomas J. Semmes, as arbitrators and as amicable compounders, with power to them, in case of disagreement, to select a now person as umpire, whoso decision shall bo final.
“ The parties hereto bind themselves to abide by such judgment, and to pay the amount of the same within five,days after judgment is rendered or decision made.
“ And' they mutually bind themselves to each other in the sum of ten thousand dollars liquidated damages, to bo paid in case of non-compliance within tho time named.
“ It is agreed and understood that the matters are submitted to thó above-named arbitrators upon the records and proceedings in tho cases, and such other testimony as tho parties may offer within-days from this date, tho arbitrators and amicable compounders to have full authority to reject any improper testimony, and their decision upon the admission or rejection of the same to be final.
“In case tho parties above named (the arbitrators) can not agree, Henry 0. Miller is selected as umpire, and his decision shall be final under tho terms of this agreement and submission and subject to all the conditions therein. He is made umpire and amicable compounder.”

Messrs. Ilsley and Semmes could not agree, and the matter was referred to Mr. Miller. His award was that Zuntz should pay five thousand seven hundred dollars.

This award tho defendant refused to comply with. Plaintiff seeks to compel him to do so, and he asks also for the penalty which, by the contract, the defendant agreed to pay in case of failure to comply with tho award.

One defense is that the law makes the courts of the State alone judges in such matters^

There is nothing which we can discover in the constitution or laws which prohibits parties from submitting their differences to arbitrators, nor is there airy authority for saying that parties can not bind themselves in any penalty to abide by tho decision of arbitrators selected by themselves. A second objection is that the defendant was not given a proper opportunity to be heard before the umpire. But this is not substantiated by the record. On the contrary, it is shown that he was notified when and where the umpire was to commence his investigations, and that he did not appear before him at the time and place designated, either in person or by counsel.

A third objection is that plaintiff can not exact the award and the penalty attached to the non-compliance therewith. Article 3106 says that “it is usual to undergo á penalty of a certain sum of money in the submission, which the person who shall contravene the award, or bring appeal therefrom, shall be bound to pay to the other who is willing to abide by it.” • • ■

This article, therefore, recognizes the right of parties to contract that they will be held in a penalty in case they do not abide by the award of parties of their own selection, or selected under their authority, to whom they have agreed to submit their differences. If they could not affix a penalty as the result of their non-compliance, the article of the Code just quoted would be meaningless. If, having affixed a penalty, it should be held that the penalty alone can be exacted, the result might lead to an absurdity. For instance, if the penalty was fixed at one hundred dollars and the award was five thousand dollars, if the party decided against refused to pay the award, the penalty only could be exacted. The penalty, therefore, would be an inducement as well as a reward, instead of a punishment, for violating an agreement legally entered into. This would be reversing the order of things. The first object of the penalty was to insure the faithful abiding by the award, and the large amount stipulated was only to make compliance more certain. ■

But the defendant relies upon article 2125 of the Code, which says: “ The penal clause is the compensation for the damages which the creditor sustains by the non-execution of the principal obligation. He can not demand the principal and the penalty together, unless the latter be stipulated for the mere delay.”

If we admit that the case before us is to be governed by the chapter of the Code which treats of obligations with penal clauses, instead of the subsequent title, which-treats of arbitration, which it is not necessary for us to decide, still the article relied on would be conclusive against the defendant, for here it was- expressly agreed that the penalty stipulated should be due unless the award was paid within five days from its rendition. Plaintiff submitted his claim to arbitration. He bound himself to abide by the award which might be made. The defendant bound himself in the same manner. When the award was made plaintiff submitted to it. The defendant refused compliance. The penalty which ho imposed upon himself then became due. He is bound for the amount of the award by reason of the decision of the umpire. He is bound for the penalty because he agreed to pay it unless he did comply. When we affirm the judgment against him we only compel him to do what he voluntarily agreed to do.

Judgment affirmed.

Wyly, J.,

dissenting. Kandell Hunt having a claim against James E. Zuntz for professional services, agreed with him to submit the matter to arbitration; and they bound themselves to each other in the sum of ten thousand dollars to abide by the award, and pay the amount thereof within five days after the decision. -

The submission is in the following words: “Randell Hunt claims from James E. Zuntz, as now due, ten thousand dollars for professional services and advice in the cases of James E. Zuntz vs. W. & H. Stackhouse, and of W. & H. Stackhouse vs. James E. Zuntz. It is agreed by and between Randell Hunt and James E. Zuntz that this claim shall be submitted to Judge J. H. Ilsley and Hon. Thomas J. Semmes, as arbitrators and amicable compounders, with power to them in case of disagreement to select a new person as umpire, whose decision shall be final. The parties hereto bind themselves to abide by such judgment and to pay the amount of the same within five days after judgment is rendered Or decision made, and they mutually bind themselves to each other in the sum of ten thousand dollars liquidated damages, to be paid in case of non-compliance within the time named. It is agreed and understood that the matters at issue are submitted to the above-named arbitrators upon the records and proceedings in these cases, and such other testimony as the parties may offer within-days from this date. The •arbitrators and amicable compounders to have full authority to reject any illegal or improper testimony, and their decision as to the admission <or rejection of the same to be final.

“ In case the parties above named can not agree, Henry C. Miller, Esq., is selected as umpire, and his decision shall be final under the terms of this agreement and submission. And, subject to the conditions therein, he is made umpire and amicable compounder. Affidavits of arbitrators and umpire dispensed with.”

The arbitrators and amicable compounders, after examining the matter, were unable to agree, and the case was referred to Henry 0. Miller, Umpire, who rendered an award of five thousand seven hundred dollars in favor of Randell Hunt. Notice of this award was served upon Zuntz. on the fifteenth of July, 1874. He failed to comply with it, and on the fifth of November this suit was brought to recover the amount of the award, and also the ton thousand dollars, liquidated damages, stipulated in the contract.

Defendant excepted to the suit, and in his answer pleaded the general denial and reiterated the allegations contained in his exception. The allegations of the exception are:

First — The petition does not disclose a cause of action.

Second — The same does not allege that the amicable compounders were sworn as required by law.

Third — The same does not allege a trial before the amicable com-pounders or before the umpire; nor that a time and place were set for trial; nor that notice was given to the parties or their counsel to attend the trial.

These objections are fully answered in the written opinion of the judge a quo. The amicable compounders, by agreement, were dispensed from .taking an oath. The umpire took an oath. He gave proper notice to defendant to attend the trial before him, but he did not appear. If defendant had cause to complain that he was not notified to appear before the amicable compounders when they were examining the matter, he -should have made'his objection at the time the case was taken up by the umpire. It would have been a good cause to object to the action of the umpire; the defendant made no objection, however; and if the umpire had made a decision favorable to him we apprehend no objection would now be made to any of the proceedings.

The learned counsel for defendant urges in his brief that the articles of the Revised Code permitting parties to submit their differences to arbitrators and amicable compounders, and making their award final, are repugnant to that provision of the constitution of 1868 vesting the judicial power of the State in the Supreme Court, in district courts, in parish courts, and in justices of the peace. I see no force in this objection. Refore the finding of arbitrators can have the effect of a judgment it must be submitted to the court, and the decree of the court thereon is the judgment.

The important question in the case is: Can the plaintiff recover judgment both for the amount of the award and the amount of the penalty ? “A submission-is-a covenant by which persons who have a lawsuit or difference with one another, name arbitrators to decide the matter and bind themselves reciprocally to perform what shall be arbitrated.” Revised Code 3099. “ It is usual to undergo a penalty of a certain sum of money in the submission, which the person who shall contravene the award, or bring an appeal therefrom, shall be bound to pay the other who is willing to abide by it; but this covenant is not essential, and the •submission may subsist without the-penalty.” Revised Code 3106.

“ The award in order to be put in execution ought to be approved by •the judge; but this formality is only intended to invest the award with a sufficient authority to insure its execution, and pot to submit to the ..judge the examination of its merits, except in case an appeal is brought .before him.” Revised Code 3129.

“ He who is not satisfied with the award may appeal from it, though the parties had renounced such appeal-by the submission; but the appellant before being heard.on his appeal ought to pay the penalty stipulated in the submission, if any-has been stipulated; and this penalty shall •ever be due, though the appellant afterward renounces his appeal; but if he succeeds to have the award reversed, either in whole or in part, the court who shall pronounce on the appeal shall order the repayment of the penalty; but if the award is confirmed the penalty which has been paid shall operate no diminution of' the amount of the award.” Revised Code, 3130.

In the case at bar the'defendant has not appealed from the award. He could not do so without paying the penalty. Therefore the correctness' of the award on its merits is not open for revision.

But defendant, however, has contravened the award; and by article /8106, above quoted, he is bound to pay the amount of the penalty to 'plaintiff who is willing to abide by it. That he is bound to pay plaintiff the sum of money stipulated as the penalty for having contravened the ■award there can be' no doubt, if article 3106 of the Revised Code has any meaning, and if parties are bound by their contracts. But the question is, is defendant bound also for the amount of the award which he contravened by refusing to pay ? I think not. The law does not declare the contravention of an award, like an unsuccessful appeal therefrom, shall subject the complainant to the payment both of the penalty and the award.

“ A penal obligation necessarily supposes two distinct contracts ; one to do or to give that which is the principal object of the contract, the other to give or do something, if the principal object of the agreement be not carried into effect.” Revised Code 2118.

“The creditor, instead of exacting the penalty stipulated from the debtor who is in default, may sue for the execution of the principal obligation.” Revised Code 2124.

“ The penal clause is the compensation for the damages which the creditor sustains by the non-execution of the principal obligation. He can not demand the principal and the penalty together, unless the latter he stipulated for the mere delay.” Revised Code 2125.

Was the penalty in the case at bar stipulated as damages for tliemere delay in executing the award ?

I fin’d'no such stipulation in the contract. It is true the parties were bound to comply with the award and pay the amount thereof withinfive days from the decision. But there is no express stipulation that the penalty was merely for damages arising from delay in complying with the award. On the contrary, the penalty was the sum of money which the parties mutually bound themselves to each other to pay for failing to abide by and comply with the award within the time specified in the agreement. Article 2125 of the Revised Code says: “ The penal clause is the compensation for the damages which the creditor sustains by the-non-exécutión of the principal obligation.” It is the equivalent for the discharge of the principal obligation; it is adequate compensation for the non-compliance. It would be manifestly unjust to permit plaintiff to-recover ten thousand dollars, the amount he agreed would be adequate-compensation for hon-compliance with the award by Zuntz, and also to recover the amount of the principal obligation; to take both the thing and its equivalent.

When plaintiff recovers judgment for ten thousand dollars he gets all he ever claimed from Zuntz for professional services. Why should he get more ? By the contract of submission he agreed that a penalty of ten thousand dollars would redress the wrong resulting from a default by Zuntz in discharging the principal obligation. Eive days after the award was fixed as the period for making the default. Zuntz contravened the award by not paying the amount thereof within the time stipulated. He then became hable to pay the penalty, the compensation, or the equivalent for the principal obligation. Revised Code 2125. But his non-compliance did not have the effect to make him liable for both the penalty and .the principal obligation. The contract of submission must be read by the light of article 2125 of the Revised Code; indeed, this article must be regarded as a part of the contract. Parties are always presumed to contract with reference to the law. The law permitted them to modify article 2125 by expressly stipulating in the agreement that the penalty ivas merely for delay, and not intended as compensation for damages resulting from the non-execution of the principal obligation, as the law declares. In their convention the parties have not in express terms modified the law, as they might have done; it is a part of the contract, and the court must uphold and enforce it. The parties have fixed the damages at ten'thousand dollars for the non-execution of the principal obligation. When plaintiff recovers this sum he will receive adequate compensation, and the contract of submission will be as fully executed as if Zuntz had paid the principal obligation, the amount awarded by the umpire.

The subject under consideration was very fully discussed by Pothier in his work on Obligations under the title of penal obligations. The learned author says : “ This penalty is stipulated with the intention of indemnifying the creditor for the non-performance of the principal obligation ; it is consequently compensatory of the damages which he suffers from such non-performance. Hence it follows that he ought in this case to ■elect either to claim the execution of the principal obligation or the penalty ; that he ought to be satisfied with one of them ; and that he can not exact both. However, as the penal obligation can not invalidate the principal, if the penalty which the creditor has received for non-performance of the principal obligation is not sufficient indemnification, he may still demand damages resulting from the non-performance of the principal obligation, making an. allowance and deduction for-the penalty which he has already received. But the judge ought not too readily listen to the creditor who pretends that the penalty he has received was not a .sufficient indemnification for the non-performance of the agreement, for the parties having by fixing the penalty themselves regulated the damages that may result from the non-performance of the agreement, the-creditor by demanding greater damages seems to act in opposition to an estimation Which he himself has made, and this ought not to be allowed,, at least unless he has proof at hand that the damage sustained by him exceeds the penalty agreed upon. * * * Our rule that the creditor can not, at the same time, have both the principal and the penalty, is subject to an exception, not only when it is expressly said in the penal clause that if the debtor does not accomplish his obligation the penalty shall be incurred and due without prejudice to the principal obligation, but also whenever it appears that the penalty is stipulated for the reparation of what the fereditor may suffer, not from the absolute nonperformance, but merely from the delay in the- execution; for in this case the creditor who'has suffered the delay may take both the principal and the penalty.” Again, the same learned author in discussing the question whether' a debtor may by discharging part - of his obligation partially avoid the penalty' says: “ But if the creditor voluntarily receives a part of the debt, shall he have a right to the whole of the penalty in default of the payment of the residue? Ulpian decides that, although according-to the subtlety of law, it may happen that in this case the penalty is incurred for the whole, nevertheless it is equitable. that it should only be so in proportion to the part of the principal obligation which remains to be discharged. The true reason of this decision is that which is given by Dumoulin, which we have referred to,-viz.:- that the debt being considered as a promise to compensate for the iron-performance of the principal obligation, the creditor can not have both the one and the other; then, when he has been paid a part of what is due upon the principal obligation, he can ho longer be entitled to receive the penalty in respect to that part; otherwise, he would receive .both, which ought not to be.”

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My conclusion is that the penalty of ten thousand dollars is adequate compensation for the non-performance of the principal obligation by Zuntz. It is the liquidated damages which the parties have stipulated for the non-execution of the contract, and the payment thereof discharges the obligation of defendant as fully as if he had executed the principal obligation. And of this conclusion the .litigants will have no cause to complain, because it merely enforces a contract which they voluntarily-entered into. I therefore dissent in this case..

RehearingVefused.


author: Ludeling, C. J.

text:
    No. 6315.
    State of Louisiana ex. rel. J. Charbonnet vs. George B. Johnson, Auditor.
    Obviously the third amendment of the constitution did not intend to repudiate sub.-, sisting obligations of the State, if the General Assembly failed to provide an annual revenue sufficient to pay them. The effect of such neglect would be that a' subsequent Legislature would, by taxation and appropriations, provide for-their-payment. Thus in the present case, while this court is of opinion that the reía-, tor's pension for the year 1875 alone can be paid out of the appropriation made for that year, still his claim or right to the pensions of former years is not extinguished by the fact that there exists no appropriation out of which they, can now be paid. His relief must be by the Legislature. Had the act of 1875 indicated that pensions for years anterior to 1875 were to be paid out of the appl-o-priatio'ns of that year for that purpose, it would not have been obnoxious to the. third amendment.
    APPEAL from the Superior District Court, parish of Orleans. Lynch,Acting Judge in the place of Hawkins.

      Alfred Shaw, for relator and-appellee.

      A. P. Field, Attorney General, and H. G. Dibble, Assistant Attorney General, for respondent and appellant.
   Ludeling, C. J.

The relator, who alleges that he is a veteran of the war of 1814 and 1815, and entitled to a pension under the laws of this State, prays for a mandamus to compel the Auditor to issue warrants to him for his pensions due from the first of September, 1868, to January, 1873, at one hundred and fifty dollars per annum, and from the first of January, 1873, to the end of 1875, at the rate of two hundred and forty dollars per annum.

The only defense insisted upon in this court is that the appropriations for the years prior to 1875 having been exhausted, only the appropriation for that year remains, and that pensions due for the years preceding 1875 can not. bo paid out of said appropriation, under the third amendment of the constitution. The amendment is as follows : “ The revenue of each, year derived from taxation upon real, personal, and mixed property, and from licenses, shall be devoted solely to the'expenses of the said year for which it shall be raised, excepting any surplus -remains, which shall be directed to sinking the public debt. All appropriations and claims in excess of revenue shall be null and void, and the State shall in no manner provide for their payment.” The evident intention of this provision was to limit the appropriations by the General Assembly to the annual, revenues of the State, which should be applied to said appropriations. And the last sentence of the amendment only declared, what the courts' had already decided, that appropriations, other than those for the current necessary expenses of the State, in excess of the revenues, were-debts, the creation of which, under the constitution, were forbidden. Nixon vs. Graham.

Obviously, the third amendment of the constitution did not intend to¡ repudiate subsisting obligations of the State, if the General Assembly failed to provide an annual revenue sufficient to pay them. The effect of such neglect would be that a subsequent Legislature would by appropriations and taxation provide for their payment. Thus, in the present case, while wo are of opinion that the relator’s pension for the year 1875 alone can be paid out of the appropriation made for that year, still his claim or right to the pensions for 'former ’years is not extinguished by the fact that there exists no appropriation out of which they can now be paid. His relief must be provided for by the Legislature. Had the act of 1875 indicated that pensions for years anterior to 1875 were to be paid out of the appropriation for that purpose of that year, it would not have been obnoxious to the third amendment.

, It is therefore ordered that the judgment of the lower court be amended by reducing the amount for which the Auditor is ordered to warrant to two hundred and forty dollars, and as thus amended that the judgment be affirmed; the appellee to pay costs of this appeal.

Rehearing refused.


text:
    No. 6131.
    City of New Orleans vs. St. Patrick’s Hall Association.
    The evidence shows that the property taxed is not used for church, school, or charitable purposes; therefore the Legislature could not, under the constitution, exempt it from taxation.
    The defendants urge that the rents or revenues-of the property'are appropriated to , charitable uses by the association, which is a charitable association. But those facts do not bring the property within the classes of property which the constitution authorizes the General Assembly to exempt from taxation.
    The property which is occupied for the execution of the charitable purposes of the institution may bo exempted, but other property belonging to the association, which is rented as stores, ball-rooms, or theatres, can not be exempted.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Samuel P. Blanc, Assistant City Attorney, for plaintiff and appellant.

      T. Gilmore & Sons, for .defendant and appellee.
   Ludeling, C. J.

This is a suit to recover the taxes for 1875 assessed on the building known as St. Patrick’s Hall, in New Orleans.

The defense is that the property of said association is exempted from taxes by an act of. the General Assembly passed in 1874; and that by an ordinance of the city of New Orleans the property is exempted from taxation.

The plaintiff alleges that both the act of the General Assembly and the ordinance of the city relied upon by defendant are unconstitutional and void.

The evidence shows that the property taxed is not /¡.¿sed lor church, school, or charitable purposes, therefore the Legislature could not exempt it from taxation. Article 118. The defendants urge that the rents or revenues of the property are apjiropriated to charitable uses by the association, which is a charitable association. But these facts do not.; bring the property within the classes of property which the constitution authorizes the General Assembly to exempt from taxation. The constitution declares: “Taxation shall be equal and-uniform throughout the State. All property shall be taxed in proportion to its value, to be ascertained as directed by law. ' The General Assembly shall have power to exempt from taxation property actually used for church, school, or charitable purposes.” The property which is occupied for the execution of the charitable purposes of the institution may be exempted, but other property belonging to the association which is rented as stores, ballrooms, or theatres can not be exempted. See City of New Orleans vs. the New Orleans Mechanics’ Society, and the City of New Orleans vs. the Congregation of the Dispersed of Judah. 15 An. 390.

It is therefore ordered that the judgment of the lower court bo reversed, and that there be judgment in favor of the plaintiff against the defendant for §1125, with interest and costs according to law.

Rehearing refused.


text:
    No. 6038.
    In the Matter of the Drainage Commissioners of the First Drainage District praying for the Homologation of the Assessment Roll. On Rule to erase Mortgages and Privileges for Taxes.
    The only cuestión to he decided in this case is. whether the privilege and mortgage given by the act entitled “ an act to provide for leveeing, draining, and reclaiming swamp lands in certain portions of New Orleans,” etc., adopted in 1858, is superior to the rights of the State and municipal corporation on a certain piece of property bought by plaintiff in rule. The cuestión must be answered negatively.
    The charter of the city adopted in 1870 declares the privilege in favor of the city for its taxes shall exist “ until fully paid, and shall be paid in preference to all mortgages and incumbrances other than taxes due to the State.” The same rank is given to city taxes in the act of 1872, section eleven, page 126.
    APPEAL from the Superior District Court, parish of Orleans. Haio-kins, J.

      Bice & Whitaker, for plaintiff in rule, appellant.

      S. P. Blanc, Assistant City Attorney, for city of New Orleans, appellee.

      H. C. Dibble, Assistant Attorney General, for State of Louisiana, appellee.

      Hornor & Benedict, for recorder of mortgages, appellee.
   Ludeling, C. J.

The plaintiff, W. J. D'elano, having bought a square of ground between Murat, Olympia, Banks, and Palmyra streets,- at sheriff’s sale, took a rule against the State, the city of New Orleans, the sheriff, and the recorder of mortgages to show cause why the privileges and mortgages for taxes should not be canceled.- He claims that, the property was sold under a judgment for the drainage assessment against the property, which was secured by the first mortgage and priv-, ilege on the property, because the act entitled “ an act to provide for leveeing, draining, and reclaiming swamp lands in certain portions of Now Orleans,” etc., adopted in 1858; declares that “said lien, privilege, and first mortgage shall take precedence over all mortgages, liens,, and privileges whatsoever, whether, tacit, conventional, legal, or judicial,” etc. The only question to be decided is whether the privilege and mortgage given by the said act is superior to the rights of the State and municipal corporation on said property for the taxes due ? For a court of justice to adopt such a conclusion, the law which would justify it would have to be so positive as to leave no possible room for construction. On. the contrary, the charter of the city adopted in 1870 declares the privilege in favor of the city for its taxes shall exist “ until fully paid, and shall be paid in preference to all mortgages and incumbrances -other than taxes due the State.” The same rank is given to city taxes in the act of 1872, page 126, section eleven.

It is therefore ordered that the judgment of the lower court be affirmed with costs of appeal.


author: Ludeling, O. J.

text:
    No. 6210.
    Charles L. Frantz vs. E. Waggaman, Sheriff, et al.
    Tliore being judgment against the plaintiff in injunction alone, and'tliere being a failure to collect the judgment from the plaintiff, execution was issued against liis surety, who now enjoins on the ground that he was not condemned by that judgment. The judgment ordered, adjudged, and decreed that the injunction be dissolved with ten per cent damages, fivo hundred dollars attorney’s foes, and costs of suit.
    From the fact that the judgment creditor in that suit had insisted on having a sum-marytrial of thecase,on the ground thatitwas such an injunction as shouldhave been granted without bond, and the judge a, quo sustained his views, it is fair to suppose that neither the judgment creditor nor the judge intended to condemn a surety on a bond which they said ought not to have been givon. At any rate, the judgment does not condemn the surety, and the injunction was proporly issued.
    APPEAL from the Fifth District Court, parish of Orleans. Cullom, J.

      G. Schmidt and Sambola & Hueros, for plaintiff and appellant.

      Mc-Ehiery, Ellis & Ellis, for Waggaman, sheriff, appellee.

      Max Ebikelsj)iel, for Michael Frank, defendant and-appellee.
   Ludeling, O. J.

This is an appeal,from a judgment dissolving an injunction. It appears that proceedings were taken against Samuel Fas-naeht, on obligations of his, and that he enjoined the execution in said proceedings, giving the plaintiff in this suit as surety on the injunction bond. There was judgment in that suit dissolving the injunction, with. damages against the plaintiff in injunction alone, and having failed to collect the judgment from the plaintiff, Easnacht, execution was issued against Frantz, his surety, who now enjoins on the ground that he was not condemned by that judgment. The judgment “ ordered, adjudged, and decreed that the injunction be dissolved, with ten per cent damages and five hundred dollars attorney’s fees, and costs Of suit.” And, from . the fact that the judgment creditor in that suit had insisted on having a summary trial of the case, on the ground that it was such an in- ■ junction as should have been granted without bond, and the judge a quo sustained his views, it is fair to suppose neither the judgment creditor. nor the judge intended to condemn a surety on a bond which they had said ought not to have been given. At any rate, the judgment does not condemn the surety, and the injunction was properly issued.

It is therefore ordered that the judgment of the lower court be re-. versed, and that the injunction be m,ade perpetual. It is further ordered that the appellees pay costs of appeal.

Rehearing refused.


author: Morgan, J'.

text:
    No. 6284.
    Mrs. Delacroix and Husband vs. Mrs. E. E. Meux.
    It was not necessary that the plaintiff, Mrs. Delacroix, should, have shown how she was separated in property from her husband. It suffices that she was separate in estate.
    The petition is in the name of the husband and wife. This is an authorization from the husband to the wife to bring the suit.'
    Plaintiff may be.temporarily in Prance and still have her legal domicile in the parish of Orleans.
    Defendant prayed for a jury, but she has not made the necessary affidavit to bring herself within the rule required by the law. ■ ■
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      J. L. Tissot and Charles A. Denis, for plaintiff and appellee.

      J. J.. Foley, for defendant and appellant.
   Morgan, J'.

This is a suit on a promissory note drawn by T. O. Meux, deceased, against the defendant, who has been put in possession of his estate.

Defendant excepted —

First — That plaintiff, who claims to be separated in property from her husband, should have averred whether said separation was by contract or judgment, and should have filed an authenticated copy of the act or judgment in separation.

It was not necessary that the plaintiff should have shown how she was separated in property from her husband. It suffices that she was separate in estate.

Second — That she is not authorized to bring this suit.

The petition is in the name of the husband and wife. This is an authorization from the husband to the wife to bring the suit.

Third — -That at the time of bringing this suit plaintiff was not a resident of this city, but, on the contrary, was an absentee, residing in Paris, Prance.

Plaintiff may be temporarily in Prance and still have her legal domicile in the parish of Orleans. According to the defendant’s theory, in order for a citizen of Louisiana who happens to be in Prance to bring a suit in our courts, he would have to come' here. This is not necessary.

Pourth — That plaintiff’s petition sets forth no cause of action.

The suit is on a promissory note, and it seems to us that the holder of a past-due and unpaid promissory note has a very good cause of action against the maker thereof.

On the merits, there is no defense. Defendant prayed for a Jury, but she has not made the necessary affidavit to bring herself within the rule required by law.

Judgment affirmed.

Rehearing refused.


text:
    No. 5888.
    Leon Godchaux vs. Union National Bank. Hibernia National Bank called in Warranty.
    This case is like the one of Peter Helwege vs. Hibernia National Bank, No. 5888, previously reported and is decided on the same grounds.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      Semines & Mott, for plaintiff and appellant.

      Carleton Hunt, for defendant and appellee.

      T. Oilviore & Sons and Finney & Miller, for Hibernia National Bank, called in warranty.
   Wyly, J.

This is a suit for the amount of a certified check raised by the drawer from seventy-one dollars to seventy-one hundred and seventy dollars. It is like the case of Peter Helwege against the Hibernia Bank, just decided.

Plaintiff, who acquired the check in due course of trade for value, deposited the same in the Union Bank for collection. It was' collected through the Clearing-House from the Hibernia Bank on the eighth of July, 1874, and the account of plaintiff in the Union Bank was credited with the amount thereof. On the same day and within a short time after the collection, the forgery was discovered. The Union Bank returned the money to the ■ Hibernia Bank, less seventy-one dollars, the actual amount of the check, with the agreement that it should be held harmless by the Hibernia Bank on account thereof.

When plaintiff sued the Union Bank, it called in warranty the Hibernia Bank. Plaintiff is entitled to judgment against the Union National Bank, and the Union National Bank is entitled to judgment against the Hibernia National Bank.

It is therefore ordered that the judgment herein in favor of defendant be annulled, and that plaintiff recover of defendant seventy one hundred and seventy dollars, less seventy-one dollars, with legal interest thereon from the eighth day of July, 1874, and costs of both courts.

It is further ordered that defendant recover judgment against the Hibernia National Bank, called in warranty, for the same amount defendant is condemned to pay plaintiff, and costs of both courts.

Rehearing refused.