text:
    No. 2891.
    Mechanics’ and Traders’ Bank v. Union Bank.
    As a sovereign, tbe United States is bound by the limitations of the federal constitution, and, of course, it can not appoint a judge to a State court, much less create a State court and appoint the judge to administer it.
    Tbe President, representing the United States in the exercise of its sovereign powers, could not create a court to decide any civil controversy.
    This could only be done by Congress under the limitations of the constitution.
    But, in the exercise of war powers, the United States is not restrained by the limitations which tbe constitution imposes on it as sovereign.
    Its business as a warrior is to conquer, to restore peace and to maintain the government, and. it can use any means necessary to the end, regardless of all restraints, except the law of nations.
    "When the United States captured the city of BTew Orleans in 1862, the civil government, existing under the Confederacy, ceased to have authority. As an incident of war powers, tho President liad the right to establish civil government, to create courts to protect the lives and tbe property of the people.
    The General commanding the military forces of the United States which captured the city, had the right to establish the provisional court called tbe Provost Court, which rendered the judgment against the plaintiff in this case. That court had authority, temporarily, to decide all civil causes.
    The plaintiff, who paid under protest a judgment rendered by a competent court, established by t^e United States in the exercise of its war powers after the capture of Úew Orleans, has no cause of action against its judgment creditor for the money paid in pursuance of the decree of that court, and that judgment is validated by article 149 of the constitution of this State.
    APPEAL from the Sixth District Court, parish of Orleans. Oooley, J.

      Randolph, Singleton & Browne and T. H. Kennedy, for plaintiff and appellant. Lea, Finney & Miller, for defendant and appellee.
   Wyly, J.

The plaintiff sues to recover $130,000 which it paid to the defendant under a judgment of the Provost Court established by General Butler, in this city, in May, 1862.

The payment was made under the following protest:

“ Union Bank v. Mechanics’ and Traders’ Bank. — Provost Court.— The Mechanics and Traders’ Bank having been condemned by judg.ment of this court to pay to plaintiff $130,000 in currency, and being thus compelled to pajr said amount of said judgment, the said bank pays the same under the protest that the said judgment is illegal and void, because the court had no jurisdiction of the case.
(Signed) WALTER G. ROBINSON.
Attest: J. E. Bernard.”
“ The money was paid in my presence under the above protest.
(Signed) J. M. BELL, Provost Judge.
July 24, 1862.”

The important question is: Was the judgment which the plaintiff was compelled to pay an absolute nullity, and can he recover from the defendant the amount paid by reason of said judgment ?

This raises the question whether General Butler had the right after the capture of the city, in May, 1862, to appoint a judge to try civil cases. If he had this right, the judgment was not an absolute nullity, and the amount paid by the plaintiff can not be recovered.

If the judge had the right to hear and determine the case, the plaintiff can not recover the money paid in satisfaction thereof, even though it be conceded that there was- not sufficient proof to authorize the judgment, or that the debt was for confederate money.

As a sovereign the United States is bound by the limitation^ of the constitution, and, of course, it can not appoint a judge to a State court, much less create a State court and appoint the judge to administer it.

The President representing the United States, in the exercise of its sovereign powers, could not create a court to decide any civil controversy. This could only be done by Congress under the limitations of the constitution. But in the exercise of war powers, the United States is not restrained by the limitations which the constitution imposes on it as a sovereign. Its business, as a warrior, is to conquer, to restore peace, and to maintain the government; and it can use any means necessary to that end, regardless of all restraints, except the law of nations.

Under the constitution the United States has the right to make war, to raise and support armies and navies, to suppress insurrections and repel invasions. The measures to be taken in carrying on war and to suppress insurrections are not defined; and the decision of all such questions is in the discretion of the government to whom these powers are confided by the constitution.

When the United States captured the city of New Orleans in 1862, the civil government existing under the Confederacy ceased to have authority. As an incident of war powers the President had the right to establish civil government, to create courts to protect the lives and the property of the people. This was expressly decided in the case of the Grapeshot, 9 Wallace 129.

The question is, had the general commanding the military forces of the United States which captured the city the right to establish the provisional court, called the Provost Court, which rendered the judgment against the plaintiff? We are of the opinion that he had. This was an exercise of the war powers of the United States, presumably with the consent and authorization of the President, the commancler-in-chief; and of the propriety of the exercise of these powers we are not the judges. The decision of all such questions rests wholly with those to whom the war powers were confided by the constitution. Finding no limitation in the constitution upon the exercise of war powers by the Congress and the President, this court can not decide that the President was without authority to confer the power upon General Butler, which He presumably did, to establish the Provost Court and to appoint Judge Bell, with authority, temporarily, to decide all civil causes, including the one now complained of.

In New Mexico during the war, General Kearny, commanding the military forces of the United States, organized a provisional government, and not only established inferior and superior courts, but also ordained a code of laws; and the Supreme Court of the United States recognized and sustained his right to do so. See the case of Leitendorfer v. Webb, 20 Howard 176; also Cross v. Harrison, 16 Howard 164; Burke v. Fregre, 22 An. 629; and Lanfear v. Mestier, 18 An. 497 ; also Wilcox v. Jackson, 13 Peters 498.

The plaintiff, therefore, who paid a judgment rendered by a competent court, established by the United States in the exercise of its war powers, the only authority competent to organize a court in this city at the time, has no cause of action against its judgment creditor, the defendant, for the money paid in pursuance of the decree of that court. The United States had authority to establish this court; and the judgment is validated by article 149 of the constitution of this State.

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

Rehearing refused.
      Writ oi‘ orror to the United States Supreme Courb granted by Justice Bradley and filed on the twenty-fourth of September.


source: Caselaw Access Project

author: Morgan, J.

license: Public Domain

text:
    No. 4607.
    City of New Orleans v. Mechanics and Traders' Insurance Company.
    The syllabus in the following case, the city of New Orleans v. Crescent Mutual Insurance Company, No. 4485, is applicable to the present one; the two cases being identical.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      George S. Lacey, City Attorney, for plaintiff and appellee.

      L3. W. JIunthigton and J. Limngston, for defendants and appellants.
   Morgan, J.

This case is identical with the case of the same plaintiff v. the Crescent Mutual Insurance Company.

For the reasons therein assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed, with costs.

Rehearing refused.


text:
    No. 4485.
    City of New Orleans v. Crescent Mutual Insurance Company.
    There is no law which requires that the tax bills or receipts shall be signed by the Administrator of Finance of the city of New Orleans, or that stamps should be affixed to them.
    It is not necessary that, in the judgment enforcing the payment of the tax bills, there should be specifications separating the amount assessed on real estate from the assessment on merchandise, capital and money at interest. It is sufficient that this should be done in the tax bills on which the judgment is predicated.
    It was a sufficient publication, and such as was required by the law, where it was proved that the notices to taxpayers were published at least four times in the New Orleans Republican, to wit: on the twenty-second, twenty-seventh and thirtieth of August, and on the nineteenth of September, 1872. It was not necessary that there should have been further evidence of the ordinances, Nos. 1497 and 1498, than there is in the record.
    The offering in evidence of the several papers in which the notice of publication was made, and the subsequent filing of them, was sufficient to establish what the law required.
    The deiault taken on the fifth of November, 1872, and confirmed on the twentieth of same month, was in conformity with law.
    The law relating to city taxes does not require the notices to be published for thirty days, It only declares that no judgment shall be rendered until after thirty days’ notice, the notice to be thrice published.
    The return of the service of judgment by the sheriff was not vitiated by his calling it in said return a writ of judgment, nor was it indispensably necessary that the copy of the • • judgment should have contained the signature of the judge; nor was it sacramental that the clerk should have mentioned that the judge had signed the judgment. All that was required was notice of the judgment, and the certificate of the clerk that the judgment was rendered was sufficient.
    The city ordinances Nos. 1201,1262,1272 of December, 1871, do not make the aggregate taxation exceed two per cent., and this objection, so far as these ordinances are concerned, can not be maintained.
    An ordinance of the City Council of New Orleans can not be questioned with regard to its being in contravention of an article of the constitution. The question with reference to the validity of its ordinances is to be tested by the sanction which it has from the Legislature to perform such acts, and in such cases the point to be determined is not whether any particular ordinance is contrary to the constitution, but-whether it is permitted by an act of the Legislature. The question would then arise whether the law of the Legislature under which the Council acted was constitutional or not.
    The city ordinance of the nineteenth December, 1871, and the ordinance of the 30th December of the same year, are not in violation of the act of the sixteenth of March, 1870, section 18, which provides that the Common Council of New Orleans shall, once at a regular meeting in the month of December, and not oftener, in each and every year, lay an equal and uniform tax, etc., etc.
    The ordinance of the City Council, seventh May, 1872. levying a third tax in addition to those levied by the ordinances of the nineteenth and thirtieth December, 1871, is not contrary to the statute which provides that taxes shall only be levied once a year in the month of December, because said ordinance rests on the act of the twenty-fourth April, 1872, which authorizes the levying of said tax on an estimate to be made from the tax rolls of 1871. The objection that this act is unconstitutional because retrospective in its effect can not be maintained.
    APPEAL from the Fourth District Court, parish of Orleans. Théard, J.

      George 8. Laeey, city attorney, for plaintiff and appellee. M. M. Oolien, for defendant and appellant.
   Morgan, J.

Defendants appeal from a judgment hy default, rendered against them, assign several errors in the proceedings and judgment, apparent on the face of the record, and founded on law.

First — His first assignment of error is, that the Administrator of Finance has not signed the tax bills.

We do not find any law which requires that these bills shall be ■signed by the Administrator of Finance.

Second — There is no stamp on either bill or receipt.

We do not think that this was necessary.

Third — The judgment lacks specification. By this he means that the amount assessed on real estate is not separated from the assessment on merchandise, capital, and money at interest.

We do not find that the law requires that the judgment should be made up of different parcels. It is sufficient that the property be separated on the tax bill. This was done.

Fourth — There was no sufficient proof of publication.

Section nine of the amended city charter provides, that all taxes imposed by the city of New Orleans, or due to the same, and not paid on the thirty-first July, of each year, shall be exigible, with interest at the rate of ten per cent, per annum from that date, upon thirty days’ notice, by the Administrator of Finance, during which delay there shall be three publications in the official journal.

It was established by the testimony of Chadwick, that the notices were published at least four times, in the New Orleans Republican, to wit: on the twenty-second, twenty-seventh and thirtieth August, and on the nineteenth September, 1872; and the several papers in which the notice of publication was made were offered in evidence, and were subsequently filed. This we think a sufficient compliance with ■the law.

Fifth — The publications were insufficient. The first publication was on the twenty-second August, and the last on the nineteenth September following.

Default was taken on the fifth November, 1872, and confirmed on the twentieth of the same month.

We do not understand that the law requires the notices referred to shall be published for thirty days. It says that they shall be published and judgment shall not be pronounced until thirty days after notice. We consider the provision of the law similar to the rules governing citations. Judgment by default can not be rendered until ten days after ■citation, but the citations are not to be made daily ; one is sufficient. So in the case of city taxes. The law’declares that no judgment shall be rendered until after thirty days notice, the notice to be thrice published. Here the notices were published four times, and the judgment by default was not rendered until some fifty days after the first notice was published. This we consider sufficient.

Sixth — The notice of judgment is defective. The allegation in the brief being that sheriff’s return is- “served, a true copy of the within writ of judgment,” etc., and that the copy of the judgment does not contain the signature of the judge.

We do not see how the sheriff by his return can vitiate a judgment simply because he calls it a writ of judgment, nor do we see that it was indispensably necessary that the copy of the judgment should contain the signature of the judge. The judge, we believe, never does sign the copy of the judgment which he renders against a party. If the argument means that the clerk should have mentioned that the judgment was signed by the judge, we answer that this is not sacramental. What is necessary to the defendant is notice of the judgment, and the certificate of the clerk that the judgment was rendered is sufficient. If the position assumed be correct, no judgment has been rendered against him, and if no judgment was rendered against him there is nothing against which he can complain, and therefore he has appealed from nothing, and his appeal would be dismissed.

Seventh — The ordinances are void because the aggregate rate of taxation exceeds two per cent.

The ordinances No. 1261, 1262, 1272, passed in the month of December, 1871, do not make the aggregate taxation exceed two per cent., and this objection, so far as these ordinances are concerned, can not be maintained.

Eighth — Ordinances No. 1497 and 1498 are illegal.

Ordinance No. 1497 was adopted seventh May, 1872.

Ordinance No. 1498 was adopted twenty-sixth April, 1872.

These ordinances are, it is urged, illegal, because they were adopted (if they ever were adopted) long after the date fixed by law for the assessing and levying of taxes in the city of New Orleans.

No estimate, it is contended, was made for the collection of taxes embraced in the ordinances. Added to the tax ordinance adopted December, 1871, they show an excess of taxation higher than the maximum rate of taxation allowed by law, and hence are in contravention of prohibitory laws, and are, therefore, illegal and void; and it is further contended that inasmuch as these ordinances assess and levy taxes upon the rolls of 1871, they are unconstitutional, being violatory of article 110 of the constitution, which forbids the passage of laws having a retroactive effect. We do not know that an ordinance of the City Council of New Orleans can be questioned with regard to its being in contravention of an article of the constitution. The City Council is the legislative body of the corporation. As such it derives its powers-from .the Legislature. It exists only at the pleasure of the Legislature. Its powers are specifically defined and expressly limited, and it can do. nothing except what it is permitted to do.

The question with reference to the validity of its acts is to- be tested' by the sanction which it has from the Legislature to perform such acts,, and, in such cases, the point to be determined is not whether any particular ordinance is contrary to the constitution, but whether it is permitted by an act of the Legislature. The question would then arise, whether the law of the Legislature under which the council had acted'" was, or not, unconstitutional.

But it is contended that the common council are, by the act No. 164,' approved March 20, 1856, section 42, allowed once, and not oftener, in each and every year, to lay an equal and uniform tax upon all property, real and personal, in this city; and we are solicited to note the word “once,” and the words “and not oftener, in each and every year.” And our attention is invited to the act of sixteenth March, 1870, section 18, which provides that the common council of New Orleans shall, once, at a regular meeting, in the month of December, and not oftener, in each and every year, lay an equal and uniform tax, etc., etc. It is urged upon us, that because, on the nineteenth December, 1871, the city passed one ordinance, the ordinance passed afterward, on the twenty-sixth December, 1871, was contrary to the statute which declares that the council shall levy taxes once a year, in the month of December. We can not give onr concurrence to sucha proposition. Under the statute referred to, the ordinances fixing the rates of taxation must be fixed in the month of December, but we do not understand that all the taxes of the city, upon all the property of the city, distributing the taxes upon the various property and the callings of the citizens, should all be passed at once and on the same day. Such a thing would be impracticable if not impossible. Certainly it would be attended with mischief and injustice, for it would be impossible for any set of men to determine in one day, a fair and equitable rate of taxation, to which all the property, real and personal, in the cityr should be subjected.-

In this same connection it is contended that inasmuch as on the seventh May, 1872, the City Council passed another ordinance levying other taxes, the ordinances levying these taxes is contrary to the law which provides that taxes shall only be levied once a year, in the-month of December. This proposition would be unanswerable if it were not for the act of twenty-sixth of April, 1872, which authorizes the levying of these taxes, the estimate to be made on the tax rolls of 1871. And here comes in the question, is this law unconstitutional because it is retrospective in its operations 1

Sinth — Ordinances Nos. 1497 and 1498 are not in evidence.

If this be true, then we have been considering an exhaustive constitutional argument for nothing. If they are not in evidence theré is nothing upon which counsel’s argument can rest. Upon this point we agree with the City Attorney when he says that the city, having made-out her bill of taxes under those ordinances, and having offered the-same in evidence, together with proof of publication of notice to delinquent taxpayers, it was the duty of the court to render judgment in, favor of the city; and there being nothing in the record to show error ■in the judgment thus rendered it should be affirmed with costs.

The last objection is .that the court is without jurisdiction, and it is urged that when service of notice is made by publication the court acquires no jurisdiction until proper proof of the publication of such' notice, and of a compliance with each of the ojiher .requirements of the statute is filed and made to appear in the record.' This objection has already been disposed of, in the opinion which we have expressed with regard to the third and fourth points in appellant’s brief.

Counsel for the city prays for damages on the ground that the appeal is frivolous and taken for delay. But we do not agree with him altogether, and so merely affirm the judgment.

Judgment affirmed with costs.


text:
    2934.
    John L. Yule v. The City of New Orleans. Robert Howes v. the same. (Consolidated.)
    'The city of Mow Orleans is not bound to indemnify its citizens for any loss by fire occasioned by tbe negligence of the fire department. It can not be looked upon asan insurer against suck losses.
    There is no contract, express or implied, between the citizens and the city of Mew Orleans to indemnify them for any loss which may occur to them by reason of the burning down of their houses, except in cases specially provided by law.
    The Firemen’s Charitable Association has always been a voluntary one, its members are not paid, and the $126,000 per annum, allowed to them out of the city treasury, are only a subsidy, to enable the association to carry out its objects.
    APPEAL from the Sixth District Court, parish of Orleans. Cooley, J.

      Howe & Prentiss, Pace, Poster & Herrick, for plaintiffs and appellees. G. 8. Lacey, City Attorney, for defendant and appellant.
   Morgan, J.

Yule claims from the Firemen’s Charitable Association and the city of New Orleans, five thousand dollars. Howes claims from the same defendants thirty-nine thousand five hundred dollars.

They both reside in the third district of this city, where they own property. Their claims rest upon the same state of facts, and are based upon the same law. The cases were consolidated, and tried together. There was judgment, against them in so far as the association is concerned, in their favor as against the city — Yule for $5,000, and Howes for $35,000.

From these judgments the city alone has appealed.

The allegations in both petitions are substantially the same. They aver that on the nineteenth May, 1867, at about the hour of half-past three P. M., a fire broke out on the square in which their property is situated, but remote from it, and that it was all destroyed. 'They allege that when the fire occurred nearly all the firemen, with their engines and hooks and ladders, were, by permission of the Common Council of New Orleans and of the Firemen’s Charitable Association, at the Fair Grounds, some miles distant from their engine houses, where by law'they should have been, and where they “ spentthe day in feasting, fun and frolic,” and they allege that it was because of the absence of the fbemen and their engines that their property was destroyed.

The ground upon which they seek to make the association and the city responsible is that the city of New Orleans makes annual assessments upon all the real and personal property in this city, and collects taxes thereon, of which taxes they, the petitioners, pay their share, and that, in consideration thereof, the corporation of New Orleans assumes and by law is bound to protect all residents of the city in the preservation of their property from destruction by fire. They aver that, to this end, the city has sold the contract for the extinguishment of all' fires in this city for and during the period of five years from the seventeenth December, 1866, to the Firemen’s Charitable Association for the sum of $120,000 per annum, to be paid monthly; that by the terms of this contract the association was at all times to have on duty a certain number of fire engines, attended by a certain number of officers and men for each, ready at the first alarm of fire to repair to and extinguish the same.

The broad question presented by the record is whether or not the city of New Orleans is bound to indemnify its citizens for any loss by fire, occasioned by the negligence of the fire department Í

We think not. The city can not, we think, be looked upon in the light of an insurer against losses by fire. Its duty is to protect the lives and property of its citizens, as far as in its power lies, and to promote their comfort and convenience, but it is not to be held responsible for losses by fire. True it is that out of the taxes collected from the citizens $120,000 per annum are paid to the Firemen’s Charitable Association. It is also true that this association, in consideration of this sum, have contracted to have always ready for service, and properly manned, fifteen steam engines, four engine companies, and four hook and ladder companies ; that the chief engineer of the association is to have the sole command at fires, and, in fact, that the management of the fire companies shall be under the control of this association. But there is no contract on the part of the association by which ■they undertake to put out all fires which may occur in the city, and there is no contract, express or implied, between the citizens of the city and the city by which the city is to indemnify them for any loss which may occur to them by reason of the burning down of their houses, except in cases specially provided for by statute.

It is true that the city pays $120,000 per annum to the Firemen’s Charitable Association, and that this sum comes from the city treasury. But this is only a subsidy to an association to enable it to carry out its objects. The fire department of this city has always been a voluntary one; its members are not paid. On the contrary, they have to contribute to the support of the association out of their own pockets, in addition to which they give their services at all fires — -services than which none can be more meritorious or coupled with more exposure, risk and danger, for nothing. No one, we believe, is paid by them, except those parties who have to be constantly at the station houses,, such as engineers, hostlers, etc., and without this subsidy they could not be kept up.

It is also true that the police of the city are paid by the city, and that it is their duty to protect the lives of its citizens, but we do not understand that the city is responsible in damages for all the crimes and offenses committed within its limits because the people are taxed to pay the police.

The people of the city have, by common consent, allowed their representatives to contribute a certain amount of money for the protection of their common property, but it by no means follows that because they have given this much to prevent loss, if possible, they must in addition, pay for the losses which occur, for, after all it is the people of the city who have to pay. They have paid enough, we think, when they have allowed $120,000 a year to be contributed for their common defense, and should not be made to pay for damages which they did not cause.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided, annulled and reversed, and that there be judgment in favor of the defendants in both cases, with costs of both courts.


author: Taliaferro, J.

text:
    No. 4606.
    State ex rel. Bernard Dayries v. John Yoist.
    Por certain reasons expressed in tlie statute of 1871, p. 126 of acts of 1871, prescribing the-duties of tax collectors, tbe Governor is authorized to remove a tax collector from office. The relator in this case having a commission bearing date a month later than the commission of Yoist, the presumption is that the Governor had cause for removal of the-latter, which was effected by the appointment of Dayries.
    APPEAL from the Seventh Judicial District Court, parish of Pointe-Coupee. Helves, J.

      Thomas J. Oooley & W. H. Oooley, O. Provostyy District Attorney, Haralson <& Olaiborne, for relator and appellant.

      Hdward Phillips and Robert Semple for defendant and appellee.
   Taliaferro, J.

This is a contest under the intrusion act between the relator Dayries and the defendant Yoist, each having a commission from the Governor of the State appointing each tax collector for the; parish of Pointe Coupee.

The commission of Dayries bears date subsequent to that of Yoist. For certain reasons expressed in the statute of 1871 (page 126 of acts of 1871), prescribing the duties of tax collectors, the Governor is ■authorized to remove a tax collector from office. The relator having a commission bearing date a month later than the commission of Yoist, the presumption is that the Governor had cause for removal of the latter, which was effected by the appointment of Dayries.

The judgment of the lower court is, therefore, erroneous in decreeing Yoist the legal tax collector and in dissolving the injunction with damages.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed.

It is further ordered that the injunction be perpetuated, that the relator, Bernard Dayries, have judgment in his favor decreeing him to be the legal tax collector of the parish of Pointe Coupee, and authorized to discharge the duties appertaining thereto, and to receive the emoluments arising from the said office.

It is further ordered that defendant Yoist pay all costs of these proceedings.


author: Wyly, J.

text:
    No. 4459.
    George W. Lee v. Christopher C. Packard et als.
    Where Effingham Lawrence mortgaged half of a plantation to secure some promissory notes, said mortgage being in favor of Casanave, or any other future holder of said notes, and the mortgaged property was subsequently transferred to Packard et als., who assumed to pay the said notes as part of the price, and the notes fell into the hands of Lee, who sued out an order of seizure and sale against the property, which order was injoined by Packard et als.;
    Held — That on the trial of the injunction, the court a qua did not err, in permitting Lee to introduce the authentic evidence upon which the order of seizure and sale was granted; and also, that the court did not err, in refusing to allow Packard et als. to introduce in evidence a letter of Effingham Lawrence, the mortgageor, on the ground of irrelevancy.
    'The purchaser of mortgaged property with the pact de non aliénemelo, occupies no bettor position than the mortgageor, and can not injoin the executory proceedings, or sot up any defense which the latter could not.
    Ho sale or partition of mortgaged premises can defeat the mortgage previously existing thereon.
    'The purchase of the property by Packard et als., the stipulations and arguments between them and the mortgageor, and the partition of the property among themselves, could not affect the rights of Lee, the holder of the mortgage notes.
    The defendants, Packard ot als., in partitioning the property among themselves and making partial jjaymoiits, could not limit the operation of the mortgage upon the whole, because the mortgage was an indivisible obligation.
    APPEAL from the Second Judicial District Court, Parish of Plaque-mines. Fwrdee, J.

      Sambola & Fueros, for plaintiff and appellee.

      •0. O. Faelcard, defendant and appellant, in propria persona.

   Wyly, J.

In May, 1869, Effingham Lawrence mortgaged half of a plantation in the parish of Plaquemines to secure his six promissory .notes for twenty -five hundred dollars each, said mortgage being in favor of Pierre A. D. Casanave, or any future holder of said notes. The mortgaged property was subsequently transferred to the defendants, who assumed to pay the said notes as part of the price.

The notes fell into the hands of the plaintiff, who sued out an order of seizure and sale against the property. Thereupon the defendant, Christopher C. Packard, brought this suit to injoin the executory proceedings. The court dissolved the injunction, and he has appealed.

We think the court did not err in permitting Lee to introduce the authentic evidence upon which the order of seizure and sale was granted; and also the court did not err in refusing to allow the appellant to introduce in evidence the letter of Effingham Lawrence, the mortgageor, on the ground of irrelevancy. Therefore the bills of exceptions to such rulings were not well taken.

The purchaser of mortgaged property with the pact de non alienando occupies no better position than the mortgageor, and cannot injoin the executory proceedings, or set up any defense which the latter could not. No sale or partition of the mortgage premises can defeat the mortgage previously existing thereon. Therefore the purchase of the property by the defendants, their stipulations and agreements with Lawrence, the mortgageor, and the partition thereof among themselves, did not relieve the property of the mortgage now sought to be enforced by George-W. Lee.

The defendants, in partitioning the property and making the partial payments, could not limit the operation of the mortgage upon the whole property, because the mortgage was an indivisible obligation.

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

Kehearing refused.


text:
    No. 4363.
    The State of Louisiana v. The New Orleans Gaslight Company.

      ‘Where the exception was that the suit is premature, because it is an effort to make the courts declare, in advance, that the defendant, after the year 1875, shall not be permitted to exercise the privileges of a corporation under an act extending its existence until 1895, and alleged to be unconstitutional; that its present exercise of privileges is not-alleged to be illegal; and that the suit, therefore, can not be maintained, if at all, until, the alleged date of the expiration of its present privileges in 1875;
    Held — That said exception is well taken.
    This court is not authorized to declare theoretically’ an act of a co-ordinate branch of the' government unconstitutional, when the act complained of is not only not alleged to be interfering with the exercise of any person’s rights, but not even in operation.
    APPEAL from the Eighth District Court, parish of Orleans. Dibble,. J.

      Simeon Belden, Attorney General, for plaintiff and appellee.

      Semmes <ft Mott and J. A. Oampbell, for defendant and appellant.
   Morgan, J.

On the first of March, 1860, the General Assembly of Louisiana passed an act entitled “ An Act to extend the area of gas-lighting in the city of New Orleans, and to reduce the price now paid by gas consumers.”

■ The first section of this act provides : That the charter of the New Orleans Gas Light Company, as now established by law, shall remain in full force and effect until the first day of April, 1895; Provided,. that nothing in this act shall be construed so as to continue the exclusive privilege granted to said company, beyond the period fixed by its-present act of incorporation,” etc.

This suit was instituted against the company by the Attorney General, under a resolution of the House of Bepresentatives to declare the-act aforesaid, in so far as it extends the chartered privileges and charter of the company, beyond the term limited by the act of the General Assembly of the year 1845 (which provides that the charter of the company shall expire on the first day of April, 1875) unconstitutional, null and void. The ground upon which this demand rests is that the title of the act in question violates the one hundred and fifteenth article of the constitution then in force when the act was passed, which provided' that every law shall express its object in its title. It is alleged that the object of the law approved on the first of March, 1860, is not expressed in its title.

The defendant excepts to the action upon the following grounds :

First — That the suit was instituted without authority of law; that the Attorney General is not authorized to institute a suit of his own motion, and without legislative instruction, to have the courts declare an act of the Legislature unconstitutional, especially when the decree prayed for is merely a declaratory decree, without application to any specific act or alleged wrong done under the alleged unconstitutional act.

Second — That the suit is premature because it is an effort to make the courts declare, in advance, that the defendant after the year 1875 shalp not be permitted to exercise the privileges of a corporation; that it is not alleged that its present exercise of privileges is illegal; and that the suit is therefore not maintainable, if at all, until the alleged date of the expiration of its privileges, to wit, the first of April, 1875; and

Third — That the petition discloses no cause of action whatever, nor a case of which the court has jurisdiction.

Conceding that the Attorney General has the right to institute a suit against a corporation to annul its charter, or to declare a law under which a corporation may be acting unconstitutional on his own motion; conceding that whereas by the constitution and laws of the State the Attorney General is obliged to give his professional services to either branch of the Legislature in matters concerning them, he can be called upon by one house, without the concurrence of the other, to institute proceedings to cause an act passed by both to be declared by the courts unconstitutional — -upon neither of which propositions do we find it necessary to express an opinion — still it is clear to our minds that this suit is premature.

This is not a suit to annul, the charter of the gas company because of its having violated any of the rights,' privileges or obligations conferred upon it by the act incorporating it. No one complains of the -company, and it is not averred that it is exercising any right, that it claims any privilege, or that it interferes with any of the rights of others, in virtue of the act which we are asked to declare unconstitutional. When this happens it will be time enough for us to pass upon the question. Perhaps it may never happen.

The gas company may have ceased to exist before 1875, the date on which its charter, as alleged, expires; or if it exists, it may not desire to vend gas at that time. If this should happen, or if, from any cause, they should cease to supply the city and its citizens, and the State, the city, or any of its citizens, should endeavor to enforce what either of them might consider a contract between the company and the State, the constitutionality of the act of 18G0 might possibly be invoked. Or if, in 1875, the company should continue its functions, and the State should attempt to prohibit it from doing so; or if, at that period, any citizen, or parties interested, should resist its pretensions, or should proceed against it for an infringement of his or their rights, and the company should set up the act in question in their defense, then the constitutionality of the law under which it will be acting, may be inquired into. All this will be time enough when the case arises, but no such case is now before us. We are called upon to declare, theoretically, that a law is unconstitutional, when no one is claiming to exercise any rights under it, and when no one is complaining that it is working them any injury.

It is our duty to declare an act of the General Assembly unconstitutional when the exigencies of the case require it, as delicate as the performance of this duty may be, but we do not think we should create the exigency. We have only to deal with the practical affairs of life; we have no warrant for expressing an opinion upon rights and duties which may or may not exist in the future. Much less do we feel ourselves authorized to declare an act of a co-ordinate branch of the government unconstitutional, when the act complained of is not -only not alleged to be interfering with the exercise of any person’s rights, but is not even in operation.

We think the exception to the prematurity of the action should have -been maintained.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be avoided, annulled and reversed ; that the exception'of the defendant as to the prematurity of the suit be maintained, .and that the suit be dismissed. Plaintiffs to pay the costs.


author: Morgan, J. Ludeling, C. J.

text:
    No. 4617.
    State of Louisiana ex rel. Louisiana Levee Company v. Charles Clinton, Auditor.
    Tlie amendment of tlie constitution of the State, ratified on the seventh of November, 1870, which limits the State debt to $25,000,000, is not violated by the law creating the Levee Company. The bonds of the State are not out, nor is any one its creditor, nor can any one become its creditor, for any sum contracted for by the Levee Company.
    Itis not for the court, in this case, to determine that the payments demanded are, or are not, without a valid consideration. It has only to decide whether the acts relating to the Levee Board are constitutional or not.
    The act No. 27,1871, which ratifies and confirms the contract between the Levee Company and the Governor, is, after all, an act of the Legislature, and is valid unless conflicting with the constitution of the State, and this has not been shown.
    The constructing of levees for the protection of lands subject to overflows is not made at the expense of the State treasury. That expense is met by a general tax on all the taxable property of the people of the State. The Legislature had the power to impose that tax and to appropriate it as they saw fit.^ They create no debt which goes beyoiid the constitutional limitation, and in the acts imerring to the general levee tax have violated no provision of the constitution.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Armand Pitot, Semines & Mott, 3. O. Bibble, for relators and appellees. A. P. Meld, Attorney General, J. S. Whitaker, J. B. Ootton, J. Q. A. Fellows, for defendant and appellant.
   Morgan, J.

On the twentieth of February, 1871, the Legislature. passed an act ‘ relative to the Louisiana Levee Company, a corporation organized under the general laws of the State, constituting it a body politic and corporate, with certain powers, privileges and franchises, and contracting with the said corporation for the construction, maintenance and repairs of certain levees, and providing for compensation therefor.”

The relators declare that they have entered upon the duties imposed upon them by the act of incorporation above set forth, and have completed large works in accordance with their duties thereunder, and ■thus that they have protected from overflow a great portion of Louisiana at an expense of $767,000, while they have only received therefor some $400,000. They aver that in order to enable them to pay for the works contemplated by the act, already executed, and to be executed, the State has authorized the levying and collection of a tax of two mills upon the dollar of the assessed value of the taxable property of the State, to be set apart as a special fund to be known as the “ Levee Construction Fund,” and an additional tax of two-tenths of one per centum upon the assessed value of the taxable property of the State, •to be set apart and known as the “ Levee Repair Fund.”

They aver that said taxes have been and are being collected and set apart as provided by law, and have been in part paid to the Louisiana Levee Company on the order of the president of said company, as money belonging to the same, and that said taxes are not funds belonging to the State, which could lawfully be appropriated for any of the-expenses or indebtedness of the State.

They aver that there is now in the treasury a sum of $13,000 belonging to said levee construction fund and to said levee repair fund, for which they have drawn according to law for $6000 each, for which, orders Charles Clinton, the Auditor of the State of Louisiana, refuses to give the necessary warrants on the State treasury, in violation of the law and of the vested rights of the relators. They pray for a mandamus against the Auditor directing him to issue warrants in their favor on the State Treasurer for the payment of the two orders-for $6000 each.

The Auditor, after filing a declinatory exception, answered, through’ the Attorney General, who is herein acting as counsel designated by law to the Auditor, as well as in his official capacity representing the State, and says: ' ^

First — That the act of the Legislature relative to the Louisiana Levee Company, and the act confirming a contract between the Louisiana Levee Company and the Governor of the State, approved twenty-eighth. February, 1871, providing for an annual collection by taxation and appropriation to said company for twenty-one years of about one million dollars each, are unconstitutional, illegal, null and void, because they are in violation of the-amendment to the constitution of the-State of Louisiana limiting the State debt to $25,000,000, and of articles 110, 114 and 115 of the constitution of the State.

Second — That the payments demanded in the petition are without a valid consideration, and made to a person, a private corporation, having no legal claim upon the State, to be paid out of the revenues derived from the taxation of the property of the citizens and others owning property subject to taxation, and upon whom rested no legal or equitable obligation to contribute to the payment thereof.

- Third — That the State Legislature had no power to authorize the Governor of the State to enter into the contract contained in the acts Nos. 4 and 27, nor to incur the obligations contained in the contract;, that the proprietors of property fronting on the water courses of Louisiana, subject to overflow, had contracted in the oiiginal purchase of the property, to build and keep up the levees, and had, in consequence,, purchased their lands at a much reduced price; that the leveeing and draining of lands subject to overflow at the expense of the State treasury, or by a general taxation on all the taxable property in the State, would be the enrichment of a portion of the people of Louisiana by making their property much more valuable and at the expense of' other citizens and tax payers of the State; that it would be the taking of the property of one citizen or class of citizens for the benefit of another, and without a proper and adequate, or in fact any consideration whatever, and is in violation of the constitution of the State and of the United States.

Fourth — That the funds claimed are derived from the general taxation of the property of the State for the enrichment of the plaintiff, a private corporation, and for the enhancement of the property of a small portion of the property holders in the State, and that it was not in the power of the State to grant said funds, or to authorize the making of said contract; that the obligations created by the acts Nos. 4 and 27 is a debt of upward of $20,000,000, attempted to be created at a time when the State debt exceeded $25,000,000, and subsequent to the promulgation of the constitutional amendment limiting the State debt to $25,000,000; that so long as the State debt shall exceed $25,000,000, the Legislature can not mako appropriations or authorize contracts, except for such purposes as are absolutely required and necessary for carrying on the government; that the work claimed to have been done and to be now being done by the plaintiff is not one of those necessary works or expenses for the carrying on the government, but is a work of internal improvement, which, at all times doubtful as a function of government, was designed to be prohibited by the amendment to the constitution limiting the State debt.

First — We do not see in what manner the-amendment of the constitution of the State, which limits the State debt to $25,000,000, is violated by the law creating the Levee Company. The State has created no debt in their favor. It has assumed no responsibility on their account. It does not pay or order to be paid any money out of the funds of the treasury proper. The State incorporated the company, giving it certain rights and privileges, and imposing heavy burdens upon it at the same time. It contracted with the company with regard to a work of great public utility. To secure the company they imposed a general tax upon all the property of the State, and made it the duty of the tax collectors to collect the same and to deposit the sums collected in the treasury, but it provided at the same time that the moneys so collected should be placed to the credit of a certain fund, to be drawn upon by the officers of the company. But this does not create a liability on the part of the State. The State does not pay. Its bonds are not out, nor is any one its creditor, nor can they be its creditor for any sum contracted for by the Levee Company.

Second — It is not for us to determine that the payments demanded are without a valid consideration. We have only to determine whether the acts relating to the Levee Board are constitutional or not.

Third — The act No. 27, which ratifies and confirms the contract between the levee company and the Governor is, alter all, an act of the Legislature, and is valid unless it conflicts with the constitution of the State, and we have not been referred to the article with which it is in conflict.

The other objections to the act do not strike us with much force. The leveeing of the land subject to overflow is not made at the expense of the State treasury. It is, as is stated, made by a general tax on all the taxable property of the State, but the Legislature had the power to impose that tax, and to appropriate it as it saw fit.

Fourth — It is true that the funds claimed are derived from the general taxation of the property of the State, and it may be that it will result in the enrichment of the levee company; but the State had the power to levy the tax, and the profit would depend upon the perfection of the company’s work. By the law under which they are acting, they are responsible to the owners of property who suffer damage by reason of their negligence or want of skill. A crevasse at Grand Levee, or at Kenner, or at any one of the several other points on the river, caused by their negligence in maintaining these levees up to the standard required by the law, as evidenced by the report of commissioners to whom such matters are intrusted, would cause more damage to the company thau the amount of the taxes to which they would be entitled. But these are questions with which, in reality, we have nothing to do. The only matters which we are called upon to decide, are whether the acts of the Legislature, in themselves, violate any of the. articles of our constitution, and whether the Legislature has created a debt which goes beyond the constitutional limitation. We do not find that these acts do violate any provision of the constitution, or that it creates a debt. We therefore think the company entitled to the money which it claims, and that the mandamus properly issued.

It is therefore ordered, adjudged and decreed, that the judgment'of the lower court be affirmed, with costs.

Ludeling, C. J.

I doubt the right of the defendant to raise the questions presented for decision in this case.

He has no real or actual interest involved in this controversy.

If, however, I be mistaken in this, then I concur in the opinion of the majority of the court.

Under either hypothesis I concur in the decree.

Rehearing refused.


text:
    No. 3828.
    Widow Benjamin Poydras de La Lande et als. v. Charles Poydras.
    Where the defendant bought certain slaves, wlio, by the will of ono of their former owners, were to be emancipated at a future time, but were not so emancipated by the defendant, who made no efforts to surmount the obstacles that were in the way of their emancipation, but who was content to retain them in the condition of slavery, and to avail themselves of their labor until they were sot free by tlie Government of tlie United States;
    Held — That said defendant has no legal ground to refuse to pay the promissory note which he gave for the purchase of said slaves.
    APPEAL from the Seventh Judicial District Court, parish of Pointe Coupee. Miller J.

      A. L. Mahoudeau and O. JE. Schmidt for plaintiffs and appellees.

      JEdward Phillips, for defendant and appellant.
   Taliaferro, J.

At a probate sale in the year 1854 the defendant purchased from the estate of Benjamin Poydras de La Lande a plantation in the parish of Pointe Coupee, with twenty-four slaves upon it, who were among the slaves entitled to their freedom by the provisions of the will of Julien Poydras, an ancestor of these parties who died many years since. Three other negroes, slaves for life, were sold with this lot of twenty-four together with the plantation. The whole price was fifteen thousand dollars, one-third cash, the remainder in four annual installments of three thousand dollars each. Special mortgage and vendor’s-privilege were retained to secure payment of the several notes given at the sale.

The plaintiffs sue upon the last note due and pray judgment for three thousand dollars, with interest at the rate of eight per cent, per annum from the thirty-first of January, 1861, and that the land be seized and sold to pay the debt.

The judge a quo ordered an appraisement of the land and slaves to ascertain the relative value thereof at the time the defendant purchased, and finding that relative value to be ten thousand dollars for the plantation and the improvements upon it, and five thousand dollars for the slaves, rendered judgment in favor of the plaintiff for two-thirds the amount of the note sued on with recognition of plaintiff’s' mortgage and vendor’s privilege on the land.

From this judgment the defendant appealed.

The defense is that the twenty-four negroes the defendant purchased! were free at thp time of the sale of the succession of Benjamin Poydras, and that the sale of free persons being contra bonos mores, is null and violates the entire contract. He contends further that the proportional sum paid by him on the two previous notes for the negroes as slaves, amounts to more than that of the land, and if held bound at all, such proportional sum should be imputed to the payment of the land.

The title acquired by the defendant from the estate of Benjamin Poydras expresses the following condition: After giving the name and description of the twenty-four negroes the act proceeds, which above named slaves proceed from th¡e slaves which were sold at the sale of the property of the succession of the late Julien Poydras, and are by the present act transferred subject to the conditions and stipulations expressed in the testament of the said late Julien Poydras, and in the acts which have transferred the ownership of the said slaves to the several purchasers of the property of the estate of the late Julien Poydras, and more particularly in rhe act of sale of the land or plantation on which Vie resided from which the said slaves have been detached. The said slaves hereinabove named are therefore by the present act, transferred under the conditions and stipulations expressed in the said will or testament, and in the acts above mentioned, and to which reference is here made, without any other warranty of any nature whatever; with which conditions and stipulations the purchaser declared ho was well acquainted, that he accepted them, and was satisfied therewith, and that he pnt himself in the lieu and stead of the vendors, promising that he would comply with and fulfill the same.”

It is in evidence that the twenty-four slaves here referred to were not emancipated by the defendant, and that they were never emancipafcod otherwise than by the general emancipation resulting from the late war. There were no doubt serious obstacles to carrying out the provisions of the will oí Julien Poydras in regard to the emancipation of his slaves. The law and public policy of the State were strongly against it. Bullard and Curry’s Digest, page 427 Criminal Code, articles 184, 185; Acts of 1852, page 214. The subsequent act of fifteenth March, 1855 (Acts of 1855, p. 387), was, perhaps, less stringent in regard to emancipation than the previous legislation on the subject, but it seems clear that whatever the obstacles in the way, the defendant made no effort to surmount them. He was content to retain the negroes in question in the condition of slavery, and to avail himself of their labor, until they were set free by the United States government. Nor can we consider the condition of these negroes otherwise than that of statu liberi. They acquired under the will of Julien Poydras the right of thereafter becoming free. It seems that by the will, they were to continue in slavery twenty-five years after the sale ordered by the testator, and their offspring born in the meantime were also to remain slaves until they should be in the condition and of the age required by law for such emancipation. The will of Julien Poydras is dated April 16, 1822, but there is nothing in the record showing either the time of his decease or the time at which his lands and slaves were sold.

After a careful review of this case, we do not find good cause for altering the decree of the lower court. 21 An. p. 757, and same, p. 771.

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


author: Howell, J.

text:
    No. 4674.
    State of Louisiana v. William Carr, alias James F. Hickey.
    "When tlie judge a quo liad already charged the jury that “ they must be satisfied that the prisoner knew the certificates he published as true were fal^e at the time of passing them, and that, if they had any reasonable doubt of his guilt, they must acquit him;”
    Held — That this was substantially the charge asked for by defendant’s counsel, though not identical in language, and that it met all the requirements of the law.
    Where the judge a quo refused to charge the jury, as requested, that “the fact that defendant had offered no evidence is in no way to be taken as an admission of guilt,”'instead ol which tho judge charged “that all circumstances against tho prisoner within his power to explain, which he refused to do, were to be taken and weighed by the jury as circumstances against the prisoner;”
    Held — That this was an error. The accused is justified in relying, if he chooses, upon the insufficiency of the evidence adduced by the prosecution, and his so doing should not be taken as an acknowledgment by him of his guilt.
    Section 10 of act 73 oí 1872 does not so far abrogate section 833, Revised Statutes of 1870, that a person may not be indicted under tho iormer, as was done in this case, tor “publishing as true, false, forged and counterfeited certificates of a public officer,” etc. Both laws are easily construed so as to give effect to each, and will support an indictment, if properly drawn up under each respectively.
    'The indictment properly sets forth the offense of which the prisoner is accused, as described in section 833, Revised Statutes of 1870, under which said indictment is 'drawn, and is not defective in substance. It follows substantially, if not literally, tho language of said section.
    from the First District Court, parish of Orleans. Abell, J. Criminal case.

      Jolrn MePhelin, District Attorney, for the State.

      A. A. Atocha, for defendant and appellant.
   Howell, J.

The defendant has appealed from a judgment sentencing him to four years’imprisonment at hard labor in the State penitentiary, upon being found guilty of the charge of publishing as true false, forged and counterfeited certificates of a public officer,” etc., under section 833 R. S. of 1870. The case is before us on two bills of exception and a motion in arrest of judgment.

Pirst — The first bill is to the refusal of the judge a quo to charge the jury as requested by counsel for defendant, that “ the prosecuting officer must prove that the party accused knew the certificates uttered were forgeries ; if the jury have any doubt as to the guilty knowledge, that being the essence ot the offense, they must acquit.” The judge had already charged the jury that “they must be satisfied that the prisoner knew the certificates to be forged at the time of passing them, and that if they had any reasonable doubt of his guilt they must acquit.” This was substantially the charge asked for by defendant’s ■counsel, though not identical in lan ,uage, and met the requirements of the law. In 3 Graham & Waterman on N. T. 710 et seq., quoted by appellant’s counsel, it is said “the court is not bound to give instructions in the words asked lor, however material might the instructions be. But it must take care to give the instructions substantially, so as ■to meet the whole of the point which is material.”

Second — The second bill is to the refusal of the judge to instruct the jury that the fact that defendant has offered no evidence is in no way to be taken as an admission of guilt.” Instead of which the judge charged “that all circumstances against the prisoner within his power to explain which he refuses to do, are to be taken and weighed by the-jury as circumstances against the prisoner.”

We think the court erred in the refusal, and particularly as he added a charge in words which might have induced the jury, under the circumstances, to believe that defendant’s omission to offer any evidence was an admission of his guilt, which is not correct in principle, as the presumption of innocence exists in favor of the accused, and the prosecutor must prove the guilt beyond a reasonable doubt. The accused is justified in relying, if he chooses, upon the insufficiency of the evidence adduced by the prosecution, and his so doing should not be taken as an acknowledgment by him of his guilt.

As this case must be remanded for a new trial, we think it well to pass on the points in the motion in arrest of judgment.

First — “The indictment is founded on section 833 R. S. of 1870, and should have been based on section 10 of article 73 of 1872.”

Section 833 provides that, “ whoever shall forge or counterfeit, or falsely make or alter, * * * any certificate or attestation of any public officer, in any matter wherein his certificate is receivable and-may be taken as legal proof, * * * or shall alter or publish as true any such false, altered, forged or counterfeited certificate or attestation, * * * knowing the same to be false, altered, forged or counterfeited, with intent to injure or defraud any person, * * * shall be punished by imprisonment at hard labor, for not less than two, nor more than fourteen years.”

Section 10 of article 73 of 1872 provides: “ That it is hereby declared' a felony to forge or falsely sign, fill up, alter or utter, or publish as-true any * * * certificate, * * * or any part thereof, as given, made out or signed by the Mayor or any administrator of department of the city of New Orleans, or by any officer, deputy, clerk or other person authorized by them, or either of them, and which may be given; credence to, or pass, or be received as genuine or authorized, and be-calculated to deceive or defraud any holder, receiver, transferree, pledgee, or other person. Any person, upon being found guilty of such offense, shall be sentenced to imprisonment at hard labor not less than two nor more than twenty years.”

We do not see that the latter law so far abrogates the former that a. person may not be indicted under the former, as was done in this case, for publishing as true, false, forged and counterfeited certificates of' a public officer,” etc.

Both laws are easily construed so as to give effect to each, and will' support an indictment if properly drawn up under each respectively.

Second — “Whether preferred under the one or the other statute, the indictment does not properly set fonth the offense, and is defective in substance.”

The first count reads, “ feloniously and falsely did publish as true, with intent to injure and defraud Louis W. Perkins, * * * a certain false, forged and counterfeited certificate of a public officer, in a matter wherein his certificate is receivable, and may be taken as legal proof, to wit: a certificate purporting to be a certificate of appropriation of the city of New Orleans, numbered 18,195, tor the sum of $601 50 (six hundred and one dollars and fifty cents), purporting to be issued from the department of public accounts of said city, and purporting, moreover, to be signed by N- C. Snethen, and to be paraphed by J. C., meaning John Calhoun — he, the said William Carr, alias-James E. Hickey, at the time he so published as true the aforesaid false, forged and c'ounterfeited certificate of a public officer, in a matter wherein his certificate is receivable, and may be taken as legal proof, then and there well knowing the same to be false, forged and counterfeited, contrary to the form of the statute in such case made and provided.”

This does, in our opinion, properly set forth the offense described in section 833, R. S. of 1870, under which the indictment was drawn, and is not defective in substance. It follows, substantially if not literally, the language of said section in declaring the publishing as true a false, forged and counterfeited certificate of a public officer, naming one, and describing the certificate so published, and charging knowledge and the felonious intent. The other two counts are equally if not more explicit. Under sections 1049 and 1059 R. S., the description of the instrument is sufficient.

It is therefore ordered that the judgment appealed from be reversed, and that this cause be remanded for a new trial, in accordance with the foregoing opinion and the law.


text:
    No. 2966.
    W. B. Whitehead v. Thomas S. Dugan.
    This action, as its character appears from the petition, is a suit for a tort or trespass ; and’ the defendant is sought to be made liable in solido as a co-trespasser with another person, with whose trespass, if committed, he is in no manner connected.
    If such an action would lie against the defendant, it is certainly barred by the prescription-of one year, which is pleaded.
    APPEAL from the Seventh District Court, parish of Orleans. Gollens, J.

      B. Billeul, Randolph, Singleton & Browne, for plaintiff and appellee. JuKan Michel, Clarice, Ba/yne & Renshaw, for defendant and appellant.
   Wyly, J.

The plaintiff alleges that he is the owner of a sugar-plantation in the parish of St. Charles, on the Mississippi river, and adjoining the plantation lately belonging to one Hoyt and now owned by the defendant, Thomas S. Dugan; that within the iast twenty-four months the hands and laborers employed on said plantation, now owned by said Dugan, have trespassed on your petitioner’s said lands, and eut wood and timber to the value of $3115 90, according to the account annexed to the petition; that a very large ■ portion of said wood, timber, staves, bridge timber, etc., if not the whole, was on the ■said Dugan plantation at the time Dugan purchased it from Hoyt, as before stated, which the said Dugan we.1 knew at the date of said purchase, and in order to protect himself from the just demands of your petitioner, as set forth above, the said Dugan had inserted in the-act of sale by which he acquired said plantation from said Hoyt, a clause whereby he sought to indemnify himself against the said demands of your petitioner; that the said Dugan refused to deliver to your petitioner said wood, staves, bridge timber, etc., and has used for his own benefit a large portion thereof, and retains unlawful possession of the balance; “that by reason of the foregoing and the said acts of the said Dugan he became a co-tresp¿sser with said Hoyt, and is liable in solido to your petitioner for the full value of all of said wood, staves, bridge timber,” etc.

These are the allegations of the petition, and the prayer is for judgment against Dugan for the sum of $3115 90.

The defendant denied generally the allegations of plaintiff’s petition, and specially denied the allegation charging him with being a trespasser upon the plaintiff’s lands. He also pleaded the prescription of one year in bar of plaintiff’s action.

The court-gave judgment against the defendant for $544 -50, and he has appealed. We have carefully stated the pleadings, because we have not found that they disclose a cause of action against the defendant.

Where the obligation arises that the plaintiff seeks to enforce we are at a loss to conceive. That Dugan bought a plantation from Hoyt, on which was a quantity of wood, staves, bridge timber, etc., which had previously been cut from the land of the plaintiff did not make Dugan a trespasser. It did not create an obligation against Dugan; because as to the latter there was no offense, quasi-offense, contract, or quasi-contract, nor an obligation arising by operation of law in favor of the plaintiff.

The clause referred to in the contract between Hoyt and Dugan, created no legal obligation in favor of the plaintiff; nor did it create an obligation in favor of Hoyt. The obligation arising from that clause was the obligation of warranty, of which Dugan was the creditor, not the debtor.

It is as follows: “The said Mark Hoyt covenants and warrants to and with said Thomas S. Dugan, that all debts and dues of the laborers, employes, furnishers of supplies or materials on or for the use of said plantation, up to the fifteenth of-March instant inclusive, have 'been paid; that the parish taxes for the year 1867 have been paid, and that the said Hoyt shall pay all other taxes, such as State tax, convention tax, etc., as may be due and payable up to said fifteenth March, 1868; and that if any claim be made and recovered bv William B. Whitehead, for wood or staves alleged to have been cut by said Hoyt on the land claimed by said Whitehead, he, the said Hoyt, shall be responsible therefor to said Dugan,-and indemnify the latter for all damages he may suffer in consequence of said claim.”

As security for this obligation of warranty, Hoyt deposited with Dugan two thousand dollars and took, the following receipt: “Received, New Orleans, March 24, 1868, from Mark Hoyt, Esq., two thousand dollars, which I shall return to him as soon as he has satisfied me as to the payment of the taxes due on the Killona planta ion, and as to the claim of William B. Whitehead, as stated in the act passed between Hoyt and myself, before P. C. Cuvellier, notary, under date of this day.”

Neither the clause in the act referred to, nor the receipt just quoted, created an obligation in favor of the plaintiff; nor do they in the least advance his pretensions against the defendant. They in no manner authorize the defendant to settle the unliquidated claim for damages ■which the plaintiff had against Hoyt.

Suppose the defendant were to give the two thousand dollars which he received from Hoyt to the plaintiff in settlement of the claim of the latter against the former, and Hoyt were now suing him for the money, would the defendant, the depositary, be heard in defense to say that he used it in settling the claim for damages which Whitehead had against Hoyt, when that claim, not having been sued on, is barred by prescription 9 And besides it was a claim which Dugan was in no manner bound to pay.

The action, as its character appears from the petition, is a suit for a ■tort or trespass ; and the defendant is sought to be held liable in solido as a co-trespasser. If such an action would lie against the defendant, it is certainly barred by the prescription of one year, which is pleaded.

The industry in cutting the -trees and making the staves and bridge timbers greatly exceeds the value of, the trees before they were cut; -and the party bestowing this industry would have the right to keep them on paying the value of the trees. Revised Code, 526.

So, therefore, if no damages had been claimed, and the staves and bridge timbers were seized in the possession of Hoyt, he would have the right to keep them on the condition of paying the owner of the trees their value at the time they were cut. But such a case is not before-the court.

The defendant is simply sought to be held liable for a tort committed' by Hoyt, and with which he is in no manner connected.

It is therefore ordered that the judgment herein be annulled, and it is further ordered that there be judgment for the defendant, plaintiff paying costs of both courts.

Rehearing refused.


text:
    4663.
    State of Louisiana v. L. E. Lemarie and als.
    Wliero the defendant being sued as a defaulting tax collector, Ms defense was that the State Treasurer illegally refused to receive from Mm certain State warrants which he alleged he took in payment of taxes;
    Held — That the defense was not tenable, because at the time tbe warrants wore tendered, the treasurer was in-joined by tbe Superior District Court from receiving the same, and because said warrants were illegally issued, no appropriation for such purpose having been made as required by article 104 of the constitution, and because the defendant did not, in relation to those warrants, comply with the provisions of section 3337, Devised Statutes.
    APPEAL from the Superior District Court, parish of Orleans. Hcm-Icins, J.

      A. P. Field, Attorney General, for plaintiff. Henry CL Dibble, for defendant and appellant.
   Howell, J.

The defendant is sued as a defaulting tax collector. His defense is that the State Treasurer illegally refused to receive from him certain State warrants, which he alleges he took in payment of taxes. The only matter now in contest is his right to pay into the treasury State warrants, amounting to $5469 23, which were issued, by James Graham, Auditor, from August 2 to December 2, 1872, for alleged election expenses. The Treasurer refused to receive them because at the time they were tendered to him he was injoined by the Superior District Court from receiving them, and in addition to this the Attorney General contends that the said warrants were illegally issued, no appropriation for such purpose having been made as required by article 104 of the constitution, which he says is the ground of the said injunction-, and further that the defendant did not indorse upon each warrant the date, from whom received, and the amount of taxes thereby paid by the party from whom such warrant was received, as required by section 3337 Revised Statutes.

Each of those grounds is sufficient to justify the refusal of the treasurer.

There was no appropriation, as it appears, on which the warrants could he drawn, and we will add that the testimony of the defendant himself does not satisfy us that he received the warrants in question from taxpayers in payment of the proportion of their taxes, which, it. is contended, may "be paid with State warrants. Conceding that the tax collectors may be properly authorized to receive State warrants in payment of a specified proportion of the taxes, upon which we express no opinion, they must be careful to receive only such warrants as are issued under specific appropriations and are specially made receivable for taxes, and when so received the tax collectors must comply with •the above law and indorse on each warrant the date of its reception, the name of the taxpayer and the amount of his taxes so paid with such warrant, and they are further required by the said law to make oath that the warrants they pay “into the treasury are the identical warrants received by them, and that they have not purchased or speculated in warrants in anyway, directly or indirectly, and that they have received said warrants at their face value.” This has not been done by the defendant.

Judgment affirmed.


text:
    No. 4627.
    State ex rel. M. Phillips v. New Orleans Gas Light Company.
    There seeming to “be no special denial of defendants in this case, of their obligation to issue certificates of stock to the owners thereof, the proceeding by mandamus is authorized to compel them to do so, if the ownership is not’ disputed.
    The loss of plaintiffs certificates and the advertisement thereof being sufficiently established, the defendants can not refuse to issue new certificates on the ground that a bond of ■■indemnity is not furnished. There is no good reason for requiring such a bond.. The ñ to ok can not be transferred by relator except upon the books of the respondent and on ¿he production of the certificates. This is sufficient protection to the company.
    APPEAL from the Superior District Court, parish of Orleans. Ham-Terns, J.

      George L. Bright, tor plaintiff and appellee. J. A. Bonier, for defendant and appellant.
   Howell, J.

The respondents have appealed from a judgment making peremptory a mandamus directing them to issue to relator two certificates of stock in lieu of two Jost by her. The defense is that no cause is shown for a proceeding by mandamus; that the relator can obtain relief by an ordinary action; that plaintiff has not lost the certificates as alleged; that according to the by-laws of the company the loss of certificates must be advertised for a certain time, and new ones may be issued upon the applicant therefor giving bond and certificate; that defendants have at all times been willing to issue and deliver to the relator new certificates, provided relator proves the loss, the advertisement thereof, and furnishes a bond of indemnity, as required by the said by-laws, which relator fails and refuses to do, and that defendants apprehend that relator may have sold, transferred, pledged or parted with said certificates.

There seems to be no special denial of defendants’ obligation to issue certificates of stock to the owners thereof, and hence the proceeding, by mandamus is authorized to compel them to do so if the ownership is not disputed. The question here relates to the applicant’s right to new certificates in lieu of those which it is admitted she owns, but it is denied that the facts entitle her to such new issue.

We concur in the opinion of the judge a quo that the relator has-shown her right to the new certificates demanded. The loss and the advertisement thereof are sufficiently established, and we do not think the defendants can refuse on the ground that a bond of indemnity is-not furnished. We can perceive no good reason for requiring such a bond. The stock can not be transferred by relator, except upon the books of the respondent and the production of the certificates. This,, it seems to us, is a protection to the company. The relator is entitled-to certificates of her stock.

Judgment affirmed.

Rehearing refused.


author: Ludeling, C. J.

text:
    No. 2768.
    Miguel G. de Lizardi v. The New Orleans Canal and Banking Company.
    The seizure of A’s property under a suit against B, is a quasi offense, and the action based upon an obligation springing from a quasi offense, is prescribed by one year.
    Whore it was contended that even if the source of the obligation incurred by the defendant be conceded to have been a quasi offense, such as the wrongful attachment of the plaintiff ’s property, still the prescription should not begin to run until the end of the wrongful act, for until then the amount of the damages done by the continuous attachment could not have been ascertained ¡

    Held — That if there is good reason why the law regulating prescriptions in such cases ought to be as is contended, yet that this court has no right to alter the positive provisions of the code which declares that prescription runs from the date on which the injury or damage was sustained.
    But it is incumbent upon the party pleading prescription to show what portion of the dam-ages proved occurred anterior to the year preceding the institution of the suit, or in other words, to establish what part of the plaintiff’s demand is prescribed.
    In fixing the rents due for the plantation seized, the highest estimate which the evidence will-permit must be adopted, as the property was tortiously taken from the possession of the plaintiff.
    APPEAL from the Fourth District Court, parish of Orleans. Théard,, J. Trial by jury.

      Roselins, Alfred Philips and A. Robert, for plaintiff and appellee. Lea, Mrniey & Miller, Campbell, Spofford & Campbell, Hyams & Jonas, for defendants and appellants.
   Ludeling, C. J.

The plaintiff sues for eight hundred and seventy-five thousand five hundred and eighteen dollars and ninety-three cents. It is alleged that the petitioner has been and still is the owner of a sugar plamation situated in the parish of Plaquemines, in this State, known as the Sauta Anna Plantation; that while he was in the peaceable possession and enjoyment of said plantation, with all the appurtenances thereunto belonging, tbe said New Orleans Canal and Banking, Company instituted a suit against Manuel Julian de Lizardi, on or about the fifteenth of July, 1861, by virtue of a writ of attachment issued in said suit, said defendant illegally and wrongfully directed the sheriff to levy said attachment on the said sugar plantation, a large quantity of sugar and molasses, and other property on said plantation,, all of which is detailed and set forth in the return of said writ of attachment, on file in said suit, in this honorable court; that said illegal attachment and seizure of the property of your petitioner was persisted in by said defendant, notwithstanding the remonstrances of your petitioner, from the fifteenth of July, 1861, to the eighteenth of June, 1868, when said plantation, and such portions of the other property which had not been lost and destroyed, were returned to your petitioner. And your petitioner further represents that the said suit,, which said defendant had instituted against Manuel Julian de Lizardi, was finally decided against said New Orleans Canal and Banking Company by the Supreme Court, as will more fully appear, together with other necessary particulars from the decree of the Supreme Court, which has been filed in this court, to which reference is made as part of this petition. And your petitioner further represents that the-damage and injury suffered and sustained by the illegal attachment, and seizure of the property of your petitioner, during the period aforesaid, amounted to the aforesaid sum of eight hundred and seventy-five thousand five hundred and eighteen dollars ninety-three cents, as will more fully appear, together with the details and specifications of the items of said damage and injury made part of this petition. And your petitioner further represents, that when said New Orleans Canal, and Banking Company obtained said order of attachment, Effingham Lawrence, Esq., became the security on the attachment bond on file iu said suit, and that said Lawrence is liable in solido, with the New Orleans Canal and Banking Company, to the exteat of the amount of said bond for the damage herein claimed. And your petitioner further represents that the amount of the crops in the specification of the damages sustained by him, by the illegal acts and doings of the defendant aforesaid, could and would have been made on said plantation if it had not been illegally attached and seized during the period aforesaid; that although amicably demanded, the defendant has neglected and refused to pay said debt.

The answer was a general denial and a prayer for a trial by jury.. Subsequently the plea of prescription of one and three years was filed.

The jury rendered a verdict in favor of the plaintiff for one hundred and eighty-five thousand dollars, and the defendant appealed.

The first question to be decided is, from what does the obligation sued upon spring ?

The plaintiff contends that it arises ex quasi contractu negotiorum■ .gestorum j while the defendant insists that it arose ex deUcto or ex quasi delicto.

The allegations of the plaintiff are that Ms property was illegally .seized and taken out of his possession by the sheriff, at the instance of the defendant, under an attachment against a third party, and that the damage and injury suffered and sustained from the illegal attachment and seizure of his property during the period aforesaid amounted to the aforesaid sum.”

It has often been decided by this court, that the seizure of A’s property, under a writ against B is a quasi offense. Delisle v. Morgan, 2 N. S. 24; 6 R. 382, Edwards v. Turner; 9 Mart. 624; 5 La. 39; 9 An. 490; C. C., articles 2315, 2316.

The action based upon an obligation springing from a quasi offense is prescribed by one year. C. C., article 3536 ; 20 An. 151, 214, 323.

The learned counsel for the plaintiff insists, however, that even if ■the source of the obligation incurred by the defendant be conceded to have been a quasi offense, the wrongful attachment of the plaintiff’s property, still the prescription should not begin to run until the end of the wrongful act, for until then the amount of the damages done by .the continuing attachment could not have been known ; and he refers to the case of Mestier v. The New Orleans, Opelousas and Great Western Railroad Company, 16 An. 354, in support of that position.

We concede that there is good reason why the law regulating prescription in such cases ought to be as the counsel contends that it is. But we have no right to alter the positive provision of the code, which declares that prescription runs from the day on which the injury or ■damage was sustained. C. C. 3637. And that is what is maintained in the case of Mestier, quoted by plaintiff, as we understand that case.

We think the prescription of one year should be maintained against the portions of .the demand of the plaintiff, which arose one year before the institution of this suit.

But it is incumbent upon the party pleading prescription to show ■what portion of the damages proved occurred anterior to the year preceding the institution of the suit, or, in other words, to prove what part of the plaintiffs’ demand is prescribed.

The evidence shows that the plantation of the plaintiff was in first rate order when it was attached, and that it was in very bad order, when it was delivered to the plaintiff in July, 1868. That the ditches .and draining -canals were partially filled, the bridges rotten and the ■ cabins, draining machines, etc., were-greatly out of repair.

When questioned by the defendant, Mr. Pilie, a civil engineer, who .made an estimate of the cost to repair the damages done on the plantation, answered that the bridges had not suddenly become rotten, nor .had the ditches.and canals suddenly been filled; that the ditches and canals had been filled in about twelve or eighteen months” and the bridges and cabins had got in their damaged conditions in about two years. This does not enable us to say wliat part of the damages occurred more than a year before the suit. The same remark is applicable to the injury done to the draining machine and other machinery on the place. The evidence shows that the stable was blown down by a storm, and more than a year before this suit was filed.

The defendant is not responsible for the destruction of the stable, nor for the fruits of the plantation, except for the last year preceding the institution of this suit. The defendant is responsible for the injury done to the plantation, which he has failed to prove occurred more than a year before the suit, and for the rent of the plantation for the last year the plaintiff was deprived of his property.

In fixing the rents of the plantation, we adopt the highest estimate which the evidence will permit us to adopt, as the property was tortiously taken from the possession of the plaintiff, to wit: $10,000; and we estimate the damages to the plantation, in the filling up of the ditches and draining canals, the destruction of bridges, injury to cibins, etc., at $19,511 48.

It is therefore ordered and adjudged that the verdict of the jury be set aside; that the judgment of the lower court be annulled, and that there be judgment in favor of the plaintiff against the defendant, the New Orleans Canal and Banking Company, for the sum of $29,511 58, with five per cent, per annum interest from seventeenth January, 1870, and costs of the lower court. It is further ordered that the costs of appeal be paid by appellee.

Rehearing refused.

Mr. Justice Morgan took no part in this case.


text:
    No. 4104.
    State of Louisiana v. Julius Socha.
    "Where the appellant referred to the written reasons of the judge a quo in refusing a new trial, for the facts in regard to the qualifications of a juror and the time at which appellant alleged he became aware of said facts,*
    Held — That it does not appear that timely objection was raised, or a bill of exceptions reserved on this point, or an assignment of errors made on the record. The only mode of bringing the facts of a criminal cause in this respect before this court, is by bill of exceptions.
    This court is not authorized to refer to the reasoning of the judge a quo for the facts. Errors of law in a motion for a new trial can be reviewed here, but not the facts.
    APPEAL from the First District Court, parish of Orleans. Abell, J. Criminal case.

      Simeon JBelden, Attorney General, for the State.

      Castellanos <& Castinel, for appellant.
   Howell, J.

The defendant has appealed from a judgment condemning him to pay a fine of five hundred dollars and forfeit his license upon the charge of keeping a disorderly ale and tippling house.

The error, as alleged, which he brings to our notice is a point made-in a motion for a new trial, that “ one H. Stackhouse, a juror empanneled in this case, was not a registered voter and was not qualified to sit as a juror upon the trial of this cause.”

It does not appear that timely objection was made or a bill of exceptions reserved on this point; nor is theie an assignment of errors-in the record. The appellant however refers us to the written reasons-of the judge a quo for refusing the new trial, for the facts in regard to the qualifications of said juror and the time at which appellant alleges he became aware of such facts. It has often been held that the-only mode of bringing the facts of a criminal cause in this respect, before this court, is by bills of exceptions; we are not authorized to-refer to the reasoning of the judge for the facts. Errors of law in a. motion for a new trial can be reviewed by us, but not the facts. Judgment affirmed.

Rehearing refused.


text:
    No. 2967.
    A. Torre & Co. v. Thiele, Seiler & Co.
    The sale by an agent after the owner had sold the property conferred no title. The power to* sell was impliedly revoked by the owner’s sale. In this case no damage is shown to have been done to the plaintiffs. They had not paid for the price, and within an hour or two after the agreement to sell to them, they were informed that the property had been previously sold by the owner and for less than they had agreed to give.
    APPEAL from the Seventh District Court, parish of Orleans. Oollens, J.

      Eoselius <& Philips, for plaintiffs and appellees. T. Gilmore <& Sons, for defendants and appellants.
   Ludeling, C. J.

This suit was originally instituted to enforce the-specific performance of the following contract of sale :

“Sold to A. Torre & Co. cargo of fruit per schooner Village Belle from Utilla, about 2000 cocoanuts, 750 bunches bananas and 8800 plantains, for the round sum of two thousand dollars currency, cash. New Orleans, twenty-sixth of April, 1807.”

An oi der of sequestration issued and was set aside by defendants bonding the fruits, whereupon the plaintiffs filed an amended petition asking for damages instead of a specific performance of the contract.

The evidence satisfies us that the above sale was made by an agent after the fruits had been sold to Tramontana by Seiler himself. Clearly the sale by the agent, after the owner had sold the fruits conferred no-title. The power to sell was implieldy revoked by the sale made by the owner. Story on Agency, section 500. Nor is there any damage-shown to have been done to the -plaintiff. He had not paid the price, and within an hour or two after the agreement to sell to him, he was informed that the fruits had been previously sold by the owner, and for less than he had agreed to give. The judgment in favor of the plaintiff is therefore erroneous.

It is ordered and adjudged that the judgment of the lower court be reversed, and that there be judgment in favor of the defendants, rejecting the plaintiffs’ demand with costs of both courts.