author: Ludeling, C. J.

text:
    No. 1872.
    St. Charles Hotel Company v. J. L. Tarbox & Co.—J. D. Hamilton, Intervenor.
    Movable property belonging to the lessee, and placed by him on the leased premisos, is pledged to the landlord for the payment of the rent. C. C. 2075. Such property may be seized by the landlord while on the premises or within fifteen days thereafter, provided the lessee continncs to be the owner. Bat if the lessee ceases to bo the owner, then and in that case it can not be seized for the rent after it has been removed from the promises.
    APPEAL from the Fourth District Court, parish of Orleans.

      Théard, J. Armand Pitot, for plaintiff and appellee.

      JEhnmet JD. Oraig, for intervenor, appellant.
   Ludeling, C. J.

The plaintiff seized the stock and fixtures of the defendants, in the basement of the St. Charles Hotel, under an order of provisional seizure, for rents, and some days afterward a further seizure was made of some furniture found off the premises, in the possession of the intervenor.

The evidence shows that the furniture last seized had been transferred and delivered to Hamilton by a datien en paiement, and that lie bad removed them from tbe premises leased before the seizure. Article 2675 of the Civil Code gives to the lessor a right of pledge on the movable effects of the lessee, which are found on the property leased; and articles 2679 of the Civil Code and 288 of the Code of Practice authorize the seizure thereof while on the premises leased, or within fifteen days after they are taken away without the consent of the lessor, provided they continue to he the property of the lessee. In this case the evidence shows that the furniture claimed by the intervenor had ceased to belong to the lessee. 16 An. 350, Delband v. Pickett, Stewell, intervenor.

It is therefore ordered and adjudged that the judgment of the district court be set aside, and that there be judgment in favor of tbe intervenor rocognizing him to he the owner of the furniture described in his petition, and for costs of both courts.


source: Caselaw Access Project

author: Wyly, J.

license: Public Domain

text:
    No. 3604.
    State of Louisiana, ex rel. Board of School Directors of the Parish of Bossier, v. James Graham, Auditor.
    School diroctors of any parish district or ward may be removed from office by the State Board of Education on charges of negligence, incompetency, or violation of law, after a duo hearing and fair trial. The removal of any director by telegram issued by the State Superintendent, or the district superintendent, or by the order of either of them, is abso- . lately null and void. The Auditor of Public Accounts can not, therefore, refuse to issue warrants in favor of such directors for school moneys belonging to their district on the grounds that he has been notified that they have been removed from office by the State Superintendent.
    APPEAL from the Eighth District Court, parish of Orleans. Emerson, Judge of the Third District Court, presiding in the Eighth, in place of Dibble, Judge, absent.

      Bennie & Belden, for relator, appellee.

      William Grant, for the Governor, appellant.
   Wyly, J.

The Governor of the State has appealed from the judgment rendering peremptory the mandamus sued out by the relators to compel the Auditor to issue to them, in their representative capacities, warrants to the amount of $37,519 07 claimed by them to he due from the State treasury to the parish of Bossier for public schools.

Auditor Graham, the defendant, has not appealed,

The answer sets up two grounds of defense only:

First — The Auditor avers “that he has hitherto acknowledged the relators as the school board of the parish of Bossier, but that on the first day of October last and since he has been notified by J. Sella Martin, Superintendent of Education, Eourth Division of Louisiana, that they have been removed, and like information has been given him by the Secretary of the State Superintendent of Education, and in view thereof he declines to exercise any discretion in the premises, and having notified the State Board of Education of the demand herein, he prays his action be affirmed.

Second — And respondent, for further cause, sets forth that the orders or certificates presented by relators are not signed as required by law, and lie can not issue his warrants for the same as the relators demand.”

It is not denied that the amount for which warrants are demanded is due the school directors of the parish of Bossier, besides the fact is shown affirmatively. It is shown that the relators are the school directors of said parish, that they were duly appointed and qualified, and that their term of office has not expired. The effort to show their removal from office is a failure. Neither the telegram of the State Superintendent of Education nor the letter of the Superintendent of the Eourth Division could divest the relators of office, because the law declares that “the State Board of Education shall have power to remove any parish or district school director for negligence, incompetency or violation of law, after a due hearing and fair trial.” Kay’s Digest, 533, section 29. It is not shown that the State Board has ever removed tlie relators from office, and the attempt to do so by unauthorized parties is utterly void.

The second ground of defense is also untenable. The ‘‘orders or certificates presented by the relators” are signed by the Secretary of the State Superintendent of Education, and this must be deemed sufficient, because it is not denied that the apportionment stated in said certificates is correct. It is not denied that the parish of Bossier is entitled to the amount of warrants claimed, but the main contest seems to bo as to the authority of the relators to receive the warrants in view ol their alleged removal from office.

As to tiie irregularities complained of by the appellant in the proceeding by mandamus against the State Superintendent of Education by which the relators obtained the certificate of apportionment, we will remark that the judgment therein has not been appealed from •, that it was duly executed, and its correctness can not be examined in revising the appeal in this case.

Judgment affirmed,


author: IIowell, J.

text:
    No. 3439.
    State ex rel. Mrs. A. Tureaud v. Parish Judge of Ascension.

      A gnrmslieo wlio has taken an exception to the right of the plaintiff to require her to answer interrogatories, may appeal from the judgment overruling the exception it the amount involved is sufficient to give the appellate court jurisdiction.
    The fact that the garnishee subsequently answers the interrogatories which disclose a - liability, can not be construed into a confession of judgment so as to defeat the right of api>eal.
    APPLICATION for Writ of Mandamus.

      Trist <& Oliver, for relators.

      m. A. Mason, Parish Judge, respondent.
   IIowell, J.

The relator having been made garnishee under writs of fieri faeias in several suits, answered that she had in her hands, belonging to the defendant in said suits, a large sum of money, hut filed with her answers an exception (which was reserved in the answers) to the right of the plaintiff to require her to answer the interrogatories, on the ground that after the service thereof the seizure had been abandoned by the return of the writs without retaining copies. From the judgment dismissing the exception and ordering her to pay the money to the sheriff, she asked for a suspensive appeal, which was refused by the parish judge, acting in the absence of the district judge, whereupon she applied to this court for a mandamus.

The judge answers that the judgment from which an appeal is sought is interlocutory, and can work no irreparable injury, that no execution can issue on said judgment, which amounts to a confession of judgment, and is therelore not appealable.

Whether the exception be well made or not, is a question to be determined only on appeal, and not in settling the right to an appeal. The garnishee having denied the right of plaintiff in execution to require the interrogatories propounded to be answered, and having-filed answers with a reservation of the issue thus raised, she is entitled to have the action of the judge a quo dismissing her excéption and condemning her to pay, reviewed on appeal, whatever may be the real merits of her defense.

We apprehend it will not be questioned that a party has the right under our Constitution and laws to take an appeal when the amount involved is sufficient, even if such appeal should afterward be declared-frivolous, unless the case is within the prescribed exceptions. This case is not in that category. It is not properly a confession of judgment from which no appeal lies, as the admission of having money belonging to the debtor does not in this instance necessarily admit the right of the creditor to it. The amount involved is sufficient, the judgment is a final one, and the appeal was applied for in due form within the legal delay. Under such circumstances, it should have been allowed.

It is therefore ordered that the mandamus issued herein be made peremptory.


author: Taliaferro, J.

text:
    No. 3122.
    Succession of G. W. L. Marr, deceased—Opposition of Heirs to Administrator’s Account.
    An administrator is personally responsible to tlie heirs for money which he has received "belonging to the estate he represents, if he pays the same to a person not authorized to receive it.
    An administrator-of an ancillary estate situated in Louisiana, whom it is shown has acted in good faith, ought-not to he inflicted with the stringent penalties denounced hy statute against delinquent administrators.
    APPEAL from the Second District Court, parish of Orleans.

      JDuvigneaud, J. JB. 22. Forman, for appellants.

      Bandolpli, Singleton & Browne, for appellees.
   Taliaferro, J.

The facts on which this controversy is based seernto be as follows: Gr. W. L. Marr died in Tennessee, and his son Richard became Administrator of his estate. Lonsdale, of New Orleans, was indebted to Gr. W. L. Marr in the sum of $3000, as shown by three several promissory notes of $1000 each held by Richard Marr, the administrator, who, coming to New Orleans to collect these notes, found the debtor unwilling to make payment except to an administrator appointed in Louisiana. To obviate this difficulty Richard Marr prevailed upon Robert H. Marr, the defendant in this case, to take out letters of administration in his own name, solely, as it appears, for the purpose of collecting the notes of Lonsdale. This was effected by Robert H. Marr as administrator of the ancillary succession. About this time Richard Marr was sued in New Orleans as indorser of notes to the amount of $20,000 with interest. Robert H. Marr was retained by Richard Marr as his attorney to defend the several suits brought against him on these notes. The defense, after protracted litigation, was successful, and Richard Marr was released from his obligation as indorser. No formal account was ever presented by the Louisiana administrator. As attorney of Richard Marr in the heavy suits brought against him in New Orleans, R. H. Marr thought himself entitled to a fee of $2000. He had received on the Lonsdale notes $3052. He paid Richard Marr as administrator $700, which left a balance of $2352 in his hands. This balance R. H. Marr retained to cover costs of administration and fees due him by Richard Marr, leaving him to account as principal administrator for the cash payment made to him of $700, and for the balance applied to his individual debt. At that time Richard Marr was in possession of ar large amount of property and deemed to be a man of large fortune. He was administrator of his father’s estate,, and under the will of the decedent the bulk of his estate was devised to Richard Marr. Under this aspect of things the Louisiana administrator rested securely in the belief fhat no further action was necessary on his part and rendered no account.. He testifies that during the war that soon followed these proceedings, his books and papers passed from under his control. That in 18G0 his desk, in which many of his valuable papers were deposited, was returned to him, but that many of his books and papers were lost, and have never been recovered. Hence he is unable to produce any written evidence of the manner or basis of settlement with any of the parties in interest in these transactions. It turns out, however, that the grounds upon which he predicated his proceedings with Richard- Marr were wholly fallackms. Richard Marr proved insolvent, the will of his father was annulled, and he had been removed as administrator of his estate before he put the Lonsdale notes for collection into the hands of R. H. Marr.

Three of the four heirs of G. W. L. Marr have brought this suit to compel R. H. Marr, in his capacity of administrator, to file his account, to produce his bank book showing the separate bank account of the succession, if any such account he has kept, and to pay to each of them $3450, with twenty per cent, per annum interest for failing to make a separate deposit in bank of the funds of the succession, and that he be condemned to pay ten per cent, interest per annum from fourth February, 1861, for failing to render an account. The court below rendered judgment against the defendant iu favor of each of the plaintiffs for the sum of $406, less the sum of $50, paid to Mrs. Toler, one of the plaintiffs, and to be deducted from her share. From this, judgment the plaintiffs appeal.

In the year 1861 John Marr, one of the heirs, and representing the other two plaintiffs, came to New Orleans and received from R. II. Marr $1318 95 on account of his collection of the Lonsdale notes. This is established b.y John Marr, one of the plaintiffs, who testified that the receipt originally given by R. H. Marr to Richard Marr for the notes of Lonsdale, and upon which was indorsed this payment of $1318 95, is lost. At the time of this payment to John Marr, R. H. Marr retained $700 paid to Richard Marr as administrator, and also his portion of the proceeds of Lonsdale’s notes for the fee due him as his attorney individually. He subsequently paid Mrs. Toler $50. The $700 paid to Richard Marr the Louisiana administrator must lose, as having paid it improvidently to a person not authorized to receive it. $108 80 were allowed him as commissions. This added to the $1378 95, and the sum deducted from $3052, the proceeds of the Lonsdale notes, leaves $1624 25, as ascertained by the judge a quo, for distribution between the plaintiffs.

We think the judgment correct. Under the peculiar circumstances of this case, there being no creditors of the succession in Louisiana, and the administrator in this State, having acted in good faith, we do not think the spirit and purpose of the strongest law invoked by the plaintiff require that its provisions should be enforced in this case.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed with costs.


text:
    No. 3366.
    State of Louisiana v. Wardens of the St. Louis Cathedral.
    Aiticlo 114 of the constitution directs that every law shall express its object or objects in its title. The title of the act No. G8, of 1870, is silent on the question of the extension of the jurisdiction of the Third District of the parish of Orleans.
    Section 57 of this act, which gives jurisdiction to the Third District Court of the xiarisli of Orleans in tax suits, is therefore unconstitutional and void.
    APPEAL from the Third District Court, parish of Orleans.

      Emerson, J. S. Belüen and J. B, ELornor, for plaintiff and appellee.

      Charles IP. Claiborne, for defendants and appellants.
   Ludeling, C. J.

The plaintiff is seeking to enforce the collection ot taxes lor the year 1809, alleged to ho due by the defendants, who filed several exceptions. We deem it necessary to notice only one of them, that is the want of jurisdiction in the Third District Court of the parish of Orleans to try the cause, ratione material. Under the constitution the jurisdiction of that court is limited to appeals from justices of the peace. Art. 83 Constitution.' It is contended by the plaintiff that this jurisdiction was enlarged by act No. 68, approved sixteenth March, 1870. But the defendants contend that the provision of that act which attempts to confer jurisdiction upon the Third. District Court is unconstitutional, because the objects of the law are not stated in its title.

We think the objection well founded. Article 114 of the Constitution declares that “every law shall express its object or objects in its title.”

The title of the law in question is “An act to provide a revenue, to levy and collect taxes, to grant and collect licenses, to provide for the creation, appointment and removal of revenue officers, and to define their duties; to punish certain crimes and misdemeanors, and to create lien and mortgages in favor of the State in certain cases,- to regulate the manner of the payment of moneys from the treasury.”

Nothing in this title indicates that the jurisdiction of the Third District Court was extended. Section 57 of the act No. 68 of the General Assembly of 1870 is therefore clearly unconstitutional, null and void.

¿t is therefore ordered and adjudged that the judgment of the court •a qua be set aside, and it is further decreed that the suit be dismissed.


text:
    No. 2352.
    F. W. Irvine & Co. v. R. H. Short & Co.
    Checks on a bank which have been loaned to a third party, can not be enforced against such third party by the drawer thereof if it be shown that they were paid by the bank in Confederate treasury notes, on deposit in the bank to the credit of the drawer of the checks.
    APPEAL from the Sixth District Court, parish of Orleans.

      Oodley, J. JJreaux c£- Fenner, for plaintiffs and appellees.

      Semmes <& Mott, for defendants and appellants.
   Ludeling, C. J.

The plaintiffs allege that on the first day of April, 18G2, they loaned to defendants $500, and on the second day of April, 1862, they loaned them $2000, which sums have never been repaid, although amicably demanded. They further aver that “said loans were made in checks upon the Merchants’ Bank” of New Orleans, “which checks were collected by and for account of R. H. Short & Co., and that they were not collectable in Confederate money.”

The defense is substantially that the checks were drawn against Confederate treasury notes, and that they were paid in said currency.

We think the evidence fully sustains.the defense. The plaintiff Irvine in his testimony says: “I called at the office of R, II. Short & Co., telling- him I was leaving some bills to be paid, and I proposed lending- him some money out of which these bills were to be paid, and upon which I gave him a check on the Merchants’ Bank for $2000.” Again he says, “the same time giving him a check for $500 on the Merchants’ Bank of this city, telling- him he would receive instructions from John C. Bailey to invest the same in sugar.” In the event he did not, to pass the amount to my credit.” Again he says: “The first cheek of $500 was intended as a loan on my part to R. II. Short &• Co., in the event that Bailey did not direct him to purchase sugar. The amount of the bills which I expected might have to be paid out of the $2000 check did not exceed $300; the balance I expected to stand to my credit on the books of R. II. Short & Co. as a loan.”

Valloft, a witness, testifies that he was a clerk in the employ of plaintiffs “nearly the whole time they wore here in business. I was the clerk up to the time F. W. Irvine left the city. I did all the collecting ¿nd depositing for the house, with the exception of the first and second deposits, which I believe were made by Mr. Irvine himself. The deposits were all made in the Merchants’ Bank. * * * • The ■currency received by me was Confederate treasury notes, and I deposited in the Merchants’ Bank the same currency I received.” * *" He further says: “At the time I was clerk and collector for plaintiffs,, the currency circulated and used in the city was Confederate treasury notes.”

Tlie proof in the record leavos.no doubt that the checks were drawn-against Confederate treasury notes, and were paid in the same currency.

Under the well settled jurisprudence of this State the plaintiffs’' demand cannot be enforced by us.

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


author: Howell, J.

text:
    No. 2326.
    Joseph Barrere v. Louis Bartet.
    The city of New Orleans lias absolute and plenary control of the disposition of the markets, of tlie city. The purchaser of a stall from the farmer of a market is not bound in warranty to his vendee in case of eviction or disturbance by the city itself.
    An action in damages will not therefore lie against tlie vendor- of a stall in the market in case the vendee has been disturbed by the city.
    APPEAL from the Seventh District Court, parish of Orleans.

      Gollens, J. Sambola ds Dueros, for plaintiff and appellee.

      JS. Mlleul- and A. Gasabat, for defendant and appellant.
   Howell, J.

The plain tiff -avers that in March, 1867, he purchased’ from the defendant the right of use, occupancy and enjoyment of two-butcher’s stalls in the St. Mary’s market, in New Orleans, at the price of $900, and with the express condition that the defendant, who was then occupying a small stall adjoining one of those sold, should not sell heef at said stall; but that in violation of said agreement he has-continued to sell heef at said stall to the great injury of plaintiff; that in violation of his obligations in warranty defendant obtained, in. October, 18G3, the passage of a resolution by the Common Council of the city of New Orleans authorizing the closing of a passage or empty space between tho stalls of plaintiff and defendant, and afterwaidscaused said passage to be closed, thereby evicting plaintiff from tho possession of one of his stalls and seriously diminishing the value and enjoyment of the other, and he prays that the said sale be annulled and defendant condemned to refund the price ($900) and pay damages to the amount of $600.

The defense is a general denial, with the averment that the said market belongs to the city of New Orleans, which controls the same as it pleases.

Judgment was rendered in favor of plaintiff dissolving the sale, ordering defendant to take back the two stalls sold, restore the price ($900) and pay $300 damages, from which defendant appealed.

Several witnesses testify that the defendant made the stipulation not to sell beef on the stand occupied by him, but he states as a witness that such a condition was not suggested until after the sale was completed, and he did not consent to it, but continued his business without interruption. Be this as it may, we apprehend that after plaintiff’s silence from March, 18G7, to January, 1869, he, can not successfully urge this, if true, as a cause for annulling tho sale and recovering damages without showing a clear right in law and fact to such a recourse upon defendant. The serious ground of complaint seems to be the closing of the passage or empty space between the stalls of the respective parties, by which the joint use or occupancy of the two stalls of plaintiff was made inconvenient. The property of the market is in the city, and the right to collect the daily revenues or rent, fixed by the city, of the various stalls and stands from the occupants is sold at public auction, the purchaser being called the “farmer” or lessee of the market, whoso consent is necessary for the occupancy of every stall, and who lias the right to dispossess any occupant upon failure for due day to pay the duos. The size, dimensions and number of the stalls, and the general management of the markets, are under tho control of the city, one regulation being “ that the ‘farmer’ shall return to the city the stands, stalls, and other appurtenances thereto belonging, in the same good order and condition as when received.”

In September, 1868, the “farmer” and the defendant applied to the City Council for the privilege of closing the empty space in question, which, after a reference of the matter to the surveyor, was granted. A remonstrance was presented to the Council by the plaintiff, but the action of the Council remained unchanged, leaving the matter to the farmer upon the recommendation of a committee, to whom tho subject was referred. After the passage was closed both plaintiff and defendant insisted upon using the addition, and the dispute between them was decided by tlie city surveyor, the proper officer, in favor of the defendant, whereupon this suit was originated.

We are unable to see any legal responsibility on the part of defendant towards plaintiff for any damage which may have resulted to the latter by this change in the condition of these stalls. The defendant had no such property in them when he made the sale as to make him liable for any change affecting their use or convenience, even though ho may have petitioned for such a change. It is a matter for the city to regulate in behalf of the public interests. It does not appear to us that the lessees or occupants of the stalls are the warrantors of the possession or profits of those to whom they may sell their own rights to the occupancy of the stalls. They of course warrant against their own acts which may interfere with the enjoyment of what they sell. But the act complained of here was the act of a public authority, for which defendant was not responsible. The City Council was not bound to authorize the change because defendant petitioned for it, nor do we see anything in the relató m between defendant as vendor and plaintiff as vendee of what was really sold in this instance inconsistent with defendant’s legal right to join with the “farmer of the market” in making the petition for the change. The plaintiff’s tenure is only from day to day, conditioned on his punctual payment of the daily dues to the farmer, and not dependent in any degree on the warranty of the defendant, and the city, so far as the rights of the plaintiff and deiendant are concerned, can make any change deemed necessary, or even close the market, provided the use for any day paid for by these parties is not molested.

It is therefore ordered that the judgment appealed from bo reversed and that there be judgment in favor of deiendant with costs in both courts.

Rehearing refused.


author: Wyi.t, J.

text:
    No. 2327.
    C. F. Berens v. J. Maristany, Jr., et al.
    Iii an action for tlie recovery of rent tlie burden falls on the lessee of showing that the notary who drew the lease made an error in computing the rent
    APPEAL from the Fifth District Court, parish of Orleans.

      Beaumont, J. B. Bermudes, for plaintiff and appellee.

      BLornor <& Benedict, for defendants and appellants.
   Wyi.t, J.

The defendants have appealed from a judgment against them for the rent of the building No. 202 New Levee street.

The defense is that tbe notary committed an error in drawing the contract of lease; that tbe price of rent was $35 per month, and not $90 as stated in the act; that in the same act the deiendant Maristany rented Nos. 198, 200 and 202 New Levee street from James Hill, from whom the plaintiff derived title; that the real intention and contract was that for rent of the throe buildings he was to pay $125 per month, the price of rent of buildings No. 198 and No. 200 being at $90 per month, and the building No. 202 at $35 per month.

Referring to the act of lease we find that' James Hill, the former owner, leased to the defendant, J. Maristany, Jr., the three buildings as stated for the term of two years, “the condition of this lease being that said purchaser shall pay for No. 202 the monthly rent of $90 to him the said Hill, and for Nos. 198 and 200 the said purchaser shall pay the sheriff the monthly rent of $35, and when said building shall return to the possession of said Hill out of the custody of the sheriff, then for the term of two years from such date the purchaser hereby agrees to pay the monthly rent of $125, with the privilege oí releasing the same at the same rate for two years more,” etc. It appears that Hill, the lessor, never recovered the possession of the two buildings, as was anticipated. The defendants, however, were permitted by the sheriff to occupy them. Alter long detention in the hands of the sheriff, the premises Nos. 198 and 200 were sold under execution against said Hill. It also appears that building No. 202 was subsequently purchased by the plaintiff, in satisfaction of his judgment against the said Hill.

Subsequent to the contract of lease, the lessor, Hill, and the lessee, Maristany, entered into an agreement in writing, which private act was offered by the defendants in evidence. This instrument states in subs,anee that it is well understood that should the sheriff demand an increase of rent for Nos. 198 and 200, said increase is to be deducted! from the rent agreed to be paid for the premises known as No. 202; New Levee street; and should he remove the lessee from possession of said buildings, then the latter was to be held no longer liable for rent of No. 202, nor would he be required to hold possession thereof.

This accounts for the defendants paying the sheriff rent at $90 per month for premises Nos. 19o and 200, instead of the amount stated in the lease. They had the consent of the lessor to pay such extra price as the sheriff might require for rent of these two buildings, and the excess to be deducted from tbe price agreed to be paid for building No. 202. Besides, this private act must have been drawn in reference to the precise amounts stated in the lease to he paid to the sheriff for Nos. 198 and 200, and to he paid to the lessor for No. 202. Now, if the-notary made a mistake and reversed the amounts to he paid the sheriff and the lessor respectively, why did not the parties correct this error when they subsequently drew the private act? Indeed, from the evidence we are satisfied that the notary made no mistake.

We see no error in the judgment.

Judgment affirmed.

Rehearing refused.


text:
    No. 3495.
    Frederick Honold v. City of New Orleans.
    The acts of 1853 and 1855, re-enacted in section 3344 of the Revised Statutes of 1870, “which prohibits the levying any tax by any municipal corporation in the State on persons engaged in selling articles of their own manufacture, manufactured within the State,” is not repealed or modified hy the charter of the city of How Orleans enacted in 1870.
    The doctrine announced in City of Hew Orleans v. Lnsso & Rlmlwan, SI An. 1, is reaffirmed by this decision.
    APPEAL from the Eighth District Court, parish of Orleans.

      Dibble, J. Zeomj á Monroe, lor plaintiff and appellant.

      George 8. Lacey, City Attorney, for defendant.
   Ludeling, C. J.

The city of New Orleans having imposed a license tax on the plaintiff as a manufacturer of soap the latter enjoined the city from enforcing the collection of that tax, on the ground that he is exempt from such taxation hy virtue of the act of twenty-fifth April, 1853, re-enacted in 1855 and again in 1870. It declares that “it shall not be lawlul, hereafter, for any municipal corporation within the-State to lay any taxon persons engaged'in selling articles of their own manufacture, manufactured within the State.” Acts of 1853, 135, No. 168; acts of 1855, 326, and section 3344, 648, Revised Statutes of 1870.

The counsel for the city of New Orleans contends that this law is repealed hy the charter of the city enacted in 1870, because the •exemption under that law is contrary to, or irreconcilable with, the provisions of the said charter.

And lie further contends that the exemption law reliea upon is unconstitutional, because in opposition to article 118 of the Coi stitution, which gives the General Assembly power to exempt from taxation only property “ actually used for church, school or charitable purposes.”

Loth these questions have been decided by this court. In City of New Orleans v. Mascaro, 11 An. 733, it was contended that this protection to domestic manufactures had been removed hy the provisions of the charter of 1856, section 102 of which is as follows: “That the •city of Now Orleans shall have power to levy taxes, commonly known •as licenses, upon trades, professions, callings and other business •carried on,” etc.

The court held, in that case, that there was no repeal of the former •statute by the charter; that there was nothing in the two acts which •could not he made to harmonize. The same opinion was expressed in Lusse v. Rhulman, reported in 21 An. 1.

The counsel for the city does not question the correctness of those decisions, hut he insists that section 12 of the charter adopted in 1870 •conferred upon the city greater powers than the section 102 of the charter of 1856. Section 12 of the charter of 1870 bestows upon tbe Council the power “ to levy, impose and collect a license tax upon all persons pursuing any trade, profession or calling, and to provide for its •collection.” Section 102 of the charter of 1856 authorized the Council ‘‘to levy taxes, commonly known as licenses, upon trades, professions, ■callings and other business carried on,” etc.

We think the powers granted under these sections substantially the same. Section 12 of the charter of 1870 can, and therefore it must, be made to harmonize with the statute exempting manufacturers from a license tax. The repeal of laws by implication is not favored. 5 An. 122.

It is difficult to believe that the General Assembly- intended to repeal section 3344 of the Revised Statutes of 1870 by the charter of the city, which was enacted by it only two days after the re-enactment •of said law. C. C. arts. 17, 18, 22. Article 118 of the Constitution does not command that all occupations, trades and callings shall be taxed; but that all persons pursuing a profession, trade or calling which is taxed must be taxed equally. There is no conflict between the opinions in the cases of Lusse & Rhulman, 21 An. 1, and the insurance company cases recently decided, 23 An. 449, and we reaffirm the opinion expressed in the case of City of New Orleans v. Lusse & Rhulman.

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


text:
    No. 2394.
    .Commercial Bank of Kentucky v. Edward Nalle & Co.
    From and after the commencement of hostilities between the United States and the so-called Confederate States, all intercourse, trado and business was prohibited between the inhabitants of the two sections of the country. An indorsement of a promissory note, made by a resident of the so-called Confederacy, on a promissory note held by a citizen residing in one of the adhering States during the late war, was therefore wold and not binding on tbe indorser.
    If the consideration of an obligation be shown to bo Confederate treasury notes, its payment can not be eniorced by tbe courts of Louisiana. Constitution, article 127.
    APPEAL from the Fourth District Court, parish of Orleans.

      Théard, J. Bart & Boberts, for plaintiff and appellant.

      Baee, Foster á F. T. MerrieJe, for defendants and appellees.
   Wyly, J.

The plaintiff appeals from the judgment rejecting its ■demand against the defendants, who were sued as indorsers of a 2)romissory note.

The defense is the illegality ot tue contract ot indorsement, Decause At the time it was made at New Orleans, in 1862, all intercourse was prohibited between them and the plaintiff, the former being domiciled in Kentucky and the latter in Louisiana. The defendants also pleaded that the consideration for said indorsement was Confederate money.

Both defenses are established beyond doubt by the evidence in the .record.

Judgment affirmed.


text:
    No. 2395.
    The Southern Dry Dock Company v. Steamship Wm. Tabor and Owners.
    Tlie ’burden falls on tlie defendant who sets up a claim in reconvention in damages caused "by the plaintiff, who has failed to fulfill his contract within the time specified, of showing that he caused him, the plaintiff, to he put in default.
    APPEAL from the Seventh District Court, parish of Orleans.

      Col-lens, J. JB. JSgan, for plaintiff and appellee.

      J. Ad. Rosier and Randolph, Singleton & Rroione, for defendants and appellants.
   Taliaferro, J.

This suit is brought by the plaintiff for charges against the steamship William Tabor, incurred for docking the vessel and for labor and materials furnished in making repairs upon her.

The defendants plead the general denial, and allege that on or about tlio fifteenth of March, 1866, they entered into an agreement with plaintiff to take said vessel into their dry dock in order to dock and repair her; that plaintiffs did commence the repairs on the fifteenth of March, but in consequence of the insufficiency of the dock and want of skill in those having the management of it, the defendants were compelled to wait eighty-one days for the repairs the plaintiffs had agreed to make, the dock having given way and caused delay in. repairing it. The defendants on this ground set up a claim for $12,150< in reconvention as damages sustained by them from being deprived of tbo use of tbeir vessel.

The plaintiff had judgment for $5017 46, with interest, and the defendants appealed.

We think the defendants have failed to establish the making of such a contract as they allege in their answer. They do not seem to have-set up objections to the correctness of the hill furnished, and it appears to he established by the evidence. The testimony of the plaintiff is. to the effect that the captain of the ship applied to have her docked, and asked for nothing more; that the docking of a vessel is considered a contract of itself, the purpose of docking being in part to ascertain the nature and extent of the work necessary to be done, and until this is ascertained, no contract can properly he entered into regarding repairs. In some instances it happens that no repairs are made.. Prom the nature of the business the contract lor repairs is a separate contract from that of docking. The delay complained of seems to-have been submitted to without objection. There does not appear to-have been a contract by which the plaintiffs were hound to perform any given quantity of work within any specified time, and there seems-to have been no putting them in default by a demand on the part of the defendants to finish the work.

The case was referred, unnecessarily, we think, to experts, and the amount of testimony taken without any satisfactory result makes up a very large and confused record. Tlie report of tlie experts we tliink irrelevant. They disagreed in their estimates, and the umpire awarded the plaintiffs about $3000. An exception was filed to the introduction of the reports of the several exports on numerous grounds, which it is unnecessary to examine. 1 An. 332.

We think the judgment of the lower court does justice between the parties, and it is therefore ordered, adjudged and decreed that the same be affirmed with costs

Rehearing refused.


text:
    No. 2370.
    Isaac Klein, for the use, etc., v. Crescent City Railroad Company.
    To enatlo a party to recover damages from a street railroad company for injuries inflicted liy the car, -while in motion, hy running over and -wounding a child, it must he shown affirmatively that the accident occurred through the fault or negligence of the driver.
    APPEAL from the Seventh District Court, parish of Orleans.

      Collens, J. Ootlon & Levy, for plaintiff and appellee.

      T. Gilmore and Percy Roberts, for defendant and appellant.
   This case was tried hy a jury in the court below.

Howell, J.

In this case, Isaac Klein, in behalf of his minor child, Herman, claims from the Crescent City Railroad Company the sum of forty thousand dollars damages caused to said child by tiie carelessness of tlie said company and its employe, the driver of a car, hy which the child was run over, resulting in much suffering and the loss of a leg.

A verdict for five thousand five hundred dollars was rendered, and from the judgment thereon the defendant appealed.

It is shown that the child was ruu over a few feet below the lower foot-crossing of Seventh and Chippewa streets as the car was descending the latter street. A moment before the accident occurred, this child, then about six and a half years old, was sitting on the steps of his father’s residence, situated on the right hand corner of said streets, the steps being- a little below the said crossing. He suddenly sprung from his seat and attempted to cross the street immediately in front of the mule, which was moving at an ordinary trot, came in contact with the animal, fell and was run over hy one of the wheels of the car on the opposite side from that on which he was just before seated. Tlie driver swears that he did not see the child until he was on the ground, just under or between the fore legs of the mule, when he instantly put down the “brakes” aud pulled on his reins, hut the animal was so much frightened that he could not stop the headway of the car in time to prevent the injury, the mule giving two or three jumps or plunges forward and toward fclie left, jerking the front wheels of the ear off the track, one of the wheels passing over the child’s leg during this time.

Prom these facts it seems to us the driver was not guilty of such negligence as to throw upon the company the responsibility for the damage sustained by the child. Its effort to cross the street at an unusual point, so closely in front of the mule, which, it is shown, was traveling at the ordinary gait, was so sudden and rapid that the driver had not time to avoid the collision had he expected its probable occurrence, and the collision so startled the mule that the momentum of the car was increased .so as to pass it beyond the place of the contact where the child fell before the animal could be stopped.

It is therefore ordered that the verdict of the jury and the judgment of the. court a qua be set aside and there be judgment in favor of defendant, with costs in both courts.

Rehearing refused.

Wyly, J., absent..


text:
    No. 2832.
    State, ex rel. William Durbridge, v. F. J. Pratt, President, et al.
    Tlie act of tlie General Assembly, approved March 19, 1870, entitled “an act to establish an additional district court for the parish of Orleans to define the jurisdiction thereof* and to recognize and determine the jurisdiction of the existing seven district courts for the parish of Orleans,” vested in the Eighth District Court, created by the act, exclusive jurisdiction over all cases of injunction, mandamus, etc. The other district courts of the parish of Orleans wore therefore divested of all jurisdiction over sucli cases from and after the passage of the act. The fact that a judge for said Eighth District Court was not appointed and commissioned until some time thereafter, did not continue the jurisdiction over such cases as the act vested exclusively in the Eighth District Court until a judge was appointed and qualified therefor.
    A judgment rendered by the Sixth District Court for the parish of Orleans, after the passage of the act creating the Eighth District of the parish of Orleans, is therefore null and void, because the court was without jurisdiction.
    APPEAL from the Sixtb. District Court, parish of Orleans.

      Cooley, J. T. A. JBartlette, for plaintiff and appellee.

      Joseph JEEornor, for •defendants and appellants.
   Howell, J.

The president of tne Crescent City Live Stock Landing and Slaughterhouse Company lias appealed from a judgment making peremptory a writ of mandamus ordering Mm, in his official capacity, to issue to the relator certificates of over a thousand shares of stock in said company.

The first question is one of jurisdiction. On the nineteenth March, 1870, the defendants moved to transfer this case to the Eighth District Court for the parish of Orleans, under the provisions of “ an act to establish an additional district court for the parish of Orleans, to define the jurisdiction thereof, and to recognize and determine the jurisdiction of the existing seven district courts for the parish of Orleans,” approved March 16, 1870, and promulgated March 17, 1870, by which the said Eighth District Court was vested with the exclusive jurisdiction of this class of cases, and all such as were then pending in the other courts were ordered to be transferred thereto. One clause of section four reads as follows: “Immediately upon the passage of this act it shall be the duty of the judges of the Fourth, Fifth, Sixth and Seventh District Courts for the parish of Orleans to transfer to the Eighth District Court for the parish of Orleans all suits or proceedings the jurisdiction over which is by this law vested in said Eighth District Court. The said Fourth, Filth, Sixth and Seventh District Courts are divested of all jurisdiction over such cases, except for the purpose of entering an order of transfer, and the said Eighth District Court shall be and is hereby vested with power to hear and determine suits or proceedings so to be transferred as if the same had been originally brought in said Eighth District Court.” The motion was refused, and on the same day the judgment was rendered, from which this appeal is taken.

It is urged that at the date of this motion the Eighth District Court was not organized, the judge thereof not having been commissioned and qualified until the twenty-fourth of March, 1870, and the. court not opened until the twenty-sixth of the same month, and that under the provisions of article 83 of the Constitution the Sixth District Court could not be divested of jurisdiction of this cause until another court was “provided.”

In the case of the State, ex rel. Pontcbartrain Railroad Company, v. the Judge of the Seventh District Court for the parish of Orleans, we had occasion to inquire into the power of the Legislature to create the Eighth District Court and regulate its jurisdiction and that of the other seven courts of the parish, and the effect of this law upon the cases then pending in said courts and ordered to be transferred; and we expressed the opinion that the judges of said courts had been divested of all jurisdiction over such cases, except to render an order of transfer according to the plain language of the act. All such suits pending in said courts at the time the law was passed were to be immediately transferred to the Eighth District Court, established by the said law. There was no hiatus in the judicial power as contended by the counsel for the relator, as the law provided a jurisdiction for the cases over which the previously existing courts were divested of jurisdiction. The delay necessary for appointing a judge to preside in the court created did not operate a suspension of or hiatus in the judicial power which existed in the court by the passage of the law creating it, any more than the death or resignation of a judge would have such effect. The Legislature having the power to enact the law, the moment it became a law its provisions became operative and binding on tbe judges named, who were by express terms divested of all power to try any cases which were ordered to be transferred. The power of the judge of the Sixth District Court to hear and decide this case was taken away and conferred on the judge of tiie Eighth Court, and the only action he could take was to enter an order transferring the cause, which he should have done. All else that he has done is “ coram non judiee.”

It is therefore ordered that the judgment appealed from herein be reversed and set aside, and that this case be remanded to the court a qua, with instructions to the judge thereof to transfer the same to the Eighth District Court for the parish of Orleans, the relator and appellee to pay costs of appeal.


text:
    No. 2428.
    Henry Peychaud, Liquidator, etc., v. J. B. Hood.
    Any agreement made "between tlie officers and the stockholders of an insurance company as to the liability of the stockholders on their stock notes can not affect creditors.
    A person who has been regularly appointed liquidator of an insurance company, has the legal right to sue for and stand in judgment in cases where the company are seeking to enforce payment of the stock notes held by the company.
    APPEAL from the Fourth District Court, parish of Orleans.

      Théarcl, J. A. & P. BoberLior plaintiff aud appellee.

      Gibson & Austin, for defondaut aud appellant.
   Ludeling, C. J.

This suit is instituted by the liquidator of the Great Southern and Western Life, Accident, Marine and Fire Insurance Company to recover from the defendant nine hundred dollars, being an assessment of twenty per centum on the unpaid portion of his stock note, in order to meet the liabilities of the company. For answer the defendant admits that he subscribed to the stock referred to in plaintiff’s petition, but he avers there was a distinct and positive understanding between himself and the president of the company that he was not to be held in any manner liable for the amount of his subscription; that the said president only wanted his influence in the company; and it was agreed that he should not incur liability on the same. He further avers that the note was not to be used and that it has not been legally transferred, and that plaintiff has no right, title or interest in it; and that the note was given without consideration. An amended answer was subsequently filed, alleging that when defendant “became a stockholder in the company of which the plaintiff herein is liquidator, he was in error as to the amendment to said charter, and that said amendment has caused the release of stockholders of the capital stock of said company and caused in a great manner the insolvency of the company.” And he further avers that the amendment was not concurred in by all the stockholders, of which fact lie was ignorant at the time he subscribed for the stock, and that “being- uninformed and ignorant of the effect of said amendment at the time of his subscription, he subscribed through error,” and, therefore, he claims to be released.

Tiie agreement between stockholders and the officers of the company as to tiie liability of the stockholders on their stock notes, can not affect creditors. Stockholders are liable for contributions on their unpaid stock. 10 R. 440.

The plaintiff is admitted to be the liquidator of the company; as such he had authority to bring- this suit. 5 An. 740 ; 2 R. 573; Cucullu v. The Union Insurance Company.

The amendments of the charter so as to authorize the company to change its name and to take fire and marine risks, seem to have been regularly made, and the new name of the company clearly indicated this change. Tiie defendant became a stockholder long after the charter had been amended. There is no merit in the defense set up.

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


text:
    No. 2980.
    The State of Louisiana v. The Heirs of Zachary White.
    The prescription of five years applies as ■well to promissory notes given in favor of the State as to those in favor of private parties. See Graham, Auditor, v. G-. "W. & J. T. Tigner et al., ante page 570.
    APPEAL from the Fifth District Court, parish of Orleans.

      leaumont, J. Simeon Belclen, Attorney General, for the State.

      Wooldridge c£ Thomas, for defendants and appellees.
   Taliaferro, J.

The plaintiff sues on a promissory note for the sum of $1207 29 with interest. The note bears date sixteenth July, 1853, and is made payable two years after date, at the office of the Auditor of Public Accounts, to the State Treasurer.

The defense is prescription. Judgment was for defendants, and plaintiff appealed.

It is clear that the note, upon its face, is prescribed, but the question raised is, does prescription run against the State? In the case of J. Graham, Auditor, v. G. W. & J. T. Tignor et al., decided by this court at its late term at Monroe, suit was brought on promissory notes of the same character of that sued on in the present case. The question was there decided in the affirmative.

For the reasons assigned in that case, it is ordered, adjudged and decreed that the judgment of the district court be affirmed, with costs. See 23 An. p. 570.


author: Hoavell, J.

text:
    No. 2515.
    Succession of William S. Steele.
    The value of improvements placed, upon community property after its dissolution can not bo taken into account in the settlement of the succession. In such a case its actual value, or what it will sell for, is to be taken as the basis of the account without reference to the original cost or the cost of any improvements made.upon it.
    If the soparat© estate of either the husband or the wife has been increased or improved during the marriage, the other spouse or his or her heirs shall be entitled to the reward of the one-half of the value of the increase or amelioration, provided it be shown that such increase or amelioration was the result of common labor, expense or industiy. But if it be shown that such increase or amelioration was owing to the ordinary course of things, or the rise in the value of property, then and in such case there shall be no reward. B. O. 0. 2408.
    If by testamentary disposition the wife has been appointed testamentary executrix and given the usufruct of the whole estato of her husband, she may, on the application of the heirs or the legatees, be required to give security.
    APPEAL from the Parish Court of Jefferson. Brewing, Parish Judge.

      K. Comniandeur and B. King Outler, for appellant.

      Kg. Bug tie, ior appellee.
   Hoavell, J.

This controversy involves oppositions to two accounts, original and supplemental, filed by the testamentary executrix, and the rights of certain legatees under the provisions of the will of deceased.

The original account contains a statement of the real estate of the community, inventoried at $2500, and movables inventoried at $46, and of the separate property of the deceased, consisting, first, of the proceeds of property expropriated to tlie city of New Orleans amounting to $2500, from which is deducted amount of vouchers one and two ($108 00), leaving $2391 34 net, and second, proceeds of Magnolia, street property belonging to the decedent before, aud improved and sold after marriage for $4000, oue-fourtli cash, balance in three notes-of $1000 each, from which is deducted cost of improvements and expenses as per vouchers three to ten ($2547 35), leaving $1452 G5 net, making the separate assets amount to $3843 99; from this are deducted $1800, amount of two mortgage notes executed by the deceased before and paid after marriage, as per vouchers eleven and twelve, $530 funeral expenses, as per vouchers thirteen to fifteen, $439 10, judicial charges, as per vouchers sixteen to eighteen, and $100 for probable additional costs, leaving $974 89 as separate funds, hut entered or described in the account as due by the community to the succession. The executrix then credits herself with $1000, brought in marriage hy her, and $202 hills paid by her as per vouchers nineteen to twenty-three, from which she deducts the rents of community property collected by her, $273, less $90, paid for repairs, as per voucher twenty-four, leaving a balance in her favor of $1019, to the extinguishment of which she applies the above balance of $974 89, leaving a deficit of' $44 11 to be paid her out of the community before dividing it between herself and the heirs, and she claims the full ownership of the one-half of the remaining community property as surviving widow and the usufruct of the other half under the will. Tlie supplemental account simply consists of items of taxes and insurance paid by her as per vouchors twenty-live to thirty-five, and increasing the amount due her from §41 11 to $2jJ 21.

The lather ami hi others of the decedent, named as legatees, oppose both accounts as incorrect in this, that to the community property should ho added $800 for a house erected thereon, and several articles specially described and valued at $283, and to the separate property a watch and chain worth $125; that the sum of $700 due by Mr. and Mrs. Bremer, and $500 due by Mr. and Mrs. Heffernan, are omitted; that nothing is due to the widow, and the sums shown by the various vouchers, except numbers one, two, sixteen, seventeen and eighteen are unfounded in law or charged to the wrong estate, and the father asks to be put in possession of one-third of the succession bequeathed to him, and tlie "brothers ask that the widow furnish bonds as usufructuary of tlie residue. The appraisers and parish recorder oppose, claiming their fees, which are admitted. The parish judge rendered judgment allowing the fees of the appraisers aud recorder out of the sum reserved for costs, increasing the amount in favor of the widow to $483 21, to he paid out of the community property, tlms’absorbing all the separate property of the husband, recognizing her as owner of one-half of the community property, and entitled to tlie usufruct of the other half thereof under tlie will, as not exceeding the disposable portion, and homologating the account as thus amended at the costs of the heirs, who have appealed.

The record contains a large mass of irregular, confused unnecessary proceedings, and irrelevant, conflicting evidence, out of which it is difficult, if not impossible, to ascertain and adjust the rights of the parties, and we have given the foregoing analysis of the accounts and judgment, which we cau neither sustain nor amend, in order that our views of the law applicable to tlie issues involved may be understood in the construction of another and more correct account.

The demand that the value of a house, erected on the community property, should be added to the account can not prevail, as the property existing in kind must be accounted for at its actual value, or wbat it may sell for, without reference to the original cost or the cost of any additions. As to the several articles, which it is alleged should be accounted for, the evidence shows that some belonged to the widow and others were disposed of by the husband prior to Ms death. The proof siiows that Dennis Heffernan owes the succession $400. not embraced in either inventory or account. His acknowledgment of this-indebtedness is conclusive against him in favor of the succession, and is one of its assets to be accounted for. The amount due by F. W. Bremer is shown to be due to the widow in her own, right. Vouchers one and two are admitted as properly deducted irom th" «nm received from the city for the expropriation of the Clara street (separate) property, the amount of which was $2300, instead of $2500, as put down in the account, and the deduction as above makes the balance $219L 34 The vouchers three to ten purport to be for the cost of improvements put on the Magnolia street (separate) property during the marriage. It was purchased and, from, the evidence, paid for prior to the marriage, aud is stated by the agent of the legatees and heirs to have been then {December, 1859,) worth $1200, and was sold in 1867, just before the decease, ior $4000, and the widow contends that the value'thereof was enhanced to the extent of the cost of the improvements as per above vouchers, amounting to over $2500, leaving the separate interest of the succession therein about $1400. The rule on this subject is found in article 2403 R. C. C., which reads: “ when the separate property of either the husband or the wife has been increased or improved during the marriage, the other spouse, or his or her heirs, shall be entitled to the reward of one-half of the value of the increase or ameliorations, if it be proved that the increase or ameliorations be the result of the common labor, expenses or industry, but there shall be no reward due it it be proved that the increase is due only to the ordinary course of things, to the rise in the value of property or to the chances of trade.” Tim mode of ascertaining this augmentation is announced in the case of Babin v. Nolan, 4 R. 278 ; 6 R. 508; 8 R. 181; 10 R. 373, and approved in 12 R. 385; 2 An. 30; 3 An. 611, and 6 An. 634. It is, to estimate the property according to its value at the time of the dissolution of the community, but, if possible, in the situation in which it was at the time of the marriage, and then its real value with all the improvements thereon in the condition in which it was at the time of the dissolution of the community, and the difference between the two estimations will form the increase, for one-half of which the surviving- spouse should be compensated in the settlement of the community, according to the article above quoted. As the property in this case did not exist in kind at the dissolution of the community, and the husband had received one-fourth of its proceeds prior to his death, and the widow acknowledges possession of two of the three notes given for the balance of the price, this price must be taken as one of the estimations and the other estimation must be of it, in its condition at the time of the marriage: that is, ascertain its value at the time of the sale by the deceased in the condition in which it was at the date of the marriage, and the difference between this estimation and the sum for which it was sold will be the increase, for one-half of which the widow is to be compensated, and the balance of the said price, consisting of the whole of the first estimation and half of the difference between it and the whole price, will belong to the succession.

Voucher eleven, objected to, is a note for $1000 made by the husband before, but paid after, marriage, and in the absence of proof is presumed to have been paid with community funds, and is a charge in favor of the community against the succession. Voucher twelve is a note for $800 paid prior to marriage, and should not appear in the account. Vouchers thirteen and fourteen are objected to only as charges against the succession. They are funeral charges, incurred after death, and are debts of the succession. R. C. C. Voucher fifteen is a receipt for $400, cost of building a tomb, after the decease,, and is not allowable out of the means of the estate, as it forms no part of the funeral expenses and should not be in the account. See 19 L. 426. Vouchers sixteen, seventeen and eighteen are not opposed. Vouchers nineteen to twenty-three are physicians’ and druggists’ bills, some before and some during the last illness of the deceased, and there being no contest as to privilege, are allowable as debts of the community. Voucher twenty-four is for repairs to the community property after the decease and was properly deducted from the rents. Vouchers twenty-five and twenty-six are for taxes on community property paid prior to the death of the husband and can have no place on the account, the revenues or use of the property meeting all such expenditures. Vouchers twenty-seven to thirty-five, except No. 33, are for taxes and insurance subsequent to the decease, and their disposal is ■dependent ou the question of usufruct, to which we will come presently. Voucher thirty-three is a notarial bill paid during the marriage and should not be in the account. There is no express opposition to the item of $LOOO cash.brought into marriage by the wife, but evidence has been introduced sufficient to establish its correctness. The opposition to the fees of counsel is waived.

The will is in the following words: “ I do hereby make and constitute my beloved wife, Barbara G-rau, to be my sole executrix, giving her . hereby full seizin and-detainer of all my estate. In case my father, now in Ireland, should survive me, I will and bequeath to him the portion of my estate to which he shall be entitled by the laws.of Louisiana. I will and bequeath to my said wife surviving me, and in ■case she should not again marry, the usufruct of all the estate and property I may die possessed of, to be by her enjoyed during her natural life, and at her death or in case of her marriage again, I make and constitute my said father, James Steele, and in case of his decease anterior to hers, then to my brothers, Hugh Steele, John Steele and Harper Steele and Robert Steele, or the survivors, to be by them ■equally enjoyed and the property divided between them as my residuary legatees; hereby revoking all former wills and codicils by me heretofore made, holding these presents alone valid.”

Though somewhat obscurely drawn, we must construe the foregoing to give to the father, who was alive at the date of the testator’s death,, one-tliird of the latter’s estate and the usufruct of the balance to the wife during her life or widowhood, and then the property, which is-subject to the usufruct, to pass to the father or his brothers as named in the will.

After the payment of the debts, one-third of the succession, consisting of all the separate property of the husband and one-half of the community property, must be delivered to the father and the other two-thirds to be held in usufruct by the widow under the will. In making this partition the father must bear his'proportion of the taxes, and insurance on the property partitioned accruing since the death of the testator.

To sum up. The account should set forth the community property and funds; the separate property or estate of the deceased, less one-half of the increased value thereof caused by improvements made by the community; the community debts to be paid out of the community funds, and the charges against the succession or separate estate proper of the deceased to be paid out of said succession or estate, and the partition made as above stated, the widow to furnish security to be, fixed by the judge below; and for this purpose

It is ordered that the judgment appealed from be reversed and this-cause remanded to the lower court, and the executrix required to file an account in accordance with the foregoing views and the necessary proceedings had in accordance with law; costs ot appeal to be paid, by the widow and appellee.


text:
    No. 2425.
    Wallace & Co. v. J. J. Marion.
    An action to enforce the payment of a debt can not be defeated by a peremptory exception,, that the action should be one for the settlement of a partnership, unless it be shown affirmatively that a partnership exists.
    A defense in reconvontion founded on an agreement that the defendant was to have five per cent, on the amount of the not profits of the establishment as a salary as clerk in the store can not he enforced until the debts duo it are collected.
    APPEAL from the Seventh District Court, parish of Orleans.

      Collens, J. Grant • t& Fellowes, for plaintiff's and appellees.

      Koonts efi Flliott,. for defendant and appellant.
   Howell, J.

Plaintiffs claim the sum of $490 62 as cash loaned to-the defendant, who pleads a reconventional demand for a balance due him in the net profits of the house of Wallace & Co. under an agreement between the parties. He also filed what he terms a peremptory exception that this suit should he for a settlement of partnership. This-exception was properly overruled, as the written agreement between the parties declared that no partnership existed or was established, between them.

The sum claimed is the amount drawn by defendant in excess of the amount which was guaranteed to him as a salary under the agreement. According to this agreement, defendant was to receive as a salary five per cent, on the net profits, which per cent, was guaranteed to make a specified amount. The profits were to be ascertained by taking an account of the stock at the expiration of the term of employment, but the debts due the firm at the time, in which the defendant is interested, slnfll be collected in ordinary course by the firm, and not estimated with the slock.

It is shown that at the date of the trial of this suit in the court below, debts to a large amount were uncollected, and that the turn received by defendant exceeded the guaranteed amount of the net profits by the sum claimed, and that five per cent, on the profits as shown by the stock and sales would not make the sum guaranteed. By the terms of the agreement, defendant is not entitled to five per cent, on the outstanding debts until they are collected, and hence if he has' drawn or received a greater sum than was due Mm at the expiration of his term of service, ho can be made to return the excess. Ifon con stat that these debts will ever be collected. He must, under Ms agreement, wait until enough is collected to make the five per cent, thereon equal the sum guaranteed, and then he may demand five per cent, on all sums thereafter collected. Upon this principle the judgment in favor of plaintiffs is correct.

Judgment affirmed.


author: Ludelixg, C. J.

text:
    No. 3336.
    Fritz Huppenbauer v. Louis Durbin.
    If tke appeal lias keen taken and filed in tlie appellate court;, notwithstanding it has keen dismissed ky the judge a quo¡ on the ground that the surety on. the kond is not good, then and in such case the appeal will ke dismissed on motion for want of a kond.
    APPEAL from the Sixth District Court, parish of Orleans.

      Cooley, J. Wincle & Jhtft, for plaintiff and appellant.

      Bogcrs & Blanc, for defendant and appellee.
   Ludelixg, C. J.

A motion to dismiss the appeal has been made on the following among other grounds, to wit: That the appeal was dismissed by the district judge because a sufficient bond had not been given.

The record shows that an order for a suspensive appeal was granted and the amount of a bond for same was fixed. A bond was executed, hut on a rule to show cause why the appeal should not be dismissed and an execution issue, on account of the worthlessness ofThe security, the district judge adjudged the security not good, and dismissed tho appeal. We must dismiss the appeal for want of a bond.

It is therefore ordered that the appeal be dismissed, at appellant’s costs.

Rehearing refused.


author: Luleling, C. J.

text:
    No. 2777.
    City of New Orleans v. J. M. Hoyle et als.
    'Conceding that tlio act of 1818 conferred upon tho city of How Orleans tlio monopoly of keeping powder magazines in tho Slate of Louisiana, yot that act has been so modified by subsequent acts of tho General Assembly as to confer tho samo authority on other corporations of the State; and is to that extent repealed, and the monopoly is thereby revoked.
    Therefore, since the passage of acts subsequent to the act of 1818, which confer on other corporations of the State the right to keep powder magazines, the city of Hew Orleans can not maintain an injunction against any person who may be keeping a powder magazine in any other part of the State, nor can the city maintain an action, in damages against such person.
    from the Pourtli District Court, parish of Orleaus.

      TMcird, J. Qeorge B. Lacey, City Attorney, for appellee.

      Says t& New, for defendants and appellants.
   Luleling, C. J.

The city of New Orleaus, alleging that she had' the exclusive right to keep powder magazines in the State of Louisiana, avers that the defendants have infringed this right and damaged her to the amount of $10,000, for which she prays judgment, and she obtained an injunction to restrain them from infringing upon said exclusive right in the future.

There was judgment in favor of the city for $500, and perpetuating the injunction; and the defendants have appealed.

The plaintiff relies upon the act of the Legislature, passed in 1818, to establish her exclusive right to keep powder magazines within the borders of the State of Louisiana.

We do not deem it necessary to decide whether that act created a monopoly in favor of tho city in tlio State of Louisiana or not, because by subsequent acts of tho Legislature the power to keep powder magazines has been conferred upon other municipal corporations in the State, and to that extent the act of 1818 would be repealed, if in •conflict with the later laws'enacted by the Legislature.

The fourth section of the act entitled “An act to organize and define tho authority, duties and functions of the police jury ot the parish •of Jefferson,” passed in 1834, declares “that the said police jury is hereby vested with lull power and authority to order and make such rules and regulations as they may deem expedient and proper for regulating the police of powder1 magazines.” And tho eighteenth section of the same act declares “that all laws or parts of laws contrary to the provisions of this act he and the same are hereby repealed so far as relates to the parish of Jefferson.” In 1839 the Legislature passed an act entitled “An act relative to the police jury and to the roads and levees in the parish of St. Bernard,” etc., which contains provisions similar to those above quoted. The act of 1840, entitled “ An act to create a separate police jury for that part of the parish of Orleans situated on the right bank of the Mississippi,” conferred upon said police jury “the same powers” and subjected it to the “same duties as the police juries of other parishes of the State.” We are therefore of opinion that even if the act of 1818 conferred the exclusive right of keeping powder magazines to the city of .New Orleans, this monopoly has been revoked.

As the Legislature has the power to abolish the charter of the city, it can not be seriously doubted that it could revoke a part, of the powers or privileges conferred upon the municipal corporation.

We do not deem it necessary to decide whether or not a municipal corporation can exercise police powers beyond its corporate limits.

It is therefore ordered and adjudged that the judgment of the district court be avoided and reversed; that the injunction be set aside, and that the plaintiff’s demands be rejected, with costs of both courts.


text:
    No. 2329.
    Succession of Isabella Grant—J. A. Peel v. David Grant, Administrator.
    Tlio administrator, in answer to a suit to enjoin the sale of property inventoried as "belonging to the succession, may allege and show the simulated character of the plaintiff’s title. If, however, it "be shown on trial that the plaintiff’s title was fraudulent, hut not simulated, then, and in that case, the administrator could only have its nullity pronounced "by direct action.
    APPEAL from the Second District Court, parish of Orleans.

      Duvigneaitd, J. llornor & Benedict and G. JL. Hall, for plaintiff and! appellant.

      T. A. Bartlette, for defendant and appellee.
   Taliaferro, J.

The defendant having received the appointment of administrator of the estate of his deceased daughter, Isabella Grant, and caused an inventory of her succession to be taken, the plaintiff, who alleged that he was the owner of the property inventoried and claimed to have possession of it, sued out an injunction to restrain the administrator from interfering with it, and prayed in his petition that; he have judgment recognizing his ownership and that the injunction be perpetuated.

The administrator answered by a special denial of the alleged ownership of the plaintiff and charged that if any sale of the property was ever made to him by the decedent, as pretended by plaintiff, the. same was without consideration and gotten up through fraud by the-plaintiff and one Kidder, then in the employ of the deceased, who was. in a dying condition and in the immediate prospect of death. He prayed that the plaintiff’s demand be rejected and for general relief, etc.

The defendant had judgment in his favor, and the plaintiff appealed.

An exception was taken to the ruling of the court below, refusing to strike out that part of the defendant’s- answer which alleges fraud in the sale from Isabella Grant to John A. Peel, and averments having in view an annullment of the sale, and to the admission of evidence-to sustain these allegations, on the ground that the defendant in injunction could only attack the validity of the sale by a revocatory action. The plaintiff relies upon the case of Zuberbier v, Dryfus, 21 An. 271, in which the sale of personal property was made by notarial act and accompanied by actual delivery. It was found in that case that the sale was real and the court decided that, although fraudulent, it could not be indirectly attacked. In this ease we think there are many of the indicia usually found in simulated contracts. The delivery of the property to Peel is not clearly established. The witnesses Meyne, Clarke and Leefe, clerks of Henning, the grocer, living quite near the Waverly House, and from whose grocery supplies of provisions were furnished the boar-ding house, say that the business of Miss Grant with the grocery continued to the time of her death and was carried on in her name, and that Kidder was attending to the business for her up to the time of her death; Clarke says he understood so both from Kidder and Miss Grant.

Mazureau, the notary who made the inventory, testifies that upon presenting the order he held for making the inventory of Miss Grant’s property at the Waverly House, Kidder remarked that the deceased had not been properly named, that she was his wife. He showed the ■effects to be inventoried and they were entered upon the inventory as belonging to the succession of Isabella Grant. To this Kidder made no objection. . The notary further stated that Kidder did not name a third party as owner of the property; that he claimed it as his own, saying that David Grant, the father of Isabella Grant, had nothing to do with it.

The evidence discloses that Isabella Grant, an unmarried woman, having no descendants, had for a considerable time previous kept the boarding house known as the Waverly House, in Camp, at the corner of t’oydras street; that she had long been laboring under a pulmonary ■disease and for a month or two previous to her decease was prostrate, and' most, if not all, that time so enfeebled that she was incapable, physically, to attehd to business; that Kidder attended to the business of the house for her; that about thirty-six hours before her death Kidder married her. A written instrument purporting to be a sale of the furniture oí the Waverly House to Peel by Miss Grant was shown, and also a transfer by her to Peel of her lien of the premises. The sale is dated October 27, 1868, and the transfer of the lease December 7 of the same year. Miss Grant died on the twentieth of the same month and year. A showing is made of the payment of money by Peel as the price of the purchase, and he states that he then went into possession and constituted Kidder his agent to carry on the business. Under cross-examination his answers show that he took but litile or no interest in the business of the Waverly House and appears to have ,'known very little about it. Miss Grant, after the sale, went to stay a short time at the house of a Mrs. Brown, on Bacchus street, but Teturned to the Waverly House, where she remained until her death. Kidder, by his own statement, could not safely own property, as he was much in debt at the time, and afterwards took the benefit of the ¡bankrupt law.

David Grant, the father of Isabella Grant, was a forced heir of his ■daughter, and these impediments, it would appear, were in the way of ;a donation by Miss Grant of all her property to the man she married .almost in her dying moments. Under such circumstances the interposition of a fraud would readily suggest itself. ’ Peel, it is shown, is •a merchant of large business, who was in the habit of boarding at the Waverly House a^t times, when his family were absent from the city. .He was well acquainted with Miss Grant and with Kidder. The indifference he appears to have manifested in the affairs of the Waverly House after his purchase, shows that he felt no great interest ■in the acquisition.

A full review of the evidence iu this case induces us to conclude that there was no real and actual sale, and that the pretended sale was a mere simulation gotten up for the benefit of Kidder and to deprive the plaintiff from obtaining the succession of his daughter.

The exception was properly overruled and the judgment correctly rendered.

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


author: Taliaferro, J. Howe, J., Howell, J.

text:
    No. 3089.
    The Louisiana State Lottery Company v. A. Richoux et al
    If a law has been regularly promulgated according to the forms of the constitution, its invalidity will not be examined or passed upon by the judiciary on alleged irregularities or informalities committed by the General Assembly in passing it, nor will parol evidence be received to show that the General Assembly have not complied with the requirements of the constitution in passing it.
    .An act of the General Assembly will not bo declared void because its objects are not set forth in its title, if the title discloses the objects of tlio act in terms so olear that no one can be misled, thereby.
    APPEAL from the Eighth District Court, parish of Orleans.

      Dibble, J. Joseph P. Hornor, for plaintiffs and appellees.

      George L. Bright, for defendant and appellant.
   Taliaferro, J.

This is an action brought by tlie plaintiffs against the defendant Richoux and several other parties to restrain them by injunction from vending lottery tickets of the Havana and other lotteries, in violation of the exclusive right claimed by the plaintiffs to •establish lotteries and to sell lottery tickets in this State. ‘A rule nisi was granted by tbe judge a quo, which was afterwards made peremptory. From this judgment McCarthy, one of the defendants, alone has appealed.

Various grounds are set up in defense; two of them, however, seem to be chiefly relied upon. To these we will direct our attention. They are:

Mrst — That in the passage by the Legislature of the bill which plaintiffs found their exclusive privilege upon, as the law securing their alleged right, the requirements of article 42 of the State Constitution were not complied with, and the act of the Legislature purporting to confer the privilege is therefore null and void.

Second — That the title of the act does not, as required by article 114-of the Constitution, express the objects of the law intended to be enacted.

Article 42 of the State constitution provides that “no bill shall have the force of a law until on three several days it be read in each house of the General Assembly, and free discussion allowed thereon, unless four-fifths of the house where the bill is pending may deem it expedient to dispense with the rule.” '

When a legislative act is duly promulgated according to the constitution and laws under which it is passed, we find no authority in the judiciary department to look behind it and determine its validity or invalidity from the proceedings of the General Assembly in adopting it. Such a course, it would seem, is not sustainable on the theory of the independent and separate action of the three branches of the State-government. When a legislative act is attacked on the ground that it-contains provisions that are unconstitutional, the question of its validity is properly within the scope of judicial action. The courts have power when a constitutional question is raised to examine whether the thing ordered, permitted or forbidden to be done, may have effect under the sanctiou of the Constitution. The question should be, is the law itself constitutional as to its provisions and what it declares, and not whether it is constitutional as to the manner of its enactment or the proceedings by which it was enacted ?

Courts will presume that the constitutional rules laid down for the-passage of laws have been complied with by the law maker, and when duly promulgated will accept them without inquiry as to the observance- or non-observance of the required rules and forms in the preparation and passage of bills. The opposite doctrine, we apprehend, would lead to- a very confused and perplexing state of affairs in the administration of laws. If courts can examine the regularity of the proceedings had in the passage of bills, what is to prohibit them from determining whether any other constitutional provision, merely ancillary to the-exercise by the General Assembly of the appropriate function of law making, has been properly exercised? Conflicting views on this question have been taken by the courts of several of the States of the Union, and we do not regard it as definitely settled by their decisions.

The title of the act incorporating the Louisiana Lottery Company reads thus: “An act to increase the revenues of the State, and to authorize the incorporation and establishment of the Louisiana State Lottery Company, and to repeal certain acts now in force.” This title, it is contended, does not fulfill the requirements of article 114 of the Constitution, which declares that “every law shall express its object or objects in its title.” The interpretation which seems to be given to the title in question is that the act purports simply to authorise the incorporation and establishment of a State lottery company; whereas by the act itself the lottery company is established, a fact which the reader of the title is not apprised of. This interpretation then assumes that, as indicated by the title, the object of the Legislature was to authorize itself to incorporate and establish the lottery company — a thing absurd upon its face. How a person could be misled by the title into the supposition that the act does not incorporate and establish a lottery company, we do not easily perceive. True, a more distinct definition of the objects of the act might have been given, but that fact is of no importance if its objects are by the title made sufficiently apparent. Legislators are not always philologists, and their terms and expiessions are not to be disregarded if, as it not unfrequently happens, they are not so clearly definite and distinct as they might be made. We think the title fulfills the conditions of the article 114 of the Constitution.

It is, for the reasons stated, ordered, adjudged and decreed that the judgment of the district court be affirmed, with costs

Howe, J.,

concurring. The only question in this case which seems important is that raised by a bill of exceptions to the refusal of the judge a qxio to permit parol evidence that the provisions of article 42 of the Constitution in reference to the reading of bills had not been complied with.

It appears that the law in question was approved August 17, 1808, and that the approved and adopted journals of the Legislature show that the provisions of article 42 were strictly complied with in its passage. More than two years afterward, the defendant being proceeded against under the law, attempts to show by parol testimony that the rules were not properly suspended; that the legislative record is incorrect; that the law is without force.

If he could do this at the end of two years, he could do it at the end of twenty. If he could do it, any other defendant could do it, and tliis without regard to the lapse of years; and every criminal might ■consume the time of .the court and money of the State in attempts to prove by parol, in contradiction of the legislative journals and the ■statute book, that the law under which he was being prosecuted, promulgated perhaps forty years before, was null and void by reason of informalities prior to its passage. The same could be done respecting laws affecting rights of person and property, and regulating inheritance and obligations, and the whole system of legislation on which the safety of society rests could be attacked and shattered by verbal testimony. It seems impossible that such proof can be consistent with law .and public policy. See Green v. Weller, 32 Miss. 650; Pacific Railroad v. The Governor, 23 Missouri, 353; People v. Dulin, 33 N. Y. 269.

I can see no reason why the judgment should not be affirmed.

Howell, J.

dissenting. I am not prepared to concur in the opinion ■of the majority of the court maintaining the constitutionality of the act of the legislature by which, it is claimed, the Louisiana State Lotery Company was incorporated. Its title does not, in my opinion, ■conform to the one hundred and fourteenth article of the Constitution. I express no opinion upon other points presented.


author: Howe, J.

text:
    No. 3591.
    John Lockwood v. James E. Zuntz.
    An appeal from tlxo verdict of a jury and tlie judgment thereon, will be dismissed on motion if the note of evidence shows that no documents were filed in evidence nor testimony in writing on the trial, and statement of facts or assignment of errors are found in the record.
    from the Seventh District Court, parish of Orleans.

      Collens, J. John H. llsley, for plaintiff and appellant.

      Cotton & Levy and W. O. Denegre, for defendant and appellee.
   Howe, J.

Tho judgment in this case was rendered by default, the ■damages being assessed by a jury.

The certificate of the clerk of the court a qua shows that the record contains a full, true and correct transcript of all the proceedings had, but that no documents were filed in evidence, or testimony reduced to writing on the trial. There is no bill of exceptions, no assignment of errors, nor any statement of facts. The motion to dismiss must prevail. It would be a vain thing to keep a case pending in this court when it is clear that under no circumstances could the court grant any relief to the appellant. 21 An. 458; 16 An. 98; 11 An. 644.

Appeal dismissed.

Rehearing refused.


text:
    No. 2378.
    George Merz v. Labuzan & Carter.
    A promise to pay the debt of a third person can not be proved by parol testimony. R. S. p. 284, § 1443.
    Appeal from the Seventh District Court, parish of Orleans.

      Collens, J. F. Howard McCaleb, for plaintiff and appellee.

      J. McConnell, -and Bogers & Blanc, for defendants and appellants.
   Ludeling, C. J.

The only question necessary to be decided in this •case is whether or not a promise to pay the debt of another can be proved by parol evidence, although it lias been received without ■objection?

Tile act of 1858, entitled “An act to require written proof in certain cases,” declares that hereafter parol evidence shall not be received to prove any promise to pay the debt of a third person, but in all such cases tiio promise to pay shall be proved by written evidence, signed by the party to bo charged, or by his specially authorized agent or attorney in fact.” Acts of 1858, No. 208. We do not see how courts can give eifccfc to parjgl proof of a promise to pay the debt of a third person without disregarding the plain provisions of that law. “ Parol •evidence shall not be received,” etc. Being a prohibitory law, whatever is done in contravention of its provisions are null. C. C., art. 12.

It is therefore ordered and adjudged that the judgment of the district court be avoided and reversed, and that there be judgment against the plaintiff as in case of nonsuit, with costs of both courts


text:
    No. 2294.
    I. Bloom & Co. v. L. H. Stern & Co.
    A not© of a commercial firm given by one of its members in settlement of a liability of the firm, as surety or guarantor, is binding on the firm if it bo shown that the firm hayo recognized the acts of the member in contracting the liability and in mailing the noto.
    Appeal from the Eiffch District Court, parish of Orleans.

      Beaumont, J. Bace, Foster & F. T. Merrick, for plaintiffs and appellants.

      •Cotton & Bevy, for defendants and appellees.
   Ludeling, C. J.

This is a suit on a promissory note for $1000, drawn on the second of May, 1867, payable twelve months after date, to the order of the plaintiffs, and signed L. II. Stern & Co.

The evidence shows that L. II. Stern introduced to the house of I. Bloom & Co. one H. D. Doherty, and induced the latter firm to sell him goods by assuring them that the firm of L. II. Stern & Co. would be responsible.

Dorherty failing to pay, the plaintiffs called on L. H. Stern, one of the members of L. II. Stern & Co., for payment. He induced plaintiffs to execute their two drafts on Doherty, their debtor, in favor of L. H. Stern & Co., to facilitate the collection of the debt by L. H. Stern & Co., who undertook the collection. These drafts, though accepted by Doherty, were never paid.

L. II. Stern & Co., - through L. H. Stern, then compromised with plaintiffs by agreeing to execute their note in favor of the plaintiffs for $1000. It is this note which forms the subject of this suit.

We think the evidence clearly shows that L. II. Stern & Co. are bound for the amount of this note. In another record, which is also before ns, it appears that L. H. Stern & Co. have sued I. Bloom & Co. on the drafts given to facilitate the collection of the debt from Doherty, thus showing the firm recognized the acts of L. II. Stern.

It is therefore ordered and adjudged that the judgment of the district court be avoided, and that there be judgment in favor of I Bloom & Co. against the defendants in solido for the sum of $1000, with five per centum per annum interest thereon from judicial demand, and costs of both courts.

Rehearing refused.


author: Ludeling, C. J. Wyly,' J.

text:
    No. 1072.
    A. T. Stewart & Co. v. Bloom, Kohn & Co.
    If a caso lias boon taken from the Supremo Court of Louisiana to tbe Supreme Court of tbe United States on a writ of error from a final decree, and the decree of tbo Stato court is rovorsed on tbo plea of prescription, and tbe cause is remanded by tbo Supreme Court of tbe United States to tbe State court, then and in that case tbe Supreme Court.of tbe State will make order and decree in tbe case to conform to tbe ruliug of tbe Supreme Court of tbe United States on tbe plea of prescription.
    Appeal from the Fourth District Court, parish of Orleans.

      Théard, J. Elmore & King, for plaintiffs and appellants on writ of error.

      Kace, Hosier & E. T. MerrieJc and E. W. Huntington, for defendants.
   Ludeling, C. J.

This is an action upon a promissory note. The defendants pleaded the prescription of five years.

The note fell due on-the thirteenth March, 1861, and the citations were served on the defendants on the eighteenth day of April, 1866.

More than five years having elapsed, after the maturity of the note, before the citations were served on the defendants, the plea of prescription must be sustained. C. C. 3494, 3505; Rabel v. Pourciau, 20 An. 131, and Smith v. Stewart, 21 An.

It is therefore adjudged and decreed that the judgment of the lower court be affirmed, and that the appellants pay the costs of the appeal.

Decision after the Case was Demanded hy the Supreme Court of the United States to the Supreme Court of the State.

Wyly,' J.

In conformity to the decree of the Supreme Court of the United States, to which conn, this case was removed on writ of error, it is ordered that the judgment of this court, heretofore rendered herein, be set aside, and it is now ordered that the exception of prescription be overruled.

On tiie Merits.

From the evidence the case is clearly made out for the plaintiffs, as far as the amount of the note, to wit: $3226 24. As to the account, its correctness is not satisfactorily established by the evidence.

It is therefore ordered that the judgment appealed from be annulled, and that the plaintiffs recover judgment against the defendants in solido for $3226 24, with five per cent, interest thereon from thirteenth March, 1861, and costs of both courts.


text:
    No. 3402.
    Urban Theurer v. Bernard Nautre and Charles W. Bradbury.
    Machinery set in brides ancl run by steam, and used as a cotton seed oil factory, constitutes a part oí' the realty on which, it is erected. Such machinery can not, therefore, be removed from the premises after the land on which it stands has been seized under a mortgage.
    Appeal from the Seventh District Court, parish of Orleans.

      Collens, J. O. JS. Schmidt, for plaintiff aud appellee.

      Armand Pitot, for defendants and appellants.
   Wyly, J.

The defendant Nautre has appealed from a judgment ou a rule requiring him to return to the seized premises the boiler, engine and gearing illegally removed by him, and to restore the same to the condition in which it was prior to tiie illegal removal, or in defaidt of so doing, requiring him to pay to the sheriff the value of the machinery so removed, to wit: $700, to be applied to the partial satisfaction of the writ of seizure and sale obtained by the plaintiff against two lots of ground and buildings on Julia street, to which the said machinery was attached at the time the said premises were seized.

It appears that the mortgage under which the property was seized was granted by the defendants to the plaintiff on the twenty-seventh of February, 1868, to secure a loan of $12,500; and there were on tiie premises at the time three buildings, two of which were used as a cotton seed oil factory, and contained machinery run by steam. It also appears that the boiler and engine, removed by the defendant Nautre since the proceeding herein to foreclose the mortgage, were set in brick work which was torn up in the said removal.

We think the district judge decided the case correctly. The machinery attached to the premises formed part of the immovable itself, and ought not to have been removed by the defendant Nautró. C. C. 455, 460; 12 An. 227.

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