text:
    Matthew Watson v. Samuel Templeton.
    Objection by drawer of a bill of exchange of insufficient demand of the acceptor. The notary went to the -place of business of the acceptors, (Wm. Zauglilim, & Con) and finding it shut, made protest for non -payment, without making inquiry for the residence of the acceptors. By the Govzrt: We consider a demand, within the usual business hours, at the commercial domicil of a partnership, for the payment of a note, or bill due by the firm, a sufficient presentment. It was not necessary to make a fuvther demand at the private residence of the individual partners. The place of business is the domicil of the firm, and it is their duty to have suitable persons there to receive and answer all business demands. We express no opinion as to the degree of diligence requisite, where the obligation is that of one doing business alone, and where the debtor has both a domicil and place of business, the latter being closed at the time of the presentment.
    Notice by the notary to the last endorser exclusively, is a strict compliance with commercial usage, especially if he be ignorant of the residence of the other parties.
    Where the distance is such as to require the interval of several days for the purpose of communication, then “ the day31 which each endorser is allowed, within which to give his notices in turn, will commence with that on which he himself receives notice.
    APPEAL from the District Court, Tenth District, Parish of Carrol, Snyder, J.

      Selby, for plaintiff. Caldwell, for defendant and appellant
   Lea, J.

This is a suit by the holder against the drawer of a protested bill of exchange.

The defendant’s counsel has urged in argument, that the evidence establishes an insufficient demand of the acceptor and a want of proper diligence in notifying the drawer. Other matters also have been urged on behalf of the defendant, which we consider it unnecessary to discuss.

On the 19th February, 1850, the defendant drew his draft upon Wm. Laughlin & Co., of this city, in favor of C. J. Searls, for the sum of $2500, payable ten months after date. This bill, after acceptance, was, in due course of business, discounted by the Planters’ Bank, of Nashville, and was, by the officers of that institution, transmitted for collection to the Mechanics’ and Traders’ Bank of this city, where the acceptors resided. The bill is dated in New Orleans, though the drawer, it appears, resides and did reside at the time the draft was drawn, in the parish of Carroll, in this State, to which place he removed from Warren County, in the State of Mississippi, the place of his previous residence.

On the maturity of the note, a presentment for payment was made at the place of business of the acceptors by a notary public, who, finding it shut, made protest for non payment, without making further inquiry for the residence of the acceptors, and on the same day, sent notice of the same, by mail, to the President of the Bank of Nashville, enclosing in the same letter the notices for the other parties to the bill. These notices were received in due course of mail, on the 6th January, 1851, by the officers of the bank, who, after diligent inquiry made of several persons, and especially of the party from whom'they had received the bill, being unable to obtain any positive information with reference to the defendant’s place of residence, on the same day on which they themselves received notice, deposited the original and duplicate notices of protest in the post-office at Nashville, directed separately to the defendant at five different post-offices in the State of Mississippi, being those at' which they supposed they would be most likely to reach the defendant.

Now it remains to be determined under this state of facts:

1st. 'Whether a proper presentment and demand of payment was made by the notary;

2d. Whether the notary took the customary and legal steps for giving notice of protest to the other parties to the bill;

And 3d. Whether the plaintiff used due diligence in attempting to give notice to the drawer.

We consider a demand made, within the usual business hours, at the commercial domicil of a partnership, for the payment of a note or bill due by the firm, a sufficient presentment. It was not necessary to make a further demand at the private residence of the individual partners. The place of business is the domicil of the firm, and it is their duty to have suitable persons there to receive and answer all business demands made at that place. We express no opinion as to the degree of diligence requisite where the obligation is that of one doing business alone, and where the debtor has both a domicil and place of business, the latter being closed at the time of the presentment. See Story on Promissory Notes, § 235.

We think the notary, under the circumstances, complied strictly with commercial usage in giving notice exclusively to the last endorser.

Mr. Ohitty lays down the rule as follows.: “ It is usual for the holder only to give notice to the person from whom he immediately received the bill or note especially if he is ignorant of the residence of the other parties (as in the case at bar) ; and if so, his neglect to give notice to the other prior endorsers and to the drawer, cannot, on any sound principle, deprive either of the endorsers of the right to proceed against the person who endorsed to him and all prior parties: provided, he, in his turn, has duly forwarded notice.” The rule is, therefore, clearly settled, that each party to a bill or note, whether by endorsement or mere delivery, has, in all cases, until the day after he has received notice, to give or forward notice to his prior endorser, and so on till the notice has reached the drawer.”

See Story on Promissory Notes, sec. 331, and notes.

And where the distance is such as to require an interval of several days for the purposes of communication, then “ the day ” which each endorser is allowed, within which to give his notices in turn, will commence with that on which he himself receives notice. The notary testifies in this case that he was ignorant of the residence of the drawer, and that the office of the acceptors, where such enquiry might have been made, being shut, he directed the notices according to the law and usage in such cases. Por a further illustration of this subject, see the opinion of Chief Justice Slidell in the case of Carmena v. The Bank of Louisiana, 1st An., 370.

Up to the time, therefore, that the Bank of Nashville received notice of protest, there had been no discharge of the drawer. Were its officers guilty of any such laches, after that notice had been given, as operated a release of his liability ? It appears to us that they used all reasonable diligence in endeavoring to discover the residence of the defendant. The endorsee of the note, from whom they received it, gave them no information. They were not bound to make public proclamation, or to go to the useless expense of advertising for information concerning the residence of one whose domicil was in another State.

The doctrine on this subject is clearly and concisely stated in Kents’ Commentaries, vol. 3d, sec. 44, p. 105, from which we extract a single sentence, as specially applicable to this case: “ The law does not presume that the holder of the paper is acquainted with the residence of the endorsers; and if the holder or notary, after diligent enquiry as to the residence of the endorser, cannot ascertain it, or mistakes it and gives the notice a wrong direction, the remedy against the endorser is not lost.”

It has not been suggested, and we are at a loss to conceive what further en-quiries, with any reasonable hope of obtaining additional information, the officers of the bank could have made.

We think there is no error in the judgment appealed from.

Judgment affirmed.


source: Caselaw Access Project

author: Lea, J.

license: Public Domain

text:
    Hunter, Murphy & Talbot v. The General Mutual Insurance Company of New York.
    A liability for a general average contribution cannot properly be called a risk; it is an obligation incident to a sacrifice made to avert a risk. It is based upon the equitable rule that no one should enrich himself at another’s expense.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Mo'ise & W. M. Randolph, for plaintiffs. Briggs, for defendant and appellant.
   Lea, J.

The conceded facts of this case, limit the investigation of the court to a single question of law. The plaintiffs shipped on board the bark Cyane, bound from Richmond to New Orleans, fourteen slaves, which they caused to be insured to the extend of $7075, by the defendants, “solely against loss by drowning in consequence of the stranding or shipwreck otherwise of the vessel, the assurers being warranted against all other risks, and especially against mutiny, elopement, natural death, and the interference of foreign governments on these subjects.”

The vessel on which the slaves were embarked, stranded near Abaco, and to save the crew and the remainder of the cargo, including the slaves, a jettison of a portion of the cargo became necessary.

The. plaintiffs in this suit seek to recover the amount which they were obliged to pay as their apportionment of a general average contribution. It is contended that, by the special stipulations of the policy, the liability of the insurers is restricted to a loss by drowning in consequence of shipwreck, and as it is not alleged, nor is it the fact, that any of the slaves were drowned, they are not liable under the policy.

It is admitted that the premium was paid, that the jettison was proper, and that the adjustment was correctly assessed. The whole case then turns upon a question of interpretation. Does the clause above quoted release the insurers from a liability to reimburse the assured for the money paid under the average contribution ? In the policy, there is a clause specially authorizing the recovery of a general average contribution, but it is urged that this clause forms a part of the printed portion of the policy, and is controlled by the written stipulations restricting the liability of the insurers against any risk, except that of death by drowning.

Had the plaintiffs effected an ordinary insurance upon merchandize, the defendants, in the absence of any restrictive clause, would clearly be liable for the reimbursement. This clause, it appears to us, was clearly intended to designate the specific risk against which the company intended to protect the plaintiffs. But a liability for a general average contribution cannot properly be called a risk; it is an obligation incident to a sacrifice made to avert a risk. It is based upon the equitable rule that no one should enrich himself at another’s expense; but it is not itself a risk according to any proper interpretation of that term. Assuming, therefore, that the written stipulations of the contract should control the interpretation of the printed clauses, we can perceive no necessity for the application of such a rule, as the enforcement of both involves no contradiction. And’ this interpretation is sustained by a consideration of the natural equity of the case. He who participates in the benefit, should divide the burthen of a sacrifice. Jettison is never made except upon the supposed necessity of the sacrifice of a' part, for the' purpose of saving the remainder of the cargo.

It is admitted that the jettison in this ca'se was properly made. The presumption, therefore, is that, had' the jettison not been made, the cargo, including the slaves, would have been lost. The insurers, therefore, were directly benefited by the sacrifice, which was made to avert a loss for which they would otherwise have been liable.

"We think there is no error in the judgment appealed from'.

Judgment affirmed, with costs.


author: Buchanan, J.

text:
    Le Baron & Son v. J: Dupont.
    When the cross interrogatories are not answered, the depositions should not he received in evidence.
    APPEAL from the Fourth District Court of New Orleans,. Reynolds, J.

      Benjamin, Bradford S Finney, for plaintiffs and appellants. Briggs, for defendant.
   Buchanan, J.

This ease presents an issue*of fact whether the mahogany of which the proceeds are attached at the suit of Le Baron S' Son, belongs to their debtor, John Dupont, or to Gabriel Le Blanc, the plaintiff in the other, suit. It is proved by witnesses examined for Le Baron & Son that the mahogany was purchased by Dupont in his own name — that he chartered the brig Octavie to bring it to New Orleans — that the Octavie being wrecked at the port of shipment, he chartered another vessel, the brig Sarah Thorndike, to carry the mahogany — that this charter party was made by Dupont in the- name of his father-in-law, Gabriel Le Blanc, as charterer, for the reason, as alleged by him, that said Le Blanc would he on the spot to attend to the shipment — that Dupont came to New Orleans with the mahogany, and sold it to Siebridit as his own property.

Against this evidence there is the presumption arising from the insertion of Le Blanc's name in the charter party of the Sarah Thorndike, as charterer, and in the bill of lading as shipper and consignee of the mahogany. But the first of tllese documents is explained "by the evidence of Ireland and Salazar, as above, and the bill of lading is shown to have been always in the possession of Dupont. A witness, Badovich, has also been examined for Le Blanc, but his evidence does not contradict, in the slightest degree, that of Le Baron’s witnesses. There is a bill of exceptions to the admission by the District Judge of the depositions of three witnesses examined for Le Blanc under a commission. Appended to the commission were interrogatories and cross interrogatories. But none of the cross interrogatories were answered by the witnesses, nor even, as it seems, communicated to them. This ground of objection was improperly overruled by the District Court. The depositions should have been rejected, and we are bound to dismiss them from our consideration. The attaching creditors have made out their case to our satisfaction.

It is therefore adjudged and decreed, that the judgment of the District Court be reversed; that the appellants, Le Baron & Son, recover of Jean Dupont two thousand and eighty-four dollars and fifty-six cents, with interest at eight per centum per annum from 12th June, 1849, until paid, and costs of these consolidated suits in both courts, With privilege upon the property attached; and that there be judgment against the appellee, Gabriel Le Blanc, with costs.


author: Spofford, J.

text:
    Watts, Templeton et al. v. The Police Jury of Carroll.
    Inhabitants of a parish who aro put to great trouble, inconvenience and injury in reaching; the* court-house, have such an interest in the erection of a new one in a proper place, as provided by law, as to authorize a mandamus to compel the Police Jury to proceed to the construction of the new court-house.
    The vote of the Police Jury, refusing to make an appropriation for the building of a court-house, and their inaction with regard to the levy of a tax for many months after the parish, site had been selected and reported by the Commissioners, were in violation of the command of the sixth section of the Act of 4th March, 1853; and a mandamus was the suitable remedy. O- P. 844.
    Although the parish had no title to the site for the court-house reported by the Commissioners, they could have acquired title by a forced expropriation upon a previous indemnity to the owners Code 2604 et see[.

    APPEAL from the District Court, Tenth District, Parish of Carroll, Snyder, J.

      Short & Parham, for plaintiffs. Oaldwell and Stacy & Sparrow, for defendants and appellants.
   Spofford, J.

The question here is, whether the District Court erred in issuing a peremptory mandamus to the defendants, commanding them to proceed to assess and cause to be collected, a special tax, to defray the expense of a new court-house and other public buildings for the parish, as located by the Report of the Commissioners, and to cause the said buildings to be erected as required by the Act of 4th March, 1853. Sess. Acts, p. 12.

It is objected that the relators disclosed no such interest in the question as would authorize them to sue out a mandamus. They allege, and the petition is sworn to, that they live in the parish, near the Bayou Magon, and are put to great trouble, inconvenience and injury, in being compelled to go so far from the centre of the parish as the town of Providence, for the purpose of attending court — an evil which the Legislature intended to remedy hy the act aforesaid. If it were necessary for them to allege any further interest than that which all citizens of the parish had, that the law relative to the public buildings of the parish should be executed, the allegations of the petition are certainly sufficient. and no such special issue was made upon them as to require further proof than the relators’ affidavit.

Again: it is said that the election relative to the new parish site was null, because the clerk did not count the ballots cast for and against removal, hut merely made a calculation from the returns of the different election precincts. The count appears to have been made in conformity with the requirements of the second section of the Act of March 4th, 1833, ordering the special election; and there is no allegation that the result was not correctly announced.

It is next contended that the Police Jury had not refused to assess and cause to be collected the tax, and that a discretion was vested in them as to the time and mode of doing it, with which the court could not interfere. Their vote refusing to make an appropriation for the building of a court-house, and their inaction with regard to the levy of a tax for many months after the parish site had been selected and reported by the Commissioners, were in violation of the command of the sixth section of the Act aforesaid, and a mandamus was the suitable remedy. (C. P. 844.) Whatever discretion was left to the Police Jury as to the mode of assessing the tax, it was not discretionary with them to omit it altogether.

Finally, it is urged that a parish site had not been selected by the Commissioners, and that the parish owned no land at the spot indicated by their Report, so that the demand for the levy of a tax was premature. The Report of the Commissioners ascertained with reasonable clearness the site they had chosen ; and although a title had not been acquired by the parish, the Commissioners reported that the adjoining proprietors were ready to give the land. If they had not so reported, still there was a mode prescribed by law for the forced expropriation of such land as was found necessary for the public use, upon a previous indemnity being paid to the owners. (C. C. 2604 el seq.) To provide means for paying this indemnity, as well as for erecting the public buildings, a special lax was necessary.

We do not think the judgment was erroneous in any of the particulars pointed out by the appellant.

Judgment affirmed, with costs.


author: Merrick, C. J.

text:
    Otho Farmer’s Heirs v. John Fletcher.
    Decision in Purvis v. Harrmason, i An., 422, and Thomas v. Phillips, 7 An., 54G, affirmed.
    ÁPPEAL from the District Court, Ninth District, Parish of Concordia, Farrar, J.

      Stacy & Sparrow, for plaintiffs and appellants. J. P. Farrar, for defendant.
   Merrick, C. J.

This action, which is one of revendication, presents substantially the same question decided by this court in the cases of Purvis v. Harmason, 4 An., 422, and Thomas v. Phillips, 7 An., 546.

The claim was confirmed under No. 70, Class B., approved by Act of Congress 29th April, 1816, of claims to lands in the western district of Louisiana. See Statutes at Large, 3d vol., p. 329, sec. 1.

In this class it was entered as the claim of “Ferdinand L. Claiborne,” “ original claimant, Otho Farmer,” “400 arpents,” “settlement by permission.”

The present case differs from the cases cited only in the remarks of the Commissioners in their report to Congress. Under No. 70, they say:

“ In this claim is filed a plat of survey executed by Peter Walker, bearing date the 11th of April, 1803. The survey is made in favor of OtTio Farmer, and certified by said surveyor to have been made by order of Don José Tidal, the commandant, etc., of the port of Concordia. On the back of the paper containing the plat is the certificate of the said commandant, bearing date also tho 11th April, 1803, setting forth that the survey was executed with his approbation, and that there were no objections to the claim, and that the papers should be presented to the intendent for the completion of the grant. No conveyance from the original claimant, Farmer, has been adduced, and although proof of occupancy has not been furnished in the claim, the board deem it to have been such a claim as ought to have been confirmed on the ground that no other evidence or document than that above mentioned would have been requisite in perfecting the title under the usages and customs of the Spanish government.”

On the survey were the following endorsements:

“The.conveyance from OtTio Farmer to Fred. Zerbau is wanted. It may possibly be found in the records of the parish of Concordia, or in the possession of Gen. F. L. Claiborne’. It should be transmitted to the Board of Commissioners, that their certificate of confirmation of the claim may issue in the name of the legal representatives of said Zerbau, if confirmed. ’

“Wanted proof of settlement,” “Recorded folio 65,” “ OtTio Farmer,” “400 arpents,” “11th April, 1803,” “ Registered at the office of Port Concordia, 14th March, 1804,” “ Fi'ederick Zerbau.”

These endorsements upon the survey form no part of the report of the Commissioners to Congress, and cannot, therefore, be considered as controlling in any manner its effect.

That report places the name of Ferdinand L. Olaiboi'ne as the claimant of the land through OtTio Farmer. We see nothing in the remarks accompanying the report recommending the confirmation of the claim to any one except F. L. Glaiborne. The Act of Congress, therefore, must be held to have confirmed the claim in his name.

Counsel have questioned the correctness of the decision in tho cases of Purvis v. Harmason and Thomas v. Phillips. Whatever our opinions might have been had the question been an original one, we think the rule in those cases is one of property, and now too well established to be disturbed. Doubtless none but the gravest considerations induced the court in the first of these cases to overrule the doctrine affirmed by many previous decisions, and extending through a period of many years.

Judgment affirmed.


text:
    Ademiram Seavers v. Jean Journee and Elizabeth Weber.
    A suit claiming property and rent is a totally different action from that of rescission of a sale for fraud, and will not interrupt prescription as to the latter*
    Code, 1989.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Jourdan, for plaintiff. Dufour, for defendants and appellants.
   Merrick, C. J.

This is a revocatory action, brought against Elizabeth Weber, the original vendor of Peter Weber, her brother, and Pean Journée, her vendee, for one-half of the property, consisting of a house and lot.

The sale was made by Peter Weber to his sister for $450, and he immediately absconded after the sale, which was made by notarial act on the 5th day of March, 1851, the price being paid in cash. The defendant, Elizabeth Weber, and her vendee have been in actual possession ever since.

The present suit was instituted on the 17th day of February, 1854, being nearly three years after the sale.

The defendants plead the prescription of one year, under Article 1989 of the Civil Code.

The plaintiff contends that the prescription pleaded has been interrupted fiy legal proceedings.

The plaintiff, after Peter Weber had absconded, instituted a suit by attachment against him, and seized the house and lot in controversy. The defendant, Elizabeth Weber, intervened in the suit, as will be hereafter noticed. The house and lot were sold under the attachment, (the defendant all the while remaining in possession,) and the same were bought by the plaintiff and Moses Levy. They had their sale confirmed by a monition.

On the 30th day of April, 1852, they instituted their action of revendication against the defendants to recover the property and damages for its wrongful occupation. *

The plaintiff and Levy, on the 26th day of May, 1852, amended their petition and alleged that the sale from Peter Weber to Elizabeth was fraudulent and simulated, and prayed rescission of the same, and that the petitioners be put in possession. This amended petition never was served, yet judgment was rendered 'against the defendants. A new trial was granted, because they were not notified of the filing of the amendment. Final judgment was rendered, dismissing the suit, which was affirmed on appeal, one of the grounds being ’that the amendment was not served, and introduced a new cause of action. It is apparent that these proceedings, if they had been commenced in time, could not, with the exception of the amended petition, (which is without effect, because not served,) interrupt prescription as to the revocatory action. The service of a petition claiming the property, and a citation thereon, as well as a demand for rent, is a totally different action from the action of rescission for fraud.

' It is further contended, that the intervention of Elizabeth Weber, in the attachment suit of plaintiff against Peter Weber, wherein she sets up her title' to the property, and plaintiff alleges the sale to her to be fraudulent, must have the effect of interrupting the prescription. Conceding this to be so, yet more than one year elapsed from the dismissal (15th April, 1852,) of defendants’ intervention, as in case of non-suit, on account of the absence of her lawyer, and the institution of this suit.

We therefore think the plea of prescription in this case must be maintained.

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


text:
    James C. Kathman v. The City of New Orleans.
    -On motion to dismiss appeal.
    The 41st section of the Charter of the city, which dispenses the city from furnishing bond and security in all judicial proceedings, “ where, by existing laws, bond and security are required of litigants,” is not unconstitutional, as being without the terms of the title of “the Act to consolidate the city of New Orleans, and provide for the government and administration of its affairs.”
    The 41st section does not revive or amend any law by reference to its title. It refers to laws in general terms without any indication of the title of such laws.
    A PPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Collins, for plaintiff. Livingston, City Attorney, for defendant- and appellant.
   Buchanan, J.

(Merrick, C. J., absent.) A motion is made to dismiss this appeal, on the ground that the city of New Orleans, appellant, has not given an appeal bond. It is urged that the 41st section of the Charter, which dispenses the city from furnishing bond or security in all judicial proceedings, “ where, by existing laws, bond and security are required of litigants,” is contrary to the 115th and 116th Articles of the Constitution of 1852, and to the 118th and 119th of that of 1845, in force when the Charter (Consolidation Act) was adopted.

That Act is entitled “ Act to consolidate the city of New Orleans, and provide for the government and administration of its affairs.”

It appears to us that the provisions of the 41st section fall within the terms, of the-title. The prosecution and defence of lawsuits in which the city may he involved form (as the docket of this court abundantly proves) a very important part of the administration of its affairs: and the privilege accorded it, of ex. emptlon from obligations imposed upon other suitors in the State courts, however objectionable on the score of policy, at least must be admitted to have required special mention, as constituting a remarkable feature of that portion of the municipal administration.

Neither do we think the Articles 116 and 119 apply to this case. The section in question docs not profess to revive or amend any law by reference to its title. It refers to laws as existing, in general terms, without any indication of the titles of such laws. Nay, the use of the word “ existing,” in this connection, implies a recognition that the laws alluded to are in full force — -at least so far as the whole community (with the exception of this municipal corporation) is concerned. Again we may observe, that the justice or propriety of such exceptional legislation is not very obvious. But it is not a solitary instance of the kind on our statute-book; and wo should be especially careful about extending constitutional prohibitions by implication. •

The motion to dismiss is therefore discharged.


text:
    James C. Kathman et al. v. The City of New Orleans.
    Any neglect of duty on the part of the assessors, involving a want of ordinary care and diligence in the discharge of their duties, occasioning damage, would give rise to an action on the part of the State or the city against them to repair the loss occasioned by such neglect. Or the damage arising from such neglect may be set up by way of defence against the amount due the assessors.
    In assessing property the title papers are not required to be produced to the Assessor when he malees the assessment; and the defendant should be permitted, in order to show omissions by the assessors, to prove, by parol evidence, that certain individuals possessed real estate and had not been assessed.
    The law does not require absolute perfection in the assessment, as this in a large city like New Orleans would be impossible. The assessors are only held to use due diligence and care in ascertaining the property subject to taxation, and the names of the persons to whom it is to be assessed.
    The sum allowed by law to the assessors from the city is the amount due by the State; and if the Auditor has made an error in his calculation, it cannot prejudice the city.
    A PPEAL from the Fifth District Court of New Orleans, Augustin, J.
    Collins, for plaintiffs. Livingston, City Attorney, for defendant and appellant.
   Merrick, C. J.

This suit is instituted to recover of the defendant the sum of $9110 40, for the copy of the assessment-roll made out by plaintiffs as assessors, and furnished the defendant. Acts Sess. 1864, p. 46.

By the Act referred to it was made the dnty of the assessors to furnish a espy of the assessment-roll to the city of New Orleans, and they were to receive annually from the city the same amount of compensation which shall be due them by the State.

The Auditor of State allowed their claim for the sum above mentioned.

The defendant in their answer deny the power of the State to compel them to pay this sum to the assessors, the officers of the State;

That if bound to pay anything, it is only for that part of the assessment-roll on which they are permitted to assess taxes;

That the assessment-rolls are defective; the assessments are incorrect; that a large amount of property is not assessed; that numerous corrections have been made; that the charges of the corrections exceed the sum of $1800; that the expense for advertising, printing, stationery, &c., amounting to a large sum — say $6000 — are charges against said assessors; that under the law, if the city is liable — which is expressly denied — the assessors are hound to deliver to it a copy of the assessment-roll, free from all charges and perfect in every respect, for the amount specified in the Act.

The defendant, on the trial of the case, offered to prove by Ovúle DeBuys, the Controller of the city of New Orleans, that the assessment-rolls were incorrectly and inaccurately made out; that a large amount of real estate was assessed to owners unknown; that the amount so assessed exceeds $1,000,000 ; that by ordinary diligence the plaintiff could have discovered the owners of said property so assessed.

Defendant offered to prove, farther, that the city employed competent persons to correct the assessment-rolls, and has paid and is Hablo to pa,y for corrections so made. To the introduction of this evidence plaintiffs objected, on the ground that no such proof can be made by such evidence; that no claim in reconvention or compensation is set up; that the Controller does not receive the rolls until homologated, and then they are final; that defendant’s claim for damages is'not equally liquidated. The objections to the testimony were sustained, and the testimony rejected.

Any neglect of duty on the part of the assessors, involving a want of ordinary care and diligence in the discharge of their duties, occasioning damage, would give rise to an action on the part of the State or the city against them to repair the loss occasioned by such neglect. We see no objection, therefore, to the defence set up to the action of the plaintiffs to recover for their services, wherein the defendants allege such want of care and the consequent damage they have sustained, and the necessary expense they have been forced to incur to repair the loss. It may be remarked that the notice given to all persons of the completion of the assessment-roll, and the final delivery of the same to the Controller, could not have the effect of the thing adjudged as to the city, and thereby preclude all examination as to the manner in which they had performed their duties. We see, therefore, no objection to the introduction of the testimony under the answer, especially as it grows out of the acts of the plaintiffs for which they claim — the wages or salary of their employment; and it is therefore closely connected with their demand.

The objection that the city could not show the ownership of real estate ás an object of taxation, by parol proof, is, as the question is here presented, untenable. In matters of assessment the title papers are never required to be produced to the assessor when he makes the assessment; and we think the city should have been permitted, in order to prove omissions by the assessors, to show by parol that certain individuals possessed the real estate in question as owners.

While we are of the opinion that the testimony offered by the defendant ought to have been received, it is proper for us to say that the law does not require absolute perfection in the assessment, as this, in a large city like New Orleans, would be impossible. The assessor is only held to use due diligence and care in ascertaining the property subject to taxation, and the names of the persons to whom it is to be assessed.

The assessors are entitled to receive from the city, if they have faithfully and diligently discharged their duties, the same amount as was due by the State; and the city would not be at liberty to confine the .allowance to such objects of taxation only as are subject to the city tax. The sum allowed them is the amount due by the State; and if the Auditor has made an error in his calculation, it will not prejudice the city.

As the judgment in this court must be set aside and the case remanded for a new trial, we think it proper to observe that we leave the question open, whether the city is entitled to any compensation for stationery and printing or not; and we express no opinion upon the point — there being no evidence in the record on this subject.

It is therefore ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that this cause be remanded to the lower court for a new trial, and to be proceeded in according to law, with instructions to receive the testimony of Ovide DeBuys for the purposes specified in the bill of exceptions; and it is further ordered that the plaintiffs and appellees pay the cost of the appeal.