text:
    Joyce Holmes v. Barbin, Sheriff, et al.
    When a wife authorized by the judge prosecutes a suit alone, and unassisted by her husband, an appeal from a judgment rendered in her favor, will not bo dismissed on the grounds that the appeal bond was not executed in favor of her husband as well as herself.
    Although a wife may have acquired property in fraud of her husband’s creditors yet if her title be a reality, and not a mere sham, they cannot seize it directly for his debts, but should first resort to the revocatory action.
    When the husband is insolvent, a judgment of separation of property will not be declared null, for want of execution.
    APPEAL from the District Court of the Parish of Avoyelles, Cullom., J.

      F. P. Hitchborn, for plaintiff.

      Generes fy Lewis, for defendants and appellants.
   Spofford, J.

The plaintiff has died'sinco the appeal was taken by defendants.

Her legal representatives, appearing in this court, have moved to dismiss the appeal, because the appeal bond was not executed in favor of the plaintiff’s husband as well as herself. The motion is overruled. Her husband did not join her as assistant plaintiff, and has not made an appearance as a party to the suit. She was authorized by the Judge to prosecute it alone. She is the only appellee.

The defendants, under execution against the plaintiff’s husband, James E. Howard, seized a plantation which the plaintiff claims as owner by just title translative of property. The defendants reply, that this title is a mere simulation and that the plantation still belongs as it formerly belonged to James E. Howard, the husband, who is their judgment debtor. If the plaintiff’s title is serious and real, the judgment perpetuating the injunction is correct. Although she may have acquired the property in fraud of her husband’s creditors, yet if the title be a reality and not a sham they could not seize it directly for his debts, but should have first resorted to the revocatory action.

The title is regular upon its face. On the 7th October, 1843, the property was sold as Howard’s by the sheriff under execution at the suit of Lewis & Jewell v. Howard & Orr, and bought by Henry M. Howard, on the 20th Eebuary, 1848, Howard sold it to the plaintiff, Joyce Holmes, by authentic act.

The burden was on the defendants to establish the simulation of these sales. But the evidence offered by themselves shows that they were real.

Again the appellants contend that a community of gains was subsisting between Joyce Holmes and her husband James E. Howard on the 20th Eebuary, 1848, and that this acquisition from H. M. Howard, although made in the name of the wife, fell into the community, and is therefore subject to seizure for Howard’s debt. On the 19th November, 1845, she had a judgment against her husband for a separation of property, whereby she also had her title recognized to two slaves free from the control or interference of her husband; she also recovered judgment against him for $62 25, although she had not specially asked it. This judgment was duly advertised.

The defendants contend that it is absolutely null for want of execution. O. 0. 2402. But it would appear to have been executed so far as it was possible for the estate of her husband to meet it. He is proved to have been utterly insolvent. An execution even for the $62 25 would have been a vain thing.

It does not appear that a moneyed judgment was demanded against him in her petition. Nor was it necessary to issue an execution on account of the two slaves. The title was not in their joint names, as in the case of Handy v. Sterling, 1 An. 308, but the wife had just acquired them in her own name, through an act of partition between herself and her co-heirs under the will of her brother. She merely desired to have her right to a seperate administration of her paraphernal property recognized, and the community dissolved, on account of the disorder of her husband’s affairs. This she obtained, and the record does not authorize us to say that any writ of execution could have effected more than was effected by the simple judgment duly advertised.

We are, therefore, of opinion that the community was dissolved.

Judgment affirmed.


source: Caselaw Access Project

author: Sfofford, J.

license: Public Domain

text:
    Dennis Mackie v. Thomas Davis.
    Ia a redhibitory action, whore there is no presumption raised by reason of the time when the disease manifested itself, the burden of proving its existence at the date of the sale rcst-s upon the plaintifT in the action.
    APPEAL from the District Court of the parish of Winn, Chaplin, J.

      Mercer Canfield, for plaintiff and appellant.

      Tucker & Chaplin, for defendant.
   Sfofford, J.

A simple issue of fact is presented by this record, viz, whether a slave sold by defendant to plaintiff, was, at the date of the sale, affected with an incurable disease of which he afterwards died.

There being no presumption raised in this case by reason of the time whou the disease manifested itself, the burden of proving its existence at the date of the sale was upon the plaintiff.

He has failed to make out any thing more than a speculative and possible case. The slave is said to have died of an aneurism. The plaintiff’s main witness, a physician, says he is “ of opinion that the condition that led to aneurism existed before the sale, but does not say that the aneurism itself existed at that time, or before it.” He also says, that “ it could not be ascertained from the appearance after death” (there was an autopsy) “ whether the death was caused by a rupture produced by sudden exertion, or from the natural course of the disease of aneurism.”

The verdict and judgment under the evidence as found in this record, are abundantly sustained by the jurisprudence of this court.

Judgment affirmed.


author: Cole, J.

text:
      W. Williams, Jr. v. Alice M. Hunter.
    Tho seizure and sale, under a fi.fa., of succession property, without an order of court or oilier legal authority, is illegal; and tho rights of minors cannot bo divested by such a sale.
    When the surviving widow agreed to sell a plantation, she having purchased one part of it at a sheriff’s sale by which she acquired no title, and thinking herself owner of the remaining portion as partner in the community,—Held: that she could not be made liable for the penalty, as she was induced to promise to sell by an error of fact and law.
    APPEAL from the District Court of Natchitoches, Chaplin, J.

      Hamilton & Chaplin, for plaintiff.

      J. G. Campbell, for defendant and appellant.
   Cole, J.

A written agreement was executed between the parties to this suit, by which the defendant promised to sell to the plaintiff with warranty the plantation, on which she resided, for a certain consideration, which is estimated at six thousand dollars. The delivery was to be made on the 1st of January, 1857.

The contracting parties also obligated themselves, that Mrs. A. M. Ilunler, if she refuses to make the said Wm. Williams, Jr., good and warranted titles to said described land at the time agreed upon, shall forfeit to and pay him tho said Williams two thousand dollars, and tho said Wm. Williams, if ho shall refuse to take and make payment for said land at the time agreed upon, then tho said Williams shall forfeit to and pay Mrs. A. M. Hunter two thousand dollars.”

The contract was not complied with on the part of Mrs. Hunter, and plaintiff has instituted this suit to recover the penalty of two thousand dollars.

There was judgment for plaintiff, and defendant has appealed.

The defendant admits the execution of the agreement, and in avoidance thereof pleads error. She admits her willingness to comply but avers her inability to do so, alleging that since the agreement was made, she has been advised and believes, she cannot comply without violating the law.

It appears, that the property belonged to the community, formerly existing between defendant and her deceased husband ; and consequently, at his death, the title rested jointly in defendant and her minor children, tho issue of her marriage with him.

It is also shown; that on the 20th of March, 1855, the plantation, or a part of it, though then the property of the succession, under an ordinary writ of fi.fa. issued in the suit of Lloyd Wells v. James Hunter, (the deceased husband,) and E. R. Olcott, was seized by the Sheriff of Bienville and sold, at public sale, to the defendant, and the Sheriff, by his deed, transferred to her all the title and interest, that Lloyd Wells (the plaintiff in execution, and of course without interest in the thing seized) had in the property, and not the interest of Hunter and Olcott, the defendants in execution.

Without deciding, whether the defendant could have the sale to her cancelled ; it is evident, her minor children were not divested by the sale of their right to their portion of the property.

If the claim of Wells were a special mortgage, he ought to have availed himself of an order of seizure and sale, or obtained an order to have property sold to pay his debt, or he could have waited and been paid in the due course of administration.

If Ms claim arose from a judicial mortgage, and lie wished to be paid, he ought to have applied for an order for the sale of sufficient property to liquidate Ms demand.

The issuance of a fi.fa. and the seizure and sale of succession property without any order of court, or other legal authority, is plainly illegal; and the rights of the minors were not under such circumstances divested.

Defendant has then no authority to transfer this property; for she would be acting unlawfully, and transferring what did not belong to her. v If this sale be left out of consideration, it is equally clear, she cannot sell the plantation; for one-half of it belongs to her children, it being property belonging to the community formerly existing between her and her deceased husband.

The question now arises, whether defendant having been in error, and not being actuated by fraud or gain, ought to be held liable for the penalty, when it is impossible for her to comply with the agreement. It is impossible, for the property of minors can only be- sold at public sale, and the highest bidder takes it. Even then if she were to apply to have the property sold, plaintiff would be obliged to incur the chance of buying it.

It is also admitted, that the under-tutor refuses to assent to the ratification of the agreement.

Her good faith is illustrated by the testimony; for the evidence shows, that she told Mr. Gray, son-in-law of plaintiff, for whom the purchase was intended, that “ she was willing to remunerate Mm for any inconvenience she had caused him, and offered as much land as Ms hands could cultivate, for the present year (1857), free of rent; and also offered to let him occupy her residence and pay him wages to take charge of her hands.”

She was induced to promise to sell by an error of fact and of law; there was an error of fact, for, she believed the plantation belonged to her, and there was an error of law, for she was mistaken in the effect of the Sheriff’s sale to her. O. 0. 1814,1816.

IVe are of opinion, defendant is not liable.

A penal clause is a secondary obligation, entered into for the purpose of enforcing the performance of a primary obligation. 0. 0. 2113.

The penalty being stipulated merely to enforce the performance of the principal obligation, it is not incurred, although the principal obligation be not performed, if there bo a lawful excuse for its non-performance, such as inevitable accident or irresistable force. 0. 0. 2116.

In the preceding Article, “ inevitable accident or irresistable force ” are not the only excuses for the non-performance of the principal obligation, but are merely illustrations of what may be deemed a lawful excuse.

The impossibility for defendant to execute the agreement is an excuse, such as “ inevitable accident or irresistable force,” inasmuch as this impossibility did not originate from her fault or fraud.

Besides, consent being the concurrence of intention in two or more persons, with regard to a matter understood by all, reciprocally communicated, and resulting in each party from a free and deliberate exorcise of the will, it follows, that there is no consent, not only whore the intent has not been mutually communicated or implied, but also where it has been produced by error. 0. 0.1813.

As then defendant executed the agreement under an error of fact and of law, the contract is thereby invalidated, and she is not subject to the penalty.

C. C. Art. 1814, 1816, 1828, 1835 and 1840.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; and it is further ordered and decreed, that there be judgment in favor of defendant against the demand of plaintiff, and that plaintiff pay the costs of both courts.


author: Spofford, J.

text:
    State of Louisiana v. Louis Soulé.
    The Act approved March 19th, 1357, entitled “ an Act to amend an Act relative to jurors” does not repeal, hut merely amends, and re-enacts, as amended, the third section of thoAct oflS55, entitled “ an Act relative to juries ”
    APPEAL from the District Court of the parish of Rapides, Cullom, J.

      C. N. Hines, for plaintiff.

      Hyman § Cazabat, for defendant and appellant.
   Spofford, J.

The prisoner sentenced to imprisonment at hard labor during life, for the crime of murder, has appealed.

Wo have no means of passing upon the motion to change the venire. In criminal cases, we decide questions of law alone. State v. Bunger, 11 An. 607.

The prisoner complains that the district judge erroneously refused to quash the venire from which a jury was selected to try him. This is made to appear by a bill of exceptions.

It is admitted that the venire was drawn conformably to the third section of an Act entitled “ an Act relative to juries ” approved March 14th, 1855, (p. 298.) But it is contended that this section was repealed by an Act approved March 19th, 1857, (Sess. Acts p. 179.) This is a mistake; the third section of the former Act was merely amended by the Act of 1857, as appears, by the title which is “ an Act to amend an Act entitled ‘ an Act relative to jurors ’ approved March 14th, 1855.” The section amended is reenacted and published at length, as required by the Constitution, Art. 116. The only change of importance is as to the selection of the foreman of the grand jury, who is to bo taken from the whole venire, instead of the first sixteen names drawn. It is not contended that this provision was violated. In other respects the formalities required by both the old and the new law were strictly followed. A.nd the amendments of 1857, did not require the list already selected from the assessment roll, and the law of 1855, but not yet exhausted, to be set aside and a new list to be made out.

Judgment affirmed, with costs.


text:
    N. G. & G. Wilkinson v. J. W. Martin et al.
    Whore tho return to a writ of ccrlioraH shows that papers and evidence material to the decision of tho causo, had boon lost, without neglect on the part of the Clerk, or the parties to the suit, the judgment of llio lower court will bo reversed, and the case remanded for a now trial.
    APPEAL from the District Court of the Parish of Rapides, Ogden, J.

      T. C. Manning, for plaintiffs and appellants.

      M. Ryan, for defendants.
   Cole, J.

A motion has been made to remand this cause for a new trial, on the ground that the answer of the defendants, and the note of evidence taken on the trial of the cause, are lost, and that the record is imperfect.

M. R. Ariail, the Clerk of the District Court for the parish of Rapides, in answer to the certiorari addressed to him in this case, says that he has made diligent search for the missing papers, and cannot find them, and that their loss has not been occasioned by any neglect bn his part, or that of the parties to tho ■ cause.”

The missing papers and evidence appear to be material to the decision of the suit.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed; that this cause be remanded for a new trial, and that the costs of appeal abide the event of the final decree.


text:
    Speake & McCreary v. George W. Barrett.
    A suit brought against ono of the members of a commercial firm, interrupts prescription with regard to all the partners.
    Where a note was signed by one of the members of a commercial firm with the addition of tho words “ in liquidation”—Held: that such a note was a notice to tho payee that the firm was dissolved, and that without a special authorization to tho partner signing the note from his co-partner, the note was not binding on him.
    APPEAL from the District Court of the Parish of Rapides, Cushman, J.

      W. B. Lewis, for plaintiffs and appellants.

      M. Ryan, for defendant.
   Cole, J.

Defendant is sued upon a note signed by “Barrett & Culbertson, in liquidation.” There was judgment for defendant, and plaintiffs have appealed.

Plaintiff in 1852, obtained judgment, in another suit against Culbertson; and seeks now to hold Barrett liable.

The plea of prescription of five years has been made; it cannot be sustained, because prescription was arrested by the suit against Culbertson; Barrett Culbertson being commercial partners are bound in solido, and a suit brought against one of the debtors in solido, interrupts prescription with regard to all. O. C. 2092.

It is established that the signature of the note is in the handwriting of Culbertson.

The addition to the signature, of the words “ in liquidation”, was a notice to plaintiffs of the dissolution of the partnership of Barrett & Culbertson.

After the termination of the co-partnership, Culbertson had no authority to execute the note in the name of the partnership, without special authorisation from his partner, and no such power is contained in the record. C. C. 2966.

It is contended; that the words, “ in liquidation,” cannot be construed to mean, that a partnership is dissolved : and as there is no proof, in the record, of any notice having been given to plaintiffs, except these words affixed to the note, that defendant is liable, because the firm of Barrett fy Culbertson were accustomed to transact business with plaintiffs, and they were entitled to special notification of the dissolution.

We are of opinion, that the presumption from the use of the words “in liquidation ” would be that the partnership had been dissolved.

If at the execution of the note, it were still in existence, it was the duty of plaintiffs to have established it.

Plaintiffs have not even proved that the note was given for a debt of the partnership. ,

Judgment affirmed, with costs of appeal.


author: Merrick, C. J.

text:
    The State of Louisiana, ex rel. John Turpin, v. Judge of Second District Court of New Orleans.
    The Supromo Court cannot, in a proceeding by mandamus, revise the action of the’District Judge.
    When unreasonable delays occur in the District Court, which might work irreparable injury and injustice, the writ of mandamus is the proper remedy pointed out by law, to prevent a failure of justice, and compel the inferior court to pronounce judgment upon tho demand.
    If it appear in the proceeding by mandamus, that the District Judge does not refuse to render a judgment upon the petition, it is not in the power of, the Supreme Court to compel him to render the particular judgment prayed for by the relator.
    ON an application for a mandamus to the Judge of the Second District Court of New Orleans.

      Duncan fy McConnell, for relator.
   Merrick, C. J.

The relator alleges that he was a brother of Edward Turpin, deceased; that his said brother died, leaving'a last will and testament, which has been admitted to probate, wherein the relator was constituted the legatee and executor ; that the deceased left an orphan minor child not named in said will; that petitioner, not wishing to avail himself of said will to. the exclusion of said child, is desirous of having said bequest reduced to the disposable portion, and said child recognized as the forced heir of her deceased 'father ;■ that relator is the only blood relation of said orphan in this country, and. that he-cannot accept the tutorship in consequence of his interest as universal legatee under the will, the same being adverse to said minor; and that he knows of no- person who will give bond and security required by the general provisions of lawthat relator applied to the said Judge of the Second District Court for an order convoking a family meeting to deliberate upon tbe appointment of a tutor and under-tutor to said minor; that the said Judge granted the order; that the family meeting recommended the appointment of Charles Fonda as tutor and Edwin Rodd as under-tutor, on their complying with the requisites of law, except giving bond ; that relator applied by petition to the Judge, with a copy of the proceedings of the family meeting, and prayed for the appointment of said tutor and under-tutor, and that said Judg'e has kept said petition under advisement many weeks, refusing to make said appointments, or either of them. The relator prayed for a rule nisi directing the District Judge to show cause why he should not make the necessary order appointing Fonda and Rodd tutor and under-tutor to said minor, on the terms recommended by the family meeting, or that he reject the same and proceed upon his own responsibility, and appoint a tutor and under-tutor, and that he require said appointees to qualify according to law.

The rule nisi was granted.' The District Judge, after stating that the homologation of the proceedings of the famiiy meeting would have the effect of jeopardizing the estate of the minor, proceeds to say : that “ the father of the minor gave to his child a tutor; this tutor refused to act, because he believes that there will have to be some litigation respecting the will of which he is executor ; ” that “ this is no reason why he should not have assumed the duties imposed upon him by his brother, because, in any litigation adverse to, or clashing with the interests of the tutor, or estate which he represents, it seems clear, that the under-tutor would take the place of the tutor, and that the proceedings would be conducted in his name.”

The District Judge, among other matters, further suggests, that this court can not have before it the evidence in this proceeding, upon which he refused to homologate the proceedings of the family meeting, and therefore cannot judge of the correctness of his decision, and that the proper remedy is by appeal.

It is clear, that this court cannot, in a proceeding by mandamus, revise the action of the Distinct Judge ; for, as suggested by him, we are not presumed to have the evidence before us (in this ex parte proceeding) upon which he acted, and other parties besides the relator may be interested in maintaining the decree which he rendered. It was upon the supposition, that the District Judge had refused to render any judgment upon the petition of the party, that we allowed the rule nisi to issue. "We know that where causes are under advisement in the lower court, and there is an accumulation of business before such court, or there are inquiries to be made for the protection of the interests of the minors, or difficult questions of law to be solved, or complicated facts to be investigated, this court ought not to listen with too ready an ear to suggestions that there is a denial of justice in the delays of the District Court; still, as “ unreasonable delays ” of this kind may sometimes work irreparable injury and injustice, the .writ of mandamus seems to be the remedy pointed out by law to prevent a failure of justice and compel the inferior court to pronounce judgment upon the demand. C. P. 829, 830, 837, 838.

On an examination, however, of the answer of the Judge in this case, and the petition of the relator, we are of the opinion that it does not appear that the District Judge has refused to render a judgment upon the petition, and it is not in our power to order him to render the one or the other of the particular judgments prayed for by the relator. If his opinion has not been already reduced to writing, and his decree signed, it may be that he may think the petition ought to bo dismissed, or some other form of a decree adopted. See State v. Judge of Probates of Jefferson, 5 Rob. 161.

We do not consider it proper to intimate an opinion upon the merits of this controvcrsy, as requested; we can only do so after the whole proceedings have been brought up by appeal, together with the decree complained of.

We repeat in conclusion, that inasmuch as we cannot say from this record, that the District Judge has erred in refusing to render either of the judgments prayed for, and it does not appear that he has refused to render a judgment in some other form, and that, therefore, it does not appear that there is a denial of justice, or unreasonable delay, we are of the opinion that the rule, taken in this case ought to be discharged.

It is, therefore, ordered, adjudged and decreed by' the court, that the rule granted in this case be discharged, at the costs of the relator.


author: Merrick, O. J.

text:
    The State of Louisiana, ex rel. Caroline Simmons, v. The Judge of the Second District Court of New Orleans.
    The decision hi the case of the State of Louisiana, ex reí. John Türpin, against tho same party reaffirmed.
    ON an application for a mandamus to the Judge of the Second District Court of New Orleans.

      E. Heistand, for the relator.
   Merrick, O. J.

This case is in most respects similar to the case of the State on relation of John Turpin, against the same party.

The complaint is, that the District Judge refused to order a family meeting to be convoked to consider the propriety of appointing a tutor to certain minors, without compelling the tutor to be appointed to give bond. The prayer is, that the District Judge show cause why he should not grant the order.

It is agreed that the answer of the District Judge in Turpin’s case should be considered as an answer to this.

It is evident, from our conclusions in that case, that we cannot make the rule granted absolute. It would be substituting oiir opinion for that of the Judge of the first instance, and thus taking original jurisdiction of the case. The Constitution gives ns no such power. Our jurisdiction is appellate only, and the District Court, as a court of original jurisdiction, must be vested with a legal discretion to render a judgment upon the trial of every.case, according to the nature of the demand or the merits of the defence. All that this court can do in aid of its appellate jurisdiction, is to compel the District Court to pronounce upon the controversy.

The form and subject-matter of the decree is .within the breast of the District Judge, subject only to be revised on appeal. .

In this case, the District Judge refuses to make the particular decree to which the party deems himself entitled. But it does n.ot appear that he has not rendered, or is not willing to render a decree, adverse to the pretensions of the party. There is then no denial of justice in the eye of the law.

It is, therefore, ordered, adjudged and decreedby "the court, that the rule granted ' in this case be discharged, at the costs of the relator.


text:
    State v. The Judge of the Second District Court—Ex rel. J. A. D’Hémécourt.
    A mandamus will not bo granted to compel tlie Judge of the lower court to sign a bill of exceptions when it does not appear that the hill of exceptions had boon exhibited to the adverse party previous to its being presented to the court.
    ON an application for a mandamus to the Judge of the Second District Court of New Orleans.

      C.'Redmond, for relator.
   Merrick, C. J.

The present proceeding is a petition for a writ of mandamus, to compel the Judge of the Second District Court to sign two bills of exception in causes 11,157 and 13,300 on the docket of that court.

The principal ground for the application is set forth in the following allegations in the petition, viz-:

That the transcripts of appeal are incomplete, by reason of the refusal of the Judge a quo to sign the annexed bills of exception, A and B, tendered to him on the 3d June, 1858, the day after the trial at the opening of the court, in pursuance of a practice, if not of a positive rule of court which forbids any further postponement ; that his honor below refused to examine said bills, or allow the same to be filed until they should have been submitted to the adverse counsel; that without admitting the binding effect of this requirement, which, on the contrary, petitioner believes to be incompatible with the law and the obvious rights of parties litigant; he nevertheless endeavored to comply with the same, and informed the respective counsel as soon as possible that his exceptions had been delivered to the Judge who required their opinion of, before certifying, the said bills óf exception, and, that petitioner again and a third time applied to the said Judge of the said court to sign his said bills, but was still met by the same objection, which petitioner had used every exertion to meet and obviate.”

A writ of mandamus seems to be the proper remedy to resort to, where a District Judge absolutely refuses to perform his duty and sign a bill of exception which has been properly taken.

A peremptory mandamus was orded to compel the District Judge to sign a bill of exception in the case of Brousart v. Trahan’s Heirs, 3 M. R. 714, and a similar mandate is expressly allowed by Article 899 of the Code of Practice.

But, as the application for a writ of mandamus implies a refusal on the part of the District Judge to perform the duties of his office, the allegations in the petition ought to show affirmatively, and not by implication, the neglect of duty, the subject of complaint.

In the case presented by the relator, it appears that he presented to the District Judge his bills of exception drawn by his counsel, and left them in the hands of the Judge, and that the opposite counsel were informed by him, that the bills of exception, so prepared, were delivered to the Judge, who required their opinion of the same. The opposite counsel, therefore, were called upon to go before the Judge and examine the bills of exception and give their opinion of the same, some time (how long does not appear) after the case had been tried.

The bills of exception ought to have been exhibited to the adverse counsel before they were deposited with the Judge.

Art. 489 of the Oode of Practice is in these words, viz :

This bill of exception must be exhibited to the adverse party, who may object to any error in the statement therein contained : it shall then be presented to the court, who, after correcting it, if erroneous, shall sign the same, and direct the Olerk to file it among the records of the suit.” . ".

It was, therefore, clearly within the discretion of the District Judge to refuse to sign the bills tendered until they had been exhibited-to the adverse counsel.

The information conveyed to them that the Judge had the bills, was not a compliance with the law.

It is, therefore, ordered, that the petition in this cas.e be dismissed, at the costs of the relator.


text:
    The State of Louisiana, ex rel. L. Boudreau, et al., v. The Judge of the Second District Court of New Orleans.
    A rulo taken in the Supreme Court against a District Judge, to compel liim to show cause why he should not furnish a statement of facts, to be used in a suit on appeal, will be dismissed, unless it is shown that the suit is within the appollato jurisdiction of the court; this will not be inferred from the fact that tho District Judge had granted the appeal.
    After an appeal has been applied for and obtained, it is too late to ask for a statement of facts
    ON an application for a rule against the Judge of the Second District Court of New Orleans.
    J. J. Lugenbuhl, for the relator.
   Merrick, C. J.

This is an application for a rule to be taken against the Judge of the Second District Court to show cause why he should not furnish a statement of facts to the defendants in certain cases wherein the City of New Orleans is plaintiff.

There are two reasons why the rule should be denied the parties moving for the same, viz:

1st. It does not appear by the showing made to.this court, that the cases referred to are within the appellate jurisdiction of the court, a fact which ought clearly to appear by the allegations in the petition, and not merely by inference from the fact that the District Judge had granted’.the appeal.
2d. It appears that the relators have already applied to the District Court and obtained an appeal, which precludes them from applying for a statement of facts afterwards.

It is true that there has been some conflict in the decisions as to the time in which the statement of facts may be made, but wo believe that it has never been decided that it could be made after an appeal has been taken. See Trenchard v. Elderkin, 3 L. R. 294; Union Bank v. Williams, 16 L. R. 236; Meeker v. Galpin, 4 Rob. 259; Jones v. Neville, 9 Rob. 478; C. P. 602 and 603.

The supposed mistake of the Judge in signing the judgments, did not prevent the relators from obtaining a statement of facts before taking their appeal.

It is, therefore, ordered, that the motion in this case be dismissed at the costs of the parties moving for the rule.


author: Cole, J. Merricic, 0. J.,

text:
    State of Louisiana v. John O’Conner.
    When a statute punishing an offence has been repealed without any saving clause, as to prosecutions already commenced, it operates as a pardon to persons convicted under such repealed statute.
    It is tho duty of the court, ex officio, to notice the repeal of laws.
    APPEAL from the District Court of the Parish of East Baton Eouge, Beale, J.

      E. W. Moise, Attorney General, for the State.

      A. 8. Herron, for appellant.
   Cole, J.

Appellant was indicted for selling and delivering, in a store-house fitted up and kept by him, to a slave, spirituous liquor, without the consent in writing of the owner, overseer or employer of the slave.

The indictment alleges that he committed the act on the night of the eleventh of September, 1856.

He was found guilty and sentenced on the 5th of December, 1856, to imprisonment in the parish jail for one year, a fine of five hundred dollars and costs of prosecution.

It does not appear from the record under what particular Act he was indicted ; but on the 19th March, 1851, an Act was passed by the Legislature relative to offences of the same character as that set forth in the indictment, and all laws on the same subject-matter were repealed without any saving clause as to prosecutions already commenced. Sess. Acts of 1857, p. 183.

This repeal operates as a pardon for the accused. State v. King, 12th An. p. 593.

No hill of exceptions, statement of facts, nor assignment of error has been mado in this court, nevertheless we feel bound to notice this fatal objection to the affirmance of the judgment.

It is our duty to notice, ex officio, the repeal of laws.

The motion to dismiss is, therefore, overruled.

It is, therefore, ordered, adjudged and decreed, that the verdict of the jury and the judgment of the court thereon be avoided and reversed, and that appellant be discharged.

Merricic, 0. J.,

concurring. There is a motion to dismiss the appeal in this case because there is neither a bill of exception nor an assignment of errors in the record.

For my views on the motion to dismiss I refer to what we have said in the case of State v. Henderson, a slave, just decided.

On the merits, I concur in the opinion of Mr. Justice Oole.


author: Oole, J.

text:
    John M. Bach v. William M. Ballard et als.
    Tho duties of an attorney ad hoc for au absentee do not terminate with’ the conclusion of the suit in tho lower court: it is incumbent upon him to appeal, if, in his opinion, his client will be benefited thereby.
    Tho appeal bond is properly signed by the attorney ad hoc in behalf of his client.
    An agreement for the extrajudicial partition of land cannot be established by parol evidence.
    ÁPPEAL from the District Oourt of the parish of St. Helena, Wilson, J.

      Ivy F. Thompson, for plaintiff.

      Penn & Martin and M. M. Smith, for defendants and appellants.
   Oole, J.

An action was instituted by the heirs of .James Ballard for the sale and partition of a tract of land.

Plaintiff enjoined the sale, claiming thirty acres in said tract by purchase from Johnson Carnes, who bought from William M. Ballard, one of the heirs.

It appears that said W. M. Ballard subsequently .took out letters of administration upon his father’s succession, had said land inventoried as the property of that succession, and then united whith his co-heirs for á sale and partition. With the injunction suit a petitory action has cumulated, in which plaintiff sues all the heirs of James Ballard, praying to be decreed the legal owner of thirty acres, and to be maintained and quieted in his possession.

The case was tried before a jury, whose verdict was in favor of plaintiff, and two only of the defendants have appealed from the judgment of the court thereon.

A motion has been made to dismiss the appeal as. to ono of them, Lydia Ann Ballard, wife of G. B. Zachary, for the following reasons :

1.“ Because she is a married woman and is without authority to stand in judgment, not being authorized or joined by her husband, nor authorized by the court."
This objection comes with a bad grace from the appellee, for he has a judgment and it was his duty before obtaining it to see that, the proper parties were in court.
2.“ Because she has not executed an appeal bond, as the law requires.
3.“ Because the bond purporting- to be an appeal bond purports to be in tho name, and is signed by the attorney ad hoc, which is a nullity.
4.“ Because the attorney ad hoc is without authority in fact or law to appeal in his own name, or in his own right, separate and’distinct from the absentee whom ho represents.”

The motion for appeal was made in open court by the attorney ad hoc.

The appeal bond was in the name of “ Miles M. Smith, attorney ad hoc for Lydia Ann Ballard, wife of Green B. Zachary," as one of the principals, and signed “ M. M. Smith, attorney ad hoc."

We are of opinion that the duties of an attorney ad hoc for an absentee do not terminate with the conclusion of tho suit in the lower court, and it is incumbent upon Mm to appeal, if, in his opinion, his client.can be benefited thereby.

He is appointed to represent the interests of the absentee in the suit; and, it cannot be considered as terminated until it has been adjudicated upon by tho final tribunal.

As it is the duty of the attorney ad hoc to watch over and protect the rights of the absentee there is no objection to his signing- the appeal bond in his behalf.

The motion to dismiss the appeal is, therefore, overruled.

Upon the merits we would observe, that plaintiff endeavored to succeed in his petitory action and injunction against Lydia Ann Ballard, by showing there had been a verbal agreement between her and the other heirs, by which they had consented to an extra-judicial partition of the land. So far as she was concerned, there was nothing but parol testimony, which was excepted to by the attorney ad hoc.

The judgment as to her must, therefore, be reversed.

Plaintiff claims, in the event of a reversal as to Lydia A. Ballard, that she pay her proportion of the value of the improvements put by him upon the land.

The act of sale to him shows that his vendors sold the land to him with “ no other warranty of title than that resulting from their acts.”

This fact connected with the other circumstances of the case establish, that she is not liable for any part of the improvements.

With relation to William Spring, the other appellant, it appears that John Ballard applied as one of the heirs of James Ballard in conjunction with the other heirs for a sale and partition of the land in dispute.

Plaintiff enjoined the sale, and also instituted a petitory action, suing among others John Ballard, who answered that he had parted with his interest to William Spring, and could not stand in judgment.

No evidence was introduced of any transfer from John Ballard to Spring.

John Ballard having sued in the suit of partition as one of the owners of the land, which partition was stopped by the action of plaintiff, and as there is nothing to show he has ever parted with his title, except his simple assertion, and nothing to show that if he did part with it, that the transfer was not executed after the commencement against him of judicial proceedings for the recovery of the land, we are, therefore, of opinion that he is not entitled to a judgment in his favor.

It is, therefore, ordered, adjudged and decreed, that the judgment bo avoided and reversed, so far as the sustaining of the injunction of the District Court interferes with the title and control of Lydia Ann Bollard, wife of Green B. Zachary, over one undivided fifth of the land in contestation, and so far as it recognizes plaintiff as the owner of the whole of the land in dispute, and makes Mrs. Zachary and husband liable for any of the costs of suit. It is further ordered and decreed, that the judgment be so amended as that Mrs. Zachary be recognized as the legal proprietor of one undivided fifth of the thirty acres of land sued for, being situated in the parish of St. Helena, and designated by lot No. one, sec. 4, T. 4, south of range No. 1 east, the whole containing 108 acres ; that she be forever quieted in her title to the same. It is further ordered that the judgment in all other respects be affirmed, and that the costs of appeal be paid by appellee and William Spring, one of the appellants.


author: Merrick, C. J. Gold, J.,

text:
    The State v. Henderson, a Slave.
    On appeal taken by a slave convicted of a capital offence and sentenced to death—Held: That although no counsel appeared for the accused and no assignment of errors was made in the Supremo Court, the judgment should be reversed and the accused discharged, as it appeared from an inspection of the record that ho had been convicted of an offence under a statute which had been repealed since the conviction took place.
    ^^PPEAL from the Justices Court of the Parish of East Feliciana.
   Merrick, C. J.

The accused was charged with having, on the 30th day of January, 1857, stabbed John Robins, his master, with a large pocket knife, and inflicting several severe and dangerous wounds.

He was convicted by the special tribunal provided by law for his trial, and sentenced to be executed.

He has appealed ; but the transcript of appeal was filed by the District Attorney.

The record does not contain any bill of exception nor assignment of errors.

Some members of the court have had doubts whether the appeal should not be ex officio dismissed. The statute under which the accused was convicted has been repealed. When we look, therefore, at the accusation filed by the District Attorney, we see that the accused is charged with no legal offence by reason of the repeal of the statute on which the prosecution is based. As moré than twelve months have elapsed since the appeal was taken, its dismissal will have the effect of subjecting the accused to the penalty of death under a statute which has been repealed.

In view of the momentous consequences which would result from a dismissal of the appeal, we consider it a proper occasion to examine and ascertain the constitutional rights of this court and the proper practice in a case of this kind.

In the case of the State v. Slave King, 12 An. 593, decided at Monroe, which was upon a prosecution under the same repealed statute, the point, as to the effect of the repeal of the statute, was not made by the counsel for the accused, yet we requested the counsel to present their views in writing on the effect of the repealing clause in the statute. After a careful consideration of the question, we reversed the judgment and conviction in that case, and discharged the accused.

But it is suggested that there are no bills of exception and no assignments of error in this case, and that the accused has not appeared by counsel, and, therefore, it must be inferred that he has abandoned the appeal.

This by no means follows. It is possible that the accused, shut up in prison, holding nothing but what belongs to his master, whom he has so deeply offended and wronged, does look to this court to see that his life shall not be forfeited except upon sufficient ground, although he has presented no counsel at the bar of this court to advocate his cause, for men do not often voluntarily throw away their lives. It is moreover probable that the humane District Attorney, in view of the relations he sustains to the accused in all cases, as well as to the State, has done for him what the law makes the duty of the Olerk or Justices to do, viz, file the transcript with the Olerk of this court, (Rev. Stat., p. 163, sec. 28,) and so place the whole case before the court.

Perhaps it is in the power of this court to appoint counsel to defend the prisoner if he be without counsel, and to direct such counsel in an extraordinary case like the present, if need be, to file an assignment of errors. Const. Art. 103.

But this court has never refused before, so far as we are able to learn, to consider an appeal, because counsel was not present to represent the appellant in this court.

In the case of De la Croix v. Villéré, we reversed the judgment of the lower court, although no counsel appeared before us to argue the case or file a brief for the appellant. 11 An. 39.

In the case of State v. Scott, the appeal was filed by the appellee, and we reversed the judgment. 13 An.

In the case of the State v. Hendry, the District Attorney took the appeal, but did not present any points or cite any authorities. Tet this court considered the ■case and affirmed'the judgment. 11 An. 207. We doubt not many other cases might be found to the same effect, where it is worth the while to examine the records in order to ascertain the same.

We see, therefore, nothing fatal in the objection that the accused does not appear here by counsel. The record is here (the prisoner being without power to appear), which the law makes the duty of its own officers to file, and the State demands our judgment upon the record which contains the appeal.

Under this state of facts, it seems to us that it is not the duty of this court ex mero m.otu to search the record in order to discover grounds, if such there be, which might have been made the basis of a dismissel of the appeal. If the State had desired a dismissal of the appeal, the District Attorney would never have filed the record. Pie would have taken out a certificate instead.

Again : it is said that this court can only investigate questions presented by bills of exception or assignments of error, and there being neither a bill of exception in the record nor assignment of error in this court, the appeal must be dismissed. Three cases are cited as authorities on this point, and we will consider them, after having examined the question as a constitutional question.

The Court of Errors and Appeals was the creature of the Legislature and derived its power from the Act of 1843. That Act gave it jurisdiction only of questions presented by bills of exception or assignment of errors apparent on the face of the record, taken and made in manner and form as then provided by law for appeals in civil cases. This court, on the contrary, is a Supreme Court, independent of the Legislature and deriving its powers from the Constitution alone. To that then, and not the repealed statute of 1843, we must look to ascertain whether it has jurisdiction of this case.

Art. 62 of the Constitution gives this court appellate jurisdiction only. It extends in all criminal cases to questions of law alone, whenever the offence charged is punishable with death or imprisonment at hard-labor, or when a fine exceeding three hundred dollars has actually been imposed.

This court then takes jurisdiction in virtue of an appeal and not by means of a writ of error. An appeal presents the case before the appellate court precisely as it was tried before the lower court, on both questions of fact and law. Story Const. 917; Tomlin Law Dic. verbo Appeal.

An appeal, then, on a question of law, presents the naked question of law to the appellate tribunal as it was presented to the inferior court (so far as the same can be separated from the facts), without any of the formalities required on a Writ of error. On a writ of error, on the contrary, an assignment of errors was required, because it was in the nature of a declaration, and gave the superior tribunal cognizance of the grounds of complaint of the actor, the plaintiff in error. 2' Todd’s Prac. 1107. On appeal, the position of parlies remains the same as in the lower court; the plaintiff below is plaintiff here, and so of the defendant. Hence, no new pleadings are required in order to give the court cognizance of the case, and no assignment of errors is required to bring a criminal case before .this court. The only question is, are the errors of law apparent upon the record ? It is a maxim of the common law, Boni judicis est ampliare jurisdictionem ; although this maxim is not applicable here, still, we think, no part of the jurisdiction conferred on this court by the Constitution should be parted with. The Constitution declares the powers of the court to be appellate. It should not undertake to divest itself of its power given for the benefit of the citizen, and say that it can only examine errors apparent upon the face of the record when presented as a writ of error, viz, with new pleadings assigning such errors. But in prosecutions of slaves, only the substance of things is observed and technicalities are disregarded. In the forcible language of the law, no proceedings shall be impeded by any errors of form. Acts 1846, p. 115, sec. 14. Shall that bo the practice on the part of the State only, and a more rigorous practice be exacted of the prisoner who has so little power to direct his defence ?

But the statute directing the manner of taking the appeals, allows it to be taken as in civil cases, but no appeal bond nor security for costs is required. It makes it the duty of the Clerk to make out a copy' of the record and transmit the same to the Supremo Court, and the Sheriff is to kqep the accused in custody, to abide such judgment as may be rendered by the Supreme Court on appeal.

It is apparent that inasmuch as the testimony is never taken down by the Clerk in criminal cases, that the record cannot be certified, as in civil cases, to contain all the evidence. This was known to the framers of the Constitution when they conferred the appeal, and to the Legislature also when it authorized an appeal in criminal cases without giving bond. The Articles of the Code of Practice, which gives either party the right to require the Clerk to take down the testimony in civil cases, and to require him to certify the same to the Supreme Court, are not applicable to appeals in criminal cases, and it seems to us as a consequence that the appeal cannot be dismissed, because the appellant did not do an impossible thing. C. P. 601, 896, 897.

If in a civil case the Clerk certifies that the record contains all the evidence, the Supreme Court is required to examine all questions of law existing upon the record, without any bill of exception or assignment of errors, (12 Rob. 461,) and we cannot think the Constitution, when it conferred the right of appeal upon the accused in the class of criminal cases in which appeals are allowed, intended to confer an appeal less perfect than in civil cases.

The appeal intended to be granted, was a perfect, appeal on all questions of law, reference being had to the manner in which the testimony is given before the jury-

But it is said there are cases in which this court has ruled that the appeal will be dismissed, unless there be a bill of exception or assignment of errors. We will examine those cited before we advert to the numerous cases on the other side.

The first case relied on is the case of the State v. Fant, 2 An. 837. There was an application for a mandamus to compel the District Judge to make a statement of facts. In reasoning on this branch of the case, Mr. Justice King’ said : “ By the well known rules of criminal proceedings, the evidence introduced on the trial before the jury is not reduced to writing, and if it were, we would be without authority to pronounce upon it. A statement of the facts proved on the trial would be only a substitute for the evidence itself, which we are not permitted to examine.” He then says, the repeal of the Act of 1843, did not repeal the practice under it; and he further makes the obiter dictum that questions of law should be presented by bills of exception or assignment of errors. The case, every one must admit, was correctly decided, and if he uses the term assignment of errors in the same sense that Mr. Justice Preston used it in the case of the State v. Turner, viz, the formal calling of the error to the notice of the court, the dictum was not absolutely incorrect. In Turner’s case, the only assignment of errors was in the brief of counsel, and yet it is called an assignment of errors. 6 An. 310. And this was the case in the State v. Kentuck, 8 An. 308.

The next case cited is the case of the State v. Nelson, 3 An. 500. In this case, the entire evidence was certified, and Judge King, as the organ of the court, in refusing to examine the evidence in order to ascertain whether it was sufficient to sustain the conviction, made a dictum similar to that used by him in the case of Font. It is apparent, therefore, that neither of these cases decides the point in controversy. They each affirmed the judgment of the lower court which they could not have done without jurisdiction.

The next case was that of the State v. Bob, 11 An. 192. Hero the court did dismiss the appeal. But what else ? It considered every question raised on the record by the appellant and finding them all untenable, dismissed the appeal. The questions of law upon the record having been examined and decided, it was a matter of no moment to the accused, whether his appeal was dismissed or the judgment affirmed.

In the case of Muldoon, the appeal was dismissed, although the record contained a bill of exception. 9 An. 24.

It is on these unsatisfactory dicta, that the right to dismiss the appeal is based.

Now, opposed to these dicta (for with the exception of the last they cannot be called decisions), is the almost uniform practice of the court since its organization. We are able to present the following cases which were decided in this city. How many more have been decided, we are unable to say. In these which we cite, there were neither bills of exception nor assignments of error, and yet the judgments were either reversed or affirmed, a thing impossible unless the court had jurisdiction. State v. Russell, 2 An. 605; State v. McDonald and Crosby, 4 An. 434; State v. Monasterio, 4 An. 380; State v. Stiles, 5 An. 324; State v. Smith, 5 An. 340; State v. Turner, 6 An. 309; State v. Capers, 6 An. 267; same v. same, 6 An. 269; State v. Eschars, 7 An. 224; State v. Glass, Ib. 122; State v. Kentuck, a slave, 8 An. 308; State v. Slave Dick, 10 An. 461; State v. Edson, 10 An. 229; State v. Harrison, 11 An. 722; and State v. Hendry, 10 An. 207. See also State v. Ellis, 12 An. 390, and State v. Clay, 12 An. 431.

In the case of the State v. Russell, 2 An. 605, Judge King considered the sufficiency of the indictment and affirmed the judgment. He did the same in Crosby’s case. 4 An. 434. In the case of Monasterio, the appeal was dismissed because the fine did not exceed three hundred dollars, and this was the only ground made by the Attorney General, an experienced and able lawyer, when there was neither bill of exception or assignment of error in the record.

In the case against Stiles, the court, through Ohief Justice Eustis, its organ, examined at great length the sufficiency of the indictment without any assignment of errors or bill of exception, and reversed the judgment of the lower court. 5 An. 326. In the case of Smith, same yol. p. 340, the only errors urged were in the brief of counsel, and the court affirmed the decree of the lower court. In the case of the State v. Hendry, 10 An. 207, the appeal- was taken by the State, and Mr. Justice Spofford, as the organ of the court, after remarking that the District Attorney had taken the appeal and had not presented any points or cited any authorities, and that the court was not informed why he. conceived that any error had been committed to the prejudice of the State which could be remedied on appeal, proceeded to consider the case upon the argument of defendant’s counsel, and affirmed the judgment of the lower court.

Even in civil proceedings, this court has not held Article 897 as applicable to all cases. In the case of Wood v. Henderson, 2 Ann. 220, it was held, that where the record shows that the judgment of the lower court was rendered on an exception to the petition on the ground of the insufficiency of the allegations to authorise the issuing of the injunction prayed for, and the exception was overruled, the court might examine the record without any statement of facts, bill of exceptions or assignment of error. Much more can this court consider the indictment where it charges no offence known to the law, and the accused is sentenced to death under it, and where the theory is that no one can be put in jeopardy of life or limb under a defective indictment. 10 An. 197.

If this court is obliged to dismiss the appeal for want of an assignment of errors, then the doctrine of all those coses where parties have been condemned to undergo a second trial for the insufficiency of the first indictment is false, and the accused was all the time in jeopardy of life or limb under the first.

In our opinion, the true doctrine as to the powers of this court was announced the first time the question was incidentally considered by the court, in this comprehensive language : “ The framers of the Constitution obviously intended by this clause to grant to this tribunal power to revise questions of law which arise in prosecutions by indictment or information after a final judgment, and not to allow appeals from decisions made on questions arising in preliminary proceedings.” But in the case before us, the judgment of the lower court was right; the law requiring a reversal is subsequent to the decree and perhaps not a proper matter for the assignment of error. We, therefore, are of the opinion that the Constitution gives us jurisdiction of the case.

The record shows that the prisoner, having been found guilty of a capital of-fence, was, on the 7th day of March, 1857, condemned to be executed on the 10th day of April following.

The day fixed for the execution proving to be Good Friday, on application to the Governor, he directed the execution to be postponed until Friday, April 17, 1857. On the 16th day of April, the accused, by counsel, appealed.

We were informed by the District Attorney in his oral argument, that he himself placed the transcript on file, and he requested the court to fix another day for the execution of the prisoner.

On examination of the indictment and conviction, we find that the accused was charged with the crime of having, on the 30th day of January, 1857, willfully, maliciously and feloniously assaulted, struck, thrust, cut and stabbed his master, John Robins, with a large pocket knife, the same being a dangerous weapon, thereby inflicting several severe and dangerous wounds upon said Robins, with the intent to kill and murder said Robins.

I-Ie was convicted and sentenced on the seventh day of March, A. D. 1857.

The prisoner must have been convicted under some of the following provisions of law, viz : Nos. 9 and 15 of section 40 of the Act of 1806; section 2 of 'lie Act of 1814; section 3 of the Act of 1816 ; and the 6th section of the Act of 1843; Bullard & Curry, pp. 59, 60, 64 and 66; Acts 1843, p. 92.

The sections two, three and four of the Act of 1857, are on the same subí xtmattcr as the sections referred to, under which the prisoner must have been convicted. The forty-third section of the Act approved 19th of March, 1857 and promulgated the eighth day of May, of the same year, has repealed the oí buce for which the prisoner has been convicted. There being no saving clause, it operates a general pardon of the accused, and he is entitled to the benefit of the statute, although passed subsequent to his conviction. It was so held in the case of the State v. King, 12 An. 593, and subsequent cases. See also case of State v. Johnson, 12 La. 547; Bishop’s Crim. Law, sec. 103, 106.

We are, therefore, of the opinion, that the judgment of the lower court ought to be reversed and the prisoner discharged from custody.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment from which the appeal-in this case has been taken, ’ be avoided and reversed; and that the accused be discharged from legal custody.

Gold, J.,

concurring. Not deeming it necessary in the present case to express an opinion upon all the questions discussed in the opinion of the Chief Justice, I concur in his conclusion, on the ground that this court ought, ex officio, to notice the repeal of laws, and that it cannot affirm a judgment based on a repealed statute, and condemn one to death without legal authority. State v. O’Conner, 13 An.; State v. King, 12 An. 593.

Buchanan, J., concurred in the above opinion of Judge Cole.


author: Buchanan, J.

text:
    W. A. Stanbrough et al. v. James H. Wilson.
    The Act of Congress of tlic 29th of May, 1830, declares “ all assignments and transfers of rights of preemption in public lands, prior to the issuance of a patent, to bo null and void.”
    An amendment of that Act in 1832 only authorizes such assignment or transfer after certificates of paymontor final receipts for the price of such pre-emption, from the land ofiice. Statutes at Large, 4, pp. 423 and 496.—Held: That the provisions of these statutes are imperative, and that a probate sale of a pre-emption right, ordered for the purpose of paying debts of the succession, when no payment of the government price of the land had been efl'ected, was the sale of a thing inalienable.
    In an action by the widow and heirs of the pre-emptor, against one deriving title from the purchaser at the probate sale.—Held: That the land having been paid out of the land office in their name, and a patent issued in their name, they were entitled to recover, but not without reimbursing to the defendant the money which had gone to the benefit of the estate by the supposed salo.
    The claim of the defendant for his improvements on the land was also allowed.
    APPEAL from the District Court of the Parish of Madison, Farrar, J.

      Bemiss § Parham, for plaintiffs.

      A. Snyder, for defendant and appellant.
   Buchanan, J.

An son Stanbrough died in the parish of Concordia, in 1832. Among the property comprised in his inventory, were two preemption claims to two quarter sections of land, situate on the left bank of Roundaway Bayou, in said parish, appraised at four thousand five hundred dollars. Anson Stanbrough left a widow and two minor children; and his estate was deeply involved in debt.

The widow renounced the community, and, by the advice of a family meeting’, convened for that purpose, the property of the succession was ordered to bo sold on certain terms of credit, for the purpose of paying' the debts. At the public sale ordered by the court, the preemptions mentioned above were adjudicated to M. Groves, on the 25th March, 1833, for the sum of five thousand dollars, by the following description: “ The principal establishment being a preemption claim to three hundred and twenty acres of land with the improvements, situate on the Roundaway Bayou, in this parish, bounded on the upper side by land claimed by Frederick L. Brown, and on the lower side by land claimed by Martin Price, and described in the U. S. survey thereof as lots No. 40 and 41 in township No. 16 and range 13 east, in the district of lands north of Rod River.”

The price of adjudication was paid to the administrator of Anson Stanbrough, who employed it in paying the debts of the estate. By several mean conveyances the land thus acquired has come into the possession of the present defendant. The survey in evidence shows lot No. 40 to contain 159 70-100 acres, and lot No. 41 to contain 160 acres.

At the time of the sale to Groves the government price had not yet been paid for the preemption claims to the two lots sold ; but, on the 3lst July, 1833, lot No. 40 was paid out of the land office at Monroe in the name of the widow and children of Anson Stanbrough, and lot No. 41 in that of Seaborn W. Cameron. And on the 17th June, 1837, a patent issued for lot No. 40, in the name of the widow and children of Anson Stanbrough.

The present suit was brought in April, 1851, by William, Stanbrough and Mary Stanbrough, wife of Wilkinson, being the children of Anson Stanbrough, mentioned in the entry and patent for lot No. 40. They claim the said lot as owners, together with damages, for its detention and rent, at the rate of five hundred dollars per annum, until they are restored to possession.

Defendant answers, pleading title in himself by virtue of the probate sale of the 25th March, 1833, and, in case it should be adjudged that said sale did not convey a valid title to defendant, he then claims, in the alternative that the price paid by Groves be refunded to defendant, as having enured to the benefit of the estate of plaintiff’s ancestor. He also claims for the increased value given by him to the land, by clearing and other improvements. Finally, defendant pleads the prescription of ten years.

The death of the plaintiff, William Stanbrough, since the institution of the suit is suggested, and, by an amended petition the other plaintiff! Mrs. Wilkinson, claims to be the solo heir and representative of said William.

The plea of prescription is not noticed in the judgment of the District Court, nor in the printed argument of counsel in this court. We consider it, therefore, as having been abandoned by defendant.

Plaintiffs rest their claim upon that provision of the Act of Congress of the 29th May, 1830, which declares all assignments and transfers of rights of preemption in public lands, prior to the issuance of a patent, to be null and void ; and upon the amendment of said Act in 1832, which only authorizes such assignment or transfer after certificates of payment or final receipts for the price of such preemptions from the land office. See Statutes at Large, vol. 4th pp. 421 and 496.

The provisions of these statutes are imperative; and Anson Stanbrough’s right of preemption must be held to have been inalienable, (hors de commerce,) at the time of the probate sale of 25th March, 1833, no payment of the government price of the land having been at that time effected. See Poirrier v. White, 2 An. 934.

It would be, however, contrary to equity that the plaintiffs should evict defendant from this land without reimbursing the money which the estate of their ancestor has benefited by its supposed sale. In Poirrier v. White the court expressed its regret that the stale of -the pleadings would not permit it to decree a restitution of the price in favor of defendant. But in that respect the present case is different. Restitution of the price is distinctly claimed.

' The plaintiffs, however, argue that they do not claim in right of their father, but in their own right, and as heirs of their mother, she and they being the persons who paid the land out of the land office, and in whose names the patent issued.

But this argument is unsound. The preémptor was Anson Stanbrough. The entry in the land office at Monroe, and the patent are in the name of the plaintiffs and their mother, but in their quality of widow and children of Anson Stanbrough.

Indeed, the whole ground of plaintiff’s claim to this land consists in the fact that their ancestor had an inchoate right to the same, which none but himself or his heirs, in case of his death, had the power to perfect into an absolute title.

We are of opinion defendant is entitled under the evidence to receive from plaintiffs three thousand dollars, by way of reimbursement of moneys expended, for the benefit of Anson Sfanbrough’s estate, as follows: The piriee paid by Groves to Anson Stanbrough’s succession, for lots No. 40 and 41, each containing an equal quantity of land, was five thousand dollars. Half of that sum, therefore, or twenty-five hundred dollars, was the price paid for lot No. 40, which is the subject of this suit. But it is proved that defendant has also had to pay five hundred dollars, to be quieted in the title of lot No. 41, for which the heirs of Seaborn Cameron had brought a petitory action against him. As the estate of Anson Stanbrough was warrantor of the title of lot No. 41, the plaintiffs, as heirs of Anson Stanbrough, are liable for the reimbursement of the five hundred dollars thus paid. As regards improvements upon the land, it is proved that 45 acres were cleared at the time of the probate sale, and, it is admitted, that the whole one hundred and sixty are now cleared and in cultivation. The enhanced value of the land caused by clearing is variously estimated by the witnesses at $25 to $75 per acre. The printed argument of plaintiff’s counsel admits it to be $40 per acre. This sum multiplied by 115, the number of acres cleared since the probate sale, gives $4600 for this item, add $1500, cost of buildings, etc., erected before this suit was brought.

Total allowed defendant upon his rcconventional demand.......$9100
Against which we allow plaintiffs rent since the institution of this suit, say 7 years at $500 per annum, or.................... 3500
Money balance due defendant...............................$5600

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, that plaintiffs recover of defendant lot No. 40 of township No. 16 of range 13 east, with the improvements thereon ; but that no writ of possession issue on this judgment untill plaintiffs pay to defendant, or deposit in the hands of the Sheriff of Madison parish, for account of defendant, five thousand six hundred dollars ; and it is further decreed, that defendant pay the costs, with the exception of those of appeal which are to be borne by plaintiffs.


text:
    The State, through Thomas Askew, State Tax Collector, v. The Southern Steamship Company.
    Tho State Tax Collector has a right to institute an action in tho name of the State, for the recovery of taxes, when it is evident that tho seizure of property would occasion an injunction.
    The interest of a company in steamships is an object of taxation covered'by the fifth clause of the first section of tho Act of 1855.
    Where an incorporated company has property subject to taxation m the district of its domicil, they are bound to apply to have the tax roll corrected if they are erroneously assessed.
    The mill tax, under tho Act of tho Legislature of 1S55, is levied to provide means for the education of the white youth of tho State ; it was approved tho same day as the Act to próvido a rovenuo, and boing for diil'eront objoots, both Acts must have effect, as they are not utterly repugnant to each other.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      Hunton & Miller, for plaintiff.

      H. J. Leovy, for defendants and appellants.
   Merrick, C. J.

This suit is brought to recover from the defendants $1,034 20, the amount of the State tax assessed upon $340,000, the amount of capital invested or employed by defendant in the year (1851)' in traffic, trade, merchandize or any kind of commerce.

The defence to the action is a denial of authority of the Tax Collector to institute the suit; averments that interests in ships- are not subject to taxation ; that the statutes creating the mill tax are repealed by the Act of 1855, No. 346, and other statutes; that the stockholders of the company are assessed individually for the interests upon which the tax is claimed ; that the valuation is excessive ; that the company have existed as a company only, a small portion of the year, and that the assessors never applied for a list of property as required by sec. 34 of the Act of 1855, p. 510.

It appears to us, that tho right to collect the taxes presupposes a right to stand in judgment in suits of injunction, and even to institute an action in the name of the State, wherever the taxes cannot otherwise be collected. It is true that the law has indicated a more summary proceeding than suit for the collection of tho taxes; still as the Sheriff is charged with their collection, for which he is com-polled to give bond, wo can see no sufficient reason why he should not be permitted to use the name of his principal in a direct action, instead of seizing property, if it is evident that the seizure will occasion an injunction, or other necessary delay. Acts 1855, secs. 54, 56. It does not lie in the mouth of a defendant to question the right to sue, when he admits tho propriety of the same by the issue he tenders, and a denial of the right of the State to recover. The Tax Collector ought, however, to treat tho assessment roll as a warrant authorizing him to levy upon property, unless there are grave obstacles in -the way of such proceeding.

The interest of tho company in steamships seems to bo an object of taxation covered by the 5th clause of the 1st section of the Act of 1855. It names as subject to taxation, shares of stock or interest in steamboats, ships, brigs, schooners, and all other water crafts, whether at home or abroad.”

As the company had property subject to taxation in the district of its domicil, some effort ought to have been made to correct the tax roll, if it were erroneous. The defendant has not, therefore, brought itself within the rule established in the cases of the City v. Lessees and the City v. Rousseau. 11 An. 251 and 195.

Tlie mill tax is given by tbe Act of 1855, and not by tbe Act of 1853, as supposed. It was approved the same day as the Act to provide a revenue. The mill tax is levied to provide means for the education of the white youth of the State. Acts 1855, p. 422, sec. 2. The tax to provide a revenue, is levied for the purpose of supporting the government, to pay the public debt and promote the public interests of the State. Ib. 502, sec. 1.

It is difficult to perceive how one of these two acts can repeal the other. They are for different objects, and being passed at the same time, must both have effect, unless they are utterly repugnant to each other.

The other grounds of objection are covered by the decision in the Lesseps case. 11 Ann. 251. ■

Judgment affirmed.


text:
    James Turner v. Edward Healy.
    Where the suit was for damages for slander of titlo to a slave—Held: that an amendmentof the petition by the plaintiff praying to be decreed to be the owner of the slave, was properly allowed in the decree sustaining an exception to the petition, on the ground that it set forth no cause of action.
    APPEAL from the District Court of the Parish of East Baton Rouge, Beale. J.

      Henry K. Walsh, for plaintiff.

      J. Duncan Stuart, for defendant and appellant.
   Cole, J.

The only question in this case is, whether plaintiff ought to have been allowed to amend his original petition.

The suit was instituted for damages for slander of title to a slave. Defendant filed an exception that there was no cause of action, because there was no prayer for a decree of title to the slave.

The exception was sustained, and the court in the same decree authorized plaintiff to file an amended petition, praying to be decreed to be the owner of the slave.

The court did not err. The amendment was consonant with the nature of the action.

If it had not been permitted, the plaintiff would have had the right to have instituted at once another action, and the refusal to grant the amendment would only have put plaintiff to costs without any furtherance of justice.

Upon the merits, we see no reason to differ from the judgment of the District Court.

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


author: Merrick, 0. J. Buchanan, J.,

text:
    Thomas Hale v. The City of New Orleans.
    A bill of exceptions to tlie rejection, of evidence in the court below will not be noticed in tho Supreme Court, unless it contains the grounds upon which the testimony was rejected.
    The defendant may give in evidence, without amendment of the pleadings, facts which have occurred after issue joined, having a direct bearing upon tho matters in controversy, and properly admissible in evidence, the power being reserved to tho court to order a continuance or grant a new trial, when the other party is taken by surprise.
    An amendment to the pleadings, setting up such new matter, if asked for, should be allowed.
    A party must show an actual eviction, in order to recover in an action of warranty.
    The return to a writ of possession in a suit to which tho warrantor was not a party, is not conclusive evidence of eviction.
    Whore contiguous lots of ground were sold separately at public auction, and adjudicated to tho same purchaser, Held: that it was a salo of a number of independent things, giving a right of warranty as to each, and that tho purchaser would have no action of rescission except for such lots as were deprived of their proportions by eviction from part of them.
    The purchaser who went into possession of the property sold, is onlyventitled to recover from his warrantor interest on the price paid, from the date of the eviction.
    The warrantor is not liable for the taxes paid on the property by his vondees.
    The fourth paragraph of Art. 2482 of the Civil Code does not include counsel fees for bringing the action against the warrantor.
    PPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      P. E, Bonford, for plaintiff.

      J. J. Michel, for.defendant and appellant.
   Merrick, 0. J.

In March, 1853, in pursuance of permission given by the Act of the Legislature approved March 21st, 1850, a portion of the batture in front of the Second Municipality, now the First District of New Orleans, was sold at public auction, for the benefit of the city and others, parties to an act of compromise made 20th September, 1820.

At this sale the plaintiff became the purchaser of twenty-two lots in the square bounded by Front, Julia, Fulton and St. Joseph streets, for tho aggregate sum of $70,600.

It appears from the adjudication, that twenty-one of the lots sold for $3100 each, and the lot fronting on Fulton, St. Joseph and Front streets for $5500.

Three acts of sale were executed for the property; two for six lots each, at the aggregate prices of $18,600, and numbered from two to thirteen, and one act for ton lots numbered from fourteen to twenty-three inclusive, for $33,400. The sale was for one-fifth cash, and the balance on a credit of one, two, three and four years, with eight per cent, interest from date until maturity.

At the time of this sale, there was pending a suit against the city of New Orleans, to recover a portion of the batture, which, included the entire lot No. 22, a large part of lots Nos. 21 and 23, and a small portion of lot No. 20. This suit was finally determined by this court against the city in February, 1856, and a writ of possession was issued in May following against the city, and returned executed in August, 1856, by putting the Remys in possession. The lots were suffered to remain vacant.

In October following, the plaintiff instituted the present action to rescind the sale of all the lots, alleging that the object of his purchase was to erect a large pork inspection warehouse, and by reason of the eviction oí a part, the property had become useless for the purposes for which it was bought.

Plaintiff claims judgment for the price and interest, the taxes he has paid, the payments he has made, and counsel fees.

The defendant’s counsel attempted to amend the answer, which was a general denial, by alleging that after the institution of this suit, viz, March 14th 1857, the city of New Orleans, in order to protect the title of plaintiff, purchased of Remy and others the property they had recovered in their suit against the city, a negotiation having been set on foot for this purpose immediately after the decree in that case.

The judgment of the lower court was in favor of plaintiff for $76,575 67 and interest, and $2000 attorney’s fees.

The city appeals.

The record contains two bills of exception filed by the defendant’s counsel: one to the reception of evidence, the other to the refusal of the court to allow defendant to file an amended answer.

The first of these bills we cannot notice, because it does not contain the grounds upon which the testimony was rejected, and we have no means of judging correctly of the ruling of the lower court. Bonnafee v. Wiltz, 10 An., 657.

In regard to the bill of exception taken to the order of the Judge refusing the amended answer called, a peremptory exception, the reason stated for the refusal to receive the amendment was that a party could not amend his pleadings after the suit was fixed for trial.

The record does not inform us, as we perceive, of the day on which the cause was fixed for trial. The bill of exception was filed the 19th day of March, 1857, and the act of compromise or sale from the Remys was executed on the 14th, five days previously.

We think that such facts, as occur after issue joined, as have a direct bearing upon the matters in controversy and are admissible in evidence at all, may be offered in evidence without any amendment of the pleadings, the power being reserved to the court to order a continuance or new trial in case the matter was calculated to take the party by surprise. This being the case, we can see no possible objection to the allowance of an amendment to the pleadings, setting up such new matter. It is advantageous to both parties. It benefits the party offering the amendment, because it perpetuates, by written pleadings, the final issue made between the parties. It benefits his adversary, because it confines the issue to the allegations and enables him to take advantage of any variance.

The matter sought to be pleaded having occurred only five days before the offering of the amendment, is an additional reason why it should have been allowed. The rejection of the amendment was equivalent to a refusal to receive the testimony which would have established the same. The matter therein set forth was important, because this action is in the nature of an action of warranty, and plaintiff having gone into possession under his title, has no cause of action unless ho shows actual eviction, or facts from which actual eviction may be inferred. If then, the defendant had proven the allegations of his amendment, setting forth the acquisition of Remy's title, and connected it with the rebutting proof that the plaintiff had never been actually dispossessed, notwithstanding the return of the writ of possession, it would have established a complete defence to plaintiff’s action. For, under our law, a party must show an actual eviction in order to recover in an action of warranty, and a return to the writ of possession between other parties cannot be conclusive even if it amounts to a constructive eviction. Melançon’s Heirs v. Duhamel et al., 7 L. R., 286; Fletcher’s Heirs v. Cavallier et al., 10 L. R., 120. See also the case of Laborde v. New Orleans, opinion book 29, p. 595.

This error of the lower court requires, that the ease should be remanded for a now trial. But as the judgment is erroneous in some other particulars, we shall notice them, in order that this case may, if possible, be finally disposed of on the next trial in the court below.

Plaintiff does not claim that the suit of the Remys covered any portion of his purchase, except lot No. 22 and parts of lots Nos. 20,. 21 and 23. Eighteen other lots contiguous to each other are in plaintiff’s possession, according to his own showing.

It is not pretended that the plaintiff communicated to the public authorities and those interested therein at the time of sale, his intention to build inspection warehouses ; nor is it pretended, that there was any agreement that certain contiguous lots should be sold him, in order that he might carry out his views. He went there, as every other bidder did, with the right to acquire as many lots as his bids would entitle him to, and subject to be defeated by any one who should bid more. The property had been divided into as many distinct' things as there were lots, in order to suit the demand of the public and the convenience of the vendors. If they had fallen into the hands of twenty-two purchasers, it is clear that those purchasers could not join and rescind the whole sale if it should turn out that four of them had been evicted from the lots sold them. If the twenty-two should after-wards sell to one vendee, we think he could not exercise any greater right than his immediate vendors.

If the public sales of this kind of property were not considered as the sales of so many distinct things, it would be a misfortune to haye one person become the purchaser of many lots, as the rescission would bo on a larger scale for the eviction of a small portion of the property.

The suit of Remy operated as a constructive notice to the plaintiff, and therefore, there is a stronger reason for holding in this case that sale of the lots was a sale of a number of independent things, giving a right of warranty as to each, and that the purchaser has no action of rescission, except for such lots as have been deprived of their proportions by eviction. C. C. 2428, 865, 2518; Andry v. Foy, 6 M. 696, 7 M. 33; Bertrand v. Arcuil, 4 An. 432.

The cases of D’Aquin v. Conner, 3 L. R., 395, and McCollom v. McCollom, 6 Rob. 506, are not in point. They were cases of the sales of plantations, where there were evictions of large portions of the same.

In the event that the proof shall show (on a new trial) an actual eviction of the plaintiff of parts of four lots previous to the institution of his suit, the question will again arise as to the time from which interest must be allowed. We think interest is only due on the principal paid from the date of the eviction. The property would doubtless have been productive in other hands, and the proof shows that if a fence had been put around it, it would have rented for $1800 or $2000 per annum. The use of the property is considered equivalent to interest on the price. See D’Aquin v. Coiron, 3 L. R. 395; 12 L. R., 313; 16 L. R. 35. The case of Burrows v. Fierce, cited by plaintiff’s counsel, is not in point. Burrows “ never had nor could obtain possession or enjoyment of the property,” and Mr. Justice Preston says he should recover interest on the price paid for it from the day of sale, and which he could not have recovered if he had enjoyed the fruits and revenues of the property.” 6 An., 304.

In regard to the taxes paid by the plaintiff, they are dues to the government for the possession of the property, and if he had retained the price instead, he would have been compelled to pay taxes upon the capital in his hands. Defendant cannot be charged with the taxes paid by plaintiff, should the action be maintained.

The paving of the property depends upon other principles. It is an expense which tends to the preservation of the property, and doubtless could have been recovered from the Remys in the event, and for the amount, it exceeded the revenues of the property. We can see no good reason, if there be a recovery, why the city should not pay pro rata for the pavement and gutters in front of said four lots, as it is a permanent improvement and increases the value of the property to which the city will then have succeeded by virtue of the purchase of the rights of Remy to the property in controversy, and the rescission of the sale.

The allowance of attorney’s fees was also erroneous. We have had occasion repeatedly to state that the law does not ordinarily allow fees for counsel who are employed to vindicate the rights of parties. See Young v. Courtney, 13 An.; Melançon’s Heirs v. Robichaud, 19 L. R., 360. The case of Tear v. Williams, 2 An., 868, was decided under Article 2482 of the Civil Code; but the case in 19 L. R., 360, does not seem to have been called to the attention of the court then in session at Alexandria. On a reconsideration of the question, we think that the damages mentioned in the fourth paragraph of Article 2482 do not include counsel fees for bringing the action in which they are sought to be recovered. We are satisfied with the reasoning of the court in the case of Melançon’s Heirs v. Robichaud’s Heirs, 19 L. R., 351.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that this case bo remanded to the lower court for a new trial, with instructions to receive the amended answer of the defendant, and to be governed by the views herein expressed, and in other respects to proceed according to law, the plaintiff paying the costs of appeal.

Buchanan, J.,

dissenting. I feel myself constrained to dissent from the opinion of the majority of the court.

I think that the defendant had no right to change the issue so as to defeat plaintiff’s right of action, after that right had been assorted in this suit.

I think the judgment of the lower court should be affirmed. '


author: Oole, J. Merrick C. J.,

text:
    City of New Orleans v. John Holmes, Recorder.
    The Legislature lias the power to make an Exception to the general rule with regard to the promulgation of laws, and to give to an Act full force and effect from the date of its passage.
    The section of the Act of the 20th of March, 1858, entitled “ An Act relative to judicial mortgages against the city of New Orleans,” which provides that no inscription of a judgment against the city shall operate as a judicial mortgage, is not in violation of the Article of the Constitution which declares that no law shall bo passed impairing the obligation of contracts.
    The judicial mortgage resulting from the inscription of a judgment, forms no part of the contract upon which the judgment was rendered.
    APPEAL from the Sixth District Oourt of New Orleans, Howell, J.

      J. J. Michel, for plaintiff.

      Lacy Sf TJplon, for defendant and appellant.
   Oole, J.

On the 20th March, 1858, the Legislature passed “ an Act relative to judicial mortgages against the city of New Orleans,” which provides :—

1. Whenever the city of New Orleans shall apply to the Recorder of Mortgages of said city, for certificates of mortgages recorded against the city, that it shall be the duty of the Recorder to mention in such certificate only special mortgages which may have been granted by the city, and to omit all judicial mortgages arising from the inscription of the judgments rendered against the city and recorded in the mortgage office.

2. That hereafter no inscription of a judgment reiidgred against the city of New Orleans shall operate as a judicial mortgage against any property of the city.

3. That all laws contrary to the provisions of this Act are repealed.

4. That the Act shall take effect from and after its passage.

The city having applied to the Recorder for a certificate, in accordance with this law, he refused to accord the same.

On motion of the Oity Attorney, the District Court ordered the Recorder to show cause why a writ of mandamus should not issue, directing him to grant the city a mortgage certificate, conformably to the provisions of the first section of the above-mentioned Act.

Upon a hearing, the rule nisi was made absolute; and the mandamus was ordered to issue, from which judgment the Recorder has appealed.

Appellant has made two points in this court, on which he relies for a reversal of the judgment.

“ The statute sought to be enforced had not been promulgated at the date of the rule.”

It is in the power of the Legislature to make a' law take effect from its passage.

There is nothing in the Constitution of the State, which requires a fixed time to elapse, after the enactment of a statute, before it can take effect.

The Legislature has adopted a general rule as to the time that must expire after publication, before a statute can be deemed to be promulgated, and to have the force of law.

The same power that created the rule can make the exception.

“ That the statute is unconstitutional, null and .void, and impairs the obligation of contracts.”

There is nothing unconstitutional in the provision, that no inscription of a judgment against the city shall operate as a judicial mortgage, and it does not impair the obligation of contracts.

The judicial mortgage resulting from the inscription of a judgment is no part of the contract upon which the judgment was based.

Judicial mortgages are the mere creations of the law.

Judgment affii’med with costs.

Merrick C. J.,

concurring. Whatever rights the judgment creditors of the city of New Orleans acquired by recording their judgments prior to the Act of 20th of March, 1858, (p. 221,) are protected by Art. 105,of the Constitution, which declares, that vested rights cannot be divested, unless for purposes of public utility, and adequate compensation previously made.

The Act in question must therefore be construed in reference to this provision of the Constitution. If we attend to the language of the Act, we find that it is the city alone for whom the kind of certificate mentioned in the statute is required to be made when applied for by her proper officers.

Every other person having an interest in procuring a full certificate of mortgages, or other proof of registry of his mortgages, can do so, and the Recorder cannot withhold the proper certificate. Indeed, were there a controversy on the question of priority of mortgages, in my opinion, it would be in the power of the court to require the proof, by the production of the books, and other modes of proof, were the certificate refused; and so I understand to be the conclusion of my colleagues.

Of course after the passage of the Act, the Register could neither record judgments presented for registry, nor oxemplifly the same upon his certificate of mortgages for any one.

I deem what Mr Justice Cole has said on the subject of the promulgation of the Act as conclusive, and concur in the decree.