author: SniDEim, J.

text:
    Sigur v. Lloyd.
    Where a lessor prays for a judgment for rent due and to become due, and for a dissolution of the lease, and the defendant acquiesces in the prayer for a dissolution, and there is judgment accordingly, the latter cannot be condemned to pay rent coming due after the dissolution of the-contract. The prayer for a dissolution of the lease, and the judgment rendered in pursuance of it, deprived the lessor of the right to hold the lessee liable for rent ■which might have subsequently accrued.
    Under the Civil Code of this State, where a lease is dissolved on account of the fault of the lessee, the latteris hound to pay rent until the thing is again leased, only in the case of loss sustained by the lessor in consequence of the lessee’s “having made another use of the thing than that for which it was intended.” C. C. 2681, 2682. Under the Code Napoleon, art. 1760, the lessee is liable for such rent, in case of a dissolution of the lease produced by any fault on his part.
    A lessee cannot deduct from the rent the cost of an improvement not necessary to the use of the premises, and made by him without any previous application to the lessor (C. C. 2664) ; and he is only entitled to remove improvements made by bim, on leaving the premises in the state in which he received them. C. C. 2697.
    APPEAL from the City Court of Lafayette, Burtfie, J.
    Bonford, for the plaintiff. Hiestand, for the appellant.
   The judgment of the court was pronounced by

SniDEim, J.

The defendant was sued for a breach of the covenant of his lease by the non-payment of rent. The plaintiff prayed for a dissolution of the lease, for judgment for $180, the amount of rent already accrued, and for the further sum of $240, the amount to become due by monthly payments during the unexpired portion of the year. The defendant, in his answer, admitted the execution of the lease, claimed an offset of $60 for a hoisting wheel which he had placed in the store, acquiesced in the prayer for the dissolution of the lease, but denied that he would be liable for the rent thereafter to become due. The rent was payable monthly, in advance. The suit was brought early in June, and judgment was rendered and became final before the expiration of that month. The court below rejected the offset; gave judgment for the rent accrued; decreed the dissolution of the lease and the eviction of the tenant; and also gave judgment for the rent unaccrued, with leave to take out execution therefor from time to time as it should fall due, reserving to the defendant the right of relief, by future suit, for any rent the landlord might obtain during the residue of the term from new tenants, and recourse also, should the landlord by his own neglect fail to relet the property. From this judgment the defendant has appealed.

It is declared by art. 2700 of our Civil Code that, “ the neglect of the lessor or lessee to fulfil their engagements may also give cause for the dissolution of the lease, in the manner expressed concerning contracts in general, except that the judge cannot order any delay of the dissolution.” Here the lessee failed to pay the rent, which was one of his engagements, and by this breach an implied resolutory condition of the contract took effect, of which the lessor, by this suit, has availed himself, and in which the lessee acquiesces. The lease being thus dissolved, the covenant of the lessee for future rent has also ceased to exist. The rent was to be the compensation for the occupation of the property under the contract. That contract has been annulled, and the possession taken from the tenant by the decree. The defendant could not have taken advantage of his own default to annul the lease; but the injured party could, and he has availed himself of it. The dissolution is the result of his own voluntary option; the law entitled him to obtain judgment and execution from time down to the end of the term, had he chosen to leave the tenant in possession.

But it is said that the breach of duty by the lessee, has inflicted upon the plaintiff damage beyond the mere interest upon the rent accrued; that the lease was for one year; that the most valuable portion of the year had expired, and that, the business season having gone by, there would be difficulty in reletting for the unexpired term; that equity was administered to both parties by condemning the tenant to pay the future rent, and giving him the benefit of the rents the landlord might obtain from other tenants, the landlord also being held to reasonable diligence in reletting. Our legislature has thought proper to place the contract of lease, so far as concerns the general subject of dissolution, on the same footing as contracts generally. It is to be remarked that, whatever apparent equity there may be in the view presented by the plaintiff’s counsel, the omission to provide such relief as he asks cannot he considered as accidental. Our Code, in the great mass of its provisions, follows the Code Napoléon. That Code contains an express provision on this subject, which the compilers of our Code have thought proper to omit, except in a special case. But, even under the French law, relief is not given to the extent to which the decree of the court below has gone on this occasion. “Encasde resiliation par la faute clu locataire, celui-ci est teim de payer le prix du bail pendant le temps necessaire á la relocation, sans prejudice des dommages et intéréts qui ont pñ résulter de 1’abus.” Code Nap. art. 1760.

Now a part of this rule is adopted in our Code, but with this change. In the Code Napoléon the expression is general — “ résiliation par la faute du lo-cataire-'” In our Code the relief is given in a single case : “ If the lessee makes another use of the thing than that for which it was intended, and if any loss is thereby sustained by the lessor, the latter may obtain the dissolution of the lease. The lessee, in that case, shall be bound to pay the rent until the thing is again leased out; and the lessee is also liable for all the losses which the proprietor may have sustained through his misconduct.” Art. 2681. Immediately succeeding this article is the following : “ The lessee may be expelled from the tenement, if he fails to pay the rent when it becomes due.” Art. 2682. But no provision is made as to loss, by delay in reletting.

The plaintiff has cited the cases of Christy v. Cazenave (2 Mart. N. S. 451), and Reynolds v. Swain (13 La. 193), as sactioning, by analogy, his right, notwithstanding the dissolution of the lease, to a judgment for the rents during the residue of the term. It is unnecessary, upon the present occasion, to enter into a discussion of the principles upon which those decisions were based. It suffices to say that the circumstances presented by those cases were different from those now under consideration. In both those cases the decision was based upon the abandonment of the premises, and the abstraction of the furniture and goods, which are the landlord’s pledge. Here the tenant did not abandon the premises, nor abstract his goods. He simply failed to pay his rent, and for this breach of his contract the landlord asked that the lease should be dissolved, and the tenant expelled.

As to the set-off claimed by the defendant, we think it was properly disallowed. It is true that the premises were let as a Warehouse, and that there was a scuttle, or opening in the floor, such as is usually made for the purpose of permitting goods to be hoisted into the upper story; but there was no hoisting-wheel when the tenant took possession, and yet he received the promises without objection. It is proved that, though a hoisting-wheel is convenient and useful, it is not indispensable, and it also appears that the tenant made no demand upon the landlord to put one there; he did it himself without consultation, at his own expense. He is entitled, however, to remove it. See Civil Code, arts. 2664, 2697. Also 17 Serg. and Rawle, 415.

It is therefore decreed that so much of the judgment of the court below as decrees the dissolution of the lease and the expulsion of the defendant, and condemns the defendant to pay the sum of !¡>1S0 and costs of suit in the court below, be affirmed. It is further decreed that so much of the judgment of the court below as sustains the claim of the plaintiff for rent for the residue of the term mentioned in the lease be reversed, and that for said claim there be judgment in favor of the defendant. And it is further decreed that upon said sum of ®180, the said plaintiff recover interest from the 1st day of June, 1845, till paid ; and that the costs of this appeal be paid by the plaintiff.

       The lease was for $60 a month, and was to expire on the 31st October. The amount to become due was for the last four months.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Yeatman et al., v. Broadwell et al.
    Where an obligation is contracted on condition that an event shall happen within a limited time, the condition must he considered to have failed when the event has not occurred within the time. C. C. 2033.
    legal interest is due from judicial demand on a claim for the price ofa steamer.
    il PPEAL from the Commercial Court of New Orleans, Watts, J.

      G. B. and L. C. Duncan, for the plaintiffs. Wray, for the appellants.
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs entered into the following agreement with the defendants :

“ Articles of agreement made and entered into this 3d day of September, 1844, between Yeatman & Shields of Cincinnati, Ohio, of the first part, and James M. Broad-well of the city of New Orleans, and Theodore J. Horner of Cincinnati, of the second part, witnesseth:

“ That, in consideration of certain payments as hereafter specified, to be made by J. M. Broad-well and T. J. Horner, Yeatman 8f Shields agree to build the following machinery, and erect the same on a boat, viz: two seventeen inch cylinders, seven feet stroke, with all other apparatus and machinery to make two complete engines, (with the exception of three forty-inch boilers, twenty-two feet long, which the parties of the second part agree to furnish,) and to be ready for operation from the 1st to the 10th of December next; and, in case of the sinking or burning of the boat, during the delivery or completion of the engines, it shall be at the risk of the said second parties.

“ The parties of the second part agree to have their boat at some convenient landing between Deer Creek and Ludlow street, at least four weeks previous to the time specified for the operation of the engines, with the timbers dressed and fastened for their reception. The second parties also agree to pay for the above described work, the sum of four thousand seven hundred and fifty dollars, as follows : two-thirds of the amount during the progress of the work; the residue six months after the machinery is ready for operation, for which paper, satisfactory to the parties of the first part, will be executed when the engines are ready for operation.”

Under this agreement, the boat should have been brought to the place where she was to receive the engines, four weeks previous to the 1st of December. She was not there until the 24th of November ; the engine timbers were not then dressed and fastened; and it took from seven to ten days work, before she was ready to receive the engine.

When the boat was ready for operation, the defendants having paid a part of the sum agreed upon, a settlement for the balance, due according to contract, was demanded of them by the plaintiffs’ agent. Broadwell expressed himself satisfied with the work, and told the plaintiffs’ agent that he had an agreement to meet Yeatman in New Orleans, where he could give more satisfactory acceptances. Upon that representation the agent delivered the boat to Broad-well, who, after the delivery, told him to enclose the bills to Yeatman, with whom he could arrange the matter as to the acceptances. The defendants af-terwards refused to give the promised acceptances, and, on their refusal, the plaintiffs instituted, before the expiration of six months after the machinery was ready for operation, an action to recover the balance due on the contract.

The defendants’ answer contains the following exception: “ That the plaintiffs, from their own showing, are not entitled to be paid the balance alleged to be due them, imtil six months have elapsed from the completion of the work. That the suit is premature, and should be dismissed.” The answer further contains a general denial, and a plea in reconvention for $3000 damages, for the non-delivery of the boat at the time stipulated in the contract.

The plaintiffs having proved their claim, the court below overruled the exception, allowed the defendants $250 damages, and gave judgment in favor of the plaintiffs for the balance due them, with legal interest from the first day of July, 1845, until paid. The defendants appealed.

Both the exception and the merits of this case, come under "the same rule of law. The defendants stipulated with the plaintiffs, to pay them the sum of $4750 dollars, for putting two steam-engines on a boat. This was the real contract — the principal obligation. The plaintiffs attached to it two conditions, to wit: 1st. To have the steam-engines ready for operation from the 1st to the 10th of December, 1844, provided the boat was delivered to them, ready for the reception of said engines, at least four weeks previous to the 1st of December. 2d. To allow the defendants, on one third of the sum agreed upon, a credit of six months from the time the machinery was ready for operation, provided that, at that time, they gave the plaintiffs satisfactory paper for that sum.

The two events on which those conditional obligations were based, did not happen. Tjhe boat was not delivered for the reception of the engines at the stipulated time, and, after the completion of the work, the defendants expressly refused to give satisfactory paper, or paper of any kind, to the plaintiffs.

Art. 2033 of the Civil Code provides that, “ when an obligation has been contracted, on condition that an event shall happen within a limited time, the condition is considered as broken, when the time has expired without the event having taken place.” Toullier, commenting upon art. 1176 of the Code Napoleon, which is word for word the same, says: “ If doubts may arise as to the manner in which a condition should be accomplished, there can be none as to the time at which it ought to be so, when it is fixed by the contract. This does not require that the intention of the parties should be ascertained; the law of the contract must govern. The Code has not left to judges the power to evade its effect, by interpretations which might become arbitrary. The delay is fatal; and that general disposition is applicable to all kinds of conditions, protestative, casual, or mixed.” Toullier, nos. 608, 610. See also Merlin, verbo Condition. Indeed this article requires no commentary. The rule it prescribes is clear and free from all ambiguity. Civil Code, art. 13. The conditions appended to the principal contract in this case, must be considered as not written, and the plaintiffs are entitled to maintain their action upon it, without regard to them.

The court erred in allowing damages to the defendants, and in not allowing interest to the plaintiffs from the judicial demand.

It is therefore ordered that the judgment be reversed; and it is further ordered, that the plaintiffs recover from the defendants, in solido, the sum of $2400 33, with interest, at the rate of five per cent per annum, from the 25th of February, 1845, until paid, and costs in both courts.


author: Eustis, C. J.

text:
    Downey v. Stacey et al.
    Where in an action by the master of a slave against the owners of a steamer, to recover the value of the slave, who had been hired to them and was not returned, the evidence shows that the slave was probably lost overboard, without any fault of defendants, plaintiff cannot recover. Per Curiam: The slave was at the risk of his master, and it would be unreasonable to exact any further proof of his loss, than the attending circumstances usually afford in such cases.
    APPEAL from the District Court of the First District, Buchanan, J. This was an action by the owner to recover the value of a slave, hired to the defendants as fireman on a steamer owned by them, and never returned. The answer denied all the allegations in the petition. A supplemental answer alleged that, if the slave was hired by the defendants, he was either lost overboard, or absconded from the boat. The judge of the District Court, in the reasons assigned by him for rendering a judgment in favor of the defendants, states that, the evidence had convinced him “ that the slave must have fallen overboai'd from the steamer, in the Mississippi river, and have been lost without the fault, or even the knowledge, of any one on board.” The evidence showed that such was, in all probability, the fact. The defendants appealed.
    G. B., and L. C. Duncan, for the plaintiff,
    cited art. 2294 of the Civ. Code, Mott, for the appellants, contended that they are not responsible. The slave was lost overboard without their fault, or he must have run away. In neither event can defendants be held liable. C. C. 2496, 2505. Keas v. Yewell, 2 Dana, 348. Singleton v. Carroll, 6 J. J. Marshall’s Rep. 528. Young v. Bruce, 5 Little, 324. Hams v. Nichols, 5 Munf. 483. Beverly v. Brooks, 2 Wheaton, 100.
   The judgment of the court was pronounced by

Eustis, C. J.

The judgment in this case is evidently correct. The defendants have proved every thing which, under the hypothesis of the death or escape of the slave, they were bound to show. Vide Chase v. The Mayor et al., 9 La. 347. The difference betweeta the hiring of a slave and an ordinary bailment, is obvious. The slave is at the risk of the master, and it would be unreasonable to exact any further proof of his loss than the attending circumstances usually afforded in such cases. The presumption of law arising from the nondelivery of the object in cases of bailment, has no application to slaves.

Judgment affirmed.


author: King, J.

text:
    Trudeau et al. v. McVicar.
    Where a sheriff seizes, advertizes for sale, and sells " all the right, title, and interest of the debtor in a lot of groiiud,” owned by him, but which was encumbered by mortgages, it must be considered as a seizure and sale of the property itself, and not of the contingent rights of the debtor to so much of the property as may remain after the mortgages are satisfied.
    action can be maintained on a twelve-month’s bond given for the price of property sold under execution, where the price did not exceed the amount of the mortgages existing on the property, entitled to a preference ovor the claim of the judgment creditor. O. P. 684. The sale is mill; under such circumstances, no legal adjudication could have been made. The fact of the puacliaser’s being in actual and peaceable possession, cannot render him liable; the bond was without consideration, and no disturbance was necessary to justify a refusal to pay it. Nor would the fact of the mortgages being simulated alter the case; though simulated,'they form a part of the price for which the purchaser would have been bound to the owner, had the sfSe been legal.

      APPEAL from the District Court of the First District, Buchanan, J.

      L. Jarán and S. L. Johnson, for the plaintiffs. Schmidt, for the appellant.
   The judgment of the court was pronounced by

King, J.

The plaintiffs in this action have enjoined the execution of a fieri facias issued on a twelve-months bond, executed by them as principal and surety, alleging that the property, for the price of which it was given, was illegally adjudicated, having produced a sum insufficient to cover the special mortgages with which it was encumbered. There was a judgment in the lower court perpetuating the injunction, from which the defendant has appealed.

It appears that the defendant, Me Vicar, obtained a judgment against one Samuel Thompson, under which nfi-fa. was issued. The sheriff discovered that the only property owned by Thompson was encumbered by special and general mortgages to an amount far exceeding its value, and declined making a seizure. The writ was returned unsatisfied, and a second was issued, under which Mc-Picar’s counsel directed all the right, title and interest of Thompson in the property to be seized. It is admitted that the defendant intended to seize the contingent rights of the debtor in the property, that might remain after the satisfaction of the encumbrances, and thus to effect a sale without regard to the mortgages. It is not necessary to determine whether such contingent rights are subject to seizure under execution. The question does not arise under the state of facts presented by the record. The legality of the adjudication must be tested by the rules which govern sheriff’s sales of immovables, subject to encumbrances prior to those of the seizing creditor.

’ The sheriff, under his instructions, seized all the right, title and interest of the debtor in a lot of ground and the buildings thereon, and advertised for sale the right, title and interest of the debtor in the property seized. This was a seizure and advertisement of the property itself. All the rights of ownership of the debtor are embraced within the description. The terms right, title and interest, used in the advertisement, are not such as designate any other rights to be sold than those which the sheriff is required by law to convey, or notify purchasers that they are to acquire any thing short of the property itself. The sheriff is only directed by law to convey to the purchaser at a sale under execution, all the right of the former owner to the thing sold. Code of Pract. arts. 694, 690.

On the day of sale the sheriff read the certificate from the mortgage office, from which the property offered appeared to be encumbered with two special mortgages, one in favor of the Carrollton Bank for $2400, and the other in favor of Schneider for $3000, and with several judicial mortgages, amounting collectively to about $20,000. He announced that the special mortgages were to be assumed by the purchaser, who would take the property also subject to the judicial mortgages; but added his belief that, the judgments were not against tlie defendant in execution, but against a different person bearing the same name. Whatever may have been the intention of the creditor, he seized, advertised and offered for sale the property itself, subject to all its encumbrances.

The plaintiff, Trudeau, acting by his agent, Fdwards, bid $500 for the property, which was adjudicated to him for that sum, and for a part of the price he gave the bond in question. Our laws in relation to sheriff’s sales require expressly that, the price offered shall exceed the privileges and mortgages existing on the property, and which have a preference over the judgment creditor, otherwise there shall be no adjudication. Code of Pract. art. 684. Fernandez v. Bein, ante, p. 32. It is clear, then, that there was no adjudication, and that the sheriff’s sale is null. It is contended that the plaintiff was placed in actual and peaceable possession of the property, and cannot withhold the price, unless disturbed. The possession which was given could not have been maintained, being unsupported by title. Property was delivered in virtue of an adjudication expressly prohibited by law, and consequently null. There was nothing due by the plaintiff, Trudeau. His bond was given without consideration, and a disturbance was not necessary to justify him in refusing payment.

It is urged that the mortgage of Schneider is simulated, and that Trudeau admits his readiness to assume the mortgage of the Carrollton Bank. He could not test the validity of Schneider’s mortgage, which was not made in fraud of his rights or to his injury. If it be simulated, it forms notwithstanding a part of the price, for which the purchaser would have been bound to the owner of the property, if the sale had been legal. The property was held by Trudeau for a short time, during which he received rents amounting to about $50, and expended more than that sum in repairs upon the house. The defendant has no claim on this score. Judgment affirmed.

       Slidllx,, X, having been of counsel, did not sit on the trial of this case.


author: King-, J.

text:
    Pascal v. Sauvinet.
    A mortgage executed by a husband, under a power of attorney from his wife, who was separated in property, on the paraphernal property of the latter, to secure the re-payment of an amount alleged in the act to have been lent to the husband as her agent, but which was not shown to have been applied to her use, or to have enured to her benefit, cannot be enforced. C. C. 2413. Per Curiam: It is incumbent on the party seeking to enforce the contract of a married woman, to show that it enured to her separate advantage.
    APPEAL from the Parish Court of New Orleans, Maurian, J.

      Tram, for the appellant.
    Under no circumstances can a wife become surety for her husband. Civ. Code, art. 2412. The form of the contract will be disregarded, if, in point of fact, she turns out to be a mere surety, when she was made to appear in the light of a principal. It is for those who treat with a married woman to be upon their guard, and to see that the obligation she contract, turns to her benefit and advantage. 4 Rob. 510. 7 Mart. 484,489. 2 Mart. N. S. 44. 5 Ibid. N. S. 431, 454, 528. 7 Ibid, N. S. 64, 252, 341. 8 Ibid, N. S. 692. 587-90. 10 La. 147, 163. Merlin, Repertoire, verbo Derogation. 1 Toul-lier, p. 87 et seq. Gomez, ad leges Tauri, 636. Pothier, Obligations, 1st vol. 304, no. 396. Ibid, p. 369. “It is not sufficient to prove thatthe wife received the money ; it must also be proved that it was for her separate advantage, or for something which the husband was not bound to furnish her.” 7 Mart. N. S. 64. 10 La. 147, 163. “ It is for the creditor claiming the performance of a contract with a married woman, to prove that the debt was converted to her benefit.” 7 Mart. 484, 489. 5 Ibid, N. S. 54, 57, 527. 7 Ibid. N. S. 64, 341. 10 La. 147. 10 La. 163. 4 Rob. 510, 513.

      Marsondet, for the defendant.
   The judgment of the court was pronounced by

King-, J.

The plaintiff has enjoined the execution of an order of seizure and sale obtained by the defendant, alleging that her consent was never given to the mortgage which is sought to be enforced on her property, and that the mortgage was fraudulently obtained, to secure the payment of a sum of money borrowed by her husband for his own use, no part of which inured to her benefit. The injunction was dissolved in the lower court, and the plaintiff has appealed-

It appears that the plaintiff is separated in property from her husband, and owns the lotof ground seized, in her separate paraphernal right. After the judgment decreeing her separation, she gave to her husband a power of attorney, in which she delegated to him extensive and general powers for the management and administration of her affairs. Two years after the execution of this authority, the husband, professing to act for his principal, made three promissory notes, payable to the defendant, amounting collectively to $1,000, and granted a mortgage on the lot of ground owned by the plaintiff to secure their payment, stating in the act, that the sum was due by his wife in consequence of a loan made to her by the defendant, and which he, as her agent, acknowledged to have received. There is no proof that any part of this loan passed into the hands of the plaintiff, nor that it was applied to her use or turned to her benefit. She was not personally present at the execution of the act, and is not shown to have been aware that the loan had been made, or the mortgage granted; but, on the contrary, it appears from the act itself that the money was paid to the husband, who professed to have received it as the agent of his wife. Previous to the execution of the mortgage, the husband was much embarrassed in his affairs, possessed no visible pecuniary means, and was engaged in (ho calling of profit. About the date of the loan he was known to be in the possession of funds, with which he discharged his individual debts.

The wife, whether separated or not in property, cannot become the surety of her husband. Civil Code, art. 2412. Whatever form the contract may be made to assume, its true character may be inquired into, and when it has not turned to her benefit, she will be relieved from the obligation. It has been settled by repeated decisions of the late Supreme Court that, it is incumbent on the party claiming to enforce the contract of a married woman to show that the contract enured to her separate advantage. In the case of Brandegee v. Kerr and wife, not only was this principle recognised, but it was held that, “the circumstance of the wife having a separate advantage in the contract, being of the essence of her obligation, must be proved by other evidence than proof of her having touched the money.” 7 Mart. N. S. 67. 7 Mart. 465. 4 Rob. 510. The record furnishes no proof that the loan accrued to the benefit of the plaintiff. The evidence,on the contrary, renders it more than probable that, the loan and mortgage were both made without her knowledge or consent, and that the money which was received by the husband was applied exclusively to his own use.

It is therefore ordered that the judgment of the Parish Court be reversed. It is further decreed that the injunction obtained in this suit by the plaintiffbe made perpetual, and that the defendant pay the costs of both courts.


text:
    Richardson et al. v. Leavitt et al.
    An assignment of personal property in trust for the payment of particular creditors by preference, made in another State, under whose laws it was valid, between parties all of whom reside in that State, the property having been delivered to the assignees by the effect of the notice of assignment previously served on the garnishees, will protect the property, though subsequently found in this State, from attachment here at the suit of a creditor who resided in the State in which the assignment was made, and whose debt was contracted and payable there. The validity of the assignment must be determined by the laws of the State in which it was made.
    APPEAL by the intervenors from a judgment of the District Court of the First District, Buchanan, J., in the favor of the plaintiffs.

      Elmore and W. W. King, for the plaintiffs.
    An assignment made in an Other-State to take effect here, if void by our laws, can have no effect against an attaching creditor. Civil Code, art. 10. Story, Confl. of Laws, § 280, 285. Kent’s Com. 393, 459. Boullenois, Quest. Cont. des Lois, p. 330. Whiston v. Stodder, 8 Mart. 132. That the assignment is void by the laws of this State, see Civil Code, arts. 1886, 1963, 1979, 3150. See the authorities cited by the plaintiffs’counsel in., the case of The United States v. Bank of the United States, 8 Robinson. See also Ingraham v. Gayer, 13 Mass. 146. Blake v. Williams, 6 Pickering, 307. The case of Means v. Hapgood, 19 Pickering 105, is not in conflict with the two last cases, the decision resting on the ground that the assignment was good by the laws of Massachusetts. See Story’s Confl. of Laws, § 25, 244, 416. Andrews v. Creditors, 11 La. 474. By the laws of this State, so far as relates to the rights and remedies of creditors, personal property has a situs, and is to be governed by the law of this State when found here, in case of a conflict between our law and that of the domicil of the owner. Civil Code, arts. 9, 483, 1916, 1917. Beirne v. Patton, 17 La. 589.

      T. A. Clarke and Cohen, for the appellants.
   The judgment of the court was pronounced by

Eustis, C. J.

This case arises from the conflicting claims of the jolain-tiffs, who are attaching creditors, and of the intervenors, who assert their right to the property attached by virtue of an assignment made in their favor by the defendants, in trust for certain creditors. The assignment was made in New York where all the parties reside ; and the debt on which the attachment was issued, was contracted and payable in New York. The property included in the as. signment and sought to be attached by the plaintiffs was personal, and found within the jurisdiction of the court; and, before the attachment was served on the garnishees, was delivered to the assignees, by the effect of the notice of the assignment, which had been previously served on the garnishees. The debts, for the payment of which the assignment provided, are not contested; nor is any question raised as to the validity or effect of the consignment under the laws of New York, which are in evidence.

It is contended in argument by the counsel for the plaintiffs that, the assign-merit is fraudulent under our laws, and consequently can pass no title to the property attached to the parties intervening; and the question has been argued, whether the validity of the assignment is to be tested by the laws of Louisiana or of New York. The assignment is valid under the laws of New York. It is a contract perfectly lawful between the parties, and the consideration is neither inadequate nor immoral under those laws ; and there is no part of it to which the tribunals of that State would not give effect. It will be observed that this is not a case in which we are called upon to give effect to foreign laws, but, on the ground of the exclusive operation of the laws of Louisiana on the property within its jurisdiction, to invalidate or annul a contract, which has been executed by the delivery of the property, which is the subject of the contract, and which is in all respects lawful and valid by the laws of the domicil of all the parties.

By our laws, the debtor is bound to fulfil his engagement out of all his property, moveable and immovable, present and future, and the property of the debtor is the common pledge of his creditors. Every creditor has an action to annul any contract made in fraud of his rights; but he has no action to annul contracts not made in fraud of his rights. The violation of the common pledge, by the undue preference given to the creditors for whose benefit the assignment is made, is the ground on which the plaintiffs base the invalidity of the assignment. But by the laws of New York no such pledge exists, and the debtor is permitted to make any preference, by payment in favor of some creditors to the detriment of others. The law of New York is the law of tho contract between the plaintiffs and defendants. Under the law of Louisiana the plaintiffs have no action against the assignees, who are in possession under a legal transfer of property which was subject to no pledge, and which the defendants were permitted to dispose of in favor of any creditors they might select. To extend the laws of Louisiana to the contract made between these parties in New York, would be to give an extra-territorial application to them, unwarranted by any consideration.

The personal property attached is not the less subject to our laws, on account of this view of the case; but a case is before us in which, ex ratione materia, the plaintiffs have no claim on the property assigned to the intervenors. The very basis of such an action is wanting. We consider, therefore, that the plaintiffs have no right to hold subject to the payment of their debt the property assigned, and delivered to the intervenors.

It is argued that the assignment cannot be enforced here, because it is against public policy and is contrary to good morals. Both the reasons of policy and of morals rest upon the principle of the common pledge of the property of the debtor to his creditors, which we have before stated, and the inhibitions of its violation by preferences given to one creditor over others. Where there is no pledge these reasons cease to exist, and there can be no complaint where there is no injury.

It is also said that, the giving effect to assignments of this character, may conflict seriously with the rights of our own citizens. It will not escape remark that, we have confined the decision in this case to the state of facts presented by it, and we wish it to be understood as so limited. Cases presenting different facts, will be determined as they shall be before us. But we must add that, the operation of the laws of States on contracts made within them is sanctioned by the highest authority, and may be considered as settled, and that the rights acquired and disabilities incurred under contracts are entirely unaffected by the fact of citizenship. McCracken v. Hayward, 2 Howard, 612.

The inquiry ii/this case is, as to the right of the plaintiffs. The law of Louisiana cannot have any reasonable application to their contract, made in New York, and there to be executed with the defendants, merchants in that metropolis. The accidental presence of a portion of their personal property, which, in the course of their trade, found its way into Louisiana, cannot be considered as giving the plaintiffs the rights in relation to it, which a creditor would have upon the estate of his debtor under the laws and jurisdiction of this State. Ces-sante ratione, cessal ei ipsa lex. The conclusion to which we have come, is in conformity with the uniform course of decision in this State.

The case of Beirne el al. v. Patten, 17 La. 589, was decided in relation to the rights of the plaintiffs, who were citizens of this Slate, under contracts made and to be executed in New Orleans.

The judgment appealed from is therefore reversed, and the plaintiffs’ petition dismissed, with costs in both courts.

       Slidell, J., having been of counsel, did not sit on the trial of this case.


text:
    Weld v. Peters et al.
    A judgment creditor cannot treat a sale of a slave, made bona fide by Ids debtor and accom-ponied by possession, as null, and seize tbe slave in tbe bands of tbe purchaser. He must institute a direct action to annul the contract. Aliter, where the act is a mere simulation.
    Where an immovable is purchased by a commercial partnership, tbe partners become joint-owners, and none of them can alienate it without the consent of the rest. But where such property is sold by one of the partners, for a consideration which enured to the benefit of the partnership, and the other partner, though informed of the salo, makes no objection to it, ho will be considered as having ratified it.
    APPEAL from the Commercial Court of New Orleans, Watts, J.

      G. B. Duncan, for the apellant. Lockett and Goold, for the defendants.
   The judgment of the court was pronounced by

King, J.

Peters & Millard, in the execution of a judgment which they had obtained against Hunt Sf Howard, caused to be seized a slave then in the possession of Weld. The proceeding was enjoined by the plaintiff, who claimed to be the owner of the slave seized. In the court below the slave was decreed to be the property of Hunt Sf Howard, subject to seizure in satisfaction of their debts, and from this judgment the plaintiff appealed. The issue between the parties is, the ownership of the slave. The plaintiff exhibits as his title a conveyance by public act from Hunt & Howard, passed more than six years previous to the seizure. The defendants allege that, the only consideration for which the sale was given was, that the plaintiff should become the surety of Howard on a bail bond, while the latter was under arrest at the suit of Peters & Millard, and that the object of the transfer was to secure him against the consequences of this suretyship; that the bond has long since been discharged, and the plaintiff relieved from all liability arising from it; that the consideration has thus failed; and that the slave, who had never really ceased to be the property of Hunt éj- Howard, is liable to seizure in satisfaction of their debts. They further aver that if the plaintiff was a creditor of Hunt & Howard at the date of the sale, the latter were then insolvent, and that the sale was intended to give an unjust preference to the plaintiff. They also contend that the slave belonged to the commercial partnership of Hunt Sf Howard, and that the sale to Weld was from Howard alone, and conveyed his half only of the slave, and that, for the remaining half, the sale is null.

It appears from the evidence that, Hunt & Howard were commercial partners, the former of whom resided in Boston and the latter in New Orleans. Howard purchased the slave in question in the name of the partnership, by an act under private signature, and, on the 16th of May, 1839, indorsed on this act a transfer of him, also under private signature, to Weld. On the 14th June, 1839, Peters & Millard instituted a suit against Hunt & Howard, in which they caused Howard to be arrested. Weld became the surety on the bail bond given by Howard. Two of the witnesses, of whom the officer who made the arrest is one, state that Weld hesitated for some time whether he' would become the surety of Howard on the bond, but finally consented to do so, on the condition that the slave should be conveyed to him. A notarial transfer of the slave, was made to Weld by Howard, acting in the name of his firm, on the 22d day of the same month, in which the price is stated to be $1800. The slave was at that time in the possession of the plaintiff, and has so continued ever since.

Hunt & Howard became embarrassed in their affairs, in May, 1839, and, on the 18th of that month, two days after the transfer under private signature, gave the management of their business to Underhill, one of the witnesses, who states that they were not then insolvent, but that their stock on hand and outstanding-claims were sufficient to pay their debts. Weld was a creditor of Hunt SfHow* ard at that time, for about $2000, on an open account, and his book-keeper states that this account was credited with the price of the slave. In addition to this, goods were turned over to the plaintiff about the date of the first sale, to an amount nearly sufficient, as was then supposed, to extinguish the indebtedness of Hunt Sf Howard, independently of the price of the slave. The account, however, was not then credited with their value. These goods were shipped off and sold, and produced $900. It is to be inferred from the acts of the parties that they intended that a credit should be given only for the nett proceeds of the merchandize delivered to the plaintiff, for we find that no credit was given at the time of delivery, and that, a year or two after these transactions, Howard set up a claim to the slave, on the ground that Weld's account had been extinguished by the price of the goods. Weld insisted that a balance remained due to him, the articles having produced less than their supposed value at the date of the delivery. Howard presented a bill to the jfiaintiff for payment, which the latter consented to pay on condition that Hunt & Howard should relinquish all claim to the slave, and that the plaintiff should abandon all further claim against them. Upon these terms final discharges were exchanged between the parties. The testimony of the witnesses can be reconciled on no other hypothesis than that the two transfers of the slave, the first under private signature and the second by pitblic act, had two objects in view, the one to secure the claim of the plaintiff against Hunt & Howard, and the other to indemnify him against the consequences of his suretyship on the bail bond. The dates of the acts themselves, taken in connection with the testimony, support this view of the transaction. The first was passed a month before the arrest, at a time when Hunt & Howard were largely indebted to the plaintiff, and when the proceedings of Peters & Millard could have been foreseen. The second was passed after the arrest. Merchandize had been transferred in part payment of the plaintiff’s claim, about the date of the private act, and previous to the arrest. The parties evidently considered that these goods and the price of the slave were more than adequate to extinguish the account of the plaintiff, and that a surplus would remain sufficient to indemnify the plaintiff against his liability on the bail bond. Later, when the goods were disposed of, the parties themselves considered that their proceeds, as well as the price of the slave, were necessary to balance their accounts, and exchanged receipts, each relinquishing all further claim against the other. The transaction appears from all the evidence to have been real, and not a simulation. It was based upon considerations which passed between the parties. Possession accompanied the transfer of the property, which had been open and uninterrupted for more than six years previous to the seizure made by the defendants. It has been repeatedly held that a judgment creditor cannot treat such a conveyance made by his debtor as null, and seize the property so conveyed to the hands of the purchaser. Pie must bring a direct action to annul the contract. 3 La. 479. 2 La. 214. When the act is a mere simulation, the party will not be driven to revocatory action; but such does not appear to have been the character of the act under consideration. Cam-maclc v. Watson, ante p. 132. If the present suit is to be considered as being in the nature of a revocatory action, under the pleadings and evidence adduced, it has been prescribed by the lapse of the time within which such actions may be instituted.

The testimony of Howard was rejected by the court below, on the ground that, as a debtor of Peters & Millard, he was interested in rendering the slave liable for their judgment. His depositions however were taken in writing, to be used in this court if deemed admissible. We think it results from the declarations of the witness himself, that there is a balance of interest. If the cause be decided in favor of the defendants, it is toue that the value of the slave will be applied to the payment of his debt to them; but, in that event, he will remain the debtor of the plaintiff, to whom he admitted himself to be indebted when acquittances were exchanged, some time after tire sales. We think the judge erred in excluding this testimony, and we have treated it as before us, when considering the evidence in the cause.

It is urged that the slave belonged to the partnership of Hunt & Howard, and that Howard could only validly alienate his undivided half. It is true that when a commercial firm purchases immovables the partners become the joint owners of the property, and that it cannot be alienated by one of the members without the consent of his co-partners. It appears clearly from the evidence that Hunt subsequently approved and ratified the act. He was in the city some time after the sale, when he saw the slave in the possession of the plaintiff. His attention was specially called to the fact that the plaintiff .had the slave in possession, and declared that he was owner of him. He evidently knew of the sale and of the considerations for which it had been made; and those considerations accrued to the benefit of the partnership. In the case of Thomas v. Scott, 3 Rob. 526, receiving a part of the price of real estate belonging to the partnership, which had been sold by one of the partners, was held to be a ratification of the sale.

It is therefore ordered that the judgment of the Commercial Court be reversed. It is further decreed that the plaintiff be the owner of the slave Madison named in his petition,, that he be quieted in his ownership and possession of the same, and that the injunction issued in this cause be perpetuated. It is further ordered that the defendant pay the costs of both courts.


author: Rost. J.

text:
    Egerton v. The Third Municipality of New Orleans.
    Taxes due to a municipal corporation cannot bo seized under execution by a creditor of the corporation. Such a right would involve the power to destroy the corporation itself, and be repugnant to the letter and spirit of the constitution, authorizing the creation of such corporations for the preservation of public order.
    Where positive enactments of the Civil Code are at variance with the definitions which it contains, the latter must be considered as modified by the clear intent of the former.
    Article 637 of the Code of Practice, which authorizes the seizure under execution of " all sums of money which may be due to the debtor in whatsoever right,” must be understood as referring exclusively to that class of rights defined and protected by the constitution as the rights of property. Taxes imposed for the protection of those rights, form no part of them.
    APPEAL from the Third District Court of New Orleans, Kennedy, J'.

      Mott, for the appellant.
    A municipal corporation is a private corporation. Civil Code, arts. 421, 422. Judgment against a State may be executed by seizing taxes due to it. Const. U. S. art. 3, sec. 2. Bank of U. S. v. Hal-stead, 1 Wheaton, 50, 51, 66. The right to seize the taxes cannot defeat the object contemplated by the constitution in creating the corporation; the seizure of taxes cannot destroy the corporation — it can only create a necessity for additional taxation. Whenever a judgment orders the payment of a sum of money, the property, real and personal, and rights and credits of the debtor may be seized and sold to satisfy the same (Code of Pract. arts. 641, 642); and a third person may be cited to answer under oath what sum he owes the defendant, and be compelled to pay over the amount in satisfaction of the execution. •Statute 20th March, 1839.

      Barthe, Buisson and Carter, on the same side.

      Grailhe, for the defendants.
    The Third Municipality of. New Orleans is a political corporation. Civil Code, art. 420. The taxes imposed by the Municipality are public imposts. The essential characteristics of a public impost are: 1st. Its being imposed by public authority. 2d. Its having for its exclusive object, the security and protection of the property and social rights of the community. “Les revenus de Vétat sont une portion que chaqué citoyen dome de son bien pour avoir la sureté de Vautre, on pour en jouir agréablement. Montesquieu, Espr. des Lois, b. 13, ch. 1. The municipal taxes cannot be seized under execution — they are inviolable. The product of such taxes is not susceptible of private ownership, having been consecrated .in advance to public uses. The legislature, in creating the Municipality, intended to secure to it the essential conditions of its existence. The power of taxation is the most essential of these conditions. The product of the taxes is the principle of life, indispensable to the existence of the municipal administration. The sovereign alone has authority to dissolve a political corporation. The revenues of the three Municipalities of New Orleans, are the pledge of the creditor’s of the former city corporation, and cannot, for this reason, be seized. Statute of 1836. Articles 642, 647 of the Code of Practice authorize only the seizure of civil rights — not rights of sovereignty. The provision of art. 647 authorizing the seizure of “ all sums of money which may be due to the debtor, in whatsoever right,” must be understood as confined to sums due in virtue of a civil contract, or in consequence of some fact giving rise to a civil obligation. The tax-payer is not the debtor of the Municipality, for he receives an equivalent for the tax Protection &c. afforded to him by the municipal government;' nor is the Municipality a creditor, since it receives the amount only to expend for the pub-jjc |jene(}(:) anij not £0 appropriate for its own use. The municipal authorities are but administrators of the public funds. The relation existing between the corporation and the tax-payer not being that of creditor and debtor, the sum representing the lax is not one subjected to seizure by art. 647 of the Code of Practice ; nor does the 13th sect, of the act of 1839 authorize its seizure. See the case of Claiborne v. Police Jury, 7 Martin, 4.
   The judgment of the court was pronounced by

Rost. J.

The plaintiff, who is a judgment creditor of Municipality No. 3, availing himself of the provisions of the act of 1839, made many of the taxpayers of the Municipality garnishees under his execution, and propounded interrogatories to them to ascertain the extent of their indebtedness for city taxes. The defendants obtained an injunction, on the ground that taxes are not liable to seizure under execution. The plaintiff joined issue on that allegation, and judgment having been rendered against Mm in the court below, he appealed.

We concur with the plaintiff’s counsel that, the issue in this case is exclusively a question of law. We dismiss, therefore, from our consideration all questions of expediency, which it may be supposed to present.

In the case of M’Culloch v. The State of Maryland, Judge Marshall, said : “ A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal Code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that, only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.” From the peculiar relation of the government of the United States towards the State government, much diversity of opinion may exist with regard to the application of those principles in the construction of the constitution of the United States ; but there can be no difference of opinion on the subject in question, involving the consideration of the constitution and government of a State, where no question is involved of positive or implied constitutional inhibition. The light thrown upon the theory of government by the opinion of the court in that case, will guide us in this inquhy.

Constitutions are but the frame of social organization; they define the objects of government, and establish the great powers which the people intend to be permanent; but the establishment of the subordinate powers, which it is expedient to alter, modify or change, according to the varying necessities of each epoch, as well as the best means of carrying into effect, at different times, many of the permanent powers established, are left to the wisdom and discretion of the legislative department. The institution which provides for the police of neighborhoods, for facilities of transportation and of travel, and for the local government of towns, are instances of the exercise of one class of those subsidiary powers by the legislature. The paternal power, the marital power, the power of the master over the apprentice or the slave, may be viewed as instances of another class. These institutions and many others are essential to the preservation of the rights of life, liberty and property, for which constitutions purport to be established; and the legislative enactments by which they are created and brought into action, constitute a part of those laws for the preservation of public order, from the force and obligation of which individuals cannot derogate f , . . „ _ , 8 „ „ B by their conventions. Civil Code, art. 11. The institution of town corporations for government purposes, is as ancient as civilization itself. “ De quelque maniere qu’un état ait eu son origine et qu’on ait commence de b&tir des villes,” says Domat, “ ceux qui s’y sont assembles n’ont pu le faire, qu’en s’unissant par une police réglát toutes les commodités publiques.” Domat, L. C. p. 106.

But it is a remarkable fact, and one that belongs to the cause, that the people of Louisiana, in convention assembled, have twice considered the local government of this great metropolis as too important to be placed among those subordinate institutions, and have recognized the city of New Orleans, in its corporate capacity, as entitled to peculiar political powers and privileges. The right of the citizens of the city of New Orleans to appoint the several public officers necessary for the administration of the police of the said city, pursuant to the mode of election which shall he prescribed by the legislature, and the right of the officers thus appointed to be commissioned as justices of the peace, and to exercise such criminal jurisdiction for the punishment of minor crimes and offen-ces as the legislature may vest in them, are secured and rendered permanent by art. 128 of the State constitution. Those political franchises stand upon the same ground as any other constitutional power, and the city of New Orleans and its officers are, for purposes of police and good order and for the punishment of minor crimes and offences, permanent functionaries of government.

The counsel for the plaintiff derides the idea that the defendants are invested with sovereign powers. Names cannot alter things. Under our form of polity, no department of the government exercises the powers of sovereignty in its own right. The constitutional powers of the State are all trusts. The powers of the legislature, of this court, and of the city of New Orleans, differ in degree and object, but they all derive their binding force from the suprome law of the State. The only difference in relation to them is, that , the legislature cannot change or modify the organization of the Supreme Court, or its own, and that it may change or modify the charter of the city, the provision in the constitution going no farther than to recognize as permanent: 1st. Its corporate organization : 2d. The right of the citizens thereof to elect the officers of the corporation : 3d. The right of those officers to be commissioned as justices of the peace, and to exercise the criminal jurisdiction already adverted to. It has been argued that the defendants are not a civil or political corporation, under the definition given by the Civil Code. We have already shown that the constitution vests them with that character. The definition relied on from the English side of one of the articles of the Code, proves nothing but the ignorance of the person who translated it from the French. Definitions are, at best, unsafe guides in the administration of justice ; and their frequent recurrence in the Louisiana Code, is the greatest defect in that body of laws. In the case of .Ellis v. Prevost and others, 13 La. 230, the former Supreme Court said that, the statutory provisions of the Code were often at variance with the definitions it contains, and that, in those cases, it was a sound rule of interpretation to consider the definitions as limited or modified by the clear intent of the positive enactments. This case shows the necessity of the rule.

The city of New Orleans is a public corporation, clothed by the constitution with many important powers of government; and, as the revenue is the essential engine by which the means .of answering its exigencies must be procured, the power of procuring that article in its full extent must necessarily be com-Prehen<3ed in that of providing for those exigencies. “ Money is with propriety considered as the vital principle of the body politic; as that which sustains j(.g j¡fe an(j m0ti0n, an(j enables it to perform its most essential functions. A complete power, therefore, to procure a regular and adequate supply of revenue, as far as the resources of the community will permit, may be regarded as an indispensable ingredient in every constitution.” Federalist, p. 112,117, od. 1845.

Under this view of the subject, the legislature, carrying out the intention of the framers of the constitution, has enabled the defendants to procure a permanent and regular supply of money by taxation. This power to tax must therefore be considered as if derived from, the constitution.

The counsel for the plaintiff argues that this is immaterial; that the State itself may be sued in the United States courts, and, if condemned, is liable to execution ; that the marshal, in executing the judgment, has a right to seize in the hands of individuals, the amounts due by them for State taxes. We were not prepared to hear such an argument seriously urged at this bar. If the facts upon which it rests were true, it would be a sufficient answer that, the finances of a State form no part of its public domain. Taxes and national subsidies of all kinds do not originate in the right of property; they are all essentially attached to sovereignty, and cannot be be separated from public power; they form part of the eminent domain of the sovereign. 3 Toullier, p. 17.

“ L’empire, qui est le partage du souverain, ne renferme aucune idée de dó-mame proprement dit. II consiste uniquement dans la puissance de gouverner. 11 ne donne ¡L l’Etat sur les biens des citoyens que le droit de régler l’usage de ces biens, le pouvoir de disposer de ces biens pour des objets d’utilité publique, la faculté de lever des impósts sur les mémes biens. Ces différents droits reunís formont ce que Grotius, Puífendorf, et autres appellent le domains eminent du souverain, mots dont le vrai sens, développé par ces auteurs, ne suppose aucun droit de propriété, et n’est relatif qu’á des prerogatives inseparables de la puissunce publique. Nous convenons que l’Etat ne pourrait subsister s’il n’avait les moyens de pourvoir aux frais de son gouvernement; mais, en se procurant ces moyens par la levée des subsides, le souverain n’exerce point un droit de propriété; il n’exerce qu’un simple pouvoir d’administration.” Por-talis, Exposé des Motifs, in Locré, vol. 8, p. 153, 155.

The taxes of the State are inherent to its sovereignty, and never can bo seized.

Another counsel has argued that, admitting that the State taxes are not liable to seizure, it is otherwise with respect to those imposed by the Municipalities of this city; but the reasons alleged in support of the distinction, have failed to convince us. There is no difference in the nature of the two taxes. “ Public order and the common good of a State require two kinds of expenses : the first is that which concerns the whole State, and the second, the expenses necessary lor the police and good government of cities. It is for these two kinds of expenses, that there are two kinds of public contributions. The first is imposed and collected by the sovereign and his officers ; the second, by the officers of town corporations.” Domat, 2 pt. tit. 5, sect. 1, no. 5. Domat makes no distinction between the two, and as the taxing power of the Municipalities is derived from as high an authority as that of the corporations of which he speaks, no distinction can be made here.

It must be conceded that the right of the Municipalities to impose and collect taxes, is not derived from any right of ownership in the property taxed. If their title to the taxes does not originate in private right, it must necessarily be deduced from public power ; and, being so deduced, the taxes are a constituent part and a necessary ingredient of that power-, no more liable to seizure than the whole power itself would be. Article 647 of the Code of Practice, in authorizing the seizure of sums of money due the judgment debtor, in whatsoever right, must be understood as having exclusive reference to that class of rights, defined and protected by the constitution as rights of property. The taxes imposed for the protection of those rights, form no part of them. Any other interpretation of that article would be destructive of public order, and inconsistent with the very idea of government. The principle, that under the American constitutions, no power or individual possesses directly or indirectly such an overruling influence over other powers, as would enable it or him to stop their functions, and thus to disorganize the government, is an axiom — a self-evident proposition. Federalist, p. 199.

In the case of M'Culloch v. The State of Maryland, already cited, the court held that, the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; and that there would be a plain repugnance in conferring on one government a power to control the constitutional measures of another. We have nothing to do with the question, whether the establishment of a bank was a constitutional measure ; but, tailing the facts as stated by the court, their argument is unanswerable; and, by parity of reasoning, it is equally true that the power to seize the tax in this case, involves the power to destroy the corporation; that the power to destroy the corporation, may defeat and render useless the power to establish it; and that there would have been a plain repugnance in conferring on any individual the right to arrest, or impede, the action of a constitutional power, in the func-v tion of government.

The power to create the corporation of the city of New Orleans, for purposes of local government, involves the power to preserve and protect it; but that protection would be unavailing if it could be deprived of the regular supply of means, without which it cannot work its task. For all useful and practical purposes, the exercise of the right claimed would, in the present embarrassed condition of the Municipalities, as effectually abrogate their charters, as if they had been repealed by law. We conceive such a state of things to be repugnant to the letter and spirit of the constitution.

It is urged that the defendants cannot avail themselves of the privileges of public power', because they may be sued, and that sueing them would be doing a vain thing, if, in default of any other property, their taxes cannot be seized under the judgment obtained against them. We all know that judges and governors may also be sued notwithstanding the political powers they exercise, and, although their salaries may be their only means of paying their debts, those salaries are not liable to seizure. It is true that out of superabundant caution our Codes make special provision in relation to salaries of office, but the same rule prevailed before upon general principles.

The taxes iu this case were seized in the hands of the corporators, aftet* their assessment and before their collection. The attributes of the taxing power, as may be seen in every English statute on the subject of taxation, are, the imposing, levying, collecting, receiving and taking of the tax; the collecting and receiving are as much part of that power, as the levying and imposing. The power would be precarious otherwise; and, as the plaintiff admits that he had no Power impose and levy the tax, it necessarily follows that he could not lawfully colled and receive it ,* so that, if oven the tax was liable to seizure, it cou](j onjy j,e geized in the coffers of the treasurer after its collection; but, to put an end to litigation on this important subject, we have thought it best to give our opinion on the whole issue submitted to us, and to state at large the reasons on which it is founded.

It is contended that, if the Municipalities cannot pay their just debts they ought to be broken up, and their powers entrusted to safer hands. Whether it be an ascertained fact that, those corporations, as at present organized, cannot be safely trusted with power or with money, is a question we are not competent to determine. But it is very evident that the convention assembled last year thought otherwise. The acts of the Municipalities and their indebtedness were known to them, and, with that knowledge, the convention made no change in their organization, and gave their officers additional political powers. There is no warrant of law to justify the seizure in this case, and, as none existed at the time the debt sued on was contracted, the credit given to the defendants could not have rested upon the belief that their taxes were liable in execution.

It is not without much reflection that we have been able to concur in the decree about to be rendered in this case. On the first view of this question there is something very repugnant to the moral sense, in the idea that a municipal corporation should contract debts, and that, having no resources but the taxes which are due to it, these should not be subjected by legal process to the satisfaction of its creditors. This consideration, deduced from the principles of moral duty, has only given way to the more enlarged contemplation of the great and paramount interests of public order and the principles of government. Although the enforcement of payment may now be beyond the power of the judiciary, the subject will, no doubt, be deemed worthy of occupying the wisdom and sense of justice of the legislature. Judgment affirmed.


text:
    Gilmore et al. v. Brenham et al.
    IN this case, and in nine others instituted by different plaintiffs against the same defendants, and brought up from the Commercial Court of New Orleans, the issue made, and evidence adduced, being the same as in the case of Hefferman v. Brenham, ante p. 146, the same judgtnent was pronounced as in that case.


text:
    Jones et al. v. Crocker.
    Where a purchaser at a judicial sale of the property of minors, fails to pay the price, the latter may sue for a dissolution of tlie sale. O. C. 2595, 2586, 2539.
    Actions to rescind sales on account of the non-payment of the price, are prescribed only by the lapse of ten years. Arts. 1989, 3446, 3453 of the Civil Code are not applicable to such actions.
    APPEAL from the District Court of the First District, Buchanan, J.

      Benjamin and Micou, for the appellants,
    The principle governing the ease of Lalanne’s Heirs v. Moreau, 13 La. 437, applies only to purchasers in good faith. It will not protect a party to the proceedings, cognizant of the fraud. Judicial proceedings, used to cover illegal acts, cannot protect the parties or privies. Fennessyv. Gonsoulin, 11 La. 424. Minors may sue for then-property illegally alienated, or for its price. Harty v. Harty, 2 La. 520. The prescription of five year’s cures only informalities. Stat. 10 March, 1836, s. 4, Sess. Acts, p. 123.

      H. H. Strawbridge, for the defendant,
    contended that he was not in bad faith, and that the action was prescribed, citing Civ. Code, arts. 1989, 3446, 3453.
   The judgment of the court was pronounced by

Rost, J.

The petition alleges that Michael Jones, their father and tutor by nature, caused a town lot forming part of the community property between him and Sarah Roberts, his late wife, and the mother of the petitioners, who are his only heirs, .to be sold at probate sale, after the usual formalities of law, sometime in the year 1837, under the pretence that said s¿le was necessary to pay the debts of the community ; that the defendant became the purchaser for the price of $10,000 ; that, at the time of the death of their mother, which occurred in December, 1830, the community owed no debts; that tho mortgages existing on the property at the time of the sale, were for debts contracted by Michael Jones, after the death of his wife, for which debts they are not responsible. The petition further alleges that the defendant is not a purchaser in good faith; that he has retained possession of the property, and enjoyed the rents and revenues thereof, and has paid no part of the price. It concludes with a prayer that, the defendant be condemned to restore to the petitioners one undivided half of the lot, with their shares of the rents thereof. The answer of the defendant is a general denial, and an averment that he holds the property by a good and sufficient title, viz: the adjudication mentioned in the petition, made on the 27th of September, 1837. The court below dismissed the plaintiffs’ action, and they appealed. Art. 2595 of the Civil Code provides that judicial sales are subject to the rules previously laid down for public sales in general. One of the rules laid down for public sales in general is, that, after the adjudication, the contract is subjected to the same rules which govern the ordinary contract of sales. Ibid. art. 2586. One of the rules which govern the ordinary contract of sale is that, if the buyer docs not pay the price the seller may sue for a dissolution of the sale. Ibid. art. 2539. “It is clear,” said the judge of the court below iu his opinion, “ that the defendant had not made payment, according to the terms of his adjudication, on the 16th of June next following the sale; for on that day there was a settlement of accounts between the parties, and an agreement that the tutor of the plaintiffs might redeem the property by paying the balance he owed the defendant, in five years, without interest. This agreement, so far as it concerns tho interest of the minors, was a mere nullity. The next evidence applicable to this part of the case is, the sale by authentic act before Pollock, on the 4th of June, 1840, in which the tutor of the plaintiffs, after reciting the adjudication, acknowledges to have received from the defendant the entire price in partial sums, from time to time paid since the date of the adjudication, to enable the tutor to extinguish encumbrances on the property. This, again, is a mere nullity, as regards the interest of the plaintiffs in the property.”

We concur with these views. The defendant was a member of the first family-meeting, who advised the sale of the property for the payment of the community debts. He had full knowledge of the rights of the plaintiffs in that property, and was one of those who caused it to be sold for a specific purpose. He cannot now divert the proceeds of the sale from that purpose, to apply them to the payment of debts due by Michael Jones individually to him. If the defendant has paid debts for which the plaintiffs were liable, it was incumbent upon him to prove that fact; but as the death of Sarah Roberts is not satisfactorily shown to have occurred previous to the dates of the encumbrances which he avers he extinguished, it is not made certain that a single debt of the community has been paid. If it had debts, as represented by the family-meeting in which the defendant sat, the plaintiffs are now responsible for them; and whether it be for the benefit of themselves or their creditors, they have against the defendant a. clear i-ight of action for one half of the price of the property. This the court below fully admitted ; but the judge did not joerceive that, with the right to sue for the price, the law has given another which sellers are at liberty to select in all cases — that of suing for the dissolution of the sale under the dispositions of the articles already cited. This the plaintiffs have done, in praying that the undivided half of the lot should be restored to them, on account of the non-payment of the price by the defendant; and the evidence satisfactorily establishes their right.

In suits like the present, the law gives us power to grant to the buyer of immovable property, a delay not exceeding six months to pay the price, when justice requires such a course; but from the conduct of the defendant after the sale, we do not consider him to have been in good faith, and there would be no justification for the exercise of that discretion in his behalf.

The prescription of five years has been pleaded by the defendant, under arts. 1989, 3446 and 3453 of the Civil Code. Those articles are not applicable to actions for the dissolution of sales on account of the non-payment of the price. These actions are prescribed by the lapse of ten years only.

The plaintiffs are entitled to one undivided half of the lot in controversy, and, on account of the insufficiency of proof in relation to other claims which the parties may have against each other, we will enter a decree in favor of the plaintiffs for that portion of their demand, reserving to them and to the defendant respectively, all rights not finally adjudicated upon, which they may have against each other.

For the reasons assigned, it is ordered that the judgment of the District Court be reversed, l't is further ordered, that the adjudication and probate sale made by the register of wills to the defendant, on the 27th day of September, 1837, of a lot of ground situated in the suburb Annunciation in this city, forming the corner of Levee and Céleste streets, having sixty feet in front on the former street, by one hundred and twenty in depth and front on the other street, together with the improvements thereon, for the price of $10,000, and also, the sale of the property passed by Michael Jones to the defendant, before Carlisle Pollock, a notary public, on the 4th day of June, 1840, be dissolved and set aside, so far as regards the undivided half-interest of the plaintiffs. It is further ordered that the said plaintiffs recover from the defendant one undivided half of the above described lot, buildings and improvements, and the costs in both courts. It is finally ordered, that the rights of the plaintiffs for rents and profits, and those of the defendant on account of taxes paid, or other necessary expenses incurred on said lot, or on account of any monies he may have paid or receipted for in satisfaction of debts due by the community formerly existing between Miohael Jones and Sarah Molerte, be reserved,


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    Hubert v. His Creditors.
    Acts of pledge passed by the cashier of a hank in this State, are not required to be attested by witnesses, nor to be registered in the office of a notary, to have effect against third persons. C. C. 3126.' .
    APPEAL from the Parish Court of New Orleans, Maurian, J.

      Burthe, for the appellants.
    Art. 3126 of the Civil Code confers on cashiers of the banks of this State the powers of notaries in regard to acts of pledge. In the case of .Robinson v. Shelton, 2 Rob. 279, the court held that the authority given by law to cashiers of banks to execute acts of pledge, confers on them only the powers of a notary in relation to those contracts, and that none of the essential forms can be dispensed with. Art. 3126 authorizes cashiers to execute authentic acts, but art. 2231 requires every authentic act to be executed in the presence of two witnesses. The two articles are not inconsistent.

      Grima, contrd,

    contended that acts of pledge passed before the cashiers in favor of the banks of this State, must be considered as acts under private signature ; that acts of pledge sous seing privé are not required to be executed in the presence of two witnesses; and that acts of pledge passed before the cashiers of banks, if executed in conformity to acts 3125, 3126, are valid.
   The judgment of the court was pronounced by

King, J.

The syndic of Hubert’s creditors presented a tableau of distribution of the insolvent’s estate, in which he credited the Louisiana State Bank with $1000, to be paid by privilege and preference over other creditors, out of the proceeds of twelve shares of the stock of the bank, which had been pledged to secure the debt. Andry and others, who are creditors of the insolvent, in consequence of having paid a debt due by him to the United States, for which a judgment had been obtained, claim to be subrogated to the rights of the United States, and to be paid by preference over all other creditors. They opposed various items in the tableau, and among others the privilege allowed to the Louisiana State Bank, alleging that the act of pledge under which it is claimed, is void for the want of proper forms. Bjr the proposed distribution, the entire estate of the insolvent was absorbed by debts due by privilege and mortgage, entitled to a preference over that of the opponents. Most of the former were reduced by consent in the court below, leaving a residue to be applied to the claim of the opposing creditors, but insufficient to satisfy it. Effect however was given to the pledge in favor of the bank, and the privilege resulting from it allowed. Of this the appellants complain. The only question therefore presented is, as to the legality and effect of the act of pledge, under which the privilege was given.

The act was passed by the cashier of the bank, is not attested by witnesses, and has not been registered in the office of a notary. The appellants contend that the article of the Code which authorizes cashiers to pass acts of pledge, confers on them notarial powers for that purpose, and that their acts must be clothed with all the forms of authentic acts. The 3125th article of the Code provides that, the privilege resulting from a pledge shall only take effect against third persons, when the pawn is proved by an act, either in public form or under private signature; provided that, in the latter event, it be duly registered in the office of a notary. The succeeding article establishes an exception in favor of the banks of the State, and makes' acts of pledge passed by their cashiers authentic proof, when they contain the required certainty of description of the object given in pledge. Civ. Code, art. 3126. This article confers no notarial powers. Its object is to dispense with a public act, and with the registry of private acts of pledge passed by cashiers to give them effect in favor of banks against third persons. Such acts when passed by cashiers are private acts in their form, to whose validity the attestation of witnesses is not essential; but against third persons they produce the effect of public instruments, without registry.

We do not understand that this interpretation conflicts with the decision in the case of Robinson's syndic v. Shelton, 2 Rob. 279, relied on by the appellants. The act of pledge was not held in that case to be void, because it was passed by the cashier unassisted by witnesses. Its invalidity was expressly put upon the ground that, the obligation pledged was not indorsed by the pledgor, and was not shown to have been placed in the possession of the pledgees.

The judge did not, in our opinion, err in allowing a privilege to the bank on the stock pledged. - Judgment affirmed.

       Slidell, J., having been oí counsel in this case, did not sit on its trial.