author: Taliareuro, J.

text:
    No. 2665.

    Samuel M. Davis v. Henry C. Thomas—Catlin, Intervenor.
    A leased a plantation in the parisli of Concordia to B for a fixed amount as the rent for one year. In the month, of May tho lessee sold to a third party all the work animals, curts, plantation supplies, etc. In the month of June following, tho lessor caused them 1> bo provisionally seized on affidavit showing that tho third purchaser was about to remove them off the place, and defeat liis- lien thereon lor tho payment of tho rent. Tho third party, who had purchased tho property from the lessee after the lease had been given, intervened, and claimed the ownership of tho personal property which had boon seized at tho suit of the lessor.
    Held — That the privilege of tho lessor for the payment of the rent having attached to the work animals, agricultural implements, etc., before tho sale by tho lessee to the intervenor, ho could not, although lie was the owner, defeat the seizure; further, that it not being made out clearly that tho sale was genuine and that tho intervenor was tho real -owner of the property, ho could not be adjudged to be entitled to tho residpum after paying the lien thereon.
    Appeal from the Thirteenth Judicial District Court, parish of Concordia.

      Hough, J. W. Tí. Spencer, curator ad lioc, for plaintiff and appellee.

      A. W. & H. Ogden and Farrar & Beeves, for intervenor and appellant.
   Taliareuro, J.

The plaintiff, by his agent Smith, leased a plantation to the defendant for' the year .1867 for $7000. The contract was entered into on tho fifteenth of January, 1867. On the eleventh of May following, Thomas sold to Catlin all the work animals, agricultural implements, carts, plantation supx>lies, etc. In consideration whereof Catlin bound himself to furnish from time to time, as they might be needed, the supplies necessary for carrying on the cultivation during tlie lease. And for tlie further consideration of the one-third part of tlie proceeds of tlie crop, after deducting all expenses, Catlin was obligated to devote liis time to the management and supervision of the plantation. On tlie third of June succeeding this agreement between' Thomas and Catlin, Smith, tlie plaintiff’s agent, took out a. provisional seizure upon ail affidavit that lie believed Thomas was about to run off from tlie place all the personal property on the plantation subject to his lien and privilege, and dispose of it for his own .benefit. A seizure was made of all the property claimed as subject to tlie plaintiff’s lien, and it was appraised by tlie sheriff’s inventory at $9330. On tbo third of July Catlin filed his intervention. A curator ad hoe was appointed to represent the pilaintiff, and one to represent the defendant. Thomas, the, defendant, by liis curator answered on the twenty-ninth of November, 1867. The litigation was pirotracted. The curator apipointed for the pilaintiff filed his answer to the intervention in October, 1809. The stock, mules, oxen, etc., expensive to keep, were sold under an order of court in January, 3863, and. the proceeds held subject to tlie decision of tlio case.

The plaintiff had judgment against the defendant for $7000, with five pier cent, interest from fifteenth November, 1807, with recognition of privilege upon tlie personal property (or its proceeds) seized under tlie writ. Tlio intervenor’s claims wore rejected and liis intervention-dismissed. The court reserved to him the right to set upi in a direct action against tlio pilaintiff any claims he may have against him in damages arising from the provisional seizure of tlio property.

The intervenor lias appealed. There are numerous bills of exception in tlie record, which in a decision of this case wo do not consider-it impiortant to examine. We see no error in the judgment. The property which tlio intervenor claims to have purchased from Thomas,, the plaintiff’s lessee, was clearly the property of Thomas, and placed by him on tlie leased premises before the time at which the intervenor alleges lie purchased from him. Tlie intervenor’s ownership of the-property, as against the plaintiff, was not made out to the satisfaction of the judge a quo. But if lie became the owner, it is clear that lie-became so after the lessor’s privilege had attached. There was no-contract of any kind between tlie pilaintiff and the intervenor. The latter could not opiposo tlie exorcise by the former of his privilegeupion the property seized. Tlie intervenor’s pretension to tlie right of setting up damages lie alleges he has sustained by tbe acts of the. lessor, in compensation of tlie rent due tlio lessor by the defendant, we do not consider well founded. This being the chief ground upion which, he intervened, we think the court properly disregarded liis claims.

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


source: Caselaw Access Project

author: Howe, J.

license: Public Domain

text:
    No. 3113.
    John B. Pittman v. C. C. Obercamp—A. A. Maginnis, Intervenor. R. R. Barrow, Warrantor.
    It. It. Barrow owned a tract of land near tlio town of Donaldsonville, in Louisiana, known as the Winter Plantation. In 1862 lie executed a mortgage on tlie entire tract in favor of Maginnis, with the pact de non alienando contained therein. In 1868 lie sold thirty arpents of the tract lying contiguous to tlie town of Donaldsonville to one Pittman. Subsequent •to this sale, Maginnis had caused his mortgage ¿o be foreclosed, and had bought the entire tract at sheriff’s sale.
    Pittman now brings suit for the thirty arpents which he had lately purchased from Barrow, which is contained in the Winter tract, against the possessor, who disclaims title in himself, blit avers that ho holds possession under a lease from Maginnis. Maginnis intervened, and asserted title to tho entire tract under his x»urchaso at sheriff’s sale. Tlie evidence shows that the thirty arpents sold by Barrow after ho had executed the mortgage to Maginnis with the pact de non alienando therein contained, was included in the tract known as the Winter Plantation, which was covered by the mortgage.
    Held — That tho sale by Barrow after the mortgage was given, with the pact de -non alienando, of a portion of the land mortgaged, was a nullity, so far as the mortgage was concerned; that the subsequent salo for tho benefit of the mortgage creditor of the entire tract, without reference to the sale made of a part thereof by Barrow, conveyed the title to the purchaser to the whole tract; that tho purchaser from Barrow after the mortgage had been given, acquired no title whatever as against the mortgage creditor to that portion of the tract conveyed by Barrow subsequent to tlio act of mortgage which contained the pact de non alienando.

    Appeal from tho Fourth Judicial District Court, parish of Ascension.

      Beauvais, J. 0. 0. Belcher, for plaintiff and appellant.

      II. H. Sims, for intervenor and appellee.
   Howe, J.

The plaintiff commenced this suit against the defendant, Obercamp, claiming a tract of land of about thirty arpents, adjoining tho town of Donaldsonville, in virtue of a sale from R. R. Barrow, of May 27, 1868.

Tho defendant, disclaiming title, alleged that he held the land by a lease from Maginnis. Maginnis intervened, asserting title to tho tract by purchase at sheriff’s sale of the “ Winter Plantation,” in which it was included, which sale was made June 9, 1868, in enforcement of a mortgage made by R. R. Barrow to Maginnis in 1862. He asked for damages against plaintiff for slandering his title to the tract in controversy, but as none were given by the judgment in Ms favor upon the question of title, and lie does not ask for any amendment of the judgment, we apprehend that the questions raised by appellants as to this branch of the case do not require to be passed upon.

The plaintiff, Pittman, answered the intervention, setting up title under the act of sale from Barrow of May 27-, 1868, and called his vendor in warranty. Barrow answered tho call in warranty, alleged that Pittman was in possession of tlie property in dispute; excepted for this reason to the right of Maginnis to claim damages for slander of title, and recited the sale to Pittman of May, 1868. He alleged, in substance, that tlie land in dispute had been separated from the Winter Plantation before he mortgaged the same td Maginnis, and was not included in the mortgage and sheriff’s sale to the'latter; that it had been laid out as an “addition” to the town of Donaldsonville, as appeared by his act of sale to Pittman; that a plan thereof, divided into squares and lots, had been deposited iu the office of the parish recorder, and that the tract in question had not formed a part of the Winter Plantation since 1850. He further recited the act of mortgage to Maginnis of 1862, and reiterated his averment that it did not include tlie property in dispute.

Tile acc of sale from Barrow to Pittman of May 27, 1868, conveys tlie property by the following description: “ All of the squares and lots standing in tlie name of said Barrow contained between the lines expressed on a plot or survey called “Barrow’s Additions,” made by Talarían Sulakowsld, civil engineer, as intended to indicate the addition made by said R. R. Barrow to the town of Donaldsonville, which plan is on file in tlie office of the recorder of the parish of Ascension. The property herein conveyed being originally a portion of the Deville Plantation of said Barrow (which plantation is now agreed to be sold to A. A. Maginnis at sheriff’s sale to satisfy a mortgage thereon), and is bounded on tlie lower side by tlie upper lino of the aforesaid plantation, or tlie street dividing tlie same, called, for sake of reference, Division street, in frout by the public road on the Bayou Lafourche, in tlie rear by lands of Rightor, and above by the last street of the corporation of the town of Donaldsonville, reference to be made to the charter of tlie town for the name.” * * * *

The mortgage of March 3!, 1862, from Barrow to Maginnis contained the pact of non-alienation, and described the property as follows: “A certain plantation, together with all tlie improvements, etc., situate .in the parish of Ascension, in this State, and known as the ‘Winter Plantation,’ and containing 500 arpents, more or loss, bounded in front by the Bayou Lafourche, on the upper side by Division street and the lands belonging to Rightor, tlie church, Toluey and Philips’ Landing-land, on the lower side by the land of Cabaivé, and in the rear by Yolney and Philips’ Landing land, all of which will appear by reference to tlie anuexed sketch of said plantation.”

Maginnis, who in his intervention had alleged that tlie designation in his title of “Division street,” was an error, “tlie said street never having liad any existence whatever, either of record or (in) fact,” filed a supplemental petition, alleging that said error arose from the designation of said boundary line as “ Division street”- in the act of mortgage, the name “Division street” being used as descriptive of the upper limit of said plantation, and to indicate tlie last street of the town of Donaldsonville on its lower boundary; “ that the name of the said street was at the time of the execution of the aforesaid mortgage, and is now, Claiborne street, and not Division.”

Upon these issues the parties went to trial, and after hearing evidence, tlie judge below rendered judgment in favor of Maginnis,, the intervenor, decreeing him the owner of the land in .dispute, and quieting him in his title thereto. No disposition seems to have been made of the case as to the defendant Obercamp, or as between the plaintiff, Pittman, and his warrantor, Barrow. The plaintiff and the ' warrantor have appealed.

The descrixDtion quoted from the mortgage to the intervenor, Maginnis, covers the land in controversy, and, being repeated in the deed to-him, gives him the better title. In the first place, the thing mortgaged is described as the “Winter Plantation,” which appears to have extended up to and adjoined the town of Donaldsonville, and thus to> have included the tract in dispute, lying between the lower boundary of the town and the imaginary line called by the appellants “ Division street.” In the second place, the quantity of land (500 arpents) corresponds with this inclusion. If the land in dispute were not included, the tract would be less than 430 arpents. In the third place, the plan annexed to the mortgage shows the line thereon called “Division street,” to be immediately adjacent to the town on its south side, with no interval whatever between, and therefore no room for the squares and lots alleged by the appellants to have been laid out and separated from the plantation in 1855 by Sulakowski. The term “ Division street” seems to have meant really the “dividing street,” that is-Claiborne street, dividing the town from the Winter Plantation. The description and its annexed plan, which must be taken together, were sufficient, therefore, to advise the plaintiff that the land up to the line of the town was covered by the mortgage of the intervenor with its-pact of non-alienation, and that no matter how many lots and squares and “ additions” might have been projected by Barrow, the mortgage would cloud them all. We may add that it appears, by testimony admitted without objection, that Sulakowski never made any such plot or survey as that with which he is credited in the act of sale from warrantor to plaintiff, and that Claiborne street, at the date of intervenor’s mortgage, was known generally as the dividing street between the town and the Winter Plantation.

What tho appellants call Division street, is a line marked by some Cherokee roses, and we are informed by a bill of exceptions here insisted on, that upon the trial of the cause the warrantor “ offered to> prove that the tract.of land situated between the Cherokee rose fence and Claiborne'street had formerly been laid out as an addition to the town of Donaldsonville by the owner of the Winter Plantation into squares and lots.” Upon objection, the court refused to permit the proof, and the warrantor excepted.

There are many reasons why this action of the judge, though perhaps founded on an incorrect theory, will furnish no reason for setting aside tlie judgment of intervenor against plaintiff. A vague offer by a party wbo produces neither witness nor document, cau have but little force. The warrantor only made the offer; the warrantor only excepted, and there is no judgment against the warrantor. The judgment is against plaintiff; he did not offer any proof of these alleged facts, and took no exception. It is by no means clear that we can set aside the judgment against Mm, even if the offered proof was improperly rejected. But, furthermore, in strictness the ruling was not such as in itself to require a new trial. The offer was very indefinite, and if permitted, and the proof made, our conclusions would still be the same. Grant that the tract, in the language of the bill, “ had formerly been laid out as an addition to the town of Donaldsonville by the owner of the Winter Plantation into squares and lots,” and the questions still remain unanswered. When was this done? By whom? ■And how can the fact affect the ability of Barrow in 1862 to mortgage the tract to Maginnis. and the real right thus established in favor of Maginnis ?

We think the judgment is correct, so far as it goes, but that, as the appellant requests, the cause should be remanded; but only for proceedings as between plaintiff and warrantor.

It is therefore ordered that the judgment appealed from be affirmed, at appellant’s costs. It is further ordered that the cause, as between the plaintiff and warrantor, be remanded to bo further proceeded with according to law.


author: Wyly, J.

text:
    No. 3128.
    Henry Safford v. Thomas L. Maxwell, Sheriff, and M. F. Soldini.
    A seizure of a judgment or a suit may bo mad© by the sheriff under a writ of fieri facias •without resorting to the circuitous process of garnishment. C. P. 64*2. The act of 1839, authorizing the garnishment process in corbain cases, is only cumulative, and does not interfere with or supersede the regular process of seizure and sale of incorporeal rights under a writ of fieri facias. A writ of injunction will not therefore lie to restrain the sheriff from selling a judgment that has been seized under a writ of fieri facias on the ground that the judgment which has been seized has not boon signed by the judge; nor will it lie because an appeal has been taken from the judgment which has been scizod. The sale of the interest of a party in a judgment may be mado as well at public auction, under the seizure, as by private conventional agreomen b of tho parties.
    Appeal from the Eighth District Court, parish of Orleans.

      O. M. Emerson, Judge of the Third District Court, sitting in place of II. C. Dibble, Judge of the Eighth District Court, absent.

      Randolph, Singleton & JBroivn, for plaintiff and appellee.

      E. Fuselier, for defendant and appellant.
   Wyly, J.

Under a writ of fieri facias, issued by the District Court of the parish of Natchitoches, in the case of Marie Félicie Soldini v. Henry Safford, the sheriff of the parish of Orleans seized on the twenty-fourth of June, 1870, “a certain judgment rendered by the Fourth District Court for the parish of Orleans, in favor of Henry Safford against Daniel R. Carroll, on the sixteenth of June, instant, in the suit entitled ‘Henry Safford v. D. R. Carroll,’ being No. 22,395 of the docket of said court; the said judgment being for the sum. of two thousand and five hundred dollars, with eight per cent per annum interest from the first of January, 1869; together with all the right, title, •claim, interest of said Henry Safford in and to the aforementioned suit No. 22,395.” The seizure was duly notified by notices served on Safford, D. R. Carroll and the clerk of the Fourth District Court.

The sheriff having proceeded to advertise the property for sale, the seized debtor, Henry Safford, sued out and obtained, from the Eighth District Court an injunction, which was made perpetual by a judgment from which this appeal is taken.

The plaintiff contends that the seizure which he enjoins was illegal -on the following grounds, to wit: That the judgment, not having-been signed, was imperfect, and, as a judgment, was not the subject of seizure; that the pretended seizure was made on or before the twenty-fourth June, whereas the judgment was not signed till June twenty-seventh; and that, after signing, the defendant, Carroll, took a suspensive appeal, which is yet pending-; that a judgment, thus suspended by appeal, is but an incorporeal right, in the nature of a claim of debt, and can not be seized under fieri facias, except by process of garnishment, and by propounding interrogatories to the judgment debtor, and then awaiting the decision of the Supremo Court; after which, should the judgment be sustained, the plaintiff (iu fieri facias) would have the right, by virtue of the garnishment, to collect such part thereof as would pay his debt; that the judgment, in its present condition, can not be sold, because no fair or intelligent appraisement can be made, inasmuch as it depends upon the decision' of the Supreme Court whether the claim has any value whatever. It is also averred, that as •a seizure of an interest in a suit, it is void for vagueness, and that the •only mode of seizure of such interest is by nrocess of garnishment, as aforesaid.

We are unable to agree with the counsel of-the plaintiff and with the learned judge who tried the case below, that the seizure of the suit and judgment complained of was illegal, and the only way by which ■a suit or judgment from which an appeal has been taken can be seized is by garnishment nrocess under the act of the twentieth of March, 1839.

That remedy is merely cumulative. Under article 647 of the Code ■of Practice “ the sheriff may seize the rights and credits which belong to the. debtor and all sums of money which may be due him in whatever right, unless it be for alimony or salaries of office.”

In Righter v. Slidell, 9 An. 605, and Hanna v. Bry, 5 An. 656, it was held that the statute of the twentieth of March, 1839, giving an auxiliary and cumulative remedy to the judgment creditor produced no change in articles 642 and 647 of the Code of Practice, and that the proper mode of seizing a debt existing in the form of a judgment is a notification of seizure by the sheriff to the judgment debtor.”

In our opinion, it makes no difference whether the judgment has been completed by the signature of the judge, or whether an appeal has been taken; in either case the suit and the judgment can he seized under a fieri facias by the sheriff by service of the notice of seizure on the plaintiff and defendant in the seized judgment or suit.

There is no reason why a suit may not he seized as well as a judgment under a writ of fieri facias, both being incorporeal rights ; and we see no reason why the transfer may not as well be made at forced sale as at a conventional salo

We see no reason to compel a judgment creditor to resort to the delay of the garnishment process in order to ascertain a credit belonging to his debtor, when evidence of that incorporeal right appears on the public records in the form of a judgment or suit, The object of the garnishment process provided by the act of the twentieth oí March, 1839, was to enable a judgment creditor to reach the property, rights or credits of his debtor in the bauds of third parties, the extent of which might he ascertained by the answers of the garnishee.

We think the property was properly seized iu the case before us, and that the court below erred iu perpetuating the injunction.

It is therefore ordered that the judgment appealed from he reversed and annulled, and that the injunction herein be dissolved. It is further ordered that the defendant, M. F. Soldini, recover judgment against the plaintiff and the surety on his injunction bond, in solido, in the sum of two thousand dollars damages and all costs.


text:
    No. 2053.
    The State v. Peter Cook.
    "What a deceased witness testified on a former trial in a criminal ease may be proved oy a witness wlio was present and hoard the deceased witness testify. The witness giving evidence of what the deceased witness testified to on a former trial must, however, give his evidence from his own recollection. If tlio witness who heard the deceased witness testify on the former trial be the attorney of the accused on both trials, the State, nevertheless, has the right to have his testimony on this point, his recollection of all the important facts testified to by the deceased witness in favor of his client beinff presumed.
    Appeal from the Fifth Judicial District Court, parish of Iberville.
    Posey, J. P. G. Stafford, District Attorney, for the State.

      W-. J3. Robertson, for defendant and appellant.
   Wyly, J.

The defendant having been convicted on an indictment for robbery and sentenced to imx)risonment at hard labor for seven years, has appealed.

Our attention is directed to a bill of exceptions taken by the defendant to tlie ruling of the court in receiving the testimony of E. W. Robertson to prove what was sworn to on a former trial between the same parties on a charge for the same offense by the witness, Mrs. Lizzie Clark, since deceased. The objections to the testimony stated in the bill are:

First — The witness, Robertson, is the only counsel of the defendant, and he would be deprived of counsel while he was on the witness stand.

Second — He would be deprived of his right to meet the witness face to face upon this trial.

Third — Because the witness stated he could not remember the whole of the testimony or all the facts sworn to by the said Mrs. Lizzie Clark, alleged to be dead.

Fourth — Because the witness could not discriminate between all the facts sworn to by the said Mrs. Clark in her testimony in chief and on cross examination, nearly two years having elapsed since the testimony of Mrs. Clark was given, and witness not having taken notes.

The reasons assigned in the bill by the judge in support of his ruling are, viz: “The rule of evidence permitting the introduction of evidence of what was sworn to on a former trial between the same parties by a witness since deceased, would be, in my judgment, of but little importance if it required an infallible memory; the witness can only testify to the best of his recollection. The witness having been of counsel in the former trial and at all times since, able, alert and active in the defense of the prisoner, was rightly considered by the district attorney, I think, as being most of all competent and proper to give the substance of the deceased witness’ testimony; and as his recollection corresponded with that of the district attorney, I am of the opinion that had the witness been living and present at the trial, she would have varied in no material respect from the testimony of Colonel Robertson either in her examination in chief or in her cross examination. Besides it is not likely that the counsel for the prisoner, able and efficient as he is, would have forgotten any important fact in favor of his client, and is too honorable at the same time not to testify just as fully as he could, from his recollection, what she said in favor of the State. Eor these reasons I thought it my duty to overrule the objections of the counsel and to admit the evidence under the authority of the rule.”

We think the court did not orr in receiving the testimony.

What the deceased witness testified at the former trial, it was competent to prove by any person swearing from his own memory; and the recollection of the counsel of the prisoner of all the important facts in favor of his client is presumed to be as good as that of any other person hearing the declarations of the deceased witness.

Mr. Greenleaf, in liis work on evidence, says : li The chief reasons for the exclusion of hearsay evidence are the want of the sanction of an oath and of any opportunity to cross examine the witness. But where the testimony was given under oath in a judicial proceeding in which the adverse litigant was a party, and where he had the power to cross examine and was legally called upon to do so, the great and -ordinary tests of truth being no longer wanting, the testimony so given is admitted after the decease of the witness in any subsequent suit between the same parties.”

And the same author also says: If the person called to prove what a deceased witness testified on a former trial be required to repeat his precise words, the effect would bo to exclude this sort of evidence altogether; it is sufficient if the witness can state the substance of the testimony given at the former trial. Greenleaf on Evidence, vol. 1, pp. 193, 194, 195, 196.

The district judge did not err in receiving parol proof to establish the fact that Mrs. Lizzie Clark was dead, and the bill of exceptions taken thereto by the defendant was not well taken.

The motion in arrest of judgment on the ground that the indictment is materially and substantially defective and is not drawn up according to the form of the common law of England, was properly overruled by the judge; all the substantial averments necessary in an indictment for robbery are clearlv set forth and the indictment is sufficiently formal.

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


text:
    No. 2745.
    Board of Hay Inspectors v. Charles Pleasants.
    The charge of ten cents per halo for •weighing and inspocting each bale of hay brought to the port of 2s ew Orleans for sale, imposed by the acts of the General Assembly of 1867 and 1868, without reference to the State or place where the hay is made, is not a regulation of commerce between tlio States which is prohibited to the States by article one of tlio Constitution of the United States. Uor, secondly, does this statute lay any impost or duty on imports or exports. It being, therefore, neither a regulation of commcrco between the States, nor an impost nor duty on imports or exports, it is valid, notwithstanding the amount heroin imposed may not be absolutely necessary for the enforcement of the inspection laws of the State.
    Appeal from the Fifth District Court, parish of Orleans.

      Beaumont, J. Braughn dc Ogden, for plaintiffs and appellees.

      Randolph, Singleton & Brown, for defendant and appellant.
   Howe, J.

The plaintiffs instituted this suit to recover from tlie -defendant the sum of $315 60 for official compensation of plain tiffs for weighing and inspecting hay in accordance with the act of 1807, as amended September 18, 3868,

We have no jurisdiction, of this cause, by reason of the amount in dispute. We can only, therefore, pass upon one of the questions raised in the case, and that is the constitutionality of the acts in question, so far as they are supposed to levy a “ tax, toll or impost of any kind.” Constitution 1868, article 74.

The defendant makes but one point on this branch of the case, namely, that the provisions of the statute by which the inspection of hay is made compulsory, and the plaintiffs allowed to charge ten cents per bale for the services which defendant was thus compelled to demand from them, are in conflict with those clauses of the first article of the Constitution of the United States which, firstly, confer on Congress the exclusive power to regulate commerce with foreign nations and between the States, and secondly, prohibit a State, without the consent of Congress, from laying any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws.

The decisions of the Supreme Court of the United States in the recent cases of Woodruff v. Parham and Hinson v. Lott, 8 Wallace, 123, 148, furnish a complete answer to these objections of the defendant. The first arose out of a tax imposed by the city of Mobile on sales of merchandise, and upon the question of the regulation of commerce, the court said: “ There is no attempt to discriminate injuriously against the products of other States or the rights of their citizens, and the case is not, therefore, an attempt to fetter commerce among the States or to deprive the citizens of other States of any privilege or immunity possessed by citizens of Alabama. But a law haviug such operation would, in our opinion, be an infringement of the provisoes of the Constitution which relate to those subjects, and therefore void.”

Upon the question whether the ordinance of the city of Mobile amounted to the prohibited impost or duty on imports, the court held that the term “impost,” as used iu the clause referred to, does nob apply to articles imported from one State into another, but to articles imported from foreign countries into the United States, and that therefore the ordinance was not invalid, as in conflict with this clause of the Constitution of the United States.

The other case, Hinson v. Lott, arose from a tax of fifty cents per gallon imposed by the State of Alabama on liquors introduced into the State for sale, the same tax being also imposed on liquors manufactured in the State, and the plaintiff sought to resist the tax upon five barrels of whisky consigned to him by one Dexter, of the State of Ohio. The court held that, although the mode of collecting the tax ou the article made in the State was different from tho mode of collecting the tax on the article brought from another State into it, yet the amount paid was in fact the same on the same article, in whatever State made;. tliat the law, therefore, did not discriminate against the products of sister States, but merely subjected them to the same rate of taxation paid by similar articles manufactured within the State; and accordingly it was not an attempt to regulate commerce, but an appropriate- and legitimate exorcise of the taxing power óf the State.

Now, in the case at bar, the toll complained of is to be paid by every person who has liny inspected, whether the hay come from Louisiana or from other States. We gather from the record that the defendant’s hay came from the Western States. It is certain that it was not imported from foreign countries, nor is it pretended that any hay is so imported. Upon the authority, therefore, of the cases above cited, wo must conclude that ttie statutes in question do not violate the Constitution of the United States in the respects suggested, because:

First — They do not amount to the prohibited regulation of commerce between the States; and

Second — They do not lay any impost or duty on imports or exports.

The question whether the charge of ten cents per bale for inspection is “absolutely necessary for executing the inspection law” under consideration, has caused the taking of a mass of testimony in the record,, and considerable argument. Having arrived, however, at the conclusion that the charge is in nowise “an impost or duty on imports or exports,” we need not decide whether it is absolutely necessary for executing the inspection laws of the State. Not being included in the prohibition, it is not dependent for its validity upon a compliance with-the rule of absolute necessity laid down in the exception to that prohibition. We may remark, however, that the charge of ten cents per bale, in this case appears bv the evidence to be a reasonable one.

Judgment affirmed.


author: Taliaferro, J.

text:
    No. 2251.
    J. B. Womack, Administrator, v. Abraham Womack et al.
    "Where a sale lias "been made "by order of the probate court of the property of a succession-for the purpose of affecting- a partition among the heirs, and the administrator files his account of the partition, -which is duly homologated by tho judge, a subsequent suit for-partition will not be entertained, because tho title to the property constituting the succession passes by the sale to the purchasers, and can not afterward be returned to tho succession to be again administered upon. The judgment of the court homologating tho administrator’s account of partition is res judicata.

    Appeal from tbe Parish Court of St. Helena.

      James U. George,. Parish Judge. Dirhammer & Kennard, for plaintiff and appellee.

      J. K. Muse, for defendants and appellants.
   Taliaferro, J.

This is a suit for a partition of the property of the succession of Abraham Womack, Sr., deceased. The suit is brought, by the plaintiff, who is one of the heirs, against his coheirs.

The answer is that a final partition has taken place, and. that the same was duly homologated. The defendants plead res judicata. The plaintiff had judgment in the court below, decreeing that a partition be made, prescribing the manner of making it, and the parties were referred to a notary named to perform the work. Three of the defendants have appealed.

Soon after the decease of Abraham Womack, Sr., in 1800, the usual mortuary proceedings were taken. The plaintiff was appointed administrator, and he soon after petitioned for a sale of the property to pay debts and to effect a partition. The order of sale was granted, the property sold, the mass of it being purchased by the heirs, and in December, 1860, the administrator filed his account. Numerous oppositions were presented, and the contestation remained without final action until June, 1867. By the judgment then rendered, the account, with some modifications, was homologated and confirmed. No appeal seems to have been taken from this iudgment. The present suit was instituted in September, 18G9.

It seems clear that the object and main purpose of the sale in I860 was to effect a partition by means of a licitation. The debts were few aud unimportant. Each heir purchased property at the sale, and tho receipts produced by the administrator and his own testimony show that the portion of each heir of the first degree was reckoned approximately at $1000 cash. After the sale, a settlement in full was made by the administrator, with some at least of the heirs, for his own testimony shows that tho Thompson heirs and Powell paid the excess of their purchases over $1000.”

We regard the sale as having divested the succession of title in tho property sold, and the partition executed to that extent. 'There remains now only an adjustment of the amounts respectively to be paid or received as the case may be by the several heirs, in order to make the partition definitive.

It is therefore ordered, adjudged and decreed that the judgment of the parish court be annulled, avoided and reversed. It is farther ordered that this case be remanded to the court of first instance to be proceeded with according to law, the plaintiff and appellee paying costs in both courts.


author: lío we, J.

text:
    No. 2271.
    Flash, Hartwell & Co. v. New Orleans, Jackson and Great Northern Railroad Company
    A roooipt given "by a railroad company for goods to be transported to another point on the line of tho road, is not a bill of exchange, and is not, therefore, prescribed by five years according to article 3505 of the Civil Code.
    In 1862, while the insurgent authorities had control of the city of Hew Orleans and its surroundings, the Jackson [Railroad Company gave a receipt for 360 barrels of molasses, which they were to transport to some other point on the line of the road. Some two months and a half thereafter the United States forces captured the city and took possession of the road at How Orleans. The molasses was not transported by the company. The owner brings suit against tho company on the receipt for the molasses, which had gone into their possession and had not been accounted for. On trial the company made tho defense that at tho time they gave the receipt tho road was under the control of tho insurgent military forces; that the plaintiffs consigned the goods for shipment with a full knowledge of tho condition of aifairs and took the risk incident thereto.
    Hold — That, under this state of facts, tho burden of establishing these defenses devolved exclusively on the company, failing in which, the plaintiff must recover.
    Appeal from the Fourth District Court, parish of Orleans.

      TMard, J. Clarice, Bayne & Benslunu, for plaintiffs and appellees.

      Campbell, Spofford & Campbell and 'L. F. Simonds, for defendant and appellant.
   lío we, J.

Plaintiff sued for value of 360 barrels of molasses consigned at New Orleans by the defendant’s railway in February, 1862. There was judgment for plaintiffs for the amount claimed, and the ■defendant has appealed.

First — Tho prescription of one year does not apply. The fact that the receipt given by defendant at the time it received the goods was in form like a steamboat bill of lading can not bring this case under the article (3501) of the Civil Code. The merchandise was not “shipped on board any kind of vessel.”

Second — The prescription of five years, article [3505], does not appiy. It is by no means clear that the phrase “ effects negotiable or transferable by endorsement or delivery,” (tout effet negociable ou transportable par endossement on par simple remise,) includes regular marine bills of lading. The word effet, translated effect, means, in a commercial sense, “ bill,” or “ bill of exchange,” and in a financial sense, “funds” and “stocks,” and we have never found-it used in the sense claimed by counsel. But, however this may be, this action is not in reality on a bill of lading. It is an action against a land carrier. Tiie paper called a bill of lading, as shown by the pleadings and evidence on both sides, was intended merely as a receipt, and was so used and introduced in this case. It was probably given in its absurd form from a scarcity of stationery in New Orleans at the time.

Third — The only defense on the merits which requires consideration is, in substance, that the war was raging at the time the goods were received from plaintiffs; that the defendant’s railway was under the dominion of the insurgent authorities j that these authorities monopolized the transportation in such a way that it was impossible tc forward tlie goods from the time they were received until the twenty-fifth of April, 1862; that on the latter day the city of New Orleans was-captured by the United States forces, and the goods destroyed or carried off by a mob of citizens of New Orleans, and that the plaintiff consigned the goods with full knowledge of the fact that the defendant's railway was subject to military control, and they took all the risks of such a state of affairs. This might be a valid defense if fully established. The onus is on the defendant to make it out. We agree with the district judge that it has not been established. The permit ior shipment of the goods was given about February 11, 18"62. The-written receipt was given February 26, 1862. During the long period that elapsed up to the twenty-fifth April, 1862, it appears by the testimony of the defendant’s employes, that private freight was, by arrangement with the military authorities, transferred from New Orleans in large amounts. It is not shown with any certainty why the goods in question were not forwarded; nor does it appear, sufficiently, that the plaintiffs took the risks of a delay of from sixty to seveut-yfive days.

Judgment affirmed.

Rehearing reiused.


author:
Lubering, C. J.
      Howe, J., Wyly, J.,

text:
    No. 3199.
    Evan George v. E. A. Knox and Husband et al.
    Tlie vendor wlio wishes to avail himself of the action to rescind the sale of real estate, on tlie ground that tlie vendee has not complied with the condition of the sale by paying the installments at maturity, must show that he has returned to the vendee, or offered to return, that portion of the price which ho has received. This offer to return the portion of the price which he has received must be made before suit is brought to rescind the sale. This preliminary stop of the vendor cannot be avoided by his showing that the rents and revenues of the property were worth more than the amount he had received in part payment of the price, because, from tlie date of the sale, the title and ownership of the property passed to tlie vendee, and the rents and revenues thereof belonged to him. and not to the vendor.
    Ad agreement made by the attorney of the vendor with the curator ad hoc, who represented the vendee in a suit to rescind the sale, to tho effect that the vendee was to tako the rents and revenues of the properly during the time that he had it in possession asan equivalent for the part of the price which lie had already paid, is not binding on the vendee because the curator ad lwc, by virtue of his appointment as such, is not authorized to make such agreement.
    Appeal from the Nintli Judicial District Court, parish of Carroll.

      Bough, J. M. Dubose, for plaintiff and anpollaut.

      Snarrow & Montgomery, for defendants and appellees.
   Lubering, C. J.

This is an action for the resolution of a sale for the non-payment of tlie price.

. In November, 1855, tlie plaintiff sold to Knox a plantation for $34,000, payable in installments as follows : Four thousand dollars on the first day of March, 1856; three thousand dollars on tlie first day of March, 1857; and a like sum annually thereafter until the first of March, 1865,

Tlio first two installments, amounting to $7000, were paid at their maturity; tho other notes are still unpaid.

Citations in this suit were acknowledged on the eighteenth and twenty-second of May, 1868.

The note maturing on the first of March, 1858, was not paid. At that moment, the purchaser having failed to comply with Ms engagement, the resolutory condition, implied in all commutative contracts, took c-ifect, and the seller had a right to sue for the dissolution of the sale. C. C. 2015, 25C1.

And from the period when the seller had the right to sue to dissolve tho sale for the non-payment of the price, prescription began to run against that right; therefore the action was barred by the prescription of ton years, when it was instituted in May, 1868. C. C., 3508; 11 An. 656, George v. Lewis; 14 An. 340, Thompson v. Gelcnore.

Besides, it appears from the allegations of the plaintiff’s petition, that ho has received $7000 of the price, and this money he has not restored or offered to restore to the purchaser. He cannot keep the price and claim the property which was sold. 4 La. 198; 19 La. 281; 9 R. 306; 2 An. 389; 4 An. 562; 21 An. 425.

The plaintiff contends that the price received by him was compensated by the rents andrevenues of tho place while in the possession of tlie vendee, and he relies upon an agreement entered into between himself and tlie curator ad hoc, appointed to represent Knox, an absentee, which is as follows :

“ It is agreed between the parties, plaintiff and defendant, first, that tho plaintiff waives and renounces all claim or interest in and for rents and revenues claimed in the petition for the use and occupation of the lands or plantation by the defendants and their vendees, after their purchase from tho plaintiff, and it is agreed, in the second place, that in consideration of the above remuneration on the part of the plaintiff, that the defendants hereby relinquish and renounce any and all claims for the repayment of any money or moneys they may have at any time paid said plaintiff for and in part payment of the price of the land, the sale of which is sought to be dissolved and rescinded bv this suit. This -day of October, 1868,

(Signed) “ M. DuBOSE, Attorney for Plaintiff.

“ ED. IP. NEWMAN, Curator ad hocP

The curator ad hoc had not the authority to make such an agreement, and even if he could lawfully have entered into it, it did not bind the estate of McNeil, the vendee of Knox, and the real defendant. The fruits of property belonged to the owner thereof, and the vendee was the owner of the property, and not the vendor.

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

Howe, J.,

concurring. I do not think this action, is prescribed; but I concur on the second ground which forms the basis of the opinion of the court.

Wyly, J.,

dissenting. I think both the grounds upon which the opinion of the majority of the court is based, are erroneous.

The first is, that the action to dissolve this sale has been barred by the prescription of ten years; and the second is, it should not be dissolved, because the plaintiff has not restored or offered to restore to the purchaser the $7000 received as part of the price. As to the second ground, it has not been pleaded by the parties; it was not an issue presented in the court below. Besides, it is nothing but a dilatory exception, tending merely to delay, not defeat the action, and ought always to be pleaded in limine litis.

I do not think the plaintiff should lose his case because he has ■omitted to prove that he offered to restore the price which the defendants’pleadings did'not require him to do; and I do not think it proper to decide, as a matter of fact, that the plaintiff did not offer to restore the price, an issue upon which no evidence was taken and upon which the parties did not go to trial in the court below.

The dissolving condition, based upon the rule of equity, there can be no obligation without a cause, underlies every commutative contract; ■and it was upon this fundamental condition that Evan George, the plaintiff, transferred to his vendee, Mrs. Knox, his valuable property in the parish of Carroll, for $31,000 on long terms of credit, and upon this condition George bound himself to warrant and defend the title

It would be a violation of that great rule of equity if Mrs. Knox and her vendee are permitted to keep the property and hold George to his obligation of warranty after violating her obligation to pay the price; and if George bo held to his obligation without an equivalent as to him, there will be an obligation without a causo. (

The sale was made in 1855, and the installments were, $4000' payable first of M arch, 1856, $3000 on the first of March, 1857, and a like sum payable annually thereafter until the first of March, 1865. The promissory notes were given in evidence of the price, and only the first and second have been paid. The action to dissolve the sale is based upon eight of these promissory notes for $3000 each, maturing annually from the first day of March, 1858, until the first day of March, 1865. In May, 1868, the plaintiff instituted this suit, demanding the dissolution of the sale on the ground that his vendee, Mrs. Knox, had violated her contract by failing- and refusing to pay each of these eight notes.

I think tms action is based upon eight violations of the contract by said vendee, each of which being a good ground to annul the sale.

The engagement of tlie vendee was not to pay the first, second or third note only, it was to pay each note at its maturity. The obligation to pay the last note maturing the first of March, 1865, was just as binding as it was to pay the first; and failure or refusal to pay the last violated the contract just as much as the first. At each violation a right of action arose upon that instrument to demand the recision of the sale.

When the plaintiff demands it on each of tlio eight notes in the record, failing to pay each being a violation of the contract, why should we select the first note maturing in March, 1858, and decide his action is based only on that note and not on the other seven ? And because the action on that note, or for the violation of the contract in failing to pay it, is barred by the prescription of ten years, therefore the action is barred on the other seven also, although neither of them were ten years past due when this suit was instituted

When the plaintiff complains of eight distinct violations, and shows it in the record, how ean we say there has been only one violation, the failure to pay the note due March 1, 1858, which gave him a cause of action, and that is barred by the prescription of ten years. Suppose the plaintiff, anticipating this ruling, had made a voluntary remission of the note maturing the first of March, 1858, which would have discharged it, and then demanded the recision on the other seven notes to which the prescription of ten years is not applicable, could the action have been defeated by the plea of prescription ? Certainly not.

Now, shall we say that a man whohas merely exorcised a legal right,, who has voluntarily remitted one note, stands stronger before the court in prosecuting his rights upon the others, than if he had chosen to be less liberal to Ms delinquent debtor 1 Suppose the note due the-first of March, 1858, had passed into the hands of a person who had imrmitted the prescription of five and ten years to be acquired, would the defendant be heard disputing the fact that she violated her contract, in not paying each of the other seven notes held by the plaintiff, or that he has no right to' claim the recision, because the party holding, the note due March 1, 1858, did not do so ?

If such be law, the great rule of equity, there can be no obligation without a cause, is defeated without a reason why it should' be defeated.

Why should the vendee hold the vendor to his obligation after refusing to be bound by Ms own, simply because one of the notes fell into tardy hands, and has been permitted to be prescribed ?

Should Mrs. Knox escape the dissolving condition claimed by her vendor, simply because the note due March 1, 1858, has been barred by the prescription of five and ten years, when the record shows that' there are seven other notes which are not prescribed; at the maturity of eacli a right of action arose, to enforce the nayment or demand the recision of the sale.

Because the plaintiff has lost his right upon one note by lapse of time, I do not see that he has lost it on the other notes to which the plea of prescription is not applicable.

I therefore deem it my duty to dissent in this case.


author: Howell, J.

text:
    No. 3346.
    State of Louisiana, ex rel. Board of School Directors, v. The Mayor and Administrators.
    •Section seven of tlie revenue law of 1871 prohibits all cities and municipal corporations in tbe State from levying a tax for any purpose, in any year, in excess of two per centum on tlie assessed value of all property therein listed for taxation. It being sliown that the Council of tlie city of New Orleans lias already levied a tax in excess of two per centum on tbe taxable property within tbe city limits. Held — That under tbe prohibition contained in tlio act above recited, tbe city could not be compelled by writ of mandamus to levy an additional tax for school purposes, although tlie General Assembly had by special act directed that the Council should levy a tax for such purpose.
    Appeal from the Eighth District Court, parish of Orleans.

      Leaumont, Judge of tbe Filth District Court, parish of Orleans, presiding in place of Dibble, J., recused. 8. Leiden, Attorney General, and <T. L. Lornor, for relators and appellants.

      Goo. S. Lacey, City Attorney, for defendant and appellant.

      J. L. JSustis, Esq., and H. W. Ogden, Esq., attorneys at law, appeared as amid curi, and argued in behalf of the taxpayers against the tax sought to be imposed by this proceeding,
   Howell, J.

The relators have appealed from a judgment refusing a writ of mandamus to compel the Mayor and”Administrators of the city of New Orleans to levy and collect a tax sufficient to realize the sum of $350,000 fixed by the said relators for the purpose of maintaining the free public schools in the city of New Orleans during' the current year, in accordance with the provisions and requirements of act No. 8 of the Legislature of 1871, entitled “An Act to amend an act entitled an act relative to public education in the State of Louisiana and the city of New Orleans, aiid to raise a revenue for that purpose,” approved February 25, 1871, the seventh section of which is in the following words: “The Board of School Directors for the city of New Orleans shall, immediately upon their organization, and also at the commencement of each year thereafter, ascertain the amount of funds necessary to carry on the schools under their charge ior the current year and report the same to the Board of Administrators of the city of New Orleans, who ijiall, at such time as they may deem necessary, levy the amount on the taxable property of the city, and direct the same to be collected in tbe manner and at tbe time by them deemed most desirable, hut the time shall not exceed six months from the date of their notification of the amount required.”

Among other reasons to justify .their refusal, the respondents aver that section seven of the act No. 42 of the Legislature of 1871, entitled. “ An Act to provide a revenue, to levy and collect taxes, to grant and collect licenses, etc.,” approved March 3, 1871, prohibits the City Council of New Orleans, the respondents, from levying any tax upon the property situated in said city, listed for taxation, to a greater amount than two per centum of the cash value thereof, and that there have already been levied upon said property taxes to the amount of two and five-eighths per centum of the value thereof, and the taxpayers are protected by said law from the payment of any other or iurther sum, unless by vote of the citizens entitled to vote in said city, and no such vote has been had on this question.

Section seven relied on reads as follows: “That no city or municipal corporation shall levy a tax for any purpose which shall exceed two per centum on the assessed value of all property therein listed for -taxation; nor shall the police jury of any parish levy a tax for any purposes, during any year, which shall exceed one hundred per centum •of the State tax for that year, unless such excess, whether levied by village, city or parochial authorities, shall first he sanctioned hy a vote of a majority of the said voters of said village, city or parish, at an election held for that purpose. No per capita tax, except the poll tax authorized by the State Constitution, shall be assessed or collected in this State.”

It is suggested by counsel for the relators that this act (No. 42) became a law subsequent to the school bill, and does not, therefore, affect or impair the right of the city authorities to act under the provisions of said school bill. If there be any force in this, the successful reply to it is that the same provision existed, as to cities, in the revenue law of 1870, and the prohibition, therefore, existed at the date of the passage of the school bill, aud was simply continued or re-enacted in the act of 1871, the repealing section of .which repealed only such laws or parts of laws as are contrary to or inconsistent with said act. See 22 An. 273.

It is next suggested that this section violates article 114 of the Constitution of the State, as it is not covered by the title to the revenue .act, wherein it is found. In this view wo can not concur. The phrase in the title “to levy and collect taxes,” is direct and comprehensive ■enough to embrace the provisions of section seven, which relates unequivocally to the subject of levying taxes, cities, municipal corporations and parishes, subdivisions of the State, being prohibited from levying taxes beyond a certain per centum. And furthermore, it is a well established rule of legal construction that “ the title of a law is not to be strictly construed; if it state the object according to the understanding of reasonable men, it satisfies the Constitution.” 6 An. -605; 21 An. 752. Nor is it necessary that the title should define or specify tlie particular provisions of each section — a rule which would malee the title as long as the law, or would be the law, less the enacting wordS\Only. The title is sufficient.

But it is said the court will rather prefer to harmonize the provisions of both laws, to do which it is only necessary to apply the limitation, not to the aggregate of taxes which it may be necessary for the city to assess, but to the dimensions or amount of any one single tax of the several taxes which it is and was known the city required as the consolidated loan tax, the railroad tax, the park tax, the Metropolitan Police tax, etc. It is not difficult to perceive that this construction would totally destroy all limitation, and leave the law without a rational object; for, upon this theory, the city authorities might levy any number of specific taxes for particular purposes, provided each one did not exceed two per centum of the value of the taxable property. Such a construction is not allowable.

The law is free from ambiguity, and is manifestly enacted in the interest of the taxpayers and intended to limit, as it does, the taxing power of all municipal and parochial authorities to the will of the voters as to any and all taxation on property beyond two per centum of its value. If, however, such authorities deem an additional amount necessary for the public good, they have under this law only to submit the question to the legal voters of the respective localities for their decision.

Although judges are not to be controlled in their action by a consideration of the consequences which may flow from their exposition of laws, we can very properly say that we are unable to perceive the disastrous consequences which seem to be apprehended by counsel from the operation of this law. If the people of New Orleans desire the-public schools in the city to bo maintained by special taxation on their property, they will doubtless give their sanction to the levying of the additional tax necessary for such a laudable purpose, whatever may bo the comparative importance of the objects for which the limit of taxation has already been attained. It is certainly not within the province of the courts to set aside the law for the purpose of sustaining even the free public school system.

Our conclusiou is that a writ of mandamus can not properly íssueTm this case to compel the Board of Administrators to levy and collect a tax sufficient to realize the sum called for by the relators. The seventh section of the revenue act of 1871 has clearly limited the taxing power of the municipal government, and that power has already been exhausted; but said section has also provided a mode for raising any necessary tax beyond the prescribed limit, and that mode is not the one resorted to in this proceeding.

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


author:
Taliaferro, J.
      Howell, J.,

text:
    No. 3245.
    Succession of Alexandre Labry, deceased—On Opposition to Tableau of Administrator.
    Prior to tlio adoption of tlie constitution of 1868, tlio heirs of a deceased party had secured to them by law a tacit or legal mortgage on tlie property of the tutor or tutrix superior to all other mortgages of subsequent date. Tho executing of a bond for the faithful administration of tbe tutorship fixed the date at which the rights of mortgage attached to tho property of the tutor in favor of tho heirs; and a judgment of tho court rocognizing the mortgage rights in favor of tho heirs, which omitted to fix the date at which the mortgage attached, did not thereby change or supersede tho date as fixed by tho bond. The recording of tho tutor’s bond, therefore, before the first of January, 1870, in pursuance to tho provisions of the act of 1869, renewed and perpetuated the tacit mortgage which existed prior to tho adoption of the constitution of 1868, without reference to tlio judgment against the tutor on tho bond.
    The act of 1869, which provides a mode of registry for all mortgages, which, before the adoption of the constitution of 1868, wore not required lo be recorded, makes no distinction in the modo of recording thoíie mortgages which existed at- the time of tho passage of the law, and those which came into existence after that period.
    .A. conventional mortgage, which only has existence as a mortgage from the date of registry* can only date and take rank from that period.
    Appeal from tlie Seventh. Judicial District Court, parish of Pointe Coupée.

      A. Bouanehaud, Parish Judge. T. H. Uewes, John II. llsley, Cooley & Phillips, A. Provosty and S. J. Powell, for opponents and appellants.

      A. L. Mahondeau, for appellees.
   Taliaferro, J.

The litigating parties in this case contest each other’s claims to priority of mortgage right upon tho proceeds of mortgaged property insufficient to pay all their debts against the succession. The administrator filed a tableau of distribution,' which was opposed by Matliilde Laurans, whose claim to legal mortgage was postponed to tlio legal mortgage of Alexaudre, Alexandrine an l Joseph 8. Labry, heirs of the decedent, Alexandre Labry. A. Miltenbergor &, Co. opposed the pretensions of these parties as unfounded, setting up. their special mortgage as having priority over all others. After hearing these oppositions, the Parish Judge amended the tableau by allowing the claim of Joseph Severin Labry for $3880 33,' with legal mortgage, to take effect from the twenty-first of February, 1848. Alexandre and Alexandrine were awarded each a like sum, with judicial mortgage, to take effect from the twenty-first of December, 1866. The claim of Mathilde Lauraus was allowed, but without mortgage. A. Miltenberger & Co. were ranked as creditors, having special mortgage dating from the second of April, 1861, for the sum of $9470 20. From the judgment homologating the tableau as thus amended, all the parties, except Joseph S. Labry, have appealed.

The wife oí Alexandre Labry, and mother of the throe heirs— Alexandre, Alexandrine and Severin Labry — died in the year 1848. An inventory and appraisement was then made of her succession, and the surviving husband became the tutor of the minor children. An abstract from this inventory was recorded in the mortgage office of the parish of Pointe Coupee, in October, 1869, with the view of preserving the legal mortgage, wliicli these heirs held on the property of their tutor. Two of these heirs, Alexandre and Alexandrine, brought a suit against their father and former tutor for an indebtedness growing out of the tutorship, and obtained judgment against him on the twenty-first of December, 1866, recognizing their legal mortgage, but without giving it any date. Tlie prescription of four years was pleaded against the claims of all three of the heirs on the alleged ground that lour years had elapsed alter they obtained the age of majority before they instituted proceedings for a settlement of their tutorship claims. Alexandre Labry, in 1851, became the tutor of Mathilda Laurans, one of the litigants, and executed his bond as her tutor on the twenty-fifth of November, 1851. This bond was duly recorded in the proper office before January, 1870, in order to preserve her legal mortgage. We find in the record a petition filed on the twelfth of December, 1861, by the tinder tutor of Matliilde, setting forth that her tutor had resigned, and prayed for the convocation of a family meeting to select a successor. The meeting, under an order of court, assembled on the twentieth of December, 1860, and advised the appointment of John Laurans, who was appointed and confirmed as tutor to Matliilde, who gave bond on the twelfth of January, 1861, Alexandre Labry, the former tutor, signing- tlio bond as surety. John Laurans died in 1862. On the thirty-first of August, 1865, A. Provosty presented a petition setting forth the decease of Laurans, and representing himself as nearest of kin in the ■collateral line, prayed to be appointed tutor to Matliilde. He was appointed accordingly on the same day. Matliilde was emancipated by order of court on the fifth of April, 1866. Provosty, the last tutor, died since the commencement of these proceedings. There is nothing to show that Alexandre Labry ever rendered an account of Ms tutorship of Matliilde Laurans, and nothing to show that either Laurans or Provosty ever rendered an account. N o written resignation or declaration in writing by Alexandre Labry is produced, showing that he resigned his office of tutor to Matliilde Laurans. It is contended on her part that none of the proceedings taken during- her minority, affect higher rights, have released the property of Labry from tlie effect of her legal mortgage to secure his indebtedness to her as her tutor. Within •tlie proper time after her emancipation she proceeded against the administrator of Labry, who died in I860, for the rendition of an account. The tableau over which the parties are contending seems to have been presented under an order provoked by her.

Tlie opponents of the Labry heirs have failed to establish against them the plea of prescription. We think the Judge a quo erred in allowing two .of those heirs, Alexandre and Alexandrine, only a judicial mortgage to take effect from tlie twenty-first of December, 1866. It is true the judgment rendered in their favor against their former tutor, while ifc accords to them a legal mortgage against his property, does not fix the date from which that legal mortgage took effect; but this omission is cured by the recording in the mortgage office an abstract from the inventory and appraisement of their mother’s estate, as required by the act of 1869, prescribing the manner of preserving and continuing in force legal or tacit mortgages. Their right to a legal mortgage, dating and taking effect in 1848 on the property of their tutor, was preserved by complying with the requirements of the act of 1869, that right was not lost by the institution of the suit and the consequent judgment obtained against their tutor in 1865. By recording that judgment they acquired a iudicial mortgage in addition to their legal mortgage.

We think there was error in the judgment, also, in placing Matnilcie Laurans on the tableau as an ordinary creditor for the amount of her claim without mortgage right. Alexandre Labry, Sr., was, as we have seen, appointed her dative tutor in 1851, and gave bond and security as required by law. To preserve her lien or legal mortgage she recorded, prior to the first of January, 1870, her tutors’ bond, and this, we think, was sufficient. The act of the Legislature of March 8, 1869, providing the mode of preserving legal mortgages is, in several of its sections, not free from ambiguity and even obscurity; yet, taking it in i ts entirety, wo think its purpose was accomplished. The sections two, eight and eleven, in connection, we think, warrant our conclusion that the recording of the bond suffices. Section two directs prospectively that before a tutor shall bo appointed, the bond of such tutor shall bo recorded? What is the object of the Legislature by this enactment ? Plainly that the bond recorded shall operate as notice of the minor’s legal mortgage. Then why should not the recording of a tutor’s bond, which was given before the adoption of the constitution of 1868, operate as notice of a legal mortgage, existing irom the date of the bond, provided that in this case the bond be recorded before the first of January, 1870 ? The act in question was passed in conformity with the direction given by the one hundred and twenty-third article of the State constitution, and this was “ to provide, by law, for the registration of all mortgages and privileges.” Legal mortgages, existing in favor of minors before the adoption of the constitution of 1868, were to continue to exist if recorded before the first of January, 1870. The Legislature was required to provide by law for the recording of all mortgages and privileges. Then it was incumbent upon the Legislature to provide for the recording of that class of mortgages which, prior to January 1, 1870, existed by operation of law without being recorded. The legal mortgage of minors before January 1,1870, had the same character that mortgages of that kind, to come into existence after that period, were to have. They had all to be recorded to have effect — those in existence before January, 1870, were to be recorded before that time, and those springing into existence afterwards as they arose. Hence, the method adopted for recording applies as well to minors’ mortgages that existed prior to January, 1870, as to those which were to originate subsequently. Minors’ mortgages, in the case of natural tutors, are to be recorded by registering in the proper office abstracts or certificates showing the amount of inveutory. In case of dative tutorship bjr recording the tutor’s bond.

There was then no reason that there should be one method for recording minors’ mortgages that existed before 1870, and another method for recording the same kind of mortgages that were to have their origin after that period. The article one hundred and twenty-three of the constitution recognized no distinction, and did not authorize the Legislature to make any in the manner of recording mortgages of the same class, whether existing prior to January 1, 1870, or to exist afterwards.

The ground assumed by the opponents of the claim of Matnnae Laurans that Alexandre Labry, her tutor, resigned his trust as her tutor, that other tutors succeeded him, and to them she must look for redress, can not be maintained. It is not shown that he ever resigned, and if he did, it is not pretended that he ever made any settlement of his accounts. Assuming that circumstances existed which an+,’orized or excused him from a further discharge of his duties as her tutor, he still continued bound to render an account of the tutorship, a duty which he never performed. It is shown that large amounts went iuto his possession belonging to the then minor under his charge. The appointment of Laurans, and afterwards Provosty, as her tutor, by no means released Labry from accountability.

The tableaux as first presented in the Parish Court gave, in our opinion, the proper rank of the several creditors by mortgage and privilege, and we think it should assume its original form.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed. It is further ordered, that the tableau of the administrator be amended by placing' thereon the heirs of Alexandre Labry, viz:' Alexandre, Alexandrine and Joseph S. Labry as creditors, with legal mortgage, for $14,184 05 to date and take effect from the twenty-first of February, 1848. Next, that Mathildo Laurans be recognized as a creditor, with legal mortgage to date and take effect from the twenty-fifth of November, 1851, for the sum of $9151 92. Third — That A. Miltenberger & Co. take rank with special mortgage for $9470 to date and take effect from the second of April, 1861, and that, as thus amended, the tableau he homologated and confirmed, the costs to be paid by the succession,

Howell, J.,

dissenting. I am unable to concur in the opinion of the majority of tlie court, that the recording of a tutor’s bond, executed prior to the adoption of the constitution of 1868, preserves the mortgage in favor of the minor.

I findnotliing in sections two, eight and eleven, of act No. 95 of 3869, which authorizes or directs the recording of such bonds, or gives the recording of them such effect. The bonds which are to be recorded are those given by tutors appointed after the passage of the law; and it is a well settled doctrine that we cau not extend the effect of the registry of mortgages or laws providing for registry by implication or inference. It may be a legislative omission, but we can not, I think, supply the omission.

Rehearing refused.


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    No. 2357.
    City of Baltimore v. Henry Parlange—George Merz, Third Opponent.
    A contractor, wlio repairs or reconstructs a building wliereby the land or lot of ground on which it stands, is enhanced in value, has the same lion and privilege on the buiLding, which the law accords to a contractor on a no w building. "Whore, therefore, the vendor seeks to enforce his lion on the lot of ground for an unpaid portion of the price, the contractor who has made repairs on, and reconstructed the buildings thereon since the sale, may cause a separate appraisement of the buildings from that of the land to be made, and enforce his lien on the buildings, which is superior to that of the vendor’s lion on that part of the valuation which is estimated to be in the buildings.
    Appeal from the Fifth District Court, parish of Orleans.

      Léaumont, J. Semines efi Mott, for plaintiff and appellee.

      Ilornor & ^Benedict, for defendants and appellants.
   Howe, J.

This case involves a conflict of privilege between the vendor of lauds and the contractor who has, after the sale, repaired ox-reconstructed the buildings which were on the lands.

In 1859 the city of Baltimore sold to Parlange the lots in question, fronting- respectively on Orleans and St. Axxn streets, a theatre and ball room, reserving a vendor’s privilege and mortgage, with the pact of non-alienation, to secure the unpaid portion of the price.

In 1869 the city of Baltimore took proceedings to collect an unpaid portion of the price, and to enforce its privilege and mortgage, and the property was seized and advertised for sale by the sheriff.

George Merz filed his opposition, claiming, as transferee of Saxnuel Johnson, a privilege fox- work done in 1867, under recorded contract, in erecting, repairing- and renovating the buildings on the lots which had in the meantime become the property of Bernard Avegno. The work seems to have been rendered necessary by a fire which had occurred on the premises a short time before.

A rule was taken by Merz for a separate appraisement of lands and buildings under the article (3235) of’ the Code, which prescribes that ■when the vendor of lands finds himself opposed by workmen seeking payment for a house or other work erected on the land, a separate appraisement is made of the ground and of the house, the vendor being-paid to the amount of the appraisement on the land, and the other to the amount of the appraisement of the building.

It appeared on the trial of the rule that the building on the portion of the property fronting on St. Ann street had been entirely erected under the Johnson contract, and as to this the judge a quo ordered a separate appraisement, the propriety of which is not in dispute. As to the portion of the property fronting on Orleans street, the rule was dismissed on the ground, it seems, that the privilege of the contractor and the separate appraisement could not be applied in such a way, in favor of one who had merely made repairs, as to encroach on the fund coming to the vendor. From this decision Merz appealed.

The testimony on the rule is not very satisfactory, and would doubtless be made more exact on a regular trial of the opposition. Johnson, the principal witness says, however:

“ I repaired the old Orleans ball room and rebuilt the buildings on St. Ann street. They were new buildings. The building on Orleans street was almost rebuilt from the grouud up. Those buildings had been burnt almost to the ground. Some parts had to bo built from the foundation; had to put foundations in some places. Fully one-half .of' the whole contract money was expended on the Orleans street building. The place was a wreck.”

From this wo judge that the repairs on the Orleans street property were necessary and extensive, amounting well nigh to rebuilding. It. seems clear that they must have added greatly to the value of the premises which, without them, would not be likely to bring more than the price of vacant property.

The privilege in favor of the contractor is one which exemplifies the intelligent sense of justice which distinguishes the civil law. It is founded on the equitable theory that he who has by his labor or expenditure increased the value of a tiling- pledged for the payment of a debt, should not be omitted in the distribution of the proceeds of that thing. Dig. 20, 4. Quipoiiores, etc,. By'article 2103 of the Code Napoleon this privilege for repairs, no less than for building and rebuilding, is recognized; and the commentators seem to agree that it is not. primed by that of the vendor; but is to be exercised in such a way as to give the contractor the benefit of the increased value he has given to the property. Duvanton, vol. 19, No. 148 to 199; Delvencourt, vol. 3, p. 154; Merlin, Rep. vol. 13, p. 254; Persil, Priv. et Hyp., vol. 1, p. 213.

The practical details of the French system differ from ouis, but tho principle of justice is the same. By article 3216 of the La. Codo tho privilege of contractors employed in constructing, rebuilding or repairing bouses and buildings, or making other works on such houses,, buildings or works, by them constructed, rebuilt or repaired, is fully recognized. By article 3235 a separate appraisement is provided for when the vendor finds himself opposed by workmen seeking payment for a house or other work erected on the land. We are of opinion that the rule of this latter article may be justly applied to find the pro rata oí proceeds duo to the maker of such necessary repairs as have added value to the thing pledged. In adopting this view we do not, as objected by counsel, extend a privilege by implication. The privilege clearly exists by article 3216. It is on the building merely, not on the land. We merely follow the rule of article 3235 (a rule which would probably exist without tlie article), in ascertaining as best we may the proportion of proceeds due to creditors equally meritorious.

Nor does the pact of nou-alienation prevent the subsequent contractor from acquiring a privilege. This point was settled in Jamison v. Barelli, 20 An. 453.

Nor do wo perceive that the fact that Parlange agreed to keep the buildings insured for a certain sum can affect .the question.

It is therefore ordered that the judgment appealed from be reversed, and that tlie rule for a separate appraisement, taken by appellant, be made absolute, plaintiff to pay costs of appeal.


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    No. 2377.
    C. T. Buddecke & Co., Agents, v. H. A. Spence—C. E. Slayback & Co., Intervenors.
    The act of the General Assembly of 1841, amending article 3214 of the Civil Code and giving to the consignee, commission agent and factor a privilege and preference over the. attaching creditor on the goods consigned, is not repealed or modified by tlie act of hfarch 28,1867, amending article 3184 of the Civil Code, in relerence to privileges on certain movables.
    The fact that the consignor gives the consignee notice in writing at the time the goods are shipped that he intends to draw on him, does not impair, destroy or postpone tlie. privilege given by law on the goods shipped for any balance that may be previously due him. In this respect it makes no difference whether the indebtedness results from advances made on the goods shipped or not.
    Appeal from the Fifth District Court, parish of Orleans.

      Beaumont., J. Buddeelce & Upton, for plaintiffs and appellants,

      liandolph, Singleton & Browne, for defendants and appellees.
   Howe, J.

The plaintiffs, as agents of the Fourth National Bank of St. Louis, commenced this action against the defendant, Spence, a. resident of Missouri, and attached a shipment of grain consigned by steamer Thompson Dean to C. E. Slayback & Co., of New Orleans.

Slayback & Co. intervened, claiming that the grain had been consigned by Spence to them as commission merchants for sale; that bills of lading in which they were named as consignees had been regularlv issued and received by them long prior to the arrival and attachment of the goods; that Spence was indebted on balance of account to them as his commission agents in a large sum, for advances made on previous shipments ; and that they had a special property in the goods and a claim or privilege on them superior to that of plaintiffs as attaching creditors.

The decision of the lower court was in favor of the claims of inter - venors on the point of privilege, and plaintiffs have appealed,

They make two points in this court:

First — That the act of 1841, amending article 3214 of the Civil Code and giving the consignee, commission agent and factor a privilege in preference to the attaching creditor on the goods consigned to him for any balance due him, whether specially advanced on said goods or not, has been repealed by the act of March 28, 1867, amending article 3184 of the Civil Code, in reference to the privileges on certain movables. We can not assent to this proposition. The two sections are entirely independent in their action, and an amendment of one does not, in itself, affect an amendment to the other.

Article 3184 is under one. section, entitled Of the Privileges on Particular Movables;” article 3214 is under another section, entitled “ Of the Privilege on Ships and Merchandise.'” The furnisher of plantation supplies and his privilege on the crop, mentioned in article 3184, are one thing; the consignee of goods from St. Louis and his privilege for balance due as against the attaching creditor, mentioned in article 3214, another thing.

Second — The plaintiffs further insist that inasmuch as when Spence shipped the goods and sent the bills of lading to Slayback & Co. he wrote at the same time, “ I may need some money to-morrow; suppose you can accommodate me,” therefore Slayback & Co. were notified of the fact that the proceeds of these shipments had, bjr the shipper, been disposed of in favor of third parties; that the consignments were conditional, made upon condition that their acceptance should be followed by the acceptance of the bills sued on, and that until the performance of this condition, Slayback & Co. could acquire no right to the goods so consigned. It should here be stated that the plaintiffs sue upon drafts drawn by Spence on Slayback & Co., which the latter refused to accept. In discounting these drafts it is clear from the testimony that the bank did not rely on any security except the honesty and solvency of Spence. The bank has no privilege on the grain or its proceeds; and we are at a loss to see how the expression in the letter of Spence, quoted above, could impair the privilege accorded by law to Slayback & Co. Spence shipped his grain here, consenting that it should fall into the clutches of this privilege. How can his ordinary creditor, the bank, complain ? 1

Judgment affirmed.


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    No. 2367.
    Howard, Prestons & Barrett v. George M. Branner.
    If a promissory note be dated in Tennessee and made payable in Hew Orleans, and there is no stipulation as to the rate of interest, the rate of interest will be determined by the law of Louisiana.
    Appeal from the Fourth District Court, parish of Orleans.

      Théarü, J. B. & H. Marr, for plaintiffs and appellees.

      JOeovy & Monroe, for defendant and appellant.
   Howe, J.

Suit on a promissory note made by defendant. Defense, a general denial, want of consideration and misrepresentation by plaintiffs. Judgment for plaintiffs -and appeal by defendant.

The defense does not appear to be established by tbe evidence, but wo think there is a small error in the judgment in giving interest upon the note at the rate of six per cent, per annum, according to the law of Tennessee. It is true the note was dated in Tennessee, but it was by its terms made payable in New Orleans. In tbe absence, therefore, of any express stipulation as to the rate of interest, the rate is determined by the law of Louisiana. 13 L. 92; 8 N. S. 34.

It is therefore ordered that the judgment appealed from be amended by reducing the rate of interest therein provided to five per cent, per annum; that, as thus amended, the judgment be affirmed, and that plaintiffs pay costs of appeal.


author: Howell, J. Howell, J.

text:
    No. 2709.
    Succession of H. F. McKenna.
    If the appeal he granted on motion and tho bond he given in favor of the clerk, all persons having an interest are by law parties to the appeal. If, therefore, the executor has a right to appeal in any capacity, tho appeal taken by him will not be dismissed on motion of the legatees, who have not appealed, on the ground that the executor had no right to take au appeal for them.
    An executor who is directed to administer the estate in conformity to the dispositions of the will, has an appealable Interest from a judgment recognizing the rights of the survivor in community. The appeal taken by the executor from such judgment wall not, therefore, he dismissed for want of appealable interest.
    If a man who is domiciled and has his residence in Louisiana, marries a woman in a foreign country, without changing his residence or domicile, but continues to reside here, the property acquired subsequently to and during the marriage becomes community property, although the wife has never resided in tho State, because the domicile of the wife is that of the husband.
    Appeal from tbe Second District Court, parish of Orleans.

      JDuvigneaud, J. Simeon Belden, Attorney General, and Thomas Hunton, for appellants.

      J. Ad. Bosier and Tea, Finney & Miller, for appellees.
   Howell, J.

Tbe motion to dismiss is based on tbe grounds:

First — That the executor is with out authority to prosecute this appeal on behalf of or for the benefit of tbe legatees, who have not appealed and have not been made parties as appellants.

Second — The executor is without interest in the matters in controversy to authorize an appeal by him.

Third — The legatees have not made themselves parties to the mortuary proceedings in the lower court, and the proceedings had by the executor are unauthorized.

I. As to the first ground, it need only ho said that the appeal having been granted on motion, and the bond being in favor of tho clerk, all persons having an interest are by law parties to the appeal, and it is> immaterial whether the legatees are appellees or appellants if the executor has a right of appeal in any capacity.

II. The appeal is taken from a judgment sustaining, in part, certain oppositions to the account filed by the executor, and by which one-halt of the funds in his hands were assigned to the widow in community, and thus, as contended by the executor, taking away a largo portion of the succession and rendering him unable to carry out the provisions-of the will, which is the law governing his official action, and which it is his duty to execute.

This discloses an appealable interest. The funds in the hands of the executor are the proceeds of property inventoried as'all belonging to the succession of the deceased, and sold, as shown by tho record, to-satisfy a judgment obtained by a trustee in behalf of the widow and pay tho legacies made in tho will, and it seems to be clearly the duty of tho executor to account for the whole succession coining into his control, and to prevent any part of it from being diverted or appropriated in a way different from that provided or ordered by the will; and this whether the parties who may eventually be affected by suck diversion complain or not, for the executor represents the deceased,, and is under an official responsibility to see that the bequests and directions of the will arc properly and faithfully carried out. Ilis interest in executing the will is different from the interest or obligation of a syndic or administrator in the matter of distributing funds among creditors. The one derives bis office and trust from the testator, and the other from the law.

In this case it appears that tho succession has been open and under the administration of an executor since April, 18(54, and it is only in the opposition to this account in August, 186.9, that the widow has-assorted any rights to the community, and if the executor considered the judgment recognizing those rights erroneous, it was his duty to-have it revised. This claim is not set up as distributer under the-will, hut one alleged to grow out of the law of this State regulating, the community between husband and wife, and which may result in materially affecting the dispositions made by the executor.

The cases cited by appellees are where administrators or syndics, were considered mere stakeholders, having no interest in tlio fund, apart from their commissions, except to pay it to those to whom, upon being called together, they were ordered by the court to pay; while in this case the executor is ordered by the testator to dispose of all liis estate in certain fixed sums to certain named legatees, and the claim preferred by the widow, he contends, will take out of his possession one-half of that estate. His appealable interest under such circumstances is manifest, and as real as that of a State or city treasurer in seeing that payments which they are ordered to make are correct

We-think the interest and duty of the executor in the matter are plain.

III. The application of the third ground is not perceived as.a reason for dismissing the appeal. The filing of an account did not depend on the legatees making themselves parties to the mortuary proceedings. Tiie law makes it the duty of executors to render annual accounts of their administration. C. C. 1674 [1666].

The motion is refused.

On Oppositions to Account op Executor

Howell, J.

The executor’s account shows a cash fund on hand of $83,781 03, out of which he proposes to pay privileged debts against the succession, consisting of executor’s commissions, attorney’s fees and sheriff’s and clerk’s costs, amounting to $4702 02, and a judgment of the United States Circuit Court in favor of E. McSwiney, trustee of Mrs. McKenna, which, with interest and costs to date of filing, is stated to amount to $71,669 63, leaving a balance of only $7409 38 to be distributed pro rata among the particular legatees, thirteen in number, whose legacies amount to $75,000.

To this account oppositions were filed by Mrs. McKenna, claiming one-half of the funds in hand as widow in community, asserting that the judgment in favor of her trustee must be paid out of the funds-belonging to the succession, that is, the portion of the husband and not the community, and objecting to the items of executor’s commissions and payment of the particular legacies; also by McSwiney claiming interest as allowed by his judgment up to date of payment, and by the State of Louisiana claiming ten per cent, on all the legacies made by the deceased to persons not citizens of the United States- and domiciled in this State at the date of his death.

The opposition of Mrs. McKenna, as widow in community, seeking to restrict the payment of the judgment of the United States Circuit-Court to the portion of the funds belonging to the succession, was sustained, and in other respects dismissed; that of McSwiney was sustained, and that of the State as to a particular legacy of $25,000 to the widow was dismissed; and as to other legacies, there being no funds, the right of the State was reserved. From this judgment the executor and the State appealed.

The executor presents four propositions for our consideration:

First — That Mrs. McKenna is hound by her unqualified receipt of the legacy of $25,000 (less ten per cent.), on the nineteenth March, 1867, to observe and abide by the consideration imposed by the testator, to wit: “that she gives a full acquittance against any other claim on his estate.”

To this the reply is that by a codicil to tho will, duly probated, the testator distinctly dispensed with or removed this condition.

Second — That Mrs. McKenna was not a partner in community, and if she were she is not entitled to participate in tho large amount realized from tire sale of property in Missouri, because that property was not acquired in Louisiana, was not acquired since 1852, and was not acquired by non-resident married persons.”

It appears that Hugh E. McKenna, a merchant of New Orleans, was married in England in October, 1844, and retained his domicile here until the date of his death in February, 1864; that his wife never came to this country during his life, but resided in Europe;.that in 1861, being in bad health, he left for England, and notified his wife, then in Belgium, to meet him in London, which she did; that they thereafter remained together, traveling in different parts of Europe, and that he died in London without forced heirs, having made the codicil to his will, above referred to, in August, 1861, after meeting his wife in that city.

We think it clear that under this state of facts, according to our raw, the domicile of the wife was that of the husband, in New Orleans, and that a community of acquets and gains existed between them, and that it is unnecessary to inquire into the motives or causes of the wife’s continuing in Europe after the marriage.

Under tho circumstances, we can readily presume that the husband consented for his wife to remain in Europe. In the will made by him before leaving here in 1861, he provided for her, giving her, besides the above legacy of $25,000, four-tenths of the residue of his estate. Louisiana being the place of his domicile, and necessarily hers, at and subsequent to the marriage, the law of this State regulated the marital rights, and there being no separation of property between them, all the property acquired by them, or either of them, after marriage fell into and belonged to the community, unless shown to have been the separate property of one or the other. C. C. 39, 2332, 2334, 2402.

As to the property alleged to be in Missouri, it appears from the tableau to have been stoclc in a sugar refinery in that State held by the deceased. From this description we can only infer that tho stock was an incorporeal, not having the character of an immovable by nature, or by the disposition of the law, and must be considered a movable. C. C. 471, 475.

Third — That tho judgment of the United States Circuit Court was based on a contract absolutely null and prescribed, and the rights of all parties in interest are reserved by the Second District Court,, parish of Orleans, with reference thereto.

This judgment is in evidence, is against the executor, and must in this proceeding have the íbice of res judicata. We are without authority to revise it.

Fourth — That if said judgment is valid, still Mrs. McKenna, for whoso use it was obtained, has no right to claim interest thereon, and also one-half of the estate. In other words, she could not suffer the amount agreed to be paid by McKenna by the marriage contract to remain in his hands, and be used by him in accumulating an estate, and then claim interest on the amount and one-half of the accumulalations also. This would be to receive interest twice.

Tho judgment appealed from allows interest as awarded by the judgment of the United States Circuit Court from twenty-fourth January, 1864. It is a part of said last judgment, and binding on the executor.

Upon the appeal by the State we are not favored with a brief or argument by the Attorney General, and as we have allowed Mrs. McKenna her claim upon the fact of her domicile being in Louisiana, it seems a consequence that .the ten per cent, tax can not be required of her because of having her domicile in Europe. She can not bo considered a resident of Louisiana for tbe purpose of acquiring, and a resident of Europe for paying a per centage on her acquisition. We see no reason for disturbing the judgment.

Judgment affinne'1