author: Voorhies, J\

text:
    New Orleans v. Pierre D. Poutz.
    The principle enunciated in the case of Municipality Mo. 1 v. Wheeler <£ Blake, 10 An. 745, to the effect, that an ex 2>od facto law which does not relate to crimes and offences, and does not impair the obligations of contracts, nor divest vested rights, is not unconstitutional, reaffirmed.
    from the Fifth District Court of New Orlerns, Eggleston, J.

      Hunt & Denegre, for plaintiff. H. Griffon, for defendant and appellant.
   Voorhies, J\

The defendant is sued for taxes on capital, owned and employed by him within the limits of the late Municipality No. One, during a period of three years, 1848,1849 and 1851. The plaintiff’s warrant to levy these taxes, is the Act of 1850, approved February the 7th. The former, however, contends that the Act is retrospective in its character, and was intended to act upon things then wholly past; hence its unconstitutionality.

In the case of the Municipality No. One v. Wheeler & Blake, 10 An. 745, where the same question was raised, it was held, that this statute was not unconstitutional. The court said : “'It is not an ex post facto law, as it has no relation to crimes and penalties. Art. 8 of the Civil Code, which is the creation of the.legislative power, cannot control the power that created it. However repugnant to logic and sound policy they may be, retrospective laws in civil matters do not violate the Constitution, unless they tend to divest vested rights, or to impair the obligation of contracts, neither of which can bo predicated of the Act in question.”

In the case of the City of New Orleans v. Cordeviolle & Lacroix, 13 An. 268, the same point was decided in the same way, the court observing, that the constitutionality and legality of the law and ordinance, imposing the tas in question, had been fully discussed in the previous case of Municipality No. One v. Wheeler & Blake.

This is the fourth time that we are called upon to determine the point of the legality and constitutionality of what is termed the retroactive taxation by the City of New Orleans, under the provisions of the Act of the 7th of February, 1850. The doctrine of stare decisis finds, in this instance, its applicability, since we are called upon by the defendant, in order to grant him the relief sought, to reverse a rule repeatedly recognized and acted upon by this court.

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


source: Caselaw Access Project

author: Voorhies, J.

license: Public Domain

text:
    City of New Orleans v. Samuel Locke.
    The decision in the case of City of New Orleans v. Pouiz, ante p. 853, affirmed.
    A tax bill is not an open account; tliore is no provision of law fixing tlio period of prescription of a tax bill at five years.
    from the Fifth District Court of New Orleans, Eggleston, J.

      Johnson & Denis and Hunt <& Denegre, for plaintiff. E. H. Dwell and <?. A. Breaux, for defendant and appellant. *
   Voorhies, J.

This case presents the same question of unconstitutionality of retroactive taxation, as the one just decided of the City of New Orleans v. P. D. Poutz.

There is, besides, the plea of prescription of three and five years.

With regard to the prescription of three years, the court is referred to the 2d section of the Act relative to prescription, approved 5th of March, 1852. Soss. Acts, p. 90. The sections reads :

“ All other open accounts, the prescription of which is ten years by existing laws, shall be prescribed by three years.”

The imposition of a tax cannot be assimilated to an account, and still less to an open account. When a tax is laid, and the delays granted to question the correctness of the assessment have expired, the matter is closed in that respect. The right to resort to executory proceedings for the collection of both State and Municipal taxes, is a sufficient answer to the point, that a tax is an accouut, and especially an open account.

There is no provision of law fixing the period of five years for the prescription of a tax.

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


author: Buchanan, J.

text:
    A. M. Morales v. B. Marigny, her husband.
    The matters treated of in tlio law 29 of title 11 of tho 4th. Partida concern the forum, and have no application in the courts of Louisiana.
    Although the partios to a marriage contract have submitted themselves to the laws of a foreign country, as to the interpretation of the contract, the jurisdiction of the tribunals of this State, where they actually reside, must be exercised in accordance with our own rules of law.
    The community of acquests and gains between husband and wife did not exist as a part of the general law of Spain; it prevailed in certain provinces of the king lorn, and not in others.
    Although by the laws of Spain the ownership of the effects acquired during marriage is governed by tho law of the province where the marriage was contracted, and not by that to winch the spouses remove, yet this is only to be understood of such effects as arc acquired in the former country, and not of such as arc acquired in the lattor.
    The wife, under tho laws of Spain, as well as under our laws, is entitled at any time to resumo tho administration of her paraphernal estate.
    PPEAL from tlie Third District Court of New Orleans, Duvigneaud, J.
    XJL P. E. Bonford, for plaintiff, argued :
    1. Under the marriage contract, the sums to be received by defendant for plaintiff were paraphernal, and did not enter into the community.
    The reasons given by the District Court for adopting this interpretation are conclusive.
    The same construction has invariably been given to the contract by the defendant. See his receipt, in which he says that the clause relied on was “ pour la conservation des droits de la dite dame.” Seo also his answer in this ease, in which he formally admits he is the plaintiff’s debtor for the sums received by him.
    2. The court erred in rejecting from plaintiff’s demand—
    1st. The sum of §20,239, being the estimate value of the lands assorted to be valueless from defect of title, and alledged to be included in the receipt for §50,000, of the 4th March, 1818.
    Because there are no legal or sufficient proofs that the transfers taken from Claapella or Jorda were the lands referred to in Morales’ letter. Morales says they cost him more than §20.239, whereas these concessions cost but §0,400.
    But more particularly, because these lands did enure to the benefit of defendant.
    lie transferred them without warranty, and without recourse upon him, to the Citizens’ Bank, in part payment of a debt he owed that corporation.
    This seems to have been overlooked by tho Judge below.
    This was in 1845 ; it was only in 1850, the Supreme Court of the United States, reversing the decision of the District Court, held these grants to be void. See Berne’s case, 9th Howard.
    2dly. In rejecting the claim for §2,000, the sum received from McGuillemnrd. The lands which it is said are represented by this receipt were also transferred in like maimer as above to the Citizens’ Bank, and thus enured to the benefit of the defendant.
    3dly. The District Judge also erred in the estimate made of the defendant’s general indebtedness.
    That the gross amount of his indebtedness is §88,111 instead of §57,832 and considerably exceeds the estimate of his means, viz, §70,611.
    For those reasons, the appellee prays that the judgment of the court below bo amended, by allowing the sum of §56,171, instead of §33,852, and by decreeing the separation of property prayed for, and that thus amended, the same bo affirmed.

      Alfred Hennen, for defendant, argued :
    1. Plaintiff lias no paraphernal property. By the marriage contract, all property given by, or inherited from her lather, was to enter into the community. This was a valid and legal stipulation, and should be enforced.
    2. By the clause No. 5 of the marriage contract, the Spanish law was to become the rule of decision of all controversies which might arise under, or concerning it.
    If the plaintiff has any paraphernal property, she makes out no case, according to that law, by her petition or proof for claiming it.
    The defendant is not insolvent, and if he were, by misfortune, but not from his misconduct, the Spanish law gives the wife no right of action. The law of Louisiana cannot be invoked to decide this controversy.
    3. The bill of exceptions to the evidence of the plaintiff was correctly taken, and that evidence should be disregarded, though found in the record.
    4. The amount of property received from the father of the plaintiff by the defendant was correctly settled by the court below — $33,832.
    5. The defendant is solvent, and able to pay any claim the plaintiff may have against him.
    6. The judgment should bo reversed, and the plaintiff nonsuited.
    Partidas, lib. 4, tit. 11, laws 7, 16, 24 and 29, and gloss, of J. Lopez thereon ; 4 Febr., p. 169, No. 9, ed. 1817 ; 5 An. 408 ; o M. 83, Murphy v. Murphy; Gomez, Law of Toro 50, No. 44; 1 Escriche, 445 ; 9 Howard Rep. 127, Reynes v. United States; 2 Kent’s Com. 459 ; Pandects, lib. 23, tit. 3, 1. 6, $$ 2 and 12 ; Code, lib. 5, tit. 18,1. 6 ; 8 Rodri., 143; Azo, p. 489, No. 17.
   Buchanan, J.

The law 29 of title 11 of the 4th Partida does not apply to this case. First, because it speaks of dowry alone, and this is not a controversy about dowry. Second, because the matters treated of in that law concern the forum, and must be governed by the rules of practice in Louisiana.

1. The petition claims $30,000 for a donation propter nuptias; but this portion of the claim is discontinued. All the remaining claims are paraphernal, and the answer of defendant acknowledges an indebtedness equal to the amount for which judgment is rendered. Note, that defendant has discontinued his claim in reconvention for $6000. But the counsel of defendant argues that paraphernal property, under the Spanish law, is governed by the same rules as dotal when the dominion of the paraphernal effects is given by the marriage contract to the husband. That is not the case here. See the reasoning of the District Judge on this point, which is conclusive.

2. The parties submitted themselves, by their marriage contract, to the law of Spain as to the interpretation of their rights and claims upon each other ; but they did not, and could not, oust the tribunals of this State, the place of their intended and actual residence, of jurisdiction of their disputes; and that jurisdiction is necessarily to be exercised according to our own rules. We must look to Articles 2345 and 2399 of our Code, to know when a restitution of the dowry may be sued for in Louisiana, and not to the 29th law of title 11 of the 4th Partida.

We conclude that, both by the judicial confessions in the answer of defendant, and by the terms of the law 29 of the Partida, as well as by the rules in relation to the jurisdiction, that law is excluded from our consideration.

Second point. But the counsel of defendant asserts that the sums comprised in the receipts of defendant in favor of his wife are not dotal, but effects of the community of acquests; and he relies upon the expression at the end of the second clause, “ entraren en la comunidad,” “ shall enter into the community.”

Upon this point, wo may remark with the Judge of the court below, that the obligation imposed upon defendant by that same (second) clause of the marriage contract, to give written receipts and acknowledgements for all sums to be re-coivecl cm account of his wife, is inconsistent with the idea that it was the intention of the parties to transfer the ownership of such sums to the defendant.

Again, the community of acquests does not seem to haye been part of the general law of Spain ; it prevailed in certain provinces of the kingdom, and not in others. This is perfectly plain from the 24th law of the 11th title of the 4th Par-tida, p. 532 of Moreau & Oarleton’s translation, and from the Gloss, of Gregorio Lopez, translated in the notes on pages 533 et seep Prom that law and that Gloss, (recognized in Spain as of equal authority with the text,) it likewise appears that, although the ownership of the effects acquired during marriage is governed by the law of the country or province where the marriage is contracted, and not by that of the country to which the spouses remove ; yet this is only to be understood of such effects as are acquired in the former country, and by no means of such as are acquired in the latter. But all the sums received by defendant on account of his wife, were so received in Louisiana, many years after their removal to this State. But however this may be, the defendant has es-topped himself by his pleadings.

The defendant is concluded by the admissions in his answer, which states as follows : And further answering respondent says, that deducting the aforesaid sum of $6,000 from the amount which (from his admissions above) was actually received by him from his wife, to-wit, thirty three thousand seven hundred and nineteen dollars, he remains her debtor for the sum of $21,719 ; for which amount alone she can have judgment against him, if she succeed in showing she is entitled to the separation of property prayed for.”

How can defendant be tolerated, after this formal admission of indebtedness to his wife for those sums received, in now asserting, through his counsel, that these sums belonged to himself as head of the community ?

The judgment of the District Oourt has followed, step by step, the admissions of defendant’s answers. He has been allowed all that he demanded, and we are at a loss to perceive of what ho complains. Por as to the resumption of the administration of her paraphernal estate by the plaintiff, her right is absolute, not only under the Code, but even under the law 17 of the 11th title of the 4th Par-tida, quoted by defendant’s counsel. Moreau & Oarleton’s Partidas, p. 523.

There is an answer to the appeal, praying for an amendment of the judgment, by allowing to plaintiff the amount of defendant’s receipts, rejected by the District Oourt.

That amount represented some forty thousand acres of land east of the Mississippi river and west of the Perdido, granted by Morales, as Governor of Florida, to defendant, after the cession of Louisiana to the United States — grants which have been decided by the Supreme Oourt of the United States to be invalid Reyne’s case, 9 Howard.

That amount receipted for, on this account, by defendant, would, therefore, appear to have been properly deducted from the plaintiff’s claims. But her counsel contends that this amount has been available to defendant in payment of his debts ; these Florida grants having been assigned by defendant, with a great deal of other property, in October, 1845, to the Citizens’ Bank, in payment of a large debt due by defendant to that bank ; which assignment was made expressly without any warranty of title whatever.

But it is extremely difficult, if not impossible, to assign any fixed value to these lands specially, in the dation en paiement in question. No estimation is made of any of the various pieces of property and tracts of land, included in the same. And we cannot say, therefore, to what extent the defendant has benefited by this assignment of those grants.

Under all the circumstances, we are not prepared to allow the amendment prayed for by appellee.

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

Note. — Reasoning of the District Judge referred to in the preceding opinion.

Assuming then, for the sake of argument, that this case is to be decided under the Spanish law, although the plaintiff has permitted her husband to receive from others her paraphernal property and administer it, the record furnishes no evidence whatever, that she ever, either expressly or impliedly, gave it to him, with the intention that he should have dominion over it during the marriage.

Indeed, as I understand, the defendant’s counsel, he relies upon the second clause of the marriage contract, for a very different purpose. He relies upon it as showing, not that plaintiff agreed beforehand that all her future property should pass under the dominion of her husband, temporarily only, aud while the marriage might last, but as showing that it was to pass forever into the “ comunidad," in other words, that she should never have any paraphernal property ; that everything coming to her after marriage, should become “ bienes gananciales,’’ and such, in my opinion, is the only interpretation favorable to the defendant, which the clause will bear.

It was inserted in the contract for such a purpose. I do not know in what light it would be considered by a Spanish tribunal, there being no corresponding obligation on the part of the husband. See Escriche, verbo “ Comunidad de bienes.” But, so far as concerns property accruing to the wife in Louisiana, it would become an important enquiry how far it conflicted with the policy of the State, which makes children forced heirs of their parents, and which is, also, the foundation of some of the Articles of the Code, which regulate the relation of husband and wife.

But in my opinion it was framed for no such purpose. Escriche in his Dic-cionario razonado, verbo “ Bienes gananciales,” after explaining the meaning of the term, observes : “ Como en algunos casos pueden suscitarse dudas sobre si ciertos bienes son 6 no de esta clase, es necesario tener presente, para mayor acla-ración de algunos puntos que ocurren, que se reputan gananciales los bienes pro-pios del marido ó de la muger que se encuentran de tal suerte mezclados ó con-fundidos, que no se sabe k cual de ellos pertenecen, y ninguno de ellos puede acreditar su derecho de propriedad, ley 4, tit. 4,1 ib. 10, Nor. Reo.; por cuya razón, al contraerse el matrimonio suele otorgarse escritura pública en que conste los que tenia cada consorte.

The defendant at the time of the contract had a large property ; in pursuance of the custom there spoken of, it is all described. The plaintiff had none ; but she expected to receive some after the marriage. Hence the stipulation, for her equal protection, that the defendant should make a written acknowledgement in her favor, every time property should accrue to her during the marriage.

It is evident that such acknowledgements would have been useless to her, if all her property was to become “ bienes gananciales," since, by such an arrangement, she would loose all separate right to it; and whatever might have been her con-tribntion, and even if she had made none, she would, at the dissolution of the marriage, be entitled to neither more nor less than half of the “ bienes ganaría dales.

This view of the case is confirmed by the 5th clause of the contract which first, in general terms, places the contract under the protection of the Spanish law, and then expressly states that the “ gananciales ” shall be regulated by it.

Property accruing to either spouse by inheritance does not become “ bienes gananciales ” by force of that law. It is more than confirmed by the answer of the defendant, who admits that he owes his wife a very large sum, received on her account during marriage, though denying her right to recover it now. .


author: Vooriiies, J. Merrick, O. J.,

text:
    W. A. Hanney & Co. v. H. E. Boehner.
    It is not nocessary to state in the affidavit for a writ of arrest, where the defendant resides or has his domicil.
    If the case comes within the exception in favor of non-residents, the defendant may plead the exception, and in proof of it, the proceeding in arrest will be sot aside, if it was not alleged in the affidavit that the defendant had absconded from liis residence.
    PPEAL from the Second District Court of New Orleans, Morgan, J.

      XX G. L. Bright, for plaintiffs and appellants. Race & Foster, for defendant.
   Vooriiies, J.

This case comes up on a rule as to the sufficiency of the plaintiffs’ affidavit to proceedings in arrest of defendant. The latter, in his rule, avers,

“ that the affidavit made by the plaintiffs to obtain the writ of arrest is untrue and insufficient; that he is at present a non-resident of this State ; and further, that he is not on the eve of leaving the State permanently, but on the contrary, he intends returning.”

As no evidence was introduced-on the trial below, the difficulty is narrowed down to the question of the sufficiency of the affidavit, on the face of the paper.

There is no exception on file, that the plaintiffs have failed to disclose in their petition, “ the place of residence of the defendant, or the place where he lives." C. P. Art. 172.

In the absence of an exception to such an omission on the part of the plaintiffs, the court cannot supply the objection.

Is it necessary to state in the affidavit for a writ of arrest, what the residence • or domicil of the defendant is ? Such is not the requirement of the law. C. P. Arts. 212 and 214, as amended by the Act of 1840, p. 131, s. 2, and by the Act of 1855, p. 42, s. 3.

In the present case, the affidavit was made in strict compliance with the provisions of the Code, as amended by the statute of 1840. We are not called upon, by the pleadings, to express any opinion upon the question as to the defendant’s right to avail himself of the exception introduced in favor of non-residents, by the third section of the Act of 1855, “ relative to persons arrested and imprisoned for debt.”

It was incumbent upon the defendant, if he wished to avail himself of this exception, to prove that he was a resident of another State or territory of the Union; and that proved, the failure of the plaintiffs to state, under oath, that the defendant had absconded from his residence, would have been fatal to the validity of their proceedings in arrest. Tallamon & Dessommes v. Antonio Cardenas, ante p. 509.

This court cannot take for granted, in the absence of proof to that effect, that the defendant was a non-resident in the sense of the Act of 1855.

It is, therefore, ordered and decreed, that the judgment of the' District Court be reversed, and that this case be remanded for further proceedings; the appellee paying the costs of appeal.

Merrick, O. J.,

dissenting. I think the judgment of the lower court ought to be affirmed.

It is made the duty of the plaintiff to set out in his petition the place of residence of the defendant. O. P. Art. 172, No. 3.

This is not done, and the defect is not supplied by the affidavit. The only reference to defendant’s domicil (if at all) is upon the note made a part of the petition, whereou is endorsed, “ Indianola, Calhoun Co., Texas.”

I am of the opinion, that in the harsh proceeding of arrest, it should appear affirmatively by the affidavit, or petition and affidavit, that the plaintiff is entitled to the writ. That does not appear in this case. It may be that the defendant is a resident of Texas, or some other State of this Union. If so, the affidavit is clearly insufficient. The plaintiff cannot, I think, omit the allegation of residence, and then rely upon an affidavit which could only be good in the event the defendant wore a resident of this State. C. P. 244.


text:
    Thomas Powell v. Joseph A. Graves.
    A reconventional demand, although filed at the same time with the answer, and in the same paper, is not a part of the answer.
    The Article 2700 of the Civil Code, declaring that judicial admissions cannot he divided, does not apply to admissions in pleadings.
    "Whoro the defondant has sot up a reconventional demand and neglects to prosecute it,lie cannot allege as error, that the judgment of the court holow did not pass upon his demand.
    from the Second District Court of New Orleans, Morgan, J.

      Mott & Fraser, for plaintiff. Gaither & McPheeters, for defendant and appellant.
   Buchanan, J.

This case has been already before this court (9 An. 435) and was remanded for a new trial, upon a bill of exception to the rejection of evidence offered by defendant, in support of the defence of fraud and want of consideration for the bill of exchange sued upon, contained in the answer. The alleged fraud was also the subject of a reconventional demand for damages, charged at $2,200, appended to the answer. On the return of the cause to the District Court, it was regularly assigned and tried; counsel of record for defendant not present. Plaintiff offered in evidence the draft sued on, and the answer of defendant filed in this suit on the 18th of December, 1852. No evidence was offered for defendant. Judgment having been rendered in favor of plaintiff for the amount of the draft, defendant has appealed.

His counsel argues, that the offer of defendant’s answer by plaintiff, made everything contained in that answer, evidence against him ; and, consequently, that the judgment ought to have been in favor of defendant for the amount of his reconventional demand against plaintiff. This argument takes for granted, that the reconvention was part of the answer. But this is not so. Although filed at the same time with the answer, and in the same paper, the reconvention was an incidental demand, or cross-action, instituted by defendant against plaintiff, in consequence of the action which plaintiff brought against Mm, defendant. C. P. 362, 363, 314.

And although defendant had the option, under our practice, of pleading this cause of action and of asking judgment upon it against plaintiff, either in his answer to plaintiff’s suit, or by a distinct and separate suit, (0. P. 371,) yet it is not on that account to be confounded with the answer; which properly only consists of the pleas tending to the rejection of the plaintiff’s demand, and not of such as have for their object to establish a claim against plaintiff in favor of defendant. C. P. 119, l 4; 319, ? 2 ; 362.

Considered in this light, the answer offered in evidence by plaintiff, consisted of an admission of the execution of the draft, and an allegation of want of consideration for the same, by reason of false and fraudulent representations of plaintiff, which were the cause of the draft being made. Now, it is well settled that the Article 2100 of the Code, declaring that judicial admissions cannot be divided, does not apply to admissions in pleadings. 18 La. 6 ; 4 Rob. 144.

The burden of proof of fraud and error in this contract, was upon defendant; failing to prove which, he is bound as alleged in the petition.

It is alleged as error by appellant’s counsel, that the judgment of the District Court did not pass upon defendant’s rcconvontional demand; and we are asked to remand tho cause for a new trial upon this ground. The District Court did not err. The defendant cannot be allowed to take advantage of his own neglect to prosecute his reconvontion, in order to delay the plaintiff in the recovery of his debt, evidenced by the draft on file.

Indeed, the judgment in favor of plaintiff substantially disposes of the cross-action, which has for its basis the defence set up to the action of plaintiff. That defence having failed, there would seem to be an end of the cross-action or re-convention.

Judgment affirmed, with costs.


author: Vookhies, J.

text:
    Emma Corner v. James E. Zuntz et al.
    Where executory proceedings are enjoined on tho allegations of fraud, and payment supported by affidavit, an injunction bond is not required to bo given.
    from the Fourth District Court of New Orleans, Price, J.

      T. W. Collens and ill. M. Cohen, for plaintiff and appellant. P. E. Bon-ford and H. J). Ogden, for defendant.
   Vookhies, J.

The plaintiff having enjoined executory proceedings taken out by the defendants, upon certain mortgage notes transferred to them by the payee, a rule was taken by the transferree to have the injunction dissolved, on the ground :

1st. That the plaintiff gave no bond ; and,

2dly. That no cause of action is disclosed by tho pleadings.

The District Judge sustained the rule on the first ground, and dissolved the injunction.

The plaintiff appealed.

If her allegations of fraud and payment be taken for true, and that the defendant came by the notes since their maturity, she evidently has a cause of action. Her sworn statements to that effect, also dispense her from furnishing a bond of injunction. The 740th Article 0. P. reads : “ When the Judge grants an injunction, on the allegation, under oath, of any of the reasons mentioned in the preceding Article, he shall require no surety from the defendant, but he shall pronounce summarily on the merits of his opposition, if the plaintiff requires it, as explained below.

Now, by the preceding Article, a debtor may arrest the sale of his property by alleging : “ That he has paid the debt for which he is sued,” and also, “ that the act containing the privilege or mortgage, is forged,” or “ that it was obtained by fraud, violence, fear, or some other unlawful means.” C. P. 739.

It is, therefored, ordered and decreed, that the judgment of the District Court be reversed and avoided ; and that the case be remanded for further proceedings according to law; the appellee paying the costs of appeal.


author: Land, J.

text:
    City of New Orleans v. F. M. Fisk.
    By the Act of 1852, all suits tor impai'l taxes (luc to the city are brought by filing in court the tax bill and citing tax payers by a lvertisemeut. The tax bill must be considered as the petition, containing all the demands to which the plaintiff is entitled by law, and consequently, in such a suit, eight per cent, interest under the statute must be allowed in the judgment, as if prayed for.
    from the Third District Court of New Orleans, Duvigneaud, J.

      W. O. Denigre, for plaintiff. T. A. Bartiette, for defendant and appellant.
   Land, J.

The defendant has appealed from a judgment against him for the sum of twelve hundred and eighty-eight dollars and fifty cents, with eight per cent, interest thereon from the 7th of July, 1853, until paid. The judgment is for the amount of taxes due by the defendant to the City of New Orleans, and the only error assigned is the allowance of 8 per cent, iuterest by the judgment, on the ground that no interest was claimed in the plaintiff’s petition.

Among the provisions in the 35th section of the Act of 1852, p. 52, are the following : “ On the first Monday of July of each year, the Treasurer shall put in suit, in a court of competent jurisdiction, all unpaid bills for taxes, and shall, by an advertisement published in the official newspaper of the Council, cite all defaulters to appear in fifteen days from the date of the first insertion of said advertisement, before the respective courts in which said bills are put in suit, and answer to the demand contained in said tax bill; no petition shall be necessary, but the tax bill shall be considered as a petition ; and the said advertisement shall be considered as a citation, and no other service of citation shall be necessary. All city tax bills shall bear eight per cent, interest from the first Monday of July of the year in which they are payable.”

The tax bill was the petition against the defendant, containing the plaintiff’s demands, and must be considered as containing all the demands to which the plaintiff was entitled by law, and consequently, a demand for eight per cent, interest under the statute.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed, with costs in both courts.


author: Merrick, C. J.

text:
    Succession of Elizabeth Hughes—John Hughes et als., opponents.
    The appellate court will judge from the evidence, of the value of the services rendered by the attorney of the succession.
    The expenses of litigation between the heirs of an estate as to their respective rights, cannot be made a general charge against the succession.
    Under the pra3rer for general relief in an opposition to an executor’s account, and upon proof received without objection, the court may rcjoct the executor’s charge for commissions, although the opposition itself docs not present such an issue.
    PPEAL from the Second District Court of New Orleans, Morgan, J.

      XX Durant <fo Ilornor, for opponents and appellants. O. L. Bright, IV. 0. Denegre and M. Grivot, for appellee.
   Merrick, C. J.

Two of the opponents appeal in this case, and the appellee, the executor, by answer,, prays that the judgment be amended in his favor, by allowing him ¡15960 commissions, which were rejected by the Judge a quo.

Hughes, Yalette c6 Co. complain of the rejection of all of their claim of 351,241 allowed upon the tableau, except 35181 70 paid for city taxes. The opposition to Hughes, Yalette & Co.’s claim was made by the city, and it is now urged that the city had no interest in opposing the claim. We observe, however, that the city is placed upon the tableau as a creditor, and as the fund proposed to be distributed does not pay all the supposed debts, the city has an interest in the controversy, and is, therefore, entitled to be heard upon its opposition. The proof only establishes the item allowed by the District Judge. Sums paid by John Hughes unexplained, do not make proof of payment by Hughes, Yalette <& Co., but we do not think final judgment ought to he rendered against them, as the case now stands.

John Hughes, tutor, opposes the allowance of 352,500 attorney's fees to George Ij. Bright, Esq., for services rendered the executor. The inventory amounted to $44,955 27, and the executor charged commissions on 3538,400. Now, as the attorney’s fee appears quite large with reference to the inventory, which shows but few debts due the estate, we shall look into the papers of the succession, they being in evidence, in order to judge for ourselves the value of the services rendered, and in this regard we have the same advantages as the attorneys who have testified to the services, by a similar examination.

We find the attorney has filed the following papers, and obtained orders thereon, viz :

1st. Petition for an order on the Notary to produce the will for probate.

2d. Petition that the will be registered and executed.

3d. Petition that an attorney be appointed to represent the absent heirs, and for an inventory.

4th. Petition to homologate the inventory.

5th. Petition for sale of household furniture, &c.

6th. Petition for sale of slaves, and rule on heirs to show cause why they should not be sold, and a trial of the rule; it being contested.

7th. Petition of the executor’s attorney in fact, to have his power of attorney registered ; and the

8th. Petition accompanying a tableau proposing to distribute $10,657 22, and the tableau having about fifty items including debit and credit sides thereof.

There appears to liare been no litigation with third persons, except a suit against Cory, for which the attorney is allowed ten dollars. The litigation between the heirs as to their respective rights, does not become a general charge against the succession.

In the services, which we have enumerated, there does not appear to have been any matters difficult of solution or require much labor or professional skill.

It does not appear to us that more than seven hundred and fifty' dollars ought to be allowed for all the services rendered by the attorney, and this seems to u's a liberal and ample compensation.

The will of the deceased gave the disposable portion to the executor. He is not, therefore, entitled to charge commission as executor. C. C. 1679. But it is said the opposition does not make this issue, and, therefore, it cannot be considered.

The opposition contains a prayer for general relief, and the proof which appears to have been received without objection, shows that the executor is not entitled to charge this sum. Judgment may be rendered upon the proof.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be amended, by reducing upon the tableau the amount allowed George L. Bright, Esq., as attorney’s fees, $2,500, to $750 ; and that the right be reserved the said Hughes, Valette & Co., to claim in any future proceeding, or - by suit, all other items of their account, except for the sum of $181 70, allowed them ; and that such judgment, so amended, be affirmed ; the appellees, R. L. Hughes and City of New Orleans, paying the costs of the appeal.


author: Merrick, O. J.

text:
    W. B. Robertson & Brothers v. Lafayette Caldwell, Commissioner Second Swamp Land District.
    Since the Act of tlie Legislature of 1858, ordering hack into the treasury all funds in the hands of Swamp Land Commissioners, proprietors whose levees have caved in or have been destroyed hy the action of the current of the river, cannot require the Commissioner to proceed under the 10th section of the Act of the Legislature of the 16th of March, 1854, to construct said levoes without a special appropriation hy the Legislature for that purpose.
    The general appropriation to the Swamp Land Board, hy the Act of the Legislature of 20th of March, 1856, is in contravention of the 94th Article of the Constitution, which declares, “that no money shall be drawn from the Treasury, hut in pursuance of a specific appropriation made hy law, nor shall any appropriation of motley he made for a longer term, llum two years.1’

    RPEAL from the Sixth District Court of West Baton Rouge, Beale, J.

      _t\_ Barrow <® Pope, for plaintiffs and appellants. J. H. New, for defendant.
   Merrick, O. J.

This suit is instituted against the Second Swamp Land Commissioner, to compel him, by the writ of mandamus, to build the levee on the plantation of plaintiffs in the parish of West Baton Rouge, under the provisions of the tenth section of the Act of the Legislature, approved 16th of March, 1854. Acts of 1854, p. 94.

The District Judge having dismissed the proceeding, plaintiffs have appealed.

The Act under which plaintiffs’ claim relief, is an amendment of an Act approved 3d of April, 1853, to reclaim the swamp and overflowed lands donated the State by Act of Congress of 2d of March, 1849.

The tenth section of the Act of 1854, relied on, makes it the duty of the Engineers in their respective districts, to determine the locality, extent and dimensions of the necessary levees and drains; to drain and reclaim the swamp and overflowed lands; and another clause authorizes the proprietor whose levee has caved in or been destroyed by the action of the current, on the report of three freeholders, who express the opinion that the levee ought to be renewed or repaired by the Swamp Land Commissioners, to notify the Commissioner of the Swamp Land District of the same ; and thereupon it is made the duty of such Commissioner to send his Engineer and have the levee constructed.

The last general appropriation to the Swamp Land Board, was made by Act of 20th of March, 1856. Acts of 1856, p. 214, No. 99.

In 1858, the Legislature ordered back into the treasury, all funds in the hands of the Swamp Land Commissioners. See Act, approved 18th of March, 1858, p. 210.

Since this period, the Legislature has made special appropriations for particular works, but none for the work in question.

This suit was not commenced until the 8th of October, 1858, and hence the Legislature had not only withdrawn the fund from the control of the Commissioners, but the 94th Article of the Constitution had taken effect upon the appropriation of 1856. The Article declares, that no money shall be drawn from the treasury but in pursuance of a specific appropriation made by law, nor shall any appropriation of money be made for a longer term than two years.

There was, therefore, no error in the judgment of the lower court in refusing plaintiff’s demand for want of an appropriation.

Judgment affirmed.

Cole, J., took no part in this case.


author: Cole, J.

text:
    City of New Orleans v. Fassman & Yancey.
    The profits realised from tlie use of a cotton press, drays and slaves, ¡^carrying on the business of a cotton press, are not subject to taxation as ec income,” under the 3d and 4th sections of the Act of the Legislature of 1856, authorizing the city of New Orleans to tax real and personal property.
    from the Sixth District Court of New Orleans, Howell, J.

      W. O. Denegre, for plaintiffs. T. J. S A. G. Semmes, for defendants and appellants.
   Cole, J.

This is a suit for taxes alleged to be due to the city of New Orleans.

The only part of the tax bill which is opposed in this court, is that which assesses the income of defendants.

There was judgment for the city, and defendants have appealed.

“ It is admitted that the defendants have no other joint property than the lease of a cotton press, the slaves engaged in the business of compressing cotton, the machinery incident thereto, and the drays, carts, mules, and implements connected with that business ; that they are not the owners of all of the real estate on which the cotton press is situated, but of a portion thereof, viz, one of the yards ; that they have no income except what is derived from this business, and which is the income upon which the tax is based.”

The material question is, whether the revenues derivable from a cotton press are “ income,” within the meaning of the Act of 1856, “to authorize the corporation of the city of New Orleans, to tax real and personal property.” Session Acts of 1856, p. 109.

This Act declares : That all real and personal property located within the corporate limits of the city of New Orleans, shall be liable to taxation, subject to the exemptions specified in this Act.

Sec. 2. That the term real property, as used in this Act, shall be construed to include land, slaves and buildings, machinery and structures of every kind, erected upon or affixed to the same.

Sec. 3. That the term personal property, as used in this Act, shall be construed to include all household furniture, silver plate, goods, capital, incomes, public stocks and stocks in corporations, moneyed or otherwise, and, generally, all property which is not real.

Sec. 4. That the term income, as used in this Act, shall be construed to include and be confined to all monies, salaries, wages, pay, commission, brokerage and fees received in compensation of services or labor rendered, and all revenues and dividends received upon stocks in money corporations not taxable under this Act.

We are of opinion that it was not the intention of the Legislature to tax real property under the term of land, slaves, &c., and then to tax under the term of incomes the profits realised from such land, slaves, &c.

It would be double taxation, first to tax property to the extent allowed by law, and then to tax the profits derived from such property.

The tax of three hundred dollars on income, but which is in reality a tax upon the revenues of the cotton press, cannot be allowed, because the compensation for compressing cotton is derived, not from the personal services of the owners of the press, in the sense of this statute, but from the use of the press, drays and slaves* used in carrying on the business of a cotton press, which press, drays and slaves, have been already taxed.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; and that the plaintiff recover from defendants eighty-two dollars and fifty cents, with one per cent, per month interest thereon, from the thirteenth day of July, 1858, until paid, and costs of the lower court, with privilege on the property described in the tax receipts sued on, for payment of the same ; and that plaintiff pay the costs of appeal.


text:
    Thomas Ridge v. Charles E. Alter et al.

      "Where a defendant is sued as silent partner in a commercial firm, service of citation on the Cleric ot' the firm is not sufficient.
    "Where there is no proof of the authorization of an attorney to defend a suit, and such authorization is denied on oath by the defendant who was not legally cited, a judgment against the defendant will be annulled.
    from the Sixth District Court of New Orleans, Howell, J.

      J, N. Brickell, for plaintiff and appellant. Durant & Ilornor, for defendant.
   Cole, J.

Plaintiff sues to annul a judgment on two grounds : first, because he was never cited; and second, because the attorney who appeared for him and defended the suit, was not authorized by him. The injunction obtained by plaintiff against the execution of the judgment was dissolved, and he has appealed.

It appears that Charles E. Alter, in 185V, sued fosé Salé for a bill of groceries, and alleged that at the date of the sale, José Salé transacted a commercial business with John Ridge, as a silent partner, and was liable with Salé for the bill, and asked for judgment against both. Alter obtained judgment, but by consent it was set aside, and a new trial granted.

Alter then filed a supplemental petition, in which he alleged that Thomas Ridge, a brother of the said John Ridge, was also a partner with Salé at the time the articles in the bill were sold. There was judgment in solido against Salé and Thomas Ridge.

An execution having issued, it was arrested by the injunction sued out by Thomas Ridge, in the present case.

I. The return on the citation to Thomas Ridge, is as follows :

“ Received, May 5th, 1857, and on the 6th day of the same month and year, served copy of citation and original, with supplemental petition, on Mr. Thomas Ridge, through his brother, John Ridge, and who accepting personal service for his brother, Thomas Ridge, and he being [***] at the time of service.

William Albert, Deputy Sheriff.”

[Between “ being” and at” in the return, there is a clerical omission ]

There is no proof that John Ridge was authorized to accept service for Thomas Ridge.

Thomas Ridge has annexed to his petition of injunction his oath, that he was never cited, and never authorized any attorney to defend him in the suit.

The service on John Ridge, considered as a Clerk, is not good, because Thomas Ridge is sued as a silent partner, and firms alone can be cited in that manner. C. P. 198 ; 1 An. 146.

II. Mr. Elliot, the attorney who filed the answer for Thomas Ridge, states, that John Ridge handed him the petition, and said it was at the request of his brother, Thomas Ridge, and Judge Beecher also informed him that Thomas Ridge wanted him (Elliot) to attend to the suit with him.

There is no proof that Thomas Ridge ever directly employed Mr. Elliot, and he has denied it under oath.

There is no doubt that Mr. Elliot considered himself justified, under the circumstances, in filing the answer, but this case shows the necessity of a personal authorization by the party, before an attorney appears for him.

As there is no legal proof of authorization of the attorney, and as the citation is void, the judgment must be reversed.

It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed, that the judgment pi Charles E. Alter against plaintiff, signed in December, 1857, in the Sixth District Court of New Orleans, be decreed to be null and void ; and the Sheriff of the parish of Orleans, and Said C. E. Alter, are perpetually enjoined from executing said judgment against Thomas Ridge. It is further ordered and decreed, that C. E. Alter pay the costs of both courts in the present suit.


text:
    C. H. Davis v. H. C. Millaudon, Agent.
    All order of seizure and sale may be enjoined on the ground of a deficiency m the quantity of land sold, which would entitle the vendee to a diminution of the price.
    A tonder by the vendor of other lands to supply the deficiency in the quantity of land sold, is an admission of tho deficiency, and such admission is not avoided by the declaration in the plea of tender, that tho party does not thereby waive the benefit of his plea of the general issues.
    A claim in diminution of -price is not a demand in compensation or set oil', in the legal sense of tho term, and may bo set up as a ground of defence by the vendee when sued for the price, without Ins being obliged to resort to a separate action.
    Tho maxim of law “ quee temporalice, <£c.” has survived the general repealing Act of 1828, and although the action quanti minoris be prescribed, the vendee, when sued for the price, may resist tho payment on the ground of a claim to a diminution of the price.
    from tlie District Court of the Parish of St. Bernard, Foulhouze, J.

      Geo. 8. Lacy and R. A. Upton, for plaintiff and appellant. P. A. Ducros, Jr., for defendant.
   Land, J.

This is an injunction suit, to arrest the execution of an order of seizure and sale, sued out for the collection of a mortgage note given in part payment of the price of a plantation and slaves purchased by the plaintiff from one Benjamin L. Millaudon. The alleged grounds for the injunction are, the danger of eviction by reason of an outstanding title, and a deficiency in the quantity of the land sold, exceeding one-twentieth part, which diminishes, as alleg’ed, the value of the estate in the sum of, at least, sixteen thousand dollars.

The first ground of injunction was decided recently by this court, in the case of the plaintiff, Charles S. Davis v. Laurent Millaudon, and adversely to his pretensions. It is, consequently, only necessary to consider the second alleged ground for the injunction. '

The defendant, in his original answer, avers that the sale to the plaintiff was a sale per aversionem, in which the quantity of acres mentioned is of no importance, and pleads the prescription of one year to the plaintiff’s demand for a diminution of the price. In a supplemental answer, the defendant pleads a peremptory exception to the plaintiff’s petition, on the ground that his demand for a diminution of the price is an unliquidated claim, which cannot be pleaded in compensation of a debt evidenced by an act importing confession of judgment, nor can arrest a writ of seizure and sale thereon. He further pleads, (though denying the right of the plaintiff to call upon him for a diminution of the price, for the reasons set forth in his supplemental and original answers,) that he purchased, on the 19th of July last, some two hundred and fifty acres of land, in tho rear of that portion of the plantation which lies on the right bank of the bayou, which ho hereby tenders to said plaintiff, to be considered as forming a portion and parcel of his plantation.

This supplemental answer was filed on the 27th of September, 1858, and on the 7th of October following, the plaintiff made an application for a continuance, on the grounds of the absence of a material witness, and that further time was necessary to enable him to inquire into and examine the defences that he may have to the demand tendering now lands in satisfaction of his claim for diminution of price; and in his affidavit, deposes, that it is important for him to ascertain, 1st, whether the title to the land tendered is good and sufficient in law; 2dly, if the title be good, -whether or not, the land called for by the same can bo found; 3dly, the location of the same; and 4thly, its quality and character. He further deposes, that if time be granted to him, he can show upon the trial of this cause, that there is not a legal title; that the quantity of land covered by such title cannot be found; that its location is not such as would authorize the defendant, under any circumstances, to tender the same; and that it is continually under the waters of the gulf, marshy, and of but little value. The application for the continuance was refused, for the reason stated in the bill of exceptions, that “ the court considered that a sufficient legal ground for such continuance was not set forth in the affidavit.”

In our opinion, the District Judge erred. If a vendor has the right to tender other lands in satisfaction of a vendee’s demand for a reduction of price, in consequence of a deficiency in the quantity of land sold, the tender should be of lands of the same quality and value as those actually conveyed, and to which the vendor has in law a good and sufficient title. It cannot therefore be said, that the plaintiff’s affidavit set forth no legal grounds for a continuance, because the matters set up in the affidavit were material and pertinent to the issue raised by the plea of tender of other lands. The plea of tender was an admission of a deficiency in the quantity of the land sold, and was inconsistent with the plea of the general issue; and this inconsistency was not avoided by the defendant’s declaration, that he did not intend to waive the benefit of the latter plea. A tender in open court of the thing demanded, or its equivalent, is certainly an admission that the thing itself is due, and is consequently inconsistent with an averment, or plea, that the thing is not due. It has ever been held, that the plea of payment is inconsistent with a general denial, and a jslea of tender cannot be less so.

On the trial of the cause, which took place on the same day, the plaintiff’s counsel offered evidence to prove all the facts necessary to sustain his demand for a diminution of price, and the defendant, by his counsel, objected thereto, upon the grounds that the claim in diminution was not a liquidated demand, which could be set off against an act importing confession of judgment, or could arrest the execution of a writ of seizure and sale issued thereon. The court rejected the evidence, for the reason stated in the bill of exceptions “ that the plaintiff should resort to a separate action." The District Judge erred. The claim in diminution of price was not a demand in compensation, or set off, in the legal sense of the term. Compensation presupposes and admits the existence of a debt due. A claim in diminution of price is a denial of the vendor’s right to recover the whole amount claimed on the ground of a failure of consideration, and is consequently of a very different nature. It has already been decided, that a vendee, when sued for the price by the vendor, may plead in his defence, by way of exception, that the consideration has failed, through a deficiency in the quantity, or through the redhibitory defects of the thing sold. Thompson v. Milburn, 1 N. S. 468 ; Davenport v. Fortier, 3 N. S. 695 : Bushnell v. Brown, 4 N. S. 500. Upon the authority of these decisions, the plaintiff had the right, as vendee, when sued for the price by the vendor, who is the defendant in this action, to claim a diminution of the price, and was not bound to institute a separate action for that purpose.

The defendant’s counsel, however, contends, that the claim in diminution of price was prescribed by the lapse of one year before the commencement of this suit by injunction, and is therefore extinguished. He further contends that the rule of the Roman law, qw temporalia sunt ad agendum., sunt ad excipiendum perpetua, has been repealed, and no longer forms a maxim in our jurisprudence. We find that it has been otherwise considered by our predecessors, and recognized as a maxim of law which survived the great repealing Act of 1828, and which they have declared applicable to a certain class of cases well defined in the opinion of Mr. Justice Slidell in the case of Boeto v. Laine, 3 An. 141. The vendor’s right of action for the recovery of the price, and the vendee’s right of action for diminution of price, arise out of the contract of sale of the plantation and slaves now in controversy, and the claim for diminution is, consequently, in the language of the commentators, visceral — necessarily attached to the vendor’s action for the price, and inseparable from the contract of sale itself. We are therefore of the opinion, that the vendee’s claim for diminution comes within the operation of the rule, quae temporalia, and, that being sued for the price, he may avail himself, as a matter of defence, of a deficiency in the quantity of the land sold, though the action quanti minoris be prescribed. See 1 N. S. 468, 3 N. S. 695, 4 N. S. 500, 2 An. 546, 3 An. 141.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed, and the cause remanded to the lower court for further proceedings according to law, and that the defendant pay the costs of this appeal.

Note, — The pleadings and issues are different in this case from those in the case of the plaintiff against Laurent Millaudon, referred to in the foregoing opinion.


author: Buchanan, J. Merrick, O. J.,

text:
    Alfred Kearney & Co. v. Robert Fenner & Co.
    Suit being brought against B. B. and G. TF., as composing the commercial firm of R. F. & Co., and the petition and citation served on R. F. alone — Held: That the service of citation was sufficient as to both partners.
    In a suit against the maker of a promissory note, in continuing a judgment by default, it is not necessary that the signature of the maker should be proved.
    Where the name of one of the partners, who is sued on a note of the firm, does not appear either in the firm name or in the return of citation, the fact of his being a partner must be proved, to entitle the plaintiff to confirm a judgment by default against him.
    PPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      JLX. G. L. Bright, for plaintiff. M. M. Cohen and Lea & Marr, for defendants and appellants.
   Buchanan, J.

This action was instituted upon five promissory notes, payable to the order of plaintiff, and signed “ R. Fenner & Co.”

The petition alleges, that the firm of R. Fenner & Co. is a commercial partnership composed of Robert Fenner and William Crawford.

Citation issued to “ R. Fenner <& Co.,” and was served upon R. Fenner in person.

Judgment by default was rendered and confirmed.

The only evidence offered to confirm the default was “ the five notes sued upon in this case.”

The judgment was against Robert Fenner and William Crawford in solido. They have separately appealed, and assign for error, that the return of citation was insufficient to justify the default; and that the evidence offered was insufficient to justify the final judgment.

We think the return of the citation served on R. Fenner in person justified the judgment by default. The Code of Practice, Art. 198, provides, that when a suit is brought against a commercial association trading under a title, or as a firm, service of citation is to be made on any of the partners in person, or upon their clerk or agent, at their place of business.

As to the confirmation of the default, Judge Rost being the organ of the court, it was decided in Davis v. Davis, 8 An. 91, that in a suit against the maker of a promissory note, in confirming judgment by default, the signature of the maker need not be proved.

It is argued that this decision has been overruled by the case of Tillett v. Upton, 12 An.; but, on examination, such does not appear to be the case. ' Tillett v. Upton was not a suit against the maker of the note, but against his administra-trix. The Article 324 of the Code of Practice, which requires the express ac-knowledgement or denial of the signature by defendant, does not apply to such a case; for that Article speaks of actions upon obligations alleged to have been signed by the defendant in the action. And as to the case of Davis v. Davis, which was grounded upon the Article 324, it is not so much as mentioned in the decision of Tillett v. Upton.

The case of Young v. Talbot, 12 Rob. 518, quoted by Judge Voorhies in Tillett v. Upton, rather favors the doctrine of Davis v. Davis; for no objection is made therein to want of proof of signature of the maker of the note (defendant in the suit), but of that of the payee and endorser, the plaintiff being endorsee.

It is believed that the case of Davis v. Davis has been generally acted upon as a rule of practice in the courts of the first instance, ever since its publication in the Reports; of which, indeed, the present case furnishes an example. We have given full consideration to the objections urged against that decision of our predecessors, and do not find it necessary or expedient to disturb it.

We cannot, however, stretch the admission implied from the judgment by default, to the allegation contained in the petition, that the appellant, William Crawford, (whose name does not appear in the firm, nor in the return of citation,) was a member of the firm of R. Fenner & Co. This is a fact which should have been proved, under the circumstances, before entering up final judgment against him individually.

It is, therefore, adjudged and decreed, that the judgment appealed from be affirmed, as to the appellant;' Robert Fenner; that it be reversed as to the appellant, William Crawford, and that there be judgment in favor of said Crawford, as in case of nonsuit; that the costs of the District Court be borne by defendant, Fenner, and those of appeal one-half by said Fenner, and one-half by plaintiff.

Merrick, O. J.,

dissenting. I adhere to the decision of Tillett v. Upton, 12 An., which I understood as overruling the case of Davis v. Davis.


text:
    J. S. David and J. F. Livaudais v. Municipality No. Two.

    A market, though destined to a public use, is not necessarily public property.
    A dedication to public use is inchoate only, until after its acceptance, which acceptance may be shown by authentic act or the use of the property in the manner and for the object designated.
    The designation for a public purpose of a space of ground upon a plan is not of itself evidence of an intention to dedicate, the essence of the dedication consisting in such case in the assent of the proprietor to the use designated.
    from the Second District Oonrt of New Orleans, Lea, J.

      Geo. Eustis, Jr., and A. Pitot, for plaintiffs. R. Hunt, T. R. Wolf and /. Livingston, for defendants and appellants.

      This case was omitted in the Reports of 1855.

   Buchanan, J.

This case is identical in principle with those of Livaudais v. Municipality No. Two, 16 La. 509 ; Livaudais & David v. same, 5 An. 8 ; Municipality No. Two v. Palfrey, 7 An.; A. Xiques et al v. Bujac et al., 7 An.

For the reasons assigned by the Judge of the lower court, it is ordered, adjudged and decreed, that the judgment appealed from be affirmed, with costs in both courts.

Opinion of the Disteict Judge.

In this case, both parties trace their alleged title to a common source. The plaintiffs and intervenors claim to be declared the owners, and as such to be put in possession of a portion of ground on which the defendants have erected a market, situated at the head of Market Street, between St. James and Eichard Streets. The defendants allege that the property claimed by the petitioners belongs to and is vested either in the defendants or in the public, and is under the administration of the defendants. That said property was dedicated to the public, to be used as a market under the regulations of the defendants. By a supplemental petition the plaintiffs ask, that in case the court should be of opinion that the Municipality have the right to hold said property as a market, that they be condemned to pay to petitioners the value thereof, with interest, &c. There is but one point on which this ease can be distinguished from those in 5 An., p. 8, and 16 La., p. 509. The piece of ground in controversy was part of the land laid out in lots and squares on an original plan made by B. Lafon in 1807. It was marked on the plan with the word “ marché on the space designating the parcel of ground claimed in the petition. In the cases referred to it was held that the words “ Colisée ” and “ Eglise de l’Annonciation ” could not be construed as constituting a dedication to public use, as places .of public worship and public amusement are invariably owned as private property, and the question now presented for solution is, whether at the time the plan was made, a market, situated on the spot in controversy, was or was not susceptible of private ownership. This is not the only question presented under the pleadings, but an affirmative decision on this point brings it clearly within the scope and application of the principles laid down in the cases above referred to. There is certainly nothing in the uses to which a market is applied, which is inconsistent with private ownership. It is true, markets are public places, so are theatres and churches. The fact that property is used for purposes of public convenience or necessity does not divest the owner of his title, nor invest it in the public. The public hydrants are the property of a private corporation. The city is lighted by a private company. Until very recently, two of our municipal halls were owned by private indi viduals. The building' in which the courts are held belongs to a private corporation, and it has been recently decided that even the Parish Jail is the exclusive property of the First Municipality, the other two municipalities paying rent therefor as lessees. If a jail, a courthouse, or a municipal hall be susceptible of private ownership, why may not a private individual own a market ? If water and light may be supplied to the public by individuals for their private emolument, why may not food also ? If I am not mistaken, this is actually done at present. The markets, though owned by the city, are farmed or leased out to individuals. The fact that the word “ marché ” is figured on the space where the ground in controversy is situated, does not then of itself constitute a dedication, so far as to operate as a divestiture of title. It is not necessarily public property. I do not wish to be understood as laying down the proposition, that a dedication of a piece of ground for any of the uses above mentioned may not be made by an individual, that is not the issue presented. The questions to be determined in this case are, 1st, whether any dedication was made, and 2d, whether a destination to such a use as a market necessarily operates as a divestiture of title. The Civil Code is silent, so far as my examination has extended, on the subject of a transfer of the title to private property by dedication, but it is expressly laid down in the old as well as the new Code, that “ property can neither be acquired nor disposed of gratuitously, unless by donations inter vivos or mortis causa made in the forms established for one or the other of those acts.” It is true that La-fon’s plan is of an earlier dale than either of the Codes, but it does not appear that the previous legislation differed in this respect from that adopted by the Codes. Perhaps, however, the validity of a transfer of private property by dedication ought not to be questioned after the well considered decision of the Supreme Court in the case of the Municipality No. Two v. The Orleans Cotton Press, and that in the case of Livaudais v. Municipality No. Two, 16 La. The court, in the first case alluded to, appears to have adopted the doctrine of the Supreme Court of the United States as explained in the case of the City of Cincinnati v. White, lessee, 6 Peter’s Rep., that no particular form or ceremony is necessary in the dedication of land to public use, all that was necessary being the assent of the owner of the land and the fact of its being used for the purposes intended by the appropriation. Judge Martin, in his dissenting opinion in the case first quoted, says that the dedication required no other evidence than the plan and the use of those places by the public. The other Judges, though they differed from Judge Martin on other points, appear to have concurred in this definition of a dedication. It is evident that they regarded it as an agreement, though an implied one. The intention to dedicate was to be inferred from the plan desig-' nating what was to be used, and the assent given to the actual use of it for the' purposes intended. In the case at bar, it may therefore be assumed, that, had the place in controversy been used by the public for the purpose designated therein, without dissent on the part of the original proprietors, this fact, taken in connection with the designation on the plan, would have constituted an effectual barrier to their present claim, but this does not appear to have been the case. On the one part, no attempt was made to use the property in question as a market for more than forty years after the alleged dedication, and on the other, this first attempt thus to use it, so far from being assented to by the xolaintiffs, was met by a protest which was promptly followed by litigation. Reciprocal assent is of the essence of every agreement. If the object for which the alleged dedication was made had been one which in its very nature excluded the idea of private ownership, as for a quai, port, street or public square, (though the parks in some of our cities are private property,) perhaps such designation might have been considered as evidence of an intention to give, which required no formal acceptance, though the decision in the case of Livaudais v. Municipality No. Two, 16 La., clearly indicates the opinion of the court, that where there is a dedication, it is inchoate only until the acceptance of the party for whose benefit the dedication was intended, the court probably considered the use of the property for the purpose designated as an acceptance.

The conclusions to which my examination of this copious topic has led me are : 1st, that a market, though destined to a public use, is not necessarily public property, and 2d, that a dedication to a public use is inchoate only until after its acceptance, which acceptance may be shown by authentic act, or by the use of it in the manner and for the object designated; 3d, that the designation for a public purpose of a space of ground upon a plan, is not of itself evidence of an intention to dedicate, the essence of the dedication consisting in such case in the assent of the proprietors to the use designated. I do not consider that the question of servitude is presented by the pleadings. It may be true, as the counsel for the plaintiffs have themselves suggested, that the purchasers of lots in reference to this plan may have acquired rights upon the property in controversy, and that the plaintiffs have renounced the right of appropriating the property for any other purpose than a market; but those rights, whatever they may be, cannot be acted on in a suit to which they are not parties. Whether a servitude has or has not been established, and if it has, how it is to be enforced; whether it has been lost by non-usage, misuser or prescription, are questions which cannot be determined in the present litigation, the question of title being the only one presented by the pleadings. The plaintiffs have asked in their amended petition, that the property be recognized as belonging to the petitioners and intervenors in full ownership, in the proportions claimed, with the privilege of using the same as a market for their private benefit and emolument. If they are the owners of the property, they are at liberty to make any use of it which is not in violation of the rights of others, or not in contravention of the municipal ordinances. Should they make any use of it in violation of either, it will be the right of the parties, interested to seek redress by law. At present, I can see no necessity for the interference of the court; the judgment of the court should, in my opinion, recog* nize the petitioners as owners of the property claimed, without prejudice to the rights, if any they have, of the defendants, or any parties interested, to demand (after their rights thereto shall have been judicially ascertained) that the said property shall be occupied as a market, in such manner, and subject to such restrictions, as may be hereafter determined.


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    City of New Orleans v. Heirs of Guillotte.

    A market house is not a locus publicus.

    The police oí' mark ¡is under tho municipal administration is not inconsistent with their being the subjects of private ownership.
    from the Fifth District Court of New Orleans, Augustin, J.

      J. Livingston, for plaintiff and appellant. F. Buisson and R. N. Ogden, for defendants.

      This case was omitted in tho Reports of 185&

   Buchanan, J.

The plaintiff and defendants are joint owners of the Magazine Street Market, at the corner of Magazine and St. Mary Streets, and of the ground upon which said market is situated, in certain proportions stated in the petition and answer filed in this cause. The .plaintiffs are desirous of terminating this joint ownership by a partition, for which purpose they institute this action.

In their petition, they allege that the property cannot be divided in kind, and pray that it be sold at public auction, and the proceeds of sale divided between the parties in the proportion of their respective interests.

Experts appointed by the parties and by the court have reported that the property cannot be divided in kind.

The defendants object to a partition, on the ground that the property in question is hors de commerce, being destined to the public use; and in an amended answer allege, that a certain former judgment of the Third Judicial District Court, assigning the respective portions of the parties in this property, was in fact a final partition of the Magazine Street Market between them.

This latter position, which is a sort of plea of res judicata, is manifestly untenable. The judgment of the District Court referred to was the very opposite of a partition; for it established, instead of dissolving, a joint ownership, and regulated the administration of the joint property.

The plea that this property is out of commerce, and cannot be the object of a sale, appears to have prevailed with the court below,-by whose judgment the plaintiffs are referred to an action of expropriation, under Art. 2604 and following of the Civil Code, as their proper remedy.

From this judgment plaintiffs have appealed; and their counsel has judiciously observed, in argument, that if it be true that the property is already dedicated to public use, the action of expropriation would be evidently unnecessary, and the provisions of the Code cited, inapplicable.

But we have not been able to concur in the views of this case which have brought the District Court to the conclusion that the present action cannot be maintained.

It appears to us erroneous to style the Magazine Street Market a locus publi-cus. Market houses are not included in the enumeration of public things, contained in Arts. 444, 445 and 446 of the Civil Code. A market house may very well be the subject of private ownership. In many cities butcher’s meat, fish and vegetables are sold in shops, like any other commodity. Even in New Orleans, there are to be found market houses which belong to individuals. The police of markets is, every where, an important part of the municipal administration, from their intimate connection with the public health. The first section of an Act to amend the Act to incorporate the city of New Orleans, approved March 14th, 1816, (Bullard & Curry, p. 101,) gave power to the Mayor and City Council “ to establish one or more market places, and to determine the mode of inspection of all comestibles sold publicly, either in said market or markets, or in other places; to regulate everything which relates to bakers, butchers, tavern and grocery shop keepers, and other persons keeping public houses, draymen, horse-drivers, water carriers, and slaves employed as day laborers.” But from this general power of establishing markets and regulating' butchers, it does not seem to follow that the city corporation must needs be the owner of all the market houses within its limits, any more than of all the bakeries and taverns, whoso occupants are subjected to the same municipal supervision, or, in the language of the District Judge, “ that the city alone could become the bidder and purchaser of the Magazine Street Market at a public sale, to effect the partition prayed for.” The plaintiffs make no such pretension. It would be in fact glaringly in. consistent with the prayer of their petition, which is for a licitation; and there can be no licitation without a competition of bidders. A licitation where there should be only one party privileged to bid, would be a mockery of the forms of law, and a fraud upon the rights of the defendants.

It is, therefore, adjudged and decreed, that the judgment of the District Oourt be reversed, and that there be judgment of partition of the property described in the petition, by public sale to the highest bidder, after legal advertisements, and upon such terms as the parties shall agree; or, in case they cannot agree, the terms to be fixed by the District Oourt according to law. It is further decreed, that the costs be equally divided between the parties, plaintiff and defendant, one-half to each, with the exception of the costs of this appeal, which are to be borne by defendants and appellees.


author: Merrick, 0. J.

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    Hyde & Mackie v. John Higgins et als.
    An attachment will lie in an action for damages, arising ex contractu wheu the claim does not rest upon such uncertain elements of damage as absolutely to preclude the plaintiff from making an affidavit to the amount of the debt.
    APPEAL from the Third District Court of New Orleans, Duvigneaud, J.

      T. Gilmore, for plaintiffs.

      Mott & Fraser, for defendants and appellants.
   Merrick, 0. J.

This suit is accompanied by process of attachment. The cause of action alleged, is a breach (on the part of the owners of the ship) of a contract, whereby they engaged the services of plaintiff’s dock for the use of the ship Speedwell.

The damages alleged, result from the getting the dock in readiness, the delay occasioned plaintiff’s business, and the loss of profits.

There was a motion to dissolve the attachment on the face of the papers, on the ground that the action is one for damages. We concur with our learned brother of the District Oourt, that the claim, which is ex contractu, does not rest upon such uncertain elements of damage as absolutely to preclude the plaintiffs from making an affidavit of the amount of the debt. The exception was, therefore, properly overruled. Crane v. Lewis, 4 An.

On the merits, it appears that the Captain of the ship previous to its arrival, forwarded a letter, requesting an agent, Mr. Morse, to engage the Pelican dock for the ship as soon as it arrived. The agent, by mistake, applied at the office of the plaintiffs, the owners of the dry dock, it being in the same square or block with the office of the Pelican dock. Notice was given the same evening of the error and the order countermanded, but plaintiffs’ agents refused to give up the engagement and insisted upon docking defendants’ ship. On the arrival of the ship, the matter was again explained to the plaintiffs, but they insisted upon the contract. The Captain of the ship, it seems, also admitted in conversation, that he was bound by the contract, and, perhaps, promised to use the dry dock. On the 4th of February, 1856, the plaintiffs made a formal demand on the defendants to comply, which they refused to do. The ship went into the Pelican dock on the 12th of February, and the plaintiffs still persisted in making preparation as though they expected the Speedwell. There was at the time constant employment for all the docks, and the plaintiffs did not, according to the testimony have their dock idle for more than one day.

Had it not been for the admission of the Captain that he was bound by the contract, we should have no difficulty in rendering judgment for the defendants. The agent had no authority to engage the dry dock, and when immediate notice of the fact was given plaintiffs’ agents, the parties were in precisely the same situation as before the supposed agreement.

But supposing the contract to be recognized by the Captain on his arrival, and to be proved, we must then consider the question of damages.

Plaintiffs contend in this court, that they would have made a profit of $70 on the labor of the shipwrights and caulkers, and $590 for the dock itself.

The ship was five or six days in the Pelican dock. Plaintiffs were necessarily delayed at most, but one day, with the dry dock.

It would have occasioned the consumption of fuel and loss of labor to havo docked the ship, as well as danger to the dock. The $590 could not, therefore, be considered as clear profits.

This is not a case for exemplary damages, and in the absence of clear piroof of loss, we think all that plaintiffs can be allowed, is a sum equal to one-fourth of the dockage and profits upon the labor. There is no allegation in the petition from which the solidarity” of defendants appears.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that the plaintiffs recover and have judgment against the defendants, each for his virile share, viz, against John Higgins, master and part owner of the ship Speedwell, and J. H. Puly, A. G. Cutter, J. Crocker, E. Hasty, R. Higgins, R. L. Cutter, and J. Higgins, the other owners, of the sum of one hundred and eighty-five dollars, and legal interst thereon from judicial demand, to wit, March 10, 1856, until paid, with a privilege upon the property attached ; and that said defendants pay the costs of the lower court; the plaintiffs paying the cost of this appeal.


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    Elizabeth Morris et al. v. N. E. Bailey, Executor.
    A clccreo rendered by the Vice Chancery Court of Mississippi, upon default, and without notice or Oitatalion, or appearance of the defendant, is absolutely void.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      John Henderson, for plaintiffs and appellants.

      Benjamin, Bradford & Finney, for defendant.
   Land, J.

This suit is founded on a decree, by the Vice Chancery Court for the Southern District of Mississippi, against Joseph Kenton, the testator of the defendant.

The decree was rendered on a cross-bill filed by the plaintiffs against Kenton, the complainant in the original bill, in the chancery'proceedings.

The defence is, that the decree is null and void, because it was rendered by default, without notice or citation to Kenton, and further, that the deceased, in his lifetime, was sued by the plaintiffs in this State, for the same cause of action on which the decree in the Yice Ghaneery Court of Mississippi was rendered, and that, on appeal to the Supreme Court of this State, a final judgment was rendered in favor of Kenton, and that the same forms res judicata, and is a bar to this action.

Two gentlemen of the legal profession who formerly practiced in the State of Mississippi, were examined as witnesses on the trial of this case, and testified, that under the rules of chancery practice in that State, Kenton, the complainant in the original bill, was entitled to notice of the cross-bill on which the decree was rendered in favor of the defendants, who are now plaintiffs in this suit. The correctness of their opinion has been denied in argument, and as the rules of chancery practice, as adopted and modified by statute in that State, are not familiar to the members of this court, the opinion of Mr. Chief Justice Smith, of the High Court of Errors and Appeals of the State of Mississippi, has been obtained on the question.

In reply, Chief Justice Smith says: “You state that the complainant’s bill was dismissed, and a decree against him was rendered on a cross-bill filed by two of the defendants (in the original bill) separate and apart from the answer in which all of the defendants had joined. No service of the cross-bill or notice thereof was given to the complainant, but the Yice Chancellor ordered that the complainant answer the cross-bill filed within sixty days, or that the same bo taken as confessed.”

“ If the answer had been made a cross-bill (as it might have been done under our statute), the complainant would not have been entitled to notice by process or otherwise, of the filing of the cross-bill. In such a case, the complainant would be bound to know, that an answer, which was also a cross-bill, was filed : and hence, the court having jurisdiction of the person of the complainant, it would be competent for it to render a decree against him.”

“ In the case stated in your letter, the complainant was doubtless entitled to legal notice of the filing of the cross-bill; and consequently, the decree was irregular and erroneous, and clearly reversible.”

“ But whether it is absolutely void or not, is not so clear. My own opinion, which, however, I have formed without much reflection, is, that it is not simply erroneous, but absolutely void. The complainant in the original bill was entitled to legal notice (by process or publication,) of the demands set up in the cross-bill. Without such notice, it appears to me that the court, in reference to the matters alleged in the cross-bill, would not have jurisdiction of the person of the complainant. If so, no valid decree could be rendered against him. In such a caso, the question of jurisdiction depends upon the fact of notice; and there is here no legal presumption, that the complainant had notice of the filing of the cross-bill.”

We take the rule of chancery practice in the State of Mississippi to be correctly stated by the witnesses examined in this ease; and also concur in the opinion expressed by Mr. Chief Justice Smith, that the decree on the cross-bill, without notice to the complainant, is absolutely void in the State of Mississippi, where it was rendered. Such is our own law, and a judgment rendered in this State, in personam, would be void without citation, or appearance by the defendant.

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

Buchanan, J., took no part in this case.


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    Theodule Bachemin v. Eulalie Chaperon, Widow Dantilly.
    On the trial of a revocatory action, to set aside a sale alleged to "be fraudulent and simulated, the plaintiff may require the Judgo to charge the jury that whore the vendor continues in the corporeal possession of the thing sold, the sale is presumed to be fraudulent, and proof of the simulation is dispensed with, the burthen of establishing the reality of the sale resting upon defendant.
    A vendor in whose favor a mortgage on the property sold to him has been fraudulently erased, and who was cognizant of the fraud, cannot avail himself of such erasure.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      J. <& E. Bermudez, for plaintiff and appailent.

      Henry St. Paul, for defendant.
   Buchanan, J.

This is a revocatory action to set aside a sale alleged to be. simulated, and made with the intention of defrauding plaintiff, a creditor of the vendor.

The defendant was the vendee ; and there is a prayer for nullity of the sale, and for general relief.

On the trial in the court below, the plaintiff’s counsel requested the court to charge the jury, that when the vendor continues in the corporeal possession of the thing sold, the sale is presumed fraudulent; and, also, that if the jury finds that Jacques & Theodule Bachemin, Jr., have continued in the possession of the property in question, the plaintiff is relieved from the necessity of proving the simulation of the transaction; that the burden of establishing the reality of the sale rests upon defendant.

Upon the refusal of the court to give this charge, plaintiff excepted.

We are of opinion, that there was error in this ruling. The charge requested was but but a l'epetition of the doctrine enunciated in Articles 1915 and 245G of the Civil Code.

The plaintiff reserved an exception, also, to the refusal of the court to charge the jury, “ that if the jury find that the defendant knew of the fraudulent proceedings of J. & T. Bachemin, Jrs., they must find for plaintiff.”

The petition charges that Theodule & Jacques Bachemin, Juniors, with a view and the intent to avoid the execution of a judgment which plaintiff lias obtained against them, did, fraudulently and without consideration, sell and transfer to defendant, (their grand-mother,) a lot of ground, with buildings and improvements, on which property plaintiff had a special mortgage ; but that the inscription of said mortgage had been erased, through fraudulent practices of the said vendors, and that defendant was cognizant of the fraudulent means resorted to by her said vendors for the purpose of having the mortgage of plaintiff erased. The object of this suit is to have the property, thus conveyed, rendered subject to the plaintiff’s claim under his judgment and mortgage.

We are of opinion, that the plaintiff was entitled to the charge requested. An erasure of a mortgage, procured through fraudulent means, should not protect the property from the operation of the mortgage, in the hands of a third possessor, to whom knowledge of the fraud is brought home by the evidence, to the satisfaction of the jury.

We do not, however, find it necessary to send back this case for a new trial, on account of the errors above mentioned, as the evidence before us, appears sufficient to determine the cause. It has been already tried twice; the first time, before the Judge of the first District Court of New Orleans, whose judgment was in favor of plaintiff; the second time, before a jury in the Second District Court of New Orleans, who found for defendant. The record in both courts is before us, as well as that of another suit, to which plaintiff and defendant were parties, growing out of the transaction upon which the plaintiff’s claim is founded.

From these records, it appears that a lot of ground, with the buildings thereon, in the possession of Jacques & Theodule Bachemin, Juniors, was subject to a mortgage to which plaintiff was subrogated ; that said mortgage had been given to secure the payment of a note which Jacques & Theodule Bachemin, Juniors, had assumed, upon which plaintiff was endorser, which he had paid supra protest, and thereby became subrogated of right to the mortgage of the original holder ; that the said Jacques & Theodule Bachemin, Juniors, had got possession of the note, by false pretenses, and had availed themselves of their possession of the note to have the mortgage erased, as if they had paid the same, that they subsequently sold the mortgage property to defendant, with a certificate from the mortgage office, which made no mention of the plaintiff's mortgage. The fraudulent conduct of defendant’s vendors is not disputed ; nor can it be, for plaintiff is shown to have subsequently sued, and obtained judgment against those vendors, upon the very note which they pretended to have paid.

The evidence seems to show that all the parties to this sale resided upon the premises sold, as well before as after the sale. The testimony is conflicting as to the ability of defendant to make the payment of two thousand three hundred dollars in cash, which is declared in the act of sale. It is proved by two witnesses, that the defendant knew that the property was mortgaged for the note of one thousand dollars to the Insurance Company, and that plaintiff had paid the note. Under this proof, the plaintiff is entitled to judgment.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and that the sale from Jacques & Theodule Bachemin, Juniors, to the defendant, of a lot of ground with the buildings and improvements, by act before Laresche, Notary, of date the llth of January, 1850, be avoided as to its effects upon plaintiff as creditor of the vendors; and that the property conveyed by said sale be seized and sold in satisfaction of plaintiff’s claims as subrogated to the mortgage granted by Jacques Bachemin, Senior, in favor of the Merchants’ Insurance Company, by act before Cenas, Notary, of date the 31st of August, 1846, and as judgment creditor of Jacques <& Theodule Bachemin, Juniors, upon the note to secure which said mortgage was granted, which note had been assumed by them ; and that the defendant and appellee pay costs of this suit in both courts.


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    In the Matter of the Interdiction of Rosette Rochon, f. c. w.
    By Articles 402 or the C. C. and 962 of the C. the law oil the subject of tutorship is made applicable to the curatorship of interdicted persons m respect to many matters, and particularly in reference to the oath, the inventory and tho security.
    By this law, tho District Judge is vested with a discretionary power in fixing tho bond of a curator of an interdicted person, over a portion of the amount, which is to constitute the sum of the bond, and tho law makes it his duty to embrace in the bond : 1st. An amount equal to the active debts ; 2diy. The money and other movable effects stated in the inventory ; and, 3dly. Such other sum as he shall deem sufficient to cover any loss or damages which the curator may occasion the interdicted person bjr mal-administration of his estate.
    This discretion vested in tho District Judge, is a legal discretion, and may, in a proper case, bo revised by tho Supreme Court on appeal; but if parties wish to question the exercise of this discretionary power by tho District Judge, they should place on file testimony to show that the Judge was governed by an unnecessary caution towards the party giving bond.
    APPEAL from the Second District Court of the New Orleans, Morgan, J.

      E. Bermudez, for curator, appellant.
   Merrick, C. J.

The appellant has been appointed curator to the above named interdicted person.

The District Judge has fixed the amount of his bond at #8,000.

The question for our determination is whether the bond is not for a larger amount than the appellant is by law required to give ?

By Article 402 of the Civil Code and 962 of the Code of Practice, the law on the subject of tutorship is applicable to tho curatorship of interdicted persons, in respect to many matters, and particularly in reference to the oath, the inventory, and the security.

The security, then, is inquired to be in an amount equal to the amount of credits, money and other movable effects, stated in the inventory, and such other sum as the Judge shall deem sufficient to cover any loss or damage which the tutor may occasion to the minor by his bad administration. C. Cl 330.

Tho inventory amounted to #17,804. The slaves, eight in number, were inventoried at #5,000. Houses and lots in New Orleans were appraised at #12,700. There were no'credits, and the movable effects amounted to only #89, or, as added up in the inventory, #104.

By the law cited, the District Judge has a discretionary power over a portion of the amount which is to constitute the sum of the bond. He shall embrace in the bond : 1st. An amount equal to tho active debts; 2dly. The money and other movable effects stated in the inventory; and, 3dly. Such other sum as he shall deem sufficient to cover any loss or damage which the curator may occasion the interdicted by his bad administration.

Now, it is true, the discretion vested in the District Judge is a legal discretion, which may, in a proper case, be revised by this court. But in order to do so, wo must be in possession of the same means of judging as the lower court. The habits of the petitioner may be known to the District Judge; the probable amount of the hire of 'the eight slaves and rent (which may be large) of the four houses, may also be within his knowledge; and from the health and age of the interdicted, he may suppose the curatorship may continue many years.

The District Judge may, therefore, have supposed that funds toa large amount might accumulate in the hands of tho curator from the revenue, or that the property might be deterioated by bad management.

If such wore his opinion from the facts developed in other proceedings on the interdiction, or from his own knowledge of the situation of the property, or his knowledge of the curator’s habits and character, he did not err.

The1 law requires that the District Judge should exorcise a watchful care over the interests of minors and interdicted persons, and that on these ex parte orders, fixing the amount of bonds, &c., he should require ample security, where, from his personal knowledge he has reason to fear a loss to the minor or interdicted person. If parties wish to question the exercise of such discretion by the District Judge, they should place on file testimony showing that he has been governed by an unnecessary caution towards the party giving bond.

Not being in possession of any of the reasons which governed him in fixing the amount of the bond at eight thousand dollars, we cannot say that he erred.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the District Court be affirmed ; and that the appellant pay the costs of the appeal.