author: Morgan, J.

text:
    No. 6269.
    In the Matter of Mary Ann King, Wife of H. W. King, vs. John P. Vairin et al.
    The judge of tho court below was unquestionably right in admitting tho testimony of Armstrong, ono of tho subscribing witnesses to tho will in controversy. Nuncu-pative wills by public act, in order that tlioir execution may bo ordered, do not roquiro to bo proved; for that purpose they make full proof of themselves. But to say that, after being proved, they can only bo attacked upon tho ground of forgery, is to say that the forms oí thoso instruments, which are sacramental, can never be Inquired into.
    If article 1578 of tho Code bo applied to the instrument in evidence, it will follow that tho requirements of the law were not complied with, and that it is thorofore null as a nuncupative will by public act.
    Tho proces verbal of tho notary shows that the instrument was drawn up in tho presence of three witnesses. The nuncupative testament under private signature must bo written by the testator himself or by any other person from his dictation, or oven by ono of tho witnesses, in presence of five witnesses residing in tho place where the will is received, or of seven witnesses residing out of tho placo, or it will suffice if, in the presence of the same number of witnesses, tho testator presents tho paper on which ho has written his testament or caused it to bo written out of their presence, declaring to them that that pq,per contains his last will.
    It is evident that the will in question is neither valid as a will by public act, nor by private act.
    APPEAL from tlio Second District Court, parish of Orleans. Tissot, J.

      Bentinck Egan, for plaintiff and appellee.

      Charles Lauque and Ju-llen Michel, curators ad hoc, for defendants and appellants.
   Morgan, J.

This suit is instituted by one of the legal heirs of John Martin to annul a nuncupative will by public act, alleged to have been made by him, and which has been admitted to probate

The defendants answer by denying that plaintiff is tho heir at law of John Martin ; they deny that the will is invalid; and aver that even if the same is not good as a nuncupative will by public act, it is valid under the form of a private act.

That the plaintiff is a legal heir of the testator is established.

The will recites that before the notary and in the presence of the witnesses thereinafter named, personally came and appeared John Martin, of this city, a person of lawful age, of sound mind and memory, who expressed to me, notary, his desire to make his last will and testament, and where at his request and at his dictation, and within the presence and hearing of Andrew J. Armstrong, Charles D. Stewart,'and James E. Griffen, witnesses of lawful age, and residing in this city, the following instrument was loritten by me, notary, and deelared by the said John Martin to be his last will and testament.

The testimony of Andrew J. Armstrong shows that he wrote the will of John Martin; that the one filed in court is a copy of the original written by himself; that he was. one of the subscribing witnesses to the will; and that no part of it was written by the notary.

“ The nuncupative testament by public act must be received by a notary public in presence of three witnesses residing in the place where the will is executed, or of five witnesses not residing in the place. It must be dictated by the testator, and written by the notary, as dictated. It must be read to the testator in presence of the witnesses. Express mention is-to be made of the whole, observing that all those formalities must be fulfilled at one time, without interruption, and without turning aside to other acts.” R. 0. C. 1578.

Defendants objected to the reception of the evidence of Armstrong, and rely in support of their objection upon the 1647th article of the Civil Code, which declares that “ nuncupative testaments received by public acts do not require to be proved that their execution may be ordered ; they are full proof of themselves, unless they are alleged to bo forged.” The judge of the district court was unquestionably right in admitting the testimony. Nuncupative wills by public act, that their execution may be ordered, do not require to be proved; for that purpose they make full proof of themselves. But to say that after being proved they can only be attacked upon the ground of forgery is to say that the forms of these instruments, which are sacramental, can never be inquired into.

. If we apply to the instrument before us the article 1578 of the Code, as we must, it follows that the requirements of the law were not complied with, and that it is therefore null as a nuncupative will by public act.

But defendants aver that if not good as a public act, it is valid under the form of a private act. The process verbal of the notary shows that the instrument was drawn up in the presence of three witnesses. The nuncupative testament under private signature must be written by the testator himself, or by any other person from his dictation, or oven by one of the witnesses, in presence of five witnesses residing where the will is received, or of seven witnesses residing out of the place; or it will suffice if, in the presence of the same number of witnesses, the testator presents the paper on which ho has written his testament, or caused it to be written out of their presence, declaring to them that that paper contains his last will. O. O. 1581.

It is evident that the will in question is neither valid as a will by public nor by private act.

Judgment affirmed.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 5740.
    Mrs. P. Zimmerman vs. D. M. Fitch.
    This is an action to annul a sale and translor of a large and valuable lot of goods made, as alleged, by Constant H. Zimmerman, who. in a condition of insolvency, passed over to the defendant said goods and effects for the purposo of fraudulently giving him and others, of the insolvent's creditors, an undue advantage over plaintiff and others to whom he was also largely indebted.
    It seems clear that the plaintiff does not oooupy a p isition which enables her to institute this action. Her own debt is unliquidated. The alleged fraudulent vendor and transferrer, G. H. Zimmerman, is not made a party; it is not alleged in the petition that there is not property enough of the debtor left to pay the plaintiff’s claim.
    APPEAL from the Superior District Court, parish of Orleans. Ilaic-Ians, J.

      James II. Grover and Lyman Harding, for plaintiff and appellant.

      Kennard, Howe & Prentiss, for defendant and appellee.
   Taliaferro, J.

This is an action to annul an act of salo and transfer of a large and valuable lot of goods, made, as alleged, by Constant H. Zimmerman, an extensive dealer in costly jewelry, diamonds, etc., who, in a condition of insolvency, passed over to the defendant the goods and effects aforesaid for the purposo of fraudulently giving to him and others of the insolvent’s creditors an undue advantage over the plaintiff and others to whom ho was also largely indebted. The plaintiff prayed for an injunction to restrain defendant from selling or disposing of the goods so received by him from the said C. H. Zimmerman.

The defendant filed the following exceptions :

First — That the pretended claim by plaintiff against C. H. Zimmerman has not been liquidated by a judgment, nor has exceptor been made a party to any suit instituted for the purpose of liquidating said claim.

Second- — That it does not appear by the petition that there is not sufficient property of C. H. Zimmerman other than that transferred to the creditors represented by the cxccpter to pay the debt claimed to bo due to plaintiff.

Third — That the petition does not allege that the claim sued on accrued prior to the transfer sought to be annulled.

Fourth — That the parties to the said transfer are not made parties to ■this suit.

Fifth — That if it were true that the transfer of property made by O. H. Zimmerman described in the petition was null'and void and of no effect, tlie said property involved in this litigation would belong to the succession of said C. H. Zimmerman, who departed this life in the city of New Orleans prior to the institution of this suit, as plaintiff well know, and said property should be dealt with by and in the Second District Court for the parish of Orleans, and defendant pleads to the jurisdiction of this honorable court and prays that these exceptions be maintained and the plaintiff’s demand dismissed.

The exceptions were sustained and the suit dismissed. From this judgment plaintiff has appealed.

We think the judgment was properly rendered. It seems clear that the plaintiff does not occupy a position which enables her to institute this action. Her own debt is unliquidated. The alleged fraudulent vendor or transferrer, 0. H. Zimmerman, is not made a party; it is not alleged in the petition that there is not property enough of the debtor left to pay the plaintiffs claim. Civil Code, article 1972 (1967) and article 1971 (1996); 1 Rob. 526; 8 An. 386.

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

Rehearing refused.


author: Wyly, J.

text:
    No. 5134.
    Lacey & Butler vs. Police Jury of the Parish of St. Bernard.
    The employment of plaintiffs to defend a suit against the parish of St. Bernard was the creation of a debt, and no provision was made for the payment thereof. The contract was therefore invalid, under section 278G, Revised Statutes. But as the defendant, against whom judgment was given, neither appealed nor answered the appeal praying an amendment of the judgment, the judgment must be affirmed.
    The request in the brief for an amendment of the judgment so as to reject the demand of .plaintiffs will not be noticed. Pleadings can not be made in a brief or argument of counsel.
    from the Second Judicial District Court, parish of St. Bernard. Pardee, J. Jury trial.

      Lacey <£• Bailer, personally, plaintiffs and appellants.
    P. P. Carroll, Parish Attorney, for defendant and ap-pellee.
   Wyly, J.

Plaintiffs sued the parish of 'St. Bernard for twenty-seven hundred .dollars, the alleged value of their services as. attorneys at law in defending a suit for said parish. They recovered a judgment, on the verdict of a jury, for eighteen hundred dollars, and, being dissatisfied therewith, they appealed. The defendant did not appeal.

“ The police juries of the several parishes and the constituted authorities of incorporated towns and cities in this State shall not hereafter have power to contract any debt or pecuniary liability without fully providing in tho ordinance creating the debt the means of paying the principal and interest of the debt so contracted.” Bevised Statutes, section 2786.

The employment of plaintiffs to defend the suit against the parish was tho creation of a debt, and no provision was made for the payment thereof. The contract was, therefore, invalid. But as the defendant neither appealed nor answered tho appeal praying an amendment of the judgment in its favor, tho judgment must be affirmed.

The request in the brief for an amendment of the judgment so as to reject the demand of plaintiff will not be noticed. Pleadings can not be made in a brief or argument of counsel.

Judgment affirmed.


author: "Wyly, J.

text:
    No. 4721.
    E. Hiestand vs. the City of New Orleans.
    By section five ol act No. 175 of tho acts of 1859 the assistant city attorney was entitled to recover live nor cent commissions on judgments when tho amounts thereof have boon collected and actually paid into tho treasury. On uncollected judgments for taxes plaintiff is not, thoroforo, entitled to recover the commissions he claims.
    Plaintiff is not entitled to commissions on tho bills for city licenses eolloetod by the • city treasure)- subsequent to the first day of February, 18.08, assuming that on that day it became tho duty of the city treasurer, under the charter of 1850, to turn over to him said bills for collection. As plaintiff did not perform any services, he is not entitled to remuneration.
    APPEAL from the Superior District Court, parish of Orleans. Lmu-mont, judge of the Fifth District Court, where tho case was tried and judgment rendered before being transferred to the Superior District Court, which granted the appeal.

      John H. Isley and A. & W. Voorhies, for plaintiff and appellee.

      B. F. Jonas, for defendant and appellant.
   "Wyly, J.

Plaintiff sues tho defendant for $26,750, the amount of commissions he alleges the city owes him as assistant city attorney in 1868 on certain judgments for taxes which remain uncollected; also, the amount of his commissions on certain bills for licenses which the city treasurer retained in his hands after the first day of February, 1868, and collected between said date and the first day of July thereafter.

The case -was tried in the Fifth District Court before it was transferred to the Superior District Court, and the result was a judgment for plaintiff for 525,641 76. Defendant appealed.

By section ñve of act No. 175 of the acts of 1859 the.assistant city Attorney was entitled to recover five per cent commission on judgments when the, amounts thereof have been collected and actually paid into the treasury. 18 An. 666. On uncollected judgments for taxes plaintiff is not, therefore, entitled to recover the commissions claimed.

Plaintiff is not entitled to commissions on the bills for city licenses collected by the city treasurer subsequent to the first day of February, 1868, assuming that on that day it became thé cluty of the city treasure]', under the charter of 1856, to turn over to him said bills for collection. As plaintiff did not perform the services, he is not entitled to remunera-: tion.

It is therefore ordered that the judgment herein be annulled, and that plaintiff’s demand be rejected with costs of both courts.

Rehearing refused.


author: Ludelestg, C. J. How-ell, tT.,

text:
    No. 6212.
    Eugenie Marionneaux vs. John A. Dardenne.
    It lias been often doeiilod by this eourt that the only'question which can be raisedm an appeal from an order oí seizure and sale is whether the evidence authorized theJfoi of the judge.
    It appears in this instance that the authentic proof which authorizes thojtat ol the judge a nim is an act importing a confession of judgment; and when llio application is made to foreclose in the name of the creditor, or of his heirs or succession, only tliis proof is required to authorize the order. • As the law does not require it, tliis eourt can not perceive any good reason why any other proof should be demanded.
    Tlie defendant will bo protected should lie pay the debt; but should thorn lie any possible objection to permitting the plaintiff to collect the debt, tlio objection ought to have been urged in an injunction suit, and not in an appeal from the order of seizure and sale.
    APPEAL from the Fifth Judicial District Court, parish of Iberville. Dewing, J.

      George Wailes, for plaintiff and appellee.

      Barrow & Pope, for defendant and appellant.
   Ludelestg, C. J.

This is an appeal from an order of seizure and salo. It has been often decided by this court that the only question which can be raised in such an appeal is whether the evidence authorized the fiat of the judge. Was the judge a guo authorized to grant the order of seizure and sale in this case ? .

The plaintiff represents that she is the-natural tutrix of tlio minor heir of her husband, in whose favor the mortgage was executed by the defendant, and she prays for an order of seizure and sale, etc. Accompanying the petition is an authentic act of mortgage in favor of the father ■of the minor aforesaid, and the .obligation of the defendant secured by the mortgage, which is not indorsed.

The Code of Practice declares that “ executory process can only be re-’ Sorted to in the following cases: when tho creditor’s right arises from an act importing a confession of judgment, and which contains a. privilege or mortgage in his favor.” 732. “ An act is said to import a confession of judgment in matters of privilege and mortgage when it is passed before a notary public, or other officer fulfilling the same functions, in the presence of two witnesses, and tho debtor has declared or acknowledged tho debt for which he gives the privilege or mortgage.” 733. “When the creditor is possessed of such an act, ho may proceed against his debtor or his heirs, by causing the property subject to the privilege or mortgage to bo seized and sold on a simple petition,” etc. 734.

Thus it appears that the authentic proof which authorizes the fiat of tho judge a quo is the act importing a confession of judgment, and when the application is made to foreclose in tho name of the creditor or his heirs or succession, only this proof is required to authorize the erder. The law does not require any other proof, and wo can not perceive an]'good reason why any other proof should be required. Surely tho defendant will bo protected if he pays the debt, but should there be any possible objection to permitting tho plaintiff from proceeding to collect tho debt, the objection should be urged in an injunction suit, and not in an appeal from the order of seizure and sale.

It is therefore ordered that the judgment bo affirmed with costs of appeal.

Rehearing refused.

How-ell, tT.,

dissenting. It is well settled that a party must conform strictly to the requirements of the law in executory proceedings, and must show authentic evidence of the right to the writ. One of tho elements of that is the ownership of the claim — the note and mortgage. Whore a note is not indorsed by tho payee, there must be authentic evidence of its transfer either of the ownership, or tho representative capacity of the party resorting to the executory process. In this case tho plaintiff alleges that she is acting as tutrix in enforcing a mortgage securing a note drawn to the order oí E. Norbcrt Marionneaux, but not indorsed by him. The act of mortgage produced by her recites that the notes identified therewith arc indorsed. Under these circumstances, I do not think the plaintiff’s right to the writ is established. In the case of Landry vs. Landry, 12 An. 167, it was held that authentic evidence of plaintiffs appointment as administrator was essential to authorize tho issuing of the writ of seizure and sale, and in Rice vs. Davis, 14 An. 435, it was said to be unnecessary, because there was authentic evidence of the indorsement, and in this respect the case differed from that of Landry vs. Landry, 12 An. 167.

In all the cases where the writ has been allowed to persons in representative capacity without evidence thereof there was evidence of the indorsement of the notes.

I think plaintiff in this case has not brought herself within the strict requirements of the law in regard to executory process, and therefore must dissent.

Mr. Justice Wyly concurs in this dissenting opinion.


author: Howell, J.

text:
    No. 6223.
    Barrow & Pope vs. Florence A. Brown, Administratrix.
    Under the settled jurisprudence of the State the motion to dismiss the appeal can not prevail. • There was, in this instance, no abandonment of the appeal, as that granted under the first order was never perfected:
    The statements of an agent, whose agency is shown, are not hearsay; and the proof of the agency to employ counsel ivas admissible, although the agency ivas not alleged. The employment was alleged, and the mode of itwas not essential. The answer, it may be remarked, disclosed, while it denied, the agency.
    APPEAL from the Fifth Judicial District Court, parish of Iberville. Deicing, J.

      Barrow & Pope, personally, and W. B. Boberteon, for plaintiffs and appellees.

      C. O. Lccuve and Samuel Matthews, for defendant and appellant.
   Howell, J.

The defendant has appealed from a judgment in favor of plaintiffs for two thousand dollars for professional services in several cases. The plaintiffs ask an amendment of the judgment.

The appellant calls our attention to three bills of exception taken to the admission of evidence. The rulings woro correct. The statements of an agent, whose agency is shown, are not hearsay. And the proof of the agency to employ counsel was admissible, although the agency was not alleged. The employment was alleged, and the mode of it was not essential. The answer, it may be remarked, disclosed, while it denied, the agency.

An examination of the evidence satisfies us that the judge a quo has done justice between the parties. The fact that the plaintiffs represented other parties in each of the suits, except one, makes the amount allowed reasonable for all.

TVe think it necessary to say in reference to the motion to dismiss, that under the settled jurisprudence of this court there was no abandonment of the appeal, as that granted under the first order was never perfected..

It is therefore ordered that the motion to dismiss be denied, and that the judgment appealed from be affirmed with costs.


author: Howell, J. Ludelisg, C. J., Wily, J.

text:
    No. 5762.
    State of Louisiana vs. Richard Taylor.
    This suit -was instituted hy the Attorney General to annul the lease of the New Canal and appurtenances, parish of Orleans, made to Richard Taylor in i860, for fifteen years, and recover tho unpaid rent, on tho ground that tho lessee has failed to comply with tho terms of the lease. The answer of defendant contains general and special denials and the averment that all his obligations in the promises arise under his contract with the State, as modified and amended hy tho statutes of 1807 and 1870, and as interpreted hy tho Legislature of the State.
    In tho suit of Charles Case, Receiver, vs. Richard Taylor, tlio State intervened, alleging that tho rights of said Taylor under said notarial act of lease of fifth of March, 18GG, no longer existed as therein provided, hut have been' materially modified and altered by tho act No. 118 of 1807 and No. 82 of 1870, and assorting tho binding force and operation of said acts to protect tho rights of tho State in relation to the said eanal, etc., and succeeded in her demand. Haying deliberately and solemnly invoked tlio statutes when she considered them essential to tho protection and preservation of her rights under tho contracts with the defendant now in question, she is estopped from assailing thorn or denying their validity when she may think her interests as to the same rights may require it.
    The State is bound byhor judicial pleadings and admissions, the same as private persons, and is entitled to no greater right or immunity as a litigant than they aro. The doctrino of estoppel applies to the State just as it does to individuals. The plea in this respect is not res adjudicata, hut estoppel, and should have boon maintained; an d consequently the State can not he hoard in this action to deny the constitutionality of these two statutes, the validity and benefits of which she has heretofore invoked.
    As to the exception of there being no cause of action, this jilea is not identical with nor docs it involve that of inconsistent and contradictory allegations, or that of vague and insufficient allegations. A canso of action is sot out in the, petition, although tho charges may be vague and inconsistent.
    Prom the tenor of the statutes and contracts and the indefinite stipulation in relation to tho extension of the wharves to Claiborne street, and especially the fact that it was to depend on tho demands of commerce, and is not a specific, fixed condition as to time, this court can not justly hold tho failure, as yet, to construct some nino hundred foot of new wharves on each side of the canal, such a material part of tho contract of lease as to bo a cause under the circumstances to annul the contract at this time. The obligation still exists to construct tho wharves whenever tho trade requires it: and the. State or those interested can demand' their construction on suoli contingency.
    Tho act No. 118 of 1867 required three largo basins with wharves around them; act No. 82 of 1870 enacts that in lieu and instead of the three basins heretofore provided for by existing law, tho lessee of tho Now Canal is hereby required and directed to dig and construct sixteen basins, each not less than two hundred feet in length, with a width of one hundred and fifty feet, measured from the west bank of said eanal.
    Tho engineers appointed by tho court a ana to examine the eanal and report its measurement, condition, ote., found.only nino basins, but their aggregate dimensions equal those of tho sixteen proscribed by the statute, and as facilities of that description needful to commerce wore the object, and as tho amount of such facilities designated by tho statutes has boon furnished, and it is not pretended that commerce is suffering or impeded, this court doubts whether there is good ground for annulling the lease, simply because the basins hayo not been kept separate and distinct from each other. It can. not be seen that tho State or tho interests of commerce have been injured or the spirit of the contract violated in a material part in this respect.
    under tho circumstances of the ease as ijppoaring in the record before this court tho conclusion is that tho lessee Is sufficiently protected against tho annulment of his lease in this suit.

      APPEAL from the Superior District Court, parish of Orleans. Haio-Icins, J. Jury trial.

      A. P. Field, Attorney General, J. B. Cotton, and J. Q. A. Fellows, for plaintiff and appellant.

      Kennarcl, Howe & Prentiss and William II. Hunt, for defendant and appellee.
   Howell, J.

This suit was instituted by the Attorney General in August, 1873, to annul the lease to Richard Taylor of the New Canal and appurtenances in 1866, for fifteen years, and recover the unpaid rent, on the ground that the lessee has failed to comply with the terms of the lease.

The allegations of the petition are substantially as follows:

By act No. 12 of 1866 the Governor on the sixth of March, 1866, leased to the said Taylor the New Canal and Shellroad belonging thereto, and such other appurtenances and property as thereunto belonged, for the term of fifteen years, ending on the fourth of March, 1881, for an annual rent of §36,000 for the first year, §37,000 for the second, and increasing irregularly to §85,000 for the last year, none of which sums have been paid. By the terms of the lease said Taylor was to put said leased property in good condition, as required in certain specifications by the State Engineer, for §68,000, one third of which was to be credited to him on the rent due for each of the three first years, making the money rent for each of said years §13,333 33J, §14,333 33J, and $15,333 33¿-, which, with tlie rent for the subsequent years, make the amount of $208,000, with interest, due the State on the fourth of March, 1873. Said lessee has not complied with the terras of his lease, or kept the property in proper order and repair, or paid the rent as stipulated, and he has thereby forfeited his right to the same.

The lessee alleges that lie is dispensed by act No. 118 of 1867 and the contract thereunder of the twenty-ninth of April, 1867, from paying any rents, and in lieu thereof lie was to'widen the canal to one hundred feet and deepen it to eight feet and perform other conditions in said act.

Now plaintiff alleges that the said act is no law and nothing done under it is binding on the State, because it was expressly reserved from approval by the constitution of 1868, and is in violation of article 149 of said instrument. Should, however, there be any force in said act, the lessee has not complied with the terms and conditions thereof “ and especially, that he did not complete the works and enlargements of said canal and the making of the three basins therein provided for within the time required by said act' No. 118 or by said notarial agreement; nor has he now completed said work of enlargement, etc., although said time has long since expired ; nor in the work undertaken by said lessee or his agents in the enlargement of said canal or the construction of said basins did he leave sufficient earth on the embankment to afford such ample protection as existed at the time of making such lease.” Hence, all rights under said acts of 1866 and 1867 are forfeited, and tho rent during occupancy is due, and the prayer is that the lease of the sixth of March, 1866, bo declared null, the law No. 118 of 1867 unconstitutional, the contract of the twenty-ninth of April, 1867, thereunder, null and void, all rights resulting therefrom forfeited, and that there be judgment for $208,000, with interest on the annual installments, and for rent duo up to recovery of leased premises.

The defendant excepted, on tho grounds that tho petition disclosed no cause of action; that the Attorney General was not authorized to institute this suit; and that the matters set up in the petition relating to the constitutionality of the laws set forth therein have been heretofore heard and decided in a judicial proceeding to -which the State and exceptor were parties; to wit, the suit of Charles Case, Receiver, vs. Richard Taylor, in which the State appeared, and the judgment therein has become final, and tho Attorney General and his representatives are precluded thereby, and arc estopped from questioning the same.

The answer of defendant contains general and special denials and tho averment that all his obligations in the premises arise under his contract with the State as modified and amended by tho statutes of 1867 and of 1870, and as interpreted by the Legislature of the State.

The exceptions were overruled, and upon trial on the merits before a jury verdict and judgment wore rendered in favor of the defendant, and tho State has appealed.

In our opinion tho last ground of tho exceptions should have been maintained. In the case of Charles Case, Receiver, vs. Richard Taylor, the State intervened, alleging that tho rights of said Taylor under the. notarial act of lease of the sixth of March, 1866, no longer exist as therein provided, but have been materially modified and altered by tho act No. 118 of 1867 and No. 82 of 1870, and assorting tho binding force and operation of said acts to protect the rights of tho State in relation to the said canal, etc., and succeeded in her demand. Having deliberately and solemnly invoked these statutes when she considered them essential to the protection and preservation of her rights under the contracts with tho defendant now in question, she is estopped from assailing them or denying their validity when she may think her interests as to the same rights will require it. The State is bound by her judicial pleadings and admissions the saíne as private persons, and is entitled to no greater right or immunity as a litigant than they are. The doctrine of. estoppel applies to the State just as it does 'to individuals. Tho plea, in this respect, is not res adjuiMcata, but estoppel, and should have boon maintained, and consequently tho State can not be heard in this action to deny the constitutionality of these two statutes tho validity and benefits of -which she has heretofore invoked.

The other two grounds of exception were properly overruled.

The plea of no cause of action is not identical with nor does it involve that of inconsistent arid contradictory allegations, or that of vague and insufficient allegations. A cause of action is sot out in the petition, although the charges may be vague or inconsistent. No bill of exceptions is reserved to the introduction of evidence as to facts not alleged.

The case was argued at considerable length, both orally and by brief, and after the oral argument plaintiff’s counsel filed a brief, in which the issue involved is thus stated:

“ The main question in this case is, has the plaintiff proved a noncompliance on the part of the defendant with his contract ? In answering this question, and the brief of the defendant, we shall confine ourselves to those questions of fact which arc proved by many witnesses, and have never been disputed:
“ First — By the lease of 1866 the defendant was to build now wharves on both sides of the canal from the head of the basin down to the tollgate (Claiborne street). All of the witnesses prove that the wharves extend only to the Magnolia bridge. The surveyors place Claiborne street from nine hundred to one thousand feet beyond the bridge. There is a failure, then, to build from eighteen hundred to two thousand feet of new wharf.
“ Second — The defendant agreed to pay a certain annual rent. The witnesses proved he had paid only the first year’s rent. But the defendant sets up as a defense to this, that by act and contract of 1867 this payment of rent was dispensed with. This admits the non-payment and sets up an excuse for the failure.
“ Third — But by contract of 1867 the defendant, among- other things, agreed to construct throe large basins, each one thousand feet long by three hundred feet wide, with wharves around them, and graded approaches to them, according- to plans and specifications.
“The proof is, that not one of these basins was over commenced. This fact, is admitted in the brief to which this is a reply.
“ But the defendant sots up the act of 1870 as a defense to the part of his contract requiring three basins, etc.; and hero it may be as well to observe that the act of 1870 was his defense and pleaded by him. The State had no occasion to plead it.
“Fourth — The act of 1870 substituted ! sixteen.’ for ‘ three’ (basins), ‘not less than two hundred feet in length/ for ‘ one thousand feet,’ and ‘ fifty feet in width’ for ‘ three hundred feet,’ as the size of the basins. These are the only changes.
“ The testimony of all the surveyors of ICcnnor and the two maps show that only nine of the sixteen basins have been dug, and that no wharves or approaches to them have been mado at any one of these basins. They are said to be in the swamp, whore no wharves are required.
“On all those four points, then, wo assert that the testimony is affirmative and overwhelming, notwithstanding the assertion in the brief that ‘'this proof the State has equally failed to make.’
“Fifth — But the defendant says the State'Engineer and others in-authority have approved the work, and that therefore the State is now barred from sotting up a non-compliance.
“ The only approval is, ‘ so far as done.’ There is no acceptance of the work by any one, and, carrying the doctrine of approval .to the full extent claimed by defendant, which can not be allowed, the approval can cover only toorlc actually done. It might possibly stand as a good defense against the charge of imperfect work. Bui no approval short of positive legislative action could stand in lieu of work never commenced. '
“ Such work is the two thousand feet of new wharf from Magnolia bridge to Claiborne street, the three largo basins, and the wharves, etc., around them, or oven seven of the sixteen substituted basins, with wharves around the whole sixteen.”

We consider the foregoing as the grounds on' which counsel for the State rely for annulling the contracts with the defendant; and we will hero remark that the main object of the Legislature, as expressed in act No. 118 of 1867, seems to be the widening and deepening of the canal for the benefit of commerce — the title to the act being, “An Act to authorize the widening and enlarging the New Canal and Basin,” and the consideration for the necessary outlay therefor, including three additional basins, the needed wharves, piers, bridges, etc., declared to be the relinquishment of the annual rent under the existing lease, amounting in the aggregate to seven hundred and fifty-five thousand dollars, and we think this position taken by counsel (as the. evidence malees reasonably clear) admits that this main object has been attained, and the question arises: “ Is the non-compliance, as above set forth, if fully established, of such-character and importance as to demand the abrogation of the .contracts between the State and defendant ?”

Of the four points relied on by counsel, two, “the annual rent” and “the three largo basins,” may bo laid out of view — the rent having been relinquished, and the three basins having been substituted by sixteen small ones by the Legislature, and the only matters for consideration are the wharves around the basin or city terminus, under the first contract, and the sixteen small basins under act of 1870. '

Act No. 12 of 1866 and a clause in the contract of sixth March, I860, provide that the lessee shall “ make the repairs described by specifications and plans in the report of the State Engineer to the Governor, dated January 18,1866, which shall be made a-part of the lease.” The said report says on this subject:

“ 7. Much additional wharf accommodations required at the basin or city terminus of the canal, and it is proposed that the present line of wharves be repaired and now ones continued on each side of the canal until they roach the present toll-gate.
“ 8. The increasing business of the canal demands the construction of the wharves, and the piling necessary for the same, with additional revetments, will prevent the caving in of the banks, the filling up of the canal, and the encroachments upon the landings or property thereof.” The wharves to be of the best materials and labor, and kept in good order. In the act 118 of 1867, and the contract thereunder, the only reference to the subject of wharves, except in relation to the wharves around the three new basins, is the following: '•* * “ And all wharves, basins, pierSj abutments, bridges, etc., shall be constructed according to plans and specifications prepared by the State Engineer.”

The- plans referred to are not before us, and there is nothing in the specifications of that year (1867) in regard to the wharves at the city terminus of the canal, and it must be admitted that the requirements in the contract and specifications of I860 are very indefinite. It is stated, in general terms, that the increasing business of the canal demands the construction of the wharves, and it is -proposed that the line of the existing wharves be continued to the toll-gate (at Claiborne street), but there is nothing in the statutes, the contracts, or specifications fixing the time within which the line of wharves should be completed to the toll-gate. It is to depend on the demands of business, and the evidence does not show that there is a deficiency of wharf accommoda ions for the business up to this date, or that any one is complaining. The only evidence in the record on the subject is that the wharf accommodations are sufficient for the business, which is shown to have considerably declined since 1867.

From the tenor of the statutes and contracts, and the indefinite stipulation in relation to the extension of the wharves to Claiborne street, and especially the faet.that it was to depend on the demands of commerce, and is not a specific, fixed condition as to time, we can not justly hold the failure, as yet, to construct some nine hundred feet of new wharves on each side of the canal such a material part of the contract of lease as to bo a cause, under the circumstances, to annul the contract at this time. The obligation still exists to construct the wharves whenever the trade requires it, and the State, or those interested, can demand their construction on such contingency, if the interest of the defendant should not prompt him to do so, it being evident, as well as proven, that his interest is promoted by having every facility for conducting the business in the canal and keeping the cantil in good order.

Tho next point is in regard to tho sixteen basins substituted by act No. 82 of 1870 for the three largo ones required by act No. 118 of 1867.

On this subject the defendant contends that he has complied with his obligations, and his agent, D. F. Kenner, in his testimony, says: “ Tho sixteen basins have been dug of tho length and width contemplated by the statute. Tho location of those basins was loft entirely with tho les-seo. My instructions wore to place them where they would best serve the interests of commerce. I put one of them at Claiborne street, one at Prieur; I put three of them at Galvez, and two of them between Gayoso and Salcedo streets, two of them between Genois and .Clark streets, one-nearly opposite tho lower toll-gate, one about a mile below the toll-gate, one about liali'-way between the toll-gate and tho lake, then four together near the bridge, where a large basin'was needed. That is the distribution I made of them.” Tnis, ho sa.yS, was considered most judicious for the benefit of commerce, and was adopted after consulting with a number of timber merchants.

Tho act No. 118 of 1867 required three large basins with wharves around them. Act No. 82 of 1870, entitled “ An Act to facilitate Commerce by providing for tho Construction of Additional Basins on the New Canal,” enacted “ that in lieu and instead of the three basins heretofore provided for by existing law, tho lessee of the New Canal is hereby required and directed to dig and construct sixteen basins, each not less than two hundred feet in length, with a width of one hundred and fifty foot, measured from tho west bank of said canal.”

This is the only provision in said act. The engineers appointed by the court a qua to examine tho canal and report its measurement, condition, etc., found only nine basins, but their aggregate dimensions equal those of tho sixteen prescribed by tho statute, and correspond in location and size with those described by the witness Kenner, and as facilities of that description needful to commerce was the object, and the amount of such facilities designated by the statute has been furnished, and it is not pretended that commerce is suffering or impeded, wo doubt whether there is a good ground for annulling tho lease simply because the basins have not been kept separate and distinct from each other. Wo can not see that the State or the interests of commerce have been injured or the spirit of the contract violated in a material part in this respect.

The defendant offered to prove that the work to bo done by him under his contracts with the State and under the supervision and subject to the approval of tho State Engineer was so done, with his approval and to-liis satisfaction; that committees of tlie Legislature, appointed for the purpose, examined said work and reported that it had been satisfactorily performed (including the basins required by the act of 1870), and that by the journals the report had been adopted by tho Legislature. We think the evidence was admissible, as the statute and the specifications made a part of the contract directed that the work should be under the supervision and approval of the State Engineer. .Evidence, however, was given by two of the above engineers, appointed by the court, and the State Engineer, also, that the lessee has substantially complied with his contract, and the State Engineer so reported to the Legislature. This, with the other evidence, we think sufficient to protect the lessee from the annullment of his lease in this suit.

As to the order and condition of the canal and appurtenances, the evidence shows that they are constantly requiring repairs, -which the lessee makes as needed.

Under the circumstances presented in this record, we do not think it necessary to disturb the verdict of the jury and judgment of the court below.

J udgment affirmed.

Ludelisg, C. J.,

dissenting. The plaintiff sued to annul the contract with Richard Taylor in relation to the New Canal, on the ground that he had failed to comply with his obligations.

The defendant filed a general denial, and further alleged that his original contract had been changed and modified by the acts of 1867 and 1870 of the General Assembly.

The validity of these acts was attacked by the plaintiff; but inasmuch as in another suit the plaintiff had claimed rights under the said acts of the General Assembly and thereby asserted their validity, the State can not now be listened to when denying their validity, so that in this case the only issue is, has not the defendant complied with the obligations of his contract'?

The facts are, that in 1831 the Legislature granted to the New Orleans Canal and Banking Company the right to construct a canal of the width of sixty feet at the top of the water, and of a sufficient depth to admit vessels drawing six feet water, with one or more basins and sufficient breakwater to facilitate the ingress and egress of vessels, and keep the same in repair. Section eight and section fourteen of the same act provide that “ the said company shall construct a levee on the upper sido of said canal, to protect the same from overflow in the event of the river breaking through the levee at any point above; and shall also lay out a road, not loss than twenty-five foot wide, along the whole line of said canal, and cover the same with sand, shells, oí other hard substance, so that it may at all times be suitable for carriages to travel thereon, with a suitable drainage canal on the upper side thereof,” etc.

Section twenty-six of said act provides that “ from and after the expiration of thirty-five years after the passage of this act the property in said canal and road, with all the land on each side which it has a right to, acquired by forced sale, and which it does acquire by forced sale or otherwise, to the extent of one hundred and twenty feet on each side of said canal, together with the machines and utensils belonging to the canal, as also the house of the toll-receiver, shall bo vested in the State of Louisiana, with all the rights to receive tolls therefrom which are hereby granted to the said company,” etc.

In anticipation of the canal and appurtenances being turned over to the State, the Legislature on the tenth of February, 1866, passed the following:

No. 12 — An Act to authorize the Lease of the Now Canal.

Section 1. Be it enacted by the Senate and House of Representatives of the State of Louisiana in General Assembly convened, That the canal belonging to the Canal and Banking Company, and constructed under the charter of said company, incorporated March 5, 1831, situated, lying, and being in the parishes of Orleans and Jefferson, together with all the rights, property, privileges, and uses in any way belonging or appertaining thereto, or claimed by said company under said act of incorporation, and which by virtue of said act reverts to the State on the fifth day of March, 1866, be and the same is hereby ordered to bo leased for a term of years, not to exceed' fifteen nor less thin five.years; provided, however, that nothing in this act shall be so construed as to have the effect of releasing the Canal and Banking Company from the obligation of returning the property herein described in the good order and condition provided for ’in their charter.

Seo. 2. Be it further enacted, etc., That it shall be the duty of the Governor, immediately after the passage of this act, to cause to be advertised in one or more newspapers of the city of New Orleans, for the period of twenty days, that the said canal — with all the rights and privileges appertaining thereto or claimed and now enjoyed by the Canal and Banking Company under its charter, except sixty feet immediately adjoining Cypress Grove and Greenwood Cemeteries, toward the canal, which is hereby reserved by the State of Louisiana for the use of the Firemen’s Charitable Association of the city of New Orleans — is offered for lease, as set forth in the first section of this act, and to call for sealed proposals for the lease of the same; provided, that the lessee shall be required to make the repairs described by specifications and plan in the report of the State Engineer to the Governor, dated January 18, 1866, which shall be made part of the lease; that he will also be required to keep the canal, shell road and all other property in good working order and condition, as is provided by the charter of the Canal Company; the cost of the repairs to the extent of sixty-eight'thousand dollars shall be allowed to the lessee, in three equal amounts, to bo deducted, one third each year, from, the annual rent;' that the repairs and improvements provided by this section shall be made subject to the approval of the State Engineer; provided, further, that it be made a condition of the lease that the lessee shall permit the culverts now receiving the waters of the second drainage district to remain open.

In pursuance of this act, the contract was adjudicated to Bichard Taylor, and the notarial act was passed before T. O. Stark, notary public, on the sixth day of- March, 1866, which contains the following clauses:

Now, therefore, the said Governor Wells, in his capacity aforesaid, does hereby grant, devise, lease, and hire unto the said Bichard Taylor, here appearing and accepting for himself, his heirs, executors, and assigns, and acknowledging delivery and possession in conformity hereto of the said canal, shollroad, with toll-gates and houses for toll-keepers, one dredgeboat, with two mud-flats, one canal barge, and one pile-driver, together with all the rights, property, privileges, and uses thereto pertaining, in the condition as detailed by the State Engineer in his report of January 18,1866, as appears by the annexed receipt, dated seventh instant, marked “ B ” and paraphed by me, notary, for identity, for fifteen years, to commence on the fifth day of March, in the year of our Lord one thousand eight hundred and sixty-six, and to end on the fourth .day of March, in the year of our Lord one thousand eight hundrod and eighty-one, the canal known as the New Canal, lately belonging to the Canal and Banking Company, constructed under the charter of said company, incorporated March 5,1831, situated, lying, and being in the parishes of Orleans and Jefferson, together with all the rights, property, privileges, and uses in airy way belonging or appertaining thereto, or claimed by said company under any of the laws of this State, except the sixty feet of ground immediately adjoining the Cypress Grove and Greenwood Cemeteries toward the canal. And the said Bichard Taylor shall have the right of charging and collecting toll for passage through said canal, and of establishing toll-gates, charging and collecting toll for transit through the same on the shellroad, adjoining said canal, to the same extent as the Canal and Banking Company wore by law authorized to do, and • shall have full power to make such rules and regulations for the management of said canal and preservation of the same, together with the shell-road and all other property in his possession belonging to the State, as in the judgment of said lessee shall be necessary, proper, or convenient for the management or protection of said canal, shollroads, embankments, . and all other property belonging to the State, from injury or deterioration. And the said lessee shall have the right to charge for towage through said canal, and to collect the same, to the same extent as the New Orleans Canal and Banking Company, its lessee or lessees, formerly did.

This lease is made and accepted for and in consideration of the yearly rent, payable as hereinafter expressed, on the following terms and conditions:

First — Said Taylor, lessee, shall make the repairs described by specifications and plans in the reporj; of the State Engineer to the Governor, dated January 18,1866, an authenticated copy of which said specifications and plans are annexed hereto and made a part of this contract, marked “ O ” and paraphed by mo, notary, for identity.

Second — Said lessee shall keep the canal, shellroad, and all othei property belonging to the State, and appurtenances to said canal in good working order and condition, as is provided by law.

Third — The cost of the. repairs to the extent of sixty-eight thousand dollars shall be allowed to the lessee by way of deduction, in three equal amounts, from the amount of rent for the throe first jmars, that is to say one third of said sixty-eight thousand dollars, to wit: twenty-two thousand six hundred and sixty-six dollars and sixty-six and two-thirds cents,maybe reserved by said lessee from the first year’s rent, the same amount from the second year’s rent, and a like amount from the third year’s rent.

Fourth — The repairs and improvements herein provided to be made by said lessee shall be subject to the approval of the State Engineer.

Fifth — Said lessee shall permit the culverts now receiving the waters of the Second Drainage District to remain open.

Sixth — Said lessee shall keep the canal in good order, and shall comply with all the obligations to the State and to the public required of the Canal and Banking Company by its charter for the working and preservation of the canal, under the penalty of a forfeiture of this lease for the violation of the same.

Seventh--Said lessee engages to pay to the Governor of the State on the fourth day of March, 1867, the sum of thirty-six thousand dollars (§36,000), less the sum of twenty-two thousand six hundred and sixty-six dollars sixty-six and two-thirds cents ($22-,666 6C§), which the said lessee, may reserve for repairs as herein provided.

On the fourth clay of March, 1868, the sum of thirty-seven thousand dollars (§37,000), less the sum of twenty-two thousand six hundred and sixty-six dollars sixty-six and- two-thirds cents (§22,666 66§), which the said lessee may reserve for repairs as heroin provided.

On the fourth day of March, 1869, the sum of thirty-eight thousand dollars, less the sum of twenty-two thousand six hundred and sixty-six dollars sixty-six and two-thirds cents (§22,666 66|), which the said lessee may reserve for repairs as heroin provided.

On the fourth of March, 1870, the sum of thirty-nine thousand dollars (§39,000).

On the fourth of March, 1871, the sum of forty thousand dollars ($40,000). . •

On the fourth of March, 1872, the sum of forty-two thousand dollars (§42,000).

On the fourth of March, 1873, the sum of forty-four thousand dollars (§44,000).

On the fourth of March, 1874, the sum of forty-six thousand dollars (§46,000).

On the fourth of March, 1875, the sum of forty-eight thousand dollars •(§48,000).

On the fourth of March, 1876, the sum of fifty thousand dollars (§50,000).

On the fourth of March, 1877, the sum of fifty-five thousand' dollars (§55,000).

On the fourth of March, 1878, the sum of sixty thousand dollars (§60,000).

On the fourth of March, 1879, the sum of sixty-five thousand dollars (§65,000).

On the fourth of March, 1880, the sum of seventy thousand dollars (§70,000).

On the fourth of March, 1881, the sum of eighty-five thousand dollars (85,000).

For all of which sums as they shall be respectively paid to the Governor of the State for the time being the said Governor shall give full acquittance and receipt.

And now to this act intervenes Messrs. B. W. Huntington and D. D. Withers, both of the city of New Orleans, State of Louisiana, and who declaring themselves cognizant of the obligations herein assumed by the said Bichard Taylor, lessee, make themselves parties hereto, and hereby bind themselves as sureties of said lessee in the amount of thirty-six thousand dollars in the manner and to the extent provided in said act of the Legislature.

Thus done and passed in my office at the city of New Orleans, on the. sixth day of the month of March, in the year of our Lord one thousand eight hundred and sixty-six, in presence of Felix Grima, Jr., and Thomas A. Henderson, competent witnesses, who hereto sign with said parties and me, notary.

(Original signed) ■ B. TATLOR,

D. D. WITHERS,

B. W. HUNTINGTON,

J. MADISON WELLS,

F. GBIMA, J it.,

THOMAS A. HENDERSON,

T. O. STARK, Notary Public.

Tho report of tlie Engineer of'the eighteenth of January, 1866, referred to in the contract, is as follows:

Office State- Engineer Louisiana, ) New Orleans, January 18,1866. j

To his Excellency, J. M. Wells, Governor of Louisiana:

Sir — I beg leave to submit the following report as to tho condition of the Now Canal, with the repairs and alterations needed to place tho same in proper condition.

I have made inquiry with the past and present revenue returned by tho canal, slicllroad, etc., to tho Canal Bank, in order to assist you in tho future disposition of the same, and respectfully submit tho following as tho result: '

From the time the canal was completed until 1848 it was managed for account of tho Canal and Banking Company, and returned but very light receipts.

On the eighth of July, 1848, tho Canal Company leased to Major Ran-noy for tho remaining period of the charter, until March 6,1866, the basin, shellroad, canal, toll-houses, superintendent’s house, negro quarters, stables, and depots, with thirty slaves, forty mulos, one dredge-boat, mud-boats, etc., all in good condition.

Major Rannoy was to pay the company thirty-throe thousand dollars for tho first year, thirty-four thousand dollars for tho second year, and so on, increasing one thousand dollars every year until tho expiration of the lease.

In 1862, when tho United States forces entered New Orleans, Major Rannoy left tho city, and tho hank had to resume the charge of the canal. On the first of February, 1863, Mr. Blanc took charge of tho canal for the bank, and informs me that during the war the expenses exceeded the receipts of the canal. The bank expended some four thousand dollars in repairs at or about that time.

On tho first of July, 1865, Mr. Blanc leased from the bank tho canal, with all its appurtenances, houses, etc., with ten mules and harness, for which ho pays tho sum of one thousand dollars per month.

First — Tho entrance now existing to tho canal is an imperfect and difficult one, being too narrow, and of such form that vessels entering have a great deal of trouble in effecting tho same. The accompanying plan to this report will indicate the alteration proposed.

Second — Again, tho embankments forming the side of the entrance have, from the effect of the sea and time, become decayed and out of order; new piling and revetment, as per plan, will be necessary, and also tho filling up of the embankment with additional earthwork.

Third — The bar formed by annual storms will require occasional dredging, but I hope by tho substitution of open piling at the end to obviate, to a groat extent, tho frequency of dredging.

Fourth. — The amount of work requisite will be shown in the plans, and such portions of old work that can not be repaired will necessarily have to be constructed anew.; interior revetting will be required some considerable distance down the entrance and adjoining the bridge near the shore.

' Fifth — To allow of vessels passing each other more readily, and the gaining of time thereby, I would suggest the construction of four additional “ turnouts ” along the line of the canal at designated intervals, the turnouts to bo two hundred and fifty feet long, twenty-five feet wide, and of the same depth, as the canal.

Sixth — Owing to tlio height of tho ridge and the description of soil, with its tendency to cave, it will be necessary to construct said five hundred feet of piling and rovotrnent to prevent the destruction of the shell-road. Tho plan will indicate the mode proposed for the same.

Seventh — Much additional wharf accommodations required at the basin, or city terminus of tlio canal, and it is proposed that tho present line of wharves bo repaired and now ones continued on each sido of tho canal until they reach the present toll-gate.

Eighth — The increasing business of the canal demands tho construction of the wharves, and tho piling necessary for the same with additional revetments will prevent the caving in of the banks, the filling up of the canal, and the encroachments upon the landings or property thereof.

Ninth — The canal will require but little dredging, for the soundings taken show a good depth of ■water.

Tenth — The toll-gates, etc., of tlio canal need some repairs, likewise tho bridges; the mud-boats are worthless; the dredgeboat will require considerable overhauling before it is in proper condition for work.

Eleventh — The shellroad, owing to tho occupation of a portion of it by the United States government, requires considerable repairs; the railroad track, crossties, etc., have been removed and an attempt made to grade the same, but it will require many thousand barrels of shells to place it in proper condition.

Twelfth — By reference to the charter it will be observed that a levee and draining canal are called for as parts of tho condition of granting the same. The draining canal does not exist at present, although oi much importance in carrying away the water from the portion of country lying on the upper side of the canal. Of comparative necessity in the past, its value is greatly increasing since the erection of a draining machine and the more rapid and increased accumulation of deposit in the canal.

The necessity of the canal is fully shown by the filling up of the Bayou St. John, and the fact of its being a condition in the charter proves that the Legislature was aware of the rights of property-holders lying above the canal, and of the evil effects of using a canal intended for navigation for other purposes; lately the same has been demonstrated by the fact of the city being obliged to change the drainage of Julia street from the basin to a canal constructed for that purpose, which leads to one of .the city draining canals.

The cost of placing the canal, shellroad, etc., in good order and making •the alterations proposed would have amounted to the sum of thirty-five thousand dollars in ordinary times.

If executed at the present time it will be nearly twice that amount, say sixty-eight thousand dollars. • The fluctuations of the price of labor, materials, etc., will increase or diminish the amount, according to the period of execution.

Respectfully submitted,

WM. A. FRERET, State Engineer.

State on Louisiana, City on New Oeleans.

I, the undersigned, Charles G. Andry, a notary public, duly commissioned and qualified in and for the city of New Orleans, and the parish of Orleans, State of Louisiana, do hereby certify the foregoing to be a true copy of the original act and documents thereto annexed, extant among the records of Theodore O. Stark, also a notary public of this city, now temporarily absent from the parish of Orleans, and whose records are now under my custody.

In faith whereof I grant these presents under my signature and the impress of my seal of -office at New Orleans on this eighteenth day of December, A. D. 1873.

CHAS. G. ANDRY, Notary Public.

And thereafter the contracting parties appeared before T. O. Stark, notary public, and entered into the following modified contract of lease, in pursuance of said act:

State oe Louisiana, Pabish of Orleans.

Be it known that before mo, Theodore O. Stark, a notary public in and for the said State and parish, duly commissioned and qualified, personally came and appeared Duncan F. Kenner, Esq., herein acting as the true and lawful attorney in fact of Richard Taylor, Esq., of this parish, lessee of the New Canal and Basin, the authority of said Kenner being ■derived from a power of attorney executed by said Taylor on the twenty-■eighth day of March, 1867, before DuPlessis M. Helm, notary in the city of' New York, and hereto annexed, who declared that the General Assembly of this State has passed an act entitled “ an act to authorize the widening- and enlarging of the New Canal and Basin,” approved March 14,1867, a copy of which is hereto embodied as follows, to wit:

No. 118 — An act to authorize the widening and enlarging the Now Canal and Basin.

Section 1. Be it enacted by the Senate and House of Representatives of the State of Louisiana, in General Assembly convened, That Richard Taylor, the lessee of the New Canal and Basin, be and he is hereby authorized and required to widen the New Canal to a width of not less than one hundred feet, and for this purpose to use the land contiguous to the canal belonging to the State, the depth of the canal when widened to be not less than eight feet at the lowest tides; and all wharves, basins’ piers, abutments, bridges, etc.,- shall be constructed according to plans and specifications prepared by the State Engineer.

Seo. 2. Be it further enacted, etc., That the lessee is hereby required and shall bind himself by the notarial act hereinafter provided for to dig and construct three additional basins, each not less than one thousand feet long by three hundred feet wide, and to this end said lessee is authorized to use the contiguous land belonging to the State, and to obtain lands by purchase or by expropriation, under the act of the General Assembly, entitled “an act for the expropriation of lands to railroads and other works of public utility,” approved February 28, 1855; provided, that the land granted to the Firemen’s Charitable Association of New Orleans shall be exempted from the provisions of this section.

Seo. 3: Be it further enacted, etc., That as a consideration for the outlay necessary for the improvements to the New Canal and Basin, the said Taylor is authorized to retain the annual payments due to the State under the existing lease; provided, that at least one-fifth of the work shall be completed annually from the time this act is promulgated until the whole improvement is finished.

Sec. 4. Be it further enacted, etc., That the improvements to be made in said canal and basin shall be commenced within one year from the passage of this act, and be completed within five years thereafter, or in failure thereof the annual rent shall be due and payable to the State, as provided in the existing lease.

Sec. 5. Be it further enacted, etc., That at the expiration of said lease all the improvements made to said canal and basins, and on land belonging to the State, or on lands purchased or expropriated, shall become absolutely the property of the State of Louisiana, without any claim by said lessee.

Sec. 6. Be it further enacted, etc., That immediately after the passage of this act it shall be the duty of the Governor to cause a notarial act to be executed embodying the provisions of this • act and the plans and specifications of the State Engineer, to which said act the securities on the original lease shall be parties, and expressly consent to the modifications of said lease, as hereinbefore set forth.

(Signed) DUNCAN S. CAGE, Speaker of the House of Representatives.

(Signed) ALBERT YOORHIES, Lieutenant Governor and President of the Senate.

Approved March 14,1867.

(Signed) J. MADISON WELLS, Governor of the State of Louisiana.

A true copy:

[L.S.] J. H. Hardy, Secretary of State.

Now, therefore, the said Kenner, in -his said capacity of attorney in fact of said Taylor, lessee, does hereby accept the said act in all its parts, as well the rights given to the said lessee under said act, as the obligations imposed thereby, and does engage that the said lessee will, within the time required by said act, cause the said canal to be widened to a width of not less than one hundred feet, with a depth of not less than eight feet at lowest tides, and to dig and construct three additional basins, each not less than one thousand foot long, by three hundred feet wide; and all wharves, basins, piers, abutments, bridges, etc., which the lessee may have occasion to construct shall be constructed according to plans and specifications prepared by the State Engineer, hereto annexed, but which are accepted by said lessee only in so far as they carry out the. terms and conditions set forth in the above-cited act of the -Legislature.

And now personally came and appeared Messrs. D. D. Withers and B. W. Huntington, securities of said Taylor, lessee, in the original lease executed between the State and said Taylor, by act before me, notary, under date of the sixth day of March, 1866, who severally declared that they do hereby expressly consent to the modifications of said lease provided for by said act of the General Assembly and by this act; and now appears his Excellency J: Madison Wells, Governor of the State of Louisiana, who in accordance with the requirements of said act of the General Assembly has caused this act to be prepared, and docs hereby accept the same on behalf of the State of Louisiana.

Thus done and passed in the office of the undersigned, notary, at New Orleans, this twenty-ninth day of April, A. D. eighteen hundred and sixty-seven, in presence of Charles G. Andry and Edgar Grima, competent witnesses, who hereto sign with said appearei’s and me, notary.

Original signed: R. Taylor, per pro Duncan E. Kenner; D. D. Withers, J. Madison Wells, Governor of Louisiana; R. W. Huntington, Charles G. Andry, Edgar Grima, T. 0. Stark, notary public.

COPY OP DOCUMENTS ANNEXED TO THE ORIGINAL ACT.

Specifications for the widening and enlarging of the New Canal and Basin.

Specifications of State Engineer to be embodied in the notarial act, as required by an act of the Legislature, approved March 14,1867, to authorize the widening and enlarging of the New Canal and basins, etc.:

First — -The canal to be widened to one hundred feet; the depth of the canal when widened to be not less than eight feet at the lowest tide. In widening the canal all stumps and roots of trees shall be removed, leaving a clear channel.

Second — The new basins shall be of the dimensions and areas required by the act approved March 14,1867. That is to say, the lessee shall dig and construct three additional basins one thousand feet long each, and three hundred feet wide, the depth of the basins to be the same as the canal.

Third — The wharves for the new basins to be constructed as shown on plans numbered one and two, and in the following manner: The piles to be driven at distances of ten feet apart, measuring from centres; the piles to be twelve inches square at the but-end and ten inches at the •small end, and to be driven not less than fifteen feet into the solid ground. The caps to bo twelve inches square and bolted to each pile head with one three-quarter by twenty-inch ragged bolt; a string course, •ten inches by eight inches, to be bolted to the inside of the piles near water level, by three-quarter by fourteen-inch ragged bolt, two at each end of stringers, and one at each intermediate pile. Sheet piling of three-inch plank to form a revetment to be driven on the inner side of string course, and each plank to be fastened with two seven-inch boat spikes. The sheeting to be driven at least four feet six inches into the solid .ground, and the heads of plank to be left one foot above string course.

Fourth — The top of wharves to be covered with three-inch plank laid ihalf an inch apart. A ground sill ten inches by eight inches to be provided, and each plank to be fastened with four seven-inch boat spikes, .two at each end.

Fifth — Mooring piles to be driven aloDg the new line of wharves at distances not exceeding twenty-five feet apart, the piles to be ten inches ■ square, to project two feet above the planking, and tobe neatly dressed ■off at the corners and top.

Sixth — The whole of the timber for the above works to bo of the best quality of yellow pine, free from all defects.

Seventh — On the completion of the wharves in the basins, the ground in rear of the planking shall be graded to meet the levels of the streets, all irregularities of the ground removed, and the whole left clear of rub-lbish.

Eighth — All bridges, piers, wharves, basins, abutments, etc., shall be-constructed of similar materials to those now built, and of the best materials, and the whole shall be constructed in accordance with the plans of the New Canal signed by the State Engineer marked or numbered one, two, and three, and bearing the dates of nineteenth January, I860, and fourteenth of March, 1867.

Ninth — In enlarging the canal a sufficient quantity of earth to bo deposited on the bank of the canal to afford such ample protection against all overflow or inundation as now exists.

Tenth — The lessee to furnish and provide all the labor and materials necessary for carrying on and completing the work designated in this specification, together with all necessary implements, tools, dredgeboats, pile-drivers, etc.

Eleventh — The whole of the work to be executed in the best and most workmanlike manner, under the supervision, according to the lines, levels, sections, detail, drawings, and to the entire satisfaction of the State Engineer.

Now Orleans, Louisiana, March 27,1867.

WILL. A. FRERET, State Engineer.

Know all men by these presents that I, Richard Taylor, of Now Orleans, in the State of Louisiana, have made and do hereby make, constitute, and appoint Duncan F. Kenner, of the same place, my true and lawful attorney for me and in my name, and as my act and deed, to accept from the constituted authorities of the State of Louisiana a certain lease of the New Canal and Basin upon the terms and conditions set forth in an act of the Legislature of the said State passed on the fourteenth day of March, 1867, such now lease to be in modification of one that I now hold from said State for the same property, and with full power to sign my name to all said formal acceptances of such lease, as well as to the lease itself, and to acknowledge the same for me and as my act and deed, as fully and completely as I could do if present, and to sign and acknowledge for me all such other papers as may be necessary, in his discretion, connected with said lease or the modification thereof, hereby ratifying and confirming all that my said attorney shall do by virtue hereof.

Witness my hand and seal this twenty-eighth day of March, one thousand eight hundred and sixty-seven.

[L. S.] R. ’TAYLOR.

Witness — DuPlessis M. Helm.

State oe New York, I City and County of New York. [ k' '

On this twenty-eighth day of March, A. D. 1867, personally came before me Richard Taylor, to me known to be the person described in and' who executed the foregoing power of attorney, and acknowledged that he executed the same for the uses and purposes therein contained.

In witness whereof I have hereunto set my hand' and affixed my official seal the day and year last above written.

[L.S.] DUPLESSIS M. HELM, Notary Public, City of New York.

On the twenty-eighth of March, 1870, the General Assembly passed act No. 82, which is as follows :

No. 82 — An act to facilitate 'dbmmerco by providing for the construction, of additional basins on the New Canal.

SectioN 1. Be it enacted by the Senate and House of Bepresentatives of the State of Louisiana, in General Assembly convened, that in lieu and instead of the three basins heretofore provided for by existing law, the lessee of the New Canal is hereby required and directed to dig and construct sixteen basins, each not less than two hundred feet in length, with a width of one hundred and fifty feet, measured from the west bank of said canal.

Sec. 2. Be it further enacted, etc., That this act shall take effect from and after its passage.

(Signed) MOBTIMEB OABB, Speaker of the House of Bepresentatives.

(Signed) • OSCAB J. DUNN, Lieutenant Governor and President of the Senate.

Approved March 28,1870.

(Signed) II. O. WABMOTH, Governor of the State of Louisiana.

A true copy:

Geo. E. Bovee,

Secretary of State.

It is not pretended that the defendant has performed the works designated in the Engineer’s report; on the contrary, it is strenuously insisted that the act of 1866 and the act of 1867, and the contracts thereunder, “nowhere provide for the performance by the lessee of all the proposals or suggestions of the State Engineer, Ererot, in his letter of January 18, 1866.

“ The act of 1866 provides only that the lessee shall make the repairs recommended by that letter,” etc.; and it is further said the “plans of the State Engineer were accepted by said lessee only in so far as they carry out the terms and conditions of the act of 1867.” If by this last sentence it is meant that the lessee did not accept the terms expressed in the notarial act, then there would be no contract, if the act of 1867 be different from the notarial act, for want of a concurrence of mind. But the defendant sets up this contract, under the act of 1867, himself, as al modification of tho one made under the act of 1866, and he can not say he is not bound by its terms.

The act of 1867, it is true, uses the word repairs in one place when referring to tho Engineer’s report, but it immediately after provides that “the costs of ihe repairs to tho extent of sixty-eight thousand dollars shall be allowed to tho lessee, in three equal amounts, to bo deducted one third each year from the annual rents;” and then it adds that “ the repairs and IMPROVEMENTS provided by this section shall be made,” etc.

There is no room for a serious doubt that the Legislature intended to have tho contractor do the works reported as needed by the Engineer, and which report was made a part of the specifications to be annexed to tho notarial act. The very sum which he estimated it would cost at present prices to do the luliole work recommended was allowed to the lessee for making the repairs and improvements.

Now, the act of 1867 provided that the canal be made one hundred feet wide and that three additional basins, each not less than one thousand feet long, by three hundred feet wide, should be made, all to be eight feet deep at lowest tide, for which works the amounts stipulated to be paid by Taylor for the rental of the canal should bo remitted to him. It did not change or affect tho other obligations of Taylor to the State created by the contract of 1866 any more than it affected his rights under said contract. Under tho contract of 1867 he assumed the obligation to make the above-mentioned improvements in addition to what he had engaged to perform in tho contract of 1866.

The third section of the act of 1867 required that one fifth of the work be done annually until the whole is finished. I am convinced from the evidence that this provision had not been complied with when tho act of 1870 was enacted. I am equally convinced that the defendant had failed in several other important particulars to perform his contract under tho act of 1867; to wit:

He has not made “the repairs described by the specifications and plans in the report of the State Engineer to the Governor,” dated January 18,1866. Tne new wharves have not been “ continued on each side of the Now Canal until they reach tho present toll-gate.” They have not been begun from Magnolia to Claiborne street, say one thousand foot on each sido. The “ levee and draining canal” on the upper side of 1 the canal” lias not been made, as required by specification twelve of the State Engineer’s report. The entrance to the canal (specifications 1, 2, and 3) has not been improved as required. The shellroad has been repaired only in part; nothing has been done this side of Claiborne street, as required by specifications of State Engineer.

Eor all this, and especially tho two thousand feet of extra wharfage, defendant was to retain sixty-eight thousand dollars during tho first three years o£ the lease. This presupposes that the improvements were to be made during the three years at the most, but they have not been made at all.

The act of 1870 appears, from its terms, to have been passed for the relief of tho defendant. It provides that, in lieu of the three basins of one thousand feet in length by three hundred feet wide, sixteen basins, each not less than two hundred feet in length, with a width of one hundred and fifty feet, measuring from the voest bank of the said canal — or in plain language, fifty feet wide.

But even this obligation has not boon performed.

The evidence shows that there are only nine basins fifty feet wide, and that there are no wharves around them. But it is pretended that these nine basins measure in the aggregate about thirty-two hundred feet in length, and therefore that is á compliance with tho contract. The law and the contract permitted the contractor to make the basins as long or as widens he pleased, but both required him to make them at least two hundred feet in length, and the contract required sixteen. As the counsel for plaintiff well remarked, it is not possible to truthfully call nine basins sixteen basins.

I therefore dissent from the opinion of the majority.

Taliaferro, J. I concur in the dissenting opinion of the Chief Justice.

Oír Beheakixg.

Wily, J.

After re-argument of this case and upon mature deliberation, we have come to the conclusion that our form'er judgment herein is correct.

It is therefore ordered that our former judgment remain undisturbed-.


text:
    No. 6144.
    Mrs. E. Bourlon, Wife of H. Verges, vs. E. Waggaman, Sheriff, et al.
    The plaintiff in execution, which is onjoine'l by Mrs. Bom-Ion, attacks on several grounds tho validity of the judgment of separation between her and her husband. Tho record shows that more than one year elapsed between the dates of either flic judgments of thelseizing creditor, or of tho wife for separation, and the date of this proceeding or the date of tho seizure enjoined. Tho plea of prescription of one year filed in this court must prevail.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      E. Sdbonrin and E. J). White, for plaintiff and appellant.

      Charles .Tonque, and McEnery, .Ellis & Ellis, for defendants and appellees.
   Howell, J.

Mrs. Mary Clancy, having judgments against tho firm of Hesso & Verges and against H. Verges, one of said firm, issued execution and seized fifteen hogsheads of sugar as belonging to said H. Verges. The plaintiff, wife of Verges, and separate in property, enjoined the sale, claiming the sugar as raised on a plantation which she purchased after judgment of separation and cultivated with funds obtained on hoi” sole credit. The plaintiff in execution attacked the validity of tho judgment of separation, because fraudulently rendered; because rendered by. consent; because rendered upon insufficient allegations and without-proof; and because it was never executed. Judgment was rendered dissolving the injunction, and plaintiff appealed.

In this court she pleads tho prescription of one year.

The record shows that more than one year elapsed between the dates of either the judgments of the seizing creditor or of the wife for separation and tho date of this proceeding or the date of the seizure enjoined. Tho plea of prescription must prevail. See 14 An. 106; 23 An. 546; 24 An. 022.

It is therefore ordered that tho judgment appealed from be reversed, and that there bo judgment in favor of plaintiff perpetuating tho injunction herein, with costs in both courts.

Rehearing refused.