text:
    City of New Orleans v. Antoine Michoud.
    Under the statute of 1805 rural prop erty is not liable for assessment for the maintenance of lights, of the city watch, and for cleaning the streets.
    PPEAL from the Fifth District Court of New Orleans, Augustin, J.
    XX Labatt & Eustis, for plaintiff.
    C. Eoselius, for defendant and appellant.
   Merrick, C. J.

This is a suit instituted under the summary proceedings authorized by the Act of 1852, for the collection of the defendant of $331 20, amount of consolidated loan tax of 1853, and $193 50, city tax.

It appears that the defendant’s plantation, on which these taxes are levied, is situated within the present limits of the city, about twenty-five or thirty miles from the centre of the city of New Orleans, and is, with the exception of about two hundred acres cleared, a dense forest; and that defendant’s crop has never exceeded thirty hogsheads of sugar.

He resists the payment of the tax on the ground that his property is rural, and that it is not subject to taxation as urban.

It must be apparent to every one, that the collection of the city taxes of the defendant, who derives but little benefit from the city government, is a harsh and somewhat oppressive measure; particularly when we compare the magnitude of the tax with the small amount of revenue derived by the defendant from Ju§ plantation.

But while we feel the injustice of the law in this instance, we are constrained to say, we have no power to relieve the defendant, so far as the consolidated loan tax is concerned. The power to levy this tax is vested in the authorities of New-Orleans, and made imperative upon them. The remedy for this evil is with a co« ordinate department of the government, and not with the courts.

As to the residue of the tax for the ordinary city purposes, we think, with the Judge of the lower court, under the statute of' 1805, that the defendant’s property, as rural property, is not liable to assessment “for the maintenance of lights, of the city watch, and for cleansing of the streets.”

The judgment of the lower court should, therefore, be affirmed,

Judgment affirmed.


source: Caselaw Access Project

author: Voorhies, J.

license: Public Domain

text:
    City of New Orleans v. Elijah Cannon.
    Defendant was sued for the city tax of 1858, and was cited under the 85th section of the Consolidation 4ct of 1852, which substitutes, in lieu of the petition and citation, the constructive service, by advertisement, of the tax-bill in the official newspaper of the city. Held: that such proceedings, in the absence of petition and citation, are not unconstitusional.
    from the Fifth District Court of New Orleans, Augustin, J.

      Labatt & Eustis, for plaintiff.
    Koonts, for defendants and appellant.
   Voorhies, J.

The plaintiff claims of the defendant the sums of $418 50, the city tax for the year 1853, and $439 05, the consolidated loan tax, due the 1st of March, 1854.

The 35th section of an Act, entitled “an Act to consolidate the city of New Orleans, and provide for the government and administration of its affairs,” approved the 23d of February, 1852, forms the basis of this action. (Session Acts of 1852, p. 52.)

The defendant excepted to the plaintiff’s right to maintain this action, on the ground that he had not been legally cited, no petition and citation having been issued and served upon him according to law.

It is deemed unnecessary, for the purpose of the decision in this case, to notice the other grounds of defence set up in the defendant’s answer, inasmuch as the same grounds of defence, urged in the case of the present plaintiff against Samuel Locke, have lately been passed upon by us.

The only question, therefore, presented for our decision, is the the constitutionality of the summary proceedings prescribed by the 35th section of the Consolidation Act, to enforce the collection of the city taxes, which dispenses with the necessity of petition and citation, substituting in lieu thereof, constructive service by advertisement of the tax-bill in the official newspaper of the city. In support of his position, the defendant relies on our Constitution, which declares, that “no person shall be deprived of life, liberty or property, without due process of law,” and on Article 7 of the Amendments of the Constitution of the United States, which provides, that “in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury,, shall be otherwise re-examined in any courts of the United States.”

We have been unable to discover in the proceedings under consideration any thing which militates against these provisions. Since the adoption of our first State Constitution, the constitutionality of the right to enforce the payment of the State and parish taxes, by proceedings equally as summary as those involved in this controversy, lias never, for a moment, given rise to any doubt.

It has repeatedly been held, under our jurisprudence, that the assessment roll stood in lieu of and had the effect of a judgment and execution. In treating of the mode of bringing civil suits, of suits, and of parties litigant, the Code of Practice, Articles 97, 98, provides: “Civil actions may be prosecuted, according to the nature of the case, by three kinds of proceedings, to wit: ordinary, exe-cutory, or summary. The proceedings are ordinary when citation takes place, and all the delays and forms of law are observed. They are summary when carried on with rapidity, and without the observance of the formalities required in ordinary eases,” ete. Henee, summary proceedings clearly fall within the term of “due process of law.”

Are such proceedings, in the absence of petition and citation, unconstitutional? Surely not. But it is urged, that “ no law can be constitutional which establishes a course of judicial proceedings, by which a party can be sued, the cause tried, and judgment given against the defendant, and he be in utter ignorance of the whole matter, until the Sheriff is at his door.”

This assumption, we think, is clearly inapplicable to this case. The State assessment rolls formed the basis upon which the municipal taxes were levied. The law makes it the duty of the assessors to call upon each tax payer for a list of his property, to be given under oath. In the absence of any proof to the contrary, we are bound to presume that it was done in the present case. Hence the defendant must have been notified in the same manner as the other taxpayers.

Under the 87th section of the Consolidation Act, the debts of the three Municipalities, and the general sinking fund having been assumed by the city of New Orleans, it is made the duty of the Common Council to pass annually, in the month of January, an ordinance to raise the sum of $600,000, by a special tax on real estate and slaves, to be called the consolidated loan tax, the rate per cent, of which, in each Municipality, to be in proportion to its indebtedness. Surely, in view of this law, the defendant could not have been ignorant of the existence of his obligation to contribute, as other tax payers, to the payment of this tax.

The 85th section of the same Act provides, that “all city taxes, except levee dues, shall be payable only in the office of the Treasurer, from the 1st of May to the 1st of July of each year, and the said Treasurer shall, by notices in the public newspaper, pointed out by the Common Council, notify the tax-payers to appear at his office for the payment of their taxes.” The ordinance appears to have been passed, and the notices published, in accordance with the requirements of the Act. Nothing in this appears to us to be either unconstitutional or oppressive.

In regard to the city taxes for the year 1858, we consider the plaintiff’s claim equally well founded. The ordinance of the Common Council, approved the 20th of February, 1854, fixed the annual tax upon the real estate and slaves in the city, at ninety-six cents on every one hundred dollars of the assessed value thereof, according to the assessment rolls of the State Assessors.

The legality of the taxes levied under this ordinance, is resisted on the same grounds as those presented in the case of the City v. Solomon, i. e. that the formalities required by the 6th section of the Act of the 18th of March, 1850, had not been fulfilled. The decision in that case must be considered as decisive of this question.

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


author: Spofford, J.

text:
    Underwood v. Lacapere—Landry and Bush, Warrantors.
    When a party, residing in a distant parish, is called in warranty, he is hound to take notice of the orders of the court in the regular progress of the cause.
    A defendant in a suit, having filed an answer, is presumed to have been present at the trial; and cannot, if no bill of exception is taken to the admissibility of testimony, avail himself of an objection in the Supreme Court.
    When a warrantor has made default, the party who called him in, is bound to prove his demand, (C. 3?. 312) and this by testimony that appeared ¡prima, facie to have been taken according to law.
    It is only when the party having no advocate of record, resides neither at the place where the court is held, nor in the parish where the deposition is to be taken, that the mode of giving notice to such party shall be by delivering to the Clerk of the court a copy of the interrogatories to be by him stuck up in his office. 0. P. 428.
    PPEAL from the Second District Court of New Orleans, Lea, J.
    XJL Jones, for plaintiff.

      M. Taylor & R. Taylor, for defendant.

      Dufour, for Bush.

   Spofford, J.

There was judgment in favor of the plaintiff against the original defendant, for the slave demanded in the petition; but the defendant was non-suited as to his demand against the warrantors.

He obtained a now trial as to that branch of the case alone; and on the new trial, judgment having been rendered against the warrantors, they have appealed.

The defendant was cited in New Orleans ; the warrantors were cited in La-fourche, the parish of their residence. Madame Landry alone answered. Bush made no appearance, and a judgment by default was rendered against him after the lapse of more than the legal delay.

It is urged that the rule for a new trial was served upon the plaintiffs, and ' that it was made absolute as to the warrantors only, who had no notice. It was their own fault if they had no notice. They did not choose to employ counsel, and although they lived in a distant parish, they were bound to take notice of the orders of the court, in the regular progress of the cause. The court might have granted a new trial, ex propio motu, and wo could not have interfered with such an exercise of its discretionary powers.

It is contended that the evidence offered on the new trial, and which alone ascertains the sum due by the warrantors, was taken ex parte, and should not have been received against the warrantors. We are of opinion that Madame Landry, who, having filed her answer, is presumed to have been present on the trial, cannot avail herself of the objection here, because she took no bill of exceptions in the court below. The evidence then fully sustains the judgment as to her.

But with regard to Bush who made default, we think the party who called him in warranty was bound to prove his demand. O. P. 312. To do this he should have administered evidence that appeared prima facie, to have been ta- a ken according to law. Now it is shown on the face of the proces verbal that | the depositions of Blanchard and Dauries, were not taken according to law. § “ If -the adverse party, having no advocate, as above expressed, reside in the parish where the deposition is to be taken, the Judge or Justice of the Peace, to whom the commission is directed, must, before examining the witness, give written notice to such party, of the place where, and of the day and hour at which, he will take the testimony of the witness; always allowing a reasonable delay for the party to attend.” C. P. 428. It is only when the party having no advocate of record, resides neither at the place where the court is held, nor in the parish where the deposition is to be taken, that the inode of giving notice to such party shall be by delivering to the Clerk of the court a copy of the interrogatories to be, by him, stuck up in his office. C. P. 428.

In this case the interrogatories were merely posted on the door of the court room. The record shows that the warrantor, Bush, resided in the parish of Lafourche, where the depositions of the only witnesses who make out a case against him, were taken ; and the record further shows that no notice of time and place were given him by the Justice of the Peace, who received the depositions. The evidence is not, therefore, legally binding upon Bush, and the judgment against him must be reversed.

It is, therefore, ordered, adjudged and decreed, that the judgment in favor of Mrmin Laoapere, against Mrs. Marie Oelesie Landry, widow of Pierre 0. Bourgeois, be affirmed; it is further ordered that the judgment in favor of said Lacapere, against Louis Bush, be reversed, and that there be judgment in favor of said Bush, as in case of non-suit; it is further ordered that the costs of this appeal be borne one half by Madame Landry, widow Bourgeois, and the other half by said Mrmin Lacapere.


author: Buchanan, J.

text:
    New Orleans v. Mrs. Jeter
    As regards collection of revenue, mode of citation is within the control of the Legislature.
    Appellant mustsee that the transcript is complete, and can derive no benefit from omission.
    A clerical error in a judgment, by which the husband’s and not the wife’s name is inserted, where tax bills are in her name, not regarded.
    PPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Lx. Heistand & Levy, for plaintiff.

      Steele, for defendant and appellant.
   Buchanan, J.

The defendant and appellant assigns for error in the judgment rendered against her in the court below :

1st. That she was not cited properly, no notice of any kind having been served on her.

In reply to this ground of error, it is sufficient to say that the form of citation is a matter entirely within the control of the Legislature ; and in this particular kind of suit, to-wit; a suit to enforce the payment of city taxes, the Legislature has declared the publication in the newspaper to be equivalent to personal service.

2d. That the judgment was rendered without any evidence of assessment, no proof having been made thereof in the lower court.

In the note of the evidence adduced on the trial in the District Court, we find the following : “ Plaintiff introduced in evidence the assessment rolls for this city and parish, for the year 1854.” By agreement of parties in the record, an extract from the assessment rolls was to'have been copied into the transcript of appeal. This has not been done. But the appellant can derive no benefit from this omission. It was for her to have seen that her transcript was complete. She has not suggested any diminution'of the record, as she might have done; but has thought fit to go to trial upon an incomplete record.

The last ground of error assigned, is that the judgment is against appellant’s husband, and appellant’s property is subjected o a privilege for its payment.

By a clerical error the name of Jb7m T. Jeter is in the judgment; but the two bills are against Mrs. John T. Jeter. She acknowledges that the property liable to this taxation, belongs to her; and although possibly the husband might have cause to complain of the clerical error in question, it is not perceived how the appellant, Mrs. Jeter, is prejudiced by it.

Judgment affirmed, with costs.


author: Buchanan, J. Merrick, C. J.

text:
    C. Glapion v. G. and J. G. Montamat.
    Where A. gives his note, aud before its maturity deposits with the holder, the note of a third person as collateral, with agreement to renew first note when due. JlelcL:

    1st. In the absence of stipulation as to time of payment of renewal note, defendant must prove the time fixed.
    2d. Defendant must tender the renewal note, though the holder has previously declared he will not receive it,
    from the Fifth District Court of New Orleans, Augustin, J.

      Robert Premia, for plaintiffs.
    Cited: C. 0. 2044-5-8 ; C. P. 404.

      L. Oastera, for defendant and appellant.
    Cited: C. 0. 1907 ; 3 L. 382; 14 ib. 34; 4 R. 161; 2 An. 306; 4 L. 40.
   Buchanan, J.

The defendants are sued on a promissory note, dated 27th December, 1854, payable four months after date, and protested at maturity for non-payment. The signatures of defendants as drawer and endorser, and the service of notice of protest, are admitted.

Defendants plead that it was agreed between the parties, that the note sued upon, should be renewed for a longer time, so as to correspond with the maturity of another note, which was deposited'with plaintiff as collateral security for the payment of the note sued on; that plaintiff refused to renew the note, and had brought this suit, in violation of his agreement. The answer concludes by praying that the suit be dismissed, as premature.

In support of this defence, the defendants have given in evidence a document of the following tenor:

“ Je reconnais avoir repu de Mr. Montamat, un billet de cinq cents quarante sept piastres 68-100, daté le 9 Octobre, 1854, payable dans quatorze mois, et souscrit par P. A. Bertrand, á son propre ordre et endossé par lui, lequel billet m’a été remis par ledit sieur (?. Montamat en garantie de son billet de cinq cents piastres endossé par son fils J. &. Montamat en date du 27 Décem-bre, 1854, á quatre mois de terme. Bien entendu, que je ne pourrai en aucu-ne manióre disposer du premier billet, et que je le lui remettrai aussitót que son billet de $500 sera payé á l’échéance, ámoins queje ne le renouvelle pour un terme plus long, comme il a été convenu de le faire. Nouvelle Orleans, le 27 Déc. 1854. ■ ■ O. GLAPION.”

The document indicates that there was an agreement between the parties for a renewal of the note sued on ; but does not explain for how long a term, nor on what conditions it was to have been renewed. The answer avers that the agreement was to renew for a time corresponding' with the maturity of Bertrand’s note, deposited as collateral, “ as it will be fully proven on the trial of this case.” But no proof was offered in support of this averment. As defendants have pleaded an agreement in discharge or modification of their contract sued upon, it was incumbent upon them to prove the terms of the agreement, as alleged. Not having done so, their defence fails. Besides, as was properly held by the District Judge, even had the agreement alleged, been proved, the defendants would not have been entitled to an extension of time, without tendering another note according to the terms of the agreement. Tt is true, the plaintiff, on the day of the maturity of this note, announced his determination not to accept a renewal. But the legal effect of such refusal on his part, was not to absolve the defendants from their obligation to give a new note (on the supposition of the agreement being as alledged by them) ; but the option was left to them, either of depositing such note at the risk of plaintiff, or of tendering it in court, when sued by plaintiff. See 0. P. 412. The defendants not having done either, are not entitled to relief at our hands.

Judgment affirmed, with costs.

Merrick, C. J.

Aside from the question whether parol proof would be admissible to show the length of time intended for the renewal of the note referred to in the contract of 27th Dec. 1854, I think a fair construction of the contract and note together, would, without other proof, entitle the defendants to the right of renewal for four months.

The letter of the plaintiff may be construed as one stating his necessities, rather than a positive refusal to renew the note. As the defendant had received the plaintiff’s money, which he was bound to restore at the expiration of the delay agreed upon, or to deliver another note in renewal, I am inclined to think the defendant was not relieved by the letter under the circumstances of this case, from a tender, of a new note in renewal of the old one. His neglect to comply with the contract, on his part, may be taken as an acquiescence in the reasonableness of plaintiff’s wish not to extend the time.

On this ground only, I concur in'the judgment pronounced in this case.

Spoffoed, J. I concur in this view of the case.


text:
    Huston et al. v. Fisk et al.
    Two of several proprietors may be joined in an action brought against them by their co*proprietors, . for a contribution to an expense incurred under the agreement of and intended for the benefit nf all.
    from the Second District Court of New Orleans, Lea, J.

      Bradford, for plaintiff.

      Bartlelte, for defendant and appellant.
   Spofford, J.

The plaintiffs and defendants, proprietors of the property known as Banks’ Arcade, under a purchase at the bankrupt sale of Thomas Banks, were threatened with eviction by a judgment of the Supreme Court of Louisiana, at the suit of the City Bank against them. See 2 An., 114.

These proprietors thereupon held meetings, and resolved to contribute in proportion to their respective interests in the property, for the purpose of employing eminent counsel and prosecuting a writ of error to the Supreme Court of the United States.

The defendants participated in those meetings, and were parties to the resolutions passed. Among the resolutions was one to raise and pay, in cash, the sum of four thousand dollars, to be deposited in the Bank of Louisiana, subject to the order of a committee of three, appointed by the proprietors.

Mr. Olay and Mr. Pierce were appointed by the committee, with the approbation of the proprietors, as counsel to prosecute the case in the Supreme Court at Washington, their fees being conditional, in part, upon their eventual success.

The judgment of the State Court was reversed, through the efforts of the counsel thus engaged upon behalf of the proprietors. See 0 Howard, 480.

The plaintiffs having paid all the expenses thus incurred, ($10,000,) sued the defendants, Weaver and Fish, for their pro raía contributions to the common fund, and recovered a judgment in the court below, from which the defendants have appealed.

The appellants complain that they were improperly joined as co-defendants. It was proper that all the parties to the alleged contract for raising the funds should be before the court in adjusting their mutual rights and liabilities. They are before the court; and we think the action is well brought in this form. The defendants have suffered no injury from their joinder in the defence, and were permitted to testify for each other in the court below.

Upon the merits, they complain, in substance, that the contract which resulted from the passage of the resolutions by the proprietors, was rescinded by the act of the plaintiffs in taking a writ of error for their sole benefit, and refusing to let the appellants join therein, although they sought .to do so, and tendered their portion of the expenses.

The defence is not sustained by the evidence. The defendants, after repeated demands, refused to pay their quota of the four thousand dollars, which they had agreed to raise in cash by joint contributions. They negleeted to comply with this contract in time. The plaintiffs had no power to -sign this bond for the defendants., to enable them to prosecute the writ of error. After the plaintiffs had sued out their writ, it is true that the defendants came forward and tendered the money which they had previously refused, but the weight of evidence goes to show that they made the tender only upon an impossible condition, to wit: that their names should he inserted in a legal proceeding which had already been taken., and was not amendable.

They chose to employ other counsel than those already employed by all the proprietors, for the purpose of remedying the mischief .occasioned by their own laches or bad faith. The payment of such counsel was their own affair. They might have paid their share when it was due, and gone to Mr. Pierce to prosecute their writ of error, without any additional expense. But because, by their own aet, they incurred an additional charge, we cannot relieve them from the obligation of their contract to pay their quota towards the expenses which accrued under the joint resolutions for the joint benefit, and of which tire defendants have reaped the profits, in common with their co-proprietors.

The judgment is therefore affirmed., with .costs.


text:
    City of New Orleans v. Heirs of Schmidt.
    By the Act of 1852, sec. 85, relating to the collection of taxes in New Orleans, the publication in a newspaper has the effect of a citation duly served, and it should be subject to the same rules as the citation, of which it is the equivalent.
    PPEAL from the Fifth District Court of New Orleans, Augustin, J.
    Xjl Labatt & Eustis, for plaintiff.

      Schmidt, for defendants
   Buchanan, J.

The plaintiff having recovered judgment for a sum of over three hundred dollars, for taxes of the year 1852, upon a default entered up upon a newspaper notice, as authorized by the Consolidation ¡let of 1852, p. 52, sec. 85, with privilege upon certain property situated in Royal street, belonging to the heirs of Mrs. Melanie Seghers, the deceased wife of Gusiavus Schmidt, the latter have appealed, and assign for error apparent upon the face of the record, among other matters, that there has been no sufficient legal citation.

The citation, according to the provisions of the Act of the Legislature just mentioned, was an advertisement in the official newspáper of the City Council, calling upon defaulting tax-payers to appear within fifteen days in the court in which the tax bills due by them were deposited. In the advertisement in ques- . tion, the only designation of the defendants is, “The Heirs of Schmidt.” This is clearly insufficient. Schmidt is one of the most common names among our population, as the Directory and the bills of mortality, to which we have been referred, abundantly testify. The Legislature have thought fit to give the publication in a newspaper the force and effect of a citation duly served, in order to facilitate the collection of the city taxes; hut it surely did not intend to give it a greater effect than a citation. It is but reasonable to subject it to the same rules as the citation, of which the statute has made it the equivalent. Now a citation addressed to Smith, or Schmidt, would designate no person, male or female, of that numerous patronymic, nowin existence ; neither would a citation to the heirs of Smith, indicate from which of the Smiths, deceased, the parties cited had inherited. It is obvious that a judgment by default, based upon a citation so utterly vague, at least in the absence of personal service ,would be reversed on appeal. Appearance and a joinder of issue, could alone cure this defect in the proceedings. In the present case, there was no appearance; hut a judgment by default having been rendered, and a final decree entered up, in the same vague terms as the citation, notice of that judgment was served upon Mr. Gustavus Schmidt, the appellant.

The assignment of error is well taken.

It is therefore adjudged and decreed, that the judgment of the District Court he reversed and that this suit be dismissed, the plaintiff and appellee to pay costa in both courts.


author: Merrick, 0. J.

text:
    Marcenaro v. Mordella.
    The husband cannot in virtue of the right with which he is invested by the common law in his wife’s movable property, claim, after her death, her movables in course of administration in Louisiana, to the prejudice of those whose right thereto flow from our own statute of distribution.
    It does not appear clear that, by the common law, the husband has a vested interest in the dioses in action of his wife, not reduced to possession, during coverture, which would enable him to claim such interest, after her death, in a country where the policy of the common law was at all different.
    PPEAL from the Second District Court of New Orleans, Lea, J.

      XX Miles Taylor, for plaintiff:
    Personal property and debts are universally treated as having no situs, or locality, and they follow the domicil of the owner in point of right; that is to say, they are deemed to bo in the place, and are disposed of by the law of the domicil of the owner, wherever in point of fact they may be situate. Story’s Conflict of Laws, p. 299, No. 3C2; p. 308, No. 376; p. 811, No. 379 ; p. 3T2, No. 380. “ It is a clear proposition,” says Lord Loughborough, as quoted by Story, “ not only of the law of England, but of every country in the world, where the law has the semblance of science, that personal property has no locality; it follows the law of the person. The owner in any country may dispose of his personal property; if he dies it is not the law of the country in which the property is, but the law of the country of which he was a subject, that will regulate the succession.” The third paragraph of Art. 10 of our Civil Code, is a necessary consequence of the truth of this proposition, and may be regarded as a legislative recognition pf it. The general principle is, that the law is obligatory upon all the inhabitants of a country indiscriminately; the foreigner, while residing in it, and his property within its limits, are subject to it. Art. 9 O. C. And for this reason immovable property cannot be disposed of by contract or by testament, in any manner not permitted by the law of the country where it is situated ; no matter where the owner may reside, the property belongs to the country and is subject to its laws. It is otherwise with movables; they are attached, as it were, to the owner, and when he has his domicil in another country, although they exist here in point of fact, we expressly admit by the paragraph alluded to, that the owner is not, in the disposal of them by his last will, subject to the operation of our law. The same reason which exempts it from the operation of our iaw with respect to dispositions causa mortis, must subject it to the laws of the domicil of the owner, when they affect and determine rights. In the present instance, Anna Barabino, at the time the succession of Joseph Bambino was opened, was do-miciliated at Gibralter, “ a seaport town,” as stated by Bertoli, in his petition making application for the curatorship of her succession, “ belonging to Great Britain,” where she intermarried with the plaintiff, who was also domiciled there, after the opening of the succession, and where she also died. Of course the questions arising in the controversy are to be decided by the law prevailing there, which is the common law.
    It is a general rule of the common law that a married woman cannot possess personal property, and that everything of this kind to which she is entitled at the time of her marriage, and which accrues during its continuance, is vested solely in the husband. Clancy’s Rights of Married Women, p. 1; 3 Coke, 309, note 0.
    Personal property, to which a woman may be entitled at the time of marriage, or during its continuance, consists of three kinds: 1st, personal chattels; 2d, chosesin action; and 3d, chattels real; all of which the law vests in the husband. Clancy’s Rights of Married Women, 2, 11, 12. There is a remarkable difference between personal chattels and the other two kinds of personal property. Personal chattels vest at once in the husband, in such a manner that they not only belong to him but they are actually in his possession. The other kinds are of such a nature that he has only the right of property in them, but no possession until the right has been enforced; and from this difference various consequences follow.

      If the wife survives the husband, the personal chattels which she brought to him would be lost to her, but the ohoses in action and chattels real, which had not been reduced to possession by him in his life-time, would be taken by her. Clancy, p. 3 ; 3 Coke, 309, noteO.
    If the husband survive the wife, the ohoses in action and chattels real, as the right of property vests in him, may be recovered by him and reduced to possession ; but he takes them subject to administration and as administrator. Clancy, 3, 4, and cases cited. 2 Kent, 135, 136 ; 3 Coke, 309, note 0.
    The only difference, in point of fact, between chattels personal and ohoses in notion, is this: The husband is responsible for the debts of the wife, as husband, and if he is not sued for them during coverture, though he received a large estate by her, he is not bound after her death. If the personal estate were reduced to possession before her death, he would enjoy it, and not be compellable to pay her debts, though the property he then possessed, derived from her, far exceeded the debts. 2 Kent, 144, 145. What was not reduced to possession he would bo entitled to, but only after administration in virtue of the right derived from her. So that it would be subject to the payment of her debts in the course of administration. 2 Kent, 135 ; 3 Coke, 809, note 0. That is, he could not take the advantages resulting from his marriage, under such circumstances, without submitting to the burthens it imposed on him.
    The surviving husband has the right to become administrator. 2 Jacob’s Law Diet. 505, 512. But if he failed to administer, and her heirs administered, the right of property being vested in the husband, his title would not be affected, and he would be entitled to recover it from them. They would be regarded as trustees for the benefit of the husband, Clancy, 11, 12; 3 Thomas Coke, 305, 309, note O.; 2 Kent, 135; 7 Johnson Chan. Rep. 243; Johnson Rep. 117, 118. And in the event of his death his heirs would be entitled to recover.

      Roselius, for defendant and appellant:
    The question then presents itself, whether movable property in Louisiana is subject to the dominion of the common law of England, simply because the owner was domiciled and died in Gibraltar ? This question involves an inquiry into the doctrine of real and personal statutes, about which so much has been written, and yet is so imperfectly understood.
    A statute is real, when it mainly and essentially acts, or rather operates, upon the property itself; when the principal object it seeks to accomplish is with reference to things, and when it speaks of persons only incidentally and in relation to property; when it operates on persons only as a means, (if I may be permitted so to express myself,) to attain the final end which it proposes to itself with regard to property, for the purpose of regulating its division, transmission, &c.
    A statute is personal, on the contrary, wheri its special and essential object is the person, that is to say, his general and absolute state and capacity ; and when it refers to property only incidentally, as a means to accomplish the final end which it has in view with regard to the person, whose state and capacity is to be regulated and fixed; or, in other words, when it regulates directly and principally the general and absolute capacity of persons.
    In the case of Lea v. Eis Creditors, 2 An. R. p. 603, Mr. Chief Justice Eustis, with his characteristic terseness and vigor, says: “A nation within whose territory personal property is found, has as entire jurisdiction over it while there as it has over immovable property. Its exercise for all purposes is a question of policy, and may be co-extensive with its authority over the latter. C. C., Art. 9 ; Story’s Conflict of Laws, § 550; Penny v. Christmas, 7 Rob., 499 ; Harper v. Stansborough, 2 A. R., 377.”
    Real statutes are held to have no extra-territorial force or obligation. Erom this it would seem to follow that real statutes must necessarily operate on all the property located within the territorial limits of the State by which they have been enacted. But a fiction has been introduced, the purport of which is, that movable property has no situs — no locality; or in the quaint language of the schools, mobilia ossibus persona, inhaerent; and from this strange fiction the conclusion is drawn, that the rights to, and disposition of movables, is to be governed by the law of the domicil of the owner, and not by the law of their local situation.
    That the weight of authority is in favor of the distinction here taken, as to the effect of real statutes on immovable and movable property must be admitted ; but that it is founded on any sound principle it would be difficult to establish. Oan the laws of China or Persia exercise their dominion over property, whether movable or immovable, within the State of Louisiana ? As has just been remarked, it is universally conceded, as a general principle, that, with the exception of personal statutes, no law can have an extra-territorial effect. On what legal ground then can it be pretended that movable property can be subject to the control of a foreign jurisdiction ? Judge Story, after referring to the vague and unsatisfactory grounds on which this doctrine is sought to be supported by various authors, says: “ the probability is, that the doctrine itself had not its origin in any distinction between real laws, or personal laws, or in any other fictitious annexation of them (the movables) to the person of the owner, or in their incapacity to have a fixed situs, but in an enlarged policy growing out of their transitory nature and the general convenience of nations.” I must confess that this reason does not strike my mind as of a very convincing character. If the great facility of transportation of movable property from one State to another, is a sufficient ground to make its disposition subject to a foreign law, why may we not go a step farther, and establish the rule that the police or criminal law applicable to a stranger is that of his domicil, because of the rapidity of the transition of the individual from one place to another, especially in this age of steam speed!! The whole doctrine seems to have no other foundation than the contemptible quibble already referred to, that movables are attached to the bones of the owner, and are therefore subject to the operation of the personal statute which governs his person. However preposterous such a proposition may appear when stated in its true point of view, still it has received the sanction of nearly all the great jurists who have written on the science of jurisprudence. Among the foremost of its supporters are the great names of Story, Kent, Toullier and a host of others.
    But of late years the rule has been subjected to the test of an independent scrutiny. In the case of Smith, administrator, v. The Union Banle of Georgetown, 5 Peters, 218, the question was much debated, whether the movable property, belonging to the succession of Samuel Robertson, should be distributed among his creditors, according to the lex loci domicilii; or the lex rei sitae ? Robertson, at the time of his death, was domiciliated at Norfolk, in the State of Virginia, and the property was found in the District of Columbia. It was insisted that personal effects have no situs, and follow the person; and that this principle is founded on the law and practice of nations, &c. In delivering the opinion of the Supreme Court of the United States, Mr. Justice Johnson, says:
    “That personal property has no situs, seems rather a metaphysical position than a practical and legal truth. We are now considering the subject with regard to subjecting such property to the payment of debts, through the medium of letters of administration. And here there is much reason for maintaining, that even the common law has given it a situs, by reference to any circumstances which mark its locality with discrimination and precision.
    “Thus, in the case of Byron v. Byron, I-Iil. 88, Elizab. Cro. 472, Anderson, Chief Justice, says: “The debt is where the bond is, being upon a specialty, but debt upon contract follows the person of the debtor; and this difference has been ofoen-times agreed.” So G-odolphin lays down the same distinction as established by law. Orphan’s Legacy, 70. And Swinburn lays down the same rule with still greater precision, as well against the effect of domicil as of the place of contract. For he says: “ debt shall be accounted goods, as to the granting of administration, where the bond was at his (creditor’s) death, not where it was made.” And, again: “debts due to the testator will make bona notabilia as well as goods in possession, but there is a difference between bonds and specialties, and debts due on simple contracts; for bond debts make bona notabilia, where the bond and other specialties, are at the time of the death of him whose they are, and not where he dwelt or died. But debts on simple contracts are bona notabilia in that country where the debtor dwells. Part. 6, Oh. 11. And so of judgments, locality is given them by the siPus of the Court where they are entered. Carthew, 149; 8 Mod. 324; 1 Salk, 40; Dyer, 308 ; 1 Roll. Air. 908; 1 Plow. 25; Oharthow, 373 ; Comb, 392 — are cited for these distinctions.
    To my humble understanding the argument of Mr. Marcado appears conclusive and unanswerable.

      Miihlenbruch, in his Doctrina Pandeetarum, is equally explicit in repudiating the distinction between movable and immovable property, in the application of the real statutes.
    “ De legum, quae in diversis territoriis obtinent, conflictu.
    '‘Jura, quge proxime rebus sunt scripta, velut eaquse ad dominii causam spectant, vel ad vectigalium tributorumque onus, vel ad pignorum in judicati exsecutionem et capiendorum et distrahendorum, turn etiam rerum apud judi-cem petendarum persequendarumve rationem, et quae sunt reliqua ex hoc genere, estimantur ex ejus loci legibus, ubi res, de quibus agitur, sitae sunt ac collocatse, nullo rerum immobilium et mobilium habito discrimine.” — Book I, sec. 72.
    Miihlenbruch refers to Meier, Meissner, Tittmann, Eichhorn and Wachter, as supporting his view of the subject; but admits that the great majority of authors maintain the opposite doctrine.
    Be this, however, as it may, it is admitted on all hands, that the extra-territorial operation of a foreign law, has no other foundation than the comity of nations, and that it is optional with every State to decide whether it will give effect to this comity or not. There can be no question then, that a foreign law can have no operation, when a Government has declared by a legislative enactment, that the property of foreigners (without distinguishing between movables and immovables) shall be subject to its laws.
   Merrick, 0. J.

A more complete statement of the facts of this case will be found in the learned opinion of Chief Justice Slidell, in the case of the plaintiff against Nicholas Bertoli, whose representative is now made a party to this suit. The case is reported in 2d An. R. 980.

Eor the purposes of the present decision, it is sufficient to recapitulate the following facts:

Anna Bardino had two children by her marriage with Angel Mordella. One, named Marie Pose Mordella, married Nicholas Bertoli, and resided with her husband, in this city. Her husband, Bertoli, having died in the year 1843, she was appointed, under his will, testamentary executrix and was also confirmed as tutrix to the children of their marriage. This suit is against her in those capacities.

It appears, also, that the other child of Anna Bardino, was named Mina Isabella, and resided at Gibralter, in Europe, with her mother.

It appears, also, that Angel Mordella, the first husband of Anna Bardino, . died prior to May, 1834, and that she remained a widow up to July of that year, when she married J. B. Marcenaro, the plaintiff, both being domiciled at Gibralter, where they continued to live until she died, which occurred on the 24th of December, 1834. The petition informs us that Gibralter is still the domicil of the plaintiff.

Two months prior to the marriage of Anna Mordella with Marcenaro, (viz : in May, 1834,) Joseph, Bardino, the german brother of Anna Mordella, having previously made a will, died in the city of New Orleans, where he was domiciled. By his will he bequeathed to his sister, Anna Bardino, $2000. A considerable portion of his estate remained undisposed of by will, and, consequently, by our law, fell to his sister and a half-brother, Lorenzo Basso, the ger-man sister being entitled to three-fourths, and the half-brother the one-fourth ;_ the succession consisting of real estate in New Orleans, slaves, active debts, &c.

No part of Anna Bardino’s interest in her brother’s succession was ever reduced to possession by Marcenaro during her life-time. It is, therefore, not necessary to notice, at length, the irregular proceedings under the power of attorney which was revoked by her death, or the decree of the Court of Probates, made in February, 1835, recognizing herand her brother, Lorenzo Basso, as the only heirs at law of Joseph Brndino, nor the irregular payment made by Nicholas Bertoli and John L. Thieleu, as executors, to Messrs. Lizardi & Go., in March, 1885, under the power of attorney, made before her death, of $4628 87 cash, and $4205 in promissory notes. This irregular decree and payment, could hardly have had the effect of transferring the interest of Anna, in the succession of her brother, to Messrs. Lizardi & Go., as agents, not of herself, for she was dead, but of her heirs or husband.

Ve think, therefore, it must be admitted that at the time of the receipt of these assets by Lizardi & Go., the interest of the succession of Anna Bar-dina, wife of Marcenara, in the succession of her brother Joseph, remained un-extinguished. The assets in the hands of Lizardi & Go., legally belonged to the succession of Joseph Bardino, as paid in error.

In 1836 Nicholas Bertoli, (who with Thieleu were the executors of Joseph Ba/rdino, and responsible for these funds if irregularly paid,) took out letters of curatorship on the succession of his mother-in-law, Anna Bardino, the deceased wife of Marcenara. An inventory of her succession was made, which embraced but two items, viz:

The real estate bequeathed by Joseph Ba/rdino to his sister, subject to the usufruct of Pabnire Berthier, f. w. c., appraised at - - - $5000 00

And the balance remaining in the hands of Lizardi & Go. to the credit of Anna Harcenaro. 2040 47

Total.$7040 47

After Bertoli's appointment as curator he received from M. de Lizardi & Go., in his capacity as such, the sum of $2498 95, stated as a balance growing out of the receipt of the cash and notes received by them in March, 1835. Bertoli also received of them the sum of $151 25, belonging to the succession of Joseph Ba/rdino, and also notes and accounts of the same succession amounting together to the sum of $887 89.

Bertoli died in December, 1843, and as has already been stated, his wife a forced heir of Anna Marcena/ro, was appointed tutrix to his minor children, and executrix under his last will and testament.

The suit of Marcena/ro against Bertoli was instituted in 1840, in the Commercial Court, for the $2498 95 above referred to, and was dismissed as in ease of nonsuit, by the Supreme Court, organized under the Constitution of 1812, and the decree afterwards affirmed by the court organized under the Constitution of 1845, on a motion for a re-hearing.

The object of this suit is best explained in the language of the able counsel for the plaintiff, which is as follows:'

“This suit is instituted for the recovery of $2498 95, claimed in the present action against Bertoli, and for three-fourths of the sum of $151 25, collected by M. de Lizardi <& Go., for the succession of Joseph Bardino, and paid to Bertoli, and for three-fourths of the accounts belonging to the succession of Joseph Ba/rdino, and delivered at the same time to him, and the right to recover is based by the plaintiff upon the allegation ‘ that by the common law of England, he was entitled as surviving husband of the said Anna Bardino, to become administrator of her estate, and by acting upon the said fund of $2408 95, and upon three-fourths of the $151 25 collected by the said M. de Liza/rdi & Go., for the succession of the said Joseph Bardino, and upon three-fourths of said accounts, amounting to $887 89, to reduce them to possession, and make them his own ; and that in the premises the said Nicholas Bertoli, in his capacity of the curator of the succession of the said Anna Bardino, petitioner’s deceased wife, as aforesaid, charged with the administration of the same, received the said sum of $2498 95, three-fourths of $151 25, three-fourths of the amount of said $887 89 of accounts which he collected or become accountable for by failing- to use due dilligence to collect the same, and held as trustee of and for petitioner, and was bound in law to pay over the same to him.’ ”

The argument of the learned counsel for the plaintiff, who informs us that he sues for personal effects only, rests upon these two propositions:

1st. That the sums here claimed are movables, and choses in action, and the domicil thereof was that of Anna Bardino, at Gibralter.

2d. That by the act of marriage at Gibralter, all of the movable effects which the said Anna had in possession throughout the world, became ipso facto the property of her husband, and said marriage invested him with the right to reduce the choses in action, in all countries, into possession during coverture, and after her decease to take out letters of administration upon her estate, and collect such choses in action as had not been reduced to possession during the life-time of his wife, for his own benefit.

Many authorities have been cited in support of these propositions, and we think it cannot be questioned that by the common law of England the husband has the right indicated, over all the personal effects of the wife, and choses in action situated, in fact, within the territories governed by the common law of England. But we cannot assent to either of the above propositions as appropriate to interests in successions under administration in Louisiana, particularly where the effect would be to impair the legitime as in the case before us.

I. As to the domicil: At the death of Anna Bardino, as it has already been shown, she had an interest in the succession of her german brother, under administration, in the State of Louisiana, as heir for three-fourths of his estates, not disposed of by will, and as legatee under his will for $2,000.

Now although, under the Common Law of England, an interest as to the personalty under administration is considered as a chose in action, and classed as personalty, the same consequence does not follow here.

In England, personal effects alone are placed under administration, while the real estate descends at once to the heir, and cannot be charged in his hands with debts, except by specialty, etc. The personal effects are distributed to the next of kin. The real estate descends to the heir-at-law, who often inherits to the exclusion of others equally near in relationship to the ancestor.

Here, immovables, movables and slaves are alike placed under administration, and they are inherited by the same persons, and in the same proportions.

Article 463 of the Civil Code declares that an action for the recovery of an immovable, or an entire succession, is considered as an immovable from' the object to which it applies.

It is clear, had an execution been levied upon the interest of three-fourths of Mrs. Anna Bardino in the movables belonging to the succession of Joseph Bar-dino, particularly describing them, and such interest were sold at Sheriff’s sale, nothing would have passed by the sale. The interest of one of the heirs is not in a particular thing or class of things belonging to the succession, but to the whole succession; and that interest can be enforced as against the wishes of the other heirs only by partition of the whole estate, in which the respective rights, of all the heirs and their collations can be contradictorily settled with each other. Such was the right which belonged to Anna Bardino at her death. This. right, whether it he considered a real right, or a chose in action of the Common Law, has its domicil, we think, in Louisiana.

The proceedings subsequent to the death of Anna Bardino, could not confer upon her husband any rights which he had not, upon her death. If he was not the owner or had not become the owner of her interest in her brother’s estate at her death, he did not become so by the subsequent proceedings.

So far as it concerns the legacy of $3000, we do not deem it important to decide whether it is governed by the same rules or not, as it does not appear to be the object of this suit, and it is evident from the account rendered by M. de Li-zardi & Co., and the balance claimed on it by the plaintiff, that he has received more than that sum. 1 Marcadé, p. 56; C. C., 483.

II. Neither are we by any means clear that, by the Common Law, the husband has a vested interest in the choses in action of his wife not reduced to possession during coverture, which would enable him to claim such interest after her death, in a country where the policy of the law was at all different.

In a sister State, it was held that this inchoate right of the husband to the choses in action of his wife, not reduced to possession, was entirely defeated by the subsequent passage of an Act of the Legislature vesting in the wife, in her own name, her real and personal property. See Statutes of Mississippi as to the rights of married women, passed in 1839 ; the case of Price v. Sessions, 3 Howard’s U. S. Rep., 624. See, also, the case of Clark v. McCreevy, 12 Sanders and Marshall’s Rep., 317-352.

Now if, in a Common Law State, whore the Legislature is pleased to change its policy, the courts refuse to enforce the imperfect rights of the surviving husband, who is one of her citizens, it can hardly be expected that the courts of a foreign country will do so where it is against the settled policy of that country, and defeats the rights of any of her citizens, particularly as to an interest so carefully guarded as that of the legitime. C. C., 1480, 1481, 1745,1746.

We therefore conclude that there should be judgment for the defendant.

It is therefore ordered, adjudged and decreed by the court, that the judgment of the lower court be reversed, and that there be judgment in favor of the defendant in the several capacities in which she is sued, and against the plaintiff, and that the plaintiff pay the costs of both courts.


author: Ogden, J. Merrick, C. J.

text:
    Adeline Trimble, Curatrix, v. F. Brichta.
    On a motion to appeal, it is the duty of the Judge of the District Court to name the return day, and if the order be erroneous, it is not the fault of the appellant, and the appeal will not be dismissed on that account. Act 1889, s. 19.
    Although the name of the curatrix, as stated in the letters, be incomplete, the production of them by her, is prima, facie sufficient to prove that she is the person intended.
    Proceedings by attachment against a dead man, with knowledge of his death, are null, and the widow in community cannot ratify a sale made under them, so as to bind the succession falling subsequently into her hands.
    from the Sixth District Court of New Orleans, Cotton, J.

      Goold & Stansbury, for plaintiff.

      Holland & Hennen, for defendant and appellant.
   Ogden, J.

The appellee has moved to dismiss this appeal, on the ground, that it was not made returnable as required by Art. 583 of the Code of Practice, at the next term of the Supreme Court after the appeal was granted.

The order was granted on the 18th of February, and the appeal was made returnable on the first Monday of April following. This might have been a sufficient ground for dismissal under the decisions of this court made previous to the passage of the Act of the Legislature of 1889. The 19th section of that Act provides as follows: “That hereafter no appeal to the Supreme Court shall be dismissed, on account of any defect, error, or irregularity in the petition or order of appeal, or in the certificate of the Clerk or Judge, or in the citation of appeal or service thereof, or because the appeal was not made returnable at the next term of the Supreme Court, whenever it shall not appear that such defect, error, or irregularity, is imputed to the appellant; but in all such cases, the court shall grant a reasonable time to correct' such errors or irregularities, (in case they are not waived by the appellee,) and may impose on the appellants such terms and conditions as in their discretion they may deem necessary, for the attainment of justice; and may also impose such fines on the officer who shall have caused such irregularities as they may deem proportioned to the offences.”

The appellee’s counsel contends, that the irregularity in this instance, is imputable to the appellant, on whose motion the order was granted. The motion was made verbally, and as it was the duty of the Judge in granting the appeal, to fix the return day in accordance with the law and the rights of the appellee, and as there is nothing in the record to show that the appellant suggested any particular return day, we must consider the order of appeal as the act of the Judge, and that it was not one of those errors which, under the statute, might be imputable to the appellant. If the appeal had been made returnable at such a distant period as to induce the belief that the appellant had sought and obtained on his own motion, an undue advantage by delay in bringing it up, it would be a proper ground for dismissal, or for imposing such terms and conditions on the appellant, as might be deemed necessary for the attainment of justice, according to the requirements of the law above referred to ; but the delay in the present instance beyond one term, when the terms are monthly, does not appear to operate a great hardship ; and it may have been considered necessary by the Judge of the court below, on account of the pressure of business, to enable the Clerk to prepare and transmit the record to this court. See the case of The State v. Judge of the Fifth District Court, 9 An.

It is therefore ordered, that the motion to dismiss the appeal, be overruled.

Merrick, C. J.

There is nothing in the objection made by defendant’s counsel, that the letters of curatorship produced, appear to have been issued to one Adeline Williamson. The suit is instituted by Adeline Williamson Trimble and her husband. The production of the letters by her, creates, in the absence of all proof to the contrary, the presumption that she is the same person.

The objection, that the sale of the bond under proceedings by attachment, commenced by Brichta, with the knowledge of Williamson’s death, was ratified, is equally untenable ; for the proceedings were absolutely null as against Williamson’s succession. The widow in community could not ratify this illegal sale, by the receipt of the surplus of the price, so as to bind the succession falling subsequently into her hands as curatrix. Dees v. Tilden, 2 An. 414.

If the defendant had any claims against the succession of Williamson, (which he failed to prove in the lower court,) the suit must be brought on behalf of his succession against that of Williamson, in the court having jurisdiction of his succession. There are no real merits in the defence to this action, and it is with reluctance that we yield to the technical objections set up here» so far as to refrain from granting damages as in case of a frivolous appeal.

Since the appeal has been taken, the appellant has died, and the curator of his estate has been made a party; the judgment must therefore be made to correspond with this change of parties.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be affirmed against the succession of said Francis Briehta, deceased, represented by the said Frnest Berger, curator; and that the said curator, besides delivering said patent to plaintiff, pay and satisfy said judgment for debt, interest and costs, in the due course of administration; and that said curator pay the costs of this appeal.


text:
    Succession of Prudence D’Aquin, f. w. c.
    The curator of a succession, appointed in 18881, is not liable to the penalties imposed by the Act of 1887, for his failure to deposit the money of the succession in a bank.
    from the Second District Court of New Orleans, Lea, J.

      Morse, Attorney General, for plaintiff.

      Grandmont, for defendant and appellant.
   Buchanan, J.

On the 14th June, 1883, Jean Theophile Cavelier applied for the curatorship of this estate. His petition states that the deceased was intestate, and had left no relations in this State. He was appointed curator, the legal formalities being complied with, and an attorney was appointed to represent the absent heirs.

On the 30th July, 1833, an order was made for the sale of the effects of the succession.

On the 17th March, 1853, a motion was made in the court where the succession was opened, by Thomas S. Moward, Esq., as attorney for the State Treasurer, and suggesting to the court that the administrator of this estate had never filed an account, and that no heirs had presented themselves, that the curator show cause within ten days, why he should not file an account of his administration, and further, that he file his bank-book.

On the 1st April, 1853, the curator filed his account of administration, shewing a balance in his hands of $698 20, and accompanied by vouchers for payments tc the amount of $924 79, which appear to have been all made within a few months after the opening of the succession.

The State Treasurer, represented as before, made opposition to this account, alleging that the curator had never deposited in bank the funds received by him in that capacity, as required by law (Act of 1837) ; and that for not having done so, he was liable to pay interest at the rate of 20 per cent, per annum on the balance acknowledged by him. The opposition further alleged, that no heirs having presented themselves, the succession belonged to the State. Wherefore opponent prayed, that the account be amended and the curator condemned to pay into the State Treasury the balance ($698 20) acknowledged by him, together with interest on said balance, from the date of the Act of 1837 (March 13 th, 1837).

This opposition was submitted to the District Court, and judgment was rendered upon the same, according to the conclusions of the opposition. From this judgment, the curator appealed; and this court held, that the State Treasurer was incompetent to represent the State, through the ministry of an attorney at law, selected by him, to enforce the payment of balances due by curators into the State treasury, — such balances constituting no portion of the revenue of the State, but being in the hands of the State Treasurer merely deposits, subject to the claim of heirs. See the case of Succession of D’Aquin, 9th An., 400. The judgment of the District Court was, therefore, reversed, and the cause remanded with instructions not to act further upon the account of cura-torship until notice to the Attorney General.

Upon the return of this mandate, the Attorney General appeared in the District Court and adopted, on behalf of the State, the opposition filed by the State Treasurer, which was thereupon submitted, upon the record ; and from a similar judgment to that first rendered, the curator again appeals.

He urges in this court that the present case is not properly within the purview of the Act of 1837, both because the moneys in his hands belonging to this succession, were received long previous to the passage of the Act in question ; and because the proceeding is not in accordance with the provisions of said Act, nor taken by “ a creditor or other person interested,” according to the words of the statute.

We do not think this case comes within the scope of the Act of 1837, under the interpretation given to that statute by several decisions of this court.

In the case of Brown v. Williams, 16th Louisiana Report, 344, it was held: That the administrator appointed more than one year before the Act of 1837, was functus officio at the date of that Act; and that the seventh section of the Act is not to be construed as reviving the administration.

In Thomas v. Bourgent, 1st Robinson, 406, that interest could not be charged against a defaulting administrator, under the Act of 1837, when the administration had already expired at the date of the passage of that Act.

In Rodriguez v. Dubertrand, 1st Robinson, 539, that the penalties created by the Act of 1837, only attach to cases arising subsequent to its promulgation.

See also the case of Desorme's Succession, 10th Robinson, 480.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed ; that the opposition of the State be dismissed, and that the account of curatorship be homologated, at the costs of the succession.


author: Voobhies, J.

text:
    J. H. Palmer & Co. v. Benjamin Horner & Co.
    A factor in accepting a consignment, is bound to comply with the conditions imposed upon him by his principal in relation to the appropriation of the proceeds.
    PPEAL from the Second District Court of New Orleans, Lea, J.
    il Bayne, for plaintiffs.

      Elmore, for J. T. Hardee & Oo., garnishees and appellants.
   Voobhies, J.

This is an attachment suit on a promissory note executed by Benjamin Homer <& Oo., non-residents, in favor of the plaintiffs, for the sum of $1293 29.

John T. Hardee <& Oo., cited as garnishees, are appellants from a judgment rendered against them in favor of the plaintiffs for the sum of $471 68, with interest from the date thereof.

On the 16th of January, 1855, the defendants consigned to the garnishees 21 bales of cotton, accompanied with a letter of instructions, directing the appropriation of the proceeds thereof. The only portion of that letter bearing on the subject matter in controversy, is as follows, to wit:

“ Enclosed, you have a bill of lading for 21 bales of cotton, which you will please receive and sell. I shall have some more soon, but at present was not ready. Please pay over to J. H. Palmer & Oo., $600 00 of the proceeds.”

In their answers to the plaintiffs’ interrogatories, the garnishees admit the receipt of the cotton and letter of instructions. They say: “ We hold nb property of any kind belonging to Ben. Horner & Oo. We have a cash credit of $481 65, it being proceeds of said 21 bales of cotton above referred to, after deducting all immediate cash advances to said Ben. Horner & Oo., and on which credit we have a lien for advances in shape of acceptances now current.” These advances are stated by them to amount to upwards of $1800, and to mature in the months of April and May, 1855, in consideration of which the defendants had obligated themselves to ship to them, at the earliest date practicable, all the cotton they raised, purchased, or could otherwise control, the garnishees first to retain a sufficient sum to cover all liabilities incurred by them on their account.

Upon this simple statement of facts, the judgment of the court below appears to us to be perfectly correct. The right of a consignor to direct the appropriation of the proceeds of his property, is a proposition which must be considered incontrovertible. We consider it well settled under our jurisprudence, that a factor, in accepting a consignment, is bound to comply with the conditions imposed upon him by his principal in relation to the appropriation of the proceeds. See 4 R., 440 ; 1 A., 393 ; 2 A., 573. The present case is clearly distinguishable in principle from those of Turpin v. Reynolds, 14 L., 473 ; Powell v. Aikin, 18 L., 328, and Lambeth v. Turnbull, 5 R., 264, quoted by the appellants.

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


author: Lea, J.

text:
    Farley, Jurey & Co v. A. Hewson et al.
    Plaintiff was the holder of a note dated in New Orleans, drawn by a person, who at the time transacted commercial business in this city, as a partner of the firm of B. F. Nichols & Co., which was dissolved in the summer or fall of 1854, and who continued to visit frequently their place of business after the dissolution, and until within a month or six weeks prior to the maturity of the note. Plaintiff did not know that the maker resided in another parish, and there was nothing to put him upon an inquiry with reference to the maker’s residence. The note was placed in the hands of a notary for protest, on the 4th of January, 1855, within banking hours, who called a t four, or half past four o’clock, at the store or office of B. F. Nichols db Co., and was then informed for the first time, that the maker resided in the parish of Jefferson, some distance above Carroll-ton. Nelcl:

    1. That had the holder known before the maturity of the note, that the maker resided in another parish, it would have been his duty to make a demand of payment at his domicil, he having no fixed place of business.
    2. That the holder had aright to presume that the maker resided here, and that if he was under a false impression with reference to the maker’s domicil, it was one which naturally resulted from the circumstances under which the endorser himself had placed the note in circulation.
    3. That the distance of the maker’s residence, considering the lateness of the hour and the season of the year, furnishes a reasonable excuse for a want of due presentment for payment.
    PPEAL from the Fourth District Court of New Orleans, Reynolds, J.
    -ÜL Wolfe & Singleton, for plaintiffs.

      Goold & Stansbury, for defendants and appellants.
   Lea, J.

R. F. Nichols is sued as endorser of a promissory note, and urges as matter of defence, that there was no demand of payment of the maker. It appears that Sewson, the maker of the note, was a partner of the firm of R. F. Nichols & Oo., who endorsed the note, and who had their place of business in this city; that this firm was dissolved some time in the summer or fall of 1854, but that Sewson continued to visit frequently their place of business after the dissolution, and until within a month or six weeks prior to the maturity of the note. Sewson resides in the parish of Jefferson, some distance above Can-ollton. On the day the note fell due, the notary’s deputy, about four, or half past four o’clock in the afternoon, called at the store or office of Nichols, the late partner of the maker, and was there informed that the maker resided in the parish of Jefferson, about three miles above Carrollton. Thereupon, the note was protested for non-payment.

The question is, whether the endorser is discharged by any want of diligence in making a demand of payment of the maker. It is undoubtedly the duty of the holder of a note, to use all reasonable diligence to make a demand of payment of the maker; but this word diligence is to be construed reasonably. Had the holder known before the maturity of the note, that the maker resided in another parish, it would have been his duty to make a demand of payment at his domicil, he having no fixed place of business; but it not only does not appear that he had such knowledge, but there was nothing to put him upon an inquiry with reference to the maker’s residence. The plaintiff was holder of a note dated in New Orleans, drawn by a person at the time transacting commercial business in this city. He had a right to presume that the maker resided here. If he was under a false impression with reference to the maker’s domicil, it was one which naturally resulted from the circumstances under which the endorser himself had placed the note in circulation. The note not having been paid within banking hours, was placed in the hands of a notary for protest, who was then informed for the first time, that the maker resided in another parish, at a distance, which considering the lateness of the hour and the season of the year, furnishes, we think, a reasonable excuse for a want of due presentment for non-payment.

Judgment affirmed, with costs.


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    Susan A. Block, wife of Demarest, v. D. Melville.
    The acknowledgment of the husband and wife in a marriage contract, that the wife is possessed of paraphernal funds, is not proof, as respects third persons.

      i PPEAL from the Sixth District Court of New Orleans, Gotton, J.
    -¿1- Field & Olcott and Henderson, Jr., for plaintiffs.

      J. Q. Bradford & Grymes, for defendant and appellant.
   Lea, J.

The plaintiff sues to recover certain lots of ground which she alleges she sold to the defendant, for the purpose of securing a debt alleged bjr the defendant to be due and owing to him by her husband, whereas she alleges that no such debt existed, that the sale was a simulation and in fraud of her rights; wherefore she prays that the sale be annulled, and the defendant held to account for the rents and profits.

The defendant, in addition to the general denial, pleads specially, that the plaintiff never had a separate interest in the property sold. It is evident that it is unnecessary to examine any other question than that which relates to the separate right of the wife in the property sued for. If the property belonged to the wife, it is immaterial whether Demarest was indebted to Melville or not; she would not be bound by an act which was intended to secure an alleged debt of the husband; and if the property belonged to the community, the wife is incompetent to attack the sale in the manner and form, resorted to in this case. The only question then is, whether the wife has established a title to the lots as paraphernal property. The recital in the act of sale to Melville, of the title by which the plaintiff held the property, binds no one ; it is a mere matter of recital for the purpose of designation ; it forms no part of the contract, and if it did, it would only show that, during the marriage, the wife acquired the property in her own name. The presumption of law incident to this fact is, that it is community property.

Her alleged separate interest in the property has been specially put at issue, and no testimonial proof has been offered to show that she ever had any para-phernal funds, with which to make the purchase. Her own and her husband’s acknowledgments, that she was possessed of such funds, are not binding upon third parties. See Dimetry & Wife v. Pollock and others, 12 L. 804; 7 N. S. 461; 2 Rob., 476.

We think the testimony offered by the defendant, to show the pecuniary condition of the plaintiff, before and at the time of her marriage, and generally with reference to her pecuniary means, was improperly rejected.

But whatever effect we might be disposed to give to acknowledgements con-tamed in marriage contracts, when attacked by third parlies, we think that a married woman who is acting aggressively for the purpose' of setting aside and annulling the muniments of title with which others have been invested by her own act, should be held to full proof and to an affirmative showing of all the Tacts upon which she relies for success, and that a mere acknowledgment in a marriage contract is not as respects third parties, where rights are attacked, full proof of the fact so acknowledged.

It is ordered, that the judgment appealed from be reversed; and that upon, the plaintiff’s demand, there be judgment as in case of non-suit, and that the costs be paid by the appellee.

Re-hearing refused.


author: Spoitobd, J.

text:
    State v. Salvador Prats.
    The object of the statute of 21st March, 1850, entitled “ An Act to provide for the assessment and collection of taxes in this State,” was merely to prescribe the mode of assessing and collecting the State taxes, and the sections referred to (42,48, 44, 45 and 78) do not even by remote implication repeal the Act which made it a penal offence to keep a grogshop in New Orleans without a previous license from the city corporation.
    The Consolidation Act of 23d February, 1832, and the amendment thereto of the 15th April, 1853, are entirely consistent with the law of 1832 requiring a previous license to keep a grogshop.
    A fair construction of the Aet of March 16th, 1854, leads to the conclusion, that to legalize the keeping of a grogshop a previous license cannot be dispensed with, even by the Police Juries andmu-nicipal authorities, and that licences are still essential to the toleration of such houses.
    The City of New Orleans had, previous to this information, instituted civil proceedings against the defendant in the Fifth District Court, for the purpose of collecting the amount of the tax required for his license and a certain penalty imposed by the city ordinance. The record of these civil proceedings was adduced in evidence by the defendant, on the trial of the information. The burden of the Judge’s charge, to which the defendant excepted, was, that these civil proceedings should be disregarded by the jury in determining the guilt or innocence of the accused, upon the criminal trial, and that the fact of the civil suit being instituted by the city did not amount to a license or the recognition of the granting of- a license. Held: That it was properly a question of law whether the suit amounted to alicense or the recognition of alicense?
    The law, once broken, has power to vindicate its majesty in the punishment of the offender, although by repentance and civil reparation he has done his utmost to atone for his fault.
    The offender may be morally innocent, so far as to misunderstand or not even to know the law he violates, and yet it is necessary for the interest of society that he should not be permitted to set up that as an excuse.
    from the First District Court of New Orleans, Robertson, J.

      Tappan, District Attorney, for the State.

      Roselius, Collens and T. H Clack, for defendant and appellant.
   Spoitobd, J.

Under an information filed by the District Attorney in the First District Court of New Orleans, ¡Salvador Prats was found guilty of having kept a grogshop and retailed spirituous and intoxicating liquors without previously obtaining a license from the city corporation of New Orleans.

He was sentenced to pay a fine of $305 and costs, and thereupon appealed to this court.

The information was based upon the 7th section of the Act of April 2d, 1832, (Sess. Acts, p. 166,) entitled “ An Act more effectually to prevent slaves from obtaining spirituous and intoxicating liquors without the consent of their masters.”

I. In support of a demurrer to the information filed and overruled in the court below, the appellant contends that the 7th section of the law of 1832, upon which this proceeding is grounded, has been repealed :

First, by the Act of 21st March, I860, entitled “An Act to provide for the assessment and collection of taxes in this State.” (Sess. Acts, p. 132.) The object of that statute was merely to prescribe the mode of assessing and collecting the State taxes, and the sections referred to, do not, even by remote implication, repeal the Act which makes it a penal offence to keep a grogshop in New Orleans without a previous license from the City Corporation. See sections 42, 43, 44, 45 and 78.

Secondly, such a repeal cannot he inferred from the 35th section of the Consolidation Act of February 23d, 1852, (Sess. Acts, p. 52,) or the amendment thereto of the 13th April, 1853. (Sess. Acts, p. 86.) The last named Acts are entirely consistent with the law requiring a previous license to keep a grogshop.

Thirdly, it is said that this law was repealed by the Act of March 16th, 1854, “ concerning the licensing of drinking-houses and the sale of intoxicating liquors n this State.” (Sess. Acts, p. 154.) But a fair construction of the latter Act leads to the conclusion that, to legalize the keeping of a grogshop, a previous license cannot be dispensed with, even by the Police Juries and municipal authorities, upon whom such extensive powers have been conferred by the Act. Both the title and the body of this Act seem to contemplate licenses as still essential to the toleration of such houses. These licenses may he withheld altogether, or granted upon such terms and under such regulations as the parochial and municipal authorities may impose, after consulting the popular will. But it is nowhere intimated that a power to repeal the 7th section of the Act of April 2d, 1832, is delegated to the parishes and city corporations, nor does the repeal of that section appear to us to follow, by clear and cogent implication, from the provisions of the Act of March 16th, 1854.

It may be worthy of remark that this section is also retained as the subsisting law, without material change, in the 94th section of the Act of March 14th, 1855, “ relative to crimes andoffences.” (Sess. Acts, p. 143.)

Whether the city ordinances of New Orleans ordaining penalties and restraint of the same offence are legal, is quite another question. We will investigate that when a proper case arises.

As we do not find the law under which the State has proceeded against the defendant to have been repealed, we turn to the other branch of his defence.

II. A hill of exceptions was tendered to the charge of the Judge to the ,ÍU1T-

It seems that the City of New Orleans had, previous to this information, instituted civil proceedings against the defendant in the Fifth District Court, for the purpose of collecting the amount of the tax required for his license and a certain penalty imposed by the city ordinances. The petition contained’an averment that the defendant was pursuing the business of a coffee-house keeper, in defiance of law, without a previous license. The defendant resisted the demand on various grounds, declaring, among other things, that the tax was illegal and unconstitutional.

The record of these civil proceedings was adduced in evidence by the defendant on the trial of the information.

The burden of the Judge’s charge, to which the defendant excepted, was, that these civil proceedings should be disregarded by the jury in determining the guilt or innocence of the accused upon the criminal trial, and that the fact of the civil suit being instituted by the city did not amount to a license, or the recognition of the granting of a license.

It is objected, that the charge encroached upon that field of facts which is forbidden ground to a Judge. We think not. It was purely a question of law whether the suit amounted to a license or the recognition of a license.

But it is said that, taking it to be a question of law, the District Judge decided it erroneously. We think not. If it was a penal offence against the State, as we have already said it was, for the defendant to keep a grogshop without a previous license, the course of the City of New Orleans in suing him for the civil consequences of his acts, did not purge them of their criminality. If he bad even settled with the city, instead of resisting her demands, that would not have wiped out his past guilt. The law once broken, has power to-vindicate its majesty in the punishment of the offender, although by repentance and civil reparation, he has done his utmost to atone for his fault. The argument that the suit for the price of a license imports a license, entirely overlooks the criminal character affixed by the law to the retailing of spirituous liquors without previous licenses.

But it is said that the jury should have been suffered to consider the civil proceeding's, in order to solve the question of guilty intent, without which, it is contended, there was no offence. We think differently. The offence here charged is malum prohibitum. A particular intent is not of its essence. The offender may be morally innocent, so far as to misunderstand or not even to know the law he violates, and yet it is necessary for the interest of society that he should not set up that as an excuse.

With the District Judge, we think the only question was, Did the defendant do the acts charged in the information without a previous license from the city corporation? The jury answered the question in the affirmative, and we see no, good reason to disturb the judgment rendered upon the verdict.

It is therefore affirmed, with costs.


author: Spoítord, J.

text:
    W. Barry v. W. Kimball et als.
    A consistent answer which does not admit that a cause of action ever existed, can not dispense the» plaintiff from proving his demand. On the other hand, an answer which admits that there was once a legal liability, but avers that by reason of new matter, set up by the defendant, his liability-lias been cancelled, imposes upon the party answering the burden of praying his new averments,, and dispenses the plaintiff from making preliminary proof of his demand,
    from the Sixth District Court of New Orleans, Cotton, J.

      Field & J. Henderson, Jr., for plaintiff.

      Van Matrre, for defendant and. appellant.
   Spoítord, J.

This is an action for the value of a slave, alleged to have been taken on board a steamboat, belonging to the defendant, without any right or' authority, and against the consent or leave of the petitioner, whereby the slave-was wholly lost to him.

The fine of $500, imposed by law, is also demanded for the illegal taking- and carrying away of said slave from New Orleans on a steamboat without authority.

It would appear, therefore, that the plaintiff’s intention was to base his action upon the highly penal statute of March 25th, 1840, (Session Acts, p. 89,) although the petition is not framed according to the phraseology of that Act.

The defendants answered that the slave in question, with the knowledge and consent of his master, the plaintiff, hired himself as fireman on board their steamer, for a voyage up Red River and back, at a fixed rate of wages, &c.

The only evidence that the slave was ever on board the defendant’s boat, is the admissions of the answer. The District Judge severing those admissions from the simultaneous averment that the slave was there with his master’s consent, gave judgment against the defendants for the value of the slave, because they failed to prove by two witnesses and corroborating circumstances, the aulhorization of the master.

The defendants have appealed, and insist that the allegations of their answer must be taken together, and that so taken they makes out no case for the plaintiff, who must, therefore, fail in his action for want of proper proof.

It has been said at bar that the adjudged cases upon this subject of judicial admissions, are irreconcileable. We find no necessary inconsistency, except upon one point, and that is, whether the pleadings in a suit are judicial confessions in the sense of the Article 2270 of the Civil Code. The case of Diggs v. Parish, 18 L. R., 10, intimates that they are not, and the case of Hough v. Vichers, 6 Ann. 724, implies that they are. Upon this point we do not choose to express an opinion now. For upon principles of logic, which form the basis of the rules of evidence, as well as upon the authority of the adjudged cases which are harmonious to this extent at least, a consistent answer which does not admit that a cause of action ever existed, cannot dispense the plaintiff from proving his demand.

On the other hand, an answer which admits that there was once a legal liability, but avers that by reason of new matters set up by the defendant, his liability has been cancelled, imposes upon the party answering the burden of proving his new averments, and dispense the plaintiff frmn making a preliminary proof of his demand. Bryans v. Dunsette, 1 N. S. 415 ; Crummen v. Cavenah, Ibid., 583; Diggs v. Parish, 18 L., 10; Small v. Zachary, 4 Rob. 144; Hough v. Vichen, 6 Ann. 724; Poultney v. Cecil, 8 L. 423.

Applying these principles to the case at bar, we find the plaintiff charging the defendant with a tort and a penal offence, to-wit: that of carrying off his slave on a steamboat, without his permission. The defendants respond, in substance, that they have never committed any tortious act, because they hired the slave as a fireman on board their boat with the plaintiff’s permission. This amounts to a denial that there ever existed a cause of action, and therefore does not absolve the plaintiff from proving aliunde that the slave was found on board the defendants’ steamer, in order to make out a prima facie case.

The answer being consistent throughout, -and involving a denial of any liability towards the plaintiff' ever having been Incurred, it would be manifestly unjust, to pick out a phrase here and there, rejecting the surrounding matter, in order to infer a confession of guilt, when the party was all the -while protesting his innocence.

There is then no proof of any portion of the plaintiff’s demand, except such as absolutely refutes the inference of a legal liability on the part of the defendant.

But as the District Judge viewed this matter in a different light, and we are not ready to say that there is sufficient evidence to enable us to give a judgment for the defendants, we therefore accede to their prayer that the cause be remanded.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed, and that the cause be remanded for a new trial, according to law, the plaintiff to pay the costs of this appeal.