author: Land, J. Merrick, C. J. Land, J.

text:
    J. A. Williamson and James Cullum v. G. L. Dolsen & Son.
    In contracts of affreightment which do not stipulate a time for delivery, the merchant or shipper is entitled to a reasonable time, after the ship or other vessel is ready to receive on board the goods, to make a delivery of the same ; and he is entitled to this delay, whether the contract of affreightment be by charter party or for the conveyance of goods in a general ship, or other vessel.
    APPEAL from the Ponrth District Court of New Orleans, Price, J.

      Simonds & Fenner, for plaintiffs.

      Durant & Honor, for defendants and appellants.
   Land, J.

The opinion of the District Judge in this case is as follows :

“ Plaintiffs claim of defendants $350 for a violation of a contract of affreightment of one thousand sacks of salt to Cincinnati. The defendants reconvened, and claim that plaintiffs did not perform their contract, and by reason of their failure so to do, they have sustained damage in the sum of seventy dollars. The evidence shows that plaintiffs, in accordance with their contract, called for the salt, but the same was not ready for delivery, because of the salt-warehouseman not having been notified to turn out the salt for delivery. The defendants contend, that it was plaintiffs’ duty to notify the warehouseman, and if the salt was not ready for delivery, it was plaintiffs’ fault, whereas plaintiffs aver that it was defendants’ duty.
“ I think, under the evidence, that it was the duty of defendants to notify the warehouseman to turn out the salt. The place of delivery of salt to steamboats is on the wharf, and not from the warehouse, which is often, as in this case, far removed from the wharf. And when the defendants made the contract with the plaintiffs, it was their duty to have had the salt ready for delivery to the boat, at tlie usual aud ordinary place for such delivery, and if the salt had been on the wharf ready to be delivered, and plaintiffs had failed to take the same in accordance with their agreement, they would have been liable to defendants in damages. The converse of the proposition is equally true, and it, therefore, follows, that the defendants, who have failed to comply with their contract, are liable to plaintiffs in the sum claimed, wdth interest.”

We have no jurisdiction of the defendants’ reconventional demand, and can only consider plaintiffs’ claim.

It appears from the evidence in this case, that when the boat landed for the salt, no notice had been given to the warehouseman to turn it out for delivery— but that the warehouseman offered the captain every facility to get the salt, and proposed to pay him the difference between taking the salt from the warehouse and from wharf; aud that the salt could have been carried from the warehouse to the boat in one and a half or two hours : but these offers were refused.

It does not appear, on the other hand, that the captain had refused any other freight, in consequence of his contract with the defendants ; nor that a delay of one and a half or two hours would have interfered with or defeated any business arrangements of the master for that trip; nor that the delay in itself would have been unreasonable, under the circumstances. The evidence shows that the boat was very lightly laded, so much so, that the buckets of the wheels had to be lowered soon after leaving this port.

We understand, that when the master intends to insist on his contract, and the shipper is willing to comply on his part, that the master is bound to wait a reasonable length of time to enable the shipper to make a delivery of the freight; and that if the circumstances of the case evince an indisposition on the part of the master to carry the goods at the stipulated price, that such indisposition is a tacit abandonment of the contract. The offer of the warehouseman to pay the master the difference between taking the salt from the warehouse and from the wharf, was an offer of full indemnity, and the master’s refusal clearly evinced an indisposition on his part to carry the salt at the stipulated price, and he is, therefore, held to have abandoned tacitly his contract with the defendants, which precludes him from recovering damages in this ease.

It is, therefore, ordered, adjudged and decreed, that the judgment on the demand of the plaintiffs be reversed. And it is now ordered, adjudged and decreed, that there be judgment on said demand, in favor of the defendants, with costs in both courts.

Merrick, C. J.

I concur, on the ground that reasonable notice was not given at the warehouse, for the delivery of the salt on the wharf.

Same Case — On an Application por a Re-hearing.

Land, J.

The plaintiff has sued for freight on goods which he never carried, and consequently for a debt for which he admits the defendants never received any consideration. His case, therefore, is without any equities to sustain it, and if maintained at all, it must be on full proof of his demand, and on strict legal principles.

When the plaintiff made the contract of affreightment with the defendants be was aware that the salt was in a warehouse, and received from the defendants an order on the warehouseman for its delivery to him. The conduct of the plaintiff, after the arrival of his boat at the wharf, for the purpose of taking the salt on board, was of such a character, as to induce us to say that, under the circumstances, it evinced a clear indisposition on his part to carry the salt at the stipulated price. And a further consideration of the case, has satisfied us that his conduct was not merely a tacit abandonment of the contract on his part, but was an active violation of it, because, under the contract as shown by the pleadings and the evidence, no time had been stipulated within which the defendants obligated themselves to make a delivery of the salt.

In contracts of affreightment, which do not stipulate a time for the delivery, the merchant or shipper is entitled to a reasonable time, after the ship or other vessel is ready to receive on board the goods, to make a delivery of the same ; and he is entitled to this delay, whether the contract of affreightment be by charter-party, or for the conveyance of goods in a general ship or other vessel. Smith’s Mercantile Law, 380, 389. And as the plaintiff, under his contract, was bound to wait a reasonable time for the delivery of the salt after the arrival of his boat at the wharf, and as he failed so to do, as shown by the evidence, we adhere to the opinion, that he has no right of action against the defendant for the recovery of damages.

In the case of Holly et al. v. Kennett & Co., in Opinion Book, No. 26, p. 303, which is supposed to be contrary to the decision in this case, the contract of affreightment stipulated a specific time within which the delivery was to be made, and non-performance on the part of the defendant appears to have been conceded, and his consequent liability not contested.

The plaintiff, however, has sought to supply the want of a stipulation as to time in his contract, by the proof of a custom which he contends bound the defendants to give notice to the warehouseman to turn out the salt on the wharf for delivery, before the arrival of his boat on the day of her departure. The evidence which he offered is insufficient to establish any such custom in the sense of Article 3 of the Civil Code, which declares that customs result from a long series of actions constantly repeated, which have, by such repetitions, and by uninterrupted acquiescence, acquired the force of a tacit and common consent. The testimony of the warehouseman disproves the existence of the custom contended for. His language is : “ The warehousekeepers receive orders for the delivery of goods from boats and merchants, but more frequently from the merchants.”

As the plaintiff had contracted for the carriage of the salt with a knowledge that it was in the warehouse, and had obtained from the defendants an order on the warehouseman for its delivery to him, the Chief Justice was opinion that the duty of giving notice to the warehouseman devolved upon the plaintiff, and based his concurrence on this special ground.

Re-hearing refused.


source: Caselaw Access Project

author: Merrioic, O. J.

license: Public Domain

text:
    Bernard Graham v. Eliza J. Eagan.
    Whore the plaintiff in execution is the purchaser of property sold under execution, of a judgment subsequently reversed on a devolutive appeal, he is obliged to restore the property itself, and place the defendant in the same condition he would have occupied if no such judgment had been obtained against him. It is a proper case for the restitutio in integrum.

    PPEAL from the Fourth District Court of New Orleans, Price, J.

      Durant <& Honor, for plaintiff and appellant.

      C. Roselius and F. Dugué, for defendant.
   Merrioic, O. J.

This case presents a question of law. The case may be briefly stated as follows :

The plaintiff having obtained judgment against the defendant, she prosecuted a devolutive appeal to this court, her suspensive appeal having failed for want of sufficient security.

During the pendency of the appeal, the plaintiff issued his execution, and bought certain property as the property of defendant under the same, for the sum of $4000. He deducted the amount of his judgment, $2,003 63, and deposited the remainder with the Sheriff, where it still remains.

On the appeal, the judgment of the lower court was reversed, and one rendered in favor of the defendant as of nonsuit. The present proceeding is a rule upon the plaintiff to show cause why he should not restore to the defendant the property which he had bought under the execution issued upon his judgment, which had been annulled by the decree of this court.

The rule having been made absolute, plaintiff appeals.

The plaintiff relies mainly upon the case of Baillo v. Wilson, 5 N. S. 214, as enunciating- the principles of law which ought to govern this case. We will consider that case hereafter.

It is evident, that sales made pending a devolutive appeal may present two aspects :

1st. Where a third person buys under the execution, and,

2dly. Whore the judgment creditor and appellee buys the property.

In the first case, it is reasonable that the innocent purchaser who has parted with his money upon proceedings apparently valid at the time, should not be prejudiced by the subsequent change of affairs by the reversal of the judgment.

But the case is not the same where a creditor, whose demand has been declared by a tribunal in the last resort, to be unfounded. He has not parted with his money, and at the termination of his unjust suit, he ought not to be placed in a better conditicn than he would have been, if he had not attempted to obtain what did not belong to him.

It cannot be disputed that, whether the supposed judgment creditor is in receipt of the money by the sale of the property of the defendant to a third person, or he has obtained, by his own bid, the property itself, pending the devolutive appeal, he owes restitution to the party who has succeeded in reversing his judgment. The only question which can be raised is as to the mode in which restitution shall be made.

In the first case,- the only restitution he can make, is to return to the appellant the price which he has unjustly obtained by the sale of his supposed debtor’s property. In the second case, he can do more : he can restore the property itself, and place the appellant in the same condition he would have occupied if he had not been harassed with an unfounded demand.

This is precisely what is meant by the restitutio in integrum. If there be ground for restitution at all, there is the same ground for a complete restitution, a restitution in integrum.

Mackeldey, speaking of the restitution of the Roman law, says : “ Lorsque la restitution était aecordée au demandeur, il rentrait également dans ses droits ct actions primitifs, comme s’il ne les avait jamais perdus.” Partie G-énérale, sec. 228, III, cd. 1846.

We are not aware of any provision of positive law which gives the party who has obtained the reversal of the judgment against him a right to restitution against the acts of his adversary under an execution ; yet our courts have not hesitated to apply equitable principles, which the Code supposes to exist, so far as to compel the appellee to restore whatever money he has made upon his execution. The principles which admit the action at all require a perfect restitution.

Thus Ulpian says : “ He in integrum restitutionibus, utilitas hujus tituli non eget commendatione; ipse enim se ostendit. Nam sub hoc titulo plurifariam praetor hominibus vel lapsio, vel circumscriptis subvenit; sive metu, sive calleditate, sive aetate sive absenti® inciderunt in captionem.”

Paul adds : “ Sive per status mutationem aut justum errorem.”

So Modestinus : “ Omnes in integrum restitutiones, causa cognita a prsetore permittuntur: scilicet, aut justitiam earum causarum examinet, an verae sint, quarum nomine singulis subvenit.” Dig. IV, T. 1, L. 1, 2, 3.

Assuming, therefore, that equity requires, that after an erroneous judgment has been annulled, the parties should be placed as nearly as possible in the same condition they occupied before the erroneous decree, we will examine the grounds upon which the argument is based which compels a restitution of the priqe of the thing sold, and not the thing itself, where the appellee has been the purchaser.

The argument of the case of Baillo v. Wilson, already referred to, rests upon this: the Code of Practice says, as did the Act of 1803, The adjudication thus made has of itself alone the effect of transferring to the purchaser all the rights and claims which the party in whose hands it was seized might have had to the thing adjudged.” 0. P. 690. If so, it is urged, the title thus transferred is absolute, and the courts have no authority to say on any subsequent event the title shall be divested. 5 N. S. 220. This argument proves too much, and is liable to be retorted. The same Code of Practice says, Art. 704, “ Where the Sheriff has sold for ready money, he shall, on simple demand, pay to the judgment creditor or his attorney the sum coming to him from the price of adjudication, unless the court enjoins him not to make payment; and if there remain a surplus after the suing creditor is paid, as well as the costs, the Sheriff shall deliver such surplus to the debtor.”

Now, (according to the argument,) the Code has expressly ordered the price to be paid to the creditor in execution, and the courts have no authority to say on any subsequent event, that he shall repay that which the law has given him in absolute terms; which is absurd.

Again, a case may be presented where the judgment of the lower court has been only partially reversed, and the appellee’s demand is sustained in part. The question is now asked, what disposition would be made of a sale pending- an appeal in such a case, where the appellee became the purchaser ?

The answer is plain : the restitutio in integrum is an equitable action, in which the court renders judgment according to the facts. If the property were sold to a stranger, and the appellee has received more than the judgment in the last resort awards him, he must restore the excess. So if there were a just ground for the sale, and he became the purchaser, it would seem he must restore the excess of the price.

It is further urged, that if the appellee could not obtain an absolute title, he would be precluded from bidding at the sale. It may be answered, he would be much more willing to bid, if he knew that he might relieve himself on the reversal of the judgment by the restoration of the property, and that he should not be compelled to raise money to pay the price.

It is said that a revocation of a power of attorney does not revoke a previous sale under it. If we assume a case where the party making the power were not sui juris, it would have more analogy, and in such a case the sale might be rescinded.

Again, Art. 988 of the Code of Practice is quoted to show that the judgment creditor may purchase at a Sheriff’s sale. The same Art. gives the judgment debtor the right to purchase also. But no one supposes that he is invested with a new title notwithstanding the positive provisions of Art. 690 relied on. Art. 690, then, is subject to exceptions, as previously shown.

"VVe will now examine the common law cited in support of the decision in the case of Baillo v. Wilson.

At common law, the lands of the judgment debtor depending upon a feudal tenure, were not subject to execution. The goods and chattels (which included leases) were. Subsequently, the possession of lands was permitted to be seized under the writs of elegit and extent. Now, a quotation of the passages cited in the opinion in Baillo v. Wilson, will show that the doctrine at common law was not carried to the length supposed.

The case cited from Oroke James was that of Goodyere v. Ince, where a lease was delivered the plaintiff under an elegit. On a reversal, the question was, whether the plaintiff in error should be restored to his lease, or the price for which it was delivered. “ All the court held that this sale should not bind him; for there is a difference between this sale and a delivery upon an elegit to the party himself, and a sale to a stranger upon a fieri facias; for the fieri facias gives authority to the Sheriff to sell and to bring the money into court; wherefore, when he sells a term to a stranger, although the execution be reversed, yet he shall not by virtue thereof be restored to the term, but to the moneys, because he comes thereto by act in law. But the sale and delivery of the lease to the party himself upon an elegit is no sale by force of the writ delivered in extent, which being reversed, the party shall be restored to the term itself.” Cro. James, 246. This case is cited in Bacon’s Abridgment, verbo Error. M. No. 3. And all the cases there cited appear to be of sales to strangers.

Thus it is said, If a man recovers damages and hath execution by fieri facias, and upon the fieri facias the Sheriff sells to a stranger a term for years, and after judgment is reversed the party shall be restored only to the money for which the term sold, and not the term itself; because the Sheriff hath sold it by command of the writ of fieri facias. Ibid.

So Tidd says, “ And so as the writ bo not yoid, it is a good justification, how-over irregular, and the purchaser will gain a title under the Sheriff; for it would be very hard if it should be at the peril of tice purchaser under the fieri facias, whether the proceedings were regular or not.” 2 Tidd, 936. (See also page 1129 cited, which has no application). The “ purchaser ” spoken of by Tidd is evidently a stranger to the writ of error.

It thus appears from the authorities cited, that they do not apply to the case before us.

The writ of fieri facias has been introduced into our system, it is true, from the common law. But it does not follow, that the rules governing writs of error on a reversal of a judgment are precisely ajsplicable to a reversal on appeal under our system.

On the contrary, in the case before us, it is evident that there is a case for the action of restitution. It then becomes a question, whether the judgment under it shall bo partial or complete. We say, if there is ground for the action at all, it must, according to the principles of the civil law, be a restitutio in integrum, as far as the party has capacity to make such restitution.

So far, we have considered this case, or endeavored so to do, upon legal principles.

Now, the argument ab inconvenienti is as urgent in favor of the debtor as the creditor. %

The judgment debtor, by accident, as in this case, is sometimes prevented from taking a suspensive appeal. In other cases, he is too jaoor to give security. If he gives up property on execution, he waives his appeal. Our law, therefore, compels the appellant under a devolutive appeal to remain passive. He is, therefore, subject to oppression, and sometimes injustice, unless the restitution is as ample and complete as the party occasioning the injury has power to make it.

Judgment affirmed.


author: Buciianan, J. Vooehibs, J., Merrick, C. J.,

text:
    Maille v. Blas.
    Where one shire kills another, the merits of the quarrel bcfcwoeu them, and the fact of tho slave killed being the aggressor, are immaterial, and will not be noticocl in the decision of an action brought by the owner of tho slave who was killed against the ownor of tho slave who killed him, for tho value of tho slave killed.
    Tho proof of the loss is sufficient to fix tho liability in a case of this kind.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      M. Grivot, for plaintiff.

      Race & Foster, for defendant.
   Buciianan, J.

The slave of plaintiff was killed by the slave of defendant, wilfully, by wounds inflicted in a fight with knives. The merits of the quarrel between these slaves, and the fact of the slave killed being the aggressor, are indifferent to the decision of an action against the owner of the slave who killed, for the value of the slave who was killed. The use of deadly weapons in combat by slaves should be discountenanced. The fact of the loss is sufficient to fix the liability in a case of this kind.

Judgment affirmed, with costs.

Vooehibs, J.,

concurring. I concur upon the ground that the evidence shows that the defendant’s slave was guilty of an offence in killing the plaintiff’s slave. The owner of slaves is responsible for the damages caused by their offences and quasi offences. C. 0. 180, 2300.

Merrick, C. J.,

dissenting. This is an action brought to recover the value of a slave killed by a slave of the defendant.

It appears from the evidence, that the death of plaintiff’s slave was the result of a combat, which he had in the first instance provoked, and which was voluntarily renewed and continued with billets of wood, and finally with knives until the plaintiff’s slave was mortally wounded. The plaintiff’s slave was named Joe, and defendant's Jack.

The attention of the witnesses was first attracted by Jack’s running from a coffee-house, pursued by Joe, who was attempting to strike the other with his fist. Jack ran into the street and picked up a piece of rock, which he was prevented from throwing. He then ran to a wood pile on the side of the walk, and picked up a piece of wood, and Joe also seized a stick of wood, with which they aimed and warded off blows at and from each other. The billets of wood fell from their hands or were relinquished, whereupon Joe seized Jack and struck him three or four blows on the head with his fist; Jack ran from Joe towards a crowd of men, and obtained a knife and turned, and in a slow run or fast walk followed Joe, who was going in another direction. Jack had also a piece of rock which he threw at Joe when he got within about thirty paces of him, but the missile did not hit him. Joe turned to come towards Jack, and drew his knife from his pocket, As soon as they approached each other near enough, Jack aimed a blow with the knife at Joe, but missed him; then they cut at each other, and the blood gushed from both. Jack was wounded in the head, and Joe was mortally stabbed. “ The scuffle (that is fight from first to last) lasted ten or fifteen minutes.”

It is evident that both slaves were in the wrong, and both were violating the law and disturbing the peace. If defendant’s slave had been killed by the plaintiff’s, the former would have had the same claim (if the action be maintainable) to indemnity from the plaintiff that the latter now has from the defendant. If, therefore, the defendant be responsible to the plaintiff, it is but the result of an accident. The cast of the die might have made plaintiff in turn responsible to the defendant. The Civil Code makes the master responsible for the offences and quasi offences of his slave (C. C. 2300,180), and we are called upon to say whether this is one of those cases contemplated by the Code, the slave of the plaintiff having participated in the same offence.

If two white men had been in the place of these two negroes, their wounds not being mortal, and there being no impediment to their actions, neither could have succeeded against the other, because both would have been in the wrong. Slaves not being devoid of reason, but having a will to control their actions, are not looked upon as inert matter which may sometimes be driven about by the elements, but as intelligent beings, who are responsible to the law for their unlawful acts. Hence, the master’s right of recovery for an injury done to his slave is made to depend frequently upon the volition and intention of the slave, who is not to be treated as an inanimate thing. For example, a slave is found, as an aggressor, violating the law, as in the case of burglary, robbery, or an attempt to murder, and is slain under such circumstances as would justify the taking of the life of a freeman. He is not looked upon merely as a thing, the property of his master, but as a responsible being who has brought the injury upon himself and owner, and his unlawful intentions become the justification of the party who has taken his life.

So too, a slave carelessly drives his cart across a railroad track, and is killed by the locomotive. The Railroad Co. is not responsible, because the negro is in the wrong. Lesseps v. The Pontchartrain R. R. Co., 17 La. 363. Another lays himself upon a railroad track and goes to sleep, and is killed by the cars. The company is not responsible, because the slave was guilty of neglect. Fletas v. The Pontchartrain R. R. Co., 8 La. 340.

It is then apparent, that a party’s right to recovery for the loss of his slave depends in many cases upon the question whether the slave, for which he claims recompense, has or has not acted lawfully and prudently, or whether he has not brought the injury upon himself by his negligence, his malice or felonious intent.

If it be said that the defendant’s slave has been guilty of an offence or quasi offence, and therefore his master, under the letter of the Article of the Civil Code, is responsible, the answer is, that the slave of the plaintiff was likewise a parly to the same act, the same affray; and where two parties are equally guilty and equally in the wrong, this court will not sit to adjust the consequences of crime or iniquity between them.

In the case of Fletas v. The Pontchartrain R. R. Co., 18 La. 340 (where a slave went to sleep upon the railroad track and was killed by the cars) it was said by this court that, “ in cases like the present, where the accident may be attributed to the fault or neglect of both parties, the plaintiff cannot recover.”

In the case of a collision between two vessels, Lord Tenterden, Chief Justice, says, in summing up the case to the jury, the question is, whether you think the accident was occasioned by want of care on the part of the crew of the Robert and Ann (the defendant’s vessel) ? If there was want of care on both sides, the plaintiffs cannot maintain their action; to enable them to do so, the action must be attributable entirely to the fault of the defendant.” 18 La. 340.

I see no reason to doubt the correctness of this decision; and as the conduct of plaintiff’s negro cannot be justified in this brutal affray, it seems that the loss must fall upon the owner. We have already said, to hold otherwise would be to rest the right of the parties upon an accident, viz, the unfavorable result of the combat; and under this view of the case, we find a decision of the court of cassation which has some analogy.

Article 1385 of the Napoleon Code, which makes the owner of an animal responsible for the damage which it causes, is’absolute, and the owner cannot relieve himself by surrendering the animal as under our law. But it has been adjudged that where, by common accord of the proprietors, two animals have been put in a pasture together without any keeper, and one of the animals occasions an injury to the other, the proprietor is not responsible for the injury, because in fact the chances of accident were the same for all parties, and both wore voluntarily exposed, and the plaintiff could not find in a fact which was common to both the basis of an action, in order to complain of the consequences of a state of things which he himself had accepted. (Arrét du 2 Juillet, 1851, ch. civ., Sirey. 51,1, 441.

I think, therefore, the judgment ought to be reversed, and judgment rendered for the defendant.


author: Buchanan, J.

text:
    W. P. Roberts v. John Riley.
    The common carrier may restrict his liability by express special contract.
    It is not necessary that the contract of affreightment should be in writing, and parol evidence of any special agreement is, therefore, admissible.
    A common carrier is, notwithstanding a special agreement, liable for the carelessness or unskijlfulncss of his crew. The injury being proved, tho burden of proof is on the carrier to show that it was caused by accident or vis major, or where the shipper has, by contract, undertaken tho exclusive management of the things shippod during tho voyage, then it must bo shown that the injury has occurred by the fault of the shipper or his servants.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      J. A. Rosier, for plaintiff and appellant.

      J. McConnell, for defendant and appellant.
   Buchanan, J.

The plaintiff sues for damages occasioned to horses shipped on board the defendant’s steamboat at Trenton,-La., and carried to New Orleans for him. He alleges, that the horses were injured in getting them aboard and ashore, through the fault of defendant, a common carrier, and his servants.

The defendant, besides the general issue; specially pleads that the agreement between plaintiff and defendant was, that the horses were to be under the exclusive management and control of plaintiff 'during the voyage; that plaintiff accompanied the horses to New Orleans; and that the damage complained of, was owing to the fault of plaintiff, who attempted to move one of the horses ashore, without paying the freight bill, and in so doing, injured the horse.

Two witnesses, the second Clerk and the Pilot of the boat, were offered by defendant, to prove the special agreement limiting his obligations as common carrier, alleged in the answer. The admissibility of evidence for such a purpose, was objected to by plaintiff; and the objection being overruled, a bill of exceptions was reserved.

The American authorities maintain the right of the carrier to restrict his liability by express special contract. Flanders on Shipping, sec. 461; Angelí on Carriers, sec. 220, sec. 59 and notes; 6 Howard 382.

The contract between the parties was not reduced to writing. It is certainly much more desirable that a bill of lading should be drawn, especially when a modification of the ordinary obligations of tho carrier is stipulated. But there is no law which requires the contract of affreightment to be in writing. Therefore, the objection made by plaintiff to the introduction of parol proof of the special agreement, is overruled. It would be otherwise, wore there a bill of lading-in the record.

The evidence shows, that the horses were under the care of the plaintiff during the voyage. But they were certainly brought on board by the crew of the boat; and the testimony (which is contradictory) leaves it in doubt whether they wore not also taken ashore, by tho crew. The pleadings of defendant admit (what could not indeed be denied) that the defendant, notwithstanding- the special agreement proved, is liable for the carelessness and unskillfulness of the crew.

The injury to the animals being proved, the burden of proof was on the carrier, to show that the injury was caused by accident or vis major, (O. C. 2725,) or in the peculiar case now presented, by the fault of the plaintiff or his servants.

As the evidence on this point of the witnesses of plaintiff and defendant conflicts very essentially, and as those of defendant stood in a relation to the party affirming them, which is not occupied by the witnesses of the plaintiff, we are unable to say that the District Judge erred in the conclusion at which he arrived, that defendant had failed to exonerate himself from liability for the injuries sustained by the plaintiff’s horses. Bond v. Frost, 8 An. 300.

As to the amount of the damage, we think the judgment of the District Court has done justice.

Judgment affirmed, with costs.


author: Voorhies, J.

text:
    Cyrot Gentis v. M. Blasco et als.
    The thirty days notice required by law to be given to the debtor, is a prerequisite to the institution of the hypothecary action.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      A. T. Steele, for plaintiff and appellant.

      G. LeGardeur, for defendants.
   Voorhies, J.

The defendant, in his answer to the hypothecary action instituted by the plaintiff, denied that the latter had given the thirty days notice to the debtor, and made amicable demand ten days previous to commencing the present proceedings

There being no evidence that both these demands were given, as required by law, the District Judge nonsuited the plaintiff.

This judgment is correct. The law requires the thirty days demand to be made as a prerequisite to the institution of the hypothecary action, whether the creditor resorts to executory process, or to proceedings via ordinaria. This is not an open question. Gravier v. Baron, 4 La. 240; Smith v. Blunt, 2 La. 135; Broussard v. Phillips, 6 N. S. 310; Williams v. Halloway, 4 La. 323 ; Robin v. Flower, 2 An. 721. In this last case the court said : “ Nothing is shown which can dispense the plaintiff from making the amicable demand required by law; and until it is made, he cannot maintain his action.” In that case, the want of amicable demand was alleged in the answer.

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


author: Land, J.

text:
    Michel Knight v. New Orleans, Opelousas & Great Western Railroad Company.
    The rights, duties and obligations of the New Orleans, Opelousas & Great Western Railroad Company are created by express law, and until the Legislature shall by statute require them to enclose their road, or shall delegate the power to the parochial authorities, and they shall exercise the same, they will be under no obligation to enclose their road, or any part thereof, with fences or barriers. And if cattle stray upon the track and be killed or maimed by accident, it will be damnum absque injuria, and the owner will have the loss to bear.
    In an action brought to recover the value of cattle killed on a railroad track by the cars, the plaintiff is as much bound to prove the fact of gross negligence and want of care on the part of the company or its agents, as he is to prove the fact of the killing.
    RPEAL from tlie District Court of the parish of Terrebonne, Roman, J.

      Goode & Aycoclc, for plaintiff'.

      Connelly & Rigktor, for defendant and appellant.
   Land, J.

The plaintiff alleges, that by reason of the gross negligence and want of care of the agents of the Railroad Company, and especially of the engiueers, a great number of his cows and hogs, to the value at least of five hundred dollars, have been run over and killed upon the railroad by the locomotives and cars of the company. And that at different times during the years 1856 and 1857, the company’s locomotives and cars ran over and killed a horse belonging to him worth two hundred dollars, and also ran over and killed a mule worth two hundred and fifty dollars, and maimed and crippled two other mules worth five hundred dollars, and prays for judgment against the Company, for the sum of fourteen hundred and fifty dollars, in satisfaction of the damages sustained by him.

The defendants, in their answer, after a general denial, aver that plaintiff transferred to them the right of way over his land, with full knowledge of the purposes for which the road was intended to be used; and that plaintiff, with full knowledge that his animals caused serious injury to the road, and endangered the rolling stock and other property, and the lives of passengers and employees thereon, and that his animals were liable to be killed and maimed, has been in the constant habit of allowing his horses, mules, horned cattle, &c. to trespass on their road and injure the same. And that, notwithstanding all their care and vigilance, their locomotives, on two or three occasions, came in collision with horses and other animals, at and near the plantation of plaintiff) whereby their cars were thrown from the track, and greatly damaged, and the lives of passengers and employees endangered.

The defendants further aver, that they have suffered damage by the trespass of plaintiff’s animals upon their road, and by collisions with them, in the sum of fifteen hundred dollars, for which they pray judgment in reconvention.

These issues were tried by a jury, who found a verdict in favor of the plaintiff, and which was confirmed by the judgment of the' lower court, for the sum of six hundred and thirty-three dollars, with five per cent, per annum interest from judicial demand.

The case is before us on the appeal of the Railroad Company, and the plaintiff urges the affirmance of the judgment on the following grounds :•

First. That the defendants were bound to enclose their track with a fence, and that, having failed to do so, they are liable for injuries to cattle, without proof of any other default.

Second. That if the defendants -were not bound to fence their track, negligence and want of proper care will be presumed from the fact that cattle were injured, and that the burden of proof of due diligence and care is on the defendants.

Third. That if the burden of proof to show negligence is on the plaintiff, the evidence in the record is conclusive.

I. The plaintiff does not contend that the charter of the Railroad Company, or that any other act of the Legislature requires the defendants to enclose their road with a fence; but insists that, as it was lawful for him to permit his cattle to run at large over any land not enclosed by a fence built according to law ; and that as the owners of land in the parish of Terrebonne, where the alleged trespasses were committed, were bound by the parochial regulations to enclose their fields of cane, corn, &c., with substantial fences in the manner prescribed by the ordinances; and that, as the owners of land in that parish were prohibited from maltreating or injuring any animal that might stray, or enter upon their fields, not enclosed in accordance with the police regulations of the parish, that the defendants were bound by such regulations either to fence in their road, as a field, or to pay damages for injuries to cattle, upon it.

The ordinances in question do not apply to lands owned and used for the purposes of a railroad, nor to the lands of individuals, unless they be in a state of cultivation, and then only to the fields, or parts thereof actually cultivated. The rights, duties and obligations of the Railroad Company are created by express law, and until the Legislature shall, by statute, require them to enclose their road, or shall delegate the power to the parochial authorities, and they shall exercise the same, the defendants will be under no obligation to enclose their road, or any part thereof, with fences or barriers. And if cattle stray upon the track, and be killed, or maimed by accident, it will be damnum absque injuria, and the owner will have the loss to bear.

II. The plaintiff alleges, that by the gross negligence and want of care of the agents of the defendants, he was damaged in the manner and form specified in his petition, to the amount of fourteen hundred and fifty dollars. The general rule of law requires the plaintiff to prove all the facts necessary to constitute his cause of action against the defendant, and the latter is not bound to adduce any evidence to disprove the allegations against him, until the former shall have made out by proof a prima facie case. The cause of action set out in the petition is within the operation of the general rule of law, and the plaintiff was as much bound to prove the fact of gross negligence and want of care alleged by him, as he was bound to prove the fact of killing itself. The law never presumes the willful omission of duty, from the proof of a fact which in the ordinary course of business may, and does often happen from accident, when the party’s liability for the consequences of the fact depends not on the nature of his business, or employment, but on the fact of his negligence, or want of proper care.

III. The plaintiff, however, lastly contends, that the evidence in the record is conclusive as to the facts alleged in his petition. He has proved that a mule and horse belonging to him were killed in the day time by the cars of the Railroad Company; and ho has also proved that two cows were killed, and two mules were maimed and crippled, in the night time. In relation to the mule and horse killed in the day time, the evidence is sufficient to sustain the verdict and judgment, on the ground of negligence and want of care in the employees of the Company. But in relation to the cows killed, and the mules maimed at night, the evidence is insufficient to fix the liability of the defendants, on the ground of the gross negligence of their agents. The evidence shows, that the mule and horse killed in the day time were worth the sum of two hundred and twenty-five dollars, and for this amount the plaintiff is entitled to a judgment.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be reversed, and that the verdict of the jury be set aside. And it is now ordered, adjudged and decreed, that the plaintiff recover of the defendants the sum of two hundred and twenty-five dollars, and costs of the lower court. And it is further ordered and decreed, that the reconventional demand of the defendants be rejected, and that the costs of this appeal be paid by the appellee.


author: Merrick, G. J.

text:
    The City of New Orleans v. The Mechanics’ and Traders’ Bank.
    The Act of the Legislature requiring the City Council to pass an ordinance levying a special Railroad Tax in the month of January of each year, is merely directory as to the time, and such ordinance is valid, although passed at a later period.
    The Act of the 20tU March, 1856, was not intented to repeal the Act of the day previous, they can bo construed together.
    PPEAL from the Second District Court of New Orleans, Morgan, J.

      Laville & Morel and Hunt tfi Denigre, for appellant.

      L. Fierce, for defendant aDd appellee.
   Merrick, G. J.

This case cannot be distinguished from the case of the same plaintiffs against the Southern Bank of New Orleans, just decided, aute p. 89.

There are, however, one or two points in the briefs of the learned counsel for the defendant, which require notice. He urges that the ordinance of 23d of February is void, because not passed in January, as directed by the I17th section of the Act. In answer to this objection, the statute has not pronounced this penalty. On the contrary, all other ordinances passed by the Council, except one, are declared invalid until this particular ordinance in question shall have been passed. And the obvious meaning of the law is to compel the Council to make provision to pay the interest upon the railroad bonds before any other business should be transacted. It would be strange, if a law passed for the purpose of protecting the credit of the city should, by reason of its commanding a thing to be done at once, be defeated because any obstacle had interposed to prevent its accomplishment so soon as contemplated. It is obvious that the Legislature did not intend to make void the ordinance if passed in February, because it declares all other ordinances which shall bo passed after tbe first day of January of each year, and before this ordinance, void. And the construction contended for would render void all municipal legislation, if by any accident this particular ordinance should not be passed in January of each year.

Again, it is urged that the tax did not become due until after the 19th day of March, 1857, and consequently, the taking effect of the repealing law.

If there be anything in the objection, the answer is in the fact that the special Railroad Tax was payable the first day of March.. See sec. 106, amended in 1858, p. 1.

If is also urged that the ordinance of 23d February, 1857, was not intended to include the capital of the banks, because it is assumed they were never assessed. The contrary, however, appears to be the fact, for the supplemental assessment would have been unnecessary had capital of bank been embraced in the first.

Again, if the 7th section of the Act of 1850, p. 139, be considered as still in force, it cannot affect the present question, because it is made the duty of the Council to pass an ordinance for the purpose of levying a special railroad tax at the session in January. See sec. 117.

There is no reason to suppose that the Act of 20th March was intendpd to repeal the Act of the day preceding, viz, 19th of March, 1856. They can be construed together, and are parts of the system then in the mind of the lawgiver.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed; and it is now ordered, adjudged and decreed, that the plaintiff do recover and have judgment against the said Mechanics’ and Traders’ Bank, for the sum of two thousand two hundred and eight dollars, with interest thereon at the rate of one per cent, per month from the 1st day of June, 1857, until paid; and that said defendant pay the costs of both courts.

Buchanan, J., dissents in part, for reasons given in City v. Southern Bank, ante p. 92.


author: Cole, J. Buchanan, J.

text:
    A. L. Gaines v. Page, Bacon & Co.—S. L. M. Barrow, Intervenor.
    A copy of an assignment under private act which is in existence, and under the control of the party in whose favor it is made, is not admissible in evidence.
    An intervenor must always be ready to exhibit his evidence ; he cannot be permitted to retard the principal suit.
    APPEAL from the Third District Court of New Orleans, Duvigneaud, J.

      Dwight Martin, for plaintiff.

      Waples & Eustis and Charles B. Singleton, for garnishees.

      Benjamin, Bradford & Finney, for intervenor, appellant.
   Cole, J.

The facts of this case are stated in the reasons for judgment assigned by the Judge of the District Court:

The plaintiff, A. L. Gaines, attached funds in the hands of James Connolly ,<fi Co., as property of the defendants, Page, Bacon <& Co.

William Frisby attached funds in the Sixth District Court of New Orleans, in the hands of James Connolly <& Co., as the property of Page, Bacon & Co., and obtained judgment for $2,500 and costs, with privilege on the property attached; the rights of the various parties claiming said funds to be ascertained contradictorily in the suit of A. L. Gaines v. Page, Bacon & Co., in this court.

There is no dispute between the two attaching creditors, A. L. Gaines and William Frisby, the former having first attached the funds.

The controversy is between the two attaching creditors and the assignee of the defendants, S. L. M. Barlow, the latter having intervened and claiming the funds by virtue of an assignment executed in New York on the 3d of April, 1855.

It appears from the assignment and from the testimony of the subscribing witnesses, that only one member of the firm of Page, Bacon & Co. signed this deed of assignment, and the question arises, whether one member of a firm can make such an assignment, without showing the authority or consent of the other partners, which has not been proved in this case.

I am satisfied, that under the laws of New York, as expounded by the highest tribunal of that State, such an assignment is invalid, and if it be without effect at the place of its execution, it is inoperative every where, and, therefore, I consider that the property has not been divested out of the firm of Page, Bacon & Co., and that the assignee acquired no title under this assignment. 3 Sanford S. C. 284, 293; 3 Law Reporter (United States) 589 ; 17 Vermont (2 Wash-burn) 396.”

From the judgment in pursuance of these reasons, the assignee has appealed.

A copy of the assignment is in evidence, with the depositions of three witnesses, practicing lawyers in the city of New York, who prove its execution and delivery, and state, that in their opinion, the assignment is in accordance with the laws of the State of New York as to form, and legal and valid both in form and substance, under the laws of that State.

No opposing evidence was offered upon the trial, as to the laws of the State of New York.

It is unnecessary to express an opinion upon the question, whether one member of a firm can, in New York, make such an assignment, without showing the authority or consent of the other partners, as this case must be remanded.

Upon the trial of the rule why plaintiff should not be first paid out of certain property attached in the hands of Connolly & Co., the assignee, Barlow, offered to prove the assignment by a copy of the original assignment.

Frisby and Gaines objected to the copy, because it appeared that the original ivas in the possession of Barlow, and because the copy was not an authentic copy of the deed of assignment.

The District Judge admitted the copy, and a bill of exceptions was taken to his ruling.

The court erred. The assignment is a private act, is in existence and under the control of Barlow.

The reason given for its non-production is, that Barlow may require the original, to execute his trust in New York or elsewhere.

If the court of other States would not, under such circumstances, depart from the rule, which requires the production of the best evidence, there is no reason why our courts should be less stringent in their requirements.

It is, therefore ordered, adjudged and decreed, that the judgment upon the rule taken on the 16th of January, 1858, be avoided and reversed, and this case be remanded to the lower court, to be proceeded with according to law. Appellees to pay costs of appeal.

Same Case — Ox a Re-hearing.

Buchanan, J.

In the judgment rendered heretofore by this court in this case, we sustained the objection made to the admissibility of the copy of the assignment, offered in evidence by the intervenor, Barlow, and admitted by the court below.

The District Court considered the legal effect of the assignment thus proved, and held it invalid as against the attaching creditors of Page, Bacon & Co.

In the view that we took, in our previous judgment, of the question of evidence, and which view is unchanged, the pretended assignment of defendants to the intervenor is not proved. Our previous judgment remanded the cause for error in the ruling of the District Court, as above stated. The judgment gives the intervenor an opportunity of producing, upon another trial, legal evidence of the assignment.

The argument of the counsel of appellees, for a re-hearing, convinces us, that the intervenor is not entitled to this relief. The Code of Practice, Article 391, declares, that the intervenor must be always ready to exhibit his evidence; that he is not to be permitted to retard the principal suit. In the present case, it is clear, that if the intervenor was not provided, on the trial in the court below, with legal evidence of the assignment, which is the basis of his intervention, it was his own fault. He had the original of that assignment in his possession, and did not think fit to produce it; but deliberately risked his cause in the Louisiana court, upon a copy, reserving the original for the Now York tribunals, in which, it is probable, his interest was involved to a larger amount than the judgment of the attaching creditors, who are before this court. The remanding of this cause, cannot but have the effect of retarding the suits of the appellees.

It is, therefore, ordered, adjudged and decreed, that our judgment heretofore pronounced herein, be avoided and annulled. And it is now ordered, adjudged and decreed, lhat the judgment of the District Court be affirmed, with costs.


author: Yoorhies, J. Voorhies, J.

text:
    T. Y. Brent, Son & Co. v. J. H. Shouse.
    Tile laws with regard to tlio surrender of property, are merely remedial; in such cases the law of tho forum governs.
    Under our jurisprudence, a surrender made out of the State, of property situated here, cannot hare any binding effect.
    A surrender of property, made by a debtor in another State, does not make his debts due and exigible here, so as to relieve the creditor who seeks to attack the property in this State, from the necessity of swearing that he is about to remove such property out of the State before the falling due of his claim, as required by C. P., Art. 242.
    PPEAL from the Third District Court of New Orleans, Duvigneaud, J.

      Gaither and McPheeters, for plaintiffs and appellants.

      T. II. Kennedy, curator ad hoc, for defendant.

      Charles A. Taylor, for interveners.
   Yoorhies, J.

The plaintiffs, averring themselves to be the creditors of the defendant, petitioned for a writ of attachment, on the ground that their claim had become duo, from the date of the surrender made by their debtor in the State of Kentucky, the place of his residence. The oath taken by their agent is, first, to the fact of the agency, and then proceeds to state :

“ That James II. Shouse, to the best of his knowledge and belief, is indebted to the said T. Y. Brent, SonS Co., in the full sum of $10,000, with interest from July 22d, 1857, and that the same is due and owing ; and that the said James II. Shouse resides out of the State of Louisiana ; and that neither of the firm of T. Y. Brent., Son & Co., arc in this State, but that all of the members are absent from this State.”

The petition states, that although the installments of the several bills of exchange, signed by the defendant, have not matured, yet that the bills have become due and exigible by the voluntary surrender and cession of property, made by the debtor.

A curator ad hoc was appointed to represent the absentee, J. H. Shouse; and, in the meantime, the firm of Twyman, Goodloe <& Hoskins, the defendant’s assignees in Kentucky, filed a third opposition, claiming the property in the hands of the garnishees, by virtue of the assignment. The curator ad hoc took a rule on the plaintiffs to show cause, why the whole proceedings should not be dismissed. The ground assigned was, that “ at the time of the filing of the suit, and issuance and execution of the attachment, no part of the plaintiff’s claim was actually due, and that the affidavit for attachment is not such as the law requires, when the debt is not due.” The District Judge having maintained the attachment, the case was subsequently put at issue by the parties, and trial had, resulting in a judgment of dismissal. The plaintiffs appealed.

Testing these proceedings by the rules laid down in the Oode and in the Acts of the Legislature, with reference to debts or claims, which are not due at the time, it is evident that the altachrnent was sued out wrongfully; for the plaintiffs have not alleged, nor have they sworn that their debtor was about to remove his property out of the State, before the falling due of their claim. See C. P., Art. 243, as amended by the Act of 1826, p. 170, $ 7.

On the other hand, if it be true, as contended for by the plaintiffs’ counsel, that the surrender of property made in Kentucky, had the effect to make the debt exigible, it would be upon the assumption that the surrender was a valid and binding one. In that event, giving full effect to this proceeding in insolvency, the case would be with the intervenor, whose title is derived from the assignment itself.

The plaintiffs cannot show the maturity of their claim by reference to the surrender made in Kentucky, and then repudiate the assignment as affecting the transfer of the property under garnishment. But the laws with regard to the surrender ol property, are merely remedial; in such cases, the law of the forum should govern. Under our jurisprudence, the surrender made out of the State, of property situated in this State, cannot have any binding effect, and the whole matter is to be tested under our laws. It follows, then, that the proceedings resorted to in the present instance, were unauthorized as being premature. Southern Bank of, &c. v. Wood & Champlin, not reported.

The plaintiff’s counsel contends, that inasmuch as no appeal was taken from the ruling of the District Judge, sustaining the proceeding by attachment, the appellees cannot now question the validity of the attachment; but that the case must be determined on the merits. As the decree of the District Court could not have worked an irreparable injury, it had been idle for the curator ad hoc to have taken an appeal. The case comes up with all the interlocutory orders given in the inferior court, from which no appeal lies; the whole should be reviewed. Nor is it material for the plaintiffs’ case, to determine whether the intervenor has, or has not, the right to question the validity of the proceedings by attachment in this instance; they must make out their case against th'e absentee, in order to obtain a judgment against the property under garnishment; and this they have failed to do.

It is but just, however, to reserve the rights of the plaintiffs, as creditors with the vendor’s privilege, as stated in their pleadings; and, with this reservation, it is ordered and decreed, that the judgment of the District Court be affirmed,

Same Case — On a Ee-iiearing.

Voorhies, J.

"We adhere to our former opinion.

It is, therefore, ordered and decreed, that our former judgment remain undisturbed.


author: Merrick, C. J.

text:
    Rizan & Lombas v. Warren Prescott.
    "Where there is only a passive violation of a contract, "by the contractors leaving the work before it was conipleled.accordiDg to the terms of the contract, and the proof shows that the work could have been completed at no groat expíense, the putting in default is a prerequisite to the recovery of damages.
    PPEAL from the District Court of the Parish of Lafouche, Roman, J.

      E. W. Blake, for plaintiffs.

      C. Belcher, for defendant and appellant.
   Merrick, C. J.

The principal question in this case is, whether the defendant has been put in mora, so as to enable the plaintiffs to recover damages for loss of time and for profits not made.

The plaintiffs were the owners of a steam saw mill, with an upright” saw They entered into a contract with the defendant to attach to this machinery a circular saw, which the defendant warranted should cut 3,000 feet of lumber per day. It seems the upright saw was also to remain in its place to be used alternately with the circular saw, as occasion might require. The price was to be $350.

The defendant attached a circular saw, but, on trial, it did not saw more than 1,300 feet per day. This saw, it is made probable, might have been made to cut the quantity required by straightening and stiffening the saw, (by adding some washers,) and increasing the “ feed,” (so called,) and filing the saw. These changes would have cost, say, fifty or sixty dollars.

It is in proof, that the plaintiffs never accepted the work, neither did the defendant tender or deliver the same to them.

The proof of the putting the defendant in mora is, that when Prescott was catching his horse to go to Thibodeaux, after an ineffectual trial of the mill, one of the plaintiffs sent some one to him to ask him, if he had completed his contract ? And he made no reply. One witness says, he said he could do no more ■with the mill. Another says, he met the defendant returning to see what work was to be done on the mill, when he was arrested by the information that the plaintiffs had already taken down the work.

In the interval, between the departure of the defendant to Thibodeaux and his returning, the plaintiffs having taken the opinion of some workmen, as to the capacity of defendant’s mill, entered into a contract with other parties for the putting up of a larger circular saw, and a new carriage, &c., and the removal of the upright saw. This was, of course, more expensive than defendant’s contract.

Plaintiffs claim $1,400 damages for tlio loss of profits, &c.., occasioned by the delay, as well as for money advanced the defendant. The latter reconvenes for the price of liis work, according to the contract. The verdict and judgment were for plaintiffs for five hundred dollars, and defendant appeals.

This case appears to us to be controlled by the case of Gobet v. Municipality No. 1, 11 An. 301. The proof makes it at least probable that defendant’s mill, at no great expense, could have been made to cut the 3,000 feet specified in his contract. The plaintiffs to whom, according to their own testimony, the mill had not been delivered or by them accepted, ought, if they wished to claim damages, to have put the defendant in default. The uncertain proof offered in this case, is not the equivalent of the putting in mora.

The case of Lobdell v. Parker, 3 La. 330, differs from the present, in the fact, that the defective mill was there delivered the plaintiff) and the suit was to rescind the contract and recover damages.

The ease of Morton v. Pollard, 9 La. 174, presented a question as to the admissibility of evidence. It docs not support the reporter’s note of the case, as cited in plaintiffs’ brief.

We do not discover any proof in the record, of money advanced the defendant by the plaintiff.

The defendant appears to stand in the same relation to the contract as the plaintiffs, and is in no better condition to recover.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of the defendant on the plaintiffs’ demand, and in favor of the plaintiffs on the reconventional demand; and that the plaintiffs pay the costs of both courts.


text:
    State of Louisiana, on the relation of H. C. Millaudon, v. The Judge of the Second District Court of New Orleans.
    The decision of the caso of Simmons y. Judge of the Second District Court of JS'eio Orlecmi, 13 An, 483, affirmed.
    On an application for a mandamus to the Judge of the Second District Court of New Orleans.

      P. A. Ducros, for relator.
   Merrick, C. J.

This is a petition for a mandamus against the Judge of the Second District Court of New Orleans, to compel him to grant an order to convoke a family meeting. While the petition shows that the Judge has refused to grant the order in question, it does not show that he refuses to render a judgment adverse to the demand of relator.

The case, therefore, cannot be distinguished from the case of the State, on the relation of Simmons, against the same Judge, (13 An. 483,) and for the reasons given in that case, the petition must be dismissed.

It is, therefore, ordered, that the petition in this case be dismissed, at the costs of the relator.


author: Vookhies, J.

text:
    State of Louisiana v. Slave Bill.
    Ill the trial of slaves, Justices of tlie Peace do not act as jurors only, but as judges ; and under the plain provisions of the statute, they are competent, after a mis-trial, to sit again in the case, until the prosecution be at an end.
    The decision in the case of the State v. Ward, re-affirmed, to the effect that the fact of a juror having made up his mind as to the punishment to be inflicted on the prisoner in case of a verdict of guilty, does not effect his competency.
    APPEAL from the Magistrates’ Court of the Ninth Ward of the Parish of Pointe Coupée.

      John Yoist, for State and appellee.

      T. J. & W. H. Cooley, for defendant and appellant.
   Vookhies, J.

The appellant asks the reversal of the judgment of the inferior court, because he was not allowed to challenge for cause the two justices, who sat in the case, and two jurors.

I. He was twice tried by a special tribunal. The first time there was a mistrial ; and, as on the second occasion the same Justices of the Peace were proceeding to try the case before another jury, he challenged these Magistrates on the ground, that they had already acted in the premises.

The Justices do not act as jurors only, but as judges, and it is now settled that, under the plain provisions of the statute, they are competent, after a mis-trial, to sit again in the case until the prosecution be at an end. State v. Lethe et als., 9 An. 182; State v. Hannah, 10 An. 131; State v. Peter, 14 An. 521.

II. The question is next presented, whether the jurors who have made up their mind as to the punishment to be inflicted on the prisoner in case of a verdict of guilt, are disqualified or incompetent. .

In the case of the State v. The slave George, 8 R. 538, the Court of Errors and Appeals held that this was a good ground for a challenge. At the Munroe term of 1859, the same question was raised in the cases of the State v. Bennett, and of the State v. Ward. In the former case, the court said: Even if the decision in the case of the State v. George be applicable to freemen, and a person be incompetent as a juror, if he has formed an opinion as to the nature of the verdict, so far as the punishment is concerned, still the question was not properly put. The question, if admissible, ought to have been, whether he had formed such a deliberate opinion as to the nature of the punisment to be inflicted, in the event the prisoner was found guilty of murder, that it could not be affected or changed by the evidence.”

The same question was raised on behalf of Ward, at the same term of the court. It was then decided, that an opinion formed as to the punishment to be inflicted, upon a hypothetical statement as to the guilt of the accused, did not disqualify a juror; for it could not be seriously contended, that a juror, who has not formed the least opinion as to the merits of the prosecution, can stand otherwise than as an indifferent juror between the State and the defendant. “ If,” says the court, “ the juror has not formed an opinion as to the guilt of the prisoner it is idle to inquire whether he has made up his mind as to the degree of punishment that should be awarded.”

The opinion of the juror even as to the guilt of the prisoner, when his conclusions are based upon a hypothesis as, to the real statement of the facts, does not disqualify him, if otherwise he stands indifferent. The Supreme Court of New Jersey held, “that a hypothetical opinion, founded on the supposition that the facts detailed are true, is no cause of challenge.” Glover’s case, 2 Green, 195.

“ It will be observed,” says Wharton, “ that some conflict exists as to the degree of bias necessary to exclude a juror, it having been held in New York, Iowa, and perhaps in Massachusetts, that the formation of an opinion based entirely on the assumption that a particular state of facts, as given by rumor, is correct, is adequate for that purpose ; while it is said in Connecticut, Virginia, North Carolina, Georgia, Alabama, Mississippi, Tennessee, Indiana and Illinois, that the formation of a hypothetical opinion, dependent on the existence of facts, concerning the truth of which the juror had come to no conclusion, is not sufficient cause for principal challenge, provided he believes that such hypothetical opinion left no bias on his mind, and that on the production of new facts, he will be entirely open to conviction.” Wharton Or. L., book ix, s. 3010.

But be this as it may, there is another objection to the position, that when a juror has made up his mind as to the punishment to be awarded, he is disqualified. The proposition is stated' too broadly; for, says Wharton:

“A challenge of a juror, because of his having formed and expressed an opinion on the question to be tried, can be made only by that party against whom it was so formed and expressed. It seems that the other cannot interpose.” Or. L., book ix, s. 3012; State of Louisiana v. Bunger, 14 An. 461; State v. Benton, 2 Dev. & Bat. 196.

Supposing, for instance, in a capital prosecution, the prisoner should challenge for cause, a juror, who has conscientious scruples against the death penalty, because he answers that he has made up his mind as to the nature or degree of punisment which he will award. It is evident that the objection, from such a quarter, will not be sustained. And in the absence of knowledge on the part of the court as to what are the conscientious scruples of the juror, it could not be taken for granted, that his opinion militates against the prisoner, from the mere fact of the existence of an indefinite opinion as to what should be the punishment awarded, in case a verdict of guilt be returned.

The above remarks show the propriety and correctness in the ruling of Ward’s case. Indeed, the decision in the case of the State v. George, is practically overruled in the cases of Ward and of Bennett; and, it would have been preferable had the court so decreed, without reserving the point as to slaves. There can be no distinction between slaves and freemen in this respect; for when the jury has the discretionary right of commuting the punishment decreed by law, the competency of each juror, whether in the trial of slaves or of freemen, is to be determined in the same way, unless there be a special legislative enactment to the contrary.

But, in overruling the case of the State v. George, upon the authority of which the prisoner has rested his case in taking his bill of exceptions, the court must at the same time grant him relief. Otherwise, the defendant will be taken by surprise in a matter involving his life. He would otherwise have been more particular in taking before us his complaint as to the existence of a bias or prejudice in the breast of two of his judges. Justice, as well as humanity, dictates this course; and we do so the more readily, that the extreme penalty of the law has been awarded, while upon a former trial the jury could not unanimously agree upon the fact of his guilt.

It is, therefore, ordered and decreed, that, the judgment of the special tribunal be avoided and reversed ; and that this cause be remanded for a new trial in due course of law.

Merrick, 0. J., took no part in this case.


author: Merrick, 0. J.

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    Rosemond Dugas et als. v. Manuel Truxillo.
    Whore tho appelloe lias moved for and obtained the dismissal of an appeal, tho case not having been tried on its monis, the appellant may appeal again if he claims the right to appeal within a year from tho rendition of judgment.
    Where an action has been brought to recover property, and at the time of the commencement of the suit one of tho plaintiffs had no interest in the title, having previously transferred Ins rights, but subsequently acquires interest by an act of retrocession — Held: That tho want of interest at the time of the institution of tho action is a good ground for a judgment of nonsuit, aud that the act of retrocession thus passed after the commencement of the suit is not admissible m evidence.
    Where two separate and conflicting surveys of land had been made by the authority of the United States, tho first of which had never been approved, but tho parties had entered into a notarial agree • ment to respect it m preference to the last — Held : That the parties are bound by this agreement so long as it remains in force, and has not been set aside by a direct action of rescission.
    PPEAL from the District Court of the Parish of Ascension, Duffel, J.

      A. Gentile, for plaintiffs and appellants.

      Mills S LeBlanc, for defendant.
   Merrick, 0. J.

This is the second appeal taken in this case, and there is a motion to dismiss the same in consequence, as alleged, of the failure by appellants to prosecute tho former appeal. That appeal was dismissed on motion of the appellees, and cannot be considered as an abandonment of the appeal by the appellants. The second appeal having been taken within the year, is valid under the authority of the case of Smith v. Vanhille, 11 La. 382. Tho motion is, therefore, overruled.

This is another suit growing out of tho surveys of certain back concessions on the Lafourche, made by Grinage efi Bonnet in 1822-1825, the history of which may bo read in tho several cases of Kittridge against E. Landry, G. Breaud, Du-gas, Breaud, Landry and Dugas, reported in 2 Bob., pp. 40, 72, 85 ; 4 Bob. 79, 6 Bob. 478 and 482.

The original front concession of tho tract claimed by the plaintiffs was confirmed to one Como, and the rear concession was entered in the name of Charles Maurin. Between the years 1822 and 1825 inclusive, the back concession of this tract with some others was surveyed by the United States Deputy Surveyor, Bonnet, but this survey was never approved. Instead of protracting the side lines of the original concessions in their proper direction, they were made to deflect, so that portions of each tract lay transversely in the rear of some other tract. In 1830, the United States caused a regular survey of the back concessions, by extending the side lines so as to embrace the quantity due to each front tract.

In 1833, the authors of'thc respective parties to tho present suit, and some others entered into a notarial agreement to respect and maintain the lines run by Bonnet.

The land in controversy is that brought in conflict by the two surveys. See 2 Rol). 70 and 87.

The plaintiffs claim that the survey made and approved in 1830 shall prevail. The defendants say that the notarial agreement entered into before Jean Matcrre by the plaintiffs’ author, Jean Dugas, is obligatory upon the plaintiffs. It is as follows, viz :

“ Lesquels comparaos, considérant qu’il s’est élevé des diffieultés de la part de certains acquéreurs de partió des doubles concessions acquises par les comparaos, lours représentans ou lours prédécesseurs, sur les terres maintenant occupées par partie des sns-nommés, lesquels acquéreurs se refusent ou pourraient so refuser par la suite a acquitter le prix des terres achetées par eux sous le titre de doubles concessions. En conséquence, les dits Sieurs Anché Leblanc, Jean Dugas, Maxile Leblanc, Fierre Blanchard, Armancl Landry, Simonet Leblanc, Ursin Leblanc, Raphael Moliere, Valery Brand, Eugene Landry et Jeannet Landry déclaront persisten a maintenir et a considéror Farpentage fait, les ligues tirées et les bornes posees par L. AuguUe Bonnet, député arpenteur des Etats-Unis poúr l’Etat de la Louisiaue comme bons et valables par rapport a eux ou Ieurs ayanscause. Bien ontendu, cependant, que le Sr. André Leblanc déclare ne plus maintenir le présent acte aussitót qu’il s’éléverait des contestations judiciaires qui lui deviendraient préjudiciables et qui tendraient a changer la ligne inférieure de son habitation, telle qu’elle est maintenant, n’importe de quelle part puisso venir la dite contestation. Dont acte, &c.”

The judgment of the lower court was a final judgment in favor of the defendants, and the plaintiffs appeal.

There are two grounds which justify a judgment of nonsuit, instead of a judgment quieting defendant’s title.

The first is the fact, 'that at the time of the commencement of the suit Murille Landry had no interest in plaintiff’s title, and the court erred in permitting the act of retrocession from the heirs of Henry Landry to him, which was passed after the commencement of the suit, to be offered in evidence. It is true, Murille Landry, after he had acquired title, might have intervened in the suit, but this right did not render valid his original suit. See 0. P.15; 3 La. 300.

The second ground is, that the plaintiffs cannot, in this form of action, and with their present allegations, and the present parties to this suit as defendants, attack the Materre act, which is a bar to their action so long as the same remains in force. 1 An. 38. As they are not permitted to question that act in this suit, so they ought not to be precluded by any judgment based upon it.

Whether error or the violation of the rights of any of the parties to the act by the vendees of other parties to the same, will give rise to the action of rescission or to any other action, or whether such action may or may not be prescribed, are questions upon which it must not bo inferred that -we have formed any opinion.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of the defendants as in ease of a nonsuit, and the like judgment on the demand in warranty, the defendants paying the ,costs of the appeal and their calls in warranty (which they moved to dismiss), and the plaintiffs all other costs of the lower court.


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    State v. Joshua, a slave.
    Although the day fixed for execution by the magistrates before whom a slave has been tried for a capi - tal oironce has elapsed, pending an appeal, on the judgment being affirmed, it is the duty of the Sheriff to execute the sentence.
    PPEAL from the Justice’s Court of the Parish of St. James.

      T. J. Semmes, Attorney General, for the State.
   Voorhies, J.

The prisoner was found guilty of the crime of committing a rape on the person of a white woman, and sentenced to be hung' on the first Monday of August, 1859.

This judgment must bo affirmed. There is no bill of exception in tho record, nor has the defendant’s counsel filed an assignment of errors. Besides, upon an inspection of the papers, we do not perceive any error, which might have avoided the proceedings.

The day fixed for the execution of the prisoner has elapsed; but the magistrates who sat on the special tribunal, from which this appeal was taken, are referred to the following cases as a guide in this matter : State v. Jonas and Sam, 6 An. 695; State v. Oscar, 13 An. 297.

It is, therefore, ordered and decreed, that the judgment of the inferior court be affirmed.


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    Charles Jenkins v. New Orleans, Opelousas and Great Western Railroad Company.
    An action cannot be maintained by a railroad company against the owner of cattle, for damages occasioned by the cars coming in collision with the cattle on the road, while it remains uuinclosed.
    PPEAL from the District Court of the Parish of Terrebonne, Roman, J.

      Goode & Aycoclc, for plaintiff.

      Connely & Rightor, for defendant and appellant.
   Land, J.

This suit is of the same nature as that of Michel Knight against the same defendants, ante p, 105. The plaintiff’s claim is for less than three hundred dollars, and not within the jurisdiction of this court.

The defendants, in their answer, claim in reconvention, the sum of five hundred dollars for damages, alleged to have been occasioned by the trespass .of plaintiff’s cattle on their road, and by collisions with them. The plaintiff has the right to let his cattle run at large ; and so long as the road of the defendants remains uninclosed, they will have no right of action against him, on the grounds stated in their answer.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court, on the reconventional demand of the defendants, be affirmed, with costs.


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    J. H. Pearson & Co. v Ricker & Pearson.
    Property acquired during the marriage, although purchased in the name of the wifo, belongs to the community in tho absence of proof that it was paid for out of the wife’s paraphernal funds.
    PPEAL from the Fourth District Court of New Orleans, Price, J.

      W. S. Stansbury, for plaintiffs.

      Michel & Koontz and Ogden & Leovy, for defendants and appellants.
   Merrick, 0. J.

The appellant states his case as follows :

“ The plaintiffs having obtained judgment against defendants for thirty-two thousand one hundred and fifty-two dollars and ninety-two cents, caused certain squares of ground in the town of Rickerville, parish of Jefferson, to be seized and advertised for sale.
“ Samuel Ricker, one of the defendants, as tutor of his minor child, filed a petition of opposition to said seizure, in which he asserts that the property seized is the property of liis said minor child.”
The plaintiff, in answer to the petition of opposition, avers (in substance) that the property seized is the property of his debtor, Samuel Ricker, Sr., and of no one else, and that his seizure is legal and proper.”
The case being tried before a jury, they found a verdict in favor of J. H. Pearson Co.”
It is respectfully submitted : That the Judge of the District Court erred in refusing to charge the jury that the plaintiff could not test the validity of the minor’s title to the property by an immediate seizure, but that he was bound to resort to a revocatory action to cause the title to be vacated, so far as it operated to his injury. He should, by suit and judgment, have first obtained a decree subjecting said property to the execution of his judgment.”

We shall confine ourselves to the consideration of the sole question presented by appellant’s brief.

The proof shows that the interest in property partitioned was acquired during the existence of the marriage between the mother of the minor and Samuel Ricker, his tutor, and although taken in the name of the wife, in the absence of proof that it was paid for ont of her paraphernal funds, belonged to the community. 0. 0. 2371. The subsequent partition of the property between the minor and third parties did not have the effect to divest the community of its ownership of the same.

The judgment debtor and the tutor being the same person, the possession followed the title.

The ease, therefore, does not present the question of the seizure of property in the hands of a third person who has possessed as owner for more than a year, and who is entitled to maintain Ms possession nnder the possessory action, nor the case where the third person has, by a real though fraudulent sale, acquired title from the debtor himself.

The question is one merely of ownership, and the opponent must recover, if at all, on the strength of his title. The revocatory action was not needed, for there was no title emanating from the debtor to be annulled. There was, therefore, no error in the charge of the District Judge.

Tlie question as to what title the plaintiffs have acquired by their purchase after the dissolution of the community is not raised in this case; neither must the judgment of the lower court be construed as a bar to any right the minor may have in and to the said community, or any part thereof, inasmuch as his sole and separate title alone has been passed upon by the lower court.

The judgment of the lower court is, therefore, as so understood, affirmed, with costs.


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    F. Taenzer, praying for a Writ of Certiorari, v. The Judge of the Third District Court.
    The jurisdiction of tlie District Court is to be tested by tlie value of the thing demanded, and not by reference to extraordinary matters, although the same may be used by way of proof.
    If the matter m dispute bo really uuder three hundred dollars, the Supreme Court cannot take jurisdiction by way of a writ of certiorari, any more than by a direct appeal, and Article 857 of the Code of Practice is so far inapplicable to it.
    On an application for a writ of certiorari to the Judge of the Third District Court of New Orleans.

      F. Taenzer, pro. per., relator.
   Merrick, C. J.

Petitioner complains that the Judge has refused, in case of Marmu against him, to hear his witnesses, to prove a certain partnership to be worth over $300, and also that he refused to sign his bill of exception on the ground, that the case was not appealable. The proceeding in the lower court, according to petitioner’s allegations, was a mandamus to obtain possession of certain leased premises.

As the constitutionality or legality of no tax, toll or impost, is drawn in question, and no fine, forfeiture or penalty, imposed by a municipal corporation, is in contestation, if the value of the lease be less than three hundred dollars, this court is without jurisdiction, although the premises may have been previously leased by the plaintiff and defendant as partners.

The jurisdiction of the District Court is to be tested by the value of the thing demanded, and not by reference to extraneous matters, although the same may be used by way of proof.

As this court derives its jurisdiction from the Constitution, and not from the Code of Practice, if the matter in dispute be really under three hundred dollars, it cannot take jurisdiction by way of a writ of certiorari any more than by a direct appeal, and Article Sol of the Code of Practice, is so far inapplicable to the Supreme Court.

If the matter in dispute be really over three hundred dollars, petitioner has mistaken his remedy.

It is, therefore, ordered, that the petition for a certiorari in this case, be dismissed at the costs of petitioner.


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    Thomas B. Gaillard, Under-Tutor, v. James Foster, Tutor.
    The Act of 1855 was intended as a relief to tutors, by allowing the homologation of thoir accounts, and giving to sucha decree certain efficacy. But this Act does not free them from the control which the Probate Court exorcises over them by virtue of Art. 350 of C. C. They are bound to render an account whonevor they receive orders to that effect from tho court, upon the suggestion of the under-tutor or any one elso; or they may, at their option, render an account annually, aud have the same homologated contradictorily with tho under-tutor.
    The court cannot render a judgment against tho tutor, in favor of the under-tutor, for any specific amount.
    PPEAL from tlie District Court of the Parish of Madison, Farrar, J.

      Stacy & Snyder, for plaintiff and appellee.

      T. S. McCay and Peter Alexander, for appellant.
   Voorhies, J.

The plaintiff, as tutor of his minor children, was sued by their under-tutor for a rendition of account, or statement of his administration. The judgment of the District Court being in favor of the latter, the former appealed.

The Civil Code, Art. 350, declares that: “ The tutor is bound to give an account of his administration at the expiration of the tutorship, and whenever he is ordered to do so by the Judge.” During the existence of the tutorship, the under-tutor, under the provisions of the Civil Code, had no right to claim, on behalf of tho minors, a rendition of account; although, in an action to remove the tutor, the latter’s accounts were open to investigation, for the purpose of proving his mal-administration. Monget v. Walker, 4 An. 214; McGehee v. Dupuy, 7 Rob. 229; Fry v. Dowell, 1 Rob. 111.

The Legislature of 1855, in the Act passed to facilitate the settlement of the accounts of tutors and curators, introduced some changes in this respect. This statute made it '• lawful for tutors and curators of interdicted persons and of absentees, to file annual accounts of their administration and to cause them to be homologated, in due course of law, contradictorily with the under-tütor of the minors, and with a curator ad hoc of the interdicted person or absentee.” The Act goes on to determine what effect shall be given to such proceedings : “ The judgment homologating the accounts as aforesaid, shall be prima facie evidence of the correctness of the account homologated, in any settlement which may afterwards be made with the minor, interdict or absentee.” Session Acts of 1855, p. 40.

This statute gives to the under-tutor the right to stand in judgment, contradictorily with the tutor, when the latter presents yearly accounts of his administration ; and, in the second place, it specially authorizes the homologation of these accounts. But the defendant contends that it is optional with the tutor to file an account; and that he cannot bo compelled by the court to do so. This is a forced construction of tho law ; for, previous to the passage of this statute, the tutor might be compelled, during his administration, to render an account, although the court could not proceed to homologate it.

The 350th Article of the Civil Code says expressly, that the tutor is bound to give an account of his administration, “ whenever he is ordered to do so by the Judge.” This Article is a modification of Articles 469 and 470 of the Napoleon Code. “ Tout fcuteur,” says Article 469,” est comptable de sa gestión lorsqu’elle finit.” The first part of our Article is a litteral translation of the above, and the other part is substituted to the 470th Article of the French Code, which provides:

“ Tout tuteur, autre que le pere et la mere, peut étre tenu, méme durant la tutelle, de remettre au subrog'é tuteur des états de situation de sa gestión, aux époques que le conseil de famille aurait jugé á propos de fixer, sans néanmoins que le tuteur puissc étre astreint á en fournir plus d’un chaqué alinée. Oes états de situation seront rédigés et remis, sans frais, sur papier non timbré, et sans aucune formalité de justice.”

Toullier, in commenting on this Article, says :

“ Les états de situation ont moins de solemnité ; mais ils suffisent pour mettre le subrogé tuteur en état d’exercer sur la conduite du tuteur, la surveillance dont la loi le charge, et de provoquer sa destitution, s’il apergoit de l’mfidélité ou de l’ineptie.” Vol. 2, p. 482, s. 1244.

Our Code, different in this respect from the Napoleon Code, requires the tutor, whenever ordered by the Judge, to give an account of administration ; but is silent as to the manner in which this power is to be exercised by the Judge.

In the case of Stafford et als. v. Villain et als., 10 La. 329, the court said :

Tutors under an order of the Court of Probates, must, and without it, may exhibit an account of their administration, and the court may make certain orders thereon, but nothing authorizes it to homologate such accounts, so as to render them conclusive and binding on the minor ; for the law gives to the latter the right, until the expiration of a certain delay after he comes of age, to examine and contest all the accounts of his tutor. The court, therefore, can in no case relieve and discharge the tutor from his responsibility, as has been done in this case.”

The Act of 1855, was intended as a relief to tutors in this respect, by allowing the homologation of their accounts, and giving to such a decree certain efficacy. But this Act does not free them from the control which the Probate Court exercised over them, by virtue of Article 350. They are bound to give an account whenever-they receive orders to that effect from the court, upon the suggestion of the under-tutor, or any one else; or they may, at their option, render an account annually, and have the same homologated contradictorily with the under-tutor.

The judgment of the District Court is, however, erroneous. The under-tutor was not entitled to recover a specific amount or sum of money from the tutor ; but the proceedings in the court below should have been strictly to compel the tutor to give an account of Ms administration, and to have the same homologated.

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


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    City of New Orleans v. The Union Bank of New Orleans.
    The 117th section of the Act of 1856, which was intended to amend an Act entitled “ an Act to consolidate the city of New Orleans, and to provide for the government of the city of New Orleans, and the administration of the affairs thereof,” contemplated that the special railroad tax should ho levied after the assessment roll was completed.
    PPEAL from the Second District Court of New Orleans, Morgan, J.

      W. O. Denegre, for plaintiff and appellant.

      Benjamin, Bradford <& Fin~ ney, for defendant.
   Merrick, C. J.

This case is similar to the cases of the plaintiff against the Southern and Mechanics’ and Traders’ Banks, ante pp. 89, 107.

In speaking of the repealing Act of 1857, counsel seem to suppose that the ordinance of 23d of February, was a violation of the favorite policy of the State relative to the free banks.

They say, “ to rescue this system, so soon as the Legislature was apprised of the attempt of the city to tax these free banks, the Act above quoted was passed ; not only to exempt them from taxation in future, but to exempt them from the payment of the tax already laid in contravention of a favorite public policy by the State.” So far from this being the settled policy in 1856, the Legislature, besides declaring capital to be property subject to taxation, said, in the 68th section, “ that all moneyed or stock corporations deriving a profit from their capital or otherwise, shall, for the purposes of the Act, be liable to taxation on their capital, except such corporations as are now, by their charters, exempt from the same.” See also sec. 41, p. 147.

In the case of the City v. The Southern Bank, we think we have shown that other persons had at least an equitable interest in the collection of the special railroad tax. We may add, that an exemption from future municipal taxation is a very different thing from an exemption from taxes already assessed.

The laws prohibiting the emancipation of slaves, took from the courts the power to decree the emancipation of slaves for the future (Acts, 1857,) just as the city is prohibited from assessing taxes in future on the capital of the free banks, and so far only the analogy holds good.

It is supposed that the tax could not be levied after the assessment roll was completed. It is quite clear, by reference to section 117, that the Legislature contemplated that the special railroad tax should be levied after the assessment roll was completed, for such ordinance was to be the first passed in January, and the ordinary assessment roll was to have been delivered in December.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed. And it is now ordered, adjudged and decreed by the court, that the plaintiff recover and have judgment against the defendant, for the sum of $2,231, with interest thereon at the rate of one per cent, per month, from the first day of June, 1857, until paid ; and that the defendant pay the costs of both courts.

Buohanan, J., dissents in part, for reasons given in City v. Southern Bank, ante p. 92. .