author: Ogden, J. Slidell, O. J.,

text:
    Municipality Number Two, Praying for the Opening of Benton Street, v. Maunsel White and others.
    Both the exercise of the right of eminent domain and the powers of-taxation are limited under the Constitution, and there does not exist either in the Legislature or in any of the subdivisions of sovereignty, a power of apportioning taxation for public purposes, whether of a general or of local character, except on the principal of equality and uniformity.
    The Act of March 30th, 1882, which authorizes the Mayor and Council of the city of New Orleans to open any street in the city of New Orleans, and directs that the owners of all the lots adjacent to and fronting the part of the street to be opened, shall be assessed for their respective portions of the benefit derived from the improvement; and the Act of 181:7, which provides that the owners of all property which may be benefited by laying out, opening and improving streets in conformity with existing laws, shall be bound to the municipality that has caused such improvements to be made, and within the limits of which such property is situated, for the amount of their proportions of the benefit, are unconstitutional, such assessment being unequal and not being uniform. There is no other mode of apportioning a tax for such improvements which will be equal and uniform, but that of an ad valorem tax on all property holders within the district, or by paying expenses out of the funds derived from general taxation.
    While the Constitution of 1S45 was in force, the Act of the Legislature of 1832, declaring that the owners of all the lots adjacent to and fronting the part of the street, opened under its provisions, should be assessed for the respective portions of benefit derived from the improvement, was adjudged constitutional. Articles 105 and 123 of the present Constitution, were taken literally from the Constitution of 1845; it must be presumed that the framers of the present Constitution were aware of the construction they had received from the Supreme Court, and intended, in the new Constitution, they should have the same meaning and effect. The constitutionality of the Act of 1832 should therefore be maintained. Slidell, C. J., dissenting, with whom concurred Ccwrypbell¡ J.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      J. R. Wolfe, for plaintiffs. Benjamin S' Mieou, for opponents and appellants. H. S. Strawhridge, for J. F. Wheeler, opponent and appellant.
   Ogden, J.

The questions involved in this case concern the constitutional rights and powers of a co-ordinate branch of the government, and have undergone the most mature deliberation of the court. The appellants, as owners of property contiguous to Benton street, which has been recently opened by the authority of an ordinance of the municipality, resist the payment of the amounts for which they have been respectively assessed for their properties, of benefit derived from this public improvement, on the ground that the several Acts of the Legislature, by which the whole burthen of paying the costs incurred for such improvements is imposed on the owners of property contiguous to the newly opened street, are repugnant to the Constitution, and therefore void. The two provisions of the Constitution which it is contended are violated by those Acts of the Legislature, are : First, the Article 105, which declares “ no ex post facto law, nor any law impairing the obligation of contracts, shall be passed, nor vested rights be divested, unless for purposes of public utility, and and for adequate compensation previously made.” Second, Article 128, which declares, “ Taxation shall be equal and uniform throughout the State ; all property on which taxes may be levied in this State, shall be taxed in proportion to its value, to be ascertained as directed by law. No one species of property shall be taxed higher than another species of property of equal value, on which taxes shall be levied; the Legislature shall have power to levy an income tax and to tax all persons pursuing any occupation, trade, or profession.” The Acts of the Legislature, said to be in opposition to these provisions of the Constitution, are the Acts approved March 30th, 1832, and 3d of May, 1847. By the first of these Acts, it is provided, that whenever, on the petition of such portion of the owners of property in the neighborhood, where any improvement of any street or public place is desired, as to the Mayor and Council of the city of New Orleans shall appear sufficient, and when the Mayor and Council shall deem such improvement necessary or highly useful, and also whenever it shall, in the opinion of the city council, be necessary or desirable for the public convenience or health, to lay out, form, and open any street or public place in any part of the city, they shall have the power to cause such street to be opened, widened or improved, and that the lots, buildings and improvements, whether of individuals or corporations, shall be taken, removed, and applied to that purpose, and compensation made to such owners for any loss or damage, exceeding the benefit and advantage derived to them from the improvement. The Act provides for the appointment of commissioners of estimate and assessment, and directs that the owners of all the lots adjacent to and fronting the part of the street so opened, shall be assessed for their respective portions of the benefit derived from the improvement. The subsequent Act of 1847, provides that the owners of all property which may be benefited by laying out, opening and improving streets, in conformity with existing laws, shall be bound to the municipality that has caused such improvements to be made, and within the limits of which such property is situated, for the amount of their proportion of the benefit, when ascertained and finally determined.

In the case of the opening of Roffignac street, 7 Annual, ijhe question arose under the Act of 1832, what precise meaning should be affixed to the expressions used in the statute limiting the assessment to the lots “ adjacent to and fronting the street so opened.” The court held, that the word adjacent was synonymous with contiguous, but that no property could be subject to assessment at a greater distance from the space taken for the public use, than the front line of a lot of sixty-five feet. The court say, in that case, “ we have fixed upon the distance of sixty-five feet, because that dimension is the largest front of what may be denominated a full lot in New Orleans, and is as just a standard as we can think of.” The appellants are owners of lots which are not so situated as to fall within the rule laid down by the court in that case as rendering them liable to be assessed ; but under the provisions of the Act of 1847, it having been ascertained and determined that they are benefited by the opening of the street, they are liable for the assessment and would be liable, no matter how distant their property may be from the newly opened street, if the Acts of the Legislature in question are to be deemed and held constitutional and valid.

In the case referred to, of the opening of Roffignac street, the constitutionality of the Act of the Legislature of 1832 was drawn in question, and the present Chief Justice of this court did not concur in the opinion of the majority of the court, but referred to the dissenting opinion delivered by him in the case of the opening of Euphrosyne street. In the views expressed by him in that case, we fully concur. The question, however, was then confined to the expropriation of the ground taken for the new street, and the dissenting opinion proceeded no further than a denial of the right claimed under the Act of the Legislature to take the property of an individual for the public use, and pay him for it in the real or supposed benefit done to his other property, instead of in money. We are now called on to decide, whether it is not equally a violation of the Constitution to compel individual proprietors determined on by the commissioners, as those most benefited by the improvement, to bear the whole burden or charge of an improvement thus made for the public benefit.

The principles of the Constitution invoked by the appellants, are of the highest importance, and were designed to render the rights of private property sacred and inviolable, and they do, from their nature, afford the most ample constitutional guaranty against any abuse of the legislative power. We cannot doubt that, however subdivided the State may be into cities, towns and parishes, those fundamental principles incorporated into the Constitution, must pervade the whole system of the body politic, and regulate and control all local legislation. There would be but little guaranty for the rights of property, if the dominion of the principles of the Constitution was not over all the subdivisions of legislative power throughout the State.

The power delegated by the Legislature of legislating for municipal or parochial purposes, must be exercised in strict conformity with the principles of the Constitution, and the question is, whether consistently with the restrictions imposed by the two clauses in the Constitution referred to, the city corporation have the power of compelling a portion of the property owners residing in a certain locality, to pay for a public improvement made by authority of a local law of the municipality which the corporation would have no right to pass except for the benefit of the public for whom they are allowed to legislate. If such proprietors can be made to bear the whole share of such burthen, on the ground that they alone are benefited by it, on what principle does the right of the council to pass the ordinance rest ? The power is not claimed for the council on any other ground than that of their right to legislate for the public good within the limits of the corporation. The words of the statute conferring the power are, that “ whenever in the opinion of the council it shall be necessary for the public convenience or health to lay out, form, or open any street or public place in any part of the city.” The private interests of individuals it was not intended should be regarded as a motive for the action of the council, in adopting the ordinance; and yet the cost of making the improvement thus determined on as a means of public utility, is charged upon the individuals who are supposed to be the most benefited by it. The question we have to meet and decide is, whether the power thus claimed for the corporation, rightfully exists under the Constitution.

In arriving at a conclusion on this important question, we are much aided by the thorough investigation, this whole subject has undergone in the State of New York, and though the decisions rendered by the courts there have not been uniform, and very different and conflicting views of the subject are presented in many of them, they serve to illustrate forcibly the construction we feel bound to give to our own Constitution in reference to the same subject matter. In the case reported in 6th Barlow’s Supreme Court Reports, of The People Ex Rel. Post et al. v. The Mayor, &c., of Brooklyn, it was held that the' exercise of such a right as is claimed in this- ease for the corporation, was a violation of an article of the Constitution of New York, which provides that private property shall not be taken for public use, without just compensation, In favor of the Mayor and Common Council of Brooklyn, it was contended,, that the assessment was an exercise of the taxing power, and not an appropriation of private property to public use, and that it came within the legitimate scope of the taxing powers conferred on the corporation by the Legislature. In the Constitution of New York, there is no limitation on the power of the Legislature in regard to taxation, and, if regarded as a tax, the assessment was not obnoxious to any principle of their Constitution. After reviewing their conflicting decisions on this subject, the court, in that case, say : “ If it was not otherwise manifest, these authorities establish the position that the assessment in question, is not a tax within the legal meaning of that term ; if it be not a tax, then it must be an attempt to take private property which requires a constitutional compensation, for there is no middle ground on which to stand” ; and the conclusion by that course of reasoning was arrived at, that the assessment was unconstitutional. This was not the decision of the Court of Appeals of New York, but we will now refer to what is said by that tribunal in reference to the above decision of the Supreme Court. In the case of The People Ex relat. Griffin et al. v. The Mayor of Brooklyn, in which case the same law was maintained tobo constitutional, Justice Rugglcs, who delivered the opinion of the court, places the decision expressly on the ground, that such assessments are lawful and constitutional taxation. He says, “ the assessment, therefore, was taxation, and not an attempt to exercise the right of eminent domain; if there be any sound objection to the assessment as a tax, it must be an objection which applied to the principle on which the tax is apportioned, because the object for which the money was to be raised is, without dispute, one for which taxation, by a different rule of apportionment, would have been lawful.” He then proceeds to say, that “ the power of taxation and of apportioning taxation, Is vested exclusively in the Legislature, unless the power is limited and restrained by some constitutional provision; that the power of taxing, and the power of apportioning taxation, are identical and inseparable, and that since the original organization of the government of New York, there has not been any such constitutional limitation or restraint. The power is asserted by these decisions, for the Legislature, in the absence of any constitutional restriction whatever, to apportion taxation without reference to the locality, or to any proportion between the burthen and the benefit, and in express terms it is said that the power is vested exclusively in the Legislature, of assigning to each individual his share of the public burthens.” In this very able decision of Justice Ruggles, several adjudicated cases are referred to, in which a distinction which had been drawn between street assessments and taxation, and in reference to the distinction thus attempted to be drawn, he says, “ in no case has it been adjudged, that street assessments are not made by virtue of the legislative taxing power.”

Applying the test of our own Constitution to the principles of law thus recognized and established by the decisions of the courts of New York, where this subject has been so fruitful of litigation, the question of the constitutionality of the assessment must be solved in the negative. Both the exercise of the right of eminent domain, and the power of taxation, are limited under our Constitution, and the rule with us is deduced not from general principles, but from the Constitution itself, that there does not exist either in the Legislature, or in any of the subdivisions of State sovereignty, a power of apportioning taxation for public purposes, whether of a general or of a local character, except on the principle of equality and uniformity. There appears to be no other reason for the distinction which has been drawn between an assessment and taxation, when resorted to for the purpose of defraying the expenses of a public improvement, than the fact, that the Legislature in 1832, thought proper to provide, that the costs and expenses of opening new streets in the city of New. Orleans, which had been previously, under the Act of incorporation of the city, paid out of the public funds in the city treasury, should be thereafter paid by what is called assessments for benefits on the lots adjacent to the newly opened street. This Act had only the effect of shifting the burthen of the expense from the people at large, who paid city taxes, to individual propi’ietors of lots in the neighborhood; it was not the less a tax, because the burthen was imposed on a few property holders in the shape of what was called an assessment. There existed then no constitutional restriction of the power of taxation, or the exercise of eminent domain, and the validity of the Act of the Legislature, however unjust and liable to abuse, could not have been successfully impeached. Under our present Constitution it is different, unless we should hold that the article referred to, was not intended to apply to city or parish taxes. There is what may be called an obiter diattim to that effect, in the decision in Second Municipality v. Duncan, 2 Ann. 182, but we cannot subscribe to the correctness of the opinion expressed by the court on that point. We consider that the Constitution established equality and uniformity to be the principle of taxation throughout the State, in all its subdivisions of local sovereignty. No State government has ever been carried on without the delegation of the taxing power vested in the Legislature, to subordinate political bodies, as necessary for their existence ; and when a principle is laid down in the Constitution in such broad terms, limiting the exercise of that power, we cannot suppose its operation was intended to be so restricted as to leave the subordinate bodies supreme in this respect. The power of taxation is a power of all olhers most liable to abuse; it was the object of the framers of the Constitution to guard against that abuse, and while all the persons and property within the limits of a district for which a local government is established, may be subjected to taxation by the delegated authority of such government, for purposes of public utility within those limits, the principle of equality and uniformity required ’by the Constitution, must be preserved in the apportionment of such taxation, whatever be the objects on which the tax is to operate, and this may be done without circumscribing the power of discriminating as to those objects — it being impossible to ascertain the precise degree of benefit which is derived by any or by all of the property holders within the district, from any public improvement that may be determined on by the local authorities, there is no other mode of apportioning a tax for such improvements which will be equal and uniform, but that of an ad valorem tax on all property holders within the district, or by paying the expenses out of the funds derived from general taxation, as was done previous to the Act of 1832. The objection, that in a large city the benefit of local improvements is not felt to an appreciable extent, except in the immediate vicinity of such improvements, applies equally to all public improvements. Those persons residing or owning property in the vicinity of such improvements, are generally the pei'sons who are most benefited by the increased value given to their property, but as such improvements are made by the authority of laws which are made without regard to any private interests, but solely for the public welfare, it has never been supposed that, for the greater advantage thus incidentily derived by those in the neighborhood of the many improvements which are constanly carried on under the authority of general and of local legislation, could be taxed any higher than others, on account of such superior benefit to them.

The evil, that some are benefited more than others, while all must be equally taxed, results from the necessity of establishing districts by definite limits, within which the powers of a local government must be exercised, and is an evil, from its nature, inseparable from taxation under any form of representative government. But the evil complained of by the appellants, under the statutes of 1832, by which certain property holders within the district, according to the judgment of commissioners, are compelled to improve their property in a mode pointed out to them, and pay for the improvement such sums as the commissioners may deem equivalent to the benefit derived by them, would seem to be an invasion of the private right of property, inconsistent with any hut a despotic government,

In the case of Blanchet v. Municipality No. Two, 13 L. R. 325, which was an appeal from a judgment confirming the report of commissioners under the Act of 1832, for widening Notre Dame street, it was contended that the widening of the street was a general benefit to the whole community, and that its funds should have been made to contribute to the improvement under the eighth section of that Act, which declares that, if the commissioners deem the improvement to be one tending to the salubrity, beauty, benefit, or improvement of the whole city, it shall be their duty to assess such part of the improvement to the Mayor and city, as they may deem equitable. The District Court had decided that the improvement was not sufficiently and generally useful or important to make it the subject of a tax on the municipality, and in confirming that decision, Judge Martin says : “ The Legislature has thought fit to constitute the commissioners the sole judge of the cases in which the improvements are of so general a nature, as to demand that the charges attending them should not be borne by the inhabitants in the vicinity of which they are made alone, but by the whole community.” The courts of justice, he remarks, are open to to those who may be aggrieved by the abuse of the powers of the commissioners, but that in the case before them, clamors had been heard, but there was no proof that the parties are aggrieved. We cannot believe such a decision could have been made under the present Constitution of our State. At that time, there was no constitutional objection to the law, whether viewed in. the light of a tax or not, the power of the Legislature was then unrestricted, both as regards taxation, and the power of taking private property for public use, and against the abuses of such an extraordinary power over the property and rights of individuals, there was no protection except the very inadequate one furnished by the supervision of the courts over the acts of the commissioners ; and after all, there being no certain standard for the judgment of either the commissioners or the courts, an irregularity in the imposition of the burthens and charges of public improvement was the necessary result. Since that time, there have been two conventions called, and in both the Constitutions framed by them, it was thought proper to insert the clauses above referred to, which, did not exist in the old Constitution, and which, by their letter as well as by their spirit, are in opposition to such legislation. In the case of Oakey v. The Mayor et al. 1 L. R. 1, in which the constitutionality of an ordinance of the municipality laying a tax for paving the streets was considered, the court were influenced by the fact on which considerable stress was laid, that there was nothing in the Constitution then existing, which required taxation to be uniform, although, if there had been, it is probable they would have sustained the ordinance, on tho ground which is stated, that as the tax fell alike on all who stood in the same situation, it was as uniform as any taxation could well be in relation to the subject matter, and on that principle we are not prepared to say, there could be any valid objection to our present laws, which provide a uniform mode of defraying the expenses of grading and paving the streets; but the question involved by the law assessing the owners of contiguous lots for benefits arising from the opening of new streets, is altogether different — it seems to us equally repugnant to both of the clauses of the Constitution invoked by the appellants.

The powers of the corporation which may be exercised without infringing the Constitution, are ample for all purposes of public utility. Their right to impose fines, forfeitures, and penalties for violation of or non-compliance with such regulations as may be prescribed for the general benefit of the inhabitants, is recognized bjr the Constitution, but their power in that respect as well as in regard to laying taxes, has been guarded against abuse by the Article in our present Constitution, which did not exist in the old one, granting an appeal to this court, in such cases, no matter how small the sum in controversy may be, when the constitutionality or legality of such tax, fine, penalty or forfeiture, may be in contestation. We feel that the constitutional guarantees of the right of private property and the freedom from any other than equal and uniform taxation, with the right of appeal to this court to enforce them, would be of little avail, if we denied to the appellants the relief which they seek in the present case.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be reversed, and the proceedings in the court below be dismissed at the costs of the appellees in both courts.

Justices Voorhies and Buchanan, concurring.

Slidell, O. J.,

dissenting. I was inclined to withdraw from the decision of this cause, having some interest in the question by reason of proceedings now in progress with reference to another proposed public improvement. But I was advised by my brethren, that I had no legal ground for withdrawal, and that, on the contrary, it was my duty to take part in the decision of the present cause. I shall therefore briefly state my views.

The subject of assessment under the Act of 1832, underwent elaborate argument before the Supreme Court, organized under the Constitution of 1845. The subject being deemed of great public importance, the case was held under advisement for a long time ¡ and the decision, under all these circumstances, must be regarded as the result of a diligent and deliberate judicial investigation by the court of last resort.

In the case of the opening of Euphrosine and Roffignac streets, to which I refer, I dissented upon the question as to the mode of paying a proprietor whose land is taken for public use; but did not differ upon the question of assessing proprietors of lots fronting upon, or adjacent to the proposed improvements. The other members of the court were unanimous in the opinion delivered by the Chief Justice, and, to the best of my recollection, I concluded that in future cases; I would consider the whole doctrine as settled.

Such would probably have been my course, if other cases of assessment under this Act had come before the former court under the Constitution of 1845. There is greater reason for a similar concurrence under the present Constitution. The reason is this. The Articles 105 and 123 of our present Constitution, are taken literally from the Constitution of 1845. Both relate to subjects of the gravest importance. In copying those words from the Constitution of 1845, we must presume the framers of the present Constitution were aware of the construction they had received from the Supreme Court, and intended that, in the new Constitution, they should have the same meaning and effect. I have no doubt that in framing the instrument, the cautious preservation of the very words in this and several other cases, was dictated by the important consideration, that they had been the subject of judicial interpretation. I conceive the interpretation of a new Constitution to be eminently a case in which the judicious maxim should be applied — Si de interpreta-tione legis quseratur, in priinis inspiciendum est quo jure civitas retro in ejusmodi casibus usa fuisset. See also McKee v. Ellis, 2 Ann. 166, and the able arguments of council as there reported.

I have felt it my duty to give expression to this theory of constitutional interpretation, because this court is now at the outset of its career; and it is of grave importance that some landmarks of constitutional interpretation should be designated.

Let it be observed, that in the following oases, the operation of the Act of 1832, after the adoption of the Constitution of 1848, was either expressly or tacitly recognized: Matter of Claiborne street, 4 An. 7. Matter of Exchange Alley, 4 An. 4. Mallard v. City of Lafayette, 5 An. 112. Municipality No. One v. Young, 5 Ann. 362. Boulat v. Municipality No. Two, 6 An. 363. MeLaughland v. Municipality No. Two, 5 An. 604. Matter of Roffignac street, 7 An. 77. Matter of Euphrosine street, 7 An. 72. Moreover, an Act similar to that of 1832' was enacted in 1846, to provide for opening and improving streets and public places in the city of Lafayette. Acts of 1846, p. 138, sec. 4.

I may add, as not inappropriate to the subject of constitutional interpretation, that three of the Judges who occupied scats in the court which has recently gone out of existence, were members of the convention of 1845, among them the late Chief Justice,, who- was a prominent member of the Judiciary Committe in that convention, and whose recent retirement' from-the bench I deem a public loss:

In conclusion upon a subject which I consider a matter of settled doctrine, and no longer res'nova, I think it not improper to add a few words respecting the theory of the Act of 1832.

Its object is to-avoid the injustice of general taxation for a special local object. It professes to apportion the assessment according to the maxim, that he who receives the advantage, ought to sustain the burden,- and to exact from each of the parties assessed,, no more than his'just share of the burden according to this equitable rule of apportionment. See People v. The Mayor of Brooklyn. New York Court of Appeals,, and cited by Eustis,.C. J., in the case above mentioned.

At the same time as such improvements may be not Only productive of local advantage, but also tend"- to the salubrity and benefit of the whole city, the statute provides that in such cases a just and equitable portion of the expense may be assessed upon the city.-

There is more justice in this theory than in making the city treasury,, which is the result of the contribution of all the inhabitants,- pay the whole expense of an improvement enuring,, in a considerable degree, to the special advantage of a few.

It is upon this principle, that for many years the expense of paving has been apportioned between the municipal or city treasury,, and the owners of property fronting on the street paved. See City of Lafayette v. Orphan Asylum, 4th Ann. 2.

To illustrate the equity, let us" suppose a case. It" is proposed to open a public square in that portion of the city formerly known as Lafayette. It is obvious that a proprietor of a dwelling house, fronting on the contemplated square, will derive a greater benefit than the proprietor of a dwelling house at the other end of the city, some miles off, in the late 3d Municipality. It would be unjust they should both bear the burden in equal proportions, as would be the case if the improvement were paid for out of the city treasury, whose coffers are filled by the contribution of the landed proprietors of the whole city.

I concede that the system of local assessment is liable to abuse, for which reason courts should scrutinize its application with care, and also see that an equitable share of the burden should be borne by the public. But it will be readily foreseen, that if the whole charge of local improvements is to he borne by the city treasury, grievous abuses might be practised upon the inhabitants generally, to subserve the local interests of designing men holding property in a particular neighborhood.

Campbell, J. I concur in the opinion of the Chief Justice.


source: Caselaw Access Project

author: Slidell, C. J., Buchanan, J.

license: Public Domain

text:
    Mary S. Smith v. John Nettles.
    On the 1st of January, 1841, A. bought a slave for the price of $1200, payable in three equal annual installments, which bore ten per cent, interest after maturity. On the 1st of January, 1845, the purchaser paid $300; the question being how the payment should be imputed, Held: it must be imputed as indicated by 0. O., Art. 2160, first to the interest accrued on the whole debt, without reference to the installments, and not to the extinguishment of the installments, principal and interest, in the order of their maturity, without reference to any interest that might haVe accrued on a subsequent installment at the time of the particular payment.
    O. O., Art. 2162, 2159, 2161,1932,1933, 2163.
    APPEAL from the District Court of the parish of East Feliciana,-, J.

      Meri'iehf for plaintiff and appellant;
    The property was productive, and of the kind which would bear interest by the operation of law.
    The debt was for a single sum, which became divisible into installments only by reference to the terms of sale. No notes or other obligations were given, and all parties looked to the procos verbal' of the adjudication for their protection.
    Toullier would have inquired,- whether the payments would extinguish any one of the credits, and imputed it so that the creditor should not receive his pay in small sums upon each credit. 7 Toul. 183.
    We contend,, however, that each adju lication was a single debt,, due,, it is; true, by installments; and that all of them were equal; and that the payments should be imputed first to the interest due on the whole debt, and then to the principal.
    Article £160 of the Civil Code declares, that the debtor cannot impute to the payment of the capital, any payment he may make when there is interest or rent due. 1 N. S. 571,. 3 Rob-.- 362.-
    Each adjudication was a distinct debt,, which bore interest as the installments fell due as an entire thing.- It was a single obligation, maturing by installments ; and the debtor, who neglected to pay by installments, could not refuse to apply the payment to the interest first. I-n potestate ejus est, qui ex pluri-bus contractibus pecunism debet, tempore solutionis ex primere in quam cau-sain reddat. Quod si debitor id non facit, convertitur electio ad eum qui accepit. Si neuter voluntatum suam expressit; prius in usuras id quod solvi-tur, deinde in sortem aecepto feretur. Codex., viii, p. 43, const. 1. The text, the court will observe, applies to the interest due upon a number of contracts.
    It is contended by the defendant, that each obligation contains three distinct debts — thirty-three in all; and that,, being of like nature, the imputation must he made to the one first falling due or the most ancient. I think it has been sufficiently shown in reply, that there is but a single obligation in each case, and that, all things being equal, the imputation of payment should be made proportionably to each obligation, and covering first the interest. C. 0. 2162. 3 Ann. 352, Adams v. The Barilo of Louisiana.

    The English text of Article No. 2162, has modified the Article No. 156 of the old Code, which read, that the imputation should he made to the most burdensome debt. The French text in both Codes is the same. Giving- weight to the English text, under the Constitution of 1812, and there is no difficulty in making the proportioned imputation of payment.
    But, there is a dictum, not a decision, in 6 N. S., which is based on Toullier, who reiers to the Digest, 1. 46, t. 3, 1. 89, sec. 2, relied on by the defendant, which says, that the most ancient debt is the one which first fell due. By reference to the place cited in the Digest, it will appear that there were two different contracts, bearing different rates of interest; and that it wag stipulated, that one should be paid before the other; and it was decided, that it was more in accordance with custom to extinguish the debt first due, bearing the least rate of interest. The -creditor stipulating this had an interest, and a right, that the debt bearing the least rate of interest should be first extinguished. Whether the amendment of the old Code contained in No. 2162 of the new Code, is a blunder, or not, it is very like this conclusion of the ancient juris-consult.

      Winter, for defendant;
    No imputation is made by either plaintiff or defendant at the time of payment. The law then must make it. It will impute them to the installments in the order of their maturity- — -to that first due — because it is clear that this was the debt which the debtor had at the time most interest in discharging. C. C. 2162; Hennen’s Dig., vol. 2, p. 1162, § 3. If the French text of the latter clause of this article is to prevail, (and it is in accordance with the Code of Napoleon, and the corresponding Article of the old Code,) the payments are to be so imputed, because the installment first due is u la plus ancienne.” 6 N. S., 113; Lanusse v. Lamia. The English text of this clause seems clearly erroneous — it is in direct opposition to the first clause of the same Article — for the debt which the debtor has the most interest in discharging, cannot be, under any circumstances, the least burdensome. It is a direct contradiction in terms. The English text of the old Code reads, “the most burdensome;” which is in harmony with the rest of the Article — though we think the French text is undoubtedly the correct reading.

       It does not appear from the record, before what Judge this case was tried.

   Slidell, C. J.,

This case presents a question as to the imputation of payments.

The facts of the case are these : At the probate sale of the estate of Cas-well Smith, deceased, administered by plaintiff, the defendant bought slaves, amounting in the aggregate to $14,628. They were purchased in eleven lots, and at the following prices, respectively: $1200, $1536, $1830, $316, $1300, $1160, $852, $1505, $1401, $3000, $825.

The terms of sale were, “sold on a credit of one, two and three years, equal installments, from this date, (January 4, 1841,) the purchase money to be secured by approved personal security, and the purchaser to consent and agree that the proces Verbal be recorded in the mortgage records of the parish of East Feliciana, and have the force of a final judgment for the amount of the respective purchases, until full and final payment. The personal property will be sold on a credit of twelve months, the purchase money to be secured by approved personal security. All the purchase money to bear ten per cent., after due, until paid.”

The purchaser signed each adjudication in the probate sale, which constituted both the title and the obligation of the purchaser, the total price of each lot, without any reference to the installments, being named.

The payments were nearly all made after the maturity of the last installment, and were continued on for eleven years after the maturity of the first installment, and consisted of twenty payments. No imputation of payment was made.

The defendant contends that his debt is entirely extinguished by these payments. The only question presented is, how must those payments be imputed ? The defendant claims that they shall be applied to the extinguishment of the installments, principal and interest, in the order of their maturity, without reference to any interest that might have accrued on a subsequent installment at the time of the particular payment. If he was correct in this view, in which he was sustained by' the judgment of the lower court, his debt was entirely extinguished by the payment of $362 60, made February 16th, 1863. The plaintiff says the payments must be imputed first to the interest accrued on the whole debt, without reference to the installments. If he is correct, the defendant still owes a considerable sum, the difference resulting from the different methods of imputation.

It will simplify this discussion, to consider first the effect of a payment, supposing the debtor had bought a single slave. We will afterwards consider it with reference to the actual case of several simultaneous purchases from the same vendor.

Let us state the case then thus : on the 4th January, 1841, defendant buys at a probate sale, the negro Solomon, for the price of $1200, payable on a credit of one, two and three years from the date of sale, in equal installments, all to bear ten per cent, interest after maturity, if not punctually paid. He therefore owes $400 due 4th January, 1842; $400 due 4th January, 1843; $400 due 4th January, 1844; and is liable for ten per cent, interest on each after its maturity.

Let us now suppose that on the 1st January, 1846, he makes a payment of $300, and nothing is said or done at the time by himself or the creditor, except the simple payment of the money by the one and its receipt by the other. How will the law impute this payment ? We think this question may be answered by the application of the principle announced in the 2161st Article of our Code. The debtor of a debt which bears interest or produces rents, cannot without the consent of the creditor impute to the reduction of the capital any payment he may make, when there is interest or rent due. Or, to use the more accurate and full language of the French text, of which the English is' an imperfect and earless translation — Le débiteur d’une dette qui porte intéréts, ou d’une chose qui produit des loyers, ne peut pas, sans le eonsentement du créan-cier, imputer le payement qu’il a fait sur le capital, lorsqu’il y a des intéréts ou des loyers dues. Tout payement qui n’éteint pas á la fois le capital ou les intéréts doit s’imputer d’abord sur les intéréts. This is an adoption of the rule of the Roman Law. Si neutor voluntutem su am expressit; prius in usu-ras id quod soloitur, deinde in sortem accepto feretur; Code de Solutionibus, § 43. And not only does our law so make the imputation, but it forbids it to be made otherwise without the express consent of the creditor, thus refusing in the particular case the faculty which in general the law accords the debtor of declaring when he makes a payment, what debt he means to discharge, Art. 2169. The rule of imputation first to interest is certainly an equitable one. Otherwise the debtor, prompted by regard to self, would naturally prefer to impute his payment on the capital, in order to extinguish that portion of the debt bearing interest, leaving unpaid a liability not bearingit, to the manifest injury of the creditor. The rule is also peculiarly equitable in the case of a debt originating in the sale of an object capable of yielding a revenue to the purchaser; as of land susceptible of yielding fruits, or a slave, the benefit of whose labor is enjoyed by the purchaser. Such a consideration induced the lawgiver to put on a favored footing that particular class of contracts. While in ordinary cases, where there is no stipulation for interest, it is due only from the time the debtor is put in mora, yet when the sum is due for property yielding a revenue, interest is due from the time the principal is payable without any demand. O. 0. 1932, 1933.

Is there anything in the Article 2162, which, justly interpreted, can be considered as overriding in this supposed case the equitable rule enumerated in Article 2160. It tells us in its first clause : “ When the receipt bears no imputation, the payment must be imputed to the debt which the debtor had at the time most interest in discharging, of those that are equally due, otherwise'to the debt which has fallen due, though less burdensome than those which are not yet payable.” The second clause, as given in the English text, seems a palpable blunder of the translator, when brought into juxta-position with the rest of the section on the subject of “ the imputation of payments.” Looking to the Erench text which is taken ‘seriatim from the Napoleon Code, we read as follows: “Si les dettes sont d’égale nature, l’imputation se fait sur la plus ancienne ; toutes choses égales, elle se fait proportionnellement.”

Now it is quite clear that if the debt for the price of the slave Solomon, were payable in a single installment, the payment would, in the absence of the creditors consent to the contrary, be imputed first to interest, and then to principal. Is the case affected by the fact, that the debt for the price was payable in three installments? The natural construction of Article 2163, seems to point to the case of distinct debts. Can we say, here are three distinct debts, and we must therefore impute the whole payment to the interest and principal of the first installment, because that is the oldest in its maturity ? It seems to us this would be an unreasonable mode of considering the contract. The purchase of the slave was a single contract, the price a single price. The division into installments, did not destroy its unity and entirety to such an extent as to make those distinct debts within the reasonable purview of Article 2162,after they had all matured. Otherwise we should have the anomaly of a debtor paying, without the consent of the creditor, the capital of a part of the price of the thing sold, which capital was bearing interest, yet avoiding the payment of interest of another part of the price, which interest was bearing no interest, and this, while he was enjoying the revenue of the thing sold. A conclusion so inequitable is repelled by the general intendment of the section, which must be construed with a just reference to all its provisions.

In saying the price was an entire price, we speak with reference to the subject-matter, the doctrine of imputation, which has its own rules founded on practical considerations of equity and common sense. Questions of prescription and others referred to in argument would involve other elements and principles proper to themselves, a reference to which might perhaps embarrass rather than aid us in the present discussion.

The above principle of imputation, if true in the supposed case, is equally true in its application to the debts for the eleven purchases. They were all contracted on the same day, all had the same dates of maturity, all bore mortgage, all the same rate of interest, were all due to the same creditor, and the payments from time to time, were made generally, without any application by either party to the price of any particular purchase. Debtor and creditor may be considered under these circumstances as treating the whole indebtedness as one for all the purposes of imputation, after all the installments become due,

Of course, the small payments made in 1842, before the second and third instalments matured, must be imputed first to the interest accrued, after maturity, until date of payment, on the first installments, and thereto the capital of first installments; for the rule is clear that imputation must be made to the debt due. Art. 2162.

The payments made after all the installments fell due, are to be imputed first to the payment of all accrued interest on the entire indebtedness, and the surplus if any to the entire unpaid capital.

It is therefore decreed, that the judgment of the District Court be reversed, and that this cause be remanded for the purpose of stating an interest account according to the principles announced in the opinion of this court, and rendering judgment for the balance to be so ascertained, and interest with mortgage and privilege upon the respective slaves, for the respective unpaid portions of their price, and for due proceedings to law, the defendant to pay the costs of the appeal.

Buchanan, J.

The distinguishing feature of this case is, that all the installments of the price of the slaves have always remained in the same hand, both before and since maturity. Under these circumstances, the three debts created by the contract, that is to say, the obligations to pay three distinct sums at three different terms, each bearing interest from maturity, were reunited into one debt, at the maturity of the last obligation, and the imputation of payments made after that date, may be with propriety made as in the case of a single debt.

I therefore concur in the decision just pronounced.


author: Campbell, J.

text:
    A. Lecourt v. McBean, Willard & Co.
    Defendant was sued on an acceptance drawn by the firm of which he was a member; his only plea was, that it was an individual transaction of his co-partner, not connected with the business of the firm, and given for the accommodation of the drawers. JECeld: Under the issue, the plaintiff was not bound to prove the endorsement of the payee.
    Afrom the Eirst District Court of New Orleans, Larue, J.

      H. Griffon, for plaintiff. Field & Olcott, for defendant and appellant.
   Campbell, J.

This suit was instituted against McBean, Willard & Go., the acceptors of a bill of exchange, drawn at St. Louis, February 23, 1853, by Kellwm, & Mason, payable to their own order, ninety days after date.

Peter H. Willard, one of the defendants and a member of the said firm, for answer, says that the acceptance sued on was an individual transaction of his co-partner, McBean, in nowise connected with the business of the firm, and given for the accommodation of the drawers, without their knowledge or consent. Judgment was rendered for the plaintiff from which judgment this appeal has been prosecuted.

The plaintiff having alleged that the defendant was indebted to him upon the bill of exchange annexed to his petition, and the defendant having pleaded solely in defence, that he was not liable, because the acceptance was given to his partner in the name of the firm, for this partner’s individual transaction, we think he is limited to that defence, and that plaintiff was not required under such a plea, to prove the payee’s endorsement.

Judgment affirmed.


text:
    S. Pollock v. V. Williams—B. L. Mann, Garnishee.
    Plaintiff must apply for or cause a fi.fa. to issue against his judgment debtor before he can proceed against the garnishee, under the Act of March 20th, 1889.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Jourdan, for plaintiff. Race & Foster, for garnishee and appellant.
   Campbell, J.

The plaintiff having obtained judgment for a sum of money against Vincent Williams, filed his petition, suggesting that B. L. Mann held in his hands rights, credits, moneys and effects, belonging to his judgment debtor, and praying that he be cited as garnishee, and ordered to answer interrogatories.

The garnishee, upon being served with the interrogatories- and order of the court, addressed an informal letter to the judge, stating that he had never had but one transaction with Williams, the judgment debtor ; that he had stored hay with him and made payments on account y that bills had not yet been presented; but that upon a settlement, he would probably be indebted in the sum of two hundred dollars, more or less, which amount he proffered to hold subject to the order of the court. .This letter having been filed as an answer, plaintiff ruled the garnishee to show cause why judgment should not be rendered against him for $600, and interest,, the amount of his judgment, on the ground that each interrogatory was not answered, &c. In answer to this rule, the garnishee, under oath, declared that he was unable, until a settlement should be made, to answer more fully; that in consequence of the garaishment, he would pay nothing to defendant, and, upon a settlement, would make full answers; for which purpose he prayed time. The Judge being of opinion that the answer of garnishee did not exclude the possibility of his having property belonging to defendant, made the rule absolute, and the garnishee has appealed.

It is not pretended that the answer of the garnishee is not truthful. Indeed, it is urged by appellee, that though in this instance the affirmance of the judgment may operate an injustice to the appellant, still, it should be decreed, inasmuch as “private loss and injury should bo tolerated in support of public good, and individual inconvenience yield in support of sound general principles.”

Whether the rule invoked is applicable to the present case, need not be inquired into, as we are of opinion, that the judgment is vitiated by the irregularity of the proceedings.

In the case of Petway v. Gordin et al. 12 R. 447, the Supreme Court, in interpreting the 13th sec. of Act of March 20, 1839, under which this proceeding is instituted, say, that “ although this law was enacted for the purpose of facilitating the recovery of just debts, and of preventing debtors in bad faith from screening their property from the pursuit of their creditors, and thereby avoiding their being levied on by virtue of executions issued in due course of law, it should not be made to operate an injustice on innocent third persons, against whom judgment creditors think it proper or necessary to avail themselves of it, and that, as in cases of attachment, the proceedings pointed out by law, should be strictly complied with.” It has been repeatedly hold, that as a judgment and fi. fa, form the foundation of the remedy under this statute, it can only be exercised when the writ is in the hands of the Sheriff, or at least has been applied for, and that the garnishee may require, as a pre-requisite, proof of their existence. Rabotem v. Valeton, 11 R. 219. Featherston v. Compton, 3 A. 380. Copely v. Fretwell, 2 A. 310.

It is not alleged in the petition, nor does it appear from the evidence, that plaintiff ever applied for or caused a fieri fiadas to issue against the judgment debtor. The proceedings as against the garnishee are consequently void.

It is therefore ordered and adjudged, that the judgment of the District Court be reversed, and that there be judgment in favor of the appellant, as in case of nonsuit; the costs of both courts to be paid by plaintiff and appellee.


author: Campbell, J. Slidell, C. J. Voorhies, J.

text:
    Samuel Stewart v. The City of New Orleans.

    A municipal corporation, in the exercise of power which it possesses for pvlMe purposes, and which it holds as part of the country, enjoys the exemption of government irom responsibility for its own acts and the acts of its officers deriving their authority from the sovereign power.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Thomas Runton, for plaintiff:
    The only question in this case is, whether the city of New Orleans is liable for the misfeasances of her police, who in the exercise of their functions use an undue degree of violence, and while in the service of the city, destroy the property of the citizen.
    The District Judge decided that she is so liable. In the case of MeQary v. The City of Lafayette, 12 Rob. 668, the court gave a “ lesson to those who invest with power, men who are regardless of law and of private rights.” Upon the authority of that case and of Johnson v. Municipality No. One, 5th La. Annual, 100, and the cases there cited, I confidently rely, for an affirmance of the judgment of the District Court, and respectfully ask this court to give a second “lesson” to those who invest with power, reckless men.

      T. L. Bmjne, and Thomas M. Wolfe, for defendant and appellant.
   Campbell, J.

(Ogden, J., and Buchanan, J., dissenting.)

Plaintiff seeks to render the city of New Orleans liable for the value of a slave, alleged to have been killed by the officers of the late Second Municipality.

It is alleged, that in January, 1852, the lieutenant of the watch, aided by other watchmen under his command, while in the regular service and employment of the Municipality No. Two, without any justifiable cause, made an assault, with clubs, upon the slave of plaintiff, and inflicted upon him wounds of which he died.

The defence is, the general denial.

It is in proof that, on the 21st July, 1852, a detachment of the police officers of the municipality, was ordered by their chief to suppress unlawful assemblages of slaves in cabarets; that in performance of this duty they entered a dram-shop, in which the slave of plaintiff was found; that the slave attempted to escape, was pursued and overtaken by the watch, and that, in capturing him, wounds were inflicted of which he died.

It may likewise bo conceded, though the facts are by no moans clearly proved, that when the watchmen entered the cabaret, the slave was neither drunk nor disorderly; that his conduct and character were good ; that he was seated by the fire warming himself, and made no resistance; but merely sought to avoid capture by flight, and that he might have been arrested without taking his life.

The question presented is, whether under this state of facts, the city of New Orleans is amenable in damages for the acts complained of, by the act of consolidation, being bound by the obligations and liabilities of the Second Municipality.

Under the general rule regulating the liability of municipal corporations for the acts of their agents within their ordinary scope of employment, the District Judge held the city liable, and rendered judgment for the value of the slave and the expenses of his illness.

The judgment we think erroneous; and the error results from a failure in the application of the principle, to make the proper distinction between the liability of municipal corporations for acts of its officers, in the exercise of powers which it possesses for public purposes, and which it holds as part of the government of the country, and those which are conferred upon it for private purposes.

Within the sphere of the former, it enjoys the exemption of government from responsibility for its own acts and the acts of its officers deriving their authority from the sovereign power; (see White v. City Council, 2 Hill So. Ca. R. 571, as cited in the notes to Wilson v. Beverly, 1 An. leading cases, 469; also, Martin v. Mayor, &c., of Brooklyn, 1 Hill N. Y. 545, 550, and Mayor et al. v. Furze, 3 Hill N. Y. 612, 618;) whereas, in the latter, it is answerable for the acts of those who are in law its agents. Baily v. Mayor of New York, 3 Hill N. Y. 352. Same case in Error, 2 Demio, 434, 450.

In the case of Baily v. The Mayor of New York, Nelson, C. J., in treating of the difference between the powers conferred on municipal corporations in their public character, for public purposes, and those conferred on the same corporation for private advantage, with the view of distinguishing one class from the other, says: “ To this end, regard should be had, not so much to the nature and character of the various powers conferred, as the object and purpose of the Legislature in conferring them. If granted for public purposes, exclusively, they belong to the corporate body in its public or municipal character. But if for purposes of private advantage, though the public may derive a common benefit therefrom, the corporation, quoad, hoc, is to be regarded as a private company.”

In the case of Martin v. Mayor of Brooklyn, 1 Hill, 550, the court say : “ It is impossible to maintain that a village corporation is liable for a wrong committed by its officers. It is a political body, bound, I admit, and liable to an action when incurring a debt, through its corporate officers, acting within the line of their duty ; but not for either a nonfeasance or misfeasance committed by independent corporate officers.”

The inquiry which is next presented is, whether the powers under which the officers of the municipality acted, were conferred for public purposes ? If so, it follows that the city is not liable for the acts of their officers, even though illegal, or of such a character as to subject the officers themselves to liability.

The Act of 1805, incorporating the city of New Orleans, provides for the appointment of a Mayor, Recorder and Aldermen, and such subordinate officers “for preserving the peace and well ordering the affairs of the city, as the council shall direct. Through all the changes of city government, this power has been continued, and the conclusion therefore, that these powers are governmental, is strengthened by the fact, that the Constitutions of 1845 and 1852, both provide that “ the citizens of the city of New Orleans, shall have the right of appointing the several public officers necessary for the administration of the police of said city, pursuant to the modes of election which shall he provided by the Legislature; and the Legislature may vest in them such criminal jurisdiction as may be necessary for the punishment of minor crimes and offences, and as the police and good order of the city may require.” Art. 128. So that the right of regulating the police of the city of New Orleans does not rest alone upon legislative permission, but is authorized by the Constitution itself.

Under these sanctions, watchmen are appointed as a necessary branch of the police of the city. Their duties are the preservation of public order and tranquility, and the city in appointing them, exercised a governmental function, conferred upon it, in its public or municipal character, for public purposes, exclusively, and is not therefore liable for the acts of its officers.

It is therefore ordered and adjudged, that the judgment of the District Court be annulled and reversed, and that there be judgment in favor of the defendants ; the costs of both courts to be paid by plaintiff and appellee.

Slidell, C. J.

I concur in the conclusion, that the municipal government is not liable in this case.

Voorhies, J.

I concur in the opinion of Mr. Justice Campbell.


author: Buchanan, J.

text:
    J. Vincent v. R. W. Sharp.
    A personal action for damages for a tort, does not expire with the person who instituted the action. C. P. 1, 21, 22, 118, 120, 90T. O. C. 86T, 1994, 22T1, 2294.
    APPEAL from the District Court of the Parish of Jefferson, Oltwlce, J.

      Purvis & Pugué, for plaintiff. J. J. Michel, for defendant and appellant.
   Buchanan, J.

The verdict of the jury in this case, condemned the defendant to pay one hundred dollars damages for an assault and battery upon the plaintiff. The defendant has appealed, and the plaintiff’s counsel prays that the damages be increased. Two witnesses prove the assault and battery, and their evidence is entirely uncontradicted. The defendant was a young and vigorous man; the plaintiff old and feeble.

Since the appeal, the plaintiff has died ; and the curator of his estate has been made party.

It is insisted, by the counsel of appellant, that a personal action for damages for a tort, expires with the person who instituted it. We are not aware of any such rule in our jurisprudence. See Code of Practice, Articles 1, 21, 22, 113, 120. Also Civil Code, Articles 86T, 1994, 2271, 2294.

We think this a proper case for the application of Article 907 of the Code of Practice, under the prayer of appellee, for an increase of damages.

It is therefore decreed, that the judgment be affirmed, with ton dollars damages, as for a frivolous appeal, and costs in both courts.


author:
Campbell, J.
      S. Briggs,

text:
    A. & J. Dennistoun v. John Rist et al.
    X'lain tiffs sued on a promissory note; and on motion of their counsel, it was ordered “that judgment be rendered against plaintiffs as in case of nonsuit.” Held: that this was a voluntary discontinuance of plaintiffs’ suit under Article 8485 of the Civil Code, and therefore the interruption of prescription from having instituted the suit, shall be considered as never having happened, although it appeared probable from the record that the discontinuance was made with the view of reviving the suit under more favorable auspices.
    C. C. 8484, 8485.
    APPEAL from the District Court of East Feliciana, Sterling, J.

      John Mo Vea & W. D. Winter, for plaintiíf:
    We submit that a judgment of nonsuit, even when voluntarily taken, is neither a discontinuance nor an abandonment. A discontinuance is a matter entirely within the discretion of tha party. O. P. 491, 492. The court can have no control over it. 3 L. R. 282. 6 Rob. 354. 14 L. R. 280. 1 Rob.
    393. 17 L. R. 310. The whole range of authorities go to show that the discontinuance is a matter entirely within the discretion of the party, and with which the court can have nothing to do. A motion for a nonsuit, on the contrary, is addressed entirely to the court, and derives the whole of its validity from the action of the court.
    If the court concur with a party on a motion for a nonsuit, a judgment of nonsuit is rendered; if the court do not concur with the party, he cannot go out of Court on such a motion, however willing he may be to do so. It is not so with a discontinuance. Hence, we conclude that a nonsuit is altogether distinct from a discontinuance, the one being simply the act of the party, -the other the act of the court after hearing the case, or upon an examination of the pleadings. Nor does it invalidate the argument to insist that a judgment of nonsqit, voluntarily rendered, is equivalent to a discontinuance, as contemplated by Article 3485. A judgment of nonsuit voluntarily taken, is only a judgment of nonsuit rendered by the court, ivith the consent of the party, to enable him to renew his action in another form, on different allegations, or after he shall have supplied himself with additional means of proof.
    This certainly is no abandonment or discontinuance of his demand within the meaning of Article 3485. If the suit had been brought before a court of incompetent jurisdiction, such a suit, according to Article 3484, would interrupt proscription, because it plainly showed an intention on the part of the plaintiff to pursue his demand, and not to abandon it. Now, in what way did plaintiffs show any intention to abandon their demand ? Under the decisions of the old court, and until a late date, the peremptory exception filed by plaintiffs in the first suit was well taken. Plaintiff’s counsel viewing it in this light, (it matters not if he was in error,) in order to preserve the rights of his clients, and to enable him to provide himself with the means of establishing the claim and proving the demand at the elected domicil, the absence of which was alleged by defendants, asked the court to render a judgment of nonsuit instead of a judgment absolutely discharging the defendants. But says the defendant, this cannot avail you, because you then had in your possession the protest showing the demand. This fact does not appear in the record- — and if it did, how could it alter the case? It is apparent that the party had no intention to abandon his demand — and if proof of his intention were wanting, we have it in the fact that ho renewed his suit at the very next term of the court. Wo doubt if a judgment of nonsuit is ever rendered in any other manner than was the one before the court. The plaintiff, finding that an exception is well taken, or that his proof has failed, to avoid an absolute judgment against him, asks the court to make the judgment as of nonsuit, that he may begin again- — -and the court, to enable him to do this, and believing the justice of the case will thus be met, renders it in this form. It is by no means of unfrequent occurrence that a party plaintiff against whom an absolute judgment has been rendered, asks the Supreme Court on appeal to make the judgment-as of non-suit, and the court to meet the equities of the case, grants his prayer. Can it be contended that judgments taken in this manner on motion of the plaintiff do not interrupt prescription ?

      Muse & Merridlc, for defendant and appellant.
   Campbell, J.

(Voorhies, J., and Buchanan, J., absent.)

The appellants rely on their plea of prescription. The note sued on, matured in January, 1841. An action was brought in 1845, which terminated in November of that year, by a judgment in these words: “ On motion of Mb Vea, of counsel for plaintiffs, it is orderd,” etc., “ that judgment be rendered against the plaintiffs, as in case of nonsuit, with costs.”

The present suit was brought in March, 1846.

The question is, whether plaintiffs lost by their course at the trial of the previous action, the benefit of an interruption of prescription, which they would otherwise unquestionably have had.

The Article 3484, treats of the citation of the possessor, as a legal interruption. The benefit of the rule is extended to creditors, by Articles 351;6, 3517. It may he assumed then, that the case of the debtor as well as that of the pos • sessor is comprehended by the Article 3485, which says: “If the plaintiff after having made his demand, abandons or discontinues it, the interruption shall be considered as never having happened.”

The appellants insist that the judgment as in case of nonsuit, having been rendered on motion of plaintiff’s counsel, amounts to a voluntary abandonment or discontinuance of the demand, and therefore, no interruption of prescription has happened.

They have arrived at this conclusion, though with much hesitation,

Although the distinction between a voluntary and involuntary nonsuit, as it exists at common law, is not with us, established in direct terms; yet it may be fairly inferred and has been frequently recognized by the court; and we are unable to see any essential difference between a discontinuance as known in our practice and a voluntary nonsuit.

In the case of Dunn and others v. Kenney, 11 R. 249, prescription was relied upon. It was contended by the plaintiffs as in this case, that the prescription had been interrupted by a previous action. The record of the first suit contained the following entry: “ This cause came on to-day for trial before a jury, when the plaintiffs having offered no proof in support of their claim, it is adjudged and decreed that judgment of nonsuit be entered against plaintiffs, and that they pay costs of suit.” In commenting on this, Judge Bullard, says: “If the record had shown that a jury was empannelled, we might have inferred that the nonsuit was voluntary, because the defendant, in cases tried by a jury, has a right to a verdict, unless the plaintiff chose to suffer a nonsuit. But that does not appear in this case.”

In the case of Smith v. Gibbon, 6 Ann. 684, plaintiff having instituted suit to recover a tract of land, at the trial took a voluntary nonsuit, and subsequently renewed his suit. It was held by the court, Preston, pronouncing its opinion, that the first suit was voluntarily abandoned and did not interrupt prescription.

Although it is not impossible from the matters appearing on the record that plaintiffs fearing they were not able to make out their case, and that judgment would therefore be rendered in favor of defendants, applied for a nonsuit, not with the intention of abandoning their claim, but on the contrary, with the intention of renewing it under more favorable auspices, still, under the authority of the cases aboye cited, we are constrained to regard their act as a volun' tary discontinuance in the sense of Article 3485, of the Civil Code.

It is therefore adjudged and decreed, that the judgment of the District Court be reversed and annulled, and that there be judgment in favor of the defendants. The costs of both courts to be paid by plaintiifs and appellees.

S. Briggs,

for a rehearing:

We are induced to ask a rehearing in this case for two reasons, apart from our believing the court to be in error in the decision they have rendered: 1st. Because the court confesses it arrives at the conclusion with much hesitation: 2d. Because the reconsideration of the subject will entail but very little labor.

The question is of considerable importance as it affects practice, and likely to work much injury in the form in which it is at present solved, and we shall endeavor to show that the authorities are against this solution. Art. 3484 is but the transcript of Art. 2244 of the Code Napoleon, which says: “ Une citation en justice, un commandement ou une saisie, signiflés á celui qu’on veut empécher de prescrire, forment l’interruption civile; and Art. 2246, La citation en justice, donnée méme devant un juge incompetent, interrompt la prescription.” Art. 3485 is 2247 of the Code Napoleon, which says: “ Si l’assignation est nulle par défaut de forme, — Si le demandeur se desiste de sa de-mande, — S’il laisse périmer l’instance, — Ou si sa demande est rejetée, — L’interruption est regardée comme non avenue.”

The latter article in the French Code covers more ground than that in ours, but it contaius the provision to which our article is limited.

Before we examine the reason of these articles and exhibit the comments made thereon, we would respectfully state to the court our belief that it is in error in supposing a difference to exist between voluntary and involuntary non-suits at common law.

Tidd, vol. 2, p. 916, says: When the jury have agreed, they return to the bar; but before they give their verdict, it was formerly usual to call or demand the plaintiff, in order to answer the amercement, to which, by the old law, he was liable in case he failed in his suit; and it is now usual to call him whenever he is unable to make out his case, either by reason of his not adducing evidence in support of it, or evidence arising in the proper county ; and if it be clear that in point of law the action will not lie, the Judge at Nisi Prius will nonsuit the plaintiff, although the objection appear on the record, and might be taken advantage of by motion in arrest of judgment, or on a writ of error. But where the case turns on a question of fact, it ought to be submitted to the jury, unless the plaintiff’s counsel expressly assent to his being nonsuited, a mere tacit acquiescence not being, it seems, sufficient.

In Ohitty’s Practice, vol. 3, p. 910, it is said, “A nonsuit must always be voluntary, that is, by plaintiff’s counsel submitting to the same or not appearing ; and in no case can it be adverse or without implied consent. Dewer v. Purdy, 4 Nev. & Man. 633. If the plantiff’s counsel, after hearing the arguments and evidence on both sides, perceives the judge and jury are decided against the plaintiff, or he apprehends from the absence of material evidence that he will, on a future occasion, be able to establish a better case, he usually elects to be nonsuited, but if he have no such hope and there is any chance of obtaining a verdict or withdrawal of a juror to divide costs, he does not interfere.”

The only sense in which a nonsuit can be said to be given against the assent of the plaintiff, expressed or implied, is where by statute the court is empowered to terminate a cause at the instance of the defendant by rendering judgment ‘ as of nonsuit.’

The same writer, Ohitty, vol. 3, 784, says: The law has provided two modes on behalf of defendants to prevent a plaintiff from keeping actions suspended and untried for any indifinite time, viz: a motion for “ a judgment as in case of nonsuit” and a trial by proviso. The former, by Stat. Geo. 2, cap. 17, entitled: “ An Act to prevent inconveniences from delay of causes after issue joined, enacting:” that where any issue shall be joined in an action or suit at law, in the superior courts, and the plaintiff shall neglect to bring such issue on to be tried according to the course and practice of said courts, it shall be lawful for the Judge, on motion in open court, after “ notice, to give the like judgment for defendant or defendants, as in ease of nonsuit,” unless for cause further time is allowed, and if such judgment be given, defendant shall have his costs as in nonsuit.

We will now turn to the French Code, and its commentators. Troplong, § 595, in commentating on Art. 2247, with reference to the first clause, quoting the reasons for its adoption, says: “ Que lorsque les formalités exigées pour que le possesseur soit valablement assigné, n’ont pas été remplies, il n’y a pas réellement citation, et il ne peut résulter de l’exploit de signification aucun effet.”

In paragraph 599, he limits the force of the article to errors in the form of the citation, it does not extend to want of capacity in the party claimant.

With reference to the second, § 002: Le deuxiéme cas a lieu lorsque le de-mandeur se desiste de sa demande; la justice de cette disposition parle plus haut que tous les common taires. Il est manifesté que par son désistement, le demandeur reconnait lui-méme que sa prétention était mal fondée, et qu’il re-nonce á se prévaloir de son assignation et de sa demande.

The third we shall pass over, the doctrine being' entirely unknown to, our practice.

The fourth and last, § 610, is the rejection of thedemand. “En eflet, le jugement fait le titre du défendeur ou du possesseur. 11 rotrempe son droit, et une nouvelle prescription ne peut commencer que depuis qu’il est intervenu.

Mais le rejet dont parle l’Art. 2247, n’est pas un rejet provisoire, c’est un rejet définitif, faisant obstacle a ce que la méme demande se reproduise entre les mémes parties et ayant de tout point, la méme valeur que si le demandeur s’était desiste de sa demande.”

It seems to us clear from the preceding remarks that where prescription has been stayed by the service of citation, though before an incompetent tribunal or by an incompetent party, some act amounting to a relinquishment of his right — “ que sa prétension était mal fondée” — must bo shown to deprive him of benefit which would otherwise result from this conservatory act.

The causes which invalidate the demand once made under the jurisprudence of the Code Napoleon is : 1st. Defect of form, which, as we have seen, defeats the proceeding upon the ground that citation was never made, and therefore cannot operate. 2d. That he acknowledges his demand unfounded and therefore withdraws it, which is productive of the same effect. 3d. That the demand is judicially rejected by a definitive decree, which, as Troplong observes, settles the question by denying the right and giving title to the party cited. In the second case, the claimant is supposed to relinquish his right, or admits that he claims in error; in the latter, the court does so for him.

But where, as in the case at issue, the plaintiff makes no such admission, where it is patent to the debtor and to the court that the nonsuit is moved for, not only without such relinquishment, either tacit or express, but with a declared intention to pursue it, it seems going beyond the rationale of the whole doctrine to declare that the same results shall follow. He tells you, fearing that my debtor, from technical difficulties, may evade my claim, which is a just one, and obtain a verdict in his favor, I will consent to a judgment in the form of a nonsuit, that I may obtain such evidence or correct such omissions, and prosecute it without the risk of such a misadventure.

The following is the rationale given by Rogron, Art. 2244: “Le possesseur appelé a venir se défendre devant la justice, ne peut pas se dispenser sans étre de mauvaise foi, et sa possession de ce moment est interrompue civilement, 2446, devant un jugo incompétant: Dans ce cas le demandeur, il est vrai, s’est mépris sur le tribunal, mais il n’y en a pas moins assignation en justice, et cette assignation, valable dans la forme, ayant averti le possesseur qu’il était sans droit, l’a constituóe en mauvaise foi.”

His remarks on 2447 correspond with those of Troplong.

Now surely a suit commenced and prosecuted, but terminated by a decree of the court which is not a definitive judgment, but merely provisional in its nature, by which neither the rights of the plaintiff are concluded, nor ,the alleged obligation of the defendant discharged, as effectually makes him a debtor in bad faith, as a suit brought before an incompetent tribunal or by one not qualified to stand in judgment. The court dismisses the demand in all three of the supposed cases, and although in fact in the first, it does so on the motion of the plaintiffs’ counsel, that motion is coupled with reasons which effectually negative the presumption that the demand has been abandoned.

Recantation of the original charge — admission, tacit or express, that the defendant is in good faith, constitutes in all the cases cited in illustration by the French writers, the reason why a discontinuance either active or in the case of perimation tacit, should render inoperative the effect of citation when once effectually made, and we again repeat that it is impossible by any construction which can be given to a judgment of nonsuit, even where granted on the plaintiff's motion, to pretend that this admission has been made, or that we have done anything to negative our original allegation to the contrary.

There is a reason for every legal precept, if sufficient trouble be bestowed in tracing it to its source, and we think this a safer mode of construing statutes than by reference to lexicons. The one can hardly lead to error, the other is almost always sure to do so.

In the case of Smith v. Gibbon, C Ann. 684, the first suit was commenced four months from 18th November, 1844, or in March of the following year, but at the time plaintiff took a voluntary nonsuit, and commenced the suit in question on the 25th June, 1846, a year and three months after the judgment in the first, and the court says, “ It is to bo observed that the first suit does not interrupt prescription because it was voluntarily abandoned,” citing 8485— Code.

Rehearing refused.