text:
    State of Louisiana v. The District Judge of the Parish of Jefferson.
    The Supreme Court will not grant a mandamus, where it does not appear that the subject matter, with respect to the amount involved, falls within its jurisdiction.
    THIS was an application for a mandamus, to compel the district judge of the Third Judicial District, to grant an order for the sale of perishable goods, which had been attached. The petition for the mandamus did not state the value of the goods.
   By the court:

Slidell, J.

It does not appear that the subject matter with I'espect to the amount involved, falls wjthin the jurisdiction of this court. See Pligue v. Bellome, 2d Ann. 293. It is unnecessary, therefore, to say, whether the decision of the district judge presents a case for relief by mandamus.

Let the application be dismissed, at the costs of the appellant.


source: Caselaw Access Project

author: Eustis, C. J.

license: Public Domain

text:
    The United States v. John Kelty Smith and John Chandler Smith.
    Where the debtor is present and subject to the jurisdiction of the court, his creditor can not, simultaneously with an action for the recovery of bis debt, have a general sequestration of bis property, nor restrain him by injunction in the exercise of the rights of ownership.
    As a°general rule, the government of the United States, in its proceedings in its own courts, and in the courts of the State to which, in civil actions, it may resort, can only act through its offices and officers established by law.
    Where the district court dissolved an injunction because it was obtained by one not competent to represent the plaintiff, the subsequent appearance of one duly authorized, and his prosecution of the case to the appellate court, can have no retroactive effect-
    APPEAL from the First District Court of New Orleans, Larue, S.

      L. Hun-ton, District Attorney of the United States, Miles Taylor and Thomas J. Semmes, for plaintiff.

      Mr. Semmes contended:
    That the Solicitor of the Treasury, by direction of the Secretary of the Treasury, empowered Mr. Mechlin, as special agent of the government, to institute this suit, and that the act of the Secretary of the Treasury is, in point of law, the act of the President of the United States. 1 Peters 296. 12 Peters 524. 1 R. R. 427. The question then presented for solution is, has the President of the United States the lawful power to appoint an agent, other than the regularly commissioned United States Attorney, to institute a suit and represent the government pro hoc vici.

    The United States is a body politic as well as a sovereign. The capacity to contract and enforce the performance of contracts, is incident to the government as a body politic, and not as a sovereign. Cotton v. United States, 11 How. 230. 10 Peters 343. 5 Peters 115. As a body politic it must, of necessity, act through the instrumentality of agents. The act of contracting or of suing not being the exercise of a sovereign power, the power to sue or contract exists independently of the Constitution of the United States, except in so far as the adoption of the Constitution was necessary to bring into existence a corporate entity. Hence the power to sue or contract, is not expressly granted to the government by the Constitution. It is evident, therefore, that the government could contractand sue anterior to, and independently of legislation on the subject, and ex necessitate appoint agents for the purpose. The Constitution declares that the President “ shall take care that the laws be faithfully executed.” This clause, it is submitted, vests the power in the Executive to appoint agents for the purpose of enforcing the laws. This power, therefore, is vested in the President independently of legislation, and legislation cannot divest him of it. The propriety of the exercise of the power is one thing; the existence of the power is another. Now let us suppose Congress had passed no law creating the office of United States Attorney, would not the President have been authorized, nay obliged, to have made contracts with various attorneys, in various sections of the country, to prosecute the claims of the government ? In the supposed state of things, the government would be under the necessity of making a contract with some attorney for each particular case. To remedy this inconvenience, Congress passed the Act of 1789, creating the office of district attorney, and making it the duty of the district attorney to prosecute suits of the government. Before this act was passed, it was a mere voluntary matter, a matter of agreement between the government and any attorney who might be selected, whether the attorney thus selected would or would not undertake a suit for the government. The object of the act was to provide an officer, upon whom the President could at all times call, who would be bound to obey, and whose compensation would be fixed ; thus saving the trouble, delay and expense of making numerous contracts for the conduct of each particular suit. While such an officer exists, and is paid to institute suits, the President would rarely exercise the constitutional power he possesses, because there would be rarely an occasion f01. ¡fcí an¿[) jf unnecessarily exercised, Congress would refuse to appropriate money to pay the expense; and hence the money power is the check upon the President so as to prevent abuses. That this is the true view of the subject, is illustrated by supposing that the Act of 1789, creating the office of district attorney, were repealed, would the government be defenceless ? A gain, suppose the present district attorney for Louisiana were dead, or ill, or temporarily absent, and instant action were necessary to enforce a right or protect the property of the government, would the President be obliged to wait until a new commission could be sent out from Washington? The Act of ’89 is not exclusive in its terms, and was not designed to be so. If the Act of ’89 were prohibitory, the Attorney General of the United States could not appear for the government in the Circuit Court, because the same section makes it his duty merely to appear in the Supreme Court at Washington.
    Again, though the President might not have the power to appoint an attorney at law, it is no part of the duty of the United States Attorney to make affidavits, and the President could appoint an agent for that purpose. If so, the mere filing of the petition, with the affidavit of the agent, would be sufficient to maintain the injunction.
    Again, by virtue of the Act of 1820, Statutes at large, vol. 3, p. 592, creating the office of agent of the treasury, and of the Act of 1830, vol. 4, p. 414, transferring the duties of the agent of the treasury to the solicitor, the Solicitor of the Treasury has the power to direct and superintend all suits in the name and for the use of the United States. This suit being then directed by him, is authorized by law. If the solicitor has the power to direct a suit, if necessary, he may employ persons to institute it. The propriety of the exercise of the power by him, or the President, cannot be judicially inquired into. Hence there is no strength in the objection, that oppression would result from the employment of irresponsible agents. The oppression, if any, results from the suit, not the employment of an agent to prosecute it, and the suit here is ordered by the officer appointed by law to direct its institution. The district attorney would be bound to obey the solicitor. See Act of 1830. So that the act of oppression, the suit, would be the same whether the instrument were the district attorney or an agent.
    2d. No security is necessary for the purpose of obtaining an injunction when the government is a party. Williams v. Chew, 6 N. S 465. The object of security is to prevent oppression; the government is always presumed to act with justice and clemency. 3d. The facts stated in the petition authorize an injunction. C. P. art. 303. 8 L. R. 104. Art. 3150 C. C. Art. 1964 C. C. Art. 1965 C. C. 9 Wheaton 738. 5 N. S. 501. 8 N. S. 686. 4th Ann. 175. 12 R. R. 25, and particularly 16 L. R. 106. 4th. The judge below ought not to have condemned the United States to pay costs. The United States never pay costs. 6 N. S. 465. There ought not to be a judgment against the sovereign, because it cannot be enforced except by his permission. The injunction, if wrongfully issued, ought merely to have been dissolved.

      Roselius, Josephs and Grymes, for defendants:
    The article 298 of the Code of Practice enumerates all the cases in which injunctions may issue against the defendants in a cause. From No. 1 to 8 of that article, all the cases in which injunctions may issue against the defendant are clearly stated.
    The first seven numbers have no direct application to this case, but they show the general spirit and intention of the law to confine the remedy within reasonable and just bounds. It allows it to restrain the personal acts of the defendant in relation to property and rights easily located or described, in vñnch&primd facie case can be made out with clearness and precision, and when the circumstances of the case will show, at least, a proximate standard by which the judge can estimate the probable damage to the defendant by granting the writ, and enable him to take security accordingly.
    No. 8 of this article is the only one directly applicable. It declares that when the ownership of an estate real or personal is in dispute, &c.
    Ownership, as used in this article, means title or right in the estate, real or personal. The French text of the code is equally clear: “lorsqu’il a contestation sur lapropriété d’une chose mobiliére au immobiliére,” when there is a contestation as to the property in or title to a thing. The true meaning and spirit of tliis number is as obvious as that of the others. It confines the writ to cases where the title is in dispute, where some right growing out of an estate or thing is claimed, a chose or thing which may be described, and which may be distinguished from other things, and cannot by possibility be extended to all the money, all the promissory notes and bills, and all the stocks that a defendant may have in his possession, either in his own right or belonging to others, without specification, description, enumeration or amount.
    Injunctions against third persons not parties to the suit, are regulated by the articles 300, 301 and 302 of the Code. The first two of these articles provide for specific cases that can have no relation to this matter. The article 302 provides for eases of deposit or mere possession where a third person claims the ownership of the property by a suit; such third person may obtain an injunction, &c.
    This article is in perfect harmony with No. 8 of article 298, and is clearly only applicable to cases where title, or possession, or some right growing out of title is in dispute.
    But, it is said, that if this case be not within any of the provisions of the articles of the Code before cited, that it is within the discretion of the court, under the general provisions of the nrticle 303 of the Code. We think it is clearly not so. This article is in the same spirit, lays down the same broad line of limitation, and is in perfect harmony with all the other articles quoted. It uses the same language: it says that, “ besides the cases above enumerated, injunctions may issue when it is necessary to preserve the property in dispute during the pendency of the action; and as clearly limits the discretion of the court to cases where property, or the title to property, is in dispute, as any of the preceding articles, property that may be described, its value ascertained, and its nature defined; and that no warrant can be found in that article for an injunction where no title, no right of possession, and no right or interest in the property itself is set up by the plaintiff, and no description by count, weight, measurement, or amount is or can be stated : but a general writ, embracing all the fortune, money or property of a defendant issued upon such showing as is made in the plaintifif’s petition. We, therefore, conclude that the injunction in this case is not warranted by a just interpretation of the law of Louisiana.
    In the great case of Livings’on and the Steamboat Company, which involved the statutory privilege granted to Livingston and Fulton of the exclusive navigation of the waters of New York by steam, the complainant asked an injunction to protect his vested right, under the statute of New York.
    The law was laid down in the able and learned opinion of Chief Justice Savage to be, that injunctions are always granted to secure the enjoyment of statute privileges of which the party was in the actual possession, unless the right be doubtful; and the injunction was refused, because the constitutionality of the law was doubtful. Steamboat Company v. Livingston, 3 Cowen, 755.
    In the case of Hart v. The Mayor, &c., of Albany, the same doctrine is laid down by Chancellor Walworth. 3 Paige, 214.
    In the case of Wiggins et al. v. Armstrong et al., Chancellor Kent dissolved an injunction, because the plaintiff was not a judgment creditor. 2 John. Ch’y. Rep. 145.
    The following cases are also in point: Corporation of New York v. Mapes, 6 John. Ch’y Rep. 49. Ogden et al. v. Kip, 6 John. Ch’y Rep. 160. Reid v. Gifford, lb. 19. Laasing v. North River Steamboat Company, 7th John. Ch’y Rep. 164. Storm v. Mann, 4th John. Ch’y Rep. 21. Amelung et al. v..Seecamp, 9th Gill & John. 474. Union Bank v. Poultney et al., 8th Gill & John. 332. Maryland Savings Institution v. Schroeder, Lb. 106.
    The plaintiffs do not set up any right or title to the property. They do not pretend to be in any way creditors of John Chandler Smith. They acknowledge and charge that he is in possession and claims as his own, the large mass of property on which the injunction is to operate. The sole ground shown for the writ is, the fraud charged, that he is covering the property of the other defendant.
    Fraud is never presumed,-it must be proved. No fact is set forth or shown from which the truth of the charge can be inferred, or even rendered probable, until proved. It is, to say the least of it, uncertain; and while uncertain, a court of equity will not grant an injunction.
    The United States are a great political corporation, invisible, and acting only through such agents as are designated by the Constitution or by acts of Congress made in pursuance of the Constitution. Under the description in the petition, the United States can be informed of nothing and can have no belief. Therefore the affidavit verifies nothing.
    in(jictrQerit could be maintained on it, because, in such a prosecution, the proofs necessary to maintain it must come from the side of the prosecutor, the crime must be clearly proved ; and how could the fact, that some officer of the government was informed and did believe in the existence of some of the facts set forth in the petition, be negatived by the prosecution.
    We therefore conclude that the affidavit is totally insufficient to sustain the writ.
    The defendants submit another point for the decision of the court.
    They take it for granted that every defendant has a right, when sued by an agent, to call for the authority of that agent, and that he is bound to show a lawful and competent authority, or have his proceedings dismissed. Shewell v. Stone, 12 M. E. 388.
    The laws of the United States have provided by whom and in what manner suits in their name shall be instituted and prosecuted. See Act of 1789, sec. 35, 1st Statutes at large, 92.
    This suit was instituted and prosecuted by persons holding no office under the government, and having no apparent right to act on behalf of the government, or to use its name. This want of authority was assigned as one cause for the dissolution of the injunction. The agentor sub-agent who makes the affidavit, and who also signs the petition as counsel, then produced a letter from the Solicitor of the Treasury to one Mechlin, of the city of Washington, appointing him special agent to collect the debt sued for from one of the defendants, John K. Smith, and a sub-delegation from Mechlinto the gentleman who brings the suit; both letters are in the record and will speak for themselves.
    We respectfully contend that this is no sufficient authority to sue in the name or on behalf of the Government.
    That no judgment pronounced in this suit would be res judicata, or protect the defendants against the further pursuit of the plaintiffs through a legitimate and lawful channel. The Solicitor of the Treasury has, by law, no power to make such an appointment. The act of Congress creating the office does not give any such power, and any such appointment is void. See Act of 1830, 4th Statutes at large, 414.
    It is true that the district attorney has since appeared in the cause. But it was long after the judgment dissolving the injunction, and, we submit, that the correctness of that judgment should be tested by the state of things which existed at the time it was rendered.
   By the court:

Eustis, C. J.

This appeal was taken by the district attorney of the United States in behalf of the plaintiffs, from a decree of the Court of the First District of New Orleans, dissolving an injunction which had been issued at their instance. The reason given by the district judge for dissolving the injunction was, that Mr. Semmes, who made the affidavit on which the injunction was granted, as agent of the Government of the United States, and by whose agency the suit in which the injunction issued was instituted, had no right to appear to make the affidavit as agent for the Government of the United States, and that all his acts done in that character were null and void.

The district attorney of the United States has appeared in this court, and, aided by counsel, has asked the reversal of this decree and the maintenance of the injunction. The argument at law has not been confined to the point decided by the district judge, as to the want of authority on the part of Mr. Semmes, but has been extended to the subjects presented by the record.

It appears that on the second Monday of April 1822, John Kelty Smith appeared in the Circuit Court of the District of Columbia, and confessed judgment in favor of the United States for the sum of five hundred thousand dollars and costs. On the entry of the judgment, on the fourth of May following, it was provided that the same should be released, on the payment of the sum of $280,560 61, with interest from the 21st of September, 1821, and costs of suit.

The petition charges the indebtedness under this judgment, and that a suit was instituted, simultaneously with the present suit, against said John Kelty Smith, for the recovery of the amount. The petition alleges, that the amount of the judgment was the balance due the United States on account of monies deposited with the said John Kelty Smith, as navy agent of the United States at New Orleans, and not accounted for by him; that, since the date of the judgment, the said Smith has done no business and held no property in his own name, but that his business has been done and his property held in the name of others; that, ■for the last fifteen years, the said Smith has been, and continues to be, engaged in the business of banking and brokerage, in the city of New Orleans. The substance of the charges of the petition, divested of. all unnecessary prolixity is, that this business is done under cover of the name of the son of said Smith, John Chandler Smith, who does not reside in New Orleans, but in the city of Baltimore, in whose name all the property stands, and the business is exclusively conducted; that John Kelty Smith transacts, himself, all the business, in the name of the son, under a power of attorney from him, which is a mere fraud for the purpose of concealing the real party in interest; that a large capital, really belonging to John Kelty Smith, is thus secretly employed for the purpose of screening the same from his creditors, the plaintiffs ; that this capital consists of monej' deposited in banks, bills, notes, stocks, and is kept in a form immediately convertible, and that the said John Kelly Smith has no other property, and that this is quite sufficient to pay the plaintiffs’ debt; that John Chandler Smith, by being a party to these frauds and simulations, with the design and intent to defraud the plaintiffs, has become personally liable to them, in the amount of the effects thus standing in his name.

The plaintiffs then represent, that there is just reason to believe that the parties defendant will dispose of the effects thus held, for the purpose of defrauding the plaintiffs, and they ask for process of sequestration and injunction, for the purpose of preventing any disposal of them during the pendency of this suit. The petition concludes with a prayer for judgment, according to its allegations, and for general relief. Injunctions were issued, prohibiting the officers of the several corporate banks of this city in which the parties did business, from disposing of, or transferring, during the pendency of this suit, any of their capital stock, or any money, bills, notes or securities, deposited with them in the name of John Chandler Smith. The process granted on the petition of the plaintiffs, amounted, in fact, to a general sequestration of the whole capital and effects employed by John Chandler Smith, in his business as a banker and broker in the city of New Orleans.

The petition is signed by Mr. Semmes and another gentleman of the bar, as attorneys for the plaintiffs ; the affidavit annexed to the petition, is made by Mr. Semmes, who attests that he is the duly appointed agent and attorney of the United States of America in this behalf.

The question was put to the counsel who argued this case for the plaintiffs, whether, conceding every thing which is alleged in the petition to be true, and the affidavit to be direct and sufficient as attesting its allegations, (which is far from being our impression) a proper case is made out for the issuing of the writs of injunction as prayed for. No precedent, no authority has been adduced in support of these proceedings, nor has even an attempt been made at the bar, within the knowledge or recollection of any of us, to institute them; nor is there any statute under which they are even indirectly sustained. Proceedings against an absconding debtor, for a general sequestration of his effects, at the instance and under the affidavit ef three of his creditors, are authorized by statute. We have, also, a remedy against the property of absentees under a foreign attachment process. But where the debtor is present and subject to the process of the court, there is no warrant in the law, that we ever heard of, for taking from his possession and control his property in limine litis, at the instance of a plaintiff who sues him for the recovery of a debt, and for the purpose of subjecting the property to the satisfaction of the judgment which the creditor seoks to obtain. Supposing, therefore, that this property belongs, in fact, to John Kelty Smith, and is in his possession, where is the power given to the creditor, under any process of the court, to disturb him in his peaceable possession of it, and to arrest, at once, without notice and without a hearing, the business by which his livelihood is obtained ? The plaintiffs, had they a judgment, might have the remedy of judgment creditors against the property of their debtor; but they have no judgment, in a legal sense, against John Kelty Smith, and they have, accordingly, instituted their suit to obtain one. The judgment they sue upon is a judgment rendered by a court, under the system of the common law, in the District of Columbia. Under that system, after the lapse of a year and a day, if no execution be taken out, the courts conclude primó facie that the judgment is satisfied and extinct, and no execution can after-wards issue on it, unless the judgment be revived by process of sdrt facias under the statute ; or the plaintiff may have his action of debt on the dormant judgment, which was the only mode of revival known to the common law. 3d Blackstone’s Com. 422. Indeed, this question, by being stated, answers itself. What would be thought of a plaintiff who should begin his suit on a promissory note against his debtor, by a general sequestration of the debtor’s property ? Such a proceeding is repugnant to all our ideas of the rights and remedies of litigants under our laws.

Another point made by the defence, which has been very tully argued at bar, and upon which the district judge decided is, whether there was any sufficient authority to institute and prosecute this suit in the name and in the behalf of the United States.

Had the suit continued to be prosecuted under the original authority only by which it was commenced, and had the court come to the conclusion that the authority was not sufficient, the suit might have been dismissed without comment for want of a party plaintiff, and the United States could not be considered as having been in court. But the district attorney of the United States has taken this appeal in the name of the United States. The United States is before the court, therefore, as the party appellant.

It appears that the suit was instituted by Mr. Semites, as the agent of the government, under the authority contained in a letter from Mr. A. H. Mechlin, of Washington City. Mr. Mechlin derives his authority from the Solicitor of the Treasury who states, in his letter to Mr. Mechlin, that he, Mechlin, having proposed to collect the judgment against Smith, and the proposition having been referred to the Secretary of the Treasury, that officer directed the solicitor to employ him as special agent, to collect the judgment, on the terms mentioned in a letter from the solicitor to the secretary; he, therefore, in the furtherance of this object, authorizes Mechlin to appoint, on behalf of the United States, an agent to collect the judgment, and to institute all proceedings necessary thereto,, in the name of the United States, &c. Thus the solicitor appoints Mechlin to collect this debt, with authority to appoint a sub-agent, and Mechlin appoints Semmes.

The present suit was instituted in the Court of the First District of New Orleans, on the 11th of December, 1851. A motion was made to dissolve the injunction on the 15th, and was decided on the 23d of that month in favor of the defendants. An application was made for a, new trial, which was argued on the 17th of January following. The application failed, and the judgment dissolving the injunction was signed on that day. Up to the date of the 17th of January, the proceedings were conducted solely under the authority of Mr. Semmes, and without the intervention of the district attorney. On that day he entered an appearance and is of record one of the counsel on the argument for a new trial; and on his motion the appeal was taken to this court.

The district judge thought the authority ofMr. Semmes insufficient to enable him to institute the proceedings in behalf of the United States. This is not the first time that the officers of the government of the United States have brought the United States into the courts of this State, for the purpose of making use of legal process in the collection of debts due the United States. The United States v. Bank United States. 11 R. R. 418. They claim the right to the most stringent process against property, without giving the security which the law exacts from ordinary litigants. ' It would seem to be but just that, in cases of this kind, the interests of the United States should be entrusted to a responsible public officer; and we think we are doing no more than our duty in commenting on the proceedings before us, as they are attempted to be sustained by the law officer of the United States.

Our impression is that, as a general rule, the Government of the United States, in its proceedings in its own courts and of the courts of the State to which in civil actions it may resort, can only act through its offices and officers established by law. The delegation of power to institute suits, by an executive officer, to an individual having no official character or responsibility; the sub-delegation of-the same power, without any warrant of law for either, seems to be in conflict with the theory of our institutions, as we have understood them. We have not found any authority in the laws of the United States for the appointment of a private person to institute suits in the name of the United States, to bring them into State courts at his discretion, and thereby subject their great interests to ultimate adjudication. 1 Statutes at large 92 § 35. 3d lb. 592. 4th lb. 414. In each district of the United States there is a district attorney, whose duty, as established by law, is to prosecute all civil actions in which the United States shall be concerned. The Solicitor of the Treasury is to direct and superintend the suits of the United States. Instead of the action of the government through its constituted organs, instead of the direction of the solicitor to the district attorney, we have his appointment of a private individual, who again appoints a substitute, to do that which the law assigns as a duty to its responsible officers, under the sanction of their oath.

But the district attorney appeared, in this case, under instructions from the Treasury Department. We do not think his appearance has, as to the matters before us, any retroactive effect. After his appearance the United States may be bound by his acts, but we cannot consider it as giving any validity to the judicial proceedings upon which a decree had passed previous to his appearance.

His appearance, and avouching in the. name of the United States what has been done in this suit, imposes on us the necessity of noticing the subject, lest it should be supposed there is a I'ecognition, on the part of this court, of the doctrine maintained at bar in behalf of the government. We do not assent to it. We decide nothing on this point, because there is no necessity for it, and we do not wish to embarrass the asserted prerogative of the Executive of the United States when the determination of a suit does not require it.

We live under established institutions, and under a government of laws. We consider the law officers of the United States as magistrates, standing, in the performance of their duties, between the government and the citizen. It is as much their duty to respect and save the rights of the citizen, in their official functions, as it is to collect the dues of the government. The law recognizes no other action on the part of its ministers, and the citizen has a right to appeal to, and have the benefit of their judgment and of their conscience, in all cases in which the power of the government is brought to bear upon him.

There may be cases not foreseen or provided for by law, and we do not undertake to assert the contrary, in which the President of the United States, under his constitutional power to take care that the laws of the United States be faithfully executed, may direct the institution of suits, by appointing persons for that purpose other than the public functionaries, but the present case presents no single feature of emergency or necessity, nor is it in that respect distinguishabe from an ordinary suit against a debtor inhabiting the same city with the responsible law officer of the government.

It is considered by the court, that a creditor, before judgment, is without right to obtain an injunction on the case and for the purposes stated in the petition ; and that, therefore, the judgment of the district court, dissolving the injunctions, be affirmed.


author: Preston, J.

text:
    Union Towboat Company v. Louis Bordelon, Auditor, &c.
    The act of the Legislature of the 3d of March, 1847, investing* the tax collector with the authority to seize and sell the property of a defaulting tax debtor, to satisfy his tax, is not in violation of that article of the Constitution of the United States, which provides, that no person shall be deprived of life, liberty or property, without due process of law; for the act itself points out, precisely, that very process of law by which the defaulting tax debtor may be deprived of his property.
    Nor does that act, from the fact that the tax collector is empowered to seize and sell the property of a defaulting tax debtor to pay his tax, without the aid or intervention of the judiciary, violate the Constitution of the State. TTor, by the Court: it is true, as contended, that the functions of our departments of government are kept distinct, and the executive cannot divest judicial process. Butthe assessment of taxable property and the collection of taxes, are legal proceedings or process, but not judicial proceedings or process. If these proceedings take place illegally, as supposed in the present case, then the functions of the judiciary may be invoked, but not otherwise.
    The tax leviedon a steam towboat belonging to a company, the object of which is M towing vessels by steam in and out to sea and up and down the river Mississippi, and carrying freight and passengers in like manner; also wrecking or lightening vessels in said river or sea, and carrying freight and passengers in the Gulf of Mexico, and elsewhere at sea,” is notin contravention oí Article 1st, section 8, of the Constitution of the United States, which gives Congress powerto regulate commerce with foreign nations, and among the several States.
    The exigencies of government require that the process for the collection of taxes, should be summary. They are to be regarded notas a debt, tobe enforced against the debtor who contracted it, by judicial proceedings, but a contribution required from the citizen for the support of government, and for the protection andbenefitofall.

      APPEAL from the Second District Court of New Orleans, Lea, J.

      Hun-ton and Bradford, and Benjamin aviMicou, for the plaintiff:
    The 1st and 2d articles of the Constitution of the State of Louisiana, provide that “ the powers of the government shall be divided into three distinct departments, and each of them be confided to a separate body of magistracy “and that no one of these departments, nor any person holding office in one of them, shall exercise powers properly belonging to either of the others, except in instances expressly directed or permitted.
    The only articles of the Constitution, which refer to the levying of taxes, are the 32d article, which declares, that “ all bills for raising revenue, shall originate in the House of Representatives, &c.;” and the 127th article, which provides, that “ taxation shall be equal and uniform throughout the State, &c.”
    It thus appears, that the separation of the different departments of the government, by our Constitution, is express and positive ; and is accompanied by an inhibition, upon each department, for the exercise of any powers, properly belonging to the others; and that, while the power to levy taxes is recognized as appertaining to the legislative department, the Legislature is left to provide for their collection, under the restrictions which result from the division of the powers of the government among the different departments.
    It thus becomes an important question, to demand to which department of the government it properly belongs, to authorize and enforce the compulsory collection of taxes. . '
    It is certainly competent for the Legislature to provide for the mode in which taxes shall be assessed. When the assessment has thus been made, it may be considered as sufficient rimd facie evidence, at least, of a debt to the State, from the citizen on whom the tax is imposed. But if the citizen neglects or refuses to discharge this debt, how is the payment of it to be enforced ? In what respect does a debt to the State differ from a debt to an individual, as regards the process for its collection? It is- said, by the judge of the court below, that “ there is nothing in the Constitution which prescribes the particular process of law, by which persons may be divested of their propertybut certainly it must be by some “process of law,” in virtue of a competent authority. If a collector of taxes can be authorized to proceed, by a summary seizure, for the recovery of a debt to the State, it is not'easy to see why an individual may not be authorized to proceed in the same way. It belongs essentially to the judicial power of the government, to grant the proper remedy and aid to the State, as well to individuals, for the enforcement of the legal claims ; and any statute which authorizes a mere ministerial officer, to proceed directly to the seizure of the property of the citizen, is believed to be an infringement of the powers of the judiciary.
    If it be conceded, that the Legislature has the unquestionable power to prescribe in what mode taxes shall be assessed, and to erect the taxes so assessed into a privileged claim upon the property charged with them, yet it would seem to be the peculiar province of the judiciary, to authorize and direct the sale of the property for their payment. To grant such authority, is essentially an act of a judicial character. It was so held under a Constitution, having similar provisions with our own, in a case in 10 Yerger’s Reports, 59. The power, then, to grant such authority, must vest in the judiciary, and can be vested no where else. It must be exercised by the judiciary, and cannot be exercised by any other class of magistracy. Any act of the Legislature, therefore, which assumes to grant such authority directly to a collector of taxes, is clearly in contravention of the 1st and 2d articles of the Constitution of this State.
    It may be further observed, that the section 5lh of the revenue act of 1847, imposes a fine, in certain cases, on any person or corporation who shall be indebted to the State for any tax, license or commission, and who shall have refused or neglected to pay the same, after final judgment has been rendered therefor: It seems, then, that in the case of a tax upon any trade or profession, the amount of the tax is considered as a debt, and that it can only be recovered after final judgment. But in what does a tax on a trade or profession differ from a tax on property, as to the nature of the liability they created, or as to the proper and constitutional method of enforcing its discharge ? If a final judgment is necessary in the one case, why is it not equally necessary in the other ?
    It will be found, that the modes of enforcing the collection of taxes in the different States, vary as widely as the Constitutions of those States; and it is impossible to reason from the method pursued in one State, to the method purgue¿[ another, unless the Constitutions and laws of those States are first ascertained to be similar. There is nothing in the Constitution of the United States, to restrain the Legislatures of the several States from the exercise of judicial powers ; and where no such restrictions are found in the Constitution of the particular State, the Legislature itself may well exercise such powers or it may delegate them to such magistrates as it may deem proper. It is only in the States that have specially provided for a careful distribution of powers among the different branches of the government, that the question can arise.
    The only remaining question in this case, arises upon the proper construction of the 1st article of the 8th section of the Constitution of the United States.
    By that article, Congress is invested with the power “ to regulate commerce with foreign nations, and among the several States.” It is well settled, that the power to regulate commerce, includes the power to regulate navigation and intercourse; and that this power is exclusive. Under this power, Congress has passed laws for the enrollment and licensing of vessels, when so enrolled and licensed, all vessels are entitled to engage in the commerce among the several States, without restraints or impediments from State legislation. But if the several States have the power to levy taxes on vessels so engaged, they may easily defeat the rights acquired under the sanction of Congress. All right of taxation, is in its nature unlimited, and an unlimited right to tax, is a power to destroy. 4 Wheaton, 484. 9 Wheaton, 562. 12 Wheaton, 419. 7 Howard, 283.
    It is believed that these decisions, and the cases referred to in these decisions, go far to sustain this position, if not decisive of it. But it is proper to refer the court to a decision, upon this subject, in 3 Hill 14, Howell v. State of Maryland.

      Isaac Johnson, Attorney General, for the State.
   By the court:

Preston, J.

The State claims from the Union Towboat Company, a tax amounting to $392 66, on the capital stock of the company, and in default of payment, the tax collector of the district in which the capital of the company was assessed, seized, and was about to sell, one of the boats of the company to satisfy the demand of the State.

He has been enjoined on several grounds, two of which, alone, have been relied upon in this court, and have been discussed by the counsel of the plaintiffs, and the attorney general.

It is contended, that the seizure of the property of the company, is in itself illegal, because it was not authorized by any judicial proceedings, and any act of the Legislature, authorizing the collector of taxes to make such seizure, without the aid or intervention of the judiciary of the State, is unconstitutional.

The 49th section of the act, approved the 3d of March, 1847, “ to provide a revenue for the State,” under which the tax was laid and about to be collected, expressly authorized the collector, if the tax was not paid by the tax payer, to seize and sell his property to satisfy the tax.

It is argued, that this legislation violates the 5th article of the amendments to the Constitution of the United States, which provides, that no person shall be deprived of life, liberty or property, without due process of law. It may be a question, whether the article is not limited in its application to criminal proceedings.

But conceding that it prevents the divestiture of private property in all cases, without due process of law, the section of the act of 1847 quoted, 'points out, precisely, .the process of law by which a defaulting tax payer may be deprived of his property in satisfaction of the taxes due by him. The exigencies of government require, that, the process for the collection of taxes should be summary. The taxes are not, as supposed in argument, a debt to be enforced against the debtor who contracted it, By judicial proceedings, but a contribution required from the citizen by the government, established for the protection of all, for its support, and without which contribution it could not be supported. Its speedy collection too, is generally indispensable to the'success of the government and prosperity of the people; and it is often laid in such small sums, that judicial proceedings to collect it would be absurd.

The tax collectors have been authorized by law, from the foundation of the government, to collect taxes in this summary manner. They have always sold property in the summary manner prescribed by such legislation, to enforce the collection of taxes. Their authority and their sales, have always been recognized as constitutional and legal by our judiciary, and every other department of the government and the whole people, without imagining that the Constitution of the United States was violated. Under the acts of Congress for laying and collecting direct taxes, to which the provision in the Constitution would certainly apply, if it applies to State laws, the collectors were directed to proceed by distress and sale of the property of the defaulting tax payer, and their process has been recognized and sanctioned by the Supreme Court of the United States. The objection to the process has been, for the first time as far as we know, seriously urged in this case, and to it we reply, communis error facit jus.

It is true, as contended, that the functions of our departments of government are kept distinct, and the executive cannot divest judicial process. But the assessment of taxable property, and the collection of taxes, are legal proceedings or process; but not judicial proceedings or process. If these proceedings take place illegally, as supposed in the present case, then the functions of the judiciary may be invoked, but not otherwise.

It is next contended, that the tax levied upon the property of the plaintiffs in injunction, is in contravention of Article 1, section 8, of the Constitution of the United States, which gives Congress power to regulate commerce with foreign nations and among the several States. The tax is levied on the capital of a company, the object of which is expressed in the first article of the association: “That the operations of the said company shall be, the towing vessels by steam in and out to sea, and up and down the river Mississippi, and carrying freight and passengers in like manner; also wrecking or lightening vessels in said river or at sea, and carrying freight and passengers in the Gulf of Mexico and elsewhere at sea.”

It is said that the tax is a regulation of commerce, and conflicts with the power of Congress to regulate commerce with foreign nations and among the several States, which it is contended is exclusive.

We were inclined, when this case was submitted, to have expressed an -opinion as to the respective rights and powers of the General and State Government, under this article of the Constitution, without reference to authority, the opinions of the courts of the United States being unsettled upon the cases arising under it; and if the tax had been laid upon a boat or vessel carrying on commerce with a sister State, it would have been a fit occasion.

But, upon examination, we find the tax laid not upon a boat carrying on commerce with a sister State, but upon the capital of a company organized under our general corporation act, in fact created by the State of Louisiana, and of course subject to the conditions which the State may impose.

The capital of the company is property, and the Constitution of the State requires an equal and uniform tax to be imposed upon it with the other property of the State, for the support of government, The capital of the company stands upon the same footing as the capital of insurance, or banking, or railroad, or cornpanies, or the capital of individuals.

We cannot conceive, then, that a question can arise under the article of the Constitution of the United States quoted. All taxation upon property within one State, may remotely affect its commerce with a sister State. Thus, a tax upon stores may increase the price of merchandise brought here by merchants from abroad; a tax upon warehouses, the price of the storage of produce from the western States ; and a tax upon our markets may enhance the price or perhaps curtail the quantity of supplies brought to them. Yet these taxes have never been questioned. It is only when a regulation of commerce by a State directly affects commerce with a sister State, that a question can arise whether the grant to Congress to regulate commerce between the States is exclusive.

It was therefore decided by the Supreme Court of the United States in the ■case of the State of Louisiana v. Nathan et al., that a tax upon a dealer in exchange, foreign as well as domestic, did not contravene the article of the Constitution invoked, 8 How. 73; and in Magio's heirs v. Grima, that a tax upon successions going to foreigners did not, lb. 490 ; and in the case of the Providence Bank v. Billings and Pittman, that a State had power to tax a bank,-there being no clause in the charter exempting it from taxation.

The language of Chief Justice Marshall, in that case, is conclusive of the present: “That the taxing power is of vital importance ; that it is essential to the existence of government, are truths which it cannot be necessary to reaffirm. •They'are acknowledged and assented to by all. It would seem that the relinquishment of such a power is never to be assumed. We will not say that a «State may not relinquish it — that a consideration sufficiently valuable to induce V partial release of it, may not exist. But as the whole community is interested ib.'vretaining it undiminished, that community has a right to . insist that its hbandonment ought not tobe presumed in a casein which the deliberate purpose •of a-State to abandon it does not appear.” 4 Peters, 561.

In fact;- it was'-lqld down in the Federalist, in expounding the contemplated .Cdnstitution, to induce its adoption: “that the States would possess an independent. and uncontrolable authority to raise their own revenue for the supply of ttesirownivahts,,ah]d with the single exception of duties on imports and exports, would, under the plan of the Constitution, retain that authority in the most absolute-and *finqua¡lifecl,sense- And that an attempt on the part of the general gdvqrnment'to abridge,them in the exercise of it, would be a violent assumption of power unwarranted by any article or clause in the Constitution. This extract isifrom No. 32 of the'Federalist, the production of Hamilton; but it may be seen by other numbers, the productions of Madison and Jay, that the principles • were fully concurred in by them.

The question in this case is one as to taxation and subject to these principles. The question whether the power granted to Congress to regulate commerce between the States is an exclusive power, does not arise. And although the case has probably been presented to obtain the opinion of the court on this question, we do not think it proper to express a formal opinion on so important a subject when the case under consideration does not require it.

The judgment of the district court is affirmed, with costs.


author: SiiBKit, J.

text:
    Moses Greenwood v. Lowe and Pattison.
    A debtor of defendants furnished them with his name, in the form of a draft on their house. The draft was accepted by defendants, and exchanged with Partee fy Co., for bills on their house in New York. Partee 8? Go. placed the acceptance of defendants in the hands of a broker to raise money on it. It was sold to P. P. <§■ Co., with the right reserved for Partee 8¡ Co. to take it back on certain terms, within a stipulated time. Partee 8f Co. did notredeem it within the time, and the broker who sold, now bought it of P. P. 8? Co. The broker exchanged the acceptance of defendants thus obtained, with the plaintiffs for other bills of larger amount, and paid the difference. Defendants contest the plaintiffs’ ownership of the acceptance, on account of the mannerin which it was disposed of by the broker and obtained by the plaintiff.
    The court held: That the plaintiffs were holders for value, for according to the well settled doctrine of the commercial law, a merchant who gives his own negotiable paper for a purchase of negotiable paper, gives value, as well as he who gives gold or banknotes.
    The law, from considerations of public policy, and in order to favor the free circulation of bills of exchange and other negotiable paper, looks with favor upon the holders of a bill who has given value for it, and requires very cogent evidence to convict him of malafii.ee.

    Where, under the facts shown, the court may reasonably suppose a state of opinion, or belief in a party’s mind, which is entirely consistent with honesty and fair dealing, and where there is another hypothesis involving dishonesty, it will be the duty of the court, unless the scale clearly preponderates in favor of the latter, to adopt that construction which is in favor of innocence.
    Where the opinion of the court is founded upon its own knowledge of thecourse of trade, and • not on proof of it in the record, the cause was remanded for a new trial by a jury of merchants.
    APEAL from the Fourth Distrct Court, J.

      Edwards and Olcott, for the plaintiff.

      A. N. Ogden, for defendants.
   By the court:

SiiBKit, J.

This suit is brought upon a bill of exchange, drawn in Alabama, December 26, 1850, upon the defendants, by Alexander Pattison, to the order of and endorsed in blank by William H. Pattison, for $3523 75, payable at twelve months.

The defendants in their answer, denied that the plaintiffs were lawful holders; asserted that Partee Sf Co. are the legal owners of the draft, and that they have claims against Partee 8¡* Co. upon certain protested bills of exchange, drawn by them to an amount exceeding the amount of the bill sued upon.

There was a judgment in favor of the defendants in the court below, declaring the acceptance extinguished by compensation. The claims of the plaintiffs being rejected, upon the ground that they did not take the bill in the ordinary course of business. From that judgment, the plaintiffs have appealed.

It appears, that the defendants were merchants in New Orleans, and gave this bill, thus accepted by them, together with other bills by them accepted, before maturity, to Partee 8f Co., of New Orleans, in consideration of several bills.of exchanges drawn by Partee &f Co., on their own firm in New York, which latter bills came back protested, and the defendants having been obliged to take them up as endorsers, are now the holders thereof. Partee Co. failed sometime in the fall of 1851.

It will be observed, that in this transaction Lowe and Pattison, the acceptors, were the persons who thus issued and negotiated their own acceptances. To a lawyer, applying to such a case, the technical doctrines which govern in the general the contracts of a bill of exchange, or perhaps to a foreign merchant, the transaction would seem anomalous. For as a general rule, when a bill gets into the hands of the acceptor, the contract is functus officio. But this seeming incongruity is explained by the common course of business in New Orleans, with which every merchant here is familiar, and to which it would be unreasonable for us to shut our eyes, since it has so frequently been illustrated by our records in commercial cases. That course of business is this: The planters, as a class, are in constant need of advances; the New Orleans factors, as a class, are in as constant need of discounts. Out of this state of things, has arisen the notorious practice of the factor receiving from the planter his bill on the factor, which the latter accepts, and gets discounted in the market, puts the proceeds to the planter’s credit, and looks to the promised shipment of his crops to place the acceptor in funds to meet? the bill. Acceptances to the amount of many hundreds of thousands of dollars, are thus, we have no doubt, thrown into the New Orleans bill market annually.

In September, 1851, Partee Sf Co. were much pressed for money, and in the hope of warding off impending failure, Partee gave his clerk, Greenland, orders to use all the paper the house had, in order to sustain its credit until Partee’s return from the north. Accordingly, on the 20th September, Greenland put Lowe and Pattison’s acceptance into the hands of one Wartelle, of the house of Wartelle and Jackson, money brokers, telling him he wanted to raise $3000 on it, by selling it for that sum, with the privilege of getting it back at the end of seven days, if he desired, atan advance named. Wartelle on the same day, sold the draft to Pickett, Perkins tf Co. for $2980 cash, and with the privilege of getting it back in seven days, on paying $3000. From the amount thus received, he deducted his commissions, $10, and gave the balance $2970 on the same day to Greenland. On the last day of the time stipulated, Partee Sf Co. were unable to the raise the money to get back the bill; and Greenland, their clerk, came to Wartelle, and asked him to apply to Pickett, Perkins Co for an extension, which they refused, saying they would sell the draft for $3000 to any one that wanted it. This Wartelle reported to Greenland, and late in the evening of the same day, Wartelle thinking, as he says, that P. P. Sf Co. would sell the bill to some one else, and that he could make something by buying it, bought it himself, for $3000. This fact he concealed from Greenland, to whom, when the latter subsequently made inquiries about the bill, he replied that Pickett, Perkins 8f Co. had sold it. It is proper to observe, that Greenland disagrees with Wartelle’s statement to this extent, that he denies having previously authorized Wartelle to make a sale of the bill; but he admits an authorization to raise money on it, and the receipt of $3000 from Wartelle; and does not say, that when informed of the sale and its terms, he disapproved. Whatever was the truth upon this point, it is at least certain, that Partee 8f Co. had parted with their interest in the bill to the extent of $2980, and that they would have no right to recover the bill from Wartelle, or any one holding under Wartelle, without reimbursing that amount.

Soon after this, Partee 8f Co. failed. Wartelle, on the 3d October, sold the bill to Greenwood Co., who are not proved to have had any knowledge of the antecedent circumstances. The facts relating to this purchase, are as follows : They had a few days previous employed Wartelle to sell twi; bills, accepted by themselves, and on the 3d October, Wartelle agreed to take these two bills amounting in principal to $4263, and maturing in the following February and March, at a discount of one per cent a month, and to give Greenwood 8f Co. in payment Lowe and Pattison’s acceptance, at two per cent a month, and pay Partee Co., the difference, $686 25 in cash. The transaction was so closed on that day. Wartelle afterwards negotiated the two acceptances of Greenwood, 8f Co. Partee Sf Co. made a cessio bonorum in March 1851; and the defendants are still holders of their protested exchange, to an amountof say $19,000.

The right of the plaintiffs to recover, depends upon the answers to these questions. Are they holders for value? Are they holders bona fide, and in the ordinary course of business ?

They are clearly holders for value. For according to the well settled doctrine of the commercial law, a merchant who gives his own negotiable paper for a purchase of negotiable paper, gives value as well as he who gives gold or banknotes. Are they holders, bona fide, and in the ordinary course of business?

This law from considerations of public policy, and in order to favor the free circulation of bills of exchange and other negotiable paper, looks with favor upon the holders of a bill who has given value for it, and requires very cogent evidence to convict him of mala fides.

Where is the fact in this case, which can justly be said to bring home to the mind the conviction, that the plaintiffs acted in bad faith? It is not pretended that they had any, the slightest actual notice, that Partee Sf Co., the former holders, had an equitable interest in the excess of the bill over $2980, (the cash they had received upon it,) nor that Lowe and Patlison, had negotiated the bill for a consideration, which was about eventually to fail. Is there anything in the character or occupation of Wartelle, which should have excited their alarm? We think not. He was a person professionally engaged in the business of buying and selling bills and notes, and is not shown to have been in bad repute. Is there anything necessarily indicative of mala fides in the l’ate at which the bill was discounted ? The evidence does not authorize us to say so, nor can we infer it with what knowledge we have of the pressure, which exists at frequently recuring intervals in the New Orleans money market, and of the precarious character of certain classes qf mercantile paper. Partee 8f Co. were willing to borrow at this very time $3000, at one per cent a week. The rate deducted by plaintiff may be fairly considered, as indicating a doubt about the solvency of Lowe and Pattison, and a desire to get a premium, commensurate to the risk; but we do not believe a jury of business men in New Orleans would be found, who would say, that such a discount of the bill in question, at that season of the year, would authorize the belief of a suspicion in the mind of the plaintiffs, that Wartelle, a bill broker, had not a right to negotiate the bill, and that there were outstanding equities.

We come now to the only other circumstance, on which the defendants rely as indicative of mala fides ; and that is, that they gave their own acceptances for it to a broker, who, it is said, from the nature of his calling, they should have looked upon as a person authorized to make sales of paper, and not exchanges. Parties, themselves, often make exchanges of their paper. This cross acceptance, for mutual accommodation, are not uncommon among merchants ; and we do not see why suspicion should attach, when that is done through an agent, which, if done between the parties themselves, would not be deemed extraordinary. Where we may, under the facts shown, reasonably suppose a state of opinion or belief in a party’s mind, which is entirely consistent with honesty and fair dealing, and where there is another hypothesis involving honesty, we are bound, unless the scale clearly preponderates in favor of the latter, to adopt that construction which is in favor of innocence. Greenwood Sf Co. may have reasoned with themselves, that it was for their advantage tcvget for their own paper, having several months to run, a sum in cash, and an acceptance, maturing some months earlier, at a rate of discount, which according to their knowledge of Lowe and Paitison's standing, compensated the risk of the acceptor’s failure in the short interval, before its maturity; and Wartelle or his principal, might be considered by Greenwood &f Co., as looking for their advantage in the bargain to the superior value, which they chose to attach to Greenwood Sf Co.’s paper. It was certainly a circumstance to awaken a suspicion in the minds of the plaintiffs as to the solvency of Lowe and Pattison, but not necessarily as to the title of Wartelle, or those for whom he was acting. But a serious difficulty seems to have arisen in the mind of the district judge, from the fact, that Greenwood 8f Co. gave in this exchange of paper, their own acceptances of bills, drawn on them by planters. He reasons thus. “ How did they obtain before maturity, their own paper ? That is unexplained. The supposition is, that they had discounted it in market. But, however they obtained it, when it came into the hands of the debtor, it was extinguished, and they had no light to re-issue it to the prejudice of the other parties to it; this must have been as well understood by the brokers who received it from them, as the unusual mode of discounting the defendant’s note, must have appeared to Greenwood: and either was sufficient to have put any prudent man on his guard.”

Now, what the learned judge has said is correct, if what we believe to be the every day course of business, with regard to planter’s and factor’s papers, is disregarded ; but it leads to an unsafe conclusion, if that course of business is considered. But how is justice to be administered among our merchants, if we shut our eyes to what is every day passing before us ? And are we not bound to reach the justice of a case, whenever we cando so without violating some inflexible legal rule? We do not hesitate in giving an affirmative answer to this question. Now the general rule of the commercial law, which regulates the rights and liabilities of parties to negotiable paper, are not inflexible. An acceptor, whose obligation on its face is primary, may show, that in point of fact, the maker is his debtor, and that he accepted for accommodation. So when the planter draws on his factor and he accepts, if the acceptor gets the bill into his hands by payment or purchase, he cannot re-issue it, so as to hold the drawer, to the person receiving it from the acceptor. But if the planter sends the bill to the factor for the purpose of enabling him to issue it, when accepted, and so raised money for him on it, he would attempt in vain to shelter himself under the general rule.

It is strange, that the dofendants should deduce the inference of mala fides, from the plaintiffshaving done the very thing which the defendants themselves did. For they, the acceptors, negotiated their own acceptances with ParteeSfCo.

After the best consideration which we have been able to give to this case, we are unable to bring our minds to the conclusion, that the judgment of the court below has done justice between the parties. But as the views we have expressed, are founded rather on our knowledge of the course of business in New Orleans, derived from our professional and judicial experience, than upon the evidence in this particular case, and as it is desirable to know what a jury of merchants would think in a matter of this sort, which involves a question of ^mercantile good faith, we have concluded, that the safer course for obtaining justice, will be to remand the cause for further evidence, and for a new trial by such a jury.

Judgment reversed ; remanded for trial by a jury of merchants; defendant to pay costs of the appeal.


author: Rost, J.

text:
    Charles Fonda v. James Garland et al. and Daniel Weaver.
    A broker employed to sell a note, has an implied authority to guarantee it in the name of the vendor: yet, if he do not guarantee it, the vendor is not liable in ease of its non-payment.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Durant and Horner, for plaintiff.

      Stansbury, for defendant.
   By the court:

Rost, J.

The defendant, Weaver, in giving his broker, for sale in the market, the note of James Garland, endorsed by J. W. Kirkland, authorized him to guarantee it in his name. This was not mentioned to Fonda, who purchased it; and, as he took it without the guarantee, it seems to us that it is too late, after protest, to claim the benefit of a promise which forms no part of his contract.

It is true, as observed by the district judge, that there is reason to believe from the evidence, that Weaver knew the endorser and drawer of the note to be under protest at the time he sold it. But, they might be under protest without being insolvent; and there is no evidence of their insolvency in the record. It is shown, on the contrary, that a large quantity of movables has been taken under the plaintiff’s execution, as the property of one of them.

But, if it was proved that the parties to the note were insolvent at the time of the transfer, to the knowledge of Weaver, the only action which could be sustained upon that state of facts is an action for the rescisión of the contract and the restoration of the price paid. Civil Code, 2619.

The judgment in favor of the plaintiff is reversed and the petition dismissed, with costs in both courts.


author: Sxxdexx, J.

text:
    William Robinson, Trustee, v. William K. Day.
    If, in consequence of the laches of the holder,- the endorser of negotiable paper be discharged the holder cannot recover upon a subsequent promise, without showing that it was made with knowledge of laches. Yet, where the promise to pay the debt is given in the form of a new note, it is prima facie evidence that there was no negligence by which the endorser was discharged from his obligation on the paper which he thus renews.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      J. L. Matliewson, for plaintiff.

      L. Madison Day and Samuel JR. Walker, for defendant.
   By the court:

Sxxdexx, J.

This is an action, brought in 1850, by the plaintiff, as trustee ■ of the Commercial Bank, of Natchez, upon’a note óf the following tenor :

“$3007 52. Natchez, May 18,1843. Twelve months after the fifteenth day of May, 1843, I promise to pay, without defalcation, to the Commercial Bank of Natchez, or order, for value received, three thousand and seven dollars and fifty-two cents, negotiable and payable at the Commercial Bank of Natchez. “Renewable if required. Wm. K. Day.”

The defendant pleaded a general denial and the prescription of five years. He also alleged that, in 1840, the bank became the holder of a note signed by one Beaumont, and endorsed by the firm of Day and Caldwell. That, as endorser of that note, he was entitled to legal notice of protest; that no such notice was given him; and that in consequence of the failure to give him notice and other laches of the holder, he was discharged. That when he gave the present note, in settlement of the other, he was ignorant of his discharge.

There was judgment for the plaintiff in the court below, and the defendant has appealed.

Both parties have assumed, that the instrument is subject to the prescription of five years, established by art. 3505 C. C. and have argued the case, so far as prescription is involved, upon the question, whether an interruption of prescription has been made out.

To prove an interruption, the plaintiff relies on two letters written by the defendant to the plaintiff, both bearing date in May, 1848. One of these letters is not, perhaps, sufficiently definite, taken by itself, to identify the note spoken of with that in the suit. Unaided by other evidence, it leaves the mind in doubt whether it applied to this note, or the note endorsed by the defendant. The second letter, however, is sufficiently explicit on this score, “ a note of mine due to the Commercial Bank.” Any looseness of phraseology in that portion of the letter which speaks of its origin, is satisfactorily explained by the context, coupled with the defendant’s answer in the cause, and the testimony of the cashier.

But, it is said that the letter is not such an acknowledgment as is sufficient to interrupt prescription, because it asserts again and again his inability to pay any thing, and does not, in express terms, acknowledge a liability. This remark about the contents of the letter is true.' But the whole tenor of the letter is pregnant with inferences of the conviction, in the writer’s own mind, of his liability for the debt, and that judgment would unavoidably go against him if he should be sued. Its scope and purpose seems to be, to represent to his creditor the hardship of pressing him for a liability originating in another’s default, and the ruin of his credit and business, if the bank should take a judgment and execution. It is, in substance, an earnest appeal to the mercy of the creditor; a prayer for indulgence, inconsistent with the idea of an absence of liability. “ My object in writing to you is, that I think you have been misinformed as to my capabilities to pay that claim.” “ I assure you it will be hard enough for me to pay that note when I get able, let alone being troubled for it now when it keeps me kicking to support my family.” “ Very few would give me credit if they knew there was a judgment against me.” “ I have a large family to support.” “ If, after what I have said, you still feel it your duty to bring suit, I shall have to submit to my fate with the best grace I can, but itwill be very hard on my family.” “ If you do bring suit it will turn out as I have stated, and will ruin my credit; and I do not say this to prevent you from bringing suit, but I do not want to have my credit ruined.” “Please write me as soon as possible.”

This letter commences by referring to another letter written to Rohinson, on the previous Saturday. In that letter he states, that the plaintiff’s attorney had called on him to ascertain if he could do any thing towards paying “a note due the Commercial Bank, of which you have the control.” He states his inability to pay it; deprecates suit which the attorney threatened, and asks the plaintiff to wait until he writes again. Its tone is like that of the other letter.

We are of opinion, then, that these letters clearly contain, if not an express, at all events a tacit acknowledgment of indebtedness upon the note signed by the defendant, and an entreaty to the plaintiff not to sue. The first letter also requests the plaintiff to delay his suit until he can write again.

To treat these letters as not involving an interruption of prescription, would be to enable the defendant to work out an injustice by his own acts. For the entreaty of the defendant, coupled with the tacit acknowledgment of the plaintiff’s right, and the declaration of the writer, that a suit would injure him without benefitting the creditor, may well be considered as the inducement which led the plaintiff to postpone his action. It is just to consider him as having relied on the implied acknowledgment in doing so, and it would be inequitable to deprive him now of its protection.

In arriving at this conclusion, we have left out of view the testimony of the plaintiff’s attorney of record, which the defendant insists ought not to be heeded, in consequence of the professional relations in which he stood to the creditor, and his not having withdrawn from the prosecution of the suit before he offered himself as a witness in the cause. See Succession of Harkins, 2d Ann. 923.

It is said that, in consequence of the failure to protest the Beaumont note and notify the defendant as endorser, the note given by the defendant, and upon which he is now sued, is not obligatory. The argument assumes that there was a failure to protest and notify. This is not proved. We have the testimony of the notary, who swears that the note was duly protested on the day of its maturity, and that a written notice of the protest was given to the defendant’s partner, personally, the next morning. On his cross-examination, the notary answered : “I have no distinct recollection as to the facts above stated, in relation to the particular note inquired about, but I have a copy of the record of my proceedings in the case of the demand, refusal of payment, and protest of the above-mentioned note, by reference to which my memory, in relation to the facts above stated, is refreshed.” No exception was taken to the introduction of this testimony, upon any of the grounds stated in the plaintiff’s brief; and it may, therefore, be considered as before us for what it is worth.i: That, however, is little. For it appears from the testimony, that the officer in question was so exceedingly careless and unfaithful in the discharge of his notarial duties, that his conduct has been the subject of comment in Mississippi, (7 How. 609,) and the district judge properly says: “ I feel disposed to attach little weight either to the certificate of the notary, or his statements about his records. They leave the matter uncertain, but do not show that no notice was sent.” We leave this testimony out of view; and thus the case stands, without any express proof of notice or protest. But it appears that a few months after the maturity of the Beaumont note, Hay was sued upon it, ,as endorser, in Mississippi. If there had been any ground for defence, he would naturally have raised it then. If the protest was irregular, he or his attorney would naturally have gone to the notary’s office and looked into the matter. If he had received no notice, that being a matter within his own knowledge would, we may. reasonably suppose, have been pleaded. But, instead of anything of this kind being done, it is proved by the cashier of thebankthat the Mississippi suit was not tried, but was dismissed, in May, 1843, upon the defendant’s giving his own note for the amount.

No failure to protest or notify being shown, the promise to pay the debt, given in the form of this new note, must be considered as prima facie evidence that there was no laches. See Lundi v. Robertson, 7 East. 236. Gibbon v. Coggan, 2 Camp. 188. Pierson v. Hooker, 3 John, 68. Patterson v. Beecher, 6 Moore. 9 ; Chitty 535. Tebbetts v. Dowd, 23 Wendell 381, 387. Robbins v. Pinckard, 5 Smedes and M. 51. This case must not be confounded with that class of cases of which there are numerous examples in the books, where the holder of negotiable paper has been guilty of laches, and that fact appears on the trial-For then the holder cannot recover on a subsequent promise, without showing that the promise was made with the knowledge of the laches. See the cases cited'by Cowen, J., in Tebbetts v. Dowd; New Orleans and Carrollton Railroad Company v. Mills, 2d Ann. 824.

Judgment affirmed, with costs.

Defendant’s counsel applied for a rehearing.

The presumption arising, then, from the execution of the note in suit, is but secondary evidence, at best, of protest. For it is laid down in the books that: “Where higher evidence is shown to exist, all other is’secondary.” “ In such cases mere presumptiveprimd facie or circumstantial evidence is secondary.” Cow. and Hill, note 325, p. 423.

And evidence which is secondary in its nature, cannot be received so long as the director primary evidence can be had, or is shown to be within the reach of the party. 1 Gr. Ev. sec. 82, and last note to sec. 84. 1 Pick. R. 375. Cow. and Hill, note 414, p. 540.

“ Indeed, the rule is general. You shall not be permitted to grope in the twilight of circumstantial evidence when the broad daylight of direct proof is attainable.” Cow. and Hill, note 325, p. 424.

And so it has been held by Judge Story, that where it was proved a copy of a note existed, the pavty must prove it by the copy, and cannot rely on other evidence. 2 Mason, 468.

“Forthe best evidence of which the nature of the case is susceptible, must always be given.” 1 Phil. Ev. 217. Gr. Ev. sec. 82.

Now the direct or primary evidence, which is that of the notary, having been introduced by the plaintiff, and which is proved to be wholly unworthy of credit, the secondary or presumptive evidence arising from the execution of the note, would seem to be clearly insufficient, according to the foregoing authorities. At all events, the presumption is entirely destroyed and overcome by the laches which are shown on the part of the holder, in employing a notary, whose acts, as well as his evidence, in relation to the same, are unworthy of any credit whatever.

This, we think, makes it incumbent on the plaintiff' to prove, either that the defendant was duly charged, or that he gave the note in suit with a full knowledge of the laches of the bank.

Because we have alleged that the Beaumont note was not protested, and that defendant gave the note sued on without a knowledge that he had not been duly charged as endorser, and as the evidence in the record shows it to be within the power of the party to prove a protest, had one been properly made, as well as that it is exclusively in his power to prove the note was executed with a knowledge of the facts, had such been the case.

For, one who alleges error, is only bound to prove the same when it is not shown the evidence of the same is exclusively within the power of his adversary. 11L.R. 80. 7 R. R. 418.

The general rule is, that he who affirms must prove; but where the affirmative involves a negative, the proof must come from the other side. Marc v. Church Wardens, 8 N. S. 257.

And, moreover, this court has held, that where it is not shown whether any demand was made on the drawee, and the drawer supposing himself liable and promised to pay the draft, it will be presumed there was no demand, and that the promise was made in error, and so not binding. 11L. R. 17.

How much more tlien should it be presumed in this caso, (and the facts proved fully justify the presumption,) that defendant was not duly charged, and that the note sued on was given in error At all events, we feel fully warranted in saying, the presumption of a protest, arisingfrom the execution of the note in suit, is fully rebutted by the opposite presumption arising from the evidence in the case. It is therefore incumbent on plaintiff to prove protest, ox* that defendant gave the note in question with a full knowledge that he had not been properly notified

2. The next and last ground on which we solicit a re-hearing, relates to the question of prescription.

The opinion of the court proceeds on the ground, that the force and effect of the letters of defendant, are to be determined by the law of Louisiana. In this we would most respectfully suggest there is error, for which the counsel, and not the court, are responsible, as the same was overlooked in the argument.

For, it is now the conceded doctrine of this, as well as of other enlightened courts, that contracts, as to their nature, validity, obligation and interpretation, are governed by the Lex loci contractus, unless a different place is stipulated for their performance. Story’s Conf. L. sec. 248-280.

Now, tbo letters of defendant would seem to be clearly within the reach of this principle, since an interruption or renunciation of prescription is in the nature of renewal of an obligation. 9 R. R. 313. 1R.R. 335-6.

The note sued on was executed, as well as payable, at Natchez, and the letters were addressed to Bober!son at that place. Their nature and effect, then, must be determined by the common law which prevails there, and of which this court willtake notice.

Ithas been expressly held in Massachusetts, that where a proposition is made by a letter written in one State, and sent to another by mail, the latter is the place where the proposition is made, and notthe place where the letter was written. 3 Met. Rep. 207.

So it has been held, that where plaintiff wrote by mail to defendants, inquiring on what terms they would insure his vessel, and defendants replied at a certain rate, but by mail of next day retracted. Plaintiff, before be did or could receive the second letter retracting, sent on an acceptance. Held: no contract had been made. 1 Pick. 278. SeeJIO lb. 324.

These decisions evidently proceed on the ground, that the offers are to be considered as made at the place where the letters are addressed, and not at the place where they were written.

The same rule must apply to the letters of defendant, for there was no admission made until the receipt of the letters by Robertson.

The mail in the one case, and the boat in the other, were but the bailees of defendant, and the letters are, therefore, regarded as still in his possession, until actual delivery at the place of destination; and this, more especially, as the rules prescribed by the Postmaster General expressly authorize the writer to withdraw a letter, any time, before delivered to the person to whom addressed. Regulations Post Offices, ed. 1847: Chap. 24, Delivery of Letters; chap. 27,Letters Forwarded; chap. 28, Return of Letters.

In England and France a different rule is prescribed. A letter mailed there cannot be withdrawn. Hence, so far as the present point is concerned, the English and French authorities would be inapplicable.

The defendant, then, having the absolute control over his letters until an actual delivery at Hatchez, his admissions as to their nature, obligation and effect, must be settled according to the law of that place.

• This is a material distinction, and oue, which if allowed to prevail, will fully sustain the plea of prescription, as the letters are wholly insufficient to avoid the plea according to the common law, if not by the civil law.

It is expressly laid down that it ought clearly to appear in all cases, that the acknowledgment relates to the identical debt which is sought to be recovered on the strength of such acknowledgment. 9 Cow. 678. 15 J. R. 511. Aug. Lim. 254-5, $ 4.

And if effect can be given to the admissions, without referring them to the demand upon which the suit may have been brought, they ought not to be considered as referring to such demand. 3 Wend. 352. 6 Pet. 86. 21 Pick. R. 323.

Re-heaving refused.


text:
    Huntington v. The Sheriff of the Parish of Jefferson and the Bank of Louisiana.
    A judgment, overruling an exception taken to the plaintiff's petition, on the ground of its insufficiency to authorize the injunction he had obtained, is not final, may ultimately work no injury, and is therefore unappealable.
    APPEAL from the Fifth District Court of New Orleans.

      W. D. Hennen, for plaintiff.

      A. A. Frayser, for defendants.
   By the court:

Eustis, C. J.

The, defendants appealed from a judgment by which an exception to the plaintiff’s petition was overruled. The exception was to the sufficiency of the plaintiff’s petition, to authorize the injunction he had obtained, so far ns it related to the Bank of Louisiana.

This is not one of those judgments from which an appeal can be taken to this court. It is not final, and may ultimately work no injury to the appellants. This appeal is dismissed with costs.


text:
    Samuel W. Oakey v. James Drummond.
    A purchaser of land, who suffers it to be seized and sold as his own, who buys it in and sells it again, cannot be relieved from paying the purchase money .to his vendor, on the ground that there are encumbrances upon it.
    from the Third District Court of New Orleans, Kennedy, J.

      Benjamin and Micou, for plaintiff.

      Mott, for defendant.
   By the court:

Rost, J.

It is unnecessary to inquire into all the questions raised by the defendant in this case. He suffered the land he had purchased from the plaintiff to be taken in execution and sold as Ms own" property, to pay repairs made to the levee in front of it. The certificate of mortgages, read by the sheriff at the sale, had exclusive reference to the mortgages standing on the property, in his name, and expressly mentioned the mortgage in favor of the plaintiff, to secure the price of the land. He was present at the sale, and the property was adjudged on his bid; but he caused it to be placed in the name of his nephew, a young man lately come to the country, who, one of the witnesses thinks, was not of age. He took from his nephew, at the same time, a power of attorney, under which he has since sold the land with the boundaries mentioned in the sale of the plaintiff to Mm, at a profit of $400 on the price he was to pay.

There is little doubt that the land was purchased by himself, and that the title given to his nephew was a simulation; but, if the sale had been to a purchaser in good faith, the defence could not be sustained. The defendant being present at the sale, and bidding, acknowledged himself-in possession as owner; and the sale, under those circumstances, must be considered as having been made by himself. If the adjudication is set aside, he is bound to return the land, and, as he has placed it out of his power to do so, he would be enabled to commit a fraud, if he was dispensed from paying the price. It is unnecessary to inquire whether the defendant may not, under certain circumstances, rightfully claim hereafter a diminution of the price.

Having parted with the title, and no claim being made against him, he has no right of action against the plaintiff.

It being proved that the land is now free from mortgages, the judgment in favor of the plaintiff must be affirmed.

Judgment affirmed, with costs.


text:
    Hooper v. Owens.
    A suit to rescind the sale of a slave, cannot be sustained where the plaintiff has been guilty of neglect in not promptly giving her the benefit of medical treatment.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Vandalson, for plaintiff.

      T. W. Collins, for defendant.
   By the court:

Eustis, C. J.

For the reasons given by the district judge; judgment-affirmed.

The reasons of the District Judge : “ Plaintiff sues for a rescisión of a sale of a slave (Elizabeth) sold to him by defendant, on the ground that she was unsound at the time of the sale, and her disease is such as to render her unfit for the purposes for which she was sold. The evidence, which is however somewhat conflicting, appears to establish the fact that the slave is affected with abdominal dropsy, owing to some affection either of the womb or liver. On this point, the testimony of the physicians is conflicting. It is highly probable that the disease existed at the time of the sale, but it is not shown that she received medical treatment before the month of August, 1850. The sale was passed on the 25th February, 1850. This fact alone is, in my opinion, an insuperable barrier to a recovery See Stackhouse v. Kendall. The physician, Dr. Mcllhenny, who treated her, says, that at the time he first saw her, in August, she was incurable, but that he cannot say that if she had received good medical treatment within the first three months after the sale, she might not have been cured. Dr. Compton’s testimony sustains this opinion, find they are both witnesses for plaintiff. Under these circumstances, it appears to me unnecessary to enter into an analysis of the testimony, for the purpose of fixing the precise time when, or the cause whence the disease originated; no conclusion, having the character of legal certainty, can be drawn from it. I think the defendant is entitled to a final judgment in her favor.

“ The court, after duly considering this case, for the reasons assigned in the written opinion, this day delivered and on file: It is ordered, adjudged, and decreed, that there be judgment in favor of defendant, Helen Owens, and against the plaintiff Levi E. Hooper.”

       Decided 14th April, 1851, by Rost, J., but not reported. See Appendix.