author: Ilsley J. Taliaferro, J.

text:
    No. 790.
    C. A. Lea, Executrix, v. J. O. Terry.
    Courts have tli.e power, in their discretion, to determino whether a paper filed in a suit styied a peremptorw excoption’shaii he considered as an answer to the merits.
    .^V^ere the, answer of th© defendant puts the capacity of plaintiff specially at issue, by denying that ^ in tho capacity in which he sues he has any interest in the suit, the plaintiff is bound to prove it lTí¡0 máiutkiirhis action.’ See tho case of Stilley v. Stilley, ante page 53.
    -A RPEAL from;the District Court, Parish of Livingston, Jones, J.-

      J^.j Jf'.^ffen.nen, for plaintiff and appellant.
    (?. W. Waitershm, Marr fSsiJi’pjnte and Bradley, fpr appellee.-
   Ilsley J.

The plaintiff-, seeks,-,in this action, to obtain a retransfer of certain lands in the petition described, in virtue of a private, writing or 09pnter.-let.ter,.bearing date the 22d April,T837, and claims rents, etc., flSSW,

A; judgment.-by default was taken, which,on motion, was set aside, and .the,tdefendanl; .had.leave to file a peremptory exception, that the petition e.£hibi,ted no, cause of- action.'

ii;!35i§l,Iessp1epjion,-.was maintained, and, on appeal to this court from the judg,mentTdi?missing the action, it was'reyersed.

The case,was remanded to the lower court for further proceedings according,,-to law,i the Court observing, that ?‘as there was no defence filed to .the action,., except the 'exception, it would permit it to stand as an answer.”-.,-

cr.-’9,h-)%Siií0tuíFn.oí the case to the lower court, the defendant filed on the 12th May, 1860, with the clerk, without leave of Court, an answer.

f ..¿Exceptions,having been, taken by. the plaintiff, that the defendant could only fiie: an. amended answer; that it had been filed out of term without leave; that,it changed the,issues by withdrawing admissions made by the 0Úgi'PaLahsXer,;' the..same, were overruled, and on motion of the defendant’s attorneys, it was ordered that his answer, filed on the 12th inst., (May) be .allowed to be filed,, and considered asan amended answer, with the plea, of-, reconvention therein.

The amended answer of the 12th May, 1860, contained a general denial; and a reconventional dem md against the plaintiff, executrix, for the half of the notes arising from the sale of the property referred to in the petition. as owned in common by Lea and Terry. Thereconventional demand was afterwards dismissed, and defendant says need not be noticed.

There was also a plea of prescription, which we may say now cannot be sustained.

The defendant also filed a peremptory exception, that the plaintiff was without right to stand in judgment, and had no interest in the subject-matter of the suit, because the land in controversy had beén long since sold to other parties.

This peremptory exception was excepted to by the plaintiff, on the ground that it changed the substance of the defence, and permitted Terry to withdraw admissions already made in the pleadings.

The Court ordered the peremptory exception of want of interest to be tried with the merits.

The case came on for trial on the 18th October, 1865. There was a verdict and judgment for defendant, from which the plaintiff prosecutes this appeal. The first question to be examined is, was the plaintiff without right to stand in judgment, and had she, as executrix, any interest in tho subject-matter of the suit, as the land had, prior to the bringing of the suit, been sold to other parties? It appears that on the 9th September, 1858, the plaintiff, in her capacity of executrix, filed a petition in the Succession of Franklin W Lea, asking for a sale of certain lands as property of the succession, including the several tracts now in controversy. The sale was ordered by the court on the same day, and by the return it appears that the sheriff made the. sale on the 16th October, 1858; that the lands in controversy were adjudicated to James Barrow, and that the proceeds of sale were paid over to D. N.Hennen, then, as now, the counsel for plaintiff.

The defendant’s exception of want of interest was filed on the 16th of October, 1860. On the 9th February, 1861, James Barrow made a notarial declaration that the land adjudicated to him was, at the time of the adjudication, in the possession of Terry, the defendant, claiming the same as owner, under a sale from Franklin W. Lea to him, of date 26'th May', 1837, and that with his, Barrow’s, full approbation and consent, said adjudication was deemed null and void and of no effect, and rescinded.

It is not necessary to determine the legal value of this notarial act of retrocession from Barrow to the estate of Franklin W. Lea. It suffices ■that his succession was Barrow’s warrantor, when the suit was instituted. Arts. 2602, 2477, C. C. 7 La. 123. 2 Bob. 188. The plaintiff was, therefore, not without interest, as the object of the action was to put the title in a shape to satisfy the warranty.

The exception, therefore, on that score, was untenable. The important question, presented in different forms during the progress of the suit, was whether the paper styled a peremptory exception, that “ the petition exhibited no cause of action,” was an answer to the merits, as it was deemed to be by this Court on the first appeal.

The opinion of the Court that it was an answer, rested on the decision in the case of the Citizens’ Bank v. Beard, 5 A. 41, analogous to this one, The ruling of the Court,.in both the cases in 5 A. 41 and 15 A. 160, is apparently in conflict with two earlier cases, (the only two out of the many decisions to which our attention is called) which involve precisely the same question, viz: that of Loring v. Kimball, 15 La. 200, and Lejune v. Hebert, 6 Rob. 421.

After an .examinatian of the question, which we have duly considered, we have come to the conclusion that the rule of practice as enunciated in ■the later cases is, under our system of pleading, the correct one. Article '314, 327, Code of Practice. Vavassion v. Bayon, 11 Martin, O. S. 640.

The exception is therefore considered by us as it was by our predecessors, an1 answer to the plaintiff’s petition.

The variance alleged in the exception between the date of the counter-letter and the act of sale, did not render it necessary for the plaintiff to reconcile it by other proof than that furnished by the answer. The counter-letter was merely referred to as proof, and as was said by this Court in this case, the defendant, by admitting the truth of the allegations in the plaintiff’s petition, has, as the case stands, relieved her of the necessity of offering the counter-letter, or making any other proof.

■ This view of the ease disposes of all the lateral questions, tending to this one point.

: No allegation of the petition was denied by the answer, and no proof was therefore required to sustain the allegations of the petition. See 14 A. Aiken v. Bedford, 4 N. S. 16. Austin et al. v. Latham, 19 La. 90.

There was an amended petition, increasing the demand for waste committed, rents and profits, to twenty thousand dollars, but no proof is found in the record to sustain that new demand, which is not now passed on.

The verdict of the jury must be set aside, and the judgment of the •District Court thereon reversed.

It is therefore ordered, adjudged and decreed that the verdict of the jury be set aside, and the judgment of the District Court rendered thereon be annulled, avoided and reversed; and it is further ordered, adjudged and decreed that the defendant, John Orin Terry, do reconvey to the plaintiff, as executrix of the last will of Franklin W. Lea, all and singular, the lands which had been transferred to the said John Orin Terry by Franklin W. Lea, by notarial act of sale passed before Lyman Briggs, Judge of the parish of St. Tammany, on the twenty-second day ■ qf October, in the year one thousand eight hundred and thirty-six, and ’which said lands are fully described in the plaintiff’s petition, as follows:

1. “A tract of land containing 640 acres, lying in the parish of St. Tammany, on the east side of the river Tangipaho, near the mouth of "the creek called Washby, acquired by said Lea through William Bowman, of Joseph and John N. Slater, being the same granted by the United •States to the said Joseph Slater, as section 40 of township 6, south, range 8 east; and section 37 of township 6, south, range 9, east.

' 2. “A tract of land of 640 acres, situated in, the parish of Livingston, 'fronting on Tangipaho river, adjoining the town of Uncle Sam, and known as the Durbin place, under the certificate granted to the said Jeremiah Durbin, of date July 27, 1824, and numbered 175, of which said •lands, the Succession of FranJclinW,. Lea, or any lawful transferee from the said succession, is now hereby declared to be the true and lawful owner.

It is further ordered, that judgment be and it is hereby rendered in'favor of the plaintiff, in her capacity of executrix of 'the will óf Franklin'1. W. Lea, and against the defendant for the sum of two thousand dollars,' as rents and profits of the said lands; and, finally, it is ordered that the defendant pay the costs in both courts.

On Rehearing.

Taliaferro, J.

After a careful review of the decision upon which this, rehearing was granted, we are satisfied there was error in the judgment rendered. .

The main question involved in the case, we had occasion to consider-' recently in the case of Sarah A. Stilly v. John W. Stilly, decided in December last; and we conclude to reverse the decision now under conside-y ration, and to render a judgment conforming to that in the case of Stilly v. Stilly.

It is therefore orderéd, adjudged and decreed that the judgment of this court, rendered in favor of the plaintiff, be annulled, avoided and: reversed. It is now ordered, that the judgment of the District Court be affirmed, with costs in both courts.


source: Caselaw Access Project

author: Hyman, C. J.

license: Public Domain

text:
    No. 1122.
    Michel Gastel et als. v. John McGenty.
    The act of the Legislature, approved February 17.18G6, confirming the Board of Levee Commissioners provisionally appointed by the Governor, did not confer on them the authority to sue for fcho State, nor to make the State a party in any judicial proceeding.
    APPEAL from the Sixth District Court of New Orleans, Huplnniier, J.

      Miles & T. Taylor and T. U. JFIewes, for plaintiffs and appellants.-

      A. S. Herron, Attorney General, for defendants and appellees.
   Hyman, C. J.

A contract was made by the “ Levee Commissioners” - with John McGenty, for him to make a new levee to protect the town of Algiers from the waters of the Mississippi. 77

McGenty began the work under the contract, and was about proceeding to tear down the houses of plaintiffs, with intention of taking possession of the ground on which they stood, for the purpose of continuing the construction of the new levee upon it, when, on application of plaintiffs, an injunction was issued by the District Court restraining him from so doing.

Soon after the issuing of the injunction a motion was made by defendant to dissolve it, upon his furnishing a bond, with security in aCoordance with article 307 of the Code of Practice.

This motion was granted by the Court, but defendant neglected to' give the bond and security, which the decree required to dissolve the injunction. • " -

The Levee Commissioners intervened in the suit, alleging that the State'7 was the real party defendant, represented by them, and moved that the aond and security required of McGenty in order to dissolve the injune-" tion be dispensed with, as the State was the real party in interest, and was not by law required to furnish bond.

The Court sustained the motion, and rendered judgment dispensing •with the bond and security before ordered to be given, and dissolving the injunction.

From this judgment plaintiff has taken a suspensive appeal.

One of the grounds of objection to the motion made by the Commissioners is that the State is not a party to the suit, and that the Commissioners do not represent the State.

. The act of the-Legisla ture confirming and ratifying the Levee Commissioners (which were provisionally appointed by the Governor) and continuing them in their functions, approved February 17th, 1866, did not give them authority to sue for the State.

There is no act giving them such authority, and they cannot, by intervening in a suit, make the State a party thereto.

.It is decreed that the judgment appealed from be annulled, avoided and reversed. It is further decreed that the case be remanded to the lower court to be proceeded with according to law.

The Levee Commissioners to pay costs of appeal,


author: Tabiaeerro, J.

text:
    No. 1749.
    William Avrill v. The Steamer Alabama Belle and Owners.
    The admiralty jurisdiction depends on the nature of the contract, and is limited to claims and services purely maritime, and touching rights and duties appertaining to commerce and naviga-
    A contract to furnish a steamboat with timber and other materials for the repair of the boat, is not a maritime contract.
    APPEAL from the Fourth District Court of New Orleans, Tli&ard, J.

      B. Egan, for plaintiff.

      Marshall Fot syth, for defendants.

      Colton <& Levy, for Levi, appellant.
   Tabiaeerro, J.

The plaintiff proceeded by provisional seizure against the steamer “ Alabama Belle,” and by citation against her owners, to recover the sum of $571 12, which he alleges they owe him for timber and other materials furnished for the benefit of the boat. He claims a privilege upon the steamer, and prayed judgment for the amount, claimed, with interest at five per cent, per annum, from 23d May, 1866, and with privilege upon the boat. The captain of the steamer, with J. Levi, his surety, released the seizure by entering into bond. After answer filed, judgmeut was rendered in conformity with the prayer of the petition. The plaintiff afterwards took a rule on the surety on the release bond to show cause why judgment should not be rendered against him on the bond.

The surety filed an exception to the jurisdiction of the Court, on the ground that the original cause of action is one arising under admiralty and maritime jurisdiction and that the court of the first instance is without jurisdiction of the case. The exception was overruled, and the defendant appealed.

The grounds stated in the motion to dismiss the' appeal, we think insufficient.

We think the exception was properly overruled. We consider it well settled that “ the admiralty jurisdiction in cases of contracts depends primarily upon the nature of the contract, and is limited to contracts, claims and services purely maritime, and touching rights and duties appertaining to commerce and navigation. ” 1 Concklin, M. L, 19.

The Supreme Court of the United States in the case of Roach et als. v. Chapman et als., 22 Howard Beports, say: “Acontract for building a' ship or supplying engines, timber or other materials for her construction is clearly not a maritime contract. Any former dicta or decisions which seemed to favor a contrary doctrine were overruled by this Court in the case of The People’s Ferry Company v. Beers, 20th Howard, 400.' In this case, closely in point with the one before us, the Supreme Court of the United States held, that the lien created by the State law could not be enforced in admiralty.

On the merits, the case, we think, is clearly with the' plaintiff.v His' claim is fully made out, and he had very properly judgment in his favbr.

This case is clearly distinguishable from that of Berwin v. Steamship Matanzas, 19 An 387. There, the contract was one of affreightment of merchandise from New York to New Orleans, plainly a maritime' contract.

It is therefore ordered, adjudged and decreed that the judgment of tho District Court be affirmed, with costs in both courts. ;. í.


author: Taliaferro, J.

text:
    No. 1013.
    John T. Ludeling v. Nathan Vester, Administrator.
    The Approval by the Land D< partment oí the lands that have been seleoted by -the State, pasees fcbo title thereto in fee-fomple, subject to any equitable rights that may exist at the time of tho approval to any portion uf the lands transferred.
    The issuing of a patent by the United States to lands which have been previously donated to thi State and approved by the Secretary of the Interior, does not, ipso/aclo, annul the patetifr previa ously issued by the State to the same .lands. . -
    Where two parties have obtained patents to the same lands, one from the United States and the' other from the State the question of superiority of title may be ascertained before a¡ny,court having jurisdiction over the property in controversy.
    Where the United States has parted with its title, private parties, who have rights to the land, may/ litigate their claims in the State Courts.
    A party claiming pre-emption rights under, the pre-emption laws of the United States, is required to establish his rights within the time fixed bylaw, and a failure to do so will operate a forfeiture of them. ,
    Under the pre-emption act of Congress of 1841. a party forfeits his claim to a pre-emption, if he fails to establish it before the publio land sales occur ' *, < - <' /
    APPEAL from the District Court, Parish of Morehouse, Richardson, J.

      John T. Budding and S. L. Slack, for plaintiff and appellee.

      S. G. Parsons, and Race, Foster <& F. T. Merrick, for defendant. ¡

      Reporler. — The first opinion and decree of the Supreme Court in this, case, reported in error in the 16th Annual, page 450, is overruled by this decision. See 16 A. p. 450.
   On Beheabing.

Taliaferro, J.

The litigants in this case present adverse titles, derived from conflicting patents to the same tract of land — the plaintiff claiming under patent from the State of Louisiana, the defendant under patent from the United States.

Under the provisions of the eighth section of the act of Congress ol September 4, 1841, donating lands to 'several of the States for purposes of internal improvement, the land in controversy in this case, togetliei with various other parcels, was selected under the authority of the State, and the “ selections ” were approved on the 24th'of May, 1858, by the Secretary of the Interior, “ subject to any valid legal rights that maj exist thereto.”

On the 16th of May, 1856, Dorcas Dinkgrave, plaintiff’s vendor, located an internal improvement warrant on the land in litigation; and afterwards, on the 7th of December, 1857, this warrant was relocated on the same land by plaintiff. On the 13th of August, 1858, the State patent issued in favor of plaintiff as assignee of Dorcas Dinkgrave.

This land lies within the Bastrop grant, the validity of which remained undetermined from the time of the cession of Louisiana from France to the United States, until December, 1850, when the Supreme Court of the United States decided adversely to the grant. The extensive body oi land, embraced by this'grant, was held during this long period in reservation, and becoming, by the decision of the Supreme Court of the Unitec States, part of the public domain, Congress in March, 1851, passed at act for the relief of the bona fide settlers in the DeBastrop grant. The act provides: 1. For those who hold the rights of the original emigrant: under the Baron. 2. For those who had cultivated the premises fo: twenty years under a chain of titles from DeBastrop; and 3d. For those who settled in good faith, and who, but for the reservation, would hav been entitled to pre-emption rights under some one of the previous!; existing pre-emption laws.

Wiley J. Tester, whose heir and administrator the defendant in thi case is, claiming to be entitled to a pre-emption right under the third class of those provided for by the act of Congress of 3d March, 1851 filed his declaratory notice at the proper land-office, on the 9th of Octo ber, 1855, dating his settlement in 1849. After various vicissitudes o approval and rejection of his claim, which it may be neoessary furthe on, to notice in detail, Tester succeeded in procuring a decision grantinj his pre-emption, and a patent was issued after his decease to his heirs oi the 7th of December, 1859.

This suit was brought in April, 1859, and judgment was rendered i favor of the plaintiff in July, 1860. The defendant appealed. Actio: was taken on this appeal in February, 1862, and the opinion then rea was prematurely reported — an application for a rehearing being the: pending. At the July term, 1866, of this court at Monroe, the applies tion was granted, and the case is now before us on a rehearing.

The defendant resists the plaintiff’s claim, chiefly on the ground thi he has priority of right under the pre-emption laws, and that his rig! was perfected by the patent granted to'him by the United States; thi although the State patent, under which plaintiff claims, is of anteric date to that issued to the defendant .by the United States, the Stat patent only passed title to the land in dispute, subject to defendant prior right by pre-emption privilege, as this existed at the time the lan was transferred by the United States to the State of Louisiana. He coi tends that the validity of the government patent and his rights under i can not be enquired into in this action; that the patent being final and conclusive, as to the question of title, which plaintiff is not at liberty to open, and especially as he does not allege error or fraud.

The plaintiff holds that the approval by the Land Department atWasliington of the list.of lands, (among which is the tract contended for by tlic parties) to be transferréd to the State under the donation act of 1841, vested in the State the title to those lands in fee-simple; that the approval of the selections constitute the patent to the State; that after the approval of the State selections and the consequent divestiture of the title of the United States, the question of defendant’s pre-emption claim became res adjiiiliciiia; and if not by the approval of the selections and the decision of the Commissioner of the General Land Office adverse to the pre-emption claim, it became so by the public land sales in June, 1858, previous to which time defendant had failed to make satisfactory proof of his preemption, or to appeal from'the decision rendered against him in September, 1857. He, moreover, contends that the Secretary of the Interior, by his approval of the “selections,” exhausted his power over the subject; that he became ‘ functus officio quoad hoc, and that his • subsequent action in the premises is void.

It is clear that if Yester was, according to the provisions of law, entitled to a pre-emption, and that right accrued before the approval of the land to the State, he would be bound to recover or hold the land, notwithstanding the State patent was issued before his right was established, provided, he has not forfeited his pre-emption by failing to fulfil the conditions upon which the right is granted.

That the approval of the selected lands must be considered as vesting title to these lands in the State, we feel bound to concede. But we must equally concede, that the title passed subject to any equitable rights that may have existed at the time of the approval to any portion of the lands iransferred. Such equitable rights are reserved by the act of, approval. But is there reserved also to the Land Department, the power to annul ;he vested title of the State by subsequently conferring upon other paries an unconditional and conclusive title to the same land? If so, the tenure of the State would seem to be nugatory. Subsequent action by ihe department, upon outstanding claims affecting lands already trans-erred, would be of the nature of ex parle proceedings.

In the present case, the plaintiff had notice of the reinvestigation of he defendant’s pre-emption claim, and introduced evidence; but he did o under protest, excepting to the right of the Land Department to take ,ny further proceedings in the case.

The questions presented seem to be, did the issue of the United States latent, ipso facto, annul the State patent? Was the decision of the Secreary of the Interior, in favor of Yester, final and conclusive? Or, was it. ierely a final disposition of the matter, so far as the United States was oncerned? If it be legitimate for the Land Department to settle unadisted rights, and in its discretion to issue other a,nd conflicting patents, bould we not consider such action, rather as the’relinquishment on the art of the government of all further jurisdiction over the subject-matsr, and as leaving the parties in interest to '.contest their rights before . ther tribunals, than as deciding in the last resort, superiority of title? Such is the course adopted by the government, in regard to conflicting titles under Spanish grants. Where the United States Commissioners have issued certificates to several claimants for the same land, the register and receiver of the proper office form a court to decide priority or superiority of right, and the government grants the patent accordingly, leaving the contending parties to the State courts for the final adjudication of their claims.

Be this as it may, a careful examination of numerous authorities, satisfies us that in such cases, courts have the right to look into the character of the conflicting titles, and to pass upon their validity. The Supreme Court of the United States sanctioned this doctrine in the case of Bodley v. Taylor, 5 Cranch, p. 191, where it recognized the right of a court of equity to decide controversies growing out of conflicting patents from the State of Virginia, issued upon land warrants granted by the State to individuals.

In that case, Chief Justice Marshall, said: “ The defendant, in the court below objects to the jurisdiction of a court of equity, and contends not only that the present case furnishes no ground of jurisdiction upon general principles, but ■ that the land law under which both titles originate, in giving a remedy by which rights under entries might be decided previous to the emanation of a patent, has prohibited an examination of the same question after a patent shall have issued. Had this been a case of the first impression, some contrariety of opinion would perhaps have existed on this point. But it has been sufficiently shown, that the practice of resorting to a court of chancery, in order to set up an equitable, against the legal, title, received in its origin the sanction of the Court of Appeals, while Kentucky remained a part of Virginia, and has been so confirmed by an uninterrupted series of decisions, as to be incorporated into their system, and to be taken into view in the consideration of every title to lands in that country. Such a principle cannot now be shaken.”

The same Court, in the case of Garland v. Winn, 20th How. Rep. p. 7, announces that “ the general ruléis, that whenever several parties set up conflicting claims to property with which a special tribunal may deal, as between one party and the government, regardless of the rights of others, the latter may come into the ordinary courts of justice and litigate the conflicting claims. Such was the case of Gomegys v. Vasse, 1 Peters, 212; and the case before us belongs to the same class of ex parte proceedings; nor do the regulations of the Commissioner of the General Land Office, whereby a party may be liear<;l to prove his better claim to enter, oust jurisdiction of the courts of justice. We announce this as the settled doctrine of this court.”

To the samé purport are the cases 9th How. 328, 14th How. Cunningham v. Ashley, and Elliott et al. v. Pursel et al., 1 Peters, 340. A decision in point was rendered in Illinois, in 1857, in the case of James G. Walker and John R. Smith v. Jacob Hedrick. In that case Hedrick had a patent granted upon a pre-emption claim. Plaintiff’s claim rested on a prior entry. The question was, had Hedrick a pre-emption in law that would affect the plaintiff’s prior entry? The question opened the right of Hedrick to a pre-emption, and the Court decided against his right, saying: “ It may be remarked, that while the decision of the register and receiver upon the facts of settlement and cultivation, etc., is final, or only reversible on appeal, yet their decision, as to their jurisdiction of the case or' right of pre-emption is open to attack in any collateral proceeding before any court having jurisdiction of the property or parties.”

A similar decision was rendered in Missouri, in the case of Page v. Schibel, 11 vol. Missouri Reports, p. 167, Attorney General Legare was against the legality of issuing a second patent before the first was judicially annulled. On this subject he remarked: (4 vol. opinions of Attorneys General.) “Supposing patents to land already issued, covering the very lands in question, the executive department is, in my opinion, under the general rule, fundus officio in the premises, until its former act be judicially set aside.” In the same volume he says: “But where the act of issuing it (the patent) is complete, and the patentee will not give it up to be cancelled, it is, in my opinion, a good title at law, until judicially avoided.” In this view Attorneys General Clifford and Crittenden concurred.

On this question the decisions in this State have the same bearing. In the case of Wiggins v. Guier, 13 A. p. 356, the plaintiff held, under a State patent issued by the Governor of Louisiana, predicated upon a location approved by the Secretary of the Interior. He alleged fraud against the defendant, claiming under a government patent founded on pre-emption. It was somewhat doubtful, whether in that case the approval of the selected lands was unconditional or not. Chief Justice Merrick said: “But whether the approval was absolute or subject to the rights of others, we are of the opinion that the State of Louisiana had, and the plaintiff through the State has the better right, and that whatever title the defendant may have acquired under the patent issued in favor of the heirs of Elijah Dempsey, should be held to inure to the benefit of the plaintiff, and that the judgment of the lower court ought to be affirmed. The State of Louisiana, whether the approval of the Secretary of the Interior were absolute or conditional, as just observed, acquired a vested right which could not be defeated, except by a real right on the part of those whom the defendant pretends to represent. ”

The same doctrine was afterwards affirmed by the Chief Justice, in the case of Knox v. Pulliam, 14 A. 134. The controversy, in that case, was between a pre-emption claimant and his adversary holding under a patent from the State. ...

The defendant, in the case at bar, refers us to the case of Foley v. Harrison, 5 A. p. 75, as sanctioning the opposite doctrine. In this ease the plaintiff claimed, under State patents issued upon warrants located upon United States lands, donated to the State by the act of Congress of September, 1841. The defendant set up title under what are termed “ float claims,” located upon the land sometime previous to the location of the State patents, and upon these float-claims defendant, after the institution of the suit, obtained the government patents.

In delivering the opinion of the Court, Judge Rost cites the cases of Wilcox v. Jackson, 13 Peters, 498, and Bagnel v. Broderick, same vol. 436, lecided by the Supreme Court of the United States, and quotes as folows: “ Congress has the full power to declare the dignity and effect of iitles emanating from the United States, and the whole legislation of the government in reference to the public lands, declares the patent to be the’superior and conclusive evidence of legal title. Until it 'issues, the fee is in the government, which, by the patent, passes to the grantee. 'Where a patent has not been issued for a part of the public lands, a State has no power to declare any title less than a patent, valid against a claim of ‘the United States ox against a title held under á patent granted by the"-United States.”

“ To avoid the effect of these decisions, Judge Rost announced that the plaintiff must establish affirmatively, that under the act of 1841, the United- States were divested of their title by the State location in the land office at New Orleans, without the necessity of a patent or of any other formality; and failing in this, he must show that the location amounted to an equitable title, and that the patents were issued in violation of law.”'

In regard-to the case of Foley v. Harrison, it seems that before the approval of the locations the State patents issued, and not only before the* approval, but even when the locations were suspended by instructions from the Land Department to the register and receiver, to make no further appropriations of land within the Houma grant, until the further action of Congress upon the subject. The party in that case, having the government patent, held the only title from the government, as it was clearly'- shown that his adversary obtained no title through the State. The base',’therefore, differs in:a very material point from the one'now before the 'court.

Coming now to the consideration of the defendant’s claim to a preemption, we find that in 1849, Wiley J. Vester bought an improvement withiil the Bastrop grant, and with it several slaves from one McFarland. On this pblac'e, at the time of his purchase, were several buildings, and amOngthem a dwelling-house and cotton-gin. Tester resided upon this place until his death. Cultivation was carried on upon this place, part of the-tinie as it appears, in the' name of Wiley J. Tester, and part of the time-in the name of his brother, Solomon Tester.

By a deed duly proved, and of record, W. J. Tester sold on the 22d of Mafblr, -1855;-to Solomon Tester, all his property, including the place he resided upon, and - on which he claimed a pre-emptidn right. On the 9th of October, 1855, as we have seen, W. J. Tester filed his notice at the land-office of the district. On the 16th of September, 1856, he appeared- at the office to make proof. His evidence was received, and he obtained Until the 19th of the same month to present some further testimony; which it seems he produced on the 20th of the same month. 'On the ‘16th of May, 1856, about four months previous, Dorcas Dinkgrave located her internal improvement warrant upon the land. The register and' receiver, upon their examination of Tester’s testimony, disagreed in opinion as to its sufficiency. In September, 1857, the Commissioner of the General Office decided against the claim. Eight months after the decision of the Commissioner, the list of selected lands, No. 50, embracing the-land in contest, was approved by the Secretary of the Interior on the 24th of May, 1858, upon the report made to him by the Commissioner,1 that't-here-appearéd no objection to the approval on the books o'f his Office. ‘-It is in proof,- that after the decision of the Commissioner against him, Yester frequently declared that he had abandoned the contest. The public land sales, of the lands within the Bastrop claim, .took place on the 16th of June, 1858, after the usual proclamation of the President of the United States, and the usual advertisements had been made. The plaintiff, Ludeling, after Yester informed him he had declined further contest for the pre-emption right, bought the land from Dorcas Dinkgrave for twenty-five hundred dollars, having relocated the warrant on the 7th of December, 1857, after the Commissioner had, decided against Yester’s claim.

In July, 1858, an appeal was taken from the decision of the Commissioner, rendered in September, 1857. The Secretary ordered a reinvestigation of the claim of Yester. The register and receiver, upon the re-examination, reported in favor of it. The Commissioner again decided against it. This decision was reversed by the Secretary of the Interior, and the patent issued in favor of Yester’s heirs, as already stated on the 7th of December, 1859.

By the two acts of Congress, the first approved 3d of March, 1851, the other on the 3d of March, 1853, applicable to the Bastrop grant, the benefits of the act of September 4, 1841, were extended to persons, who, but for the reservation of the lands, would have been entitled to pre-emption rights under that or some other act granting pre-emptions.

The privileges of the act of 1841, being extended to settlers in the Bastrop grant by the act of March 3, 1853, Yester, dating his settlement in 1849, and availing himself of the act of 1841, (as he coidd claim the benefit of no earlier act) was required to fulfil the conditions of that act and those of the act of 1851, which he claimed under. It was incumbent upon him to show that he was a bono fide settler, and an actual housekeeper on the land at the time the public surveys were extended over the same. That he had built a dwelling-house upon the land claimed; that he had made improvements upon it; that he was a man of family, or a single man over twenty-one years of age. He was required to swear that he had not directly or indirectly made any agreement or contract with any person by which the title he might procure from the government should inure to the benefit of any person except himself. He was bound -to consummate his pre-emption by making his affidavit proof, and payment within a year after the filing of the approved plot of survey in -the office of the register of the proper land-office.

At the time Yester settled upon the improvement, he bought within the Bastrop grant — the land embraced by it was not considered public land. It had been treated, previous to the annulment of the grant as private property, by being made the object of sale and taxation. It is not clear, that when he bought the improvement and settled upon the land, it was with the intention of securing a pre-emption upon it, nor that his settlement and occupation come strictly within the spirit and intendment of the pre-emption laws. It is shown that he put up near his dwelling-house a small fabric intended for a kitchen, and that he put in it a bed and a few other articles of furniture, the purpose clearly being to make a show of having built a dwelling-house upon the land. To obviate the difficulty arising from the sale, which we have noticed, he resorted to the scheme of exhibiting at the land-office a reconveyance of the property from -his brother. This was a private act, not placed on record, and purporting to be dated June 1; 1855. A witness to this act, being sworn on the investigation of the claim, stated under cross-examination, that the act had been executed the night before; that is, on the night of September 19, 1856.

On the part of W. J. Vester, on the first examination of his claim, an effort was made to introduce Solomon Vester as a witness, to prove the reconveyance of. the property to W'. Ji Vester, and that Sólomon Vester had no interest in the improvement. The introduction of the witness was objected to, and the objection was sustained. A bill of excéptions was reserved. - Before the reinvestigation canie on; Solomon Vester died. A question arose as to when the extension of the surveys over the lands is to be considered as having taken place; whether, upon the completion of the work in the field, or at the time of the filing the approved plots of survey in the office of the register of the proper land office. We think the instructions of Mr. Butterfield, the Gommissioner of the General Land Office, are sufficiently clear on that point. • In his letter of 17th of April, 1851, to the register and receiver at Monroe, he says: “The period at which the proof is to be filed in your office and the entry consummated, .is any time within a year after such extension of the surveys over the land; a period which this office will take care by instructions to to the Surveyor General shall be sufficiently and plainly shown by the plots he will furnish you of. such surveys.”

It appears that the entries on the margin of the township map, show that the survey of the township was completed in the first quarter of 1855. . The first appearance of Vester, at the land- iffice to make proof, was on the 16th of September; 1856. The township map was filed in the register’s office on the 20th of September, 1856.

It can admit of no doubt whatever from the tenor of the act of 1841, and from the instructions of Mr. Butterfield, the Commissioner, that the time of the completion of the surveys in the field is the period from which the year is to commence. , But as the act of 1853 extends to preemptors the privileges of the act of 1841, it would seem that the preemptor on lands not in market, would be allowed one year from the time of the filing-of the township map. Two classes of lands were subject to pre-emption by the act of 1841; those which were subject to private entry, and which of course had been previously offered at public sale, and those which had been surveyed, but had not been exposed to sale. Pre-emptors on the land, subject to private entry, were required to prove their right and pay for the land within twelve months from the date of their settlements; while those on lands which had not been offered, were allowed twelve months from the time of the filing the plot in the proper land office, unless a public sale of the land should intervene, in which case the proof and payment were required to be made before the sale. Vester was entitled to the privileges accorded to the last-named class of pre-emptors, and it appears that he presented his claim barely within the time allowed.

An effort, and an ineffectual one in our judgment, was made to ward off the effect of the sale of W. J. Vester to Solomon Vester, by showing it to have been simulated. It did not lie with the party to show that his written act, duly entered .upon the public records, was a nullity and a fraud. It is shown that Solomon Vester, under this sale, had the prc - perty assessed in his own name, and that W. J. Vester gave in nothing for assessment, and that he paid only a poll tax. That Solomon Vester exercised ownership over the place; that as late as the 1st of September, 1856, he spoke of the place as his own, ahd that in presence of Ms brother.

Assessments are made under the oath of the party assessed. The year within which W. J. Vester could file his affidavit- and proof,' expired on the 20th of September, 1856. We have seen that he appeared at the land-office on the 16th of that month, and obtained further time, to-wit: to the 19th to complete his proof, and that the completion of it was the production of the fraudulent retransfer from Solomon Vester, proved to have been manufactured the night before. Other witnesses testified to facts, the tendency of which is to show that W. J. Vester was the real owner; but these facts we do not think conclusive, that Solomon Vester had no interest in the things sold. • .

The counsel for the plaintiff insists, that the failure of- Vester to take an appeal from the Commissioner’s decision against him before the land sales cuts off his right altogether, and puts an end to the contest. Wo think this position correct. It is true, that no definite time is fixed by law within which such appeals are required to be taken. But we find, from the general tenor of the pre-emption laws, that persons claiming rights under them are required, within reasonable delays, to establish those rights, and that a failure to do so operates a forfeiture of them. By the act of 1841, the class of pre-emptors, in which Vester was placed, forfeited their pre-emptions, if they failed to establish them before the public land sales occurred. He presented his proofs barely within the year from the filing of the township map in the land-office, at Monroe, viz: on the 20th of September, 1856. The decision of the Commissioner against him was rendered in September, 1857. Notice of this decision was duly forwarded to the local-office, with instructions to notify the parties in interest.

The public land sales commenced on the 16th of June, 1858, and lasted three days. Vester had then from September, 1857, until. June 16, 1858, to take his appeal. The appeal was not taken until the 7th of-July, 1858, near a month after the land sales were over. After.the decision of the Commissioner against him, he declared his intention to abandon the contest; and is not his long delay to appeal to be construed as an acquiescence in the decision? Before the land sales came on, .Dorcas Dink-grave’s land warrant had been relocated, and the list of selected lands approved, by which the title was vested in the State.

If there was no limit to the time of appeals in such cases, the confliction of claims would be endless. If a party were allowed his own time to appeal, a bona fide purchaser at .the public sales, without notice, might be ousted of his land years after he had acquired and improved them.

Under the state of facts presented, a claim open to so many objections, and regarding the validity of which there was such a discrepancy of opinion among-the officers of the-Land-;Department, the'Commissioner of íhe^Geúéhil1 Land'offi¿é¡'having 'twice ‘decided agamst it^' could not, in our view, be decreed a pre-emption right, unless by a strained and unwarranted cohstrucfeoh1 of id w, and against its tenor and spirit.

It'is ’thérófbre'1 ordered, adjudged' and decreed that the judgment of the District Court be affirmed, with costs in both c,ourts.


author: "«'HiM-ANy-O.• J.'*-

text:
    No. 1734.
    State of Louisiana v. Charles Morgan and Samuel Wilson, alias Buck Sam.
    XJuder-th.e ac.t ofpheXegislatureof 16th pf .Murph, 1855, sao. 7{ all'¡registered voters, and none others, ’ are competent jurors for the7panah of Orleans.
    Alter the completion of the registration*pf ^iie-v'ote^s’in tlié parish of'Orleans, under the aots ’of Congress, commonly called Reconstruction Laws, passed in 1867, none others than those regis. tered as qualified voters under such registration, are competent jnrors for the parish of Orleans. A jury drawn and formed from* any other or former'list of registered voters is illegal.
    PPEAL.from the First District Court pf New Orleans, Howe, J.

      B.L.Lynch, Attorney General, for State.

      A. P.Field, for appellants.
   "«'HiM-ANy-O.• J.'*-

'The Jadge Pf'.the''FifsffDistri'ct Court of New Orleans, by¡;authpyity.pf. the.seventh spc.tion of -an.act entitled “an act relative to juforáin the--parish ’ of-Orlea'ns,” approved 'March 15, 1855, ordered on the 6th December, 1867,' tbe sheriff' to prepare a new list of jurors.

¡Undpr.this order, the sheriff proceeded to. draw a jury from a registry off.tlie.^uabfieffyoters'madp'in 186,5,,.by,ahthority. of :,the statutes of the State, and not from the registry of voters made-in, 1867,- by authority of the,R.ecpnstructipn .Acts, .,Spe,„act of, Cpngress,,-.passed -2d March, 1867, entitled, “an act to provide for.the, more efficient,government of the rebel States^’,^na amepdmpnts therptq,>(-, ’

registry,of 1865 contained not,a.half of the number, of registered voters as the registry of 1867, contained.

,,By authority of the. llth sectipn,of the, Constitution of .1852, the Legislature passed acts requiring, registration .pf,,voters,; and declaring none were voters hut,those who .wereregistered.

The ac.t,pf,15th, Maroh)l.li?55,,afip.y,e,Teferreidl;tp,, .required the sheriff to forfli;a.li?t.pf jurors from-.allthp.qijalifiediyoterS'Of'the.parish of Orleans, except such as were exempt, and to draw from-that list the jury.

A grand jury, selected from the drawing m^de-by, the. sheriff from the registry,of .1865, as ahoye, stated,-, found,a .bill- .ofindictment for murder a^in^ffdefendants,. yvhA.filecl #.,mp,tiqp,.;Ttoi.haye -the' indictment quashed, ^pa^é thej’ui^ thus draYn.-^a^iffegalf.-andincpmpetent.

-,)í)e5feff^a^,t^.se| f orth,,.other grpun,d$<in.the’,motion, which are not stated by us, as oúr opinion on the ground aboye stated, settles the question as to the yjl^dfty of fhé hill of indictment.

The Judge overruled the motion.

.,■deffeia.^ants yei;^jtrigd=|,,J)3ii4t»jfiiy,: who.; brought .in a verdict pf gijü^.(;,;íThpílJluffge, passed-, septeMoa-pn;them,nandj they have appealed.

.^W^Jatulp^pf.jth^Stufe,, malie.all-whp.aresregistered as voters in the parish of Orleans, qualified voters therein and- competent jurors for the

all 1 persons,( whq;are.registered Tile Eeconstruotion Acts make their provisions, voters.

As all wlió are registered under the Eecónstniction,Acts,(,in,.j;,ii,e p.airi^ of Orleans are qualified vqters therein,''sq, also are tlyey competent jurprs therefor.

The sheriff should have drawn tlíe" jury from a list of all the qualified voters in the parish of Orleans, which he did not do in .'drawing from the registry of voters of 1865, as that registry is not a list of all the qualified voters of the parish.

The grand jury selected from such drawing was not formed according to law, and its proceedings are invalid.

Let the verdict of the-jury be set aside, and the sentence' of the Court be reversed. Let also the. indictment be.quaiphed.


author: Labatjve, J.

text:
    No. 1352.
    A. C. Finley et als., v. Bogan and A. Levi.
    A recorder or notary public, who passes an aoj.of „sale between,partios, is a-compelen fc\wijnessjo’ties>tify as to what was said by the parties at the time or afterwards.
    Testimony taken by commission, rejected by the lower court, attached to a bill of exceptions, taken1 by the party offering it, and forming a part of f he record of appeal, wilL be noticed by the-JSm; premo Court, 1he same as though it had been admitted by the Ju&g» aguo. '
    APPEAL from the Fourth District Court of New Orleans, Theard J.
    E. Philips and J. Joor, for plaintiff/

      Race, Foster & E. T. Merrick, for garnishee and appellee.
   Labatjve, J.

The plaintiffs, having obtained a judgment against the defendant, J. Bogan, which was partly satisfied, and'leaving a balance dne on the 7th of April, 1866, of $3,944'66, proceeded to garnishee^/ Levi and John Gribble, by'citing then/ and putting to each of ihem'tíié following interrogatories:

Interrogatory 1. What property, rights' of credits have yofi in yóúr possession or under your-control, now or at-any tiine between thé sérvic’e of these interrogatories and the time you- answer them,'bélongifig/jio James Bogan, of the parish-of East Baton Eoiige?1' If yea',1 what?'’

Int. 2. Are you indebted - to James Bogari? If yea, how- fnucli‘ át'tfib' time specified in 1st interrogatory?

John Gribble answered as follows:

“The undersigned, in answer to the interrogatories propounded ’to' hitó ’ ip this case, declares that hehasmot in'his possession-or finder hís’fibfií" trol, nor had he at the tim'e t-fiis suitwa's ifistitfited’/afiy property,' fights'1 or credits belonging to said James Bogafi, noris he in any way ifidebtedi to .said defendant.”

(Signed)

1:1 J. B. GEirnsnE.”.

Abraham Levi answered as follows:

“To-thelst interrogatory-,No;.andtha't'-he,'-háB nótin his possession nor nder his control, nor has-he had betweefi -thé'Service of these interrogkoríes and the present time, any rights,-credits or property whatever elonging to said James Bogan.

To the 2d Int., No; that he was not at the time of the service of theseÍ interrogatories, and has not been at any time since indebted to said Janies Bogan; on the contrary, said James Bogan is largely indebted to this garnishee.”

(Signed) . “A. Levi.”

Supplemental interrogatories were filed by plaintiffs, and answered by Abraham Levi.

The'supplemental answers, not being satisfactory to the plaintiffs, they took a rule on said Abraham Levi, to show cause why the interrogatories, having been evasively and not categorically answered, should not be taken for confessed and judgment rendered against him; and on the further ground, that none of said answers are correct, and that plaintiffs expect to disprove them on the trial, etc.

''On‘the trial of the case below, plaintiffs offered the testimony taken under commissions, of Hasket, Burgess and Hubbs.

, .The- defendants objected to so much of said depositions as tended to explain the act of sale from Bogan to Levi, or to state what was said by the parties before, since or at the time said act was passed; and to so much as 'tended to contradict the answers of said Levi, in regard to said, act of sale, on the ground that the recorder could not be heard to contradict his official acts or add to the same, etc.

.The Court sustained the objections, and rejected the depositions; the plaintiffs excepted.

We are of opinion that the Court erred. The Art. 2256, C. C., contemplates the parties to the act and their representatives, and not third persons. 14 L. 108. 7 R. 53. 2 A. 94, 480. 4 A. 500. This rule is too wiell settled to be. now controverted. Defendants’ counsel have quoted marly decisions of this Court; rejecting parol evidence under said article; but they do not apply to this case, having been rendered in suits between the parties1 to the act or their representatives. The plaintiff herein was not a party to the act in question.

• 'The'rejected depositions, being annexed to the bill of exceptions, are in the "record, and can he considered by this Court as ’ evidence. 11 A. 404. ., i 12 A. 12,. 50. 13 A. 443. 14 A. 61.

- The original answers of the garnishees are clear and positive, and negative’all, indebtedness to, and possession of property of, the judgment debtor. -. The" supp'emental answers are in substance of the same import, and we have carefully examined the testimony, including the rejected depositions offered to contradict them, and wfe are of opinion that they hake not been substantially destroyed.

■ The. judgment,, which was rendered in favor of the garnishees, is affirmed, the plaintiffs and appellants to pay costs.


author: Tabiahebbo, J.

text:
    No. 1576.
    J. B. Terrail v. E. B. Tinney et al.
    The seizure and sale by the constable, under writs of fieri facias placed in his hands by the justice of , the peace, of the property of a person not a party to the suit or suits is null, and he may compel tíie justice of'the pence and constable to restore his property thus illegally seized and sold, or ; - 'jpay'him the value thereof in money.
    A J_1 PPEAL from the District Court, Parish of St. Charles, Beauvais, J.

      J. B'. Augustin, for plaintiff and appellant.

      Hawkins & M'sh, iox defendants and appellees.
   Tabiahebbo, J.

In the early part of the year 1866, one Mialocq had a number of freedmen employed in chopping wood for him; ■ .Several of them brought suits against him before E. B. Tinney, a justice of the peace, for their wages. Mialocq was arrested, and a seizure was made of the stock of provisions he had on hand for the use of his laborers. He was released from the arrest and the property from seizure; upon executing a bond of $500, conditioned as follows: “ Thatif said Mialocq appear at my office and deliver up to me the articles enumerated herein, on Sat-, urday, the 17th of February, 1866, or pay certain judgments or claims against him in favor of a number of colored-men, then this bond to bovoid, or else to remain in full force and effect.” ',

Terrail, the plaintiff, became the surety of Mialocq on this, bond; It-seems the conditions of the bond were not complied with.' On the bond, the following decree was endorsed: “Justice’s Court, Fourth Ward, St. Charles parish. This bond was forfeited on the 17th of February,,-1866,. by the within-named principal, and the security, by refusing to deliver, the within schedule of goods, also offering contempt to the court, cursing and defying the law? of the same.

“ This, the 17th day of February; 1866.”

“E. B. Tinney, J. P.”

“The constable proceeded to seize the goods of-the defendant, and put the same under keeping for further action of the court, by the order of the court forthwith.

February 17, 1866. “E. B. Tinney, J. P.”

It seems that on the 23d of February, about thirteen days after the. date of the bond, about-forty other parties instituted additional suits in the same court against Mialocq. A separate judgment was rendered, in each suit, and executions followed.-

The property detailed in the schedule was finally sold, and brought an ■ amount exceeding five hundred dollars. It appears, as part of- the singular and multifarious proceedings disclosed by this record{“longpi curm longce ambages ”) that Mialocq had previously instituted in the- District Court against some of the parties at least, who had obtained these nume-, rous judgments against him, an action to annul, having restrained the executions by injunction. The aggregate amount of the- judgments, he essayed to annul, was $214 25. He failed in this effort. Judgment'was rendered against him, the injunction dissolved, and he prayed for-an appeal to this court, which was refused. He applied to this court for a mandamus, to compel the District Judge to allow the appeal; This application was refused, on the ground that this Court had no-jurisdiction in the case. 18 A-. p. 398.

After these successive defeats, and his effects sold under execution, Mialocq absconded. A notice in each of the many cases was served upon the unfortunate surety, informing him that the judgments had been confirmed by the Supreme Court, and that he was looked to for payment:. Executions without number were issued, and property of the surety to the amount of $710 was seized. This property consisted of twenty-five cords of wood, a pair of oxen, a mule, two carts and harness, and other things appraised to $710, , The oxen and mule were work .animals of the plaintiff.

This property was seized oh the 28th of March, and was advertised and sold on the 5th July, the justice of the peace becoming the purchaser. The plaintiff took out an injunction on the 3d of July, to stop the sale, but service of the writ was not made in time to prevent it. 'He then took a writ of sequestration, and in his petition prays for judgment against Tinney and his constable, E. G. Young, $3,000 damages, for the restoration of his property, which he alleges was illegally and wrongfully seized, or payment for its value, and all other equitable relief. It seems these numerous executions, none of them for a sum exceeding fifteen dollars, were clubbed and put in the hands of the sheriff. The property was seized under the sequestration, and bonded by the plaintiff, and taken into his possession.

At the ensuing October term of the District Court, the injunction and sequestration suits were consolidated and tried together. The defendants severed in their answers. Tinney denies each and every allegation in plaintiff’s petition contained. He avers that all his judgments, writs, notices, ’etc., have been rendered and conducted in conformity with law; that he cannot be made answerable civiliter for his official acts, should it be found that he has erred in any of the forty-nine cases against John Mialo'cq-and Jean Baptiste Terrail, security; it is nothing more or less than errors of judgment in his official capacity, for which he is not liable in damages.

The other defendant, Young, puts in a general denial. He avers that he'acted throughout under the sanction of judicial authority, executing such process as was directed to him in his official capacity.

The defendants had judgment in their favor in the court below, and the plaintiff appeals.

Without deciding that the defendants for the official acts complained of are liable in damages to the plaintiff, nevertheless it is clear that they should be held bound to restore to the plaintiff his property, or, in default thereof, its full value. The plaintiff was, in no manner whatever, a party to any of the forty-nine judgments rendered against Mialocq. They were as to him “res inter alios acta.” He stood simply as the surety of Mialócq, on a bond conditioned for the payment of $500, if Mialocq failed to deliver to the Justice the property which had been seized, or pay certain judgments or claims held against him in favor of a number of colored men. This bond is a mere nullity. The property seized, and for which, the bond taken, was again seized by the constable immediately after the rendition of the decree of the Justice, declaring the forfeiture of" the bond an ex parte proceeding wholly irregular. Although the bond itself was null, still its conditions were in effect complied with, for the very property stipulated to be returned was taken possession of by the constable, as the record shows, the day it was to be forthcoming.

It is therefore ordered, adjudged and decreed that the defendants, E. B. Tinney and E. H. Young, within twenty days from the filing of this decree in the lower court, restore to the plaintiff, Jean Baptiste Terrail, his property seized under the order of E. B. Tinney, justice of the peace, dated 17th February, 1866, and which is described in the writ of sequestration, directed to the sheriff of the parish of St. Charles; and in default thereof,-it-is adjudged and decreed that plaintiff have judgment against the defendants in solido, for the sum of seven hundred and ten dollars, and that execution issue thereon after the expiration of the delay granted for the restoration of the property.

It is further ordered, that the defendants pay costs in both courts.


text:
    No. 889.
    Home Mutual Insurance Company v. The City of New Orleans.
    That portion of the capital of the Home Mutual Insurance Company which is invested in bonds and stocks exempt from taxation by statute, is not subject to taxation as the capital of the company.
    Capital composed of property not subject to taxation cannot be taxed by calling it nominal capital.
    The principle of uniformity and equality in taxation, required by the Constitution of Louisiana, would be violated by assessing the nominal capital of a company or corporation liable to be taxed on the amount of capital paid in or to be paid in.
    Where a party or acompany have been compelled to pay an illegal tax to the city of New Orleans, founded on an assessment on property or capital stock exempt by law from taxation, he or they may recover the amount thus paid, by suit against the city.
    A il. PPEAL from the Third District Court of New Orleans, Felbwes, J.

      G. 8. Lacey, for plaintiff.

      G. L. Bright and T. H. Hewes, for de-; fendant.
   Taliaferro, J.

For the year 1861 an assessment of $14,925, was made by the city authorities upon the capital of the Home Mutual Insurance Company.

Payment of a large portion of this tax was refused, on the ground of its alleged illegality. Suit for its recovery was instituted in the Second District Court, and judgment obtained, from which the company took a suspensive appeal, that is now before this Court. In November, 1864, the insurance company was compelled, under a military order of General Banks, to pay to the city the amount of the judgment, to-wit: $14,925, with twelve per cent, interest (reduced afterwards by remittitur to ten, per cent.) from the 1st June, 1862, until paid. The military order.reí-served to the company the right to reclaim by suit, and recover the sum. then paid under that order. The object of the present suit is to recover from the city the sum of $11,032 25, with eight per cent, interest from, the 3d day of November, 1864, until paid, on account of the.alleged illegal tax the company was required to pay. ■ • < ¡,, ,■

To the plaintiff’s petition the defendant filed a peremptory exception, averring that plaintiff has no right of action, which was overruled, and the defendant has appealed. \ '.

. This controversy arises from the levying of a tax by the city authorir.. ties upon certain bank stock and railroad bonds, forming component parts of the capital of the company. These securities, the company contends are exempted by law from taxation. This is not denied; but it is, held that the tax is laid upon the bonds and stocks as capital, and not , as bonds and stock eo nomine, and therefore, there is no infringement of the law. ’ .

A confliction of opinion has arisen on this subject, not only in this State, but in other States of the Union, and much litigation has grown ' out of it. A distinction is taken between nominal and actual capital. 1,,

By the provisions of the seventieth and seventy-second sections of the city charter, the city has the right to tax corporations upon the amount , of their capital stock paid in and secured to be paid in, excepting capital stock owned by the City and State, and that paid for real estate, which is to be taxed as other real estate.

Capital stock paid in and secured to be paid in, “ means, by the defendant’s construction, the nominal or fixed capital stock of corporations as contradistinguished from their real or actual capital — their assets. Nominal or fixed capital stock, as applied to corporations, means, as contended by defendant, the nominal amount of capital stock specified in the act of incorporation, without any reference whatever to the nature, character, description or value of the property or assets of the corporation. That actual or real capital means no more nor less than the actual property or assets of the corporation.

The plaintiff complains that the uniformity and equality of taxation, required in this State, is violated by the system of taxation contended for by the defendant; that the power conferred upon tlio city of Now Orleans is a power to lay an equal and uniform tax upon all property, real or personal, in said city; and that equity and good faith forbid the 2>rinciple which permits the taxation of bank stocks and bonds specially exempted by law from taxation, under the unreal and imaginary distinction assumed by defendant between nominal and actual capital.

The proposition that capital may be taxed, whether it be composed of property subject to taxation or not, by calling it nominal capital, would seem to involve difficulties that are not easily escaped from. If this nominal capital is to be considered as something essentially different from ■ the actual capita], a mere abstraction, an airy something luiving no connection with or relation to substantive property', which, for useful purposes, is the only capital after all, then it follows, as this unreal, ideal .capital alone is taxed, that the substantive, tangible capital, composed of money, stocks, bonds or real estate, or scroll parts of these as are not exempted from taxation, is liable also to separate taxation. Why not? Shall the answer be that it cannot be taxed because the nominal capital is taxed? If this be a sound reason, does it not concede that there is some connection between the nominal and the actual capital? Would not such a reason admit that the actual capital is either in whole or in part the nominal capital? If the sum named in the act of incorporation as the capital, is to be the unvarying standard, and to be termed the nominal capital of the corporation, upon which the tax is to be assessed, and the actual capital left out of view altogether, the tax imposed could be considered in no other light than as a tax annexed .to the franchise, as a royalty for the grant, a quid pro quo, a tribute annually paid for the act of incoporation. ' But upon what ground would this royalty for the grant rest? If it be a sovereign prerogative, the Legislature has not the power to grant it. If that be not the character of the tax, a grave question might arise as to its legality, for by the Constitution of the State all property is required to be taxed in proportion to its value, to, be ascertained by assessment.

The city seems to exercise the taxing power in regard to corporations without a valuation of the property except real estate. The city assessors are: empowered to require the President, or other proper officer of the company, to furnish under oath, a statement of the amount of its capital stock paid in and secured to be paid in, the amount of real estate owned by the company, and the sums actually paid therefor.

We have been referred to decisions of the New York Court of Appeals in cases involving the question raised in this case, and tó a decision of the Supreme Court of New Jersey, on the same point.

The rulings of the courts of those States are relied upon, on thé part’Óf the defendant, as entitled to great consideration. By'an act1 of the Legislature of the State of New York, passed in the year 1857,1 the capital stock of the banks was required tobe assessed and taxed' at' Us actual value. Under this act arose the case of the Bank of Commerce v. New York City, 2 Black’s Reports, 620. The judgment of the Court of Appeals of New York sustaining the tax levied on the nominal capital was reversed by the Supreme Court of the United States. Mr.' Justice Nelson said, “ The stock, then, is held by the bank, the same as such stocks’are held by individuals, and alike subject tó taxation, or exemption by" State authority.” ,<•

In 1863, another act was passed by the New York Legislature, oil the subject of the basis on which corporations were to be taxed. .This act of 1863 directs that the tax shall be imposed “ on a valuation equal to'the amount of their capital paid in or secured to be paid in, etc, ” in the same manner that taxes are imposed upon corporations by the city, of New Orleans, and which has given rise to several eases before this Court. Under the New York law of 1863, originated the later case' o'f “ The People of the State of New York, ex rel., The Bank of the Commonwealth, v. The Commissioners of Taxes of the City of New York.” American Law Register, vol. 4th, N. S. p. 277.

In this case, the Appellate Court of New York again sustained the dóctrine of the “nominal capital ” and dwelt at considerable length upon the distinction between actual and nominal capital. The judgment, on appeal to the Supreme Court of the United States, was reversed, and the same views expressed by the last-named tribunal that were announced in the case of the Bank of Commerce v. New York City. In the latest case, the one in which “ The People, ex rel., The Bank of the Commonwealth, were plaintiffs against the Commissioners of Taxes, the Supreme Court of the United States, through Mr. Justice Nelson, said:

“When the capital of the banks is required or authorized by the law to be invested in stocks, and among others, in United States stock, under their charters, or articles of association, and this capital, thus invested, is made the basis of taxation of the institutions, there is great difficulty in saying that it is not the stock thus constituting the corpus or body of the capital that is taxed. It is not easy to separate the property in which the capital is invested from the capital itself. It requires some refinement to separate the two thus intimately blended together. The capital is not an ideal, fictitious arbitrary sum of money, set dowm in the articles of association, but, in the theory and practical operation of the system, is composed of substantial property, and which gives value and solidity to the stock of the institution. It is the foundation of its credit in the business community.

The Legislature well knew the peculiar system under which these iustituüons-were incorporated, and the working of it; and when providing for a tax on their capital at a valuation, they could not but have intended a tax upon the property in which the capital had been invested. “ Having come to the conclusion that the tax-on the Bank of the Commonwealth is a tax on the properly of the institution, and which consists of the stocks of the United States, we do not perceive how the case can be distinguished from the cases heretofore before the court, and reported in 2 Black, 62Ó.

This -we deem conclusive of the question, and we think the plaintiff, in this case, entitled to relief.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be affirmed. It is further ordered, adjudged and decreed that the plaintiff, ‘1 The Home Insurance Company, ” recover from the defendant, the City of New Orleans, the sum of eleven thousand and thirty-two dollars and twenty-five cents, with eight per cent, interest per annum from the 3d November, eighteen hundred and sixty-four, with costs in both courts.

Rehearing refused.


text:
    No. 479.
    Home Mutual Insurance Co. v. The City of New Orleans.
    Tiie pity of New Orleans may be restrained by an injunction, from proceeding by order of seizure and sale, to enforoe the payment of an illegal tax. See the case of Home Mutual Insurance Co. v. City of New Orleans. No. 889, (ante page 447.)
    APPEAL from the Third District Court of New Orleans, Sandlin, J.

      G. S. Lacey, for plaintiff.

      G. L. Bright, for defendant.
   Taliaferro, J.

This suit is founded upon an injunction taken out by the plaintiffs to restrain the defendant from proceeding against them by order of seizure and sale, to enforce the payment of $9,982 46 and interest, claimed to be due the city for taxes assessed upon the capital of plaintiffs, for the year 1862. Plaintiffs allege this tax to be illegal, and pray relief accordingly.

Upon the trial below, there was judgment perpetuating the injunction, and the defendant has appealed.

The facts relating to this case are stated in the opinion of the Oourt, rendered in the case between the same parties, on the same issues made in regard to the taxes for the year 1861, claimed by the city from the insurance company on the same grounds, which case is numbered 889 on the docket of this court.

For the reasons assigned in the opinion rendered in that case, it is ordered, adjudged and decreed that the judgment rendered by the District Oourt, in this case, perpetuating the injunction, be affirmed, the defendant and appellant paying costs in' both courts.


author: Taliaeerbo, J.

text:
    No. 597
    City of New Orleans v. The Citizens Mutual Insurance Company.
    A PPEAL from the Second District Court of New Orleans, Whitaker, J

      W. S. Sunt, for appellant.

      L. M. Bay, for appellee.

      Reporter. — This case was decided by the Supreme Court in 1866, and reported in error, in 18 Ari. page 707, while pending on a rehearing. For the reasons given in the case of the Home Mutual, Insurance Company v. the City of New Orleans, No. 889, (ante page 447,) the first opinion was overruled on rehearing.
   On Rehearing-.

Taliaeerbo, J.

For the reasons assigned in the judgment rendered' in the case of the Home Mutual Insurance Company v. The City of New Orleans, No. 889, it is ordered, adjudged and decreed, that the judgment heretofore rendered in this case, be avoided and set aside; and it is now ordered, adjudged and decreed that judgment be rendered in favor of defendant, the plaintiff and appellee paying costs in both courts.


author: Howell, J.

text:
    No. 1333.
    Jas. W. Howard v. C. Yale, Jr. & Co.
    "Where the consideration for the transfer of a written contract of sale of a lob of cotton is shown to bo Confederate treasury notes it cannot be judicially enforood.
    APPEAL from the Fourth District Court of New Orleans, Tl/éard, J.

      G. M. Bradford and A. B. Land, for plaintiff.

      Semmes c6 Mott, and Emerson & Grout, for defendants.
   Howell, J.

This is a suit for six thousand pounds of-cotton, or its value at the date of instituting suit, and is -based on the following instrument:

“Received of S. D. Parker, for account of C. Yale, Jr. & Co., S780, in payment of 6000 pounds cotton, class strictly middling, it being thirteen cents per pound, which I promise to have ginned and neatly put up as soon as rope and bagging can be procured, and deliver the same in good order at Marcell.

This 7th July, 1863. (Sighed) WilIiam Matthews.

(Transfer)

William Matthews.

Pay to the order of ,J. W. Howard, and oblige,

S. D. Pabkee,

This 6th June', 1864,

Mansfield, La., Sept, 14th, 1865.-

We ratify the transfer made by S. D. Parker, above.

(Signed) , C. Yale, Jb, & Co, , ,. per C. M. Pegues, Agent.”

Plaintiff charges fraud on the part of the defendants’ agent, Parker, in representing the cotton to be in the possession of the said . Matthews, when in point of fact it was not, at the date of the pretended sale to him, and alleges that the sum of twenty-four hundred dollars, paid by him, to said Parker, for the cotton, was used by the latter for the benefit of defendants.

The defence, among other matters, is, that the consideration of said transfer was illegal, being Confederate notes. To this, plaintiff replies that the contract is an executed contract, and that his suit is in the nature of a demand for damages for eviction after the sale.

In this we cannot concur. We view the suit as one to enforce a contract of sale, the plaintiff setting up the written transfer, and asking that the defendants be condemned to pay him six thousand pounds of ginned Ootton, or- its value. And, as the consideration in each transaction is clearly shown to have been Confederate treasury notes, the contract is one, which our courts, under the settled jurisprudence of the State, cannot enforce. This question is not an open one.

It'is therefore ordered that the judgment appealed from be reversed, and that plaintiff’s demand be dismissed, with costs in both courts.


author: Labadve, J. Ilslev, J.

text:
    No. 969.
    Samuel Jamison et als. v. John C. Barelli.
    Under Art. 3235, O. 0.„the bolder of the vendor’s mortgage on land, cannot olaim to be paid in full out of the proceeds of the sale of the land and buildings erected thereon subsequent to the sale of the land to the exclusion of those forming the builder’s Hen.
    Old buildings, sold to the contractor for the erection of new buildings, and taken by him as part of the price, and used by him in their construction, cease to be immovables, and the lien upon them in favor of the vendor of the land, becomes extinguished.
    The recording of contracts is nofcgoverned by date of registry, as mortgages are The several con» , tracts, for the construction of different portions of the same building, have a concurrent Hen • without regard to their execution or date of registry. 0.0.3239.
    Where a separate appraisement of land and buildings is had, the expenses of the sale, appraisement» taxes, and each like privilege debts on the property sold under execution, must be paid out oí the proceeds of the land and buildings, in proportion to their respective appraisements.
    Anappellee cannot have the judgment of the oourb below amended in his favor without filing an (ansvver to that effectm the appellate court.
    Bo amendment or reversal of the judgment of the court below will be rendered in the appellate court between appellees.
    1 XI RPEÁL frpm tbe Sixth District Court of New Orleans, Felbwes, J.

      Clarice <& Bayne and Durant <& Hornor, for plaintiff and appellant,

      _X X. Cohen, Simonds and Penn, for defendant and appellee.
    ' . Reporler.~This case was decided in 1867, and should have been reported among the cases for November, in the 19th Annual, but was omitted in that volume, the record not having come into the hands of the reporter 'until after that volume was printed.
   Labadve, J.

-The plaintiffs, having obtained a judgment against the .'defendant, caused to be seized the Moresque buildings, upon which they had a privilege as builders. A mortgage, with the privilege of the vendor, • existing upcin the lots in favor of the heirs of Morgan, a separate appraisement was made, as prescribed in Article 3235 of the Civil Code, of the ground and of the buildings. The former was appraised at $80,000, and the latter at $135,000. The whole sold by the sheriff for $160,000, on twelve months’ bond to Gauche. There are fourteen intervenors. and third opponents, claiming priority in the distribution of the proceeds, under builder’s or -undertaker’s lien, the heirs of Morgan claim to be recognized as first mortgage creditors to the full amount due them, and •with a privilege on the buildings for $4,000, value of materials of the old buildings used in the new buildings, and which were on the lots wi en sold-by Morgan’s heirs.

We ill first examine the grounds upon which the heirs of Morgan claim -to be paid in full out of the proceeds of the lots, and by privilege for. $4,000 .on the buildings.

The act of sale, of the lots sold by George Morgan’s heirs to the defendant, John O. Barelli, passed on the 12th March, 1860, contains the pact de non alienando, the vendor declaring that he binds himself not to,sell, mortgage, nor in any manner alienate the said property, or any portion thereof, to the prejudice of said mortgage. From that clause they argue that the defendant had no right to incumber the property with privileges which, as regards them, are null and void, and that they must be paid in full out of the proceeds of sale, without regard to the pretended privileges. The Art. 3235, C. C., quoted, makes no distinction, whether there be in the act of sale of land any clause de non alienando; it says: When the vendor of lands finds himself opposed by workmen seeking payment for a house, or other work erected on the land, a separate appraisement is made of the ground and of the house, the vendor is paid to the amount of the appraisement on the land; and the other, to the amount of the appraisement of the building. Ubi lex non distinguil, nee nos distinguere debemus.

We are of opinion that this claim of Morgan’s heirs, is unfounded.,

In regard to the claim of $4,000, by privilege on the proceeds of the buildings for the value of materials of the old buildings, it appears that the buildings, on the lots at the time of the sale, were worth from $6,000 to $8,000, and that the plaintiffs took them in part payment of the contract, to use them in the new buildings, at the price of $4,000. This was necessarily a sale to the undertaker, who became the owner of said materials, and Barelli, the vendee of Morgan’s heirs, having parted with the possession and ownership of said materials, the privilege of the vendor in favor of Morgan’s heirs, was gone and extinguished. These materials of the demolished buildings became movables, and having been replaced in the new buildings, and sold confusedly with other things, it became impossible, on the part of Morgan’s heirs, to show, what price they brought. C. 0., Arts. 3194, 3195, 467. We believe that this privilege on the proceeds should have been rejected.

As between the opponents, plaintiffs say that they should be first paid, as their contract was recorded prior to same, and on the same date with R. Little, and that the latter can only recover so much as is due him.

The undertaking of this immense building was divided, and given out to several contractors.

The plaintiffs contracted for a part on the 10th April, 1860; Robert Little for another part, on the 5th May, 1860; John Mcllvain & Co. for a third part on the 5th May, 1860.

All these contracts were duly recorded, and created concurrent privileges upon the building in favor of the contractors, respectively. ■ The recording of contracts is not governed by date of registration as mortgages are. In large undertakings, as in the one in question, there are sometimes many contracts, and necessarily of different dates. For instance, the roofing, the painting, and others, are undertaken by different individuals, and cannot be done until the building is up. Could it be contended that these last undertakers, because of later dates, would have to give way tó others previously recorded. This is not the sense- of Art. 3239 of the Civil Code. Materials are not all furnished on the same day, nor labor performed at the same time, yet the laborers and furnishers of materials, inter se, must share the fund pro rata. Hale v. Wills, 3 A. 504; see also the case of Whitla v. Taylor, 6 A. 480. After a careful examination of the record, we have come to the conclusion that the claims of the intervenors and third opponents are all concurrent, and must be paid pro rata out of the proceeds of the buildings, and we are of opinion that the expenses of sale, appraisement, taxes, and such like that are privileged debts on the property, must be paid proportionally out of the proceeds of the land and of the buildings.

John C. Barelli, the defendant, is appellee in this court. His counsel, in a printed brief, urges great many informalities and irregularities in the proceedings of the sale of the property: suchas want of internal revenue stamps; that the sheriff had no authority to sell; that there has been no adjudication of the property made according to law, the sheriff having no writ; that the property did not bring and exceed the amount of the special mortgages and privileges existing on the property, etc. Said John O. Barrelli, not being appellant, cannot seek to change the judgment rendered below, without filing an answer to that effect. No such answer has been filed in this court. The written argument of counsel is not such an answer as is required. Code of Practice, Art. 888. 5 A. 140. 1 A. 340. 18 A. 641. Where a party does not appeal, he 'tacitly acquiesces in the judgment, but should his antagonist appeal, he has the right, by an answer in the appellate court, to pray for a change or amendment of the judgment.

We, therefore, are not at liberty to pass upon the alleged illegal proceedings, and change the judgment.

As between the intervenors and third opponents, the judgment must be amended.

It is therefore ordered, adjudged and decreed that the judgment of the District Court, be amended as follows:

That the $4,000, allowed the heirs of George Morgan for materials of ,the old buildings be rejected, and distributed among the other opponents, with the proceeds of the new buildings, leaving a balance of $59,530 48 for said heirs, oitt of which must be deducted their proportion of expenses, taxes, etc., as above stated. It is further ordered and decreed, that the said judgment as amended be affirmed, and that the widow and heirs of George Morgan pay the costs of ap>peal.

On Rehearing:.

Ilslev, J.

The application for a rehearing in this case cannot be entertained, coming, as it does, from an appellee seeking to open the judgment as against his co-appellees.

An appellee can only have the judgment which has been appealed from reversed in his, appellee’s favor, as against the appellant, upon an answer to the appeal filed by him in this court, under Arts. 888 and 890 of the Code of Practice.

He is not entitled to have the judgment amended or reversed in this form of proceeding against his co-appellees. If one of several appellees seeks to have the judgment amended in his favor against his co-appellees, as well as against the appellant, this cannot be done by way of answer to the appeal. In such case, the party dissatisfied with the judgment must, as against an appellee, become himself an appellant. Field v. His Creditors, 11 A. 545. Lallande v. McRae, 16 A. 198. Succession of Juan y de Egana, 18 A. 265, and authorities therein cited.

Rehearing refused.


author: Labadve, J. Labatjve, J.

text:
    No. 1027.
    William Golding v. Steamer America and Owners, A. Riemoneng, D. Negrotto and J. Viosca, Jr.
    Where it is shown by affidavit, and the statement of the witness under oath, that he is employed in the United States navy, his testimony, taken by commission, will not be rejected on the ground that he was within the jurisdiction of the court at the time.
    Evidence not inadmissible on legal grounds will be reoeived, the jury being the judges of its efleot. The verdiot of the jury, where none but questions of faot are involved, is entitled to weight.
    Where the appellate court amends the judgment of the lower oourt, by reduoing the amount for which judgment has been given, it will, in its discretion, render judgment of nonsuit for the amount of reduction.
    APPEAL from the Fourth District Court of New Orleans, Théard, J'

      W. II. Hunt, for plaintiff and appellee.

      G. L. Bright, for defendants and appellants.
   Labadve, J.

This suit is brought to recover of the defendants; in soMdo, the sum of $12,000, for engines, machinery, etc., furnished to steamer America by the plaintiff, under the following contract:

“New Orleans, January 18, 1865.

“ I do agree to build and erect machinery of the following dimensions and descriptions for the vessels.

“For each vessel, one tubular boiler forty-eight inch shell" and fourteen feet long; two engines ten-inch cylinder three-feet stroke, with all the appurtenances pertaining thereto, complete; all of which to be of the first-class, both as to material and workmanship. I do also agree to furnish all the iron-work in connection with the machinery, and direct the construction of the wood-work for the same; the diameter of the wheels to be sixteen feet, breadth of the buckets four feet; all of which I d6 agree to do, and test under steam, for and in consideration of the sum of $18,000, $3,000 to be paid on the 15th February, 1865; $6,000 on the 15th March, 1865; and $3,000 when the first vessel is completed, and the remainder when the second vessel is completed. I also agree to complete one set of machinery in the space of two months, and the other in three months.

“ $18,000 for the two boats. (Signed) ,

War. Godding. D. Negrotto.

A. Reimoneng. J. Yiosoa, Jr. ”

The plaintiff had the steamer America sequestered, on the ground.of his privilege.

The defendants moved to dissolve the sequestration, on the- ground that the sureties on the bond were insufficient, and not such- as - the law requires,

The two sureties, being called as witnesses, testified that after the payment of their debts, they were worth the amount of the bond, $19,000; but the defendants objected to the testimony, on the ground that the Court was the judge of their solvency, and not the witnesses. The Court did not err in admitting the evidence. Defendants’counsel asked one of said sureties, what was the amount of capital he put in the firm, and what was the capital of the firm; the (Jourt properly rejected the evidence as irrelevant. The motion was overruled.

The defendants excepted to the petition, on the ground that the allegations were too vague and general, and showed no cause of action.

This exception was met and answered' by the plaintiff, who filed, with leave of the court, a supplemental petition, to which he annexed the bill for the steam-engines and machinery furnished, and the contract as a part of said petition.

The answer of the defendants pleads the general issue; specially denies that plaintiff put in the vessel a propeller machinery of the description and dimensions stated in the contract. It avers that the machinery was defective and insufficient.

The defendants reconvene, in alleging that through the defectiveness of said machinery they have suffered the loss of said vessel, which is worth $10,000, and that they have paid plaintiff $3,000, and they also allege other damages to the amount of $15,600.

They pray in reconvention for a judgment for $28,600, and that plaintiff’s demand be dismissed.

On trial, plaintiff offered in evidence the testimony of W. H. Shock, taken under commission; the defendants objected, on the ground that there was no proof showing that the said witness was not in the jurisdiction of the court, and could not have been made to appear before the jury. The Court overruled the objection, because of the affidavit to obtain the commission and the statement of the witness, that he is employed in the United States navy. The Court did not err.

Defendants also objected to witnesses offered by plaintiff, to prove that a twelve-inch cylinder is better than a ten-inch cylinder, on the ground that no allegation in the petition authorized the proof, and the proof is contradictory to the allegations of the petition. The Court properly overruled the objection. The proof was admissible, and the objection went to its effect, of which the jury were the proper judges, under the contract and pleadings.

The defendants also objected to the testimony of Taylor, to show that plaintiff had begun and partially, completed another engine, besides the one alleged to have been furnished to steamer America, on the ground that the allegations in the petition did not authorize the proof. The Court properly admitted the evidence. The contract is annexed to, and makes a part of, the supplemental petition, which authorized the proof.

After the introduction of the evidence, the case was submitted to a jury, who found the following verdict:

“We, the jury, find for the plaintiff a verdict for ($12,000) twelve thousand dollars, with interest from judicial demand, and costs, and against defendants.”

A motion for a new trial being overruled, the Court gave judgment accordingly, and in solido against defendants.

We now come to the merits.

A mass of evidence was introduced on the part of plaintiff, to show that he had complied with his contract in furnishing an engine, etc., to the steamer America; and on the part of the defendants to show the contrary, and that the work and materials were defective, etc. , There are here none but matters of facts. The testimony is very conflicting and contradictory, and in such a case as that the verdict of the jury, concurred in by the Judge, must have weight. Hen. 1 vol. p. 92, (6.)

So we are satisfied, under the verdict of the jury, that plaintiff -has complied with his contract, so far as the steamer America is concerned, and that defendants have failed in their defence to prove the contrary or that the work and materials were defective.

But this suit is brought against the steamer America, upon the following bill:

“ New Orleans, May 5, 1865.

Steamer America and owners, debtors to Wm. Golding for machinery complete as per contract, $12,000.”

In the contract upon which this account is founded, plaintiff bound himself to furnish and erect for defendants:

For each vessel, one tubular boiler 48 inch shell and 14 feet long;' 2 engines, 10-inch cylinder, 8-feet stroke, with all the appurtenances pertaining thereto complete * * * to furnish all the iron-work in connection with the machinery * * * the diameter of the wheels to be 16 feet; breadth of buckets 4 feet * * * for and in consideration of $18,000. ’ •

The engine and machinery, boiler, cylinder, buckets, wheels, etc., were to be similar in every respect, size and proportions, and workmanship for each vessel. Therefore, the price for each vessel should be equal. The suit is brought, under this contract, against the steamer America; there is no allegations or proof that this vessel should be charged with $12,000 instead of $9,000, under the contract, which is one-half.

We are of opinion that the verdict of the jury should have been for $9.000.

The defendants complain that the jury did not pass upon their recoii- ' ventional demand. We believe otherwise. This suit is brought for the price of engine, machinery, etc. The defendants plead that plaintiff'did not comply with his contract, that the engine, machinery, etc., were defective, and that in consequence they have suffered damages, for which ' they pray judgment. The jury, in giving verdict for plaintiff in full, 'virtually and necessarily negative and reject defendants’ demand in damages'; for if plaintiff has performed his part of the contract he is not in default, and owes no damages to the defendants; the consequence is irresistible. 6 A. 222.

The defendants also complain that this was a joint contract, and- that they are not bound in solido as decreed. This is legally correct; They were not commercial partners at the time, and this contract did not make them so. Besides, the defendants are not sued as commercial partners.

It is therefore ordered, adjudged and decreed that the judgment appealed from be reduced to nine thousand dollars, which the defendants are decreed to pay jointly instead of in solido; and that as amended the said .judgment be affirmed, and the plaintiff and appellee to pay costs of appeal.

On Rehearing.

Labatjve, J.

We, have re-examined this,case, and we are satisfied that our former decision is correct, except in one respect, as regards the three thousand dollars, being the difference, between the $12,000 claimed in the petition and the §9,000 allowed by our decision.. We think that, in disallowing the §3,000, we should have given a judgment of nonsuit, and reserved plaintiff’s right to the balance.

It is therefore ordered and decreed, that our former decision be so amended as to give a judgment of nonsuit against plaintiff for the balance of his claim above nine thousand dollars, and that as amended, our former decision be affirmed.