text:
    John Kellar v. G. Ridgeley.
    The Court can not give judgment, discharging the obligors of a tutor’s bond before the ward attains the age of majority. This point was ruled in Stafford v. Viliam, 10th La. Rep. 829, and it is not inconsistent with the provisions of article 615 of the Code of Practice.
    Article 856 of the Civil Code creates á prescription of four years commencing from the day of the majority, for the action of the minor against his tutor, respecting the acts of his tutorship.
    Where matters of mal-administration are urged by way of opposition to an account, it is premature to institute a direct action on the same matters before the decision of the opposition.
    APPEAL from the Second District Court of Now Orleans, Lea, J.

      James D. Mix, for plaintiff. Alfred Sennen, for defendant and appellant.
   Buchanan, J.

The plaintiff is tutor of the minor Swasey. He has been appointed in the place of the defendant, who was formerly tutor, but who has been removed. Plaintiff sues defendant for fifteen hundred dollars damages, alleged to have been suffered by his ward, through neglect of duty in permitting one Fink, dative testamentary executor of So/rah Baum, to remain in office, and to retain possession of the effects, without requiring an account.

The answer denies the allegations of damage sustained by the minor, and prays in reconvention that defendant and his securities on the bond given by him for his tutorship be discharged from their responsibility, nothing having ever come into his hands as tutor.

Article 356 of the Civil Code, creates a prescription of four years, commencing from the day of the majority, for the action of the minor against his tutor, respecting the acts of his tutorship. And it has been settled, in the case of Stafford v. Villain, 10th La. Rep. 329, that the Court cannot give a judgment, discharging a tutor’s bond, before the ward attains the ago of majority.

The Article 615 of the Code of Practice, relied upon by the counsel for appellant, is not viewed by us as inconsistent with the ruling of the Court in Stafford v. Villain. The action in rescission, spoken of in that article, applies to judgments obtained against a tutor, for alleged debts of the minors, pending the tutorship.

As to the principal claim for damages sustained by the minor through the neglect of defendant, the evidence offered by plaintiff himself, shows it to be premature.

That evidence consists of the record of the mortua/ria of Sarah Baum, now on file in this Court, on appeal from the same Court in which the present suit was instituted. That appeal is still undecided, but the record shows that John D. Finlc, dative executor of Sarah Baum, filed an account of his administration on the 10th July, 1852, showing a balance in his favor and against the estate, of $144 08; that this account was opposed by plaintiff, as tutor of the minor Swasey, and also in his individual capacity, on the 24th July, 1852; that these oppositions came to trial in December, 1852, and were decided by the Court of the first instance in January, 1853. On the 12th of November, 1852, the present suit was instituted. The oppositions of plaintiff to Finlc’s account of executorship, charge, in detail, the same matters of mal-administration and waste of assets against the executor, which are made the ground of the charge of neglect on the part of the defendant in this suit. It was evidently premature to institute this action, before the oppositions were decided.

It is therefore adjudged and decreed, that the judgment of the District Court be affirmed; costs of this Court to be paid by appellant.


source: Caselaw Access Project

author: Buchanan, J.

license: Public Domain

text:
    City of New Orleans v. Oscar Philippi.
    tfhe Council of the late Third Municipality, elected for 1851, was incompetent to impose a tax for a past year. The Statute of the 18th March, 1850, entitled “ An act relative to the city of New Or leans,” designed that the taxing power of the Municipal Council should be exercised prospectively.
    A by-law of a corporation which is contrary to a law of the State is void.
    ‘Where the law enables a corporation to make by-laws or ordinances in certain cases and for certain purposes, its power of legislation is limited to the cases and objects specified, all others being excluded by implication.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Labatt and Mistis, for plaintiff. F. 0. Lcmille, for defendant.
   Buchanan, J.

The defendant being sued for a city tax for the year 1850, levied upon property within the limits of Municipality No. Three, pleads that the said tax is illegal; that the ordinance by virtue of which the said tax was levied, is illegal, null and void; that the council of the late Third Municipality elected for the year 1851, was incompetent, and had no right to pass and adopt, in 1851, an ordinance imposing the tax of 1850 herein claimed ; and because, generally, said tax was not levied by said council in conformity with the dispositions of the statute of the 18th March, 1850, entitled “An Act relative to the city of New Orleans.”

The ordinance of the late Third Municipality, under which this tax was assessed, is in evidence. It was adopted at a sitting of the Municipal Council, held on Monday, 1st of September, 1851, and was approved by the Mayor on the 4th of September, 1851. It ordains as follows: That the annual tax on all movable and immovable property and capital employed in trade, situate or owned in this municipality for the year 1850, to meet the estimate of expenditures for the debt of the municipality, as given in the estimative budget passed by this council at its session, 15th July last, and duly promulgated, is hereby fixed at §1 75 cents on every §100 of assessed value, in both the urban and rural parts of the municipality, according to the tableau of 1850 of the State assessors. That, to meet the extra cost of lighting and night watch given in the special budget for the urban part, there is hereby assessed upon property within the urban district, the further tax of twenty-five cents on every one hundred dollars of assessed value of such urban property, by the same tableau of 1850. That the taxes hereby laid, viz: 1-J per cent, on rural property, and 2 per cent, on urban property, shall be due and collectable immediately after the promulgation of this ordinance.

The tax receipt on which the present suit is brought, bears date the 15th of September, 1851, and is for the sum of $110, béing two per cent, on real estate assessed at $4000, in the Seventh Representative District, square No. 4, and on slaves assessed at $1500.

An examination of the statute quoted in the defendant’s answer, has convinced us that his defence is well founded.

The Act of 18th of March, 1850, (Session Acts, No. 191,) page 129, was evidently designed to circumscribe and restrain the exercise of the taxing power vested in the municipal councils of New Orleans. It took effect immediately after its passage, and provided as follows: Sec. 1. — That the council of each municipality shall, every year, and before imposing any tax, fix and determine, by ordinance, the limit between the urban and rural parts of the municipality. Sec. 6. — -And, before fixing the amount of tax to be assessed on the urban and rural parts of the municipality, shall cause to be made out a budget or estimate of expenditures for the urban part, and another like estimate or budget for the rural part, for the current year — those budgets to be published, in English and French, in the official paper of the municipality, during at least thirty days before the meeting of the council, at which the rate of taxation shall be assessed, that will be necessary for supplying any deficiency in the treasury for meeting the amount of said estimates.

It seems to admit of no doubt, that the Legislature intended, that the designation of limits for the urban, as contradistinguished from the rural districts of the several municipalities; the preparation and publication of budgets of expenditures for the year in each district; and the imposition of a rate of taxation adequate to the defraying of those expenditures — should be consecutive operations of municipal administration, periodically repeated, that is, once in every year, and so arranged, that not only should every year defray its own expenses, but that those expenses should be calculated, and that calculation submitted to the public eye in the newspapers, in advance of the imposition of the annual tax. And what still further confirms the idea, that the taxing power 0f the municipal councils was to be exercised prospectively, is the provision in the 7th section of the statute, that whenever, from an extraordinary cause, an _ ’ ’ J ■ ’ additional tax may become necessary in the course of the current year, that is to say, a tax, in addition to that which shall have been voted within the year, predicated upon an estimative budget of expenditures, in such case a new element is called into action; and the additional tax must be sanctioned by a majority of the legal voters of the municipality.

We are of opinion that the council of Municipality No. Three, in their ordinance of the 1st of September, 1851, have departed from the path of action marked out for them by the statute of the 18th of March, 1850; and that so long as the latter statute was in force, they could not legally inforce a tax for a past year. A by-law of a corporation, which is contrary to a law of the State, is void. See Angelí & Ames on Corporations, chap. 9, sec. —. And where the law enables a corporation to make by-laws or ordinances in certain cases, and for certain purposes, its power of legislation is limited to the cases and objects specified — all others being excluded by implication. Angelí & Ames on Corporations, chap. 9, sec. 1. La. Code, Art. 424,486. Blanc v. Mayor, 1 Mart. Rep. 125. L. S. Bank, v. Or. Nav. Co. 3 Ann. 308 to 311.

In accordance with these principles, our predecessors have, on several occasions, pronounced the nullity of municipal ordinances which were unauthorized by the charter of the corporation, or contrary to laws subsequently enacted. 2d Ann. 611. 3d Ann. 294. fr Ann. 605. In the present case, the reason of holding to this doctrine is particularly obvious, because the ordinance imposing the tax, professes to be based upon a budget or estimate prepared and published according to the Act of 1850, while it is in truth a departure from, not to say an evasion of, the substance and letter of that law.

Judgment of the District Court reversed, and judgment for defendant, with costs in both Courts.


author: Buchanan, J. Slidell, O. J.

text:
    State v. Antonio D’Angelo.
    Testimony of a pre-existing enmity between the accused and the deceased, on a previous quarrel or grudge, is admissible to prove malice.
    As a general rule it is incompetent for the accused, on an indictment for murder, to offer evidence of the general bad temper and quarrelsome disposition of the deceased.
    The bill of exceptions stated that there was no direct proof who fired the pistol, or who killed the deceased. JETeld: — This submits a question of fact, as a motion for the reversal of a verdict and judgment in a criminal case, &c.,and it is not within the cognizance of the Supreme Oourt.
    APPEAL from the First District Court of New Orleans, Lw'ue, J.

      Morse, (Attorney for the State.

      Chymes & Reid, for the accused:
    1. We contend that the verdict rendered in this case is contrary to law, because it was rendered on incompetent evidence, and on remote and irrelevant facts not admissible. 1 Stark, on Ev., p. 39, sec. 21 and 22; 1 Chit. Crim. Law, 459.
    2. The court erred in refusing evidence to establish the fact that the deceased had innumerable enemies of a deadly character, any one of whom was more liable to have committed the offence; and the overruling this evidence prejudiced the minds of the jury, and destroyed the hypothesis and presumption that a person, other than the accused, might have committed the murder. 1 Stark, on Ev. p. 506, secs. 75 and 76. (Chandler's case per con., 5th An. 489.)
    3. There is no link or coincidence in the evidence to connect the prisoner with the pistol, or the crime charged, or to establish malice. 1 Stark. Ev., p, 485, sec. 66. Queen v. Bird & Wife, 2 Eng. 0. L. Rep. 428.
   Buchanan, J.

The defendant and appellant has been found guilty of murder “without capital punishment” by the verdict of a jury duly empannelled. Having failed in an effort to obtain a new trial, and having been sentenced upon the verdict to imprisonment at hard labor for life, he has appealed.

His counsel relies upon a bill of exceptions reserved upon the trial in the Court below, and assigns for error in the proceedings, 1st, That the District Court admitted evidence on the part of the State to prove that enmity had previously existed between the accused and the deceased Cutino. 2d, That a witness being called to the stand on the part of the accused to prove the vile temper of the deceased, and to shew that he had innumerable enemies, any one of whom might have killed the deceased, (as there was no direct evidence to prove who fired the pistol or who killed the deceased,) the District Attorney objected to the admissibility of the evidence, and the objection was sustained by the Court and the evidence rejected.

Istly. The evidence of a preexisting enmity between the accused and the deceased was properly admitted, to prove malice. The case of a previous quarrel or grudge, is one of those stated by all the authorities, as evidence of malice. 1st Hale’s pleas of the Crown, 451; 4th Blackstone’s Com. 199; Russell on Crimes, 614; Greenleaf on Ev.,- part 5, sec. 145.

2dly, As a general rule, it is incompetent for the accused to offer evidence of the general bad temper and quarrelsome disposition of the deceased, on an indictment for murder. Chcmblis’ case, 5th An. 489; Tilley's case, 3d Iredill’s North Carolina Reports, 424. But the case suggested bythe bill of exceptions, and insisted upon by the counsel of the accused, as an exception to the general rule, is this: that there was no direct proof before the jury to show that the pistol shot by which the deceased was killed, was fired by the accused; and that after the prosecution had offered evidence of a previous enmity between the deceased and the prisoner, the latter offered to prove “the vile temper of the deceased, and that he had innumerable enemies,” in order to rebut the presumption created by the evidence for the State.

An obvious objection to remanding this cause for the purpose of receiving such evidence, for the purpose stated, even supposing it to be admissible for any purpose, is the extreme vagueness of the proposition. It is not stated that the evidence of enmity towards the deceased, proposed to be given, had reference to any other person than the accused, present when the pistol was fired, or in fact to any designated person or persons whatever. The language of the bill is “innumerable enemies, any one of whom might have killed the de. ceased.” It would surely aid but little the administration of justice to produce witnesses before the jury upon a criminal trial, in order to express speculative opinions in relation to the possibility of the commission of a crime. The province of the witnesses is, to relate the facts within their knowledge; that of the petit jury to apply those facts to the guilt or innocence of the prisoner at the bar. On a tidal for murder, the authorities tell us that it must be proved that the deceased has been killed by the act, or by the procurement or device of the accused. But that proof may be direct, or circumstantial. The facts going to make up such proof, are facts for the consideration of the jury, and cannot be reviewed by this Court.

And t]Tjg brings us to the most important objection to this branch of the appellant’s bill of exceptions — to wit: that it submits to our consideration, a question of fact, as a motive for the reversal of a verdict and judgment in a criminal case. The record shows that a true bill was found by the Grand Jury of the parish of Orleans against Antonio D'Angelo for the murder of André Outino, by shooting him with a pistol; that he was arraigned and pleaded not guilty; was tried before a jury of the vicinage, upon the said issue; that six witnesses were sworn for the State, and two for the prisoner; that the jury returned a verdict of guilty; that D'Angelo moved for a new trial, on the ground that the verdict was contrary to law and evidence; that the new trial was refused after argument.

It thus appears, not only that the jury were convinced by the proof of the guilt of the defendant, but that the Judge who tried the cause, participated in that conviction. The bill of exceptions states that there was no direct proof who fired the pistol, or who killed the deceased. At least, it would seem then, in justification of the verdict, that there was a pistol fired, and that there was a man hilled. But can this Court tell, are we even permitted to inquire, what facts in the evidence rendered it probable that the pistol was fired, and the man killed, by the accused ? Tet, in our absolute ignorance of the facts proved, we are expected to direct the attention of the future jury to other facts, that may possibly be proved, and being proved, may possibl/y have an effect upon their verdict.

We think the District Judge did not err in rejecting evidence of the bad temper of the deceased, and that he had many enemies. And we lay out of view altogether, as a matter not within our cognizance, the fact stated in the bill of exceptions, that that there was no direct proof who fired the pistol, or who killed the deceased.

Judgment affirmed, with costs.

Slidell, O. J.

As a general rule, the character of the deceased cannot be inquired into, in an indictment for murder. State v. Chandler, 5 Ann. 489. I am not prepared to say there are no exceptions to this rule.

But the case suggested by the bill is this — that there had been no dvreet evidence to show that the pistol shot by which the deceased was killed was fired by the prisoner, and that after the prosecution had offered evidence of a previous enmity between the deceased and the prisoner, (which was clearly admissible to show malice) the prisoner offered to prove the vile temper of the deceased, and that he had many enemies, any one of whom might have killed the deceased.

If there had been an accompanying offer to prove the presence of some other enemy or enemies of the deceased at the time of the homicide, I am not prepared to say the evidence should have been excluded under the circumstances stated in the bill of exceptions, to wit: that'there had been no direct evidence to show that the pistol shot by which the deceased was killed was fired by the deceased. But the general proposition that the deceased had many enemies, any one of whom might have killed the deceased, was too vague, and evidence in support of it was properly rejected.

Ogden, J. T concur in the above opinion.


author:
Buchanan, J. Slidell, C. J. Ogden, J.
      Benjwmin, Miaou & Finney,

text:
    L. C. Duncan v. Labouisse et als.
    Article 671 of the Civil Code has not taken away from the owners of ground lots u in the cities, towns or suburbs of this State ” the right of finishing the whole front of the house they may erect upon their lots, in such manner as their taste may dictate. The wall spoken of in that article is the side wall which supports equally the buildings erected on both sides of a line dividing the property of two individuals.
    Parol evidence will not be received to establish a right in favor of a person to put up an iron pillar as part of a front wall to rest on the land of another. Any pact which constrains the owner’s control or enjoyment of his property, is, to some extent, an alienation of his property, and when the subject matter is real estate must be evidenced in the mode required for the alienation of real es-
    APPEAL from the Second District Court of New Orleans, Lea, J.

      G. B. Duncan & 0. Roselius, for plaintiff and appellant:
    It has been decided again and again that titles even may be affected by parol testimony, and in cases a thousand fold stamger than the one before the Court. Por instance — where a purchaser is sued to compel a compliance with a sale, and avers that he is not bound by it, evidence is admissible to show that he offered his note at long dates. 10 La. 60. Again, one stands by and sees his property sold as belonging to another, will not be permitted to set up his title in opposition to a bona fide purchaser. Silence is as binding and expressive as a positive consent. Qui tacet consentir enidet/ur. 3 R. 331. 5th R. 352 — 367— 518. 11th R. 365. 1st A. 288. 5th A. 67 — 108—411. 2d A. 501.

      Durant & Horner for Jamison & McIntosh,

    (the builders, who were also enjoined.)
    The only question of law presented by this case, is, “Did the Judge in the lower Court correctly refuse to hear the testimony of witnesses to prove that the iron pillar which forms a part of the party-wall, was erected with the consent and at the instance of J. P. Labouisse, one of the defendants ? ”
    This question touches the realty (Louisiana Code, 455), and no parol proof can be admitted, because it involves the transfer, alienation, abandonment or divestiture of a real right in Labouisse.

    A consent to the creation of such a servitude as this must be made in writing. Louisiana Code, 6S1. Pierce v. Xusson, 17 Louisiana Reports, 396.
    The abandonment of the possession or title of real estate must be in writing. Hereford v. Police Jury of West Baton Rouge, 4 Ann. 172.
    The Louisiana Code, Article 671, does not apply to a party wall made of iron.

      Moise & W. M. Randolph, for defendant.
   Buchanan, J.

The plaintiff alleges that the defendant is obstructing him in the exercise of a legal right — that of erecting one half of the wall of his building upon the property of the defendant which is contiguous to his own — a right accorded to him by Art. 671 of the Code. The question which is submitted to our consideration is, whether the Court below was right in refusing to permit the plaintiffs to give parol evidence of an agreement on the part of the defendant that plaintilf should put up an iron pillar that would occupy nine inches of the front of defendant’s property on the street, he himself having determined to build a house, with granite pillars on the front of the basement story.

We are of opinion that the Art. 671 has not taken away from the owners of ground lots “in the cities, towns or suburbs of this State ” the right of finishing the whole front of the houses that they may erect upon their lots, in such manner as their taste may dictate. The wall spoken of in that article is the side wall, which supports equally the buildings erected on both sides of a line dividing the property of two individuals. The name given to the wall in the French text of the Code, “ mur mitoyen,” expresses that idea clearly. Toullier thus defines Umur mitoyen“Celuiqui est place sur les extrimites de deux heritages contiguos, qui est assis moitié sur le terrain de l’un des proprié-taires, et moitié sur le terrain do l’autro.” The article 672 of our Code also confirms this interpretation, “If the neighbor bo willing to contribute, &c. then this wall is a wall in common between the proprietors.”

Indeed the very offer of proof of an agreement on the subject, concedes that the article of the Code, unassisted, would not suffice to establish the right claimed by plaintiff. There is no dispute about the other facts in the cause. And as to this fact of an agreement to erect iron columns in front of the property of defendant, it is not the proof, but the kind of proof (parol) that is objected to. Upon a mature consideration of the law and the facts, I consider, with the Judge below, that no proof should be admitted of such an agreement, but such proof as may legally establish the title to real estate. Any pact which restrains the owner’s control or enjoyment of his property, is to some extent an alienation of his property ; and when the subject matter is real estate, must be evidenced in the mode required for the alienation of real estate — by written proof. The Code Napoleon does not contain an article corresponding to our 671st article. But the article 661 of the French Code is identical with our 680th article: “ Tout propriétaire joignant un mur,” &c. That article gives an adjacent proprietor the right of forcing the owner of a wall contiguous to his line, to sell the half of such wall. Toullier, vol. 3d, page 113, paragraph 196, in commenting the article 661, says: “L’obligation imposée á tout voisin de vendre la mitoyennoté du mur contigu a un autre héritage, est contrairo á la loi de la propriété, en ce qu’elle force un propriétaire á aliéner.” The principal difference between the article 661 of the French Code (our 680th article) and the article 671 of our Code is, that the former imposes the obligation of alienation for a compensation; the latter that of alienation without any compensation. It may, therefore be viewed as still more contrary to the law of property than the other; and no good reason is perceived why agreements to extend such alienation beyond the letter of the Code, should be exempted from the formalities required for alienations of real estate generally.

Slidell, C. J., and Campbell, J., concurring.

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

Slidell, C. J.

I think the parol evidence was properly excluded, for the reasons given by the District Judge.

The claim for damages is very vaguely made; the particulars of damage arc not stated. That subject does not appear to have been considered at the trial, and it seems unnecessary now to decide whether, in an action for damages, properly brought by Dunean, for indemnity for any injury sustained in consequence of Labowme's breach of the alleged agreement, parol evidence of that agreement would be admissible.

The right to bring such action was reserved by the judgment below.

I think the judgment should be affirmed.

Ogden, J.

On the trial of this cause in the Court below, the plaintiff offered in evidence a plan of the buildings erected by him, on Carondelet street, as originally prepared for the use of the architect, and then offered by parol ev i-dence to show, that at the special instance and request of the defendant, La-bouisse, who was the proprietor of the adjoining lot, the plan was changed and the buildings erected according' to another plan approved by Labouisse, by which an iron column with three sides was erected at the projection of the partition wall on the street, so as to show a front and a face equally on the lots of both proprietors. The Court below rejected the evidence, on the ground that the tendency of it was to affect the title to real estate, and that the law requires such proof to be in writing. It is undoubtedly true that when written proof is required by law, parol evidence cannot be admitted to supersede its use, and the only question is whether the principle is applicable to the facts of this case. The plaintiff, being the first to build on his lots, had a right by law to rest one-half of his wall on his neighbor’s lot, provided stones or bricks were used as high as the first story, and provided the whole thickness of the wall, not including the plastering, should not exceed eighteen inches. If the plaintiff had attempted to build the partition wall with other materials than stone or brick, the defendant could have enjoined him from so doing. The iron column about which the parties are contending, rests equally on the respective fronts of their lots, and whether it is to be considered as forming part of the partition wall or not it is not material to consider. We agree with the Judge of the Court below, that each proprietor has a right to the display of his whole front according to his own taste and judgment, and if the defendant is compelled to have an iron front instead of a granite front to his building which he desires to be put up, it does affect the enjoyment of his right in real estate. If the plaintiff was endeavoring to enforce the execution of an agreement to that effect on the part of the defendant and to use one-half of the iron column on his neighbor’s lot, wo would not consider parol evidence competent to establish such a right; but the agreement, if ever made, was executed; the column has been erected; it is a construction made on the soil belonging to the defendant. Art. 498 of the Code declares that all the constructions made on or within the soil are supposed to be done by the owner. The defendant wishes to cut away the half of this column resting on his own lot; the plaintiff contests his right to do so on the ground that it will materially injure his building, and that it was placed there by a special agreement with defendant, and for their joint benefit. Considering that the presumption of the law is that this construction found on the defendant’s soil, was placed there by himself — that article 863 of the Code declares, opposition may be made to every species of new work from which injury is apprehended, whether the work be in the city or in the country, in places built up or not built up; and considering further that the Civil Code, Art. 1810 and 1811 declares that actions without words, and even silence and inaction, are, under certain circumstances, presumptive evidence of a contract; we consider that the defendant would be in equity estopped from the right he claims of substituting a granite column in place of the iron one now resting partly on his lot, if by so doing the plaintiff’s building would be materially injured thereby, aud it can be established that the column was placed as it now is, under circumstances which would imply a consent on the part oí the defendant. The principles of equitable estoppel laid down in the case of McMasters v. the Commissioners of the Atchafalaya Railroad Co., are in every respect applicable to the present case. All the facts and circumstances tending to establish the consent of Labouisse to placing the column as it now stands are susceptible of proof by parol evidence without violating any of the principles which seem to have governed the decision of the Court below. If the column can he so changed as to cause no detriment to the plaintiff, the defendant would have the right, even if his consent is proved, to make the change; but he would be bound to furnish security to the plaintiff to pay any damages which might be occasioned by the change. See Arts. 863 and 864 of the Civil Code.

Justice Vookhies concurs in this opinion.

Benjwmin, Miaou & Finney,

for a re-hearing.

1. It is submitted to the Court that the servitude in question is created by law; results from the ownership, of which the title of the party is the evidence. There can be nothing taken in this case as establishing this servitude, in any other mode than by the the title. All other evidence would be an absurdity.

The title then establishing the servitude, we have to deal with the wall or the work placed upon the land affected by the servitude.

This servitude is attached to the lateral iines of the plaintiff’s lot — that is, to the part in contact with the lands of his adjoining neighbors. They exist in favor of contiguous estates and of course in the whole extent of the line of contact.

The wall in common is an entirety — indivisible—or thing existing in its relation to the two contiguous estates: in that light alone it is to be considered in respect to the evidence offered. The rights at either extremity are dependent on that relation — -not that there may not be different rights created by contract making it divisible; but so far as the action of the Court is sought, it is entire. The front-end is a part of the wall and so is the rear. Did the defendant consent to the materials of which it should be constructed? whether of mud, of stone, brick or iron, it is immaterial to the present inquiry and de-pendant on the evidence as to usage, &c. which are matters dehors the law question.

The Article 671 treats of servitudes and the relations of estates to each other ; it, of course, confines itself to the line of contact of the contiguous estates, but thereby regulates the front as far as it purports to affect it. Thus the servi-ae is created throughout the whole extent of the lateral line — where does ! line terminate ? on its contact with the front or street line. A line is length, without breadth, and consequently the servitude continues up to the street. Beyond this it is not necessary to go, because it is not contended that any rights beyond the line of the public way are in controversy. But this common wall exists up to the street line, each proprietor having a right to use hi^ half as he chooses. Gan the servitude be held to cease at any point, short of the front line ? at the line of a front wail, or any other work of the owner ? The code negatives such an idea. The inner line of a front wall or work, is not the line at which the servitude terminates.

2. By Art. 672 the owner of the subjected estate can make the wall common at any time by paying one half the cost of the wall and he is entitled to notice from the other party when ho is about constructing the wall, so that he may contribute or not to its expense ; if notice be given the wall can only be used on the payment of the original cost and not its value at the time it is made use of. Grailhe v. Hown, 1 Annual Rep. 141.

How is this notice to be given- — in writing or verbally ? can or not this notice bo waived ? By acquiescence, by acts or by the execution of the work ? By standing by and seeing the money and material employed of which he is to have the benefit?

On the question of estoppel, it is sufficient to refer to the opinion of Mr. Justice Ogden and the case of the Navigation Company and Hennen, recently decided by this Hon. Court. There are numerous recent cases in the Reports in which this doctrine is maintained and none in which it has been drawn in question. A party may, by his own voluntary acts place himself in a situation as to some, matter of fact, by reason of which he is estopped from denying it, and to which the law, from policy, holds him, in order to prevent the unavoidable mischief resulting from uncertainty, confusion and want of confidence in the intercourse of men, if they were permitted to deny what they have asserted and induced others to act upon.

But suppose the of the assent of tl the front end of i en evidence is required icting the wall or rather rejected, written ? notice must be in writing or writt re defendant to this mode of conslri t, was not the evidence offered and :

If the plaintiff 1 tended to do, cou work as the plans your eyes upon tl: the idea as well as in every sense of plans ? Let them scriptions of what he in-endant of the proposed ? Let your honors cast my words could convey not these plans written, o words written on the ■esents written on it— lad covered a quire of paper with di Id it have as well apprized the def and drafts which he furnished him1 ie plans, and then judge whether i the pictures there represented? are the term ? Is there no writing, — m . speak for themselves. No. 1 repi

If these plans and 'writings were delivered to the defendant, and acted upon by both parties, and the work done accordingly, the assent was given and is proved — technically proved — if the evidence is admissible. Do they not constitute a species of title of the wall and its front — binding upon the plaintiff of which the defendant had the benefit? Suppose the plaintiff wanted to change it, would not defendant hold him to it, and insist on the production of the plans in Court by plaintiff or prove their contents by copies of the testimony of the draughtsmen ?

Suppose that the plaintiff had erected the entire common wall, from the rear line to the front line, of iron, instead of brick; and had done so oven without the knowledge or consent or acquiescence of the defendant, would it even then be competent for the defendant to remove, to cut away or mutilate the whole or any part of that entire wall? Omne mcyus in se minus eontinet. If he could not remove the whole line of the wall, can he remove a part only, and such part or portion of the whole as his caprice may dictate ? The conduct, rights and duties of the defendant in such a case, .and it is the very case at bar, are defined, regulated and controlled, it is respectfully submitted, by the Article 681 of the Civil Code.

The defendant wholly disregarded the provisions of this article, and proceeded ex suo proprio motu, to mutilate and to remove a part of the common wall and without any notice to his neighbor, or any precautionary measures, “ascertained by persons skilled in building.” Hence the absolute necessity of this injunction that plaintiff may be protected from the injurious effects and illegal conduct of his neighbor.

The ruling of the District Court assumes a degree of refinement on questions of evidence, relative to real estate, at once impracticable and inconsistent with all the relations of men in civil societj'-. All agreements of men, touching their property, are made on the earth, and it would be simply absurd to say that such agreements could not in any form, be controlled by parol testimony, because it touched the realty. The District Judge assumes, at page 27 of the Transcript, that the erection of a common wall “ is a form of alienation.” No such assumption is authorized by any text or fair interpretation of the law. Suppose the entire destruction of edifices, the walls of which had been made common, either by agreement or simple operation of law — would it be contended, could it be maintained, that either of the adjoining proprietors had alienated his land, and had lost forever all proprietary interest? In the present case all ownership in defendant’s land, was, as is set forth in the bills of exception, disclaimed by the plaintiff. In all cases and under all circumstances, the adjoining proprietor never loses his ownership because his neighbor has exercised his own rights. There is no direct, or absolute, or even temporary or quasi alienation, nor is any alienation- contemplated by the law. All that the law authorizes is a right, in certain specified cases, to use. This is a personal right, to be exercised in cases specified, but is not a real right susceptible of alienation per se, but o Ay by alienation of the entire Estate.

Application for re-hearing refused. <


author: Campbell, J. Slidell, O. J.

text:
    Merritt, Bliss & Co. v. M. Openheim. Wm. McGrosty v. Same. Wilson & Griffin, Intervenors.
    Under tlie Act of March 18th, 1847, a creditor, who would arrest a non-resident debtor, must make the factof absconding appear l)y his own oath. It is not competent for an agent or attorney of the arresting creditor to take the oath.
    To entitle a creditor to the benefit of the writ of arrest under the 10th section of the act of 1840, for abolishing imprisonment for debt, the grounds on which he claims the writ should be verified by
    APPEAL from the Fourth District Court of New Orleans, Beynolds, J.

      F. Perin, for plaintiffs and intervcnors, appellants. D. 0. Labatt and Latour, for defendant. ■
   Campbell, J.

Plaintiffs in the two first of the above entitled suits, who are merchants, resident in New York, filed separate petitions, in which they allege that, in 1851. they respectively sold to defendant, who, they aver, now resides in Yazoo City, Mississippi, bills of goods, for which his notes were received. That on the notes given to Merritt, Bliss & Go., judgment was rendered in their favor, on the 18th of March, 1852; on which judgment, a fi. fa. was issued on the 22d of May, 1852, and returned unsatisfied the 9th of March, 1853. The plaintiff, McGrosty, claims judgment on the note in his favor, both plaintiffs alleging that no part of defendants’ indebtedness to them has been paid. They further aver, that during the fall, winter and spring of 1851 and 1852, the defendant being a merchant and in insolvent circumstances, (who had never voluntarily surrendered his property to his creditors, or been proceeded against for a surrender,) made, within the year, a fraudulent conveyance of a large portion of his stock of goods, to their injury, and in violation of the Act of 1840, to abolish imprisonment for debt. That after the fraudulent conveyance complained of, defendant, in May or June last, removed from the State and has ever since remained away, and that he refuses to apply the proceeds of the said sale of goods, to the payment of their claims. On these allegations, they pray for his arrest and imprisonment; their attorney of record, verifying under oath the allegations of the petitions as above set forth.

The defendant having been arrested in each of the above cases, took rules upon the plaintiffs to show cause why the writs of arrest should not be set aside, for the reason, among other grounds, that the affidavits are defective, and that the plaintiffs being non-residents, the writs were illegally issued.

By consent of parties, the two cases were consolidated and the rules taken, tided together. The Court being of opinion that the evidence established that the parties, plaintiffs and defendant, were all non-residents, and that no ground for the arrests had been proved, made both rules absolute and set aside the writs. This judgment was rendered on the 1st of April last. On the 15th defendant plead, as peremptory exceptions to the actions, that being a nonresident, and plaintiffs also being non-residents, he could not be sued for fraud as charged, and that the writs of arrest having been quashed, the charge of fraud, under the Act of 1840, could not be inquired into.

The exception in the case of Merritt, Bliss & Go. was sustained, and the suit dismissed. In the case of Me Grosty, it was sustained in so far as it related to the charge of fraud. After the rendition of the judgment quashing the writ of arrest, but before the judgments dismissing the suits, (which were rendered April 23,) Wilson & Griffin, of New York, who claim to be judgment creditors of defendant, intervened, and adopting the allegations of Merritt, Bliss & Go. and MeGrosty, prayed for the arrest and imprisonment of defendant. To this intervention defendant, on the 29th, excepted, for that the Court had already decided as between the parties, that an arrest would not lie, they being nonresidents ; and that they were, consequently, out of Court. The Court sustained this exception and dismissed the intervention. From this judgment, as also from the judgments quashing the writ of arrest, and the judgments on the exceptions dismissing the suits, the intervenor and plaintiffs have appealed.

The 9th section of the Act of the 28th March, 1840, for abolishing imprisonment for debt, under which these proceedings were instituted, provides, “ That no citizen of another State, shall hereafter be arrested at the suit of a non-resident creditor, except in cases where it shall be made to appear that the debtor has absconded from his residence.” This section of the Act of 1840, was so amended by an Act approved March 18, 1847, as to read thus: “ That no citizen of another State shall hereafter be arrested in this State, at a suit of a resident or non-resident creditor, except in cases were it shall be made to appear, by the oath of the creditor, that the debtor has absconded from his residence.”

It was held in the case of Absolom v. Cullum, that by this amendment of the preexisting law, “the fact of absconding must be made to appear by the oath of the creditor” himself; whereas, before its adoption, it was sufficient if the facts authorizing the arrest were sworn to either by the creditor, or “ by his agent or attorney.”

In the cases under review, as has been seen from the statement of facts, the affidavits on which the several writs of arrests were based, were all made by the attorney at law of the complaining creditors.

But it is contended by the counsel of appellant, that, in those cases, no affidavit is .required by law, although it may bo proper in the Judge to require it, as a guide to his discretion. The answer to this, is contained in the law under which the' parties themselves have, proceeded. To entitle a creditor to the benefit of this writ under the 10th section of the Act, it is as necessary that the grounds on which he claims it should be verified by oath, as if it were claimed on any other ground for which the law accords it. But if it be intended that the requirements of section 9 of the Act of 1840, as amended, are not applicable to this case, inasmuch as there is no allegation that the defendant has absconded from his residence, it may be replied that, by the express terms of the law, the remedy of arrest of the non-resident debtor, is never given to the non-resident creditor, except when it is made to appear that the debtor has absconded from his residence.

The testimony adduced satisfies us, as it did the Judge of the first instance, that the defendant did not abscond from his residence; that he visited this city on business, and intended to return to Mississippi, when he was arrested. Ve therefore think the Judge did not err in dismissing the arrest. The remedy is a severe one, and must be strictly construed.

Prom what has already been said, it follows that the peremptory exception going to the dismissal of Meritt, Bliss & Co.'s suit, was properly sustained. They were judgment creditors, and sought no recognition or enforcement of their judgment, further than that the defendant should, in default of its payment, be arrested and imprisoned. The judgment dismissing the petition of MoGrosty, in so far as relates to the charge of fraud, must be sustained for the same reason. It has virtually reserved to him the right of prosecuting his claim to judgment as in an ordinary suit.

The relief sought by the intervenor and Merits Bliss & Go. and the grounds on which they base their demands, are identical. If then the intervention had been tried with the principal action, it must have shared its fate. The intervention was not filed, as has been shown, until after the rendition of the judgment dismissing the arrest; nor did the intervonors, though in Court, object to the trial of the exception on which the two consolidated cases were dismissed. “The person intervening must be always ready to plead, or exhibit his testimony, because he has always a separate action to vindicate his rightsand it is expressly provided, that the demand in intervention, must be decided at the the same time with the principal demand. C. P. 891, 159.

We are of opinion, under the articles cited, the principal demand having been tried, no further proceedings can be had on the intervention. Jones v. Laurence, 4 Ann. 279.

Judgments affirmed.

Slidell, O. J.

It seems to me a sufficient reason for not disturbing the judgments in these cases, that the allegations of the petitions are too vague and general. The facts and circumstances constituting the fraud, should have been distinctly and specifically alleged.

I, therefore, concur in the affirmance of the judgments.


author: Slidell, O. J.

text:
    Glendy Burke v. His Creditors—on a rule taken by Gernon.
    It is inequitable to decree a specific performance where the intention of the parties is doubtful. A Court is not permitted to make such a decree on conjecture; and where it finds no certain contract it has no right to frame one for the parties etc eguo et bono.

    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Elmore & King, for plaintiff and appellant. Walker & BeFrance, for defendant.
   Slidell, O. J.

At an auction sale of property of the insolvent, it. was knocked down to Michael Gernon ; but the syndic and purchaser disagreeing as to the amount to be paid, the matter was submitted to the Court, under a rule taken by the purchaser upon the syndic, to show cause why he should not execute a deed in conformity to the terms of the sale, as understood by the purchaser. In his answer, the syndic states his understanding of the terms. The District Judge thought the advertisement obscure: and without adopting the construction of either party, dismissed the rule. Gernon has appealed.

It would seem that this sale grew out of previous proceedings, which we had recently occasion to consider; and we had supposed, at the time of argument, that those proceedings would throw some light upon the present controversy, and facilitate its decision. But on examining the record in this cause, we find that none of those previous proceedings are in evidence. The case is presented merely upon the advertisement which preceded the sale now in question ; the pvoces verbal of the auctioneer; the act of sale from the State of Louisiana to Glendy Bw'ke; certain letters which have passed between the syndic and purchaser; and the projét of a deed of sale offered by the former to the latter.

With reference to this evidence, we proceed to consider the right of the parties.

The terms are thus stated in the advertisement;. — “Terms of sale of the above property on a credit of 6, 12, 18 and 24 months, with mortgage on the property; and the purchaser to assume the following mortgage due the State of Louisiana: Firstly — A certain promissory note subscribed by him, the said Glendy Burfoe, dated 16th of May, 1850, to the order of himself and endorsed by said Glendy Bwrke, payable on the 21st of March, 1872, at the office of the Treasurer of the State of Louisiana, for the sum of $6,213 98.

Secondly — Forty-two separate notes, dated, subscribed, and endorsed in like manner, for the sum of $155 35 each, payable respectively at the Louisiana State Bank, in the city of New Orleans, on the 1st day of December, and the 1st day of June of each and every year, until the 1st day of December, 1871, amounting together to $6,524 70, being for interest on the note firstly described.

Thirdly — One note dated, subscribed, and endorsed in like manner, and payable on the 21st of March, 1872, at the Louisiana State Bank, in the city of New Orleans, for the sum of $94 94, being also for interest on the note first described.

All the above notes, in case of non-payment, to bear interest at the rate of eight per cent, per annum from maturity until paid. In accordance with the original act of sale from the State of Louisiana, the purchasers are to have the privilege of exchanging their notes at any time, for any of the bonds of the State of a similar amount, which fall due on the 21st of March, 1872.

Acts of sale before P. W. Roberts, notary public, at the expense of the purchaser.”

The proees verbal states, that Michael Gernon being the highest and last bidder for the property, it was adjudicated to him for the price and sum of $15,609. Then follow the terms of sale, verbatim, as stated in the advertisement.

Erom the deed of sale to Burlce, it appears that he bought the property from the State of Louisiana, in May, 1850, for the sum of $6,218 98, payable 21st of March, 1872, with five per cent, interest, payable semi-annually, for which forty-four interest notes were given; all of which notes were to bear interest after maturity, at eight per cent.

The syndic claims that the purchaser is bound, under the adjudication, to give his notes for $15,600, at 6, 12, 18, and 24 months from the date of adjudication, and in addition thereto, to assume the payment of Burlce's mortgage.

The purchaser contends, that he is bound to give his notes only for the balance of $15,600, the amount bid, after deducting therefrom the amount of all the mortgage notes given by Burlce and mentioned in the advertisement.

Let us examine these propositions in their order, and inquire whether either of them can bo considered as clearly so understood at the time of the sale by the party against whom such construction is invoked.

I. Wo are not satisfied, from a consideration of the advertisement and what is stated in the proves verbal, that 6-ernon really intended to give $15,600 for this property, oyer and above the mortgage to the State. The terms used in the advertisement, do not expressly indicate, nor necessarily imply such a meaning, and the bid was fifteen thousand sis hundred dollars, which the pro-ees verbal speaks of as “the price.” If we look, for the purpose of analogy, at the practice in the case of Sheriff’s sales as regulated by the Code of Practice, and which, from its every day recurrence, may well have been present in the mind of the purchaser, we find that the bid is considered a bid for the total value of the property; and where there are antecedent mortgages, the condition is, that the purchaser shall pay the Sheriff that portion of the price for which the property is adjudicated, which is the excess over such incum-brances. See O. P. 679.

II. When we consider the construction which the purchaser invokes, the language of the advertisement does not authorize us to say, the syndic so understood the matter. Admitting it is consonant to usage, to treat the bid as a bid for the value of the property, from which antecedent incumbran-ces are to be deducted, we know no precedent for the proposition that unac-crued interest is to be cumulated with the capital and deducted in like manner from the bill. The unreasonableness of admitting such a proposition, unless sanctioned by clear and unmistakable language in the advertisement, is peculiarly obvious in the present case, where the interest runs through a period of twenty years. We believe the practice in Sheriff’s sales has been to disregard unaccrued interest in deducting a mortgage from the purchaser’s bid, and this seems an equitable and practical view of the matter, upon the theory that the use of the property, after the purchase, will be an equivalent for what the purchaser has to pay the creditor for the retention of the capital during the stipulated delay. See also 1 Robinson, 306. ' The circumstance that notes were given for the interest, does not seem to us to distinguish the case, in principle, from one where a note or obligation bearing annual interest is given for the price.

Our conclusion is, that neither construction received the assent or meets the intention of both parties, and therefore that the relief asked by the plaintiff in his rule, and by the syndic in his answer, was properly refused.

Nor can wo deduce from the language of the advertisement and proves verbal, any other mode of applying the bid, which could be considered as meeting1 with certainty, a mutual intention and consent, without the existence of which a specific performance should not bo enforced. The condition of the estate as to incumbrances, was complicated by the fact, that some of the interest notes, bearing eight per cent, interest after maturity, were due before the sale, and this fact seems to have been overlooked in framing the advertisement. Whatever equity there might be in considering- the use of the property by the purchaser after his purchase, as an equivalent for interest afterwards maturing, there would be none in requiring him to pay interest which had matured before the sale without giving him credit for it on the amount of his bid, unless he was distinctly warned by the advertisement, that such was to be the condition of the sale. Moreover, the property was originally mortgaged to the State, to secure forty-throe interest notes of $135 35, and the advertisement and proves verbal speak of forty-two interest notes of that amount, without specifying which they are. This was important, because they bore eight per cent, interest after maturity, and the date of maturity was not described, although several had fallen due.

In sales under execution upon twelve months bonds, where there are anterior incumbrances, Article 083 of the Code of Practice, requires the Sheriff to announce, (and this, as we understand, before the crying,) “ that the purchaser snail be entitled to retain in his hands, out of the price for which the property was adjudicated, the amount required to satisfy the privileged debts and special hypothecations to which the property sold was subject; but that he shall be bound to give his obligation for the surplus of the purchase money, if there be any, and subscribe his obligation at twenty months’ credit, with security and when the sale is for cash, there is a like announcement required upon the crying. Art. 079 0. P. The object of these provisions seems to be to explain to the purchaser how his bid is to be applied.

No such announcement, so far as we are informed, was made by the auctioneer in this case. This omission contributes to the uncertainty as to the intention of the purchaser.

It would be inequitable to decree a specific performance, where the intention of the parties is doubtful. A Court is not permitted to make such a decree on conjecture; and where it finds no certain contract, it has no right to frame one for the parties ex cequo et bono.

Judgment affirmed ; the costs of appeal to be paid by the appellants.


author: SLIDELL C. J.

text:
    Burke v. His Creditors.—Fitzsimonds, appellant.
   SLIDELL C. J.

Eor the reasons assigned in the case of Burke v. His Creditors, No. 3291 of the docket of this Court, decided this day:

It is ordered, adjudged and decreed, that the judgment of the Court below be affirmed; the costs of appeal to be paid by appellant.


text:
    Eva Werner v. Michael Kelly, her husband.
    Where, at the time of marriage, the wife had a stock in trade which, by the jointindustry of herself and husband was increased, the stock thus acquired was community property; but on a separation of property between the spouses, it was chargeable with the value of the stock which the wife had on hand at the time of the marriage.
    APPEAL from the Fourth District Court of New Orleans, Reynolds J.

      Roselim, for plaintiff, cited O. C. 2361, 2362, 2363 — 16 La. Rep. 5.

      T. W Oollins and W W. W Wood, for defendant and appellant, cited 5 N. S. 257; 11 La. R. 537.
   Buchanan, J.

This is a suit for separation of bed and board, on the grounds, 1st, of ill treatment; 2d, of public defamation; 3d, of habitual drunkenness.

As to the two first grounds, it suffices to say, that the evidence shows that blows were interchanged between the parties on various occasions; also, that they were in the habit of indulging in a strain of vulgar abuse towards each other, which ought not to be dignified with the title of defamation.

As to the charge of habitual intemperance made against the defendant, it is abundantly proved by his own witnesses, not to speak of the numerous witnesses called by plaintiff. Under the provisions of the Act of 1848, (page 57, Session Acts,) the plaintiff is, therefore, entitled to the separation awarded by the judgment of the District Court.

Upon another point, however, her case is far from being so clear. Her petition alleges “that when she was married to defendant, she owned as her separate property, a certain undertaker’s establishment, consisting of hearses, carriages, horses, and the other appurtenances of an establishment of that kind; that she carried on said establishment since her marriage with defendant.” She prays that she be authorized to administer her separate property and business without the interference of her said husband ; that he be enjoined not to interfere with the administration of her separate and paraphernal property, and that judgment be rendered decreeing (besides the separation of bed and board,) that plaintiff is the exclusive owner of the property described in the po. .tition.

The answer traverses those averments of the petition, “ denies that any of the property now in possession of plaintiff or defendant belongs to plaintiff in her separate right,” and that “it is all community property,” and that the horses, carriages, hearses, and other appurtenances of the undertaker’s shop and business, have been “acquired since marriage out of the joint labor of defendant and his wife, the plaintiff.”

Upon this issue, the proof is as follows: The plaintiff's first husband, William Schmidt, carried on the business of undertaker in this city. He died on the 2d of December, 1848. On the 5th of the same month his widow, the present plaintiff, presented a petition to the District Court, praying for an inventory of Ms estate. The inventory was accordingly made by a notary public on the 18th of January, 1849, and included! he stock in trade of the undertaker’s business, consisting of coffins, (number not mentioned, but estimated at fifty dollars,) glass show cases, a desk, three hearses with trimmings and harness, and four horses. In the short interval which elapsed until her second marriage, plaintiff continued her late husband’s business; and was married on the 9th March, 1849 to the defendant. »

Several witnesses prove that the business has greatly increased since the marriage of plaintiff and defendant, and that testimony is corroborated by an inventory made by the Sheriff in executing a writ of sequestration applied for by plaintiff in December, 1852, in a suit which was discontinued in Eebruary, 1858, and which is in evidence herein. It is proved that of the old stock in trade of plaintiff’s first husband nothing remained at the institution of this suit, but one hearse and one or two horses. The evidence is somewhat conflicting in relation to the management of the business; but on the whole, we are satisfied that both parties have given their attention to it, until the dissipated habits into -which the husband had fallen of late, made him neglect his business. The sign over the door was “Michael Kelly, undertaker,” and the business was transacted in his name.

Upon this evidence, we think the District Court erred in decreeing the undertakers’ establishment to be paraphernal property of the plaintiff. It is composed, in its present shape of effects acquired by the industry of both the spouses since their marriage, and must therefore be viewed as property of the community. The plaintiff is indeed entitled to charge the community with the estimated value of the stock in trade as shown by the inventory of her first husband, as this has been consumed in the prosecution of the business.

It is therefore adjudged and decreed that the judgment of the District Court be reversed; and proceeding to render such judgment as should have been rendered by the Court below, it is decreed that there be separation of bed, board and property between the plaintiff and defendant; that the custody of the minor David Deity, issue of their marriage, be given to plaintiff, that the movable property comprised in the inventory made by the Sheriff and annexed to the writ of sequestration in the suit No. 5827 in the Fourth District Court of New Orleans, be deemed common property of plaintiff and defendant, subject to a privilege in favor of plaintiff for the sum of three hundred and eight dollars and fifty cents, ($308 50), estimated value of movables in the inventory of plaintiff’s first hushand; that the house and lot, No. 211 Tchoupitoulas street, be also deemed common property, subject to a tacit mortgage in favor of the children of plaintiff by her first husband, for the sum of one thousand dollars, being so much received by the plaintiff and defendant for account of said children from their under tutor, Jacob Mehle; that the slave Joe and the real estate comprised in the inventory of plaintiff’s first husband, William Schmidt, be deemed to be the separate property of plaintiff, as regards the defendant ; that the cause be remanded to the District Court to make a partition of the common property; that the costs of the suit in the Court below already incurred be paid by the defendant, those of the appeal by plaintiff and appellee, and cost of partition to be paid by the mass.


author: Slidell, C. J.

text:
    The State of Louisiana v. the Judge of the Sixth Judicial District.
    The Act “ to provide for the trial of recused cases out of the city of New Orleans,” approved April 28th 1853, is unconstitutional.
    ON an application for a mandamus to the Judge of the Sixth Judicial District Court of East Baton Rouge.

      J. G. & P. H. Morgan, for appellant.
   Slidell, C. J.

In a case pending-before the Judge of the Sixth Judicial District, he recused himself, and the plaintiff in the suit, after the defendant had refused to unite with him in selecting a member of the bar, moved the Court to select three members of the bar from those then in attendance, out of whom one should be chosen by lot, to hear, try and determine the cause, in conformity to the provisions of an Act entitled, “ An Act to provide for the trial of re-cused cases out of the city'of New Orleans,” approved April 28th, 1853.

The District Judge refused to do so, being of opinion that the Statutory imposition of such a duty upon him was unconstitutional'. To test the question speedily, the Judge accepted service of an application for mandamus, and signed an answer, giving his reasons for rejecting the motion. All questions of form are waived.

We have no hesitation in refusing the mandamus.

The Statute is in these words :

“ An Act to provide for the trial of recused cases out of the city of New Orleans :

Section 1. Be it enacted by the Senate and House of Representatives of the State of Louisiana in General Assembly convened: That whenever the Judge of an inferior Court in this State, the parish of Orleans excepted, is interested or has acted as attorney or counsel in any case instituted, or which may be instituted in such Court, or who is related to either of the parties by consanguinity in the ascending or descending line, or collaterally to the fourth degree, inclusive, or is disqualified in any other way by law, and is recused by either of the parties, or recuses himself, that such case or cases shall be heard, tried and determined, as well upon final hearing as upon application for interlocutory orders, in the following manner, to wit: The parties by their counsel select some member of the bar in attendance on the Court, and in the event they do not make such selection, then it shall be the duty of the Court to select at least three members of the bar in attendance as aforesaid, not of counsel, in interest, or related to the parties in the manner above set forth, and from that number one shall be chosen by lot; when such selection in either of the two ways aforesaid shall be made, it shall be the duty of the Judge to retire for the time from the bench, and the said member of the bar so’ selected shall take his place, and hear, try and determine the case or cases for which he shall have been so selected.

Sec. 2. Be it further enacted, &c., In all cases, and every case, tried, heard and determined according to the provisions of the foregoing section, it shall be the duty of the Judge to enter the proceedings in the Court by virtue of this Act, as if the same had been had before him, and it shall be his duty to sign all, every and any judgment, or judgments, decree or decrees, to be rendered in the case or cases, as the same would have been signed had the judgment or decree been rendered by him when presiding in Court, and in every other respect, the records, minutes and proceedings shall be and appear as if the selection provided for by this act had not been made, and appeals from any judgment or decree thus rendered shall be granted and allowed by the Judge as by law now provided in other cases.

Sec. 8. Be it further enacted, &c., The member of the bar thus selected, according to the provision of this Act, shall, during the time occupied in the trial of causes by virtue of this act have the same power to preserve order in Court, and punish for contempt, as is vested by law in the Judges of the several Courts.

Sec. 4. Be it further enacted, &c., That the attorney thus appointed to sit on the trial of the cause, shall take the oath prescribed by the Constitution before taking the bench.

Sec. 5. Be it further enacted, &c., That all Acts or part of Acts, not in accordance with the above and foregoing provisions, be and the same are hereby repealed.

Sec. 6. Be it further enacted, &c., That this Act shall take effect from and after the third Monday of June, eighteen hundred and fifty-three.”

The Article 61 of the Constitution decrees that the judiciary power shall be vested in a Supreme Court, in such inferior Courts as the Legislature may from time to time order and establish, and in Justices of the Peace.

The Art. 81 declares that the Judges of the several inferior Courts shall be elected by the duly qualified voters of their respective districts or parishes.

Power, therefore, is granted to the Legislature to establish inferior Courts ; but the power to choose the Judges thereof, when established, is vested elsewhere- — namely, in the qualified voters of the particular district or parish.

The Constitution, having thus provided, in terms not of permission, but of command, how Judges of inferior Courts shall be chosen, it follows that the Legislature had no constitutional power to prescribe any other mode.

Is this Act, then, an attempt to prescribe another mode of choosing an inferior Judge ? Por if it be, it is repugnant to the Constitution, and therefore void.

There can be but one answer to the question. The person to be chosen in the manner prescribed in the Statute would certainly be, if his appointment were valid, a Judge pro Tiao vice. He is to hear, try, and determine the cause.

It is in vain to say that the judgment he is to render is to be signed by the District Judge, and therefore is the judgment of the latter. The District Judge> under the Statute, is a more instrument for the performance of a mechanical duty. The mental duty is performed by the temporary functionary, and the judgment is essentially his judgment.

But if we could be permitted, disregarding substance and looking to forms, to treat the judgment as the judgment of the District Judge, and not of the person so chosen for the occasion, an insuperable constitutional, consideration would forbid us to compel the District Judge to act as required. For in that view of the matter the Statute imposes on the District Judge a duty which cannot be reconciled with another and paramount duty imposed upon him by Constitution.

By Art. 72, “The Judges of all the Courts within the State shall, as often as it may be possible so to do, in every definitive judgment, refer to the particular law in virtue of which such judgment may be rendered, and in all cases adduce the reasons on which their judgment is founded.” The Statute not only requires the District Judge to sign a judgment which he never rendered, but virtually to adopt reasons which he never gave, or else (which is the only alternative) give a judgment without any reasons, predicated upon the law or facts of the case. Either would be a violation of his constitutional duty, and it is obvious, therefore, he has a right to refuse.

It is therefore decreed that the application for mandamus be dismissed at the costs of the applicant.


author: Slidell. C. J.

text:
    The State of Louisiana v. The Judge of The Twelfth Judicial District.
    ON an application for a mandamus to the Judge of the Twelfth Judicial District Court, Parish of Ouachita.

      W. J. G. Baker, for the applicant.
   Slidell. C. J.

For the reasons assigned in the case of The State v. the Judge of the Sixth Judicial District Court, this day decided, it is ordered that the mandamus prayed for be refused, and the applicant pay costs.


author: Slidell, 0. J.

text:
    Wm. Albert v. James Brewer.
    Tile Statute of 1848 imposing a tax on the keepers of Coffee houses is not illegal, nor was it repealed by the T8th section of the Statute of March, 1850, entitled “ an act to provide for the assessment and collection, of taxes in this State.”
    ■£he Constitution gives to the Supreme Court jurisdiction in all cases in Which the constitutionality or legality of any tax shall be in contestation — but the Court has no jurisdiction as to the mode of procedure, provided by law for the collection of taxes, except where the amount exceeds three hundred dollars.
    APPEAL from the District Court of the Parish of Jefferson, GlarTce; J.

      Boselius and MpCay, .for plaintiff and appellant. Tunis & Bugu'e, for defendant.
   Slidell, 0. J.

The plaintiff obtained an injunction against the Sheriff, who was proceeding to collect a tax from the defendant as keeper of a coffee house. There was judgment dissolving the injunction, and the plaintiff has appealed.

The jurisdiction of this Court, in this cause, is controlled by the 62d Article of the Constitution, which is in these words:

“The Supremo Court, except in the cases hereinafter provided, shall have appellate jurisdiction only; which jurisdiction shall extend to all cases when the matter in dispute shall exceed three hundred dollars; to all cases in which the constitutionality or legality of any tax, toll, or impost whatsoever, or of any fine, forfeiture or penalty, imposed by a municipal corporation, shall be in contestation.”

As the amount in dispute does not exceed $800, the action of this Court is restricted to the question of the constitutionality and legality of the tax.

It is not contended, that the imposition of such a tax is unconstitutional. Its legality, however, is disputed.

We consider it legal, being expressly established by a statute, and there being no suggestion of any defect or infirmity in this statutory enactment, which would make it void. See Statute of 1848, sec. 8, paragraph 8, p. 36, Extra Session.

But it is said, this statute was repealed by the 78th section of a statute of March 21st, 1850, p. 147, entitled An Act to provide for the assessment and collection of taxes in this State, which declares that “ all laws and part of laws upon the subjects treated of in this Act, are hereby repealed.” The object of this Act was to provide for the assessment and collection of taxes. The repealing clause must be interpreted with reference to that object, and cannot reasonably bo extended to a statutory enactment imposing a tax like the enactment in question. This enactment imposes an annual tax of $67, on every, keeper of a coffee house. The Statute of 1850 provides for the mode of its collection, and imposes a penalty for the neglect to take out a license. The 42d section expressly recognizes the existence of legislative enactments imposing taxes on trades and professions, and is inconsistent with the idea of their repeal, so far as such imposition is concerned.

The other matters discussed in argument, and suggested in the petition for injunction, concern, not the constitutionality or legality of the tax, but the constitutionality of the mode of procedure provided by law for its collection. Of this latter question we have no jurisdiction in this case.

It is therefore decreed, that the appellant take nothing by this appeal; and that he pay the costs thereof.


author: Campbell, J.

text:
    Leon Lion v. Wolf & Brother.
    Appeal dismissed because the transcript was not filed within the time prescribed by law.
    APPEAL from the District Court of the parish of Terrebonne, Dole, J.—

      Ilhley & Goode, for plaintiff and appellant. Gonnolly & Rightor, for defendants.
   Campbell, J.

The defendants and appellees move for the dismissal of the appeal on the ground that the transcript was not filed within tho delay prescribed by law. The appeal was made returnable on the 4th Monday of January, 1854. The transcript was not filed until Friday, the 27th, more than three judicial days having elapsed, and no application having been made for further time, the appeal must be dismissed at appellant’s cost, which is decreed. C. P. 590, 883, 585 ; Pond v. Horton, 7 L. 176; New Orleans & Carrollton Railroad Co. v. Hood, 3 Ann. 226; McDowell & Peck, 5 Ann. 42; Bonnabel v. Walter, Ann. 744.


author: Ogden, J.

text:
    John Litherbury v. Moses Greenwood & Co. and Lewis Snapp.
    The rule excluding a party to the record as a witness cannot be extended to a case where defendants might have been sued separately.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      J. L. Matthewson, for plaintiff and appellant. Semmes & Edioards, for defendants.
   Ogden, J.

The defendants, Greenwood & Co., promised to accept the drafts of their co-defendant, Lewis Sncvpp, at six and nine months, for $1166 07 each. On the faith of that promise, the plaintiff took the draft sued on, which was afterwards protested for non-acceptance, and the present suit is brought both against Greenwood & Co. and Lewis Snapp, as member of the firm of Snapp> & Hanger, by whom the bill was drawn; and judgment is asked against them in solido.

Judgment was rendered against Snapp, on his confession.

The conclusion to which we have come, on one of the grounds of defence relied on by Greemoood & Co., renders it unnecessary to notice the other questions which have been discussed, as to their liability. It appears that, after the maturity of the draft sued on, the plaintiff addressed a letter to Snapp, informing him that he had drawn on him for the amount of the protested draft on Greenwood & Co., at three months from date. He begs him to accept the bill and not let it be protested, either for non-acceptance or non-payment. At the foot of the letter is a calculation of the interest which had accrued on the former bill, w'hich, together with the costs of protest, is added to the new bill. This new bill drawn at 90 days, from the 30th October, 1851, was accepted by Lewis Snapp, but not paid at maturity. Snapp was produced as a witness by Greenwood & Co., and the plaintiff objected to his testimony on two grounds: 1st. That he was a party to the suit. 2d. That he had an interestin the result. His testimony was admitted, and tho plaintiff, by a bill of exceptions, has presented the question of its admissibility for our decision. The rule excluding a party to the record as a witness, cannot be extended to a case where the defendants might have been sued separately. As it was not necessary to join them in the same action, there could be no reason on that account to deprive either party of the other’s testimony. The mere fact of the witness being a party to the record, does not disqualify him as a witness. See 1st Ann. R., p. 228; 2d Ann. p. 890; 5th N. S. 455. The only interest which the witness had, and by which his testimony could have been excluded, was that resulting from his liability for costs, for which he would have been responsible to Greenwood & Go. if they had been cast in the suit. That interest was released, and we think his testimony was properly received. This witness testifies that the understanding he had with the plaintiff was, that the draft on Greenwood & Go. was to be given up when he accepted the new bill; and this fact is rendered probable by all the surrounding circumstances. The new bill was payable to the order of James Hall, Cashier, and thus a new creditor was substituted to the old one, and the bill on Greenwood <& Go. must have been considered as extinguished by novation.

The judgment of the Court below is, therefore, affirmed, with costs.


text:
    P. F. Michel v. Police Jury of Terrebonne.
    A strict compliance with the law and police regulations must be shown, to legalize a sale of land made to pay for work done on roads; and such proceedings must be closely scrutinized.
    Plaintiff built a road on the land of a non-resident, under a contract with defendant. Plaintiff showed that in consequence of the neglect of the parochial authorities to notify the non-resident, a proceeding against him would have been ineffectual. Held: — That as the proceedings against the land would be nugatory, he might proceed at once against the Police Jury.
    PEAL from the District Court of Terrebonne, Gole, J.

      J. G. & A. Beatty, for plaintiff, cited Newcomb v. Police Jury, 4 R. 283 ; Michel v. Police Jury, 3 Ann. 123.

      W. M. Mercer & Winchester Sail, for defendant and appellant.
   Campbell, J.

This suit was instituted against the Police Jury of Terrebonne for the sum of §2,156, and interest from September 7th, 1852, for which sum, as is alleged, he agreed to make a road on a tract of land described as the land of Joseph Elizir, a non-resident; that the job was adjudicated to him by the Road Inspector, at public outcry, as the lowest bidder; that in pursuance of said adjudication, he proceeded to make said road, which was accepted by the proper authorities.

The petition avers that the land belongs to Robert J. Walker, a non-resident, and claims payment from the parish directly, on the ground that the petitioner, by the failure of the road inspector properly to advertise and notify the absent owner, is deprived of his right to proceed summarily against the absentee.

It appears from the record, that in the advertisement and adjudication, the work to be performed is described as being on the land of Joseph Blieir, and that the notification, as published, was addressed to Joseph Elizir. It further appears, from evidence adduced by plaintiff, that the land originally belonged to Joseph Felix, and not to Joseph Elizir, and that the title to it, at the time of the adjudication, vested, by several mesne conveyances, in Robert J. Walker, a non-resident.

It is urged by plaintiffs that the notice given is not such as is required by law; that the absent owner, Robert J. Walker, not having been notified by the inspector, in conformity with law, deprives him of his right to proceed summarily against the land.

It is contended on behalf of the defendant, that the insertion of the name of the owner in the advertisement was unnecessary — that it would be mere sur-plusage; that, in the advertisementf made, the land was so described by boundaries, as to admit of no difficulty in identifying it.

Whether it is necessary to insert in the advertisement the name of the owner of the land, need not now be decided. We are of opinion, however, that, if the wrong name be given the error is fatal. A strict compliance with the law and police regulations must be shown, to legalize a sale of land made to pay for work done on roads, and such proceedings must be closely scrutinized. Hiriart v. Morgan, 5 L. 45 ; Winchester v. Cane, 1 R. 421; Jeannin v. Millaudon, 5 R. 76.

The diligence displayed by plaintiff in tracing the title to the land, would have enabled the defendant to ascertain its ownership. They have shown affirmatively that a proceeding against the owner of the land would have been ineffectual, inasmuch as he had never been notified, which, in our opinion, dispenses him from proceeding against the land, before suing the Police Jury. Lex nemem cogit impossibilia red vara. Newcomb v. Police Jury, 4 R. 233 ; Michel v. Police Jury, 3 A. 123.

Judgment affrmed.


author: CAMPBELL, J.

text:
    Cassimer Tremolet v. The Parish of Terrebonne.
   CAMPBELL, J.

The principles involved in this case, cannot be distinguished from those just decided in the case of Michel v. The Police Jury of Terrebonne.

Por the reasons there assigned, the judgment rendered by the District Court in this case is affirmed with costs.


text:
    The State v. Thomas May.
    No appeal can be taken to the Supreme Court in a criminal case, until the punishment shall have attached, or shall have been incurred, by sentence of a court.
    APPEAL from the District Court of the Parish of Jefferson, J.

      0. Glao'Tee, J. 1. M Morse, Attorney General, for the State. Ma/rlcs & Gotten, for the accused.
   Buchanan, J.

The defendant, haying been convicted by a jury in the parish of Jefferson of the offence of receiving stolen goods, moved the court in arrest of Judgment. His motion was overruled, after argument. Thereupon, and before judgment and sentence pronounced upon the verdict, the defendant appealed.

The Attorney General now moves to dismiss the appeal, on the ground that no sentence having been pronounced upon the verdict, there is no judgment from which the defendant can appeal under the Constitution.

The appellate jurisdiction of this court exists in criminal cases, by article 02 of the Constitution, “ whenever the offence charged is punishable with death, or imprisonment at hard labor.” This provision we understand to mean, that the punishment shall have attached, or been incurred, by sentence of a court, in the particular case, where the appeal is asked; otherwise there is no foundation for the appeal. See Hornsby's ease, 8 Rob. p. 590.

Appeal dismissed, with costs.


author:
Slidell, C. J.
      D. W. & W. D. Hennen,

text:
    Slark et als. v. Broom & Caughlin.
    Article 2236 of tbe Code, which declares that counter letters can have no effect against creditors or Vona, fide purchasers, i3 not to be restricted to cases where there is an authentic act from which the counter letter is to derogate. Therefore, where a counter letter shows that on]y a part of the purchase money of a ship had been paid, while the bill of sale registered at the custom house recited the entire payment — Held: That the counter letter Gould not prevail against a judgment creditor.
    APPEAL from the fourth District Court of New Orleans, Reynolds, J.

      H. Gaither, for plaintiffs. D. H. & W. D. Hennen, for opponents and appellants.
   Slidell, C. J.

Plaintiffs being judgment creditors of defendants, seized and sold, under fieri faeias, the ship Diogenes. The heirs of Samuel Broom, former part owners of the vessel, filed a third opposition and claimed a vendor’s privilege on the proceeds in the hands of the Sheriff. There was judgment against them, and they have appealed.

It appears that the Diogenes being the joint property of one Draper and the heirs of Broom, was sold to effect a partition, and purchased by Gaughlin in his own name. The bill of sale, which was registered at the New Orleans customhouse, recites that all the purchase money had been paid, but a writing signed on the following day by Gaughlin, acknowledges that only one-third of the price had been paid.

By Article 2236 of the Code, “counter letters can have no effect against creditors or bona fide purchasers; they are valid as to all others.” This article appears to us conclusive against the appellants.

It is said this article applies only to cases where there is an authentic act, from which the counter letter is to derogate. But it contains no express terms of restriction, and when the policy of the law is considered, we see no reason to exclude the present case from its operation. For here is a document which is not, it is true, an authentic act in the sense of the Code; but it is a document which has been, pursuant to law, registered in the public books of the customhouse, and so informed such of the public as thought proper to resort there for information that Gaughlin had paid the whole price of the vessel. A document thus registered, has quite as much publicity as an act spread on a notary’s books.

Whether the rule of Article 2336, applies to ordinary private writings, it is unnecessary now to decide.

Judgment affirmed, with costs.

D. W. & W. D. Hennen,

for a re-hearing :

The third opponents respectfully ask for a re-hearing in this case, upon the following grounds:

1st. The court have virtually decided that the customhouse is an office of registration, the records of which have the same binding effect upon the public and the parties, as the records in our State offices for the registration of the sales of immovables. Where is the law for this ? None is given in the opinion of the court; none was cited by the plaintiffs’ counsel. The notice given by a registration in the State conveyance office, is an artificial and constructive notice — a fiction of the law created by express statute from motives of public policy. But there is no law creating any such fiction in the case of ships and other movables; and this was abundantly shown by the authorities cited by opponents, and which the court have passed over sub silentio.

2d. The court has not noticed the point that plaintiffs had constructive notice even according to the strict doctrine of registration, and that such constructive notice is equivalent to one made in due form of law.

3d. The court have said that the sale of the ship as recorded in the custom house, is not an authentic act; and yet it relies upon the article of the Code which the authority of Toullier and Merlin, quoted, shows is applicable only to authentic acts.

Re-hearing refused.