text:
    No 3409.
    Simon Netter, Under Tutor, v. S. Herman and L. Levy.
    This suit is instituted by the under tutor of the minors Kohn, to recover from S. Herman, and L. Levy, the amount coming to them as heirs of their father in the property belonging to the partnership which had existed between their father and said Herman and Levy.
    It is apparent from the record that the minors* interest in the succession of their father had not been handed over to their tutrix at the time she entered into another partnership with the surviving partners of her deceased husband. It was this interest, added to her rights as widow in community, which formed her share of the partnership stock. The contract was, in fact, a contract of partnership between herself, her minor children and the surviving partners of her husband. The law does not authorize such a partnership. It was an investment of her minor children’s funds in an enterprise for which she had no warrant. Up to this point, therefore, the minors’ property must be considered to have remained in the hands of the surviving partners.
    But this court does not see where the under tutor finds any authority for attacking the defendants. If any cause of action exists against the defendants, the tutrix of the minors is the proper person to assert it.
    The under tutor acts for the minor whenever the interest of the minor is in opposition to the interest of the tutor. Perhaps, in case of coEusion between the debtor of a minor and his tutor, the under tutor might be authorized to interfere. But in this case no collusion is asserted. The rights of the minors have not been invaded by the defendants. 'Whatever transactions they may have had in which the minors* interests were involved, they had them with their tutrix, who was the only person having authority with whom they could contract. If they acted fraudulently toward the tutrix, fraud vitiates any contract, and the tutrix has her action to set it aside. If the tutrix has acted in bad faith towards her wards, the under tutor has his action against her.
    Appeal from the Sixth District Court, parish of Orleans. Oooley, J.

      JBrecmx & Fenner, for plaintiff and .appellant. Oooley é FMllips, for defendants and appellees.
   Morgan, J.

Leopold Kohn was a memher of the firm of Kohn, Herman & Co. The firm was composed of Leopold Kohn, S. Herman, and Leopold Levy. By the terms of their contract, the partnership was to cease on the death of either of the partners. In this event the survivors had the right to continue the partnership and to keep the partnership property at an estimation to be fixed upon an inventory to be taken immediately after the decease of the partner, the inventory to be taken between the surviving partners and the widow and heirs of the deceased partner, the survivors to furnish security in solido to the satisfaction of the surviving widow and heirs, for the amount coming to the deceased partner.

Kohn died on the second of September, 1866. His widow was confirmed as natural tutrix on the twenty-fourth of the same month. On the eighteenth of December, 1866, she applied to be appointed administratrix of her husband’s succession, and prayed that an inventory be taken.

On the eleventh of January, 1867, the inventory ordered to be taken was filed. The interest of the deceased in the partnership was estimated at $21,242 29. On the twelfth, she was confirmed as administratrix. Thus the inventory was filed before she had qualified as administratrix.

On the seventh of January 1867, before she had been appointed executrix, and without any authorization on the part of the court, she went before a notary public in company with Herman and Levy and they each declared, that they had made a partition of the property belonging to the partnership of Kohn, Herman & Levy, and gave to each other an acquittance therefor. In this act the widow assumed to act as well in her capacity of tutrix as well as in her own name. By the same act the widow and the surviving partners of her husband formed another partnership to last twelve months. In this partnership the widow invested $21,934 16, a few hundred dollars over and above the amount of the appraised value of her deceased husband’s interest in the property belonging to the partnership which had existed between her husband and Herman and Levy.

Subsequently, in the early days of December, 1867, she married Sylvian Levy.

Before her marriage she was retained in the tutorship of her minor children, by and with the advice and consent of a family meeting.

On the sixteenth of December, 1867, the partnership which had been entered into between Mrs. Kohn (now Mrs. Levy), S. Herman and Leopold Levy, was dissolved, Mrs. Kohn selling out her interest therein to Herman and Leopold Levy for $19,413 22. She was authorized to dissolve the partnership and to make the sale by her hnsband Sylvain Levy.

Subsequent to this sale, Sylvian Levy and his wife appear to have removed to Texas.

This suit is instituted by the under tutor of the minors Kohn to recover from Simon Herman and Leopold Levy, the amount coming to them as heirs of their father in the property belonging to the partnership which had existed between their father and Herman and Levy. Th¿ amount claimed is $11,746 39.

The district judge decided against the under tutor. He has appealed.

It is apparent that the minors’ interest in the succession of their father had not been handed over to their tutrix at the time she entered into the partnership with his surviving partners. It was this interest, added to her rights as widow in community, which formed her share of the partnership stock. The contract was, in fact, a contract of partnership between herself, her minor children and the surviving partners of her husband. The law does not authorize such a partnership. It was an investment of her minor children’s funds in an enterprise for which she had no warrant. Up to this point, therefore, the minors property must be considered to have remained in the bands of the surviving partners.

But we do not see where the under tutor finds any authority for attacking the defendants. The minors are represented by- their tutrix. If any cause of action exist against the defendants, their tutrix is the proper person to assert it. The under tutor acts for the minor whenever the interest of the minor is in opposition to the interest of the tutor. C. C. 273. Perhaps in case of collusion between the debtors of a minor and his tutor, the under tutor might be authorized to interfere. But, in this case, no collusion is asserted. The rights of the minors have not been invaded by the defendants. Whatever transactions they may have had in which their interests were involved, they had them with their tutrix, who was the only person having authority with whom they could contract. If they acted fraudulently toward the tutrix, fraud vitiates all contracts, and the tutrix has her action to set it aside. If the tutrix has acted in bad faith towards her wards, the under tutor has his action against her.

Judgment affirmed.


source: Caselaw Access Project

author: Morgan, J.

license: Public Domain

text:
    No. 5164.
    State of Louisiana v. E. B. Tinney.
    The offense for which the accused was tried is not prescribed, because the indictment was not filed within a year after the crime had been committed. The statute merely says that the indictment must be found within a year after the offense was made known to the public officer having power to direct investigation and prosecution.
    The law does not say that, because the foreman of a grand jury can not write his name, the indictment found by the grand jury of which he is foreman shall not be good.
    After a motion for a new trial which has been refused, it is too late to urge in arrest of judgment that the jury were guilty of misconduct, partiality and prejudice against the accused.
    The judge a quo did not err in refusing to permit the introduction in evidence of the certificate of the post mortem examination given by the physician who made it. There is nothing to show that the physician himself could not have been procured. His testimony, if it could be obtained, was the evidence required, and not Ms certificate.
    Appeal from the Fourth Judicial District Court, parish of St. Charles. Flagg, J.
    Criminal case. James D. Atigustin and Jtilien Michel, for appellant. Henry 0, Dibble, Assistant Attorney G-eneral, for appellee.
   Morgan, J.

The defendant, convicted of manslaughter, has appealed from the judgment of the district court which sentenced him to seven years’ imprisonment at hard labor in the penitentiary.

His first complaint is, that the crime charged against him was on the face of the papers prescribed, when what purports to be the indictment, was filed in court. He relies on section 986 of the Revised Statutes, 'which decláres that “no person shall be prosecuted, tried or punished for any offense, willful murder, arson, robbery, forgery and counterfeiting excepted, unless the indictment or presentment for the same be found or exhibited within one year next after the offense shall have been made known to a public officer having the power to direct the investigation or prosecution.” The slaying is alleged to have taken place on the third September, 1871. The indictment, or what the defendant says purports to be the indictment, was found on the second of October, 1871. The objection, however, seems to be that it was not filed until the second October, 1872. The statute does not sustain the objection. The indictment was found within a year next after the offense was made known to the public officer having the power to direct investigation and prosecution, and this is what the law says shall be done — not that the indictment shall be filed within a year after the crime has been committed.

The second objection is that the “paper purporting to be an indictment against him lacks all the essential requisites of an indictment.” The fault complained of is that it is not signed and indorsed by the foreman of the grand jury, and as the constitution requires. The indictment is signed thus:

his

“A true bill. WILLIAM M TAYLOR,

mark

Foreman.”

The law does not say that because the foreman of a grand jury can not write his name, the indictment found by the grand jury of which he is foreman shall not be good.

His third objection is that “the statutes of the State restricting the qualifications of jurors to citizens of the State who are duly qualified electors, registered voters, are unconstitutional and violative of articles five (amendments) and six of the constitution of the United States, and of the article xiv, section one, constitutional amendments thereto, and of article six of the constitution of the State. By them the accused has a constitutional right to be tried by a jury of his peers, drawn from among all of his peers who enjoy the civil and political right of citizens and freemen, and who have the right and capacity to enjoy them, whether said political rights are exercised actively by registry on a list of duly qualified electors and evidenced by a certificate of registry or not.”

We quote the language of the objection. It answers itself.

The next ground he stands upon is that several of the jury were guilty of misconduct and partiality and prejudice against him, and he proved by one Bron that he, Bron, was a juror in another case; that several of the jurors who were impanneled on the trial of the defendant were also jurors in the case upon which Bron was a juror, and that during the conversations and discussions in the case alluded to, several of the jurors who tried the defendant declared that in his (the defendant’s) case, “he ought to be convicted, as he was a bad man anyhow,” and they would convict him if taken as jurors in his case. This was urged in arrest of judgment after a motion for a new trial had been refused. The judge did not err in refusing to consider it. It came too late. The exception to the ruling of the judge in refusing to permit the certificate of the post mortem, examination given by the physician who made it, is not well taken. The judge did not err. There is nothing to show that the physician himself could not have-been procured, and his testimony, if it could be obtained, was the evidence required, and not his certificate.

Judgment affirmed.

Rehearing refused.


author: Ludeling, C. J.

text:
    No. 3324.
    Charles Morgan v. G. Lombard.
    The mere fact that for thirty or forty years the public was permitted to pass over a oertainpiece of land, would not of itself constitute the place a locus publicws» The property which is the object of this litigation has never been dedicated to the public, nor has any expropriation taken place. Therefore it remains private property.
    Appeal from the Sixth' District Court, parish of Orleans. Oooley, J.

      Leovy, Monroe <& Hart, for plaintiff and appellee. JE. Bermudez and J. Meunier, for defendant and appellant.
   Ludeling, C. J.

The plaintiff, alleging that the passage or alley running from the Bayou road to Columbus street is a public thing, in-joined the Sefendant from fencing it or obstructing the use of it by the-public. The defendant claims that the property belongs to him. There was judgment in favor of the plaintiff against the defendant, decreeing the alley to be a locus pubKcus and for $500 damages. The defendant has appealed.

There is no evidence in this record of an intention on the part of the owners of said land to dedicate* it to public use. The mere fact that for thirty or forty years the public was permitted to pass over this-ground, would not of itself constitute the place a locus pubKcus. But we think there is evidence to negative the idea of an intention on the part of the owners to dedicate the property to the public. 3 An. 282;. 16 An. 404; 15 An. 316; 10 An. 81; C. C. 762, et seq.

In 1800, Antonio Ramis sold to Pablo Cheval one arpent and one hundred and forty-one feet on Bayou road by three arpents deep. On the twentieth March, 1822, Cheval caused a plan of this land to be made, and he sold the same to Chevalier Coulon de Yilliers. On this plan figures the strip of land in question, and it is marked, “Chemin appartenant aux héritiers Castañedo.”

In 1823, Chevalier C. de Villiers sold this property to Tala. It is described as being on the Bayou St. John road, measuring one hundred feet fronting the bayou, and running back three arpents deep “attenant du cote du bayou, et par derriére, aux terres des héritiers de feu Joseph Castañedo.”

There is parol evidence to show that this was a private road, originally used by the proprietor to haul wood, and that at different periods he had temporarily closed it. It also appears that it was always considered by the family of Castañedo and his neighbors that the road was private property, and it was inventoried as such when Castañedo died.

This property has never been dedicated to the public, nor has it been expropriated; therefore it remains private property.

It is therefore ordered and adjudged that the judgment of the lower court be annulled, and that there be judgment dissolving the injunction. It is further adjudged that the defendant is the owner of the property in question, and that he have judgment against the plaintiff for the sum of $250 as damages, and for costs in both courts.

Rehearing refused.


text:
    No. 4815.
    Joseph Rau, Curator of Henrietta Hooker, v. Moses Katz et als.
    It is evident that judgment in damages against the civil sheriff for effecting the sale oom. plained of, is erroneous, as he was aoting only under the direction of a court of competent jurisdiction and carrying out its orders.
    The sheriff seems to have been informed that a suit in interdiction had been instituted against the owner of the property seized, but that was no warrant forlhim to stop the Bale, It did not follow that interdiction would result from the suit. If the parties in interest had desired to stop the sale, they should have injoined it.
    Appeal from the Superior District Court, parish of Orleans. SamMns, J.

      J. Msk, for plaintiff and appellee. B. J. Ser, Garrett & Wallcer, Says & Sew, for defendants and appellants.
   Morgan, J.

.Henrietta Hooker purchased a certain piece of property in the square hounded by Baronne, Dryades, Seventh and Eighth streets, containing two tenements and outbuildings. The purchase was made on the seventeenth May, 1858. On the tenth October, 1870, she sold, by public act, a portion of this property to Jean Barrero for nine hundred dollars.

On the thirtieth May, 1872, she executed a mortgage on the remaining portion of the property, on which the house is situated, whicli she occupied as her residence, in favor of Moses Katz for eight hundred and fifty dollars, payable six months from the said thirtieth May, 1872. On the fourth December, 1871, Katz applied to and obtained from the Sixth District Court of this city an order of seizure and sale directed against the property subject to his mortgage. The property was advertised for sale by the sheriff. On the sixteenth January, 1873, Henrietta Hooker alleged that the mortgage under which the executory process issued had been obtained by fraud and without consideration; that she is old, feeble and illiterate, not knowing how to read or write; that being in need she consented that Katz should sell for her the house and lot forming the corner of Seventh and Dryades streets, for $900 in money, a shawl valued at $8, and some domestic valued at $1 50; that after paying her indebtedness a balance remained due to her of $675 ; that when she was called upon to make her mark to the act, which she is now informed is a mortgage, she supposed it was to enable her to draw the proceeds of the property which she had sold. She prayed for an injunction restraining the sale of her property, and asked for judgment against Katz for $675. The injunction issued. A rule was taken to set it aside, and on the thirty-first January, 1873, it was set aside. Prom this judgment no appeal was taken.

On the tenth February, 1873, the counsel who had represented Henrietta Hooker in the foregoing proceedings, instituted suit in the Second District Court, in the name of Emily Mills, to cause her to be interdicted. She alleged that she was her niece; that she had had the principal care and control over her for four years, and that she is old, infirm, insane and utterly incompetent to manage her own business. Service of this petition having been made upon her, and no answer thereto having been filed, an attorney was appointed to defend her. He filed a general denial. After hearing testimony the judge ordered her interdiction, and, upon the recommendation of a family meeting, Joseph Rau was appointed her curator'on March 28, 1873.

In the meanwhile, on the twenty-second March, 1873, the property mortgaged to Katz was sold under execution upon the executory process issued by the Sixth District Court, and Jean Barrere became the purchaser thereof.

This suit is instituted by the curator of Henrietta Hooker against Barrere, Katz and W. P. Harper, sheriff, to annul the sale, made by her to Barrere on the tenth October, 1870, and the sale made by the sheriff on the twenty-third March, 1873, in the suit of Katz v. Hooker, at which sale, as we have seen, Barrere became the purchaser, and for damages against them all, which she fixed at $10,000, for having been forcibly ejected from the last described property. The allegations are that Henrietta Hooker was notoriously insane, and entirely incompetent to transact business when the first sale to Barrere was consummated, and that she had been interdicted, and a copy of the judgment of interdiction had been served upon Katz, before the sale by the sheriff was made; that she received none of the money which was the price of the first sale, and that she was not indebted to Katz in any sum when she executed the mortgage which resulted in the sale of the second piece of property by the sheriff, and that all this was done by Katz and Barrere with the intention of defrauding the insane and interdicted person. He prays also that Barrere be injoined from interfering with her in the possession of the house. Barrere excepted to this proceeding:

Mrst — That plaintiff shows no cause of action.

Second — That the matters set up for an injunction should have been set up in his proceedings before the Sixth District Court, on the trial Of his original injunction before that court.

Third — Because the Superior District Court is without jurisdiction to determine upon the validity of judicial proceedings determined upon by another court, and that his remedy is by an action of nullity, to be brought in the court that rendered the judgment which is sought to be annulled.

In so far as relates to the annulling of the sheriff’s sale, all the defendants excepted to the jurisdiction of the Superior District Court, ratione materiw, on the ground that it could not annul the sale which • was the result of a judgment of the Sixth District Court. Subsequently Jean Barrere answered the petition, in so far as it seeks to annul the sale made to him in October, 1870, filing a general denial thereto.

All the exceptions were overruled on the fifth May, and on the sixteenth of May default was entered against Katz and Harper. No default was taken against Barrere.

Upon these pleadings judgment was rendered in favor of the plaintiff and against all the defendants, perpetuating the injunction, and condemning them to pay $200 damages; annulling the sale made by Harper, sheriff, on the twenty-second' March, 1873, and annulling the act of mortgage executed by Henrietta Hooker, in favor of Moses Katz, on the thirtieth May, 1872.

After an ineffectual application for a new trial the defendants have appealed.

The conclusion to which we have come on the merits, renders it unnecessary that we should express any opinion with regard to the exceptions. As regards the sheriff, Harper, it is evident that the judgment against him is erroneous, as he was acting only under the direction of a court of competent jurisdiction and carrying out its decrees. The allegations in the petition that he acted in defiance of the judgment of interdiction, which had been pronounced against Henrietta Hooker, are not sustained. Nor do we see how this could have been possible, as the judgment of interdiction was not pronounced until two days after the sale was made. The sheriff seems to have been informed that suit was instituted to have her interdicted, but this was no warrant for him to stay the sale. It did not follow that interdiction would result from the suit. If the parties in interest had desired to stop the sale they should have injoined it.

With reference to Barrere there is no evidence in the record to show any complicity between himself and Katz, or that he was party to any scheme which had been concocted for the purpose of defrauding her. In both instances he purchased the property which was offered for sale. In the first case he paid the money to the notary, who gave it to the vendor; and in the second case he purchased at public sale, and paid the price to the sheriff. He is not shown to have had any intimate knowledge of his vendor, and it is not shown that her insanity was notorious at the time the sales were made. Neither do we think the evidence shows that Katz has taken advantage of her situation, or that she was insane.

Neither do we think the evidence shows that Katz has taken advantage of her condition, or that she was insane (if she be so now), at the time the sale and mortgage were executed. She is very old and infirm, and her relatives swear that she is unable to take care of herself, and so does the physician who examined her. But in the executory proceedings she appeared, through her counsel, who now appears for her curator, and acted in her own behalf, and, when examined on the stand, told her story quite as intelligently as did the other witnesses, and failed to satisfy the judge of that court that fraud had been practiced upon her. As to her claim under the homestead law, we can not pass upon it in this proceeding.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that there be judgment in favor of the defendants, with costs in both courts.

Rehearing refused.


author: Morgan, J-.

text:
    No. 5119.
    Joseph Billgery v. Jacob Schnell and Martin Joachim.
    Admitting that a debtor should have intended to defraud his creditors by the sale of his property, yet it is essential that the purchaser should be a party to the fraud in order that the sale be set aside. The declaration of the notary that the cash payment had been made in his presence, which declaration is not contradicted by any positive testimony, would outweigh the assertions of witnesses as to the purchaser’s want of funds. It is a difficult matter for one man to tell what amount of money is or is not in his neighbor’s pocicet.
    Appeal from the Fifth District Court, parish of Orleans. Oullom, J.

      Hornor <& Benedict, for plaintiff and appellee. Brcmghn & Buelc, for Joachim, defendant and appellant.
   Morgan, J-.

Plaintiff sold to the defendant merchandise amounting to about $700, in full payment of which he took his two promissory notes for $305 each, dated first April, 1873, and payable sixty and ninety days after date. He also indorsed two notes of the defendant’s, one for $500, dated October 1, 1872, and payable one year after date, and the other for $600, dated October 9,1872, and payable one year after date.

The first note for $305 not having been paid at maturity, the plaintiff instituted this suit, in which he asks for judgment against the defendant for $1805, and upon his averment, supported by affidavit, that by public act on the thirtieth May, 1873, the defendant sold his property and stock in trade to Martin Joachim for a nominal consideration, with the intent of defrauding him, petitioner, all of which was done to conceal his property from his creditors, and to defraud them of their just claims, he obtained an attachment and seized the property sold to Joachim. Subsequently he filed a supplemental petition, in which, reiterating the allegations of the original petition, he avers that the sale made by defendant to Joachim is fraudulent and simulated, and therefore null and void. He prays for citation against Joachim and a decree annulling the sale.

The district judge annulled the sale and decreed the property to belong to Schnell, and rendered judgment against him for $1805, with privilege on the property attached. Joachim alone has appealed.

The sale from Schnell to Joachim was made by public act on the thirtieth May, 1873, the terms being $3500, in part payment whereof he presently paid in ready money $2000, and for the balance gave his promissory notes at six, twelve and eighteen months. Immediately after the sale he took possession of the property, and remained in possession thereof until it was taken by the sheriff in obedience to the writ of attachment which issued on the fourth June following.

The evidence does not satisfy us, as it did the district judge, that the sale was a fraudulent or a simulated one in so far as Joachim is concerned. Sclinell may have intended to defraud his creditors, but we do not see that Joachim was a party to the fraud, and this would be essential in order that the sale should be set aside. Neither do we find that the sale was a mere simulation. Some witnesses swear that Joachim had no means, it is true. But it is a difficult matter for one man to tell what amount of money is or is not in his neighbor’s pocket. The declaration of the notary that the cash payment had been presently made, which declaration is not contradicted by any positive testimony, would outweigh the assertions of witnesses as to his impeouniosity, and the fact, established by the plaintiff, that immediately after the sale he went to California and embarked in business there, he having already established that he was in embarrassed circumstances, would corroborate the defendant’s assertions and the notary’s declaration that the sale was a serious one.

It is therefore ordered, adjudged and decreed that the judgment of the district court, in so far as it relates to the defendant, Joachim, be avoided, annulled and reversed; and it is now ordered that there be judgment in favor of said defendant, Joachim, with costs in both courts.

Rehearing refused.


text:
    No. 4906.
    John F. Daly v. E. E. Duffy and Schoenhausen.
    There is no law which prohibits a member of the bar from becoming a surety on a seques* tration bond. If there be any rule of court to the contrary, it is not known on what au* thority it rests.
    Appeal from the Fifth District Court, parish of Orleans. Oullom, J.

      W. II. Hunt, W. O. Denegre, for plaintiff and appellant. W. W. King, Braughn & Bucle, for defendants and appellees.
   Morgan, J.

This suit commenced by a writ of sequestration issued upon the following affidavit:

“Personally appeared before me the undersigned authority, John F. Daly, who being duly sworn, deposes and says, that he is the true and lawful owner of the sum of forty-five hundred dollars, in paper currency of the United States of America, now on deposit in the Teutonia National Bank of New Orleans, to the order of one E. E. Duffy and one Schoenhausen, whose Christian name is to this deponent unknown; that the aforesaid sum of forty-five hundred dollars was collected by the said Teutonia National Bank of New Orleans as the proceeds of a sight draft purporting to have been drawn by your deponent on May, 15, 1873, at New Orleans, La., on Messrs. Simms, Harrison & Co., of Mobile, Ala. Deponent further specially denies ever having drawn any such draft in favor of said E. E. Duffy or said Slioenhausen (whose Christian name is to this deponent unknown), or deponent avers that if any such draft ever was by him drawn, it was totally without consideration, and while he was drugged and bereft of his reason by the machinations of said E. E. Duffy and the said Schoenhausen.

“ Deponent further avers that he fears that the said E. E. Duffy and the said Shoenhausen (whose Christian name is to this deponent unknown) will withdraw the said sum of forty-five hundred dollars from the said Teutonia National Bank of New Orleans, and will part with, conceal or dispose of the same during the pendency of this suit, and that a writ of sequestration is necessary to prótect the rights of deponent herein.

“Wherefore he prays that the accompanying interrogatories be served upon Charles Potthoff, the President of the Teutonia National Bank of New Orleans, and that he be ordered to answer the same within the legal delays.

“(Signed) JOHN F. DALY.

“ Sworn to and subscribed before me this nineteenth day of May, A. D. 1873.

“ (Signed) PAUL T. ABADIE, Deputy Clerk.”

On the following day he presented a petition to the judge in which the allegations of the affidavit are reiterated, and in which he prayed that a writ of sequestration issue, that the sheriff take into his possession the money levied by him, and that after a hearing, he be decreed to be the owner thereof.

On the same day the defendants took a rule on the plaintiff to show cause why the sequestration should not be set aside on the grounds:

First — Because the affidavit made by plaintiff is false and nntrue in every particular.

Second — Because the sequestration bond is informal, null and void.

Third — Because the surety upon the sequestration bond is hot good and solvent and not possessed of the legal qualifications.

“Fourth — Because the surety upon the sequestration bond (Thos. S. McCay, Esq.,) is an attorney-at-law, and as such, prohibited by the Rules adopted for the government of the district courts, from being on a bond or security in any cause.”

Daly died, and Parker, Public Adniinistrator, made a party to the suit, prosecutes an appeal from a judgment dismissing the sequestration.

Mrst — It is not shown that the affidavit is false.

Second — The bond is in the usual form.

Third — The surety on the bond swears that he is worth the sum therein stipulated for, his property consisting partly in real estate. It is contended that his estimate of the value of this property is exaggerated, but we are not satisfied that such is the case.

Fourth — We know of no law which prohibits a member of the bar from becoming a surety on a sequestration bond. If there be any rule of court to the contrary, we do not know upon what authority it rests.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be avoided, annulled and reversed, and that the rule herein taken on the twentieth of May, 1873, to set aside the sequestration herein, be dismissed; defendants to pay the costs in both courts.

Eehearing refused.


author: Howell, J.

text:
    No. 4948.
    City of New Orleans v. S. W. Rawlins.
    In this suit for the taxes of 1873, the defendant insists that the default, the introduction of proof and the judgment are irregular and void, because not taken in this particular suit, but in a general entry of, “City of New Orleans v, Samuel Boyd & Co., and sundry and other taxpayers, from No. 50,000 to 59,864 inclusive ;” and that the judgment signed is not the judgment entered on the minutes.
    The judgment appealed from, which has the signature of the judge, is the one which the defendant has an interest in complaining of. The next question is as to his having been legally cited.
    By the act, No. 48 of 1871, § 9, a publication of the names of the delinquent taxpayers, with the amounts due by them respectively, in the official journal, is a legal citation to each. After a certain delay, 5‘upon the production and filing of said claims or bills in the appropriate and competent court, and the production of proof of publication, judgment shall be immediately rendered in favor of said city and against the delinquent taxpayer or debtor.” According to this provision of the law the taking of a default was unnecessary, and, if taken, the defendant has no right to complain of a formality which is in his
    There is no sacramental form for entering judgments on the minutes of .the court. The records of the court must show, however, the proceedings; and, in these tax suits, an entry showing that judgment was rendered in suits from one number to another inclusive, is a record of the fact that a judgment was allowed in each for the amount of the claim.
    The record here shows that a judgment was entered and signed in the case of the city oí New Orleans v. Eawlins, No. 57,679, which is a number included in those in which a judgment was entered on the minutes of the court. The law assimilates the proceedings in this class of cases to those in executory proceedings, except that the proof must be presented in court.
    Appeal from the Superior District Court, parish of Orleans. Hawkins, J.

      George S. Lacey, City Attorney, for plaintiff and appellee. It. H. Marr, for defendant and appellant.
   Howell, J.

This is a suit for the taxes of 1873, and the defendant has appealed from a judgment confirming a default against him. The objections he urges before us are technical and relate to the form of proceeding in the lower court.

He insists that the default, the introduction of proof and the judgment are irregular and void, because not taken in this particular suit, but in a general entry of “ City of New Orleans vs. Samuel Boyd & Co. and sundry other taxpayers, from No. 50,000 to 59,864, inclusive,” and that the judgment signed is not the judgment entered on the minutes. The judgment appealed from, which has the signature of the judge, is the one which the defendant has an interest in complaining of, and the important questions are, was he legally cited, and does the evidence sustain the judgment1?

By the law on this subject a publication of the names of the delinquent taxpayers, with the amounts due by them respectively, in the official journal, is a legal citation to each. After a certain delay, upon the production and filing of said claims or bills, in the appropriate and competent court, and the production of proof of publication, judgment shall be immediately rendered in favor of said city and against the delinquent taxpayer or debtor.” Act No. 48 of 1871, § 9. According to this the taking of a default was unnecessary, and defendant has no cause to complain of this formality, which is in his favor. When the bill against him, in the prescribed form, was filed and proof of publication adduced, the judge had only to render the judgment. There is no sacramental form for entering judgments in the minutes of the court. The records of the court must show, however, the proceedings in such court, and in these tax suits an entry, showing that judgment was rendered in suits from one number to another inclusive, is a record of the fact that a judgment was allowed in each for the amount of the claim in each. When the judgment is drawn up for signature and becomes final by the signature of the judge, it must conform to the proof, or it will be erroneous and may be corrected. The record here shows that a judgment was rendered and signed in the case of city of New Orleans v. S. W. Rawlins, No. 57,679, which is a number included in those in which a judgment was entered on the minutes of the court.

We think the law assimilated the proceedings in this class of cases to those in executory proceedings, except that the proof must be presented in court, the law saying expressly that the only process necessary for judgment upon said claims or bills for taxes shall be said publication,” and upon the simple filing of the said bills and proof of said publication, it is the duty of the judge to render a judgment.

It appears that some parties, embraced within the numbers specified, did have an opportunity to file defenses, and nothing shows that this defendant could not have done the same.

The other questions are disposed of in the ease of Burthe & Klein, just decided. A year’s interest is erroneously allowed in the judgment.

It is therefore ordered that the judgment appealed from be amended by allowing interest thereon from July 31: 1873, instead of July 31, 1872, and that as thus amended it be affirmed, costs of appeal to be paid by appellee.


author: Taliaferro, J.

text:
    No. 5166.

      L. H. Gardner & Co. v. J. J. McDaniel & Co.
    2Prom all the evidence on record in this case it results that the defendants, when they drew the draft sued upon, had a just right to believe that it would be duly honored. Therefore, they were entitled to due protest and notice of the dishonor of the bill. "With regard to the promise of payment alleged to have been made by the defendants, it wae coupled with conditions which were not accepted, and for that reason it can not entitle the plaintiffs to recover.
    Appeal from the Sixth District Court, parish of Orleans. Saucier, J.

      T. M. Gill, for plaintiffs and. appellants. JÜ. D. White, Samuel Jamison, Jr., for defendants and appellees.
   Taliaferro, J.

This suit is brought upon a bill drawn by defendants, merchants residing in Texas, upon Gregg & Pord, of Shreveport, La., in favor of the plaintiffs for $840 30. The bill is dated January, 13, 1873, and made payable ten days after date. Not being paid, it was protested on the twentieth of March following.

The suit was brought by attachment of a lot of merchandise in New Orleans. The answer is a general denial. The case was first decided in favor of plaintiffs; but upon affidavit made of new evidence discovered, a new trial was granted, the result of which was the rendition of a judgment against the plaintiffs of nonsuit. On the part of the plaintiffs an appeal is taken. The defense rests upon want of due protest and notice. It appears that for several years previous to the date of this draft, there had been an established course of business between J. J. McDaniel & Co., of Mount Carmel, in Texas, and Gregg & Pord, of Shreveport, Louisiana. The Texas merchants had been in the habit of shipping to their friends Gregg & Pord, cotton and other commodities of trade, and the latter had accepted and paid drafts drawn upon them by the defendants.

The prominent inquiry in the case is : Had J. J. McDaniel & Co., when they drew this draft, good reason to believe that Gregg & Pord would pay it 1 There is a large amount of evidence bearing mainly on this point. There is a portion of it contradictory. It is, however, fully shown that between the defendants and the house of Gregg & Pord, there was a regular business and to a large extent carried on. It is in proof that the defendants drew other draits on Gregg & Pord about the same period that matured about the time the one sued upon was payable, and that the drawees paid them — that the draft in suit was placed in the hands of Gregg & Pord, the parties on whom the draft was drawn before its maturity, to await payment — that it was in other hands some days before it was due and was so held until it was protested nearly two months afterwards. McDaniel swears that, before drawing the draft, he had the agreement of Gregg & Pord not only to draw this draft hut others. This statement Gregg denies in his evidence, and says that he refused to accept unless placed in funds to pay it. This is flatly contradicted in turn by McDaniel. Taking it that these contradictory statements of the parties themselves, like opposite quantities in algebra, destroy each other, we are thrown back upon the consideration of the facts shown in regard to the circumstances under which the draft was drawn. There wds a running account between McDaniel & Co., and Gregg & Ford at the time the draft was drawn and had been for several years before. The former had made frequent shipments to the latter of cotton, hides, etc., from time to time, and had often drawn drafts upon them which had been accepted and paid. During this continued course of business it appears that Gregg & Ford frequently paid drafts drawn upon them by defendants when at the time there was nothing standing to their credit, and even when the balance of account was against them. We have seen that other drafts drawn by them, falling due about the same time with that of the one in suit, were paid by the drawees. From all the evidence in the record we come to the conclusion that the defendants, when they drew the draft sued upon, had a just right to believe that it would be duly honored, and therefore, that they were entitled to due protest and notice of the dishonor of the bill. Parsons on Bills, vol. 1 pp. 532 to 539 — p. 541, and note — 9 La. 127; 19 La. 370; 3 An. 385; 20 An. 43.

But on the part of the plaintiffs it is contended that the defendants are bound by a subsequent promise to pay the draft. On this subject there is some confliction in the evidence ; McDaniel’s statement is, that he came to New Orleans a few days before the twentieth, without being aware of the non-payment of the draft sued on; that he was engaged about making purchases when the goods he had bought in -the case of shipment, were attached by the plaintiffs in this suit; that he called at once at their store and on the next day went with Mr. Peet, one of the employes of the plaintiffs, to the office of John T. Hardie & Co., his merchants, and while there, he informed Mr. Peet either himself or through Mr. Nicholson, a member of the firm of Hardie & Co., that if Gardner & Co., would ascertain by telegram whether the draft had actually been paid or not he would pay it, provided Gardner & Co. discontinued the suit, paid all the costs and replaced the goods in the same position they were before the attachment.

This statement is corroborated by Nicholson, a member of the firm of Hardie & Co., who says that the conditional offer made by McDaniel, and by himself for McDaniel, was not carried out because Gardner & Co., presented him all the bills of costs and insisted upon their payment along with the dralt. The firm of Hardie & Co. had agreed, it seems, with McDaniel, to pay the draft for the firm of McDaniel & Co., on the terms proposed by McDaniel; and Nicholson testifies that, when the draft and all the bills of costs and expenses of the attachment were presented to him for payment, he refused to have anything to do with it. There is nothing going to show that this testimony of Nicholson is not strictly true. The evidence, we conclude, preponderates in favor of the defendants, in regard to the promise, and establishes that any offer that may have been made by McDaniel to pay the draft was made expressly on the condition that the plaintiffs should withdraw their attachment suit, pay all the costs of the proceeding and restore his goods in the condition they were before they were attached and taken out of his possession. This offer was not accepted, and the plaintiffs have no right to require the defendants to make payment solely on their own terms. *

We think the judgment of the lower court correct.

Judgment affirmed.

Rehearing refused.


author: Wyly, J. Wyly, J.

text:
    No. 3320.
    Jacob Whetstone, Administrator, v. S. W. Rawlins.
    It is idle for tli© defendant to set up that the title of the property claimed of him is in Jacob ■Whetstone individually, who brought this suit as administrator, and not in the successions whoso representatives are before the court, and therefore that, if he pays over the money under the judgment appealed from, he may be held liable to Whetstone hereafter. Jocob Whetstone and the other parties acting jointly with him when they consigned to defendant the cotton whose proceeds are now claimed, are bound by their judicial admissions that the money belongs to said successions. The defendant, therefore, runs no such risk as he anticipates.
    The plea of prescription of three and five years is not well founded. The action does not arise ex delicto, but from a quasi contract.
    Under the settled jurisprudence of this court, no damages can be allowed where the appellee joins in the appeal, however frivolous it may be.
    Appeal from the Fourth District Court, parish of Orleans. Théard, J.

      John Jf. Bonner, for plaintiff and appellee. 23. T. Merrick, Face & Foster, for defendant and appellant.
   Wyly, J.

This Suit was brought by Jacob Whetstone, as administrator of the successions of John A. and Martha S. Whetstone, to recover from the defendant, S. W. Rawlins, the balance of the proceeds of thirty-three bales of cotton, sold by him as a commission merchant.

The heirs of John A. and Martha S. Whetstone undertook to settle these successions among themselves, and thus save the expense of having them administered. In pursuance of this purpose Jacob Whetstone, a son of the deceased, and his two brothers-in-law, Peyton S. Graves and Sylvester G. Parsons, shipped, in the beginning of the year 1866, thirty-three hales of cotton, the property of said successions, to S. W. Rawlins, to he sold by him.

This cotton was sold on the 20th June, 1866, but before the proceeds were paid over, Whetstone, Graves and Parsons disagreed about the manner in which these successions should be settled. An administrator, therefore, became necessary, and Jacob Whetstone was appointed administrator on the 10th of July, 1866, by the Probate Court of the parish of Morehouse, where the successions of John A. and Martha S. Whetstone were opened.

In the inventory, which was filed on the same day that Jacob Whetstone was appointed administrator, the thirty-three bales of cotton which had been shipped to S. W. Rawlins are embraced as constituting a portion of the property of said successions.

On the fourth October, 1866, the plaintiff demanded of the defendant the proceeds of said cotton, $1626 29. This was refused on the ground stated in the letter of defendant of the same date, to wit:

If the cotton shipped to me for account of Whetstone, Graves and Parsons was the property of the estate (of which I do not question), the parties to the account of Whetstone, Graves and Parsons should account to you, and you can easily control the amount in my hands by getting a draft on me for the amount due, signed by each of the parties, composing Messrs. Whetstone, Graves and Parsons, which I should be pleased that you would do, as I desire to pay over all balance as soon as possible. *****

“ S. W. RAWLINS.”

The administrator was not able to get the draft or order for the proceeds as requested, because Parsons would not sign it.

He was subsequently required to' file an account, which he did. An opposition was made to it by Parsons on the ground, among others, that the funds in the hands of the defendant were not accounted for. The court maintained the opposition, holding that the administrator should be charged with the $1626 29, because he knew that said funds belonging to the successions represented by him were in the hands of the defendant lor several years, and he had not made sufficient effort to collect them. Subsequently, to wit: On January 29, 1870, the plaintiff brought this suit for said funds against the defendant.

The defendant in his answer admits the possession of the $1626 29, and raises the same objection stated in his letter of October 4, 1866, that he is willing to pay over the money, but must have the consent of the consignors, Whetstone, Graves and Parsons, or some authorization from them to do so in order to protect himself. He also urges that, having held the funds in good faith and having been willing at all times to pay them over to the consignors, “ or any one entitled thereto,” he ought not to be compelled to pay interest thereon. The court gave judgment against the defendant for the sum claimed, with legal interest from judicial demand, and the defendant appeals. It seems to us the only interest the defendant can have, is to be protected in paying over the money from further responsibility on account thereof, as he professes in his answer to be anxious to pay over the money to Whetstone, Graves and Parsons, “or any one entitled thereto.”

The successions to which the cotton belonged are certainly entitled to the proceeds, and the question is, can the defendant safely pay them over to the plaintiff or to his successors, S. A. Y. Robinson and P. C. Robinson, who are now before the court as the legal representatives of John A. and Martha Whetstone.

We think he can safely do so'. It is idle for the defendant to set up that the title of the property is in Jacob Whetstone, who brought this suit as administrator, and not in the successions; and therefore, if he pays over the money under the judgment appealed from, he may be held liable to Whetstone individually hereafter. Whetstone can never deny his judicial admissions in the petition that the money in controversy belong to the successions of John A. and Martha Whetstone. Nor can Parsons ever deny his judicial admissions in his petition of opposition to Whetstone’s account in 1868, that the money in question belongs to said successions; nor can he dispute Ms testimony on the trial of this case to the effect that these funds belong I o the successions of John A. and Martha Whetstone. The defendant, however, pleads in this court the prescription of three and five years in bar of this suit. In setting up this exception we can not regard Mm as serious in the profession contained in his answer, that he is anxious to pay over the money to the consignors, “or any one entitled thereto;” and therefore he should be excused from paying interest. The plea, however, is not well founded. The action does not arise ex deUeto; it springs from a quasi contract, and is therefore not subject to the prescription pleaded.

We think the appeal was taken merely for delay, and that the appellees should have the damages claimed for frivolous appeal.

Judgment affirmed, with ten per cent, damages for frivolous appeal and all costs.

On Application por Rehearing.

Wyly, J.

It escaped the attention of the court, that in the answer praying for damages for frivolous appeal, the appellee joined in the appeal and prayed for an amendment of the judgment. Under the settled jurisprudence of this court no damages can be allowed where the appellee joins in the appeal, however frivolous it may be.

It is unnecessary to grant a rehearing on the ground that damages should not have been allowed, because the appellee in answer to the application for rehearing waives all demand for damages, and consents that that part of our judgment may be stricken out.

It is therefore ordered that that part of the judgment of this court awarding damages for frivolous appeal, be stricken out, and it is further ordered that the application for rehearing be denied.

Rehearing refused.


text:
    No. 5206.
    Jean Trisconi v. A. D. Dumas and Francois Victor.
    The plaintiff, having acquired the right in his own interest, during the continuance of the lease of part of a building, to prohibit the establishment of a grocery in the adjoining part of said building, in order to prevent competition with one of his own which he kept, was certainly at liberty to waive that right, and it is hard to see why such a waiver should not be a sufficient consideration for a contract entered into for the benefit of the person who desired such waiver.
    Appeal from the Fifth District Court, parish of Orleans. Oullom, J.

      Hornor & Benedict, for plaintiff and appellee; A. & W. VoorMes, for defendant and appellant.
   Taliaferro, J.

This suit is brought in solido against the defendants upon ten promissory notes of $83 33 each, with interest, costs of protest, etc. The notes were drawn by Dumas to the order of Victor, and by him indorsed. The defense is that the contract or agreement upon which these notes were given was without consideration, a mere wud/um pactum, and void. The plaintiff had judgment in the court below, and the defendants have appealed.

It appears that Trisconi had leased from one Mary part of a building to be used as a grocery, with the stipulation that Mary should not lease the other part for the same business. Dumas leased this portion of the building from Mary under the- stipulation imposed by Trisconi. Subsequently Dumas, desiring to embark in the same business, contracted with Trisconi for the privilege and executed the notes sued on in consideration thereof. Mary was not a party to this arrangement, but it does not appear that he interposed any objection. Trisconi had acquired the right in his own interest during the continuance of his lease to prohibit the establishment of a grocery in the adjoining part of the building to come into competition with his own. This right he was at liberty to waive, and we do not see why such waiver should not form the consideration of a contract when he chose to do so. Dumas desired the benefit of this waiver; he received that benefit from Trisconi, and could not legally have received it from any other person during the continuance of Trisconi’s lease.

We think the decree of the lower court correct.

Judgment affirmed.

Rehearing refused.


author: Wyly, J. Howell, J. Ludeling, C. J.,

text:
    No. 3701.
    New Orleans, Mobile and Chattanooga Railroad Company v. City of New Orleans et als. Charles Morgan, Intervenor.
    A municipal corporation possesses two classes of powers and two classes of rights — public and private. In all that relates to one class, it is merely the agent of the State and subject to its control. In the other, it is the agent of the inhabitants of the place — the corporators — maintains the character and relations of individuals, and is not subject to the absolute control of the Legislature — its creator. Among this latter class is the right to acquire, hold ahd dispose of property — to sue and be sued, etc. — just as certain rights are conferred on private corporations and persons, not sui juris, such as minors and married women, but are not afterwards, as long as they exist, under the control of the Legislature.
    A municipal corporation may own property, to and over which the Legislature has, while said corporation exists, no right or control in opposition to or independently of the will or consent of the corporation.
    It is a manifest fact to all that the incorporation of such a city as Hew Orleans is a necessity. The multiplying and complicated interests of the compact and increasing community are such that the Legislature can not administer them; and some of them are of such a. nature as not to be within mere legislative action, but are to be conducted under general rales, thus necessitating the creation of an intellectual body, with something more than, governmental functions, but which do not constitute an wvperivm m imperio.
    If then a municipal corporation can acquire the fee simple of property, the squares intended for the depots of the plaintiffs were so acquired, and they can not be taken by the-Legislature, while the city corporation exists.
    The Legislature expressly recognized and ratified the compromise of September, 1820, between the city and certain riparian proprietors in relation to the property in question, imposing conditions which were complied with. The theory that the city acquired the property simply as the agent of the State can not be accepted, because the city can own private property, and because the former owners intended to, and did, by the act of twentieth June, 1851, transfer the title thereof to the city, subject only to the uses of commerce and of the public, while so needed.
    The injunction in this instance was improperly issued against the defendant — the city of Hew Orleans — hut as the city has made no claim against the plaintiffs, a demand in re-convention can not be admitted, and a decree inhibiting the plaintiffs from occupying the property id controversy could not be granted.
    Under the pleadings, all that can be done is to render judgment in favor of the city dissolving the injunction and dismissing plaintiffs’ suit, leaving the parties to their rights, under the laws relative to the expropriation of property.
    Appeal from the Eighth District Court, parish of Orleans. Dibble, J.

      J. A. Oanwpbell and J. B. JGustis, for plaintiffs and appellees. George 8. Dacey, City Attorney, and W. W. Kmg, for defendant and appellant. Miles Taylor and Leovy & Monroe, for intervenor.
   Wyly, J.

The question presented in this case is the same as that just decided, and for the reasons therein given.

It is ordered that the judgment herein be annulled, and the injunction be dissolved j and it is now ordered that there be judgment for-the city of New Orleans, and that the prayer of the latter in reconvention be granted, and it is ordered that the plaintiffs be restrained and inhibited from occupying the property in controversy. It is further ordered that plaintiffs pay costs of both courts.

On Rehearing.

Howell, J.

The plaintiff company injoined the city of New Orleans from leasing or selling, and from interfering with plaintiffs in occupying and enjoying, holding and acquiring certain lands granted tq the plaintiffs by and described in the following clause of section 15 of act No. 26 of 1869, to wit: “And there is hereby granted to the said company the right to locate, construct, maintain and use a passenger depot, with office and apartments suitable for its legitimate business, upon the part or portion of the levee or streets and grounds in the city of New Orleans, bounded by Canal, Delta and Poydras streets, and a line parallel to and one hundred and fifty feet easterly from Delta street; and for the construction of a freight depot, and for other purposes of its legitimate business, to inclose and occupy the blocks of ground, parts of streets and portion of levee in said city, bounded by Girod, Water and Calliope streets, and a line parallel to and two hundred and ninety feet easterly from Water street; provided, said company shall not inclose ox occupy that part or portion of the blocks of ground within said last named limits, which is the private property of individuals, until said company has acquired the title thereto.”

The plaintiffs allege that they have acquired by purchase all of the private property within the boundaries of the said grant.

The only answer filed by the city to the original and supplemental petitions of plaintiffs in this suit has been disposed of, and is not before us; the other answers are to the intervention of Charles Morgan and this branch of the suit; but the question presented and discussed by both parties is the right of the State to make the said grant, the city claiming to be the owner of the said ground, subject only to a servitude in favor of the public as long as it may be needed for public purposes, and the State asserting absolute ownership and control of the lands as public places.

If they be “public places” in the ordinary, legal signification of these words, it may be that the State has the control asserted. We will here inquire into the rights of the city to the lands.

In 1820, the batture in that portion of the city was owned or claimed by the heirs and assignees of one Bertrand Gravier, as riparian proprietors, and there being some difficulty with the city as to the ownership and use thereof, the parties interested entered into a compromise by notarial act, in September of that year, by which it was stipulated that all lots of ground outside of a certain line should remain inalienable, and be used for no other public purposes than those for which they are naturally destinated. When, in 1836, the city was divided into municipalties, it was provided that no disposition should ever be made of the said batture in violation of said compromise, and that the Second Municipality, in which it was situated, should not obstruct the inhabitants of any portion of the city in the free use thereof. By the continued accessions, this space of ground became inconvenient for public use, and in 1850 the Legislature repealed that portion of the act of 1836 prohibiting any disposition thereof; authorized and directed the Second Municipality to lay off two additional streets according to a certain plan; declared that the balance of the batture should be left open and so kept for the accommodation of the public and the convenience of commerce, and that in the event of the agreement of the original parties to the said compromise, for the sale of the said batture, it should be the duty of the Second Municipality to lay off in lots all not needed for streets and public purposes as above, and dispose thereof on terms to be agreed on, provided one-third of the proceeds should be appropriated to the general sinking fund of the city.

In pursuance of this act, the said parties, with the Second Municipality, which was represented by a committee, agreed by notarial act on the twentieth June, 1851, to change the destination of the said batture made in the compromise of September, 1820; that three streets should be laid out, certain squares divided into lots and sold at auction within different periods of time and on specified terms, which sale should be binding on the parties then contracting with the Second Municipality as vendors; that the proceeds be divided into three parts, one to be paid to the said original parties, one to the general sinking fund of the city, and the other into the treasury of the Second Municipality; that three specified squares be reserved for market houses, and that portion not divided into lots for sale should be (in the language of the act) “vested in perpetuity and full ownership in the said Municipality No. 2,” in favor of whom the said parties, then contracting therewith, ceded and relinquished forever all their claims in and to the said batture, as well as all and every enlargement thereof or accretion thereto by new formations.

It is by this act, it is contended, the city, which has succeeded to the rights of the Second Municipality, acquired the title to and full ownership of the ground now in controversy.

The title, it would seem, was thereby vested in the city, so far as the original owners, parties to the above act, could confer it, and the property is under the exclusive control of the city, as owner, for the benefit of the inhabitants and subject to the servitude in favor of commerce, if needed, unless there is in law some such relation between the municipal corporation and the State as makes all property acquired by. the corporation the property of the State, and subject to its control. Is this so ?

A municipal corporation is appropriately defined to be “the investing the people of a place with the local government thereof.” Salk. 183. It has no powers not conferred upon it expressly or by fair implication, by the law of the State creating it or statutes applicable to it. Both the persons and the place inhabited by them are indispensable to the. constitution of such a corporation. It is an agency to regulate and administer the internal concerns of a locality in matters peculiar to the place incorporated and not common to the State or people at large; but duties and functions may be and are conferred and imposed, not local in their nature. It possesses two classes of powers and two classes of rights — public and private. In all that relates to one class it is merely the agent of the State and subject to its control; in the other it is the agent of the inhabitants of the place — the corporators— maintains the character and relations of individuals, and is not subject to the absolute control of the Legislature, its creator. ■ Among this latter class is the right to acquire, hold and dispose of property, to sue and be sued, etc. It is true, that these rights are originally derived from the Legislature; but once conferred they are to be exercised, while it exists, at the will of the corporation, in its own, and as to its own interest, for the inhabitants, just as certain rights are conferred on private corporations and persons, not std juris, as minors and married women, but are not afterwards under the control of the Legislature. Dillon on Municipal Corporations, second edition, chapter 71, § 9 A to 10 A; chapter iv., § 38-40 and notes; Cooley’s Constitutional Limitations, pp. 235-6, 238.

In $ 39 Mr. Dillon says: “ It may assist to an understanding of the extent of legislative power over municipal corporations proper (incorporated towns and cities) to observe that these, as ordinarily constituted, possess, according to many courts, a double character — the one governmental, legislative, or public ; the other, in a sense, proprietary or private. The distinction between these, though sometimes difficult to trace, is highly important and is frequently referred to, particularly in the cases relating to the implied or common law liability of municipal corporations for the negligence of their servants, agents or officers in the execution of corporate duties and powers. In its governmental or public character the corporation is made, by the State, one of its instruments, or the local depositary of certain limited and prescribed political powers, to be exercised for the public good, on behalf of the State, and not for itself. In this respect it is assimilated, in its nature and functions, to a county corporation, which, as we have seen, is purely part of the governmental machinery of the sovereignty which creates it. Over all its civil, political, or governmental powers, the authority of the Legislature is, in the nature of things, supreme and without limitation, unless the limitation is found in some peculiar provision of the Constitution of the particular State. But in its proprietary or private character, the theory is that the powers are supposed not to be conferred, primarily or chiefly, from considerations connected with the government of the State at large, but for the private advantage of the particular corporation as a distinct legal personality; and as to such powers and to property acquired thereunder, and contracts made with reference thereto, the corporation is to be regarded as quo ad hoc, a private corporation, or, at least, not public,.in the sense that the power of the Legislature over it is omnipotent.”

Mr. Cooley, at page 238, says: “'The rule upon the subject we take to be this: Where corporate powers are conferred, there is an implied compact between the State and the corporators that the property which they are given the capacity to acquire for corporate purposes, under their charter, shall not be taken from them and appropriated to other uses. If the State grants property to the corporation, the grant is an executive contract which can not be revoked. The rights acquired, either by such'grants or by any other legitimate mode in which such a corporation can acquire property, are vested rights, and can not be taken away.”

In 29 Vermont, p. 12, it was said: “But while the legislative power (to enlarge, restrain or even destroy municipal corporations, as the public interests may require) may be exercised over public and municipal corporations, it has uniformly been held that towns and other public corporations may have private rights and interests vested in them under their charter; and as to those rights, they are to be regarded and protected the same as if they were the rights and interests of individuals or private corporations.”

In 18 Cal. 590, Mr. Chief Justice Field, as the organ of the court, takes the ground that the real estate or private property of a municipal corporation is protected by the clause in the national constitution securing the inviolability of contracts; that all legislative authority over it must be exercised in subordination to this guarantee, and that it is subject to legislative control to the same extent, but no greater extent, than all other property in the State.

In 9 Cranch. (U. S.) 336 and 52, Mr. Justice Story expresses the opinion that, “in respect to public corporations, which exist only for public purposes, such as counties, towns, cities, etc., the Legislature may, under proper limitations, have a right to change, modify, enlarge or restrain them, securing, however, the property for the uses of those for whom and at whose expense it was originally purchased.” This is reiterated by Chancellor Kent, 2 Com. 305, and by Mr. Justice Washington in Dartmouth College case, 4 Wheat. 518,663. In this last case, Mr. Justice Story, at page 694, says: “But it will hardly he contended that, even in respect to such corporations, the legislative power is so transcendent that it may, at its will, take away the private property of the corporation, or change the uses of its private funds acquired under the public faith.”

In 18 L. 213, it is said: “Urban property fronting on a water course is entitled to alluvion as well as rural estates; and cities may acquire jure alluvionis, but it must be as proprietor of the front or riparian proprietor!” See also 10 An. 54, and 7 An. 505.

We are aware that very different views have been expressed by very high authority, and that some of the authors and jurists from whom we have quoted have used language susceptible of a different construction, and declared the division of municipal powers into public and private unsatisfactory; but after a careful'consideration of the opinions on both sides, we have come to the conclusion that a municipal corporation may own property, to and over which the Legislature has, while such corporation exists, no right or control in opposition to or independently of the will or consent of the corporation; and we think this is consonant with justice. There is a principle involved in it — the principle that those who have to pay should have a voice in the disposal of what is paid for — a principle which is a barrier to centralized or organized power — a principle that protects every person in the control of his own private affairs — -a principle which the judiciary is intended to maintain.

The theory or argument that the Legislature has absolute ownership and control of all the property and rights of a municipal corporation, because the corporation is represented in the Legislature, is not conclusive. Such representation is only in matters properly within legislative action, just as the representation of all other portions and inhabitants of the State. ' The private rights of the corporation are as much protected as those of individuals. And it is a fact, manifest to all, that the incorporation of such a city as New Orleans is a necessity. The multiplying and complicated interests of the compact and increasing community are such that the Legislature can not administer .them, and some of them are of such a nature as not to be within mere legislative action, but are to be conducted under general rules, thus necessitating the creation of an intellectual body, with something more than governmental functions, but which do not constitute an imperium in imperio.

If, then, a municipal corporation can acquire the fee simple of property, we think the squares, intended for the depots of the plaintiffs, were so acquired and they can not be taken by the Legislature while the city corporation exists. The Legislature expressly recognized and ratified the compromise of September, 1820, in which the parties, donating or destinating, acted as riparian proprietors, and in the act 257 of 1850, tlie section of the act of 1836, prohibiting the violation of said compromise was repealed, and the Municipality No. 2 was authorized to enter into an agreement with the said parlies “ for the sale of the said batture,” on certain conditions which are complied with. If it be urged that the third section of said act of 1850 required the portion, not then laid off into streets, to be kept open forever for commerce, the answer is that act No. 333 of 1853 authorized the withdrawal therefrom of such as may not be needed for public uses, and this has been done by the city (which can not sue itself) in the subsequent laying off of other streets and selling of two and a half squares in the block of squares (within the State grant) nearest the river, and which have been purchased by the plaintiffs. All this is recognized by the Legislature in the act under which plaintiffs now claim, by requiring them to purchase, and by them in making the purchases. While this legislation may be construed as making such recognition, it can be invoked in aid or support of the power to make this grant, only on the theory that the city owned the property simply as the agent of the State, a theory which we do not adopt, as to this property; because we think the city can own private property, and that the former owners intended to, and did, by the act of June 20, 1851, transfer the title thereof to the city, subject only to the uses of commerce and of the public while so needed. And such must have been the opinion of the plaintiffs when they made the offer, which they allege, to purchase a part of this very ground from the city about the time this suit was instituted; and their petition seems to be constructed on the hypothesis that the city had such rights to the said property as to make a resort to the laws relative to expropriation necessary.

The act of 1850 may have been necessary to give the Municipality No. 2 the authority to enter into an agreement with the owners; but the power having been exercised and the conditions complied with, the title of said parties (which was recognized in the said act) vested by the notarial act of June, 1851, as we think, in the municipality, which then took the place of the said former owners, with all their rights, including the right to bring into commerce such portions as might become unnecessary for public use.

It is contended, however, that the case of Parish v. Municipality, 8 An. 145, fixes the character of the ground in question as a locus pub-lions, in the technical sense of this term, and intimates that so much of the act of 1850 as may confer any rights upon the municipality is unconstitutional. An examination of that case will show that the matter in controversy was the servitude of view and way claimed by plaintiff, and that the case went off on an exception that plaintiff had no cause of action. The right, therein asserted, of the Legislature to change the destination of a portion of the batture previously dedicated to the public use is not denied; but this is not inconsistent with the right of the riparian proprietor to sell his property, and his right or that of his vendor to withdraw that property from the position of a locus pubKcus, when not needed as such, under existing legislation.

The antecedent eases had reference to the legislation and the rights of parties thereunder, prior to the act of 1850 and the transfer of June, 1851, under which the rights of the city have been acquired. But in those cases the rights of riparian proprietors to the batture were recognized, subject to a public servitude, and the ownership of the city, as against said proprietor, was denied. Judge Martin, however, in 18 La. 249, contended that the formations in front of the city did not belong to owners of the lots along a certain line, but vested in the city, and he insisted that his views were sustained by the decision of the United States Supreme Court in 10 Peters 662. The majority of the court decided in favor of the riparian proprietors, and we think those parties have conveyed their rights to the portion of the batture now in controversy to the city for its inhabitants; that those rights are protected by the constitution now, just as those of the former owners were, the city having the capacity to own property for the exclusive use and benefit» of the inhabitants, and having acquired all the rights of the former owners, and that the city or inhabitants can not be compelled to contribute the squares of ground in question to the plaintiff without compensation. Whether they will or will not make such contribution voluntarily, in consideration of the benefit resulting from the establishment of the railroad, is a question not pertinent here. We are to pass only on the legal rights of the parties.

In our opinion the injunction improperly issued in this case. But as the city has made no claim against the plaintiffs, our former decree was erroneous in granting a demand in reconvention and inhibiting the plaintiffs from occupying the property in controversy. Under the pleadings, all we can do is to render judgment in favor of the city dissolving the injunction and dismissing plaintiffs’ suit, leaving the parties to their rights under the laws relative to the expropriation of property.

It is therefore ordered that our former decree be set aside, and it is now ordered that the judgment appealed'from be reversed, and that there be judgment in favor of the defendant, the city of New Orleans, dissolving the injunction herein and dismissing plaintiffs’ suit, with costs in both courts, without prejudice to the rights of the parties under the laws of expropriation.

' Mr. Justice Wyly concurs in this decree for the reasons given by him in the former opinion of the court.

Ludeling, C. J.,

dissenting. In February, 1869, the General Assembly of the State of Louisiana passed an act whereby was granted to said company, “ the right to locate, construct, maintain and use a passenger depot, with office and apartments suitable for its legitimate business, upon the part or portion of the levee, or streets, or grounds in the city of New Orleans bounded by Canal, Delta and Poydras streets, and a line parallel to and one hundred and fifty feet easterly from Delta street, and for the construction of a freight depot and for the purpose of its legitimate business, to inclose and occupy the block of ground, parts of streets and portion of levee in said city bounded by Girod, Water and Calliope streets and a line parallel to and two hundred and ninety feet easterly from Water street; provided said company shall not inclose or occupy part or portion of the blocks of ground withiu the said last named limits, which is the private property of individuals, until said company has acquired the title themselves.” Learning that .the city of New Orleans was about to pass an ordinance to cede away a part of the batture or levee, which, in the act of 1869 aforesaid, the State had authorized the company to use, for its freight and passenger depots, the company injoined the city from passing the ordinance, etc.

The city claims to have the perfect ownership of the property in question, and to be alone authorized to dispose of it, without any right on the part of the State to control its disposition. If it were conceded that the city had a perfect title, as owner, to the batture, its pretension to absolute control over the property, unrestrained by the General Assembly of the State, would be unfounded in law and in fact. It can not be disputed that the General Assembly has the power to abolish the charter of the city and to control its property for the benefit of the public, through other agents. As a matter of fact, the Legislature could do this if it chose, and the courts would be powerless to prevent it. And the right of the General Assembly to control property of a municipal corporation, dedicated to public use, is not less clear.

The Supreme Court of the United States said (in the case of New Orleans v. United States, 10 Peters, 722), “it can not be insisted that the dedication of this property to public use, whether the title to the thing dedicated became vested in the city, or. only its use, could withdraw it from the political jurisdiction of the sovereign power.” And in the same case it is decided that this sovereign power is the State. See p. 737.

This right of the General Assembly is a part of the governmental or political power of the State, which is in no way subordinated to the municipal corporations. The city of New Orleans, if owner Of this batture, is only the agent of the State; any control which it exercises over the property is a police or governmental power, delegated by the State, subject to its control, and to be exercised only in subordination to its will. Police Jury vs. Shreveport, 5 An. 661; 24 An. 242 ; 1 An. 167; 3 An. 306; 12 An. 515 ; 14 An. 406 ; 27 New York, the People v. Kerr, 188; Cooley’s C. L. 191; Dillon on Corporations p. 70.

In Reynolds v. Baldwin this court Said: “In the country from which we derive our ideas on the subject, of municipal corporations, the charters of cities were, as their name implies, contracts entered into between the corporators on the one hand and the king or feudal lord on the other, by which liberties and franchises were bartered for personal service or money. The rights and powers which those charters conferred were of the nature of those secured to the people at large by our constitutions. They were intended to be permanent, and could not be lawfully taken away. They were, in the true sense of the word, franchises. But the relation existing between our municipal corporations and the sovereign is not the same, and it is strange that this fact should continue to be so obstinately overlooked by their officers.” And the court adds, referring to the thirty-third section of the old constitution: “This provision constituted the municipal government of this city a subordinate agency for purposes of police and good order. The laws which under that provision have established and regulated the municipalities are not contracts; they are ordinary acts of legislation. The powers they confer are no longer franchises in the ordinary meaning of that word; they are nothing more than mandates, and those laws may be repealed at pleasure, except so far as their repeal may affect rights acquired by third persons under them. They are all of the same nature, and must be construed and applied in all cases like other laws.” 1 An. 168.

But the city has not the tee simple or perfect ownership in the property in question; it is a public thing.

Ordinarily, the judicial admissions of parties to a suit are conclusive against them. “A judicial admission, solemnly made, can not be denied.” 4 An. 416; II An. 710; 4 M. 280.

If this rule of evidence be not ignored, it will be sufficient to refer to the answer of the city, found on page forty-five of the record, to prove that the property in question is a public thing. The city declares “that all that portion of real estate or ground claimed by intervenor, situated above Canal street, and embraced by ordinance 1492, forms a part of the batture lying in the old faubourg Ste. Marie, and that on or about the twentieth day of September, A. D. 1820, a certain act was entered into by and between Edward Livingston and other riparian proprietors and the city of New Orleans, wherein and whereby the entire alluvion or'batture in front of the aforesaid suburb Ste. Marie, and the accretions thereafter to become attached to the. same, were dedicated to public use and the purposes of business and commerce, and upon the express understanding and condition that the same should thereafter remain and continue a locus publicus, out of commerce, and not to be affected by any adverse claim or grant which might be set up against the same; that for many years anterior to the authentic act of dedication above referred to, and more than fifty years previous to the passage of the acts of the Legislature of the State of Louisiana referred to in the intervenor's petition, certain riparian proprietors owning property in the said faubourg Ste. Marie, without any particular form or ceremony, converted the entire batture in front of such suburb a locus publicus, and set the same apart for the use of the public, composed almost entirely of citizens of the United States, upon the condition that the batture thus informally dedicated should remain to be solely appropriated to that purpose.” And in their original briefs the counsel for the city reiterated these admissions.

How then can the city be permitted now to deny that the property is a public thing ? What are public things Í The Code declares: “ Public things are those, the property of which is vested in a whole nation, and the use of which is allowed to all the members of the nation ; of this kind are navigable rivers, seaports, roads, 1) arbors, highways, and the beds of rivers, as long as the same is covered with water.” C. C. article 453.

“ Things which are for the common use of a city or other place, as streets and public squares, are likewise public things.” C. C. 455.

Things, which belong in common to the inhabitants of cities and other places, are two kinds: Common properly, to the use of which all the inhabitants of a city, or other place, and even strangers, are entitled in common, such as streets, the public walks, the quay; and common property, which, though it belongs to the corporation, is not for the common use of all the inhabitants of the place, but may be employed for their advantage by the administrators of its revenues.” C. C. 458.

“Private estates or fortunes are those things which belong to individuals.” “ Les choses qui sont dans le domaine de chaqne individu forment les biens et les richesses particulibres.” C. C. 450.

These citations from the Code show (according to my understanding), that the property in question is a, public thing, and that a city can not own private estates or fortunes. All its property comes under one of the two classes of public things mentioned in article 458. And whether the city can acquire or alienate property depends upon the will of the Legislature, expressed in the charter or some other legislative act; and this power can be revoked or resumed at will by the State.

The history of the rights of the city to this batture shows conclusively that it was dedicated to the public. In 1763 the Jesuits’ plantation was confiscated and sold by the French. The first lot on the plan was sold to Pradel, and was conveyed by him to Bertrand Gravier. Gravier laid off lots on the front previous to his death. After his death the tract was adjudicated to John Gravier,.one of his heirs, who sold to Edward Livingston. In 1805 a jactitation suit was brought, in the name of John Gravier, against the mayor, etc., of New Orleans, on account of the pretensions the city had set up to this property. In 1807 the Superior Court decided that the evidence in that case showed that Gravier was the riparian proprietor. In 1819 the co-heirs of John Gravier sued him to set aside the adjudication made in his favor and for a partition of the property of Bertrand Gravier. See 6 Mart. 281. In the same year the suit of Morgan v. Livingston and others was decided. It was determined in that case that there was no batture formed at the time Gravier’s sales were made, and that whatever of rinarian ownership he had, passed with those sales. In 1820, and in all probability in consequence of that decision, the compromise between the Gravier and Livingston party and the city was made. In all these proceedings the State, as representing the public, had never been a party.

In 1836 the city charter was amended, and this compromise was tacitly ratified by the State. In 1850 an act of the Legislature authorized the sale of two tiers of lots in front of two streets to be laid off on the batture in front of New Levee street, and directed what disposition should be made with the proceeds of the sales. The same act declares that the batture or space of ground adjoining the Mississippi river and the street to be laid off, etc., fronting said river, “shall be left open and so kept for the accommodation of the public and the convenience of commerce. Acts of 1850, p. 197.

The parties to toe compromise of 1820 accepted the terms of this act, and, if not before, this batture was then dedicated to the public by all concerned. But in Municipality v. Cotton Press, 18 La. 230, this court, referring to the case of Municipality No. 1 v. Municipality No. 2, 12 La. 491, relating to this batture, says: “In that case there was an express dedication to public uses of the alluvion in front of the suburb St. Mary by a formal contract between the city and front proprietors, and the act of 1836 refers to and sanctions that compromise, and expressly provides that the municipality of the upper section of the city of New Orleans shall not in any manner obstruct or impede the inhabitants of any portion of the city in the free use and enjoyment of their rights in the batture. With such legislative injunction, how could the municipality, with any propriety or consistency, pretend to be the exclusive owner of a locus pubUcus, which it was their duty to administer according- to its destination.” 18 La. 230 See also Packwood v. Walden and Cockran et al. v. Fort et al., 7 N. S. 86 and 626.

In the case of Delabigarre ®. Second Municipality, decided in 1848, it had been expressly decided that the batture had been dedicated to the public use, and that the attempt of the municipality “to change the destination of the ground was a glaring usurpation of power, from which no legal effects could result.” 3 An. 239. And this decision no doubt led to the passage of the act of 1850 aforesaid.

In 1851 the case of Parish v. Second Municipality was decided. In that case the plaintiff complained that the act of 1850 was unconstitutional, pretty much on the same grounds urged now against the act of 1869. This court decided that the property was a public place, and that the Legislature had the right to alter the destination. 8 An. 145. The other cases which follow adopt this conclusion without discussion. 10 An. 54; 12 An. 500; 13 An. 154; 10 Peters 662.

If an unbroken chain of decisions of this court, for upwards of half a century, can settle the question about that seemingly endless source of litigation, the batture in front of the city of New Orleans, it has been settled that the batture is a public thing.

■ I understand that a majority of my associates do not deny that the State alone can control “public things.”

The jurisprudence of this State and most of the other States of the Union is settled that the sovereign alone has the right to control public places or to change the destination of public things. 5 La. 132; 13 La. 326,; 18 La. 218; 3 An. 230; 8 An. 149. In the case last mentioned this court said: “As we held in the case of the State of Louisiana v. the Executors of McDonogh et. al., such a stipulation was at all times under the control of the Legislature, who could modify the effects of it and change the destination of the property whenever such a change became of public advantage. Its power to change the destination of it was expressly recognized by us in the case of Delabigarre v. Second Municipality. The power of the Legislature to change the destination of public places had been previously recognized in the case of De Armas v. the Mayor et als.; the Mayor v. Hopkins; New Orleans v. United States, and Municipality v. Cotton Press. These cases were all argued by the ablest counsel at the bar, and the opinions of the court were prepared with uncommon care. In two of them, Judge Martin dissented on other points; but the court was in all the cases unanimous in recognizing the power of the Legislature to change the destination of the quay and of the batture in front of the city of New Orleans,” etc. P. 149; 5 An. 661; Cooley Lim. 552; 2 Dillon § 511; 4 Pet. 232; 45 N. Y. 234; 1 Redf. 260; 22 Miss. 13; 20 Mo. 192; 18 Cal. 490; 13 Ill. 30; 31 N. Y. 164, 202; 8 Dana 50; 12 Ill. 60; 15 Tex. 388.

If the General Assembly had the power to control the quay and batture in front of New Orleans in 1851, when and how has it lost this power ?

I come now to inquire whether there be any difference in the power of the State to grant lands for depots and privileges to use the streets 9 I confess my inability to see any. It is the grant of the use of a locus pubKeus for a public use, in each instance. The use is specific. The dedication is defined, and no other employment of it can be made. The power of the General Assembly in appropriating money or property belonging to the public is subject to no other limitation than is imposed in the constitution. 16 Wal. 678; 21 N. Y. 597; 15 Wend. 374;

II La. An. 338. Depots are necessities for the running and operating of railroads, and for the proper prosecution of the business in the interests of'the public. They may be regarded as indispensable to the accomplishment of the general purposes of the corporation and the design of the legislative grant. 46 N. Y. 546.

The decision of this case depends entirely upon whether or not the act of the General Assembly of 1869, in favor of the plaintiff, be constitutional or not. It can not be denied, that at least, there is serious grounds for doubts on the subject; and under the settled jurisprudence of this court and of the Supreme Court of the United States, that it is a sufficient reason for not declaring the law void.

I therefore dissent from the opinion and decree of the court.


text:
    No. 4980.
    City of New Orleans v. Robert J. Ker.
    Prom the proceedings in this case it appears tliat the order ot the twelfth November, 1873, purporting to confirm and make final the judgment by default for taxes, was inadvert* ently rendered and was simply nugatory j and, being without force, it could not affect the validity of the judgment finally rendered contradictorily between the parties in December.
    Appeal from the Superior District Court, parish of Orleans. ’ Hcno-Icins, J.

      George 8. Lacey, for plaintiff and appellee. B. J. Ker, in propria persona.

   Howell, J.

This is a suit to enforce the payment of city taxes. These were the proceedings: On the seventh of November, 1873, judgment by default was taken against tbe defendant. On tbe tenth the default was set aside on motion of the defendant and he filed his answer. He sets up in defense that he is not bound by law to pay the taxes assessed against him, contending that they are unconstitutional, especially the tax on income, that for the payment of interest on bonds and the.park tax.

Judgment was rendered against the defendant and he has appealed. He argues, by way of exception, that the plaintiff obtained no valid judgment against him in the lower court, and the ground taken in support of this position is, that after the default was set aside and his answer filed on the tenth November, the judgment by default taken against him was confirmed on the twelfth November, and the judgment signed on the eighteenth of the same month; that notwithstanding this final judgment, a second judgment for the same cause of action was rendered against him on the third of December, 1873, and signed December the ninth. The last judgment he contends is a nullity, apparent from the record, and the first is null because a judgment by default can not be confirmed when it is set aside by motion in due time.

We think it clearly appears from the proceedings in the case that the order of the twelfth November, purporting to confirm and make final the judgment by default taken on the seventh, was inadvertently rendered and was simply nugatory; and, being without force, it could not affect the validity of the judgment finally rendered contradictorily between the parties in December.

Tlie other questions in the case are settled in the cases of City v. Estate of Burthe; Same v. Elkin, and Same v. Steamer Rawlins.

And for the reasons therein it is ordered that the judgment of the lower court be amended by allowing interest thereon from thirty-first July, 1873, instead of thirty-first July, 1872, and that as thus amended it be affirmed, costs of appeal to bo paid by appellee.


text:
    No. 4014.
    Blanc & Legendre v. Wallace & Choppin ex als.
    motion to dissolvethe sequestration should Rave been made absolute. The requisito oath. was not made. The affiant did not state that be feared or believed that tbe property on which the privilege exists would be removed out of the jurisdiction of the court, or concealed, parted with or disposed of ponding this suit.
    Appeal from the Fifth District Court, parish of Orleans. Béaumont, J.

      Rogers & Blanc, for plaintiffs and appellees. B. R. Forman, for defendants and appellants.
   Ludeling, C. J.

This is a suit on a promissory note given for the price of machinery. The plaintiffs claim a privilege on the articles sold to defendants and obtained a sequestration. The motion to dissolve the sequestration should have been maintained. The requisite oath was not made. The affiant did not state that he feared or believed that the property on which the privilege exists would be removed out of the jurisdiction of the court, or concealed, parted with or disposed of pending this suit. C. P. 275 ; 4 R. 462 ; 6 An. 444; 9 An. 535; 11 R. 145. But, on the merits, the judgment of the lower court is correct.

It is therefore ordered and adjudged that the judgment be affirmed. The costs of the sequestration of this appeal to be paid by the plaintiff.

Rehearing refused.