text:
    Chige v. Landreaux.
    After an adjudication at a probate sale made to effect a partition among heirs, it was discovered that the property sold was encumbered by a special mortgage in favor of a bank; and a part of the price was deposited by the purchaser in the hands of a third person, to be paid to the heirs upon their exhibiting proof of the erasure of the mortgage. On the production of a declaration, made by the administrator of the succession before a notary in the form of an authentic act, that he released the mortgage in favor of the bank, the recorder of mortgages cancelled the mortgage, and ,tho heirs were thereby enabled to withdraw the amount on deposit. The bank having enforced its mortgage, the purchaser sued the heirs for its amount; and having made, on execution, but apart, proceeded against the recorder. Held, that the latter was responsible to the purchaser for the balance not recovered from the heirs.
    By a special provision in the stat. of 7 April, 1824, sec.31, incorporating the bank of Louisiana, the right of the bank as a mortgagee to seize and soli the mortgaged property, is, in cases of mortgages executed under that act, unaffected by the death of the mortgagor.
    Appeal from the Fifth District Court of New Orleans, Buchanan, J.

      SouU, for the plaintiff. Legardeur, for the appellant,
    cited 20 Duranton, Nos. 193, 194. Went v.. Morgan, 3 La. 311. Sacerdotte v. Duralde, 1 La. 484, Williamson v. Creditors, 5 Mart. 620.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff purchased certain real estate in New Orleans, at a probate sale, ordered for the purpose of effecting a partition among the heirs of Pigneguy. Upon preparation of the act of sale, it was found that the property was encumbered with a special mortgage in favor of the Bank of Louisiana, executed in their life time by the deceased persons in the matter of whose successions the sale was made. The plaintiff accordingly refused to pay the purchase money absolutely; but caused a sufficient amount of it to be retained and deposited in bank, to protect him against the mortgage. The money was to remain in deposit till the bank should be satisfied, and to be delivered to the heirs of Pigneguy, only upon their exhibiting proof that the mortgage had been raised. This mortgage the recorder of mortgages cancelled, upon no other authority than that of a declaration, made before a notary in the form of an authentic act, by Marsoudet, the administrator of the succession, that, by virtue of his authority as administrator, he released and cancelled the mortgage in favor of the bank. The heirs were thus enabled to withdraw the money deposited, without the plaintiff’s knowledge or consent. Subsequently the bank seized the property to satisfy its mortgage; the plaintiff gave the recorder of mortgages notice of these proceedings; and, after an unsuccessful resistance, was compelled to pay the bank. The plaintiff then sued the heirs of Pigneguy, but obtained in execution of his judgment a partial satisfaction only, and no w claims the residue of what he has thus lost from the defendant, Landreaux.

It is urged, on the part of the defendant, that there was no breach of liis official duty. That he'cancelled the mortgage upon the production at his office of a duly certified copy of a notarial act, which he had no right, or at least was not bound, to pronounce null and of no effect.- Upon this poin^the defendant cites the authority of Duranton, Droit Francais, vol. 20-, p. 303. It appears that in France, an instruction “ de la regie” had been given, in conformity with the opinion of “ le grand jugerministre de la justice,” that the recorders of mortgages were not to occupy themselves- with questions of law, which- may arise as to-the radiation of mortgages; and- that their responsibility should not be compromited by radiations assented toby authentic aGt, or in virtue of a judgment certified to them. Without investigating the applicability of the doctrine of Duranton to our system, or whether it Gorrectly explains the jurisprudence of France, it suffices to say that it applies only, even according to that author, to-the case of an assent by the mortgagee himself, exhibited by an authentic act;, in which case it would seem,, according to that author, not to be the duty of the' recorder to inquire into the capacity of the mortgagee. In the present case, the1 authentic- act, upon which the recorder has cancelled the mortgage, emanates-not from the mortgagee, but from the representative of the succession of the-mortgagor- The. proposition is monstrous that the mere exhibition of an authentic act, not executed, by the mortgagee or some one authorized to represent him, should authorize the recorder to extinguish the mortgagee’s rights.

This brings us to the second proposition of the' defendant, that the administrator of the succession, by virtue of his office, has authority to- cancel mortga-ges created by the deceased. If the proposition, in its general sense, be conceded,still the case of the bank’s mortgage falls under special legislation. By the 31st section of the charter of the Bank of Louisiana it was declared that,- “on all mortgages executed under this act, the president, directors, and company of the bank shall have the right to seize the property mortgaged, in whatever hands it may be, in the same manner, and with-the same facilities, that it coydd be seized in the hands of the mortgagor,-notwithstanding any sale or change of the title or possession thereof, by descent or otherwise.” By the 35th section of the charter, the bank, as mortgagee, was exempted from1 the effects of surrender by insolvent mortgagors, it being declared that, in such cases, the mortgaged property should not pass. This legislation was intended to favor the bank, and to protect its securities from being dilapidated, like those held by individuals, by the notoriously wasteful and extravagant administration of syndics and administrators, and the unreasonable charges which, under pretence of priviliges, were levied at the expense of mortgage creditors. Whether the interest of the State in this institution, or a disposition to encourage banking operations, was the motive of the legislator, it is unnecessary to inquire; the legislative will is clearly expressed, and, under it, the administrator was incapable of cancelling the mortgage virtute officii. That incapacity resulted from a statute which the recorder was bound to know and notice.

The exemption in question has been the subject of judicial interpretation, and has been recognized in the case of Williams v. Bank of Louisiana, 17 La. 382, and in the case of Bertoli v. The Citizens' Bank, 1 Annual R. p. 119. It is also adverted to in the case of the Gas Bank v. Webb, ante p. 526. It is not pretended that the bank was in any wise a party to the proceedings in the Court of Probates, or ever, directly or indirectly, assented to what the administrator has-done. It was an entire stranger to all these matters.

Tlie unauthorized radiation and certificate granted by the defendant, has enabled the administrator and heirs to abstract the fund deposited; and his good faith, which is unquestioned, cannot protect him.

The argument that an administrator has a right to control and receive' the funds of a succession,'seems to us irrelevant.- The-funds deposited did noli belong to the' succession absolutely. I-t belonged to both parties,- under the terms of the contract; to tlie' plaintiff, for the purpose of his protection against; the bank’s mortgage ; to the heirs, when that mortgage should- be released. The condition was that the money was to- remain- in- deposit, and to be delivered to the heirs of Pigneguy,- only upon their exhibiting proof that the mortgage had been raised. That proof the defendant unlawfully furnished, and the immediate loss must fall upon him, leaving.him his recourse upon those whose misconduct has led him into error, and- the heirs who have been benefited by the unlawful receipt of the fund. Judgment affirmed.


source: Caselaw Access Project

author: Slideii., J.

license: Public Domain

text:
    Jartroux v. Dupeire.
    líiie'registry of a'judgment which decrees “ that defendants do ret'diM tlid note-s and liibrl'dy already paid by the plaintiff, and that they pay the costs,” will not entitle the plaintiff to a mortgage as against third persons, so far as relates to the notes and money. The inscription can produce no effect, the judgment containing no statement oí the amount in money ’for which it was rendered, noi- any description of the notes. But it will have effect as a mortgage, for the cósts.
    APPEAL, by the plaintiff, from1 a judgment' of the Parish Court of New Orleans, Maurian, J.
    Bonford, for the appellant'.
    Article 3289* of Our' Code gives fo a' recorded judgment the efl'e'ct of a mortgage. Its language is general. Whether the judgment direct that a thing-shall be given, or something be done or omitted, or a sum- of money be paid, it seems equally to be the intention of the legislature to preserve the jhdgment creditor’s right, by tlie security of a general mortgage hpon the debtor’s' property'. Whence did the' c'ourt beloW d’érive the restricted application of art. 3289, to such- judgments only as- express in their body a fixed sum of money? Not from-any provision of our law further than t-he application to judgments of art. 3277, which in its terms is confined to conventional mortgages; but' from the frehch hypothecary system, under'which it has been hold by some authors, that in order to render valid the-inscription Of a judicial mortgage, a valuation» of the debt must be previously made by the judgment creditor. .We hope to'show conclusively, first, that the french system of inscription has not only, in this respect, not been adopted, but has been actually repudiated by the framers of our Code; and sd'ébndly, thaí urider the french system; all judgments, of whatever character they may be, whether for sums of money determinate or indeterminate, or for the doing, of- or refraining from any act, have,- when recorded,, the force and effect of mortgages, and that no valuation is required to be’made by the judgment creditor' in order to give them an hypothecary character.
    There is one peculiarity in the french system of inscription, for anything similar to which we look in vain in our own. It. is that by which the mortgage creditor is obliged to present to the recording officer, with his title, a bordereau, containing eertaih points in r-elation to the' mortgage and the parties’ thereto, which' are specifically detailed in the 2148th- article of the Code-Napoloon. Among these,-the creditor is enjoined to set out- the value of his claim. This value he is permitted to estimate, and the inscription is good up to the amount of his estimation. The' debtor is protected'front-over estimation by the action which the law gives him in» such case against the creditor,- foi? a reduction of the estimation. Even conventional mortgages, which with us are required to contain in the act creating them the mention of a sum certain, are subject in Franeo to this system of bordereaux. Thus, where a conventional mortgage is given under art. 2132 of the Napoléon Code, for a conditional obligation, or one of indeterminate value, the creditor is entitled to inscription by complying with the requisites of art. 2148. Such a system does not prevail with us. That our legislators did not intend to engraft it upon our law is evident from a comparison of art. 3277 of our Code with the corresponding article of the french Code, no. 2132. Our article contains the simple enunciation that no conventional mortgage shall be valid, unless the exact sum for which it was given be declared in the act. The french article in addition, contains the clause of which we have just spoken, entitling the creditor to inscribe with an estimation. Why was this portion omitted hi our article ? For the palpable reason-that the french system of inscription with the aid of bordereaux, was not designed to be put in force here.
    Thus art. 2Í48 of the french Code, which contains nearly all' its legislation' upon this subject,-is entirely omitted in oür Cede. If in France positive legislation was necessary to make it incumbent upon the creditor to attach a fixed- and definite value to his judgment, such legislation is equally as necessary here to force the judgment creditor into the same position. As our Code now stands, there is a positive provision requiring all conventional mortgages' to contain n-declaration of the exact sum for which they are given. It is silent as to legal- and judicial mortgages. And yet this silence of our Code,-this designed omission to incorporate the french system of inscription into our own, is not. it is contended, to be taken as proof that those provisions have' nbt the force'of laW here,- but, on the contrary, is evidence that they exist here by analogy and inference, because they exist in France by positive legislation.
    But is it true that, in France,-such judgments only can have the force of mortgages as condemn to the payment of a sum certain, or such as the owner has: caused to be inscribed with the bordereaux mentioned in art. 21'48. Troplong, Tarrífale, Grenier, Persil, Dalloz, all the french authors-agree, that any judgment which condemns the party cast to the performance of an obligation, of whatsoever character it may be, produces a mortgage. See the authorities in Troplong, Des Privileges et Hypothéques, vol. 1, p.266, §'438. Grenier, Pel-ail, Dalloz-, and the Court of Cassation decide that even- the judgment which condemns Ihe defendant to render an aocount, pro duces a judicial mortgage. G) enier t. 1, no. 195. Persil, Questions, p. 83. Dalloz, vo. Hypothéque no. 2. Cass. 21 Aoht, 1810. 4 Aoút, 1825. Lyons, 11 Aoht, 1809. Is it matter then' of doubt that a definite judgment, such as the one on which this action was instituted, would in France be susceptible of becoming by inscription, a judicial-mortgage 1 But it is averred that, although such a judgment contains all the requisites to form a mortgage by inscription, yet when the creditor in France seeks to make it available as an hypothecaiy claim, he must comply with art. 2148, and estimate, in the bordereau,- the value of the debt. Grenier,-it is true,supports this view. It is far however from beiDg the opinion-of more recent-commentators; and the contrary view may be said to be now firmly established by repeated decisions of the highest Tribunals. Troplong, Des Privileges et" Hypothéques, vol. 2, § 681, declares that it- is altogether unnecessary to-puta' valuation on the judgment claim in order to give effect to the inscription. In this view he is supported by Duranton, vol. 20, no. 1-17, by three decisions of Courts Royal, and one of the Court of Cassation; one of the decisions being as late as the year 1839. See Cass. 4' Aoht, 1825. Paris, 16'Mars, 1822. Rouen, I91 Févr-ier, 1-828. Limoges, 5 Décembre,-1839.- This last case will befound in the Journal du Palais for 1840, p. 539. In the case decided by the Court of Cassation, the holder of the judgment declared that he could not place any fixed value' upon his claim, but that it was of considerable value, and it was h'eld that this judgment, which condemned the defendant to- render an account, was entitled by its inscription to rank as a mortgage. Whether therefore, the french-rule of inscription is considered to be in force in Louisiana, or not, the court below decided' erroneously, because,-under either system, no valuation is necessary to give an hypothecary effect to the judgment when recorded.
    Morel, on the same side.

      C. Janinand Grymes, for the defendant.

      Eyma, for the recorder of mortgage?,-called- in- warranty,
    cited C. C, 3277, Code Nap. 2132. Grenier, Hypothéques, v. 1, p. 264. Diet. Gen. du Droit Civil, v. 4, p. 96, no. 68, verbo Hypothéque ; p. 215, verbo Inscription. 1 Pothier, 264.
   The judgment of the court was pronounced by

Slideii., J.

The plaintiff claims to be an hypothecary creditor, upon property formerly owned by Deborgue, and now in the possession of the defendant, by virtue of a judgment obtained and recorded against Debergue, before the rights of the defendant were acquired. In the suit of Jartroux v. Debergue and others, the plaintiff obtained a verdict of the jury in these words: “ The jury find a verdict in favor of the plaintiff for the refunding of such sums of money as the plaintiff has paid, and returning of the notes given by him; or, in default thereof, for the amount of the same, and damages to the amount of $1,500.” Upon this loose and uncertain verdict, a judgment was entered in the following terms: “ The court being satisfied with the legality of said verdict, it is decreed that judgment be entered according to said, verdict, in favor of the plaintiff, and against the defendants, for the sum of $1,500, as damages; that said defendants do return the notes and money already paid by the plaintiff, and that the defendants pay the costs.”

So far as the sum of $1,500 damages is concerned, it may be left out of view. That part of the judgment was remitted by Jartroux. Of the costs we will speak hereafter. The residue of the judgment will be at-present considered. We do not think it necessary to decide the point urged by counsel, that the judgment in question was, even between the parties to it, void-for uncertainty. We confine ourselves to the question of inscription, as affecting third persons.

This judgment was r-ecorded in the terms above' stated. The inscription* was consequently uncertain, and did not informthe public what amountof money was decreed to be paid, and what notes were to be restored to the plaintiff. We deem it to be our duty, under the fair interpretation and intendment ofiour registry laws, to hold this inscription invalid, because it does not exhibit any definite*, pecuniary amount, nor any description of the notes to be returned. This essential information should be patent upon-the-public records of the-mortgage office-The creditor cannot be permitted to inscribe a loose and obscure notice, and< leave third persons to ferret out elsewhere the extent of the antecedent encumbrance claimed by him. If he desires to obtain by inscription the security of a judicial mortgage, let him ask and obtain his judgment-'from the court in a distinct and intelligible form. If a contrary practice were tolerated, confusion;, mistakes, and injustice, would be the inevitable result.

As to so much, therefore, of this judgment, as decrees that “the defendants, return the notes andmoney already paid,” we consideritas not having acquired, by the inscription,, the force of a judicial mortgage; and in this respect the hypothecary action.must fail. As regards the costs given by the judgment in question, we consider the plaintiff entitled to be recognized as a mortgage creditor-In the sheriff’s sale to Dupeire, these costs are stated at the sum of $232, and. the purchaser was allowed to retain so much of the price to. satisfy that incumbrance. In this respect, therefore, the judgment of the court below must be-corrected.

It is therefore decreed that the judgment of the court below be reversed; and it is further decreed that the said Franpis Jartroux be recognised as a mortgage creditor, for the sum of $232, with interest from, the 8th day of June, 1843r and costs of this suit in both courts, upon the following-described real estate, to wit: 1st. A certain lot of ground situated m.'fatibourg Marigny, in ElyBian Fields street, measuring fifty one feetfronton said street, between'Casacalvo and Moreau streets, by one.hundred and forty-five and ,a half feet deep; said lot is designated by the number ninety-three,, on the-plan, of said faubourg; together with all the buildings on said premises, without any .exception or reserve whatever. 2d. Another certain.Jot of ground desiguated-hy the. number ninety-two, on the plan of said-faubourg Marigny, situated in said.faubourg,-and measuring fifty-one.feet front, more or less, on Marigny street, between Casacalvo and Moreau streets, by one.hundred.and.fortyrfi.ve.feetsix inches deep,.more or less, bounded on the side towards Casacalvo street, by property belonging to M. Ulm, and .on the sidetowards Moreau street bythat of John L. Thielen, together with the buildings thereon; and that the same be solcl.to pay and satisfy to.the said Jartroux, the sum, interest, nnd..eosts. aforesaid.


author: Host, J. Eustis, C. J.

text:
    The Third Municipality of New Orleans v. The Ursuline Nuns.
    The 6th sec. of the stat. of .28 March, 181?, amending,the ,act. of ;17 February, 1605, incorpo, .rating the city of New.Orleans, hy the words “incorporated-suburbs,” meant those suburbs which were urban atthe time of,.the incorporation in.1805, and was intended to apply ex' .clusively to such rural estates as had become.urban since that time, or, might thereafter be^ . come so. ,It refers exclusively to property laid out into streets, .and is not repugnant to sec . 6 of the stat. of 1805. The 5fch sec. of the stat. of 16 March, 1830, declaring .what, shall be .considered as the-,ínon-in.corporafcedfaubonrgsM of<theeity, refers.to the same suburbs as the stat. of 1813.
    •The territory of the city of .New, Orleans .was.eomposed, at the .time .of its incorporation, of urban and rural property,,the latter being hy far the most extensive.
    ¿Property within the incorporated limits of the. city of New Orleans, not laid out into streets, is subject to taxation for all municipal purposes, except the maintenance of lights, of the city-watch, and for watering and: cleaning the¡ streets. -Such property is not comprehended in theprovisiou of sec. 1 of .the stat.,-of 28 .March, 1813.
    The discretion vested in the Mayor and City Council of New<Orleans by sec^6 of-the-stat. of 17 February, 1805, ¡does not authorise them to exempt any portion of the territory of the city .from taxation. The ordinance .of the .Third Municipality, approved 2d April, 1845 exempting certain portions of .the jterrdiory of ¿hat municipality from taxation, is.consequently null
    ;Municipal-couneilsy.or other.functionaries of government,,cannot -renounce*the powers vested ,in them by the.-constitution and laws. An ordinance of a municipality which .makes even a partial surrender of political power is null.
    Appeal from the First [District Court of New Orleans, Preston, J.

      Grailka, for the plaintiffs. Dufour and Grymes, for the appellants.
   The ,opinion of the majority of the court was pronounced by

Host, J.

The issue in this case involves the legality of a>city¿ax, -imposed .upon real estate situated within a district of the-city not ¡laid out into-streets, .and on the slaves employed -thereon. T.he oourt below ,was adverse to the prehensions of the defendants ¿o be exempted from taxation, but considered that ¡the plaintiffs had debarred themselves of the right of collecting the land tax, hind gave judgment for the tax on the slaves only. From this judgment they Jhav.e appealed, and ¿he appellees ask ¿hat it be amended in their favor.

There is no doubt,_ of the legality of the tax upon the slaves, and we have come to the conclusion that the laud of the defendants has only been partially exempted from taxation. A misapprehension of facts by the Supreme Court' in the case of Laferranderie v. The Mayor et al., 3 La. 246, has alone obscured the meaning of laws otherwise.clear and free from all ambiguity.

At the time of the incorporation of this city, in 1805, its population was small, and its territory much large? than it is now. It extended some twenty-five or thirty miles along the bank of the river, and, with the exception of the square of the old city and the front of the Second Municipality, was almost exclusively composed .of rural estates and waste lands. It is nec.essary for the purposes of this enquiry to. keep that fact in view. The teryitory of the.city of New Orleans, like that of ancient Rome, was composed of urban and rural property, the latter greatly predominating in extent.

A proviso in the 6th section of the act of incorporation, made -a distinction between thes.e tyro kinds of property, and provided that the rural portion of it, although subject to all other taxes, should not be made to contribute for the maintenance of lights, of the city watch, nor for watering and cleansing the streets. This proviso, having exclusive reference to property not laid out into streets, is in no manner affected by the provisions of the act of 1813. It is a part of the historyof the country that, between 1805 and 1813, the rural estates adjoining the urban portion of ,the city were laid o.ut into streets. That fact came before us during this term, in relation to the Graviey plantation. The act .of 1813, in providing for suburbs laid out into streets outside of the city and incorporated suburbs, meant by incorporated suburbs, those that were urban at the .time of the incorporation in 1805, and was intended to apply exclusively to such rural estates as either had become urban since that time, or might thereafter become so. It refei-s exclusively to property laid out into streets, and is therefore not repugnant to the proviso of the 6th section of the act of 1805. The act of 1830 evidently refers tq the same suburbs as that of 1813. Whatever be the meaning of the words equal support and privileges, made use of in the latter .act, the defendants do pot come within its provisions, Their property has not been laid out into streets, and is a proper subject .of taxation for all municipal burthens except for the maintenance of lights, of the city watch, and for watering and cleansing the streets. In the case of Laferranderie, already cited, the .court, in ouropinion, erred in applying the act of 1813 to a district of the city not laid opt into streets.

The right secured to the owners of rural estates to be partially exempted from taxation, has been left inchoate, .and cannot be enforced by courts of justice to its full extent. Instead of providing that the taxes on urban and rural property should be levied, kept, and distributed separately, so a? to enable the jur .diciary to control the application of them to the uses for which they were intended, it gave the city council ppwer to raise taxes on all the real and personal estate within the ljmits of the city, in such manner as to them plight seem pror per.

It is urged that the intention of the legislature’was not, to give the .city government the power to impose any taxes but such as were necessary to supply deficiencies in the other revenue of the city, and it is perhaps to be regretted that courts of justice have not so understood it from the beginning ; but if they had, that limitation would not, as we conceive, affect this case. Within the limits of the power, vsdmhwm' it be, the mode of imposing and collecting the tax, provided it be uniform, rests within the discretion of the city council. But they must exercise that discretion so as to malee a distinction between rural .and urban property ; and it is evident that, if the admission in the record that the property has been duly assessed, means, as we suppose, that it is assessed in the same manner as urban property, it is taxed too much, and the defendants are entitled to a diminution of the .amount claimed.

The court below exempted the defendants from the payment of the land-tax for the year 1845, on the following grounds:

1st. That the municipality had the right to exempt a portion of its territory from taxation, because the act of 1805 provided that the taxes should -be imposed in such a manner as to them might seem proper, and that it had exercised that right in passing the ordinance of the 2d of April, 1845.

2d. That the assessment rolls on which the tax claimed was laid, being subsequent in date to that ordinance, could not, so far as made with a view to taxation, embrace property which stood at the time exempt from it; that this ordinance was not repealed, and the ordinance imposingthe-tax revived, till the 29th December, 1845; .that the revived ordinance must be considered as operating prospectively and not retrospectively, and that, having been revived only two days before the end of the year, the municipality could not enforce the payment of the tax for .that year.

To the examination of those grounds we -will now address o-urselves.

J. We do not understand the discretion vested in the mayor and .city council, by the 6th section of the act of 3 805, as going to -the extent supposed by the .court below. If it did, all the burthens of the corporation might be imposed on any number, however small, of its inhabitants. It is-a principle which lies at the foundation of ,our government, and a textual provision of our constitution, .that taxation must be equal; and although perfect equality may not be attainable, an ordinance that exempts from it a large portion of the property of the municipality, is such an open violation of the rule as courts of justice canno.t sanction. That ordinance is moreover a partial surrender of political power, .and as such, an absolute nullity. Functionaries of government ,cann.ot renounce the powers vested in them by the constitution and laws.

The rule that a law can have no retrospective operation is, as usual with me? ■taphysical formuise, false in the majority of instances. If a law could never .affect the consequences .of facts accomplished before its passage, or give to those facts new consequences, laws could only be -passed for the use of posterity. As every new enactment niust, if enforced from the time of its promulgation, modify to a certain extent some of the consequences, more or less remote, of anterior facts. When anew law is enacted, the presumption is that it is better than the o.ld, and that it is intended to remedy some existing mischief. It is therefore the duty of courts of justice to apply to all cases occurring after its promulgation, unless its application should impair the obligation of a contract, or endanger the peace and good order of society, by destroying strong and well founded expectations, formed under pre-existing laws. Valette on Proudhon, 1 Droits des Personnes, 21 etseq.

In this case there is no contract, and the defendants could not have a strong and well founded expectation of enjoying the protection of municipal government without bearing any of its burthens. The ordinance complained of requires from them a contribution which all the owners of real estate in the Third jVIqnicipality haye paid; and had a deduction been made under ¡the proviso of the 6th section of the act of 1805, we would amend the judgment as prayed for.by^thejpkiutiffs. As .the cage stands, we will affirm the judgment for the tax upon the slaves, and render a judgment of non-suit for the remainder of (.j10 <qa;m. reS0rvjng t0 the plaintiffs the right to collect the land tax for the year 1845, upon making an equitable abatement from the amount assessed, in accordance with the ,letter¡and spirit o.f that proviso.

It is therefore ordered that the judgment in this case be amended, so as to rescrve.the rights of the plaintiffs to recover the tax on the land of the defendandants for the year 1845, upon previously making a deduction on the amount assessed, as contemplated by the proviso of the 6th section .of the act of 1805-incorporating the city of New Orleans. It is further ordered that the judgment as amended be ¡affirmed, with costs iniboth courts.

Eustis, C. J.

I have considered with great care the legislation relatingj to “the subject of this suit. The confusion in which.it is involved by the language of .the several enactments is such, that any one definite .conclusion is liable to .obj ections and is far from beingsatisfactory. I .have not been able fully .to .concur in the view'takeu o.f it by Judge Rost, and will proceed at.once to state what I understand to be the senge of the law, as to the right of the municipality to exact the tax sued for.

I.The 6th section of the act of 1805, relates!» lands within the limits .o,f .the city not laid out into streets, and they are exempt from certain city charges, viz : from-taxes forth® maintenance of lights, of the .city-watch., .and for watering and cleaning the streets. Except for thes.e .objects., I find no restriction .as to the right to tax these lands in common with other r.eal property within the limits of the city. I do not think this section has ever been repealed.; and for those objects I do not think the parts of the city not laid out into Streets can lawfully be taxed. In this case, the tax sue.d for canno.t b.e abated for that reason, inasmuch as there is nothing in the pleadings or .evidence which,©yen suggests the amount ,to ¡be .abated.

The mode in which the city taxes have been levied and the accounts kept;, render the ascertainment of the precise sum expended for those objects for each year difficult, if not impossible; but the municipal authorities can easily .cause to be made s.uch a reasonable abatement or diminution of .the tax on real property in parts of the city not laid out into streets, as will cover the .contribution for those objects, which they are not permitted to exact.

II. The first section of the act of ¡LSI8 relates to the suburbs laid out into streets, and,, on the hypothesis assumed by the defendants, that the part.of the municipality in which their property is situated is not laid out into streets, the provisions of .this section do not apply to their case. In relation to the .construction of this section, I .concur .in the opinion given by the judge of the District Court in the very .able opinion he has given in this case. It is impossible to give effect to it, consistently with any recognised rules of municipal administration, without considering it, as the judge has considered it, as directory to the municipal authority, and involving an administrative matter, and not a case for the intervention of the judicial power- .Seecase of First Municipality v. Pease et al., ante p. 538.

III. It is urged by the counsel for .the defendants that the act,of 1830 .conclusively establishes the exemption of this suburban property from taxation. My impression is otherwise, and .considering the section relied upon — the fifth — in reference to the act of which it forms a part, and giving to its expressions their évident intendment, it cannot be held to be an exposition of a limitation of the' power of the municipal authority, but it is merely an assertion ef the fact of its non-exercise as to unincorporated faubourgs.

A recent act of the legislature of May 4, 1-847, has removed'the difficulties resulting from the condition of the legislation on the subject of taxation by the municipal government of New Orleans, so far as the future is concerned. The collection of the arrears of taxes on this description of- property,■ I think, ought to be subject to the abatement I have stated.


author: Slidell, J.

text:
    Freeman v. Stacy.
    Asale under ajS. fa. issued on a judgment the amount of which exceeded- three'hundred5 dollars, made after the promulgation of the stat. of 8 Eeb. 1842, and before the stat. of 6 April, 1843, in a parish in whicn a newspaper was published at' the time, and not advertised therein, will be annulled. Art. 669 of-the Code of Practice, and the amending act of 28 Peb. 1828, were revived by the stat. of 8'Peb. 1842, repealing that of-S'-March, 1841.
    The factthat the discontinuance of a newspaper rendered'it impossible to publish the advertisement of a judicial- sale therein as often-as required- by art. 669 of the Code of Practice, will not excuse the omission to puhlish-suoh advertisement before the discontinuance of the paper.
    APPEAL from' the District Court of Concórdiíi, Cúrry, J-. Tile plaintiff appealed from-a verdict and judgment rendered in favor of the defendant.

      T. P. Farrar and Thomas, for the appellant. Slacy and Sparrow, for the defendant.
   The opinion-of the majority of the court was pronounced-by-'

Slidell, J.

This is a contest? concerning the title to a slave between the plaintiff and Reynolds,- the lessor of Stacy. The circumstances under which Reynolds acquired title are stated in the case' of- Farrar v. Stacy, ante p. 210. Pending the attachment suit of which we have there'spoken, and before judgment therein, Spencer,- the defendant in attachment, executed an act of sale of the slave in favor of Freeman, in consideration^ as therein stated, of the sum of five hundred dollars paid to him-by Freeman-. The act stated' that the slave was one of those' attached in the suit of Briggs, Lacoste & Co. v. Spencer. This act was duly reoorded on the day ofits date. It is contended by- the defendant that this was the pu-rchase of a litigious right. The circumstances under which the sale was really made were, that Spencer was the debtor of- Freeman, and conveyed the slave to him on account of his indebtedness.

We see nothing illegal in this. It was a dation enpaiement'to a bond fide creditor, of property subject to encumbrance. Even if Spencer's 'title be considered a litigious right, which is not clear, this would subject Freeman to no equity in favor of’Reynolds, it having been, in the words of the Code, “ transferred to a creditor as a payment of a debt due to him.” Arts. 2624, 2622. We have stated in the case of Farrar v. Stacy, that the'judgment in the attachment suit of Briggs, Bacoste if Co., upon the execution- of which judgment the slave was sold, was reversed upon;a devolutive1 appeal. The encumbrance, therefore, of the attachment being extinct, the contest between these parties turns solely upon the validity of the judicial sale,-under which Reynolds claims title. This sale Freeman alleges to be invalid,- by reason of the non-observance of the legal formality of advertisement.

The sale was made in the month of August, 1842, the seizure under fieri facias having been made on the 2d July, 1842. Under the then existing laws it was necessary that this sale, being in the case of a judgment for an amount over three hundred dollars, should be advertised in a newspaper, if there was one published in the parish. The defendant, however, insists that this formality was dispensed with, by the’ statute of February 8th, 1842.

The Civil Code, art. 3522, and the Code of Practice, art. 669, required a newspaper advertisement. By the act of 1828, this general requisition was modified, and it was enacted, that when the judgment on which the execution issues is under ¡¡¡>300', it shall be unnecessary to advertise in a public newspaper. In 1841 the law was again changed, the requisition again became general, and it was made “ the' duty of the sheriffin any pai'ish of the State in which a newspaper is published, to publish all his advertisements for sales in said'paper,”k&c., and “ all laws, or parts of laws, inconsistent therewith”¿wereTepealed. In 1842, another act Was passed, by which it whs declared, “ that the act entitled da act; relative to sheriffs’ sales, approved 8th March, Í841,Jbe and is hereby repealed, and that all acts relative to advertising at sheriffs’ sales in force at the time of the passage of the said act be, and the same are hereby revived.” The result of this complicated legislation, so well calculated to create confusion and mistakes, nevertheless undoubtedly was, that a newspaper advertisement should be made when' one Was published in the pai'ish, and when the amount of the Judgment exceeded three hundred dollars. Such also was the opinion of our predecessors on this very point. See Ex parte Groves, 12 Rob. 131.

The return of the fierifacias exhibits an advertisement by posting^only ^and a witness states that the property was not advertised in the newspaper published in the parish at the time when the seizure was made, and for some time subsequently. The first day for advertising was the 6th July, 1842, and the sale took place on the' 6lh August, 1842; the newspaper was regularly published every week during the year 1842, down to-the 16th July, 1842. The advertisement might have been published during a portion of the time; and the subsequent impossibility does not excuse the previous omission.

Spenier, under the state of facts to which we have referred in the case of Farrar v. Stacy, has precluded himself from any objection to this sale ; but his acts subsequent to the recorded conveyance to Freeman cannot affect the latter without his assent, whieh is in no way shown. He stands before us as a bond fide purchaser of property subject to a prior incumbrance. His title could not be divested at the suit of the privileged creditor, except by a sale conducted in conformity to law. No such sale has been made; and the incumbrance created by the attachment has in the mean while become extinct. So that the unencumbered legal title is now in the plaintiff, who must have judgment accordingly.

Upon the claim for the value of the slave’s labor, we consider the plaintiff entitled,-under the evidence, to recover, at the rate of $75 a year, from judicial demand, until the slave be restored to his possession.

It is therefore decreed that the judgment of the court below be- reversed, and that the slave Frank, in the petition described, be restored by the sa-id Reynolds to the said plaintiff as the lawful owner thereof; and that the said plaintiff further recover from the said Reynolds, as wages for the said slave-, at the rate of seventy-five dollars per year, from the 2d day of December, 1842, until delivery of said slave be -made to the said plaintiff; the said Reynolds paying the costs of suit in both courts.

Eustis, C. J., dissented.


author: Ring,- J.

text:
    Loucks v. The Union Bank of Louisiana.
    Where a sheriff's deed for property sold at a judicial sale, after enumerating several special mortgages, recites that the property was sold “subject to jhb mortgages specified," th® recital wiliadd nothing to the consequences which the law attaches to the adjudication made' by the sheriff, nor to the obligations of the purchaser. Per Curiam: A sale under execution may be made for a sum fixed, and- for the additional amount of previous mortgages but, unless such appear distinctly to be the terms upon which the property was offered, the purchaser will not be presumed to have given more than the sum hid by him.
    The fact that the sum for which property was adjudicated at a judicial sale, is loss than the amount of previous special mortgages, will not prevent a sale, where the previous ¡®Or%a. ges are in favor of the judgment creditor. C. f. 683, 684. Where the owner of such previous encumbrances appears at the sale and assents to the adjudication, no other party can complain of the insufficiency of the price.
    The consent of'a1 mortgagee to give a preference over his mortgage to one executed in favor of a third person, does not amount to a cancelling of the mortgage of the former. It is a mere agreement that such third person, for the amount of his mortgage, shall take the place' of the mortgagee who consents to the postponement.
    Appeal from the District Court of East Baton Rouge', Burk, J.-

      Elam, for the appellants. _á. Denis, for the' defendants.-
   The opinion of the' court was pronounced by

Ring,- J.

In 1816; Francis D. Newcomb Was confirmed in'the' tutorship1 of his minor children, the issue of his first marriage,- of who nr the plaintift',Mary W. Newcomb, was one. The'estate of the minors, of which he acquired the administration in- virtue of the tutorship, was ascertained and- fixed by a decree of the Probate Court. Previous to his confirmation he' purchased at the' probate sale of Guy Ditplarelicr’s succession, a plantation,-with two hundred and twenty-five shares of the capital'stock of the Union Bank of Louisiana,secured by a mortgage on the property purchased. The' plantation and stock-were subject to a further mortgage in favor of the bank to secure’ the sum of $10',-125s, the residue of a stock loan made to Duplmlier. The adjudication- toNewcomb' was for the' price of $14,950''; and, by the' terms of the' snle he as-^ sumed these mortgages, and the payment of the stock loan.- For the residue of the' price, $4,825, a mortgage was retained in favor of the succession.- In Í839,-Newcomb obtained a loan from-the Union Bank, and, to seeure its- repayment,mortgaged- this plantation, and pledged the two hundred and twen-ty-five shares-of slock.- The widow of Guy Dssplantier intervened in the' act, as administratrix-of her husband’s succession, and tutrix of her minor children,- and postponed the-mortgage'retained in favor of the estate, giving'precedence and priority overit to that granted by Newcomb to the bank, to secu-rb'the loan-' on that day made1 to hiur. In- 1846Í the Union Bank obtained an order for the" seizure' and sale of the plantation and two hundred and twenty-five’ shares of stock,under the mortgage granted in-1839, to secure the loan made to- Newcomb, in’ vii’tae'of which the property seized was adjudicated to the bank, at the second' exposure, for $7,G70!, and two twelve-months’ bonds, amounting collectively to1 that sum, were given by the purchaser. In the sheriffs deed the special mortgages with which theproperty was encumbered are recited, in the order of their dates. The tWo first Were'to secure the stock. These, it is conceded on both sides, inay be left out of view, the stock being at a premium. The third was a mortgage in favor of the Union Bank to secure the payment of $7,825, to which sum the stock loan had been reduced ; and the fourth, the mortgage under which the seizure' and sale were made. The sheriff proceeds in his deed to say : “ and having frequently cried said property to the highest bidder, the Union Bank of Louisiana, by her agent, Arthur Denis, Esq., became the purchaser for the price of $7,670, on the terms and conditions- above mentioned, and subject to the mortgages above specified'.”

Immediately after executory proceedings were commenced b’y the’bank, the plaintiff, Mary W. Newcomb,.instituted this suit, the object of which was to regulate the effects of- the seizure. After stating the foundation of-her claim, she’ averred that the mortgage granted to secure‘the original stock Iban was the only mortgage entitled to preference over that existing in her favor; that the effect of the act of 1839; in which Mrs: Duplantier intervened, Was to raiser the v'Un dor’s mortgage retained by the estate which she administered, Whereupon that in favor of the minor children of Neuxomb instantly attached, and acquired precedence over all other mortgages upon the land. She prayed that the proceeds of the sale should be applied in satisfaction of her- demand, after paying the bank the sum remaining due upon the original stock loan, The under-tutor and tutor of the plaintiff’s minor co-heirs-also intervened in the proceedings; adopting the allegations of the pláintiífs petition, and uniting in a similar prayer.'. There was a judgment for the defendants in-the court below, and the plaintiff and intervenors have appealed!

A number of serious questions have been presented in the pleadings, and in: the printed arguments submitted by counsel, but th'e most important to the decision of the cause is, to determine the true amount for which the property was* adjudicated-tb the bank at the sheriff’s sale. The plaintiff contends that, having' been sold subj.ect to the previous mortgage in favor of the bank for $7,875, that' sum is to be added to the defendants’ bid, and that the price of adjudication was thus $15,546, instead of $7,670.

When a mortgage or privifege-exists-on- the property offered for sale un'de'! execution, the sheriffis required to give notice thafthe property is sold subject to all'privileges and hypothecations with which it" may be bu'rthened, and the purchaser is required to pay to the sheriff only the excess of the price over the privileges and special'mortgages. Art. 679. The recital then by the sheriff-' in his deed, that the property was sold, “ subject to the mortgages specified,” added nothing to the consequences which the- law attaches to adjudications', made by sheriff^, nor to the obligations which it imposed upon the purchaser.' If the clause had been omitted altogether, the'law would have supplied it, and' the obligations and rights of the purchaser would stilt have remained the same;. A sale under execution may no doubt be made for a' sum fixed, and for the additional amount of previous mortgages ; but unless' such appears distinctly to. be the terms upon'which the property was offered,, the purchaser will not be presumed to have given more'than the-precise sum bid. There is no statement in the sheriff’s deed that the adjudication was for- a sum- over and above the special mortgages, nor does' the return refer to any other price than the sums for which the twelve-months’ bonds were" given. In the- case of Rowly v. Rowly, 19 La. 576, relied on by the appellants, the property was adjudicated subject to the payment of the mortgages specified.. The court held, under the-.evidence in that case, that a certain special mortgage had been assumed :by the purchaser, and that its amount was to be added to the price bid. In the ¡present instance, we find no terms used in the sheriff’s deed or return, which ¡indicate ¡that the property was offered upon any other conditions than those ¡required by law, and which are usual at sheriff’s sales; nor is any fact disclosed by the evidence ¡tending to the conclusion that the purchaser would'be required to assume, or that he did assume, the mortgage,;in addition to the sum bid. See case of Balfour v. Chew, 4 Mart. N. S. pp. 154 and 162 to 165. We consider that the adjudication was for a fixed sum, and that the purchaser ,is .bound for nothing beyond the sum'bid.

It is next urged that, if the amount of the first mortgage be not added to the bid, then the sum for which the property was adjudicated falls short of the previous special encumbrances, and that there was no sale. This does not follow as a necessary consequence, when the previous special mortgage exists in favor of the judgment creditor-. An adjudication .for a sum less than the amount of the privileges and previous special mortgages is only prohibited, whemthose encumbrancesare owned by other persons than the judgment creditor. C. P. arts. 682, 684. This provision of law is established in the ¡interest and forthe protection o.f the claims entitled to these preferences, and when the judgmenfrcreditor is himself the owner of the previous incumbrances, as is the case in the present instance, and appears at the sale and assents ,to the adjudication, no other party can complain of the insufficiency of the price. The evidence shows that, although there appeared by the mortgage certificate to be a special mortgage inscribed in favor of .the bank for $7,875, the debt had been reduced by payments, and that there actually remained due, at the date of the sale, only $5,062 '50. There was thus in reality an excess of price over the .amount .of the previous mortgage-

We conclude that the sale is valid, ft remains-to determine how the proceeds are to be applied. As regards the precedence to which .the mortgage for .the original stock-loan is entitled, there is no contest. This elaim, with interest up to the date of the sale, is to be first .paid. After its extinction there still remains a surplus. This residue, it is urged, should be -applied to the claim of the plaintiff and intervenors, whose mortgage, it is .contended, attached and acquired precedence over the second mortgage granted by Newcomb to the bank, in consequence.of the postponement made-by Mrs. Buplantier. This claim is based upon the hypothesis that Mrs. Buplantier released her mortgage, an assumption that is not supported by the terms cf the ¡act. Mrs. Buplantier did not cancel .her mortgage, .but merely .gave precedence and priority to that of the bank. The mortgage in favor of Buplantier's succession has never ceased for .a moment to be in full force, but the advantages of its rank, as far as relates to the parties to the present controversy., enure to the bank. The validity of that act cannot be contested by the plaintiff. The only parties by whom it could be .questioned are not before the court. The surplus of the price after paying the original stock-loan is lessthan the amount -of the postponed mortgage, and the entire sums must be applied to the second mortgage of the defendants.

The conclusions at which we have arrived upon these points, render it unnecessary .to consider others which have been urged by the counsel on both ¡sides. Judgment affirmed,.

       Eustis, fh J., boing interested, did not sit in this case.


author: Rost, J,

text:
    Littlejohn et al. v. Wilcox et al.
    Where one by whom an attachment had been sued out abandons the case, under circumstances which show that in instituting the suit be was ijot acting in good faith, the defendant may recover from Rim, in an actioaou the.attachment bond, fe.es of counsel paid to defend the attachment.
    Appeal from the Fourth District Court of N.ew Orle.ans, Strawbridge, J.

      T. A. Clarke, for the appellants,
    ¡sited 3 La. J.03, 391. 2 Rob. 318. 9 Rob. 91.

      Josephs, for the defendants,
   The judgment of the .court was pro-Bounced by

Rost, J,

This is an action brought by the plaintiffs, upon an attachment bond, executed by the defendants as principal and surety. They .claim $380 .82, as damages sustained in consequence of the .attachment. The .court below gave judgment in their favor for $95, and they appeajed.

It appears that, iu 1842, Jacob Wilcox instituted a suit against the plaintiffs in the State of Tennessee, uponabi.ll of exchange, and that this suit was finally decided in favor of the defendants by the Supreme ¡Court of that State. In 1845, Jacob Wilcox instituted in this city a sujtby attachment against the plaintiffs on the same bill of exchange, and gaye the bend upon which this action is based. After the .attachment, he often told one of the garnishees, that lie did .not wish .to interfere in .the business of Littlejohn., but that he wanted to try the question. He did not, however, try the question. When the case came on for trial neither he nor his .counsel, attended, and his petition was dismissed.

Suitors who try experiments, without hope .of success, and who do not pro.,secute them, must take the consequences. They .cannot be considered in good faith, and the rule of damages applicable to them is peculiar. We think the su.m allowed by the .court below for the loss on the cotton, not .sufficiently proyed j but we ar,e also of opinion that, under the facts .of the ease, the fees paid by the plaintiffs to their counsel to defend the attachment should have been allowed. The judgment must be amended accordingly.

The objections made by the defendant’s counsel to the introduction .of the .evidence of Wright, Connolly, and jDurant, were properly overruled. It went to •the effect, not to the admissibility of the testimony.

It is therefore ordered that the judgment in this case be .amended, and that •the plaintiffs recover from the defendants in solido., the sum .of $175 7.5, with ¡costs in both courts.

      Sjadell, X, having been of counsel, not sit in tins case.»


author: Eustis, C. J.

text:
    Arsene v. Pigneguy.
    A slave voluntarily taken by her owner to a country in which slavery is prohibited, and there kept in his service for two years, will be thereby emancipated. The fact of the mas.•ter s not having acquired a domicil in the country to which the slave was removed, will not prevent her emancipation. Per Cvriam: The personal condition of those thrown on foreign •coasts by shipwreck, or taking refuge from pirates, or driven by some overwhelming necessity, or perhaps those passing through a foreign territory on a lawful journey, may remain unchanged; hut this is the extent to which an immunity lrom the .foreign law can he maintained under the law of nations.
    One who succeeds in establishing her right to freedom against a person by whom she is held in slavery, will be entitled to recover wages from judicial demand.
    Appeal from the First District Court of New Orleans, McHenry, J_.

      David, for the plaintiff. Roselius, for the appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiff claims her freedom on the ground that, being the slave of the defendant, L. A. Piniguy, she was taken from New Orleans., the domicil of her master, to France, where she remained in the service of his family for the space of two years, in 1836, 1837, and 1838, and afterwards re.,turned to New Orleans.

In the cases which we hav.e had .before us of slaves claiming their freedom by ¡reason of having been taken .to places where the condition of slavery did not exist, the owners had acquired,a domicil in those places.,and there was no question as to the operation and .effect of the laws there upon the status, or personal condition, of the parties.. See Josephine v. Poultney, 1 Annual Rep. 329. Eugenie v. Preval et al., ante 180. It is contended that this .case doe.s not .come within the principle of those .cases, inasmuch as the defendant .acquired no .domicil i.n France., .as his absence from Louisiana was but temporary, where his property remained¡and his .business continued, .and he never lost his original residence.

We consider that,the jurisprudence ol this State has settled .this question, whichhas been more than once the subject of discussion. We cannot expect that foreign nations will .consent to .the suspension of the operation'of their fundamental laws, as to persons voluntarily sojourning within their jurisdiction for ,such a length uf time. As to those .thrown on foreign coasts by shipwreck, taking refuge from pirates., driven by some overwhelming necessity, or perhaps ¡those passing through a foreign territory on a lawful journey, their personal condition may remain unchanged; but this is the extent to which an immunity from the .effect of the foreign law could be maintained under the laws of nations. Marie Louise v. Marot, 9 La. 474. Priscilla v. Smith, 13 La. 444. Story, Conflict of Laws, § 96 et seq. 2 Kent’s Com. p. 458, s. 39. We have met with no .case in which a contrary doctrine is held. The case of the United States v. The Garonne, is supposed to support it; but an examination .of it will .satisfy any one, that the decision in that.case does not reach that under Consideration. Vide 11 Peters, 73. In the case of the slave Grace, 2 Haggard’s Rep. :94, she had not been taken out of the realm, but from one of .the islands to England, within the same imperial jurisdiction.

The plaintiff became free by remaining two years in France, ¡and her former ¡master ceased to have authority or dominion over her.

We think the plaintiff is entitled to wages from the judicial demand.

The judgment of the. District Court releasing the plaintiff from the dominion pf the defendant is therefore affirmed; and it is further ordered, that the plaintiff ¡recover from the defendant, L. A. Pigneguy, the sum of $8 per month from fhe hth of November, 1846, with cos.ts in both courts.


text:
    McIlvaine et al. v. Franklin.
    *In an action to render a defendant liable for goods sold to a partnership of which it is alleged •.that he was a member, another partner is incompetent .as a witness ior the plaintiff, to prove the partnership. The witness is interested,to charge the defendant.
    'Where interrogatories to be propounded to a witness under a commission are submitted to the opposite party, and the.latter propounds no cross-interrogatories, but writes at the foot ,of the plaintiff's interrogatories “ legal objections reserved,” the reservation will authorise an objection afterwards to the admissibility of the-evidence-on the ground of interest in the witness.
    APPEAL from the ¡Fourth District Court of New Orleans, Strawbridge, J.

      Stockton and Steele, for the appellants,
    contended that any objection to the witness examined under commission, on the ground of interest, should have been made when .the interrogatories were in the hands of the party for the purpose of preparing hjs cross-interrogatories, citing 3 Rob. 275; 11 Rob. 467.

      Stewart, for the defendant.
    In no case ,can a1 partner prove a partnership. Even if allowed to prove a debt due by the firm, he cannot prove. that others composed the partnership. It would be a.clear case of interest. The partnership must be established aliunde. Phillips on Evid. Cow. & Hill's notes, vol. 3, pp. 1520, 1521. Ib. vol. 2, pp. Ill, 172,173. Greenleaf Ev. § 177, 356.
   The judgment of tb© court was pronounced ¡by

Slidell, J.

The plaintiffs allege that the defendant was a member of the commercial firm of Franklin 8f Routh, and as such liable to them, in solido, for the price of certain merchandise sold in Kentucky to the partnership, acting by Routh on its account. At the trial of the icause the testimony of Routh was offered in evidence, topro.ve the sale of the merchandise to Routh, in Routh’s name, the existence of the partnership, that the purchase was made for the use of the partnership, and that the partnership received .and used the goods. The defendant excepted to the competency of Routh to prove the partnership; and the court below rejected so much of the testimony as went to prove the existence of the partnership. Without the testimony of Routh there is no evidence of the existence of the partnership. A judgment of nomsuit was rendered.

We think the court below did not err in sustaining the exception. It was the interest of .the witness to charge the defendant in this suit, by testifying in favor of the party calling him. The point is one which has been much discussed, but the weight of authority is against the competency. See the cases of Marquand v. Webb, 16 Johnson, 89. Columbian Manufac. Co.v. Dutch, 13 Pick. 128. Purviance v. Dryden, 3 Sug. & Rawle, 402. 2 De Saussure, 43. The doctrine is not peculiar to american courts, but is supported by the english authorities.

It is said by the plaintiffs that the defendant had lost the right of excepting at the trial to the testimony of Routh, because he did not make the specific objection when the intei'rogatories were served upon him, preparatory to the execution of the commission. The defendant declined propounding cross-interrogatories, writing at the foot of plaintiff’s interrogatories “ legal objections reserved.” We deem this reservation sufficient to authorise the specific exception at the trial. Such, we believe, has been the general understanding of the bar; and we are not aware of any provision in the Code of Practice, nor of any authority, to the contrary. Judgment affirmed.

       JSustis, C. J„ did not sit In this case, having been of counsel.


author: Rost, J.

text:
    Auguste v. Trudeau.
    A great-grandmother caimot'be'tatrix Sfher great-grandehild. Women; except the'mother' and grandmother, are exeluded-ftom the tutorship.
    Appeal from the' District Court of J'effersou, Clarke, J.

      Hubert and’ Grailhe, for the appellant. Conrad and Dugué, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

This purports ito' be an action instituted to á'nniíl a judgment ap-pointing the great-grandmother of a minor her tutrix, on the ground that women,except the mother' and grandmother, are excluded from the tutorship by art.-322 of the Civil Code.

There is no doubt of the exclusion. But as the judgment sought to be annulled was not introduced in evidence, the court below had nothing to act upon. It is not found in the record ; we know neither its contents nor its date, and"can make no order in relation' to it. We would reverse' the judgment and dismiss the petition, but for the possibility that the interests of the' minor might be pre“ judiced by such a course.

It is therefore ordered, that' the judgment in this case Be reversed, and the case remanded for further proceedings; the defendant and appellee paying the' costs of this appeal.


author: King,- J.

text:
    Brown v. Hughes et al.
    A partnership fo caiiy On thé'husiness of ship carpenters, is-an-ordinary partnership j-find the’ members are liable jointly only, and not in solido.

    Appeal from the Fifth District Court of New Orleans, Buchanan, J.

      Peyton and I. IV. Smith, for the plaintiff. Hornor, for the appellants.
   The judgment of the court was pronounced by

King,- J.

The defendants have appealed from a judgment rendered against them on an open account. They contend that the district judge erred in rendering a judgment in solido against them, their liability being only joint; and in refusing to issue an attachment to enforce the appearance of Stockton, one of the defendants, who was summoned as a Witness-in the cause.

The defendants were associated together as ship carpenters; this was an ordinary partnership,- and their liability was joint. A judgment in sólido is prayed for in the petition-. The decree' does not, in express terms, condemn the defendants in solido, but, construed with reference to th'e pleadings,- may he considered and enforced as a joint and several judgment. Heath et al. v. Howell & Johnson, 15 La. 139. In this respect the judgment must be amended.

The judge did not, in our opinion, err'in refusing the attachment to enforce the appearance of Stockton, one of the defendants, as a-witness.- He was clearly incompetent to testify. Assuming the facts- stated in the bill of exceptions to be true, that the partnership between the defendants- had been dissolved previous to the trial of the cause, and that Hughes had assumed all- the obligations of the partnership, and granted a full discharge and release to Stockton, -still this contract, to which the plaintiff was no party, did not impair his recourse against Stockton. Stockton continued to be a joint debtor of the plaintiff, and a real party defendant in the cause ; as such- he could not be called as a witness by liis co-defendant. We think that the sum awarded to the plaintiff by the court below is fully supported by the testimony.

The judgment of the district judge is therefore so amended, as to render the defendants liable jointly and notm solido, for the payment of the same; the appellee paying the easts of this appeal.


author: Eustis, C.- J.

text:
    Thompson v. Packwood.

      A factor cannot be' deprived of bis commissions by tbo wilful act of bis principal. Tbe execution of a contract of agency, the obligations of which are mutual, cannot be placed entirely at tbe option of tbe principal.
    Ilian action by a factor against bis principal for compensation, evidence is admissible on tbe part of plaintiff to establish a custom among merchants alleged in tbe petition. Per Curiam : As afact/it was competent to piaintiffto establish tbe custom; its effect, is a different matter. It may well be supposed- that the parties contracted with reference to the usual course of the business, which was the subject of their agreement.
    It is within tbe discretion of the judge who tries a case, to determine whether the trial shall be delayed until a bill of exceptions can be drawn up and signed. Per Curiam: All that the party who exceptabas aright to require on the trial is, that tbe point reserved, or' decision excepted to,- be reduced to writing by tbe court, and that a bill of exceptions may be drawn up and signed afterwards. C. 3?. 488,489.
    Appeal from the Fourth District Court of New Orleans,- Slrawhridgc, J.

      Benjamin and Micou, for the plaintiff. A. Hennen, for the appellant.
   The judgment of the court was pronounced by

Eustis, C.- J.

The plaintiff, a merchant in New Orleans, had been the factor ef the defendant and his son, owners of a large sugar plantation in the parish- of Plaquemines, had made advances, furnished supplies, and disposed of the crop. On- the defendant’s becoming the sole owner, he continued the plaintiff in his agency, in the spring of 1846-; and, on leaving Louisiana during the summer,entrusted him- with the general superintendence of his plantation, which implied responsible and important duties on the part of the agent, which appear to haver been performed- in a proper manner. It appears that, on the return of the defendant, in October following, the plaintiff was in advanee for the sum of $2,90ft the defendant took his business from him, and this suit is for a commission of 2h per cent on the crop made on the plantation, which the plaintiff would have-been entitled to had the agency not been terminated by the defendant.

We agree in-the opinion of the district judge who tried this case, that the testimony and letters of the defendant establish a contract, which excludes-the conclusion that the plaintiff’s compensation for his labor and trouble was-to be limited to a commission- of 2¿ per cent on his adva-nees, and which was, according to the true intent and meaning of the parties, a continuance of the agency which had previously existed, for which the plaintiff Was to- be paid by the commission on the sale of the crop, according to the usual course of business as proved by the testimony of several witnesses.

It would be manifestly unjust to deprive a factor of his commission by the wilful act of the principal, and to place entirely at his option the execution of a contract the obligations of which are mutual. Russell on Factors, 164. On the merits there is no defence whatever. There are several bills of exceptions which will be noticed.

1. There is one to the exclusion of certain evidence offered by the defendant. We think the evidence was inadmissible under the pleadings, and that the judge did not err in excluding it.

2. The defendant took a bill of exceptions to the testimony of witnesses proving the custom among merchants, as stated in the petition, on the ground that said custom was illegal. The only portion of the evidence on this subject which has any bearing in this case is, that which establishes the.custom of the trade between the planter and factor. This, as a fact, it was competent for the plaintiff to establish; as to its effect as a custom, it is a different question, not necessary for us to determine. It may well be supposed that the parties contracted, with reference to the usual course of the business which was the subject of their agreement.

3. A third bill of exceptions was taken to the opinion and course of proceeding of the district judge, who refused to delay the trial of the cause for the purpose of having a bill of exceptions taken by the counsel for the defendant drawn up and signed. The judge desired the counsel to note the exception, and informed him that the court would do the same; and that the bill of exceptions might be extended afterwards.

There roust be a power somewhere to control the proceedings in the trial of a cause. The practice is so well understood, and so generally acquiesced in, that questions of this kind are rai'ely raised. If the trial of a cause is to be delayed until every bill of exceptions is formally written out and signed by th© judge, it is obvious that it may be protracted to an unreasonable length. In trials by jury this would be a most serious impediment in the administration of justice, and, in the hands of an unscrupulous litigant, the means of defeating it. We think matters of this kind are necessarily within the discretion of the judge who tries the cause, and that all the party excepting, to the opinion of the court has a right to require on the trial of a cause is, that the poi.it reserved, or decision excepted to, be reduced to writing by the court, and that the bill of exceptions may be drawn up and signed afterwards. Code of Practice, arts. 488, 489. Tidd’s Practice, 788. Dean v. Gridley, 10 Wendell’s Rep. 254. We think that the judge did not err in refusing to delay the trial and sign the bill of exceptions, as requested by the counsellor the defendant.

Judgment affirmed.


text:
    Pahnvitz v. Fassman.
    Tlic granting of new trial's rests in the discretion of the courts of the first instance ; and the Supreme Court will not attempt to control it hut in very clear cases.
    Whore an application for a new trial rests on the ground of newly discovered evidence, the party must make his vigilance apparent; if it be left in doubt, his application must fail.
    Appeal from the Fifth District Court of New Orleans, Buchanan, J.

      C. Janin, for the appellant. W. II. Hunt, for the defendant,
    contended •that the judgment .below was correct, and the new trial .properly refused, citing 18 La. 535. 1 Rob. 93. Graham on New Trials, 473, 485.
   The judgment of the court was pronounced by

Rost, J.

This is an action of redhibition. The plaintiff seeks to annul the sale of a female slave made to him by the defendant, on the ground thatthe said slave was addicted to running away before he purchased her. The defendant pleaded the general issue, and called his vendor in warranty. Many witnesses were examined on both sides, in relation to the redhibitory vice alleged; and the plaintiff has appealed from .the judgment rendered against him on the evidence. The case turns exclusively-upon a question of fact, and the evidence in the record fully justifies-the conclusionUo which the judge came.

The appellant’s counsel has called our attention to a motion made by him for a new trial, and supported by the affidavit of his client, “ that since the trial of the cause, and even since judgment was rendered, he had discovered important evidence which he could not obtain before, although he had used every effort and diligence in liis power.” T-wo of the- witnesses mentioned in the affidavit reside in the city of New Orleans, and the other in the adjoining city of Lafayette..

The judge of the court below, considering it strange that the plaintiff should have discovered .all-this additional evidence within three days after the judgment, and that all his efforts and diligence should not have enabled Mm to discover it- in the fourteen- months which elapsed from the institution of the suit until the trial of it, was of opinion that proper diligence bad not been used,, and'refused the new trial.

The granting of new trials rests within the discretion of the judge of the first instance, and. the Supreme Court has not been in the habit of controlling, that discretion in any-but very-olear cases. When the application rests on the ground of newiy discovered evidence, “the party must make Ms vigilance apparent, for if-it is left even doubtful that he knew of the evidence, or that he might, -but for negligence, have known and produced it, he cannot succeed in his-application. Graham on New Trials, 473. Bonnet v. Legras, 1. Rob. 93. 18 La. 535. The vigilance of. the appellant in this case is inore than doubtful, and-w-e cannot interfere- Judgment affirmed.


author: King, J.

text:
    Bach v. Slidell.
    Where, after a judgment ordering one of the parties to convey tb* the other one-third of tlie“ land which may he found to be contained within the limits of a confirmed laud claim, the parties sign an agreement stipulating “that a survey shall be made by B., so as to cut off' from the upper portion of the land the one-third thereof which', on the survey, may be found to he contained within the limits of the confirmed claim, &c., which survey, without further formality, shall servers the basis of the conveyance'whioh the defendant has been adjudg-ed to make to the plaintiff,” the parties will not be considered as having hound themselves to abide by any survey which B. might make, though it it should be erroneous.
    Appeal from the Fifth District Court of New Orleans, Buchanan, J.

      R. IV., and A. N. Ogden, for the appellant. T. A. Clarice, for the defend»ant.
   The judgment of the court was pronounced by

King, J.

After the decree lately rendered by this court in this case (1 An. Rep. 375.) was returned to the lower court for execution, the parties entered into the following agreement:

“ It is agreed that a survey shall'bo made by Benjamin Buisson, so-as to cut off from the upper portion of the‘land patented to defendant the one-third thereof, which, on the survey may be found to be contained within the limits of the claim numbered 38, as confirmed to P.A.Delachaise, George Legendre, Seaman and James H. Field, John M. Bach, John Lewis Drouel, the heirs of JohnMuchon, and Jerome Toledano, by act of Congress, July 6th, 1842, which survey, without further formality, shall serve as the basis of the conveyance which the defendant has been adjudged to make to the -plaintiff, by the decree.of.the Supreme Court in the above mentioned case.

(Signed) -“ John M.-Baoh,

•“ John Slidell.”

Buisson, .the surveyor selected by -the .parties, proceeded to-make a survey, and return a plat exhibiting the result of his operations, in.which he represented the portion of the confirmed claim No. 38, included in the.entry of the defendant, to be sixty-seven arpents. The plaintiff objected to this survey as being erroneous, and the parties being unable to.agree upon.the quantity and bound..aries of the land to be divided between them, the plaintiff took, a rule upon the defendant to show cause why the survey made by.the United :States should not be taken as the.hasisof the.conveyance to be made by Slidell, or a,new survey be made under.the order of the court, for .the purpose of ascertaining the quantity and fixing the limits of the.land to be conveyed. To this rule the.defendant .answered .that, by the agreement between himself and Bach, a-survey had been made, which was definitive between the parties, and that, in,conformity therewith, he had tendered a conveyance to Bach. After.the alleged error had been discovered, an order was entered up in the court below, on the motion of Bach, -taxing, as costs to be paid by the defendant, $50, for .the se-rvices.of Buisson, in .making the survey and plan. The judge below considered .that the survey had been made according to the actual possession of the proprietors of the confirmed .claim, and that Bach had precluded,himself from contesting its,correctness by .his application to tax the costs of the survey to the defendant, and discharged .the rule. From this judgment the plaintiff has appealed.

The defendant contends that by the.agreement, the survey of Buisson was to be.final and conclusive upon the parties, and,form the 'basis of the transfer, without further formality. We find .nothing in the terms of the agreement which made it imperative upon the parties to abide by any survey that Buisson might make, although it should be erroneous. Such an interpretation cannot be given .to the expressions “ -which survey, without further formality, shall serve as the ■basis of the conveyance, The formalities referred to, and which were to .be dispensed with, we understand to be those which, in the absence of an agreement, the parties .would have been compelled to observe, before the survey could have been effective between them, such as an application .to the court far an order to issue to the parish surveyor, the returning of the survey when completed into court, and its approval by the judge after notice to the parties. The .language of the contract does not, in our opinion, authorise .the conclusion, that the parties were to be precluded from correcting the operations of.the surveyor, in the event of their being erroneous. The case of Talcott v. McKibben, 2 Mart. 298, does not support the position assumed by thedefendant’s counsel. There the parties agreed to submit their matters of difference to five persons, whose report was to b.e made the judgment of the court. The court held that the parties had selected their own judges, and refused to alter the report.

Nor do we think that the motion of the plaintiff to tax his adversary with the costs of the survey alleged to be erroneous, can be considered, under the evidence, an .affirmance of that survey. It is shown that, immediately upon its .'being discovered that the quantity of land to be conveyed was less than the plaintiff supposed himself to be .entitled to, he objected to the survey, and has ever since steadily persisted in asserting it to be incorrect.

We think it is .conclusively established that the survey is erroneous. An extract from the township map shows the quantity of land to be divided, according to the United States survey, to be 103 8-100 acres. The plat annexed to the application for confirmation represents the quantity tobe 92 arpents and a fraction, and 'the survey of Buisson makes it 62 arpents. It is manifest that there mustbe error in some oftbe measurements. Buisson, in his testimony states, that his survey was made without reference to the titles, and that, from information since obtained, he is satisfied that it is incorrect. His only guide appears to have been the .enclosures of Mrs. Delachaise, which he had not previously ascertained to be in accordance with the lines of the confirmed claim. We also think that the survey of Zimpel, of which the plat accompanying the application for confirmation is .a .copy, is incorrect. But we are not informed by this witness, nor by other testimony in the record, what are the true boundaries or quantity ,of the land in controversy. It was the duty of the parish surveyor to have ascertained the upper and lower boundaries of the confirmed claim, No. 38, and to have .extended the side lines, which converge, until they met, or were intersected by the lines of .a superior title. In ascertaining the true boundaries of the tract, if they were not admitted, he should have had recourse to the titles, C. C. arts. 839, 841. No one of the plats before us is sufficiently free from .objection to .enable us to adopt it as the basis of the transfer to be made by the .defendant, with the prospect of doing justice between the parties.

It is therefore .ordered that the judgment of the District Court be reversed, and that the cause b.e remanded, with instructions to the district judge to direct a survey of the land in .controversy to be made according to law, for the purpose ,of ascertaining the quantity, and fixing the limits, of the portion to be conveyed by the defendant to the plaintiff, under the decree heretofore rendered in this cause by this .court; the appellee paying the costs of this appeal.

       Slidell, J., recused himself, on account of relationship to one of the parties.


text:
    Gibson v. Selby.

      A judge is not incompetent to grant an order of appeal in consequence of being a party to the, case. A recusation could alone render him incompetent.
    Where a judge is unwilling to act ou an application for an appeal from a judgment rendered against him personally, he should recuse himself; and the recusation should be in writing, to enable tlie judge of an adjoining district to act in his place.
    'The inability or omission of a party to furnish a bond and fulfil the condition precedent upon which .a suspensive .appeal was granted, will not preclude him from applying within the year for a devolutive appeal, on the ground of his having abandoned a previous appeal. The jurisdiction of the Supreme Court attaches only when the bond is filed.
    Consent of parties cannot dispense with the necessity of an order allowing an appeal. Per Curiam: The jurisdiction of the appellate court attaches only after a judicial order, divesting, when its terms are complied with, the jurisdiction of the inferior tribunal.
    EULE on the Judge of the District Court of Carroll, in the Tenth Judicial District, to show cause why a mandamus should not be issued, commanding him to allow a devolutive appeal to the plaintiff, in an action against the judge individually.

      Bonford for the rule. Thomas, for the defendant.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff applied to this court for a rule upon the Hon. Leiois Selby, judge of the Tenth District Court in and for the parish of Carroll, to show cause why a peremptory mandamus should not issue, commanding him to grant an order for a devolutive appeal. The plaintiff accompanied his application with affidavits showing that both he and his counsel had presented a petition,of appeal to the judge, who refused to grant the order of appeal, or to recuse himself by a written recusation. The judge was, in his individual capacity, the defendant in the suit in which the appeal was prayed for. The judgment had been rendered by his predecessor in office. It also appeared by a certificate of the Hon. Thomas H. Farrar, judge of the Ninth Judicial District, that the petition of appeal had been presented to him, and that he refused to grantthe appeal, unless the .case were referred to him in writing by the judge of the Tenth District. Upon the above application this court granted the rule to show cause, and the judge of the Tenth District has answered in writing.

The first ground taken in reply by the judge is, that “ he is a party defendant in the judgment from which Gibson claims to exercise the right of appeal, and that, as such, he is incompetent to make any order in the case, except one re.cusing himself, should such recusation he necessary to the exercise of any legal •right therein by the plaintiff. No such recusation was required of him, to enable the plaintiff, if entitled thereto, to obtain an order of appeal from a neighboring judge. An .appeal would have been granted in the case of right, and as .a matter of .course, by a neighboring judge, on the presentation to him of a petition alleging that the presiding judge was a party defendant therein, without an order of recusation by him.”

The judge vyas not absolutely incompetent to grant the order of appeal, by reason .of the fact that he was a party to the judgment from which .an appeal was desired. A recusation was necessary to render him incompetent. That recusation could be made by the plaintiff, or it could be made by the judgeproprio motu. See Code of Practice, articles 337, 340. The plaintiff did not recuse the judge. On the contrary, he requested him to act and grant the order. He was willing, and desired, that the judge should act. If the judge was unwilling to act, his course was clear; he should have recused himself— •the alternative presented by the plaintiff, and have declared so officially and in writing. This recusation would have enabled .the judge of the adjoining district to act. In its absence the latter judge could not act; he was without jurisdiction, nor could he undertake to declare the judge of the Tenth District incompetent, for, as we have seen, the incompetency was not absolute; it could flow only from a recusation ; and until recusation judicially certified, the •capacity and jurisdiction .of the judge of the Tenth District over the cause was not divested.

'The next ground taken in the answer of the district judge is that, the plaintiff is not entitled to an order of appeal, because the judgment in this cause was rendered on the ,13th April, .1846; that on the 18th of that month the predecessor of the defendant granted, on motion in open court, under the act of .1843, an order for a suspensive appeal, returnable in January, 1847, which appeal the plaintiff, not having filed the transcript, is to be considered as having abandoned; and that, .under article 587 of the Code of Practice, he is.not entitled to.apew order .for an appeal in devolutive form. It is true, as argued by the defendant in rule, that the motion.for an appeal is to be considered, under the act of .1843, as operating a citation; but it is to be observed that, in this case, no appeal bond was .filed. The filing of a bond was a condition precedent without which the appeal was inchoate only, and the case therefore does not come within the rule of .abandonment, as,expressed in the 594th art. of the Code of Practice. The inability, or the omission, of the plaintiff, to furnish a bond and fulfil the-condition precedent upon which a suspensive appeal was granted, did not preclude the party from applying within the year for a devolutive appeal. The jurisdiction of .this .court attaches only when the bond is filed. See 7 La. 448. 1 Rob. 527. 10 Rob. 152. See also 3 Rob. 78.

The third ground presented by the answer is, that the defendant in the rule offered to the parties, as he alleges, ■“ to waive .an order of appeal on the transcript of the record, if they would present to him a correct one, which they declined doing.” This offer must be considered as made by the defendant in his individual, and not in Ifis official, character. Assuming such offer to have been made, the plaintiff was not bound to accept it. Such an agreement, if made, would not have been binding. The jurisdiction of the appellate co.urt attaches only by a judicial order divesting, where its condition is .complied with, tlie jurisdiction of the inferior tribunal, apd cannot ’be given by consent of parties'.

It is therefore ordered that a peremptory mandamus .issue, commanding the Hon. Lewis Selby, judge of the Tenth Judicial District, to grant and sign an order for a devolutive appeal, as applied foy by the plaintiff.