text:
    Jean Webre v. Dominique Duroc.
    An alien who is sued in a State Court by a citizen of the State, may, by complying with the requirements of the Act of Congress of 1789, remove the case to the Circuit Court of the United States; but he cannot claim a dismissal of such suit.
    APPEAL from the District Court of the Parish of Lafourche, Roman, J.

      Bush, Beatty Attain, for plaintiff and appellant.
    P. Soulé and L. Charet, for defendant.
   Merrick, O. J.

This suit was commenced in the Fifth Judicial District Court for the Parish of Lafourche.

The plaintiff is a citizen of the United States, and the defendant is an alien. The suit is for over five hundred dollars.

Defendant appeared and filed an exception to the jurisdiction of the court, alleging himself to be a citizen of France, and averring that he was amenable to the jurisdiction of the Circuit Court of the United States, and praying that the suit be dismissed.

This appearance was filed May 14th, 1859. The exception was set for trial May 30th, 1859. On the 31st of May, defendant obtained leave to file a supplemental exception, alleging the plaintiff to be a citizen of the United States.

The exception was sustained, and the plaintiff’s suit dismissed. The plaintiff, after an ineffectual attempt to obtain a new trial, appealed.

The judgment of the lower court is erroneous.

An alien has the right to remove a case from the State Court to the Circuit Court of fhe United States, but not to claim a dismissal of such suit. And in order to remove his suit, he must comply with the requirements of the Act of Congress of 1789, chapter 20, ¡512. See Statutes at Large, vol. 1, p. 79. The section reads as follows, viz :

“ If a suit be commenced in any State Court against an alien, or by a citizen of the State in which the suit is brought, against a citizen of another State, and the matter in dispute exceeds the sum or value of five hundred dollars, exclusive of costs, to be made to appear to the satisfaction of the court, and the defendant shall, at the time of entering his appearance, in such State Court, file a petition for the removal of the cause for trial into the next Circuit Court to be held in the district where the suit is pending, or if in the Kentucky District, to the District Court next to be holden therein, and offer good and sufficient surety for his entering, on the first day of the session, copies of said process against Kim, and also for his there appearing and entering special bail in the cause, if special bail was originally requisite therein, it shall then be the duty of the State Court to accept the surety, and proceed no farther in the cause; and any bail that may have been originally taken, shall be discharged, and the said copies being' entered as aforesaid in such court of the United States, the cause shall then proceed in the same manner as if it had been brought there by original process. And any attachment of the goods and estate of the defendant by the original process shall hold the goods or estate so attached to answer the final judgment in the same manner as by the laws of such State they would have been holden to answer final judgment had it been rendered in the court in which the suit commenced.”

It is evident, that the filing of an exception to the jurisdiction of the court, and demanding a dismissal of the action, is not a compliance with this law. The defendant, on making his appearance, presented no petition for the removal of the cause, and offered no surety for his entering the copies in the Circuit Court of the United States, on the first day of its session. On the contrary, he preferred to demand the judgment of the State Court on his exception, and thus the term of the Circuit Court has been lost.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed ; and it is further ordered, adjudged and decreed by the court, that the defendant’s exceptions be overruled, and that this cause be remanded for further proceedings according to law, the defendant paying the costs of the appeal.


source: Caselaw Access Project

author: Yoorhies, J.

license: Public Domain

text:
    Wm. Littlejohn v. P. L Cox.
    Article 693 C. C., giving to a proprietor whose lands are enclosed a right of way to the public road, through the estate of his neighbors, for the cultivation of his estate, docs not restrict tho right of tho owner of lands so situated to claim the servitude of passage only for planting purposes.
    Tiie purport of the law is more general, and its object is to enable the owner to enjoy his property in tho manner which he may deem the most profitable.
    In exercising this right of passage, tho road should be located in a place where it would bo least injurious to tho person on whose estate the passage is granted ; and at tho samo time proper regard should bo had to tho interests of the party claiming tho right of way.
    PPEAL from the District Court of the Parish of Assumption, Roman, J.

      Beatty tC Bush, for plaintiff.

      C. Belcher, for defendant and appellant.
   Yoorhies, J.

The object of this suit, on the part of the plaintiffs, is to connect with a public road two tracts of land belonging to them. Por this purpose» they claim a servitude of passage, or right of way, over the defendant’s estate.

The evidence shows, that the only public road situated iu that vicinity is the one running along Bayou Lafourche, and that the two tracts of land belonging to the plaintiff are cut off from all communication therewith. A survey has been made at the request of their counsel, made in open court; but the defendant moved to set aside the surveyor’s report, on the grounds, that he was not notified to be present, when the survey was to be made, — that the return day had expired when the report was filed by the surveyor, — and that tho survey is deficient in several respects. It appears that the defendant’s overseer, who was authorized to act in the premises, took an active part in the operations of the surveyor, and that it was at his request that one of the throe roads leading to the public highway was drawn by the surveyor. Indeed, he appears to have been authorized to tender this road to the defendant. The objection based upon the iact of the expiration of the return day before the filing of the report of the surveyor, is not fatal. And with regard to the insufficiency of the survey in several particulars, the objection goes to the effect, and not to the admissibility of the document.

There are in the record several bills of exceptions; but they need not be formally noticed, inasmuch as they are disposed of effectually in the reasons given in this opinion.

The first objection which the defendant raises on the merits against the plaintiff’s action is, that the right of way is not claimed for purposes of cultivation, but, on tho contrary, in order to haul wood from the two tracts in question to the latter’s sugar house on a plantation adjoining the former’s estate.

The Civil Code, Art. 695, says that, The proprietor, whose estate is enclosed, and who has no way to the public road, may claim the right of passage on the estate of his neighbors, for the cultivation of his estate (pour ¡’exploitation de leurs héritages) ; but he is bound to indemnify them in proportion to the damage he may occasion.” This Article, borrowed from the N. C., Art. 682, without the least change of phraseology, does not mean that the owner of lands so situated are entitled to the servitude of passage, only for planting purposes. The purport of the law is move general, and its object is to enable the owner to enjoy his property in the manner which he may deem the most profitable. In the ease at bar, it is unimportant whether the plaintiffs intend to cultivate cotton or cane on the lands which are enclosed within the limits of the defendant’s estate, or whether they will be content with the wood they may haul to the public highway. They are entitled- to connect these lands with a public road ; and the only question to be determined is the manner or mode of exercising the right of way.

In locating this road, that place should be selected, which is the least injurious to the person on whose estate the passage is granted. C. C. 696. Upon this subject, Toullier says :

“ Le propriétaire auquol le passage serait demandé, pourrait done s’en défendre, en prouvant que l’héritago d’un autre voisin présente un trajet moins long, quoique moins commode au demandeur. Dependant, si le trajet le plus court I’obligeait á des dépenses eonsidérables pour rendre le passage viable, il pourrait s’adresser á un autre voisin, dont la propriété offrirait un passage plus long, mais moins difficile. L’article 683 n’a point fait une regle inminable de donner le passage pour le trajet le plus court; c’est seulement la regle générale, dont il ne faut pas s ecarter sans de grands motifs. En un mot, l’article 683 du Code, qui veut que le passage soit régulié-rement pris du cóté ou le trajet est le plus court du fonds enclavé á la voie publique, ne présente pas une disposition absolue dont les juges ne puissent s’écarter, si cela leur parait convenable......Mais le passage doit étre flxé dans l’endroit le moins dommageable á celui sur lo fonds duquel il est accordé (684). Ce n’est point la commodité de celui qui le demande qu’il faut considérer.” (Yol. 3, No. 548.)

Pardessus is more explicit on this subject:

“ Il ne faut point ehercher en pared cas la commodité de celui qui lo demande : on ne doit s’oeeuper que de celle du voisin qui sera tenu de lo fournir, ot le prendre du cóté ou le trajet est moins long, jusqu’a un chemin public le plus prochainj ou jusqu’a une autre possession de celui á qui le passage est accordé; á moins que des considérations puissantes n’engagent a agir différemment, comme nous l’avons dit ei-dessus.” (Pardessus, p. 383, s. 220; Broussard v. Etié, 11 La. 400; Landry v. McCall, 3 An., 134; Miller v. Thompson, 3 An. 567.)

In determining the place where the right of way shall be exercised, the matter is not left entirely at the caprice or option of the party compelled to grant the servitude. At the same time that due regard will be paid to his interests, and even to his convenience in the premises, the court will keep in view the rights which the law intends to secure to the opposite party. The road awarded must be such a one. as will be serviceable, — one, of which he may derive the contemplated advantages of a forced expropriation. The defendants cannot exact that an extremely circuitous, impracticable and expensive route should be taken by the plaintiff, because it may happen to be less burdensome to the former.

In the cause under consideration, the question as to the location of the road is narrowed down to the alternative of adopting the one proposed by the defendant, or the one selected by the District Court. Upon a careful consideration of the evidence on this point, we have come to the conclusion that the location as made by the District Judge meets the law and equity of the case; but that the amount awarded to the defendant is not a full compensation for the damages incurred. It should be increased to the sum of §1500.

Before dismissing this subject, it is proper to remark; that it is only a right of way that the plaintiffs claim, and that the court below awarded ; and in no event will the plaintiffs be allowed to pervert this servitude of passage into one of drainage for the use of their plantation. The defendants need not, therefore, entertain any apprehension upon this score. But the plaintiffs have the undoubted right to make the necessary ditches along the road in question, within the limits fixed by the court, and to put up any constructions that may be required to enable them to enjoy effectually the right of passage. On the other hand, they must not interfere injuriously with the draining of the defendant’s plantation, nor throw any impediments in the use of the lands intersected by this road.

With regard to the costs incurred in the court below, the rule, in actions of this kind, as well as in others, is, that the party cast must be made responsible for them. The defendants having failed to tender, before the institution of suit, a satisfactory road, must bear the costs of suit. These must not be confounded with the compensation allowed for damages incurred.

It is, therefore, ordered and decreed, that the judgment of the District Court be amended, so as to increase the sum of five hundred dollars allowed to the defendant as damages, to the sum of one thousand five hundred dollars; and that, in other respects, this judgment be affirmed, the appellees paying the costs of the appeal.


author: Land, J.

text:
    Eugène Lacroix v. St. Julien Tournillion.
    In a suit brought on a special contract, evidence may be received to prove the value of the work or labor performed under the contract; but the plaintifTis not entitled to a judgment for more than the stipulated price, as his claim is based on the contract, and not on a quantum meruit.

    APPEAL from the District Court of the Parish of Assumption, Roman, J.

      A. Gentile and F. F. • Nichols, for plaintiff.

      Mills & Leblanc, and Bush, Beatty & Attain, for defendant and appellant.
   Land, J.

The plaintiff sues for the recovery of nineteen hundred and fifty dollars, the last installment of the price stipulated in a building contract entered into by the insolvent, Adolphe -Richard, with the defendant, for the construction of a dwelling house.

The plaintiff alleges, that the insolvent commenced and prosecuted, and had nearly completed the work under the contract, when he was prevented from the further prosecution thereof by the acts of the defendant, who refused to comply with his obligations to furnish the necessary hardware for hanging the doors, windows, &c., and to furnish the materials necessary for the construction of the upper staircase, and that the insolvent was prevented by the defendant from completing the building under the contract.

The defendant denies the allegations of non-performance on his part, and charges the insolvent with a broach of the contract, and claims the balance of the unpaid price in compensation of the damages sustained by reason thereof, lie also avers that, after the breach of the contract by the insolvent, and he had been put legally in default, it was agreed between them that he, the defendant, should employ other workmen to complete the building, and that the cost of such work should be deducted from the balance of the unpaid price ; and that, in pursuance of this agreement, other workmen were employed to complete the building.

The defendant’s objection, that he was not put in default by the insolvent, cannot be made under his answer. He avers a breach of the contract, and then alleges a subsequent agreement, by which the breach was cured, and the original contract was still to be performed by the employment of other workmen. 'Phis alleged subsequent agreement in modification of the terms of the original contract, appears to have been proved and acted on by the court below, and was a waiver of all rights of action for its breach, and consequently, of all conditions precedent attached by law thereto. The insolvent’s right of action was on the original contract for the price, subject to the deductions stipulated in the supplemental agreement set up in defendant’s answer.

The further objection, that evidence was improperly received to prove the value of the work and labor performed by the insolvent on the building, and should not have been considered by the jury in this case, is not tenable. Such evidence may be received in a suit on a special contract, which, of course, must be proved ; but the plaintiff is not entitled to judgment for more than the stipulated price, because his right of recovery is on the contract, and not on a quantum meruit. Gribble v. McKleroy & Bradford, 14 An. Evidence of the value of the work and labor performed by the insolvent was material in this case, for the purpose of determining the amount and value of the work performed under the supplemental agreement, and was a proper subject for the consideration of the ji‘7-

The judgment of the lower court was in favor of the plaintiff for the sum of $1077 43 of the unpaid price, and awarded to the defendant the sum of $872 57, the balance thereof, as a compensation for the work which was performed under the subsequent agreement.

The evidence shows, that there was not a strict compliance with the terms of the building contract on the part of either the defendant or the insolvent; and as the testimony is somewhat conflicting as to the amount and value of the unfinished work at the date of the subsequent agreement, wo are not satisfied that justice requires a disturbance of the judgment of the lower court, based as it is upon the verdict of a jury.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed, with costs.


text:
    Robert R. Barrow v. E G. Robichaux, Sheriff, et al.
    An injunction should bo dissolved, with damages, when it has been taken out to enjoin the execution of an entire judgment, on the ground that the defendant is indebted to plaintiff in a sum bearing an insignificant proportion to the amount of the judgment.
    Where tho defendant in a suit sots up a roconventional demand, the plaintiff is not permitted to discontinue his suit when defendant opposes it. And if the plaintiff has discontinued the suit, without opposition on the part of defendant, the latter has the right to prosecute against him his claim in reconvention, notwithstanding the discontinuance.
    APPEAL from the District Court of the Parish of Lafourche, Roman, J.

      F. S. Goode, for plaintiff,

      Beatty S Bush,for defendant and appellant.
   Land, J.

This is the third injunction suit instituted by the plaintiff to arrest the execution of the same writ of fieri facias in the Sheriff’s hands, issued on a judgment against him, for the sum of five thousand dollars, with five per cent, interest per annum, in favor of John McDonald.

The first injunction suit is reported in 14th Annual Reports, p. 207. The second injunction suit was instituted in the parish of Terrebonne, and the writ of injunction granted by the Glerk, and directed to the Sheriff of the parish of Lafourche. The third injunction suit was commenced in the parish of Lafourche, and the writ of injunction was granted by the Clerk, and directed to the Sheriff thereof. In the third and last mentioned suit, the plaintiff alleges “ that the proceedings of the said Sheriff are illegal, and the said sale should be arrested for the reasons set out in the petition addressed to the Fifth Judicial District Court in and for the parish of Terrebonne, éc." One of the grounds alleged for injunction in the petition filed in the District Court of the parish of Terrebonne, was, “ that on the 28th of June, 1858, petitioner instituted suit in the District of Lafourche, No. 2273, against John McDonald, and recovered, on the 7th day of January, 1859, a judgment against the said McDonald for the costs of suit; that the said costs amount to sixty-eight dollars and fifty cents, and which, as plaintiff, petitioner will be compelled to pay, and which he is entitled to claim and recover against the said defendant.”

On the trial of the injunction suit instituted in the parish of Lafourche, the plaintiff, by his counsel, moved the court for leave to dismiss the suit, “ in so far as the same may be considered as having been based upon any of the matters mentioned and contained in the petition referred to in the petition herein, and filed in the District Court for the parish of Terrebonne, a copy of which is contained in this record.” The motion was refused, and to the ruling of the court the plaintiff took a bill of exception.

The defendant lias appealed, and the plaintiff as appellee, has joined in the appeal, and prayed for an amendment of the judgment, so as to perpetuate the injunction, and allow no damages to the defendant and appellant. The appellee contends, that the District Judge erred in refusing to sustain his motion to dismiss his suit, so far as it was based on the allegations of his petition filed in the second injunction suit in the parish of Terrebonne, and that for this error, the judgment should be reversed.

The defendant, in his answer to the petition, set up a reconventional demand in damages against the plaintiff, for illegally suing out the writ of injunction against the execution of his judgment. This reconventional demand prevented the plaintiff from discontinuing his suit in opposition to the consent of the defendant. McDonough v. Copeland, 9 La. 310. And if the plaintiff had discontinued his suit, without opposition on the part of the defendant, the latter had the right to prosecute against him his claim in reconvention, notwithstanding the discontinuance. Coxe v. Downs, 9 R. 133. The District Judge, therefore, did not err in overruling the motion to dismiss, and in trying the case, and rendering a final judgment on all the alleged grounds for injunction contained in the plaintiff’s petition.

As the allegations in the petition filed in the second injunction suit instituted in the parish of Terrebonne, were also made the grounds in the petition in this case, for obtaining the writ of injunction herein issued, it may not be immaterial to say, that the judgment rendered in this case has the force and effect of the thing adjudged, in the second injunction suit instituted in the parish of Terrebonne, as well as in this, the third injunction suit instituted in the parish of Lafourche.

The District Judge dissolved the injunction, and condemned the plaintiff and his surety on the injunction bond, to pay eight per cent, interest, and twenty per cent, damages, on the amount of the judgment enjoined, less a credit of sixty-eight dollars and fifty cents. The full penalty of the statute was very properly imposed on the plaintiff and his surety in this case, for enjoining the execution of the whole judgment, when he was entitled to enjoin, if at all, for a very insignificant sum. 14 An. 207.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be affirmed, with costs.


author: Voomiies, J.

text:
    State of Louisiana v. W. A. Hazleton.
    Communications made by a prisoner to bis counsel in tlio course of professional employment, and documents placed by him in the charge of his counsel, are not admissible as evidence against him in a criminal prosecution.
    PPEAL from the District Court of the Parish of Ouachita, Mayo, J.

      T. J. Semmen, for the State.

      A. L. Black, for defendant-arid appellant. ■
   Voomiies, J.

This case comes up on a bill of exception taken by the prisoner to the ruling of the District Judge upon the subject of the admissibility of some evidence.

The objection is, that the defendant placed in the hauds of his counsel, in the course of professional employment in some civil suit, a paper or voucher, and that on the trial of this prosecution, notwithstanding his opposition, the document was allowed to go to the jury, and his counsel permitted to give evidence upon this subject-matter. The bill of exceptions states particularly, that the witness was acting in the capacity of attorney for him; that any thing connected with their business as such, or coming to his knowledge while acting as counsel for the defendant, was a privileged communication, and he was not only not bound, but not permitted to disclose it.” The court overruled these objections, and allowed the disclosure by the counsel and the admission of the voucher in proof.

This ruling was, in point of law, erroneous. The prisoner has the privilege to prevent the disclosure of communications which he may have made to his counsel in the course of professional employment; and if papers have, under such circumstances, been placed by the former in the possession of the latter, they are considered as privileged. It is true, that the counsel may be permitted to give evidence of such matters, connected with the transaction, when his knowledge is derived aliunde; but the line of distinction must not bo lost sight of, in admitting the evidence before the jury. 0. 0. 2262; Roscoe, Evid., p. 176 ; Green-leaf, Evid., p. 291, § 244. It does not appear by the bill of exceptions, that the evidence in question was held to be admissible, as falling within the recognized exceptions to the general rule. The reasons given by the District Judge in overruling the motion for a new trial, do certainly point out no such exceptions; but our only guide in this matter is the bill of exceptions, upon the face of which these matters ought to appear.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; that the verdict of the jury and judgment of the court be set aside and annulled; and that this case be remanded for a new trial and further proceedings according to law.


author: Merrick, O. J.

text:
    State, on relation of A. Vierra, v. The Lusitanian Portuguese Society of New Orleans.
    On the hearing upon tlio return of tho mandamus nisi, at least in cases against other than judicial officers, the relator may either rely upon the insufficiency of the return alone, or ho may traverse tho same by proof, without any formal answer, and thereupon the answer and the proof will be considered together.
    But ho cannot, after having failed.in one mode of trial, resort to the other.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      C. V. Jonte and Lacy.S Upton, for plaintiff.

      W. J). Ilennen, for defendant and appellant.
   Merrick, O. J.

The relator applied to the Sixth District Court of Now Orleans, for a writ of mandamus, in order to be restored to membership in the above named benevolent association. He complains that he has been removed without cause, without trial, and without notice.

The defendant makes return to the writ issued in tho alternative, under Art. 841 of the Code of Practice.

The answer states, that the association was formed on the 28th of August, 1848, and a code of by-laws were adopted in September following ; that on the 19th of April, 1851, the association was incorporated under the laws of the State, which adopted said by-laws; that relator was formerly a member of the association, but instead of performing- his duties, as falsely alleged in his petition, lie has been guilty of gross violation of his duty as a corporator, bitterly opposing and materially injuring the vital interests of the corporation, and conducting himself in such a manner as not only to counteract the efforts of other members in effecting the objects of the association, but also to destroy its very existence. The answer then specifies the acts, such as getting up counter-celebrations; inducing one hundred members to refuse to pay their dues ; organizing- another corporation in order to draw away tho members from this ; and by slander and pursuasion inducing- sixty members to withdraw and join such new corporation ; disturbing the regular meetings of the society, by heaping approbious epithets upon the President, accompanied by loud oaths and low profanity ; that when notified to attend his trial for said offence, he brought into the meeting a band of confederates and, with force and arms, prevented all discussion, stopped the proceedings, and by ruffianism and a breach of the peace, broke up the meeting-, which was thus forced to dissolve ; that a second meeting was called for his trial, and the l-elator again notified to appear, whereupon the same scenes were reenacted as before, and tho President perceiving no trial could be had whilst the relator and his confederates were present, adjourned the meetingthat afterwards, on the 8th of October, 1858, at a general meeting, the conduct of the said relator was considered, and he was expelled from the society ; that by the by-laws, a majority of the board of administrators have tho power to expel members guiltv of unworthy conduct, and that the relator only seeks to bo restored in order to injure and ultimately destroy the corporation itself.

On the return of the writ, the relator proceded to introduce some proof, but subsequently he filed, what he styles, peremptory exceptions to tho return, based upon the following grounds, viz :

1st. That the facts and allegations set forth in the return, do not form legal grounds for the disfranchisement of relator.

2d. No notice to attend the meeting at which relator was expelled, is shown by the return.

3d. Respondents, at the time of relators expulsion, had and took no evidence of the facts relied upon to sustain the expulsion.

4th. Relator was not, according to the return, tried by the board of administrators, and he had the right to be under the by-laws and act of incorporation, which is made part of the return.

The case was, thereupon, tried upon the answer, which was taken as true. The latter being deemed insufficient, there was judgment in favor of the relator, awarding a peremptory mandamus for his restoration as a corporator.

' The first objection made to the return, viz, that it does not show any legal ground for the eviction of relator, has not been much insisted upon in this court. Indeed, as the facts stated in the answer are fully admitted, it is sufficiently established, that there was abundant cause for his removal. See Angel & Ames, p. 360, ed. 1843.

The appellee relies for an affirmance of the judgment, mainly upon these two grounds, viz:

Eii’st. Thai relaten' was not notified to appear at the meeting of October 8th, 1858, at which he was expelled; and that, for want of such notice, the trial and expulsion was illegal.

Second. Relator was tried at a “ general meeting” of the association ; he was entitled to a trial by the “ board of administrators”; the trial and expulsion were consequently null and void.

The proceeding by mandamus, in our law, is, to some extent, an equitable remedy, and it may issue when the law has assigned no relief by the ordinary means, and where justice and reason require that some mode should exist of redressing a wrong or an abuse of any nature whatever. C. P. 830. As the converse of this, it would seem, that the court might examine the justice and reason of the relator’s demand, before it awarded him the equitable relief of the writ. Like all other suitors, he ought to come into court with clean hands.

The present relator, by admitting the truth of the return, has admitted that his conduct has been hostile to, and subversive of the interests of the corporation ; that he has been laboring to break down the same, and has prevented the association from receiving the dues of its members, many of whom he has also enticed away, and that he seeks to be restored only for the purpose of injuring the interests, opposing the government, and destroying the corporation itself.

That he has been removed, is admitted by the petition and the suit which ho prosecutes. We have already said, that there were sufficient grounds to justify his eviction.

The question is then resolved into this, ought the court to restore a corporator against a mere informality induced by himself, when it is evident there were just grounds for his eviction, and he seeks the occasion, through his restoration, to inflict farther injuries upon the corporation ?

At common law, it was necessary that the return to the writ of mandamus should be certain in every particular. This arose from the rules of the common law, which (as in the case of Sheriffs returns) did not permit a party to controvert the return to a writ of mandamus.

This was remedied by the statute of 9th Anne, chap. 20, which permitted parties to traverse the return to the writ.

It does not appear to us, that the extraordinary strictness of the rules of the common law is applicable to our system. The common law authorities must, therefore, be received with some allowance.

The relator complains that he has been removed in his absence without notice, and that it is against common right, that one should be condemned without a hearing.

This is in general true, as remarked by defendant’s counsel, the maxim is not without qualification, viz, where the party is contumacious. Nemo inauditus condemnari debet si non sit contumax.

In the case under consideration, the relator, after having done acts forming a just ground for his eviction, was twice duly cited to take his trial before the administrators, in order that such sentence might be pronounced as his conduct merited, under the by-laws. On these two occasions, it appears by the return, he broke up the meeting and prevented a sentence, by ruffianism and violence. At the third meeting, he was not present, because it had become evident that his case could not be deliberated upon in his presence, without a breach of the peace. Perhaps the more legal mode would have been to have procured the arrest of the relator, and to have held him to bail to keep the peace. But the question before us is, not whether the acts on the part of the defendant were strictly legal in every respect, but whether the plaintiff is entitled to the equitable relief he asks.

It is quite evident that judgment ought to have been rendered against him by the administrators when he was cited before them, because there were ample grounds for such a decree ; and it is further evident, that the administrators were prevented from doing their duty, by the violence of relator, and so it appears that the irregularity of which he complains, was the consequence of his own acts. He will call upon the equitable powers of this court in vain, to restore him to a position where he can renew his disturbances or have a third opportunity of insulting the board of administrators convened for his trial.

On the hearing upon the return of the mandamus nisi, at least in cases against other than judicial officers, the relator may either rely upon the insufficiency of the return alone, or he may traverse the same by proof without any formal answer to the same, and thereupon the answer and the proof will be considered together. See 5 An. 294.

But he cannot, after having failed in the one mode of trial, resort to the other.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of the defendant; and that the relator pay the costs of both courts.


text:
    Charles Zeringue v. A. V. Williams et al.
    Although in a petitory action the plaiutifT must recover on the strength of Ins own title, yet when the defendant has no title at all, he cannot, asa trespasser, take advantage of an}*- defect in the muniments of title shown by the plaintiff; in such a case, a title apparently good, is sufficient to main tain a petitory action.
    When the land sold is described in the act of sale, by reference to adjoining tenements, and sold from, boundary to boundary, no action can be maintained for a diminution of price, on account of deficiency in quantity
    APPEAL from tlic District Court of the Parish of Lafourche, Roman, J.

      Beatty c& Bush, for plaintiff.

      C. Belcher, for defendants. F. S. Goode and and G. W. Blake, for warrantors and appellants.
   Yoorhies, J.

The plaintiff sets up title to a tract of land in the possession of the defendants. The respective titles of both parties properly located, do not come in conflict with each other ; the controversy between them is, therefore, narrowed to the question, whether the title exhibited by the plaintiff, and which calls for the land in contest, is sufficient to oust the defendants, who have but the naked possession. This title is one emanating- from the State of Louisiana, being- “ a sale and purchase made, subject to patent, on approval by the Secretary of the Interior.”

Although it be true that the plaintiff, in a petitory action, must succeed on the strength of his own title, and not on the weakness of his adversary’s yet, when the latter has no title at all, he cannot, as a trespasser, take advantage of any defect in the former’s muniments of title. In such cases, a title apparently good, is all that is required to maintain the petitory action.

In the present case, the plaintiff shows a title derived from the State ; and, although it might, perhaps, be defeated by the action of the General Government in the premises, as suggested by the defendants, it does not follow that they have the right to anticipate this result. This title, upon its face, is translative of property ; it is unquestionably sufficient to enable the owner of it to dispossess one who has no title whatever to the laud.

Now, as between the defendants and warrantors :

The title of A. V. Williams is one per aversionem. The land is therein described as “ measuring three and three-quarter árpente, more or less, front on Bayou Lafourche, with a depth extending between the side lines from said bayou to their intersection with the line between township 15, rango 17 East, and township 15, range 18 East, that is to say, so much of said plantation as lies inside of township 15, range 17 East; the said plantation being bounded above by lands of Widow J. B. Champagne, and below by lands of Eugene Champagne, the latteral lines opening as they recede from the bayou.”

The township line between ranges 17 and 18 East, is the actual boundary line between the land sold to the defendant, A. V. Williams, and the land purchased by the plaintiff. There is consequently no eviction in this respect; and the defendants’ call in warranty must, therefore, fall.

As between the other defendant, J. M. Williams, and his vendors, the matter does not afford the same certainty. But the record shows that the title, which lie derived from the Succession of David M. Tucker, deceased, was also one per aversionem. lie purchased “ a certain plantation situated on the left bank of Bayou Lafourche, measuring' three and three-quarter arpents front, more or less, by eighty in depth, bounded above by lands of J. B. Champagne, and below by those of Eugene Champagne.” Nothing is there said about the lateral lines opening as they recede from the Bayou Lafourche ; nor was the purchase made “ with indication of the extent of the premises at the rate of so much per measure.” The seller consequently is not obliged, under 0. 0. Art. 2468, to suffer ""a diminution proportionate to the price. But whether the sale from the estate"of David M. Tucker, deceased, to John M. Williams, be considered as a transfer of property designated by adjoining tenements, and sold from boundary to boundary, or whether it be considered as a sale by the measure, this defendant’s pretensions are defeated. In the former hypothesis, a disagreement in measure is of no consequence. C. C. Art. 2471; Nichols v. Adams, 9 An. 117.

In the other hypothesis, the result would be the same. For the defendant purchased three and three-quarter arpents front by eighty in depth, making a total of three hundred arpents; whilst the tract is shown to have 388 55-100 superficial arpents, independently of the 80 93-100 superficial arpents claimed by the plaintiff. In making this calculation, no allowance is made, it is true, for the opening of the lines in the rear ; but, as above stated, this is not called for by the deed of sale.

It is, therefore, ordered and decreed, that the judgment of the District Court be affirmed, so far as it awards judgment in favor of the plaintiff against the defendants; but that, in other respects, the said judgment be avoided and reversed. And it is further ordered and decreed, that the defendants’ call in warranty be rejected, and that there be judgment in favor of all the warrantors; the defendants paying the costs in both courts.


author: Merrick, C. J.

text:
    Peter Marcy et al. v. W. A. Chambers.
    Where tlio masters of two boats agree to go to the assistance of a ship that is grounded, for the purpose of getting her off, and to share the profits of the expedition equally between them, but before they reach her discover that she is afloat, and one of them turns back and the other pursuing her course, accidentally discovers passengers belonging to the distressed vessel and aflbrds .them relief — Held : That the adventure terminated when the first boat turned back ; and that her demand for the division of salvage in this case should be rejected.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      Thomas Gilmore, for plaintiff and appellant.

      W. H. Hunt and Budd <£ Lambert, for defendant.
   Merrick, C. J.

This suit was brought to settle the partnership affairs resulting from the joint ownership and employment of the steamboat St. Charles, from July, 1854, to October, 1855.

The judgment of the lower court is satisfactory to both parties, except as to a single item, viz, the one-half of $2,250 allowed the defendant as the owner of the steamboat Streck, for salvage during the period above mentioned.

It seems that the steamboat St. Charles held in partnership, and defendant’s boat Streck, were employed at the Balize as steam towboats, in opposition to the Consolidated Association.

The defendant, as captain of the Streck, received a letter, in December, 1854, addressed generally to tlie captain of any steamboat on tlie bar, stating that the ship Saxon was aground on the Gozier Island, having on board 400 passengers, and a part of a cargo, and requesting two or three steamers to come to her assistance to get the ship off, if possible.

The defendant communicated with the captain of the St. Charles, and the two boats went in search of the ship Saxon. The St. Charles being a faster boat than the Streck, maneuvered for the purpose of deceiving the Anglo American, and other boats belonging to the Consolidated Association, as to their destination.

In going out, they passed the ship Saxon at the bar, without recognizing her, she having got off without assistance. Not finding the ship, the St. Charles and the Anglo American, which was following them, returned. The Streck pursued the enterprise further, went to the Grand Gozier, but not finding the ship, went to the north end of the Ohandeleur Islands, made inquiries, engaged some one to pilot them, returned to the Grand Gozier, where they arrived at 1 o’clock at night. Observing a light on shore, they sent a boat and discovered a large number of passengers on the island. These, with great risk and exposure to the crew and steamboat, (there being a heavy swell,) they brought off during the night. The steamboat struck several times, and was obliged to go into dock for repairs. The Streck, in a suit against the Saxon, was allowed $2,250 as salvage.

The plaintiffs contend that there was an agreement that the two boats, St. Charles and the Streck, should share equally in the gains of the adventure. The District Judge was of the opinion, however, that the contract, which was over $500, was not proved by one witness and corroborating circumstances, but he allowed the plaintiffs $200 for the St. Charles, on a quantum meruit. The defendant does not complain of the judgment.

It seems the object of the services rendered by the St. Charles, if we are to believe plaintiffs’ witness, was to prevent the ship in distress, from receiving-assistance from any other quarter, and particularly from the swift boats of the other company, until the Streck, an inferior boat, could reach the ship. Whether this kind of contract can be enforced in a court of justice or not, it is not necessary to decide, for the case is with the defendant on another ground.

The adventure in which the parties were engaged, was to pull off the ship Saxon. When the Saxon was afloat, and no longer needed the assistance of the steamboats, and the St. Charles had abandoned the enterprize and returned, the adventure (conceding it proven) terminated. The St. Charles incurred no risk, her crew performed no part of the labor, and having abandoned the enterprize, she was doubtless pursuing her own interests elsewhere.

Had a claim been made upon her to share the loss occasioned the Streck, by the laboring and striking in the swell, which compelled her to go into dock, it would have been repudiated.

If it be conceded, therefore, that there was an agreement to act in concert in getting the ship off, it cannot be extended to the accidental discovery of the passengers on the island, who were brought off in boats, with much risk and great exposure of the officers and crew, after the St. Charles had abandoned the adventure.

Judgment affirmed.


text:
    The State v. Perry Gore.
    The Acts of tlio 6th of March, 1S19, and the 14th of March, 1855, do not roíate to the same subject-matter, there being no provision of law in the latter relative to stealing, inveigling, or carrying away slaves. The larceny punished by the 26th section of this statute is the common law olfence, of feloniously takiug and carrying away the personal goods of another. Slaves are not classed under our law as goods or personal chattels. The former Act is not, therefore, repealed by the latter.
    The declaration of au attorney, that a certain person is not a witness, will not prevent him from after-wards putting such person on the stand to testify.
    APPEAL from the District Court of the Parish of East Feliciana, Ratliff, J.

      II. Fergus Kernan, District Attorney, for appellee.

      L. M. Roberts, S. E. Hunter and W. I. Hamilton, for appellant.
   Merrick, C. J.

The accused was convicted of stealing a slave and sentenced to five years imprisonment in the penitentiary. The information charges him with having committed the offence on the 25th day of January, 1859.

His counsel urges, on the appeal to this court, that the Act of 6th of March, 1819, on which this prosecution is based, was repealed by the Act of 14th March, 1855. See Bullard & Curry, p. 265, sec. 3 ; and Acts of 1855, pp. 130,150.

The statute “ relative to slaves and free colored persons,” approved March 15th, 1855, had a provision similar to the Act of 1819. See p. 382, sec. 31.

The former Act, to wit, the “ Act relative to slaves and free colored persons,” was declared unconstitutional in the case of The State v. Harrison, a slave. 11 An. 722.

It is now urged, that the repealing clause of the Act “ relative to crimes and offences,” approved 14th of March, 1855, has repealed the Act of 1819, because the latter is on the same subject-matter.

The question has been considered by us in several decisions, and it has been held, that in order to ascertain what is the subject-matter of the Act, we are not only to consider the title, but the body of the Act itself, viz, the subject-matter of the different sections and provisions of the Act.

Applying this test to the Acts in question, we find no provision of law in the Act of the 14th of March, 1855, on the subject of stealing, inveigling, or carrying away slaves. Larceny, punished by the 26th section of the latter statute, is evidently the common law offence of feloniously taking and carrying away any personal goods of another. Slaves are not classed under our law as goods or personal chattels. The Act of 1819, was not, therefore, repealed by the Act of 14th of March, 1855. See Holmes v. Wiltz, 11 An. 442; State v. White & Ward, 13 An. 573; State v. Adams, 14 An. 620; and State v. Marian Fuller, 14 An. 667.

The record also contains a bill of exception to the ruling of the District Judge in permitting a witness by the name of Bacheler, to testify.

It appears by the bill of exceptions, that whilst the jury were being empannolled, the District Attorney stated, more than once, that Bacheler was not a witness; that a juror (whether on the jury or rejected, the bill does not inform us,) stated that he had formed an opinion from a conversation with Bacheler, and the District Attorney informed him that Bacheler was not a witness. Afterwards, the District Attorney, having learned that he could prove a fact by Bacheler, placed him upon the stand as a witness, and examined him as such. The dcfendant objected, and took his bill of exception.

The District Judge informs us in the bill, that when the objection to the-testimony was taken, no objection was made to any juror on the panel, nor was it asserted that any one of them had formed an opinion from a conversation with Bachelor.

It is unnecessary to consider, whether the formation of an opinion by a juror, from a conversation with an eye witness who was not summoned as a witness in the cause, would render such juror incompetent; for the bill of exception does not raise the question, and it can only be considered with reference to the competency of the witness.

The declaration of the District Attorney, that Bachelor was not a witness, did not render him incompetent. Had the declaration operated a surprise to the opposite party, it might, perhaps on a proper showing, have been made the ground of a continuance or a new trial. But it is not protended that the statement had such effect.

The defendant, then, was not in a more favorable position towar’ds the witness than where the witnesses are ordered by the Judge, to be kept and examined separate and apart from each other. In such case, it seems, if a witness remain in court in violation of the order, it is in the discretion of the Judge whether or not he shall be examined. See 1 Greenleaf on Evidence, sec. 432 and notes.

We do not perceive that the District Judge violated any rule of law in permitting the witness to testify.

The record contains another bill of exception which has not been urged in this court, and which would have been equally unavailing.

Judgment affirmed.


author: Bdctiaxaw, J.

text:
    P. Pousargues v. Steamer Natchez et al.
    The 9th section of the Act of 1S55, relative to steamboats, gives a privilege upon the boat, to the person who may have suffered damage by the want of skill, or carelessness m the management of the boat, for the amount of damages awarded him.
    APPEAL from the Third District Court of New Orleans, Bmigneaud, J.

      J. & E. Bermudez, for plaintiff.

      T. S. McCay, for defendants and appellants.
   Bdctiaxaw, J.

The slave of plaintiff, while rowing a' skiff with a log in tow, ■was run over and drowned by the steamer Natchez. Judgment has been rendered against the captain and owners of the steamboat, for fourteen hundred dollars, the sum which it is proved plaintiff had paid for the slave a lew months previous to the accident.

The petition charges that the accident was caused by the negligence and fault of the steamboat. And this was the opinion of the District Judge. A review of the evidence has brought this court to the same conclusion. There is some variation in the testimony of the witnesses examined for plaintiff and those offered by defendants, in regard to the hour at which the accident occurred, and the distance within which a steamboat’s headway may be checked.

.But the variation is not material, and the position of the witnesses for plaintiff, who are all entirely unconnected with him, entitles their evidence to more weight, in case of contradiction, than that of the principal witnesses for defendants, who are persons in their employ.

The plaintiff' and appellee has filed an answer to the appeal, praying that it might be amended, by granting him the privilege on the steamboat Natchez, demanded in his petition, but which was not allowed by the judgment appealed from.

The appellee is entitled to this privilege, under the Act of 1855, page 410, section 9.

It is, therefore, adjudged and decreed, that the judgment of the District Court be amended, by decreeing a privilege on the steamboat Natchez, in favor of plaintiff, for the judgment and costs in this case; that, as so amended, the judgment be affirmed ; and that defendants and appellants pay costs of both courts.


text:
    Sarah Ann Raiford v. R. H. Thorn & Co.
    When a judgment obtained by the wife against the husband for a separation of property, s attacked by the creditors of the latter, proof that the husband had received money alter the marriage, belonging to his wife, is admissible, to show that the judgment was not rendered on the consent or admission of the husband.
    The judgment of separation of property is valid, although the wife fails to prove, when attacked by creditors of the husband, that he Was indebted to her in the full amount for which she obtained judgment against him. The creditor can only then contest the amount of her judgment.
    A judgment of separation of property between husband and wife, is not rendered null and void for want of publication.
    Where the wife’s execution against the husband was credited with the price of personal property of the hushand — Held: That it was equivalent to a sale under the writ.
    When the plaintiff in injunction partially succeeds, and the equitable remedy of injunction has not been palpably abused, damages will not be allowed under the statute.
    APPEAL from the District Court of the Parish of Pointe Coupée.

      E. Phillips, for plaintiff.

      T. J. tfi W. Pi. Cooley, for defendants and appellants.
   Land, J.

The plaintiff enjoined the sale of certain household furniture, and a pair of carriage horses, seized at the suit of the defendants, judgment creditors of her husband, on the alleged grounds of her separate ownership of the property seized.

The plaintiff had been separated in property from her husband, and had recovered against him a judgment for the sum of seventeen thousand nine hundred dollars, the amount of her paraphernal property received by him, and converted to his own use. A writ of fieri facias had issued on the judgment and been executed, by the seizure and sale of the plantation and slaves belonging to her husband, but, in consequence of the vendor’s privilege and superior mortgages on the property sold, her execution was only credited with the sum of five Hundred dollars.

By an act of sale under private signature, executed by the husband to the plaintiff, prior to the seizure in this ease, he sold to her the furniture in question, for the price of eight hundred dollars, which he acknowledged to have received, by crediting the same on the judgment obtained by the plaintiff against him, in the suit for separation of property. And the credit of eight hundred dollars was accordingly entered on the execution, by the plaintiff’s attorneys, on the 30 th of October, 1858, the day on which the seizure was made in this ease, and prior to the same.

Sometime after the judgment of separation of property, the plaintiff purchased from one Graham, the carriage horses, and gave to him her draft for the price.

The defendants specially deny the plaintiff’s ownership of the horses, and aver that they were the property of her husband, and that the sale of them through Graham to her, was fraudulent and simulated, and that her husband was never divested of title. They further aver, that the judgment of separation of property was fraudulent and intended merely to secure the property of the husband from the pursuit of his creditors; and that the judgment was null and void, because it was a consent decree, and was never published and executed, as the law requires. And they further specially deny the plaintiff’s ownership of the furniture seized.

The evidence introduced on the trial in this case, satisfies us, that in the suit for separation of property, the plaintiff had a real and just demand against her husband, and that his embarrassed circumstances warranted the decree in her favor, dissolving the community of acquets and gains. It establishes, that the plaintiff, prior to her marriage, was in very good circumstances, and had in her possession and service, as owner, some twenty or twenty-five slaves.

The testimony on which the judgment of separation of property was rendered, was also offered in evidence on the trial of this case, and appears to have beén amply sufficient to sustain the judgment against the husband, for the sum of seventeen thousand nine hundred dollars. The plaintiff proved, in that case, that her husband received, after the marriage, a large sum of money belonging to her, the proceeds of property previously sold. This testimony, in our opinion, was-admissible, for the purpose of showing that the judgment of separation of property had been rendered on sufficient evidence, and not on the consent or admissions of the defendant, as alleged in the answer in this case. The plaintiff having shown in this suit, that her judgment of separation of property was founded on a real demand, it must have its legal effect. A judgment of this character may be valid, although the wife fail to prove, when her judgment is attacked by creditors, that her husband was indebted to her in the sum for which she obtained a decree against him. The validity of her judgment, depends not on the amount of her husband’s indebtedness to her, but on the existence and proof of other facts, and if they are established, and the validity of her judgment is thereby shown, the only matter which can be contested by the creditors, is the amount for which she has judgment against her husband.

In the case at bar, the facts which entitled plaintiff to a judgment of separation of property against her husband, are all proved, and the only question of doubt on the testimony adduced in this case, (leaving out of view the evidence offered in the suit for separation of property,) is in relation to the amount for which she has judgment against her husband.

The evidence shows, that before, and at the time of her marriage, she possessed a valuable estate, consisting of some twenty or twenty-five working hands ; that her husband was greatly embarrassed in his affairs, if not wholly insolvent, and that of the slaves which she possessed, very few of them were remaining as her property. These facts are very strong corroborating circumstances in support of the fairness and verity of her judgment against her husband, and are sufficient, at least, to justify the conclusion, that he was indebted to her in the full amount received on her execution, to say nothing of any greater sum.

This judgment was not a consent decree. The answer was a general denial, and the judgment was rendered on proof of the allegations contained in the petition, and it, therefore, cannot be declared null and void on that ground.

It does not appear that the judgment was published as required by Article 2403 of the Oivil Code — but it has been held, that a want of publication does not render the judgment null and void. Turnbull v. Davis, 1 N. S. 568.

It is not pretended that the furniture was sold to the plaintiff for less than its value; and in our opinion, crediting the price on the execution issued on the plaintiff’s judgment, was equivalent to a sale under the writ, and vested the title in her, before the defendants acquired any right on the furniture, by virtue of their seizure.

The carriage horses were the property of the husband, at the time the plaintiff purchased them from Graham, and it does not appear that the draft which she gave for the price, was ever paid on her account.

The judgment of the lower court perpetuated the injunction as to the furniture, and dissolved it as to the carriage horses seized under the execution of the defendants, and refused to allow them damages on their reconventional demand, under the statute.

Where the plaintiff partially succeeds in an injunction suit, and the equitable remedy of the writ has not been palpably abused, damages are seldom allowed under the statute.

There is nothing to show that the plaintiff had any knowledge of the simulated sale, by which the horses passed into the possession of Graham, nor to impeach her good faith in making the purchase from him.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed, with costs.


author: Buchanan, J.

text:
    Ives and Wife v. Citizens’ Bank et al.
    Where by the charter of a bank the default of a stockholder to pay one of tho installments of the stock loan at maturity,renders the whole amount of tho loan immediately exigible, and deprives the stockholder of the delays to which he was originally entitled, tho bank has a right to waive the enforcement of this entire obligation of its defaulting debtor ; and where such waiver has been made, tho Clerk of the court cannot, by his order of seizure and sale give greater relief than has been sought in tho petition.
    If the plaintiff show injury to himself by the sale of property under such an order, oven the bona fide purchasers’ title is not valid.
    RPEAL from the District Court of the Parish of St. Bernard, Foulliouze, J.

      G. S. Lacy, R. A. Upton and A. G. Semmes, for plaintiffs and appellants.
    P. A. Diteros, Jr., and Elmore <£ King, for Marrero cB Serpas. A. cB A. Pitot, lor Oitizeus’ Bank.
   Buchanan, J.

The plaintiffs sue (by petition filed June 7th, 1858,) to set aside an adjudication made on the 5th of June, 1858, under the following circumstances :

The Citizens’ Bank being the holder of a stock note of the present plaintiffs, Mrs. Ives and her husband, secured by mortgage on a plantation and slaves belonging to Mrs. Ives, and payable in annual installments of five hundred and twenty-five dollars each, on the 1st of January of each year, according to the charter of the Bank, — the said Mrs. Ives & husband having failed to pay the installment due the 1st January, 1858, — instituted suit by executory process in the District Court of the parish where the mortgage property was situated (St. Bernard), against Mrs. Ives <& Husband, in March, 1858 ; and although according to the eleventh section of the charter of the Bank, it might have treated the whole note (being at that time $15,750) as due; yet, in the-petition for executory process, the Bank prayed that the sale might be made on the following terms and conditions :

“ The purchaser to furnish a stock note for the sum of $15,225 payable on the first day of January, 1859, or renewable according to the charter; and the balance of the price cash.”
“ The purchaser to assume all the responsibilities of a stockholder resulting from the charter and the laws amending the same; and the stock note to be furnished, to be identified with the three acts above mentioned and the Sheriff’s deed of sale, to pay and satisfy your petitioner’s claim, say $15,750, with 10 per cent, interest from 1st January, 1858, until paid, and costs of suit, and eight dollars costs of copy of the act of sale of 14th January, 1856, the whole by privilege and preference out of the proceeds of the sale.”
“ And petitioner further reserves the right to claim by privilege and preference out of the proceeds of said sale, the sum of $930, being the amount due for stock contribution on the property and slaves above mentioned, with interest at 8 per cent, per annum, from 1st of May, 1857, until paid.”

The property was offered for sale by the Sheriff of St. Bernard on the above terms and conditions, on the 1st of May, 1858, having been appraised, previous to the crying, at something over one hundred thousand dollars. Not fetching two-thirds of the appraised value, the property was readvertised by the Sheriff, on the following terms and conditions :

“ The above described property, slaves, &c., having not brought two-thirds of the appraised value, the present sale is made at twelve months credit: the purchaser being required to furnish good and sufficient security and special mortgage on the above described property and slaves, bearing interest from the day of the adjudication, at the same rate as those allowed by the judgments.”

At this second crying, the property seized was adjudicated to the defendant, Marrero, for the price of sixty-five thousand one hundred dollars, for $44,946 of which price he furnished his bond at twelve months credit, with Emile LaS'ere as security; retaining the remainder of the price ($20,153 33) in his hands, to satisfy privileged debts and special hypothecations bearing upon the property.

This sale is attacked on several grounds, of which only two are urged in this court, to wit:

1st. That the property seized ought to have been advertised and sold at the second crying, upon a credit of twelve months, to the extent of the entire amount actually matured and due at the time of the sale to the Citizens’ Bank ; and for the balance of the Bank debt, the purchaser to furnish his stock note, payable on the first day of January, 1859, or renewable according to the charter of the Bank, and to assume all the responsibilities of a stockholder.

2d. That the adjudication to Ma,rrero has been rendered null and void, and of no effect, by the failure and default of the said Marrero to give security upon his twelve months bond, at the time and in manner and form as required by law.

As explained in argument, the latter of these two grounds of nullity consists in this, that Emile LaS'ere, the security of Marrero upon his twelve months bond, is not a resident of the parish of St. Bernard, as required by Article 3011 of the Civil Code; a fact which is admitted in the record.

The opinion which wrn entertain upon the other ground renders if unnecessary for us to consider the objection to the twelve months bond.

On the first ground above stated, we are of opinion, that the plaintiff is entitled to judgment. The point has been thus ruled in Hilligsburg v. Holmes, 7th La. 565, and in Rice v. Schmidt, 11 La., 70. See also Pepper v. Dunlap, 16 La., 163; McDonogh v. Frost, 1 Rob. 295; Union Bank v. Smith, 10 Rob. 49; Robinson v. Aubert, 6 Rob. 462; Armor v. Downs, 2 An. 242.

The District Judge decided that the sale, at the second crying by the Sheriff, was properly advertised to be made on twelve months credit, for the whole amount of the Citizens’ Bank mortgage, because, by the eleventh section of the charter, the default of a stockholder to pay one of the installments of the stock loan at maturity, has the effect of making the whole amount of the loan immediately exigible, and of depriving the stockholder of the delays for payment to which he was originally entitled. This is true. But the forfeiture of the stockholder's rights in this respect is a penalty imposed by the law, in the interest of the Bank, the creditor, and which the Bank may waive, if it please. The Bank had waived that penalty, in the case under consideration. It asked in its petition for seizure and sale, for nothing more than the immediate payment of what was matured and past due by the terms of the contract with its debtor, consenting that the purchaser of the mortgaged property under the seizure should become a stockholder and debtor of a stock loan to date from the forced sale, and to be payable in yearly installments thereafter. In a word, the Bank desired a novation of its debt, aud offered to accept any one for its new debtor, who would fulfill the forfeited engagements of its old debtor, and assume that debtor’s responsibilities for the future. But the Sheriff has given the Bank a relief ultra petitum. The Bank, made a co-defendant herein, appears and ratifies in its answer this act of the Sheriff. But the case must be judged by the position of the parties at the time of the sale. The relief sought by the Bank in its appeal to the tribunals of the country, is formally set forth in its petition for executory process. It cannot now put its debtor in duriori casu by the assertion of new claims, and the imposition of new conditions. The right of a Property Bank to waive the enforcement of the entire obligation of its defaulting debtor under a provision of its charter, and the effect of such waiver, were considered and decided in the case of The Union Bank v. Bradford, 2 An. 416. In that case, this court hold that the Clerk of the court was unauthorized to insert a'condition in the order of seizure and sale, not asked by the Bank in its petition, although the Bank would have had the right to require the condition. Its silence was considered by the court as equivalent to a waiver of its peculiar privilege, in that respect, under its charter. The present is a much stronger case for the application of the doctrine; for here, the variance between the prayer of the petition, and the execution of the writ prayed for, is not, as in the Union Bank v. Bradford, mere matter of inference from a phraseology which was, in fact, susceptible of two constructions, but is direct, palpable and indisputable.

The counsel for the defendant, Marrero, admitting the force of these objections to his client’s title, invokes the rule in the case of Mullen v. Harding, 12 An. 271, that “ a bona fule purchaser ata Sheriff’s sale will be protected against any attack on his title on the ground of informalities, unless the plaintiff show injury to himself in consequence of such informality.” But we think the plaintiffs have made such showing. Two witnesses, who are proved to be persons of large means, swear that they would have bid for the plantation of plaintiffs at the second crying, had the property not been advertised, as it was, on a credit of twelve months, for the whole price; and that they were deterred from bidding by that advertisement. Both these witnesses declare, that they were prepared to, and would have hid to the extent of seventy thousand dollars, which is five thousand dollars more than the price of adjudication.

This additional five thousand dollars, although it would not have gone into plaintiffs’ pockets, because the amount of mortgages recorded against plaintiffs, inferior to that of the Bank, exceeded that sum, yet, it would have gone to the payment of plaintiff’s debts, and the adjudication must consequently be considered to have injured plaintiffs to that extent.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and that the adjudication of the plantation, slaves, &c., to Antonio Marrero, on the 5th of June, 1858, by the Sheriff of the parish of St. Bernard, in the suit of the Citizens’ Bank of Louisiana v. Mrs. Ann E. Ives & John B. Ives, her husband, be annulled and avoided ; and that the defendant and appellee, Antonio Marrero, pay costs in both courts.


text:
    Joseph Shannon, Administrator, v. N. G. Goffe.
    Tho Shertif is without capacity to certify a waiver of citation; such waiver must either be made in express terms of record, or may be inferred from the appearance of defendant in person or by attorney.
    The want of citation is a cause of nullity, which may be urged on appeal.
    APPEAL from the District Court of the Parish of Carroll, Farrar, J.

      Goodrich eft DeFrance, for plaintiff.

      Sparrow & Montgomery, for defendant and appellant.
   Buchanan, J.

The defendant and appellant assigns for error apparent on the face of the record, that he has not been cited in the suit.

The return of the citation is as follows :

“ Received, Saturday, 9th April, 1859, together with a copy hereof, and a copy of plaintiff’s petition, and on Monday, 2d of May, N. G. Goffe, defendant, waived all service in the presence of F. M. Goodrich, one of plaintiff’s attorneys, and this return is made as per instructions of said attorney.”

This return is illegal. The duty of the Sheriff is to serve the citation, in one of the modes pointed out by Article 187 of the Code of Practice. lie is without capacity to certify a waiver of citation. Such waiver must either be made in express terms of record, or may be inferred from appearance of defendant in person or by attorney. Hennen’s Digest, verbo Citation, IV.

The want of citation is a cause of nullity, which may be urged on appeal. C. P. 605, 608.

Judgment reversed, and cause remanded for further proceedings according to law : the costs of appeal to be borne by plaintiff and appellant.


author: Merrick, 0. J.

text:
    Antonio Hernandez v. His Creditors.
    Entries on the books of an insolvent, when they are shown by witnesses to have been made in good faith, and at the time they purport to have been made, and most of them for matters within tho knowledge of the witnesses, are admissible, and sufficient to correct an error made by the syndic in his tableau of distribution.
    PFEAL from the Fifth District Court of New Orleans, Eggleston, J.

      Durant <& Hornor, for syndic.

      IV. B. Lancaster, for absent creditors, appellants.
   Merrick, 0. J.

The appellants were the opponents to the tableau of distribution filed by the syndic.

The question is, whether the proof they have adduced is sufficient to entitle • them to a correction of the tableau which omitted them altogether ?

They were placed upon the schedule by the insolvent as creditors, when he made his surrender.

Two of the opponents appear to be creditors by regular entries in the insolvent’s books, having relation to the business in which he was engaged.

These entries are shown by witnesses to have been made in good faith, and at the time they purport to have been made, aud mostly for matters within the knowledge of the witnesses.

One of the opponents produces the invoice of the tobacco and cigars consigned to the insolvent, for which the credits upon the boobs are given.

The claims of the opponents were rejected by the lower court under the authority of the case of Menendez v. Lorinda, 3 M. R. 258, 707, wherein it is stated that the admission of the insolvent makes no proof as against the creditors, because it is considered as fraudulent. See also Eastman, Syndic, v. Beiller, 3 Rob. 220.

We think, without questioning the authority of these cases, that two of the opponents are entitled to relief.

It is made the duty of the syndic to make out a tableau “ containing the names of the several creditors of the insolvent debtor and mentioning the sums due to them respectively,” &c. Acts 1855, p. 318, sec. 35 ; Phillips’ Dig. 258.

The object of these oppositions is to correct an omission made by the syndic, and we think the proof sufficient for that purpose as to Mrs. Josefa Meana and José Millet. The claims of José Morales y Ramos are not sustained by the insolvent’s books, and without the production of the receipts, the testimony is insufficient.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be amended so as to place the opponent, Josefa Meana, on the tableau of distribution as an ordinary creditor, for three hundred and thirty-four dollars and thirty-three cents; and in like manner the opponent, José Millet, for the sum of seventeen hundred and seventy-seven dollars and ten cents, to be paid their pro rata of said balance for the ordinary creditors; and it is further ordered, that the judgment of the lower court, so amended, be affirmed, the appellees paying one-half of the costs of the appeal, and José Morales y Ramos the other half of the said costs of appeal.


text:
    Elizabeth McWilliams v. Hamilton McWilliams.
    In the absence of allegations and proof to tlie contrary, the presumption is, that a tutor has done bis duty in defending a suit against a minor, and he must, therefore, be allowed a credit for the payment of the judgment, as well as counsel fees for defending the same and rendering the tutor’s account. The tutor cannot, even for the necessary maintenance and education of the minor, expend more than the revenues of his estate, without the advice of a family meeting.
    APPEAL from the District Court of the Parish of Carroll, Farrar, J.

      Sparrow & Montgomery, for plaintiff and appellant.

      F. F. Montgomery, for defendant.
   Merrick, C. J.

The tutor charges himself with $875, as the total amount received from the estate of the minor’s father.

The boarding and tuition of the minor, with her necessary clothing and apparel for three years, exceed this sum by $23 13.

The minor having arrived at the age of majority, opposes the account on the ground that the tutor could not, without the advice of a family meeting, expend more than the revenues of her estate.

One of the items charged in the account is $128 33, the amount of a judgment obtained against the tutor. In the absence of allegations and proof to the contrary, we must suppose the tutor did his duty in defending this suit. C. P. 1004. The judgment against the tutor is a judgment against the minor. See C. P. 615, and Act of 1826, sec. 12, amendatory thereto. He must, therefore, be allowed a credit for this payment, as well as counsel fees for defending the same, and rendering the tutor’s account.

In regard to the other items of the account, although they seem to have been for the necessary maintenance and education of the minor, we feel constrained, under the positive provisions of the Code, to reject the same. It was in the power of the tutor, with the advice of a family meeting, to have used some portion of the capital for the maintenance of his ward. By not obtaining the authority from the family meeting, he trusted to the minor’s own sense of justice and right, and she has decided against him. As the law now is, he has no redress. 5 L. R. 490; Tegart v. McCaleb, 10 An. 289; Payne & Harrison v. Scott, tutor, 14 An.

The same point was also decided in Franchebois v. Richard, tutor, at Opelousas, in 1858, not reported.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that the opposition to said tutor’s account be sustained, so far as to reduce the items of credit allowed said tutor, to the sum of two hundred and three dollars and thirty-three cents, and that the balance in the hands of said tutor in favor of the minor on the account so amended be fixed at the sum of six hundred and seventy-one dollars and sixty-seven cents, for which judgment is hereby awarded said Elizabeth Me Williams against her said former tutor; and it is further ordered, that said Hamilton McWilliams pay the costs of the opposition and this appeal, all other costs of the account being at the charge of said minor.


author: Merrick, C. J. Buchanan, J.,

text:
    City of New Orleans v. The Southern Bank of New Orleans.
    Where property has been omitted in the general State assessment, a supplemental assessment may be afterwards made, and in this case it is not necessary that the formalities of time, manner and place required by law should bo observed.
    The ordinance of the Common Council of the city of New Orleans, approved the 25th of March, 1857, levying a tax on the capital of banks, was subsequent to the Act of the 19th of March,1857, exempting freo banks from taxation, and in conflict with that Act, and therefore void.
    But the ordinance of the 23d of February, levying a special railroad tax, was legal at the time it was passed, and as it conferred equitable, if not vested rights, upon the bond-holders, could not be repealed, if susceptible of repeal, except by some positive provision of law or the clearest and most patent implication. But the statute of 19th of March, 1857, applies only to the future. It is from and after the passage of this Act, capital of free banks shall be exempt from taxation “ A law can only prescribe for the future ; it can have no retrospective operation, nor can it impair the obligation of contracts.” Art. 8, C. C.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Laville & Morel and W. O. Denegre, for plaintiff and appellant.

      Waples & Eustis, W. W. King and George Eustis, Jr., for defendant.
   Merrick, C. J.

This suit was brought to recover of the defendant $18,000 of taxes assessed upon the capital of said corporation, $2,760 of said sum being for the special railroad tax, and the residue, $15,240, for ordinary purposes.

The suit was commenced by filing the tax receipt and publication under the statute.

Defendant excepted to the form of proceeding. This exception was ordered to be tried with the merits.

The answer was a general denial, and specially denied that any legal ordinance or assessment had been made ; denied the authority of the city to pass any ordinance imposing the tax in question; averred the same to be unconstitutional, not being equal nor uniform, and not imposed in the mode and manner required by law. It was further averred, that the Southern Bank is a free bank, and exempt from this form of taxation.

The statute of the 20th of March, 1856, clearly authorized the assessment of taxes upon the capital of the bank. See sections 36, 38, 41 and 68, pp. 146, 147, 152.

The city did not avail itself of this right of taxation, until the 23d of February, 1857, when the following ordinance was approved :

Resolved, That a tax at the rate of twenty-three cents on every one hundred dollars of the assessed value of all real estate, slaves, capital, income and furniture, appearing on the tableau of the assessment, made by the State Assessors for the year 1856, be, and the same is hereby levied to pay the annual interest on the bonds issued by the city of New Orleans for subscriptions to the stocks of the New Orleans, Jackson and Great Northern Railroad Company, the New Orleans, Opelousas and Great Western Railroad Company, and to the Pontchartrain Railroad Company.”

On the 19th of March, 1857, an Act was passed in the following words :

Be it enacted, &c. That from and after the passage of this Act, all capital employed in free banking in this State, shall be exempt from municipal taxation.”

On the 25th of March, of the same year, the following ordinance was approved :

Resolved, That a tax at the rate of thirty-seven cents on every one hundred dollars of the assessed value of all real estate and slaves appearing on the tableau of assessment made by the State Assessors for the year 185C, and a tax of one hundred and twenty-seven cents on every one hundred dollars of the assessed value of capital, fricóme and furniture, appearing on the tableau of the State Assessors of the year 1856, be, and the same is hereby levied to pay the ordinary expenses of the city government for the year 1857, over and above the receipts from other sources.”

The $2,760 is claimed under the first, and the $15,24.0 under the last of these ordinances.

I. The first point made by the defendant is, that the claim of the plaintiff is for a debt which has ceased to be a tax, and, therefore, the suit ought to have been via ordinaria. It is sufficient answer to this to say, that conceding the debt to exist, (as is done by the exception,) it appears to be due, if at all, under an assessment as a tax. It is not pretended that the law as to the collection of taxes has been repealed. The suit was, therefore, commenced in conformity to the mode provided for the collection of taxes. The cases of Cooper v. Hodge, 17 La. 476, 1 Rob. 565, and Scott v. Duke, 3 An. 253, are without application to this branch of the case.

II and III. The objections that the free banks can only be taxed at the same rate as other personal property, and that they cannot exceed in the agrégate $1 50 on every $100, it is needless to consider, under the views we hold in reference to the fifth point.

IV. The fourth point made is, that “ the assessment is the basis of the tax as to its imposition, and must be in strict conformity to law, otherwise it is void and of no effect.”

The law requires the assessment rolls to be made and left with the Secretary of the Board of Assessors, before the 15th of August of each year. Notice is then to be given, by publication, thirty days, that they are subject to correction. The rolls afterwards are to be delivered on the first of October, to the Secretary of the Board of Supervisors, who are required to examine and equalize, and correct the valuations, and'make such alterations as may be needed relative to the property of non-residents, and carry to the proper column the sum found as the amount of the tax. The Board of Supervisors are required, after having certified the assessment rolls, to deliver the same, on the first Monday of December of each year, to the Collector.

In the assessment made under these provisions of law, the capital of the banks was omitted, this roll being made for the joint benefit of the State and the city of New Orleans.

It seems that a supplemental assessment was made in December, which embraced the objects of municipal taxation, which were exempt from State taxes. It is argued, that inasmuch as this assessment was not made in the time, manner, and place mentioned in the statute, it is absolutely void, and several common law authorities are cited in support of the position.

It appears to us, that the authorities cited are not strictly applicable to the city of New Orleans. The law and Constitution require taxation to be equal and uniform, and by the 7¿ih_sedÍM, it is provided, that if lots, parts of lots, squares, tracts of land, or other property, bo omitted in the assessment of one or more years, the same, when discovered, shall be assessed for the years during which it was omitted, and for the current year. What is meant by personal property, is defined by the thirty-eighth section of the Act, and included capital. See also Act of 19th of March, 1856, p. 110, sec. 6.

The law informed the bank that its capital was subject to taxation for 1856, and it cannot complain that a supplemental assessment supplied and corrected an error resulting possibly from the neglect of the bank to give in its capital to the Assessors for assessment. The city had power to cause the supplemental assessment to be made, as resulting from the peculiar objects of municipal taxation, and the section of the Act cited.

V and VI. It is further objected, that the assessment was made after the legal power to make an assessment had been exhausted, and the Act of 19th of March, 1857, exempting free banking capital from municipal taxation, is a prohibition against any city ordinance snbsecpiently passed in conflict with it.

We think it is quite clear, that the ordinance of the 25th of March, 1857, which was passed after the Act of the Legislature already quoted, was in conflict with that Act and void. It is true, as contended for by appellant, that it is the assessment of 1856, which is collected in 1857, but the city did not avail itself of its right of taxation during- the period of its existence. When it undertook to act in March, it was divested of power over the subject-matter. There is no doubt that the tax of 5515,240 was properly rejected.

The residue of the tax, viz, 552,760, presents a different question. The city had power, and it was enjoined upon the city as a duty, to make this levy of the tax at the time it was made.

It is objected, that the 42d section of the City Charter provides, that the Common Council shall, for the purposes of that Act, once, and not oftener, in each and every year, lay an equal and uniform tax upon all property, real and personal in said city. Acts 1846, p. 148.

It is contended that, as the supplemental assessment was made in December, 1856, the power to make the assessment was already exhausted. This view has been met by what wo have already said on another branch of the case. In answer to what has been said in some of the other cases depending on this question, we may further remark, that the Constitution provides, that whenever the Legislature contracts a debt exceeding. 55100,000, unless in the case of war, to repel invasion, or to suppress insurrection, they shall, in the law creating the debt, provide adequate means for the payment of the interest and of the principal, when the same shall fall due. And the said law shall be irrepealable until principal and interest are fully paid and discharged, or unless the repealing law contains some other adequate provision for the payment of principal and interest. Art. Ill Const,

By the Act of 1855, it is provided, that the police juries and municipal authorities, shall not have power to contract any debt or pecuniary liability, without fully providing in the ordinance creating the debt, the means of paying-principal and interest, and that the enactment providing for such payment, shall remain in force until the debt and interest is paid.

It is knowu that the city, by ordinances, subscribed 552,000,000 of stock in the New Orleans, Jackson and Great Northern Railroad Company, and 551,500,000 to the New Orleans, Opelousas and Great Western Railroad, and for the payment of the interest upon the bonds, &c., the Common Council were required, by the ordinance for the security of the debt, to levy a special tax, in January in each year, on real estate and slaves.

Here, then, under the Constitution, was an object of special legislation, which involved, to some extent, the faith of the city.

Now, the Legislature, by the 117th section of the Act of 1856, confirmed the former action of the Common Council, and extended the special tax to real and personal property, which, as defined in the Act, included capital.

This paragraph of the section is as follows :

“ Be it enacted, &c., That the Common Council shall annually, in the month of January, pass an ordinance to raise, by a special tax upon all property, real and personal, in New Orleans, a sum sufficient to pay the annual interest on the bonds issued by the city for subscriptions to the stocks of the N. Orleans, Opelousas and Great Western Railroad-Company, the New Orleans, Jackson and Great Northern Railroad Company, and the Ponchartrain Railroad Company, specifying the rate of said tax, which shall be collected at the same time, and in the same manner as the consolidated loan'tax of said city ; and all ordinances, resolutions, or other acts passed by the Common Council, after the first day of January in each year, except an ordinance to impose said consolidated loan tax and the ordinance provided for by this section, shall be null and void, unless the ordinance provided for by this section, shall have been previously passed.”

The residue of the section relates to the dividends of the railroads.

The ordinance, then, of the 23d of February, 1857, being legal at the time it was passed, and conferring equitable, if not vested, rights upon the bond-holders, as is apparent by reference to the sixth section of the Act of 1855, (Phillips’ Digest, p. 345,) and Acts above recited, could not be held to be repealed, if susceptible of repeal, except by some positive provision of law, or the clearest and most potent implication.

But when we look to the statute of 1857, we find it only applies to the future. It is from and after the passage of this Act capital of the banks shall be exempt from municipal taxation. It does not say, that former assessments and ordinances are repealed, (which might work injustice,) but that capital shall hereafter be exempt. This Act is then to be construed, as we are directed by Art. 8 0. 0. A law can only prescribe for the future; it can have no retrospective operation, nor can it impair the obligation of contracts.”

The cases cited in 17 La., 1 Rob., and 3 An., are cases where the laws related to the modes of proceeding.

Such laws, by acting upon a process then pending, are really operating in futuro, although such operation, by depriving a party of final judgment in the form of action which he has adopted, may render vain all his previous proceedings. But that is not the case here ; the question is, has the corporation the right to exact from the defendant twenty-three cents on $100 of capital, to pay the interest on railroad bonds ? It is a question of justice and right, and not a matter pertaining to the forum.

The tax of twenty-three cents on the $100, which was valid, did not become invalid by the ordinance of the 25th of March, 1857.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that the plaintiff recover, as the special railroad tax, the sum of two thousand, seven hundred and sixty dollars, with one per cent, interest thereon per month, from the first day of June, 1857, until paid; and that the defendant pay the costs of both courts.

Buchanan, J.,

separate opinion. I think the Chief Justice has made it very clear, that the city tax of twenty-three cents on the $100, for the payment of the interest on tlie railroad bonds, is one that the Legislature could not constitutionally interfere with, apart from the fact of this ordinance being anterior to the Act of the Legislature of the 19th of March, 1857.

But I go further than the opinion of the majority of the court, in this : that I believe the exemption of the four millions of capital of the free banks, defen-. dants in these cases, from the taxation to which all other capital in New Orleans is subjected, is equally unconstitutional.

In developing this idea, I go back to the decision of the majority of this court, pronounced by Chief Justice Merrick, in 1856. 11 An. 41.

That decision held, that the 35th section of the Free Banking Law, approved April 30th, 1853, had the force and effect of a contract between the State of Louisiana and the defendants herein. That 35th section reads as follows :

“ That bankers and banking companies, doing business under this Act, shall be taxed upon their capital stock at the same rate as other personal property under the laws of this State.”

This section was held to absolve the free banks from paying a license to the city, for exercising the business of banking.

At the session of the Legislature following that decision, a law was passed, exempting the capital of free banks from municipal taxation. This law gives those institutions an advantage, equal to one and a half per cent, per annum, over all individual capitalists, or associations of capitalists not incorporated as free banks, in the important business of banking, which furnishes the means for all the operations of commerce.

This Act of 19th of March, 1857, appears to me to be inconsistent with Art. 123 of the Constitution. That Article declares, that “ all property on which taxes may be levied in this State, shall be taxed in proportion to its value, to be ascertained as directed by law.- No one species of property shall be taxed higher than another species of property of equal value, on which taxes shall he levied.” The same Article declares, that taxation shall be equal and uniform.”

But what uniformity is there in the taxation of my individual capital, employed in banking, at the rate of one and a half per cent, per annum, while any six of my neighbors (Acts 1853, p. 302) may go before a Notary Public, and by associating themselves as free bankers, set the Tax Collector at defiance ? This I take to be a freedom in banking, which the framers of the free banking Act never contemplated.

The proof that they did not do so, is found in the 35th section of the Act copied above. That section implies a contract, we have said in the case in 11 Annual. Very well; if a contract, I suppose it was as much so for the one party as for the other — for the free banks, as for the State. But it may be objected, that the State was at liberty, if it thought proper, to release the other party to this contract from his obligations under the contract.

In answer to this, I would say, that the Act of 19th of March, 1856, which authorized the city of New Orleans to tax capital, is as much a law of the State as the Act of 19th of March, 1857. The ordinances taxing capital under that law, are valid and binding until the law is repealed. And we decide in this very case, in conformity to our previous decisions, and in opposition to the argument of the counsel for defendants, that tlie Act of 19th of March, 1856, has not been repealed. The municipal ordinances, then, passed in virtue of a law of the State which is not repealed, are (in the words of the 35th section of the free banking Act) “ laws of this State,” which require the same authority for their repeal, as that which enacted them.

I conclude, that the free banks cannot have a relief from the obligation imposed upon them by section 35 of the free banking Act, so far as municipal taxation of their capital is concerned, without a repeal of the Act of 19th March, 1856, which authorizes the city of New Orleans to tax capital; and that such repeal cannot be inferred from the terms of the Act of 19th of March, 1857, because that would be giving to said Act, a partial, an unequal, and, consequently, an unconstitutional operation.

There is another consideration stated in the argument of the counsel for the city, which docs not seem to mo to have received the attention that it deserves.

This is a suit for a tax on defendant’s capital, for the year 1856. Now, the wording of the Act of 19th of March, 1857, “ from and after the passage of this Act, the free banks shall be exempt," &c., seems entirely consistent with the imposition of a tax for the year 1856, the year previous to the passage of the Act. Taxes are imposed for the year. The exemption spoken of by the statute, may be taken to mean, an exemption for the current year, and for future years. The language is prospective ; not retrospective, nor (by consequence) retroactive.

In my opinion, the plaintiff is entitled to judgment for the whole amount claimed.