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

text:
    Mary J. Bisland v. A. Provosty et al. — McKleroy & Bradford, and Hall, Rodd & Putnam, Intervenors.
    Tho prohibition ill Art. 2¿12 of tho Code against the wife’s binding herself for her husband, or conjointly with him, for debts contracted by him before or during tho marriage, is, to a certain extent, one affecting tbe public order.
    Neither tho acknowledgment of the wife that the debt was contracted for the benefit of her separate estate, nor tho fact that the money was actually paid into her hands, will estop her from afterwards denying her indebtedness, and the creditor is then put upon proof that tho debt inured to the benefit of the wife’s separate estate.
    The doctrine of estoppels has no application to the contracts of married women, when they or their property are sought to bo hold liable for tbe debts of their husbands.
    An exception to tho rule in regard to tho wife’s incapacitiy to hind herself for a debt which does not inure to her seperato benefit, may exist when she has actually committed a fraud, but not when it has beon.impliedly or constructively committed.
    When there lias been no contract of letting and hiring of slaves, ‘aprivilege on the crop raised by them cannot he asserted.
    from the District Court of the Parish of Pointe Ooupée, Ratliff, J.

      T. J. Cooley and U. B. <& E. Phillips, for plaintiff. A. Provosty, Clark & Bayne, G. L. Lacy and R. A. TJpton, for defendants and intervenors, appellants.
   Merrick, C. J.

This suit is brought to recover flftv-five slaves in the possession of the defendant, Provosty, and a large sum for the revenues or hire of said slaves. The plaintiff’s original title to the negroes in controversy, has not been seriously questioned in this court, and for tbe purpose of this decision, we shall assume her title derived from her father and mother’s estate in Mississippi, by inheritance or distribution, to be valid, merely remarking, that we discover no ground upon which her original title can be successfully impugned.

' The controversy in this case arises out of certain acts of mortgage and the renunciations thereto, signed by the plaintiff and relied upon by the syndic and intervenors as a bar to plaintiff’s action.

The first of these mortgages bears date, New Orleans, February 28th, 1856, and was executed by Robert W. McRae, the husband of the plaintiff .alone, in favor of the intervenors, McICleroy c6 Bradford, to secure them for all advances, acceptances, &c., which they might make the said McRea, and the said McRea and partner, C. F. McRea, during the period of the three ensuing years.

The property mortgaged consisted of the Glen Mary plantation owned by Robert W. McRea, and about eighty negroes, including those claimed by plaintiff, then about fifty in number. This mortgage, after describing the land and negroes, contains the following clause, viz :

“ Which land was acquired by said mortgagee on the 24th of January, 1853, from Mrs. Widow Gondreau, by act passed before V. Ledoux, Notary, in said parish, (Pointe Coupée,) and slaves from different persons at different periods by purchase.”

The act also contained a covenant on the part of McRea to procure the renunciation of the plaintiff, (his wife,) to the same. Between the execution of this mortgage and the third day of April following, R. W. McRea drew drafts, having different periods to run, in favor of various persons, to an amount exceeding sixty thousand dollars, which, with other sums, were afterwards paid by McICle-roy <& Bradford. A portion of the drafts appear to have been accepted, but at what time, it does not appear.

On the third day of April, 1856, the plaintiff appeared before the notary who had received the act of mortgage of her husband, and in an act in which the object of the act of mortgage is set forth and the description of the property recapitulated, declared that she ratified and confirmed the mortgage in all its parts, without exception or reservation, meaning and intending that the act should have full effect, force and virtue, and the same validity as though she had been present at the execution of and signed the same. The act then recited, the reading of the act of mortgage, and concluded with the usual renunciation, under the Act of the Legislature of 1835.

The other act of mortgage was executed in the city of New Orleans, on the 26th day of February, 1851, by Robert W. McRea, acting in his own name and as agent for his brother, Conrad F. McRea, and -the copartnership between himself and brother in favor of the intervenors, Hall, Rodd & Putnam, to secure them for advances made and to be made, supplies purchased and to be purchased, and for drafts accepted and to be accepted during the term of five years, and to the amount of $35,000. This mortgage was given upon the Orescent Park place in the parish of Pointe Coupée, and twenty-nine slaves belonging to the copartnership of R. W. & C. F. McRae, and also upon the Glen Mary plantation and slaves, previously mortgaged to McICleroy & Bradford. Twenty five of these slaves were described as purchased of Mrs. Gondreau, and fifty, (which, with their increase, are the subject of this controversy,) are described in the act of mortgage, in these words: And also the following named slaves for life, placed on the said Glen Mary Plantation, by the said Robert W. McRea, and his seperale property, to wit,” &c.

This act was signed by R. W. McRae individually, and in the name of the copartnership. On the third day of March of the same year, 1851, before a Notary in the parish of Pointe Ooupée, R. W. McRae and his wife, the plaintiff, and Conrad F. McRae together with his wife, passed an act of ratification and r enunciation in favor of Hall, Rodd <6 Putnam,, in which the mortgage, executed on the 26th of February, was substantially recited, and the property described with the single exception of the clause which we have just quoted. In the act of renunciation, it is recited in these words : " And also the following named slaves, placed on said plantation by the said Robert W. McRae, since his said purchase, which are separate property, viz,’’ Sc.c.

The act also declares that the parties have carefully examined a certified copy .of the act of mortgage, and that they ratify the same. The act then concludes with a renunciation of the tacit mortgage by the plaintiff, and Mrs. Georgiana McRae, wife of Conrad F. McRae, in the usual form. The day the mortgage was executed, R. W. McRea drew drafts upon Hall, Rodd if: Putnam, for $32,000, which were accepted, but it does not, however, appear at what time.

Previous to the execution of the mortgages in favor of Hall, Rodd <& Putnam, viz, on the 23d day of February, 1857, McKleroy <& Bradford, took judgment by confession in the Fourth District Court of New Orleans, against R. W. McRae, for §81,990 98, with a recognition of the mortgage upon the land and slaves. On the 3d day of March, 1857, the plaintiff, in another act which recited this judgment, released the property from her matrimonial, dotal and paraphernal rights, and-from any claims, mortgages and other privileges to which she might be entitled in virtue of her marriage.

On the 20th of January, 1858, Hall, Rodd & Putnam, obtained judgment by confession, in the Fourth District Court of New Orleans, against R. W. McRae, for §28,385 06, with interest, also recognizing their mortgage.

Execution having issued on the two judgments, and the Glen Mary plantation and all the slaves thereon having been seized under them, R. W. McRae made, on the 6th day of March, 1858, a surrender of his property to his creditors, but omitted from his schedule the negroes claimed by his wife.

The same day the defendant, Provosty, placed an overseer in charge of the property, including that claimed by the plaintiff. On the ninth day of March, the plaintiff and her husband executed a notarial act, by which she professed to resume the administration of her paraphernal property, and the same day her attorney made a formal demand of the defendant, Provosty, of her negroes, but they were not given up. On the sixteenth day of March, the creditors deliberated, and elected the defendant, Provosty, syndic, and he qualified the next day by giving bond. •

On the 29 th day of May, 1858, the plaintiff instituted the present action against the defendant, Provosty, both in his individual capacity and as syndic, to recover, as we have already observed, the slaves and the value of their services. McKleroy & Bradford and Hall, Rodd & Putnam, intervened in the suit.

Judgment was rendered on the 9th day of October, 1858, in favor of the plaintiff for the slaves claimed in her petition, and the sum of §520 per month, from the 6th day of March, 1858, until the slaves shall be delivered to the plaintiff for their hire, as against the syndic, with a privilege upon the crop of 1858 in his hands. The syndic and intervenors appeal.

As the defence of the syndic and the claims of the intervenors are based upon the acts of mortgage and renunciation, we shall consider the matters discussed in the various briefs and oral arguments collectively.

The question of plaintiff’s original title having been disposed of, the following points made by the appellants and appellee, seem to cover the questions in controversy, viz:

1st. “ That plaintiff admitted the slaves in controversy to he the property of her husband, and intervenors acted upon the strength of such admission ; and as a consequence, she is judicially estopped from the denying the same, even though made during coverture.

2d. “ That the conduct of the plaintiff has been deceitful and unfair, not to say fraudulent; and as a consequence, Mrs. McRea is deprived of the right to ask assistance at the hands of the court.”

3. The judgment of the lower court is erroneous if the preceding grounds are not tenable, because the amount allowed for the hire of the slaves is excessive. And,

4. The appellee contends that the judgment for the value of the services of the slaves ought to be against the defendant, Provosty, in his individual capacity.

I. Although it does not appear at what time the drafts of McRae were accepted by the intervenors, we think it must be inferred that a portion of the indebtedness, amounting to a large sum in each case, was furnished by them after the act of renunciation was passed. It is there urged that McRae, by the Acts of mort'gage, declared that the slaves in controversy were his, and in the acts of renuncia■tion the plaintiff, so far from setting up title in herself, recognized and confirmed the statement of her husband that he -was the owner of the slaves; and it is contended that the intervenors acted upon the faith of her admission, and as a consequence, she is is estopped from controverting the title of her husband. It is not •pretended that the debts contracted by McRae enured to the benefit of his wife. They were, therefore, debts for which the wife could not bind herself in any form of contract, by reason of an express prohibition of the Code. C. 0. 2412. This prohibition is, to a certain extent, one affecting the public order. Gasquet v. Dimi-try, 9 L. R. 590. It is so imperative, that it has been held, and is well settled, that though the wife iu the act acknowledge that the debt w'fts contracted for the benefit of her separate estate, or though the money be actually paid into her hands, yet, so far from being estopped, the simple denial of the wife shall put the creditor, in each of these cases, upon proof that the debt enured to the benefit of her separate estate. Erwin v. McCalop, 5 An. 173 ; Brandigee v. Kerr, 7 N. S.; Beauregard v. Her Husband, 7 An. 294. The reason of the rule, as it has been .often reiterated, is, that if the wife were to be concluded by her admissions in the contract, it would only be necessary to change the form of the instrument, in order to evade the law. In reference to this subject, the court said, in the case of Cuny v. Brown, 12 Rob. 84: “ This prohibition cannot be evaded by disguising the suretyship under the specious form of some other contract, which the wife might validly contract. We will endeavor to look through such disguises, and give effect to the provisions of law for the protection of the rights of married women.” This was reiterated in the case of Theriet v. Voorhies, 12 An. 852 ; and it was again said, “ It is the uniform practice of this court to look through all disguises in which men may shroud their business dealings; to prevent, so far as possible, the property of the wife from being sacrificed for the debts of her husband, from which she derives no benefit.” In Pascal v. Sauvinet, 1 An. 429, it was said that “ whatever form the contract may be made to assume, its true character may be inquired into, and when it has not turned to her benefit, she will be relieved from the obligation.” See also Provosty v. Demoulin et al. 14 An. In McIntosh v. Smith it was held, that where a wife stood by and saw her property sold to pay her husband’s debts, that she was not estopped from asserting her ownership subsequently. The court said : “ If she suffer it to be done without opposition, the law presumes that she was prevented from asserting her rights. The legal presumption which excuses her when she commits a certain felony in company of her husband, must avail her also in cases of this kind.” 2 An. 756.

The wife is not, therefore, estopped by the assertion of her husband, con'ained in his act of mortgage, that the property belonged to him, nor by her act of renunciation; for the reason of the law is the same in this as in the cases cited. If the assertion of ownership in the husband, in the act of mortgage, could bind the wife, the Article 2412 of the Civil Code would be a dead letter, and this formula would be introduced into every notarial act intended to be signed by a married woman. Nor do we think the fact that the money was furnished upon the faith of the mortgage, a circumstance which distinguishes this case from all others. It was so furnished, upon the note sued upon in the case of Brandigee v. Kerr, and it is assumed by the court, that the money was paid into the hands of the wife herself.

We conclude, therefore, that the doctrine of estoppels has no application to the contracts of married women, where they or their property are sought to be held liable for the debts of their husbands.

II. In regard to the question of fraud, it may be observed that the supposed fraud consists in signing an act of renunciation to a mortgage in which the husband had included his wife’s property with his own, and mortgaged the same, describing it as his separate property. This act of mortgage appears to have been prepared by other persons, out of the presence of the wife, and the fraud must therefore consist in having signed an act of renunciation, in which she recognized the declaration that all the slaves upon her husband’s plantation were his property. In the majority of cases, on this state of facts, there would be as much reason to charge the parties who had signed the original act with fraud, as there would be to charge the wife. And this will be quite evident, if we reflect upon how little attention is given by women to matters of business, and the manner in which these prolix notarial acts are usually passed.

It is a rule of our law that fraud must be proven. A constructive fraud cannot be admitted to deprive a married woman of her estate, for, after all, it would be nothing more than an estoppel, which we have just demonstrated has no application to contracts entered into by married women for the benefit of their husbands.

The rescripts of Antoninus and Severus — Decipientibus mulieribus Senatus-con-sultum auxilio non est — is cited as making an exception to the rule. Thesenatas-consultum referred to was that of "Velleianum which was much more comprehensive than the 61st law of Toro or Article 2412 of the Civil Code. Velleiano Senatus-consulto plenissime comprehensum, est, ne pro vello famines intercedereni. D. 16, t. 1,1.1.

The exception therefore became very important, as the senatus-consultum applied to women whether married or single, or under the powet of others, and from its tenor and the context, it is evident it can have its application only where the woman has actively and not impliedly or constructively committed a fraud. See D. 1. xvi, 1.1, lex. 2, | 2 & 3.

Under our Article 2412, which is confined exclusively to the contracts of married women, it is supposed that the wife may be induced to sign a contract injurious to her rights under the marital influence. Hence the Act of 1835 was passed which required her to be examined separate and apart from her husband before she could be permitted to renounce her tacit mortgage, and hence prescription is not permitted by Article 3491 to run against her in any case during the the continuance of the marriage, where her action may be prejudicial to the interest of the husband. See also McIntosh v. Smith, 2An. 756.

It has been demanded of us with great earnestness by counsel for the inter-venors, whether we are prepared, by affirming this judgment, to sanction a doctrine which will be extremely detrimental to the commercial interest and enable married persons to commit the greatest frauds upon commission merchants and others advancing them funds ?

It is a sufficient reply to this to say, that ordinary prudence requires a man who is about to purchase or to advance largo sums upon a mortgage upon real estate and slaves to require a production of the title papers or, where these are wanting, certificates and affidavits of disinterested persons to supply the loss. A party who neglects these most obvious and ordinary precautions can only charge his losses to his own want of care.

We are not here to make laws for the benefit of particular classes. It is our duty to expound the laws as we find them and leave it to the Legislature to introduce such changes as the public interests require.

Again, we are admonished, and authorities are cited to show that suitors must come before courts of justice with clean hands and that courts of justice cannot come in contact with falsehood but to denounce it, and that it is an exploded and antiquated doctrine that the rights of married women are to bo protected under all circumstances.

For a reply it is sufficient to say that where the law declares that the weak sha,11 be protected, the courts are hot to withhold the relief which the law grants, because such person may have been induced by improper marital influences to sign acts ratifying or confirming that which is not strictly true.

We have been cited to authorities of our sister States, supposed to be applicable to the question of fraud. It is unnecessary to consider them here, and it is a sufficient answer to whatever inference may be drawn from them, to say that they are authorities derived from other systems of law, and where the State policy may be somewhat different from our own.

We are also referred to the case of Bein et al v. Heath, 6th Howard, 239, as a just exposition of our law oh this subject by the Supreme Court of the United States. This case, it must be borne in mind, was decided on the chancery side of the court, and was governed by the rules of chancery law rather than the laws of Louisiana. The case, therefore, though somewhat at variance with our decisions cannot be considered as furnishing a new rule for the courts of this State. We think it safer to follow in the beaten path of our predecessors.

The jurisprudence of the State had been their study during their lives, and we may safely conclude they had comprehended its spirit and its policy. If innovations are to be made, as we have already observed, they can be made by the Legislature much more appropriately than by the courts.

III. On the subject of the value of the services of the slaves, we think the District Judge has formed a just estimate. He had the witnesses before him and he appears to have selected a medium between the extremes.

IY. The appellee demands, by her answer to the appeal, that the judgment bo amended, so as to give her a personal judgment against the defendant, Provosty. This change in the judgment is resisted by the defendant, Provosty, on the ground that he appealed as syndic, and not individually. On an examination of the entries on the minutes and the appeal bond we think he stands before this court in both capacities. Were it not so, it would be our duty to dismiss the appeal for the want of proper parties, viz : A. Provosty, in Ms individual capacity, in whose favor judgment was rendered in the lower court. As the mention of A. Provosty in the bond and motion for appeal may be construed to mean either capacity, and the addition of syndic in one part of the bond and its omission in another may be regarded as a descriptio persones, we think in the absence of any phrase excluding' the idea of an appeal in his individual capacity, that it may be held that the defendant intended to bring himself before us in such capacities as should be necessary to maintain the appeal.

It has been already shown that the defendant, Provosty, took possession of the slaves before his appointment as syndic, and that on demand he refused to deliver them to the plaintiff, having contested her title to the present time. It is therefore evident that there is no contract of letting and hiring- between the parties, and, as a consequence, no privilege on the crop. See Fisk v. Moores, 11 Rob. 280, and Blanchard v. Davidson, 7 An. 654.

The right to recover the value of the services of the slaves is a part of the so called omnis causa of the civilians, and partakes of the nature of the real action which it follows. C. C. 491 ; 3 L. R. 550 ; 6 Savigny, 246, 251, Berlin ed. It would seem, therefore, that if the right of the plaintiff to recover against the defendant in his individual capacity be recognized, that the revenues will follow the main action by right of accession. Mackeldey, P. Speciale, §302, No. 4. In the case of Calmes v. Carruth, 12 Rob. 664, a case very similar to the present, it was held that the defendant was liable in his individual capacity. It is proven in this case by one witness, that the services of the negroes were indispensible to the creditors in order to take off the crop. If this be so, it will doubtless enable the syndic to charge as a part of the expenses of making the crop the sum which he is hereby condemned to pay to the plaintiff for the value of the services of the slaves.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be amended, so tkát in lieu and place of the judgment against the syndic for the hire of said slaves with a privilege upon the crop in his hands, it be ordered, adjudged and decreed by the court, that the plaintiff do have and recover judgment against the defendant, Auguste Provosty, individually, for the sum of five hundred and twenty dollars per month, from the sixth day of March, A.D. 1858, until said slaves shall be delivered to the plaintiff, and that said judgment so amended be affirmed, the appellants paying the costs of the appeal.

Buchanan, J.,

dissenting. I dissent from the decree pronounced in this case, for reasons given in my dissenting opinion in Belouguet v. Lanata, 13 An. 2.


source: Caselaw Access Project

author: Land, J.

license: Public Domain

text:
    James J. Amonett v. Young & Bemiss.
    A party who being himself the owner of property, points it out to be seized in execution for the debt of another, will be estopped from denying the title of the defendant in execution.
    from the District Court of the Parish of Madison, Farrar,-3.

      A. T. Steele, for plaintiff and appellant. Snyder <& Bemiss, for defendant.
   Land, J.

This is a suit in which the plaintiff prays for a judgment decreeing ■him to be the owner of seven hundred and twenty-five acres of land described in his petition, and quieting his title thereto as against the defendants.

The lands in dispute were purchased by David II. Groves, from the United States government, and were sold by him afterwards, on the 2d of April, 1841, to Louis A. Collier, on a credit of one and two years, retaining a vendor’s privilege as security for the price.

On the 7th of August, 1848, these lands were sold by the United States Marshal, in the suit of the Farmers’ Bank of Virginia v. Thompson L. King, to the plaintiff.

The lands had been pointed out to the Marshal by Louis A. Collier, as the property of the defendant in execution, Thompson L. King.

On the 1st of May, 1844, Louis A. Collier made a cession of his property, in the parish of Orleans, to his creditors.

On the 4th of September, 1847, these lands were sold by the Sheriff of the parish of Madison, in virtue of a writ issued in the suit of Louis A. Collier v. His Creditors, to the plaintiff, Lames J. Amonett, and to William Amonett.

The plaintiff claims title by virtue of the judicial sales above mentioned.

On the 30th oí May, 1842, David H. Groves commenced suit in the parish of Concordia, on one of the promissory notes given for the price of the lands and claimed a vendor’s privilege on the same.

On the 11th day of December, 1843, David H. Groves, obtained judgment against Louis A. Collier, recognising his privilege, and ordering the lands to be seized and sold for the satisfaction of his debt.

On the first Saturday in the month of October, 1848, the lands were sold by the Sheriff of the Parish of Madison, by virtue of a writ of fieri facias, issued in the suit of David II. Groves v. Louis A. Collier, to the defendants, Young <& Bemiss. '

It is clear that the act of Collier, in pointing out the lands to the United States Marshal, as the property of Thompson L. King, and their subsequent sale, as the property of the defendant in execution, had the effect of divesting Collier’s title, and fcransfering it, to the plaintiff in this suit, for the reason that the act of Collier, estopped him, from denying afterwards the title of the defendant in execution. Marsh v. Smith, 5 Rob. 523 ; McMasters v. Atchafalaya Bank, 1 An. 11 ; Blanchard v. Allain, 5 An. 368.

As Collier, therefore, was without title, at the date of his cession, the lands in dispute did not pass by operation of law to his creditors, although they had a right of action, to avoid the sale by the Marshal, on the ground of fraud.

The act of Collier, however, in pointing out the lands as the property of Thompson L. King, did not extinguish the vendor’s privilege, and the plaintiff purchased the same, subject to this encumbrance.

The defendants purchased the lands at the Sheriff’s sale in the suit of David II. Groves v. Louis A. Collier, under a writ ordering them to be sold to satisfy the privileged debt of the vendor, and thereby acquired a good and valid title as against Collier, and all parties holding under him. It is not pretended that Thompson L. King had any title.

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


author: Cole, J.

text:
      W. Sadler v. White et al.
    It cannot affect the negotiability of a note, that its consideration is to berealized in future, or that from some contingency it may never be realized.
    If the consideration of the note had not failed at the time of its transfer, the maker cannot set up as a defence, that the holder knew that there might be offsets against it.
    from the District Court of the Parish of East Feliciana, Ratliff, J.

      Muse & Hardee, for plaintiff. John <& Charles Me Vea, for defendants and appellants.
   Cole, J.

This suit is instituted upon the following instrument, signed by the defendants:

“On the first day of January, 1857, we, or either of us, promise to pay T. 1. Warsham or bearer, three hundred and fifty dollars, for value received, with eight per cent, interest from maturity till paid.”

There was judgment for plaintiff, and defendants have appealed.

Payment of the note is resisted, upon the ground of a failure of consideration, and that the plaintiff, a third holder, is bound by the equities between the original parties to the same.

The answer avers, that the note was given for and in part consideration of the rent for the year 1856, of a hotel and other property attached to the same ; that the hotel was rented by White, one of the defendants of Worsham, the payee, and of Dixon ; that on the 3d of May, 1856, the hotel was sold at Sheriff’s sale, to satisfy an outstanding mortgage and vendor’s privilege for a certain amount due by the purchasers thereof, Worsham and Dixon, and was bought by J. F. Me-Kneely ; that the lease in favor of White was thus destroyed, and he was compelled to rent the property from the new purchaser, McKneely, at the price of $550, for the balance of the year 1856.

That the present holder of the note well knew, before he became the owner of the same, the circumstances under which it was given and put into circulation, and that it was executed for the aforesaid consideration.

That plaintiff, knowing that the consideration of the note was not realized by the makers at the date of the same, but was future and contingent, and that there might be offsets against the note, purchased it at a usurious discount, viz, for about $275. The answer concludes that plaintiff is bound by the equities between the original parties to the obligation, and as the consideration has totally failed, he has no right to recover upon it.

It is unnecessary to express any opinion upon the two bills of exception, relied upon by the appellants for a reversal of the judgment, because their answer sets up no legal defence.

1. As the consideration was legal in its nature, even then if it had been expressed in the note, its negotiability would not have been affected. Canal Rank v. Holland, 5 An. p. 364.

2. Plaintiff received the note before its maturity and before a failure of the consideration.

Even if it were known to him, taking it, that the consideration was future and contingent, and that there might be offsets against it, this would not make him liable to the equities between the defendants and payee.

If such -were a sufficient defence, it would destroy materially the negotiability of notes, for in almost every case of the purchase of a note, the buyer knows, there might be equities between the original parties to the same.

It cannot affect the negotiability of a note, that its consideration is to be hereafter realized, or that from some contingency, it may never be enjoyed.

Any one, having sufficient confidence in another to give his written obligation for something to be given or enjoyed hereafter, is at liberty to do so, and the maker cannot censure any future holder of the note for having purchased it, and for seeking to hold him liable, for it was the faith of the maker in the payee, that he would execute his promise and allow no obstacles to defeat it, that created the note and gave currency to it.

In the present case, there was a valid consideration promised for the obligation and it could not be known with certainty, that it would fail, until the hotel was sold, for the payee could up to the sale have satisfied the debt due for the price of the hotel, and have satisfied the consideration by allowing defendants to occupy the same.

The case would present a different aspect, if the allegations of the answer had been, not that plaintiff knew there might be, but that there were equities between the original parties to the note, or that he knew not that the consideration might never be enjoyed, but that it could not or would not ever be realized. Maurin v. Chambers, 6 R. 62 ; Barelli v. Szymanski, ante p. 47.

Judgment affirmed, with costs.


author: Merrick, C. J.

text:
    Rosalie Hache et als. v. John F. Ayraud et als.
    The Civil Code of 1825, does not contain the provisions of the old Code on tho subject of licitation.
    The sale to effect a partition under a decree of court, must he made to the highest bidder at public auction. It is a judicial sale which, under Article 1863 of the Civil Code, cannot he invalidated on account of lesion.
    Lesion will not invalidate a judicial sale to effect a partition even when the purchaser is one of the heirs of the estate to he divided.
    Article 1440 of the Code, which says, that acts of sale which tend to the division of property between co-heirs, are subject to rescission for lesion beyond a fourth, must be construed to mean an extra judicial sale, andnot one ordered by a court of justice, at which strangers as well as heirs may become purchasers for the purpose of effecting a partition.
    from the District Court of tbe Parish of Ascension, Duffel, J.

      A. Gentile and Mills & LeBlanc, for plaintiffe and appellants. J. H. llsley, for defendants.
   Merrick, C. J.

The plaintiff instituted an action for a partition of the property belonging to the successions of her father and mother. In her petition, among other things, she alleged that the property was burthened with debts, and that it could not be conveniently divided in kind, and she prayed that it might be sold at auction in the sh'oTtest delay, by a competent officer, for cash, each slave, &c., separately.

The defendants answered, and admitted the propriety of a partition by licitation. They prayed for a sale of the property in block, and the defendant, John F. Ayraud, claimed the right, as administrator, to retain a sufficient amount of the proceeds of the property to pay the debts. After hearing the parties, (all being of full age,) the Judge decreed a sale of the plantation and fixtures, &e., certain negroes mortgaged to the Consolidated Association, and 500 shares of the stock of the said Bank to be sold for cash, in block.

The property was regularly sold by the Sheriff, and bought in by five of the co-heirs for $15,000, it having been appraised at $25,006 50.

The present suit is to rescind the licitation on the ground of lesion beyond one-fourth. There was judgment in the lower court against the plaintiff, and she appeals.

Assuming that the action of partition was the main action, and the demand by the plaintiff that the debts also should be paid, a mere incident to the same, the case presents only a question of law, viz., can a sale made to effect a partition under a decree of the court, where the property is adjudicated to certain heirs, be rescinded on the demand of a co-heir for lesion beyond a fourth ?

The appellant contends that the following Articles of the Civil Code guarantee to her the action, viz:

Art. 1436 — •“ They (partitions) may even be rescinded on account of lesion ; and as equality is the basis of partitions, it suffices to cause the rescission that such lesion be of more than one-fourth part of the true value of the property.”

Art. 1440 — “ The action of rescission mentioned in the foregoing Articles, takes place in the cases prescribed by law, not only against all acts bearing the title of partition, but even against all those which tend to the division of property between co-heirs, whether such acts be called sales, exchanges, compromises, or by any other name.”

Were these Articles of the Code the only ones bearing on the subject, (elucidated as they are by the numerous authorities cited from the French writers and the decisions under the Code of 1808,) there would not be much difficulty in deciding the case in favor of the plaintiff’s pretensions.

But we are met by two other Articles of the same Code, which declare that lesion cannot have place in judicial sales, even in the case of minors. C. C. 1863, 2512.

To this it is replied by plaintiffs’ counsel, that the licitation by which property is adjudicated to a co-heir, is not a sale. The French writers appear to be unanimous on this subject, and to support fully this position of plaintiffs’ counsel. The case, also, of Porter v. Depeyster, 18 La. 351, seems to give some countenance to this conclusion.

But we think that a careful comparison of the Code of 1825 with the Code of 1808, will leave but little room to doubt that where property is sold to effect a partition, it must be viewed in most respects as a sale.

Pothier, after giving the origin of the word licitation in matters of partition, defines it thus:

“We understand by licitation, an act by which the co-heirs or other co-proprietors of a thing by undivided interests, put it up at auction among themselves, in order that it shall be adjudged to belong wholly to him offering the most ai.d bidding last, under a charge upon such last bidder to pay to each of his co-proprietors a part in the price equal to the undivided interest which each of the said co-proprietors had in the property offered previous to the adjudication.”

This licitation, Pothier declares, is not a sale, and the heir to whom the properly is adjudicated, is thought to hold directly from the intestate. Pothier, Y ente, Nos. 638, 639 ; see also Merlin, verbo Licitation, s. 1.

The Code of 1808, follows this doctrine of Pothier, and Article 1Y4, p. 188, expressly declares, that the “ cant or licitation is not a sale; it is a mode of partaking, one of the effects of the action of partition of a thing held in common; it is the complement of the partition.”

The case of Porter v. Depeyster, 18 La. 851, was one arising under the Code of 1808, and governed by the preceding Article.

In the Code of 1825, the Article above recited was suppressed. In the place of the provisions of the old Code on the subject of licitation, the new Code declares, that where the property to be partitioned cannot be conveniently divided, “ the Judge shall order, at the instance of any one of the heirs, &c., that it he sold at public auction.” Art. 1261.

Arts. 1263 and 1264, provide how the sale is to be made.

Arts. 1265 declares, that any co-heir of full age, at the sale, can become a purchaser, and it allows him to retain the purchase money until his portion is fixed by a partition.

Art. 1266 provides for the purchase of the property by minors.

Art. 2603 is similar to Article 1265.

Arts. 2594 and 2595 declare, sales ordered in matters of partition to be judicial sales.

But it is contended, that the adjudication of property owned in common to a co-heir, cannot, in its nature, be viewed as a sale. We find under the Code of 1825 and Code of Practice, that by adjudication alone, the interests of the other co-heirs, are transferred to the heir purchasing. O. O. 2601 ; C. P. 690. The heir to whom the property is adjudicated, acquires the interest of his co-heirs, for a price in money. It has then, to this extent, the essentials of a sale.

But Article 1440 says, all acts of sale which tend to the division of property between co-hpirs, are subject to rescission for lesion beyond a fourth, and this produces a conflict with Article 1863, which declares that no lesion whatever can invalidate judicial sales. It is evident that these two Articles find their harmony in construing the act of sale tending to a division of property spoken of in Art. 1440, to mean an extra judicial sale, and not one ’ordered by a court of justice, at which strangers as well as heirs may become purchasers for the purpose of effecting a partition.

Notwithstanding- the low price which property sometimes (though rarely) brings at probate sale, we think the provisions of law on the subject of judicial sales wise, and that they tend to the security and stability of titles. Besides, the doctrine contended for by plaintiff, would produce inconvenience and sometimes injustice.

It is conceded, that if a stranger buys property at a judicial sale made to effect a partition, there can be no lesion. Why should the heir who has out bid all strangers, be placed in a worse condition than a stranger would be placed, who had bought the property at half the price given by the heir ? If the co-heirs are to have relief for lesion, why should not the heir who has bid a fourth over the value also be relieved ?

It appears to us that our learned brother of the District Court has placed the proper construction upon the Articles of the Code in question, and we lully concur in his conclusions.

Judgment affirmed.


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    C. Mavor et al. v. E. Armant, Administrator, et al.
    The cumulation of a demand for the partition of succession property with a demand for the partition of property held in common, where there is no privity of estate between all the parties, plaintiffs and defendants, is not authorized by the rules of pleading.
    An heir who purchases at the sale of the hereditary effects is not obliged to pay the surplus of the purchase money over his portion of the succession, until the portion has been definitely fixed by a partition.
    from the District Court of the Parish of St. James, Duffel, J.

      Legardeur, Rsley, Berault <& Legendre, A. <& A. Pitot and C. Morel, for plain' tiffs. Janin & Griffon, for defendants and appellants.
   Land, J.

This is a suit for a partition, and the following statement of facts will show the nature of the property to be divided and the respective interests therein of the parties to the action.

On the 15th of January, 1847, Jean Baptiste Armant and his wife made a donation, inter vivos, to their twelve children, of a large sugar estate with the improvements thereon, situated in the parish of St. James in this State, together with one hundred and fifty two slaves.

On the 23d of January, 1857, John S. Armant, the eldest son, and one of the donees, made a donation, inter vivos, to his own children, of the property donated to him by his father aDd mother in 1847.

In 1854 /. B. Armant died, and his wife in 1858, leaving some six thousand three hundred acres of land, nineteen slaves and other property as belonging to their joint successions.

This suit is for the partition of these two estates.

First — For the partition of the property of the successions of J. B. Armant and of his wife Bose Carmelite Cantrelle.

Secondly — For the partition of the property held in common by the donees under the act of donation of the 15th of January, 1847.

Five of the defendants have no interest in the succession property of J. B. Ar-mant and Rose Carmelite Cantrelle. And one of the defendants has no interest in the property held in common under the act of donation of 1847. These parties without interest, as above stated, are John S. Armant and his five children.

The appellant, Terance Armant, objected in his answer to the petition, to the partition of these two estates as one. His objections were overruled, and the two estates were ordered to be sold together in hloclc, to effect a partition.

The defendant, John S. Armant, had no capacity to stand in judgment as to the property held in common, for the reason that he was without any interest in this estate ; and his five children wore without capacity to stand in judgment as to the successsion property of J. B. Armant and Rose Carmelite Cantrelle, for the reason that they were without interest in that estate.

Article 1’252 of the Civil Code provides that the heir who wishes a division must cite his co-heirs or their representatives, that the partition may be ordered, and the form thereof determined if there should be any dispute in this respect. And Article 1253 declares, that he who sues another for a partition of the effects of a succession, confesses thereby that the person, against whom the suit is brought, is an heir.

It is evident, not only from these Articles of the Code, but from all the other provisions of law upon the subject of partition, that the suit can only be instituted, and carried on against the co-heirs themselves or their representatives.

The cumulation of a demand for the partition of succession property, with a demand for the partition of property held in common where there is no privity of estate between all the parties, plaintiffs and defendants, is no where authorized in the law, but is at variance with the well settled rules of pleading.

The law does not permit a creditor to sue all of his debtors in the same action, unless there is a joint liability or privity of contract which authorizes the joinder, nor will it permit a party to be joined in a demand in which he has no interest.

It is contended that John 8. Armant and his five children alone have the right to make the objection, and not the appellant, against whom the plaintiffs have an undisputed right of action. This positition would have great strength if the appellant’s rights could in no way be affected by the cumulation of these demands.

The appellant, however, has the right at the sale of the hereditary effects, under Article 1265 of the Code, to become a purchaser to the amount of the portion owing to Mm from the succession, and is not obliged to pay the surplus of the purchase money over the portion coming to him until this portion has been definitely fixed by a partition.

The joinder of these two demands, and the judgment of the lower court thereon ordering the two estates to be sold together, may, and perhaps do, deprive the appellant of the right, at least the ability, to purchase the hereditary effects, by compelling him, in order to exeróise this right, to buy other property to a very large amount at the same time.

The appellant, iu his answer to plaintiff’s petition, alleges that the lands of which he is a co-proprietor are of great extent and value, on which some three or four separate sugar plantations could be established of sufficient extent, and that as a whole, a force of fifteen hundred slaves would be required to cultivate the same profitably, and that his rights and interests would be sacrificed for the benefit of speculators should the court decree that the sale of the lands and slaves be made in block.

'Whatever may be the ability or wishes of the appellant to purchase the property ordered to be sold in block by judgment of the lower court, he has the right to purchase the properly of the successions of his father and mother at a" sale to effect a partition, with privileges not enjoyed by ordinary purchasers, and he has demanded in his answer, that the property of these successions be sold separately from the property held in common. This right it is the duty of the court to recognize and enforce.

The court erred, in ordering these two estates to be sold in block.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be annulled, avoided and reversed, and that the cause be remanded for further proceedings according to law, and that the plaintiffs pay the costs of this appeal.


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    James Scully v G. S. Hawkins, Administrator.
    A general and indefinite suretyship extends to all the accessories of the principal obligation and even to the costs of suit. 0. C. 3009.
    from the District Court of the Parish of East Feliciana, Ratliff, J.

      R. J. Bowman, for plaintiff. Hardesty <& Reman, for defendant and appellant.
   Land, J.

The plaintiff and one /o/m O’Callaghan-were merchant tailors in partnership. The plaintiff sued his partner for a settlement of accounts, and sequestered the partnership effects. Subsequently, O’Callaghan was appointed by the court receiver, and gave bond for his faithful administration of the partnership property, in the sum of two thousand dollars, with M. G. Mills, since deceased, as his security.

O’Callaghan failed to render an account to the plaintiff, who instituted suit agaihst him for that purpose, and obtained judgment fixing his liability to the partnership in the sum of eight hundred and sixteen dollars, for one half of which and the costs of suit this action was instituted against the succession of the security.

The defendant contends that the security cannot be made liable upon his bond for the costssof the suit instituted by plaintiff against the receiver for rendition of account.

The condition of the bond is, that O’Callaghan shall faithfully discharge his duty as receiver, and render a faithful account of his^acts and doings to the plaintiff.

The failure of the receiver to render his account was a breach of the condition of the bond, for which plaintiff obtained judgment against him, including the costs demanded in this suit, which formed a part of the judgment, and for which the security is also liable.

A general and indefinite suretyship extends to all the accessories of the principal obligation, and even to the costs of suit. C. 0. 3009.

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

Merrick, O. J., having been of counsel in the original case, took no part in this case.


author: Merrick, 0. J.

text:
    G. Clark and Husband v. P. Hébert et al.
    "When theappeal is from a judgment in favor of the defendant, in a representativo capacity, the appeal is defective and will be dismissed if the appeal bond is made in favor of the defendant without mentioning his representative capacity.
    from the District Court of the Parish of West Baton Rouge, Beale, J.

      G. L. Bright, for plaintiffs and appellants, A. S. Herron, Bernard & Pope, for defendants.
   Merrick, 0. J.

There is a motion to dismiss the appeal in this case.

The suit has been brought against the defendant in her capacity of widow in community and tutrix to the minor children of Vincent Kirkland, deceased, and the defendant in her capacity of tutrix has set up a reconventional demand.

The appeal bond is executed by the plaintiffs in 'her favor, in her individual capacity only. The appeal is defective, in not making the defendant a party in her capacity of tutrix.

It is, therefore, ordered, that the appeal taken in this case be dismissed, at the costs of the appellants.


text:
    J. D. Comaux v. Rosalte Doiron and Fergus Clement.
    In a redhibitory action, the plea of prescription will be maintained if the term for bringing the suit has elapsed, although a demand is made in the petition that a note given as part of the price should be cancelled and annulled.
    from the District Court of the Parish of East Baton Rouge, Wilson, J.

      J. McCutchen, for plaintiff and appellant. T. G. Morgan, for defendants.
   Merrick, 0. J.

This is an action of redhibition. Among other defences, the plea of prescription of one year is filed.

The sale was made of the slave on the 31st day of Januai’y, 1857. Service of citation was made February 4th, 1858. To avoid the effect of the plea, the plaintiff avers that the defendants had knowledge of the redhibitory vice, and concealed the same at the time of sale. 0. 0. 2512, 2523, 2524.

There is no sufficient proof of such knowledge in the record.

Again, it is contended, that inasmuch as the plaintiff demands that his promissory note given as a part of the price should be cancelled and delivered to him, that the action ought to be maintained to this extent, because defendant can make his defence to an action upon the note available, whenever he is sued upon the note.

"We cannot disregard the forms of proceeding in this manner. The plaintiff is the actor, and the law says his demand as such is prescribed. It will be time enough to consider what his rights are as a defendant, when he is sued upon the note.

Judgment affirmed.


text:
    Mary M. Morris et al. v. Elizabeth Harrell, Tutrix.
    A motion to dismiss an opposition filed to an act of partition is not in the nature of an exception, which admits the allegations contained in a petition, and does not dispense with proof on the part of the opponent.
    An agreement in the act of partition, that the same shall he irrevocable, is, in the absence of proof of error or fraud, binding on the parties to it.
    RPEAL from the District Court of the Parish of St. Helena, Beale, J., pre--CL siding.

      Thompson & Russel, for opponent and appellant. G. W. Watterston, for appellees.
   Land, J.

The property of the succession of Abram II. Morris, deceased, was sold to effect a partition between his heirs, the plaintiff, a married woman, and two minors represented by the defendant.

After deducting the sum of $817 42, claimed by the widow in community as her separate property, and the sum of $974 75 for the purpose of paying debts, the balance of the proceeds of the sale was divided in equal parts between the plaintiff and her co-minor heirs.

The plaintiff, authorized by her husband, filed an opposition to the homologation of the partition, on various grounds.

The defendants filed a motion to dismiss the opposition, on several grounds, one of which was, that the opponent had agreed absolutely to said partition, and had ratified the same by her acts.

The act of partition is found in the record, is signed by the opponent, and contains the following clause:

The parties being all present, consenting and agreeing that the above and foregoing partition shall be and remain firm, binding and irrevocable, on each and every one of said heirs, to the end and for the purpose specified in the order of the court, ordering the same.”

The opponent offered no testimony to prove the allegations made in her opposition, and the Judge sustained the motion to dismiss.

The motion was not in the nature of an exception, which admits the allegations contained in the petition, and therefore did not dispense with proof on the part of the opponent.

The motion was in the nature of a rule to show Cause, and put at issue tlie: merits of the opposition.

The agreement in the act of partition, that the same should remain irrevocable» in the absence of all proof of error or fraud, was sufficient to authorize the judgment of dismissal.

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


text:
    School Directors, &c., v. Nicholas D. Coleman.
    Tlio 34tti section of the Act of the Legislature of 1857, which requires that before the sale of school lands there shall he an appraisement, and that in no case shall they be sold for less than one dollar and twenty-flvo cents por acre, means that the land shall bring its appraised value, but that in no case can it be appraised at less than $1 25 per acre. ,
    from the District Court of the Parish of Madison, Farrar, J'.

      P. Alexander, for plaintiffs and appellants. Short S Parham, for defendant.
   Cole, J.

The 34th section of the Act of 1855, to organize free public schools in the State of Louisiana, did not require an appraisement of the school lands before they were sold. Scss. Acts, 1855, p. 430, § 34.

In 1857, an Act was passed to amend this section. One of the amendments was, that the land should be appraised.

Section 34, as amended, reads as follows : Be it further enacted, &c., That if a majority of the votes taken in a township shall give their assent to the sale of the lands aforesaid, it shall be appraised by three sworn appraisers selected by the Treasurer and Recorder of the parish; then they shall be sold by the Parish Treasurer at public auction, before the court-house door, or by the Sheriff, or an auctioneer to be employed by the Treasurer at his expense, to the highest bidder, in quantities not less than forty acres ; but in no case at a less sum than one dollar and twenty-five cents per acre, &c.” Sess. Acts, 1857, g 34, p. 239.

Certain school lands were sold under this section, and adjudicated to defendant for less than the price of appraisement.

This suit is brought to have the sale annulled, because they were sold for less than the appraised price.

There was judgment for defendant, and plaintiff has appealed.

Unless it were the intention of the Legislature that the land should not be sold ipr less than the appraised value, there would be no object in enacting that it should be appraised.

Neither would there have been any reason for amending the Act of 1855, by requiring that it should be appraised.

The meaning of section 34 is, that the land should bring its appraised value, but that in no case it could be appraised for less than one dollar and twenty-five cents per acre.

The section requires it to be appraised ; it must, then, bring its appraised value; and as it requires that in no case it should be sold for less than $1 25 per acre, this evidently implies that it can never be appraised for less than this sum.

It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed; that the adjudication and sale by Adrian E. Adams, the Parish Treasurer of the parish of Madison, on the 21st of November, 1857, of the following described land, being section 16, township 17, north of range ten east, in the district of lands north of Red River, containing 615 23-100 acres, be decreed to be null and without effect; and that the said land belongs to the Ninth School District of the parish of Madison, in the State of Louisiana ; and that defendant pay the costs of both courts. It is further decreed, that the defendant recover from plaintiff ®615 23, the part of the price of the land paid cash by the former ; and that plaintiff deliver to defendant the mortgage notes given for the balance of the price, and that no writ of possession issue until the $615 23 are paid to defendant, and until the said mortgage notes are given up to defendant, or until the said money and notes are legally tendered to defendant, in the event he refuses to take them.


author: Buchanan, J.

text:
    Brand & Adams v. B. West and T. G. Davidson.
    Tho appellee cannot bring up the appeal when the appeal was granted on motion, and the appellant filed no appeal bond, the appeal thus taken being incomplete without a bond.
    from the District Court of the Parish of St. Helena, Beale, J., presiding.

      Addison & Watterston, for plaintiffs. Martin & Venn, for defendants and appellants.
   Buchanan, J.

Plaintiffs obtained judgment against the defedants in the District Court. On the same day that the judgment was signed, defendants took a suspensive appeal by motion; but no appeal bond was filed, neither did the Judge fix the security, nor cause the same to be entered upon the minutes of the court as provided by Phillip’s Revised Statutes, verbo Code of Practice amendments, p. 98, sec. 48.

Plaintiffs have filed in. this court a transcript of the record, including documents filed, and evidence oral and documentary, duly certified by the Clerk of the District Court.

On the same day this transcript was filed, the counsel of plaintiffs filed an answer to the appeal, praying for an amendment of the judgment of the District Court.

Defendants now appear by counsel, and move to dismiss this case at costs of plaintiffs, “ on the ground that this court is without jurisdiction to entertain it, no appeal bond being filed, as the defendants were satisfied with the judgment rendered in the court below.

This motion has been opposed : but we have come to the conclusion that it must prevail. An appeal by motion cannot be considered as complete without an appeal bond ; for as no citation of appeal is required to issue in such a case, the bond alone shows who are intended to be made parties to the appeal.

The Articles 590 and 884 of the Code of Practice authorize the appellee to bring up the appeal when the appellant has neglected to do so. But this must be understood of an appeal complete. The appellants may have omitted to furnish bond, because they abandoned their appeal, being satisfied, upon reflection, with the judgment of the court of the first instance ; as the motion alleges was the case in this instance. The plaintiffs, if dissatisfied with the judgment, are still in time to appeal.

Motion absolute, and the case dismissed at costs of plaintiffs.


text:
    Martha Franklin, Administratrix of Gillis M. Franklin, v. William Woodland.—Missouri Woodland, Intervenor.
    A Register of the State Laud Offico lias no authority to review and reverso a decision of his predecessor.
    Duly authenticated copies of documents from the State Land Office are admissible as evidence.
    In matters of conflicting settlements upon public lands, the acts and conversations of parties are admissible in evidence : the objection going to their effect.
    PPEAL from the District Court of the Parish of Carroll, Farrar, J.

      Goodrich & DeFrance, for plaintiff. Louis Selby, for defendant.
   Buchanan, J.

The plaintiff sues defendant in damages for slandering her title to the north-east quarter of section twenty-seven, township 20 north, range 11 east, of the district of lands north of Bed Biver.

Defendant answers, pleading title in himself to said land.

On the first trial, the jury who tried the cause were unable to agree. The wife of defendant then intervened, claiming the land in controversy, as heir of her first husband, Beabout. On the second trial, the jury found for plaintiff, without damages.

Defendant and intervenor have appealed.

The possession by plaintiff of the land, for the length of time alleged in the petition, (since the year 1847,) is admitted by the pleadings and argument. But defendant contends, that the first husband of his wife, (who died in 1844,) and himself, were in possession and cultivated the land for many years before plaintiff’s possession ; and that defendant was expelled by force and violence by the deceased, G. M. FranJdin, from the land.

These questions of fact appear to have been correctly settled by the jury. In this court, the counsel of defendant and intervenor relies upon a plea of res judi-cata pleaded by him as an exception to this action ; and upon a bill of exceptions reserved by him to the admission of evidence for plaintiff.

The plea of res judicata is based upon a decision of B. Haralson, Begister of the State Land Office, in relation to the conflicting claims of plaintiff and defendant to a preemption right upon the quarter section described above. That decision, rendered November 10th, 1856, was in fovor of William Woodland, and a patent was issued in his favor from the State Land Office, for said quarter section, on the 17th December, 1856.

The counsel of appellant contends, that as no appeal was taken within six months, as provided by the Acts of 1853 and 1857, from this decision of the Begister, the plaintiff is concluded from asserting right to the land in controversy.

But plaintiff has given in evidence a previous decision of another Begister of the State Land Office, L. I. Sigur, of date the 2d November, 1854, upon the conflicting claims of plaintiff and defendant to this identical land ; in which, after a full recapitulation of the evidence and of the law applicable to the case, the Begister comes to the conclusion, and so decides, that Franklin’s claim is preferable to that of Woodland. Plaintiff also holds a patent for the land from the State Land Office, of date 24th October, 1856.

The court has been referred to no law, which authorize# a Begister of the State Land Office to review and reverse a decision of his predecessor. We remark, moreover, that the decision of Register Sigur is not noticed in the decision of Register Haralson.

The defendant’s plea of res judicata is not sustained by the record ; even if the decision of the Register be considered a judicial decision, a point which is not raised in the argument, and which it is, therefore, unnecessary to determine. Neither of the decisions of the State Land Office passes upon any claim to the land, except those of Woodland and of Franklin. No action was taken before that tribunal by the representative of Beabout, the intervenor. The evidence does not show any action such as is required either by the Act of Congress or the State laws, for asserting a right of preemption upon the land in controversy in this suit. There is a declaratory notice of Mrs. Beabout, dated October 3d, 1844, in evidence, but it relates to the N. W. quarter of section 26 ; not to the N. E. quarter of section 27.

Defendant excepted to the admission of various documents from the State Land Office, offered by plaintiff, on the ground that they were copies of copies. The objection does not appear sustained by the facts. The documents arc properly authenticated; also to the testimony of a witness, Tompkins, as to declarations made by defendant, in relation to his claim. The testimony objected to, was a small portion of a great mass of testimony of a similar character, received without objection. In these matters of conflicting settlements upon public lands, the acts and conversations of the parties figure necessarily very prominently in the case. All such testimony is liable to more or less suspicion; but the objection is more to the effect than to the admissibility; and its effect is properly to be weighed by the jury who hear, and probably know, the witnesses.

Judgment affirmed, with costs.


text:
    Joseph Chiapella v. Thomas Brown.
    A witness may be permitted to refer to accounts or memoranda made by himself to refresh his memory.
    Whore by due diligence it might have been discovered that a witness in the case, who had been examined on his voir dire and had testified that he had no interest, was security for the costs, a new trial will not be granted on the ground of such discovery being made after the trial.
    The Act of Congress declaring the Mississippi river to be a common highway, free to all citizens of the United States, was not intended to interfere with the right of the Stato to create and regulate ferries.
    A party who was present at the public sale of a ferry and bid against the purchaser, is estopped from asserting that he had an unoxpired lease to the same ferry, and that it had not been properly advertised.
    Damages may be recovered for an injury to a right of keeping a ferry committed by one who crosses passengers gratuitously, but receives compensation in whole or in part by keeping the horses of those crossing.
    from the District Court of the Parish of Iberville, Wilson, Judge of the Eighth District, presiding.

      Manat & Deblieux, for plaintiff. W. J. Hamilton, for defendant and appellant.
   Merrick, C. J.

The plaintiff having purchased the right to keep a ferry across the Missississippi at the town of Plaquemine, for one year, brings the present suit against the defendant for a violation, of his franchise.

There was a verdict and judgment in favor of plaintiff, and the defendant appeals.

Our attention is called to two hills of exception.

The plaintiff finding that the defendant (who had been a former lessee of the ferry,) was in the habit of accommodating numerous persons, by setting them over the Mississippi with his skiff, &c., engaged the witness to keep an account of the numbers crossing on defendant’s boats.

This account was made out by the witness, the plaintiff calling on Mm once or twice a week, and giving him an account of the “ crossings.” But the witness knew of his own knowledge that two-thirds of the crossings charged in the book were correct. The Judge permitted the witness to refer to the book to refresh his memory, and defendant excepted.

We see no error in this ruling of the lower court. The account was made out by witness, and as to two-thirds of the entries he had personal knowledge. In the cases in 6 L. R. TV and 12 An. 58, the accounts or memoranda were not kept or made by the witness. See 1 Greenleaf, 436.

The other bill of exception was to the refusal of the Judge to grant a new trial. One of the principal witnesses, Achille Landry, it seems was interrogated on his voir dire as to his interest, and on answering that he had no interest in the event of the suit, directly or indirectly, he was sworn .without objection. The petition has endorsed upon it

“ I am good for all costs — Achille Landky.”

The ground claimed for a new trial is, that since the trial of the cause the defendant has discovered and ascertained that said Landry was at the time he was so sworn to testify touching his interest in the event of the suit, responsible in a written obligation over his own signature for all costs of said suit, which fact rendered him incompetent as a witness.”

If it be conceded that after a party has examined a witness upon his voir dire in order to show interest, he may resort to evidence aliunde to show the same fact, (which we do not now undertake to decide,) still the new trial was properly refused. 1 Greenleaf’s Ev. sec. 423. For, it must be manifest, that if the surety for costs indorsed upon the petition was the same as the witness sworn, there was a want of diligence in not calling the attention of the witness to the indorsement upon the petition. It is rarely if ever the case that new trials are granted on newly discovered evidence, in order to impeach a witness, much less ought they to be granted where there is an entire want of diligence, and, after all, on a further examination, the interest may be shown not to exist, or may be removed. See Voisin v. Jewell, 9 L. R. 112.

On the merits it is contended, that under the Act of Congress, 20th Feb. 1811, the Mississippi river is a navigable stream and a common highway forever, free as well to the inhabitants of the State as to other citizens of the United States ; and that the defendant has a right not only to navigate the river up and down, but across the same.

In our opinion the Act of Congress was not intended to interfere with the right of the State to create aDd regulate ferries.

The only mode in which the public can be suitably accommodated upon the great lines of travel and public highways, is by creating a franchise and making it the interest and duty of some person to keej> the roads on the bank of the river in order, and to be ready with suitable ferryboats and other conveniences for crossing. At some points on great routes these ferries are as necessary to the public at large and the citizens of other States as are some of the smaller navigable streams which are protected by the Act of Congress.

On the other questions raised by defendant’s counsel, without analyzing the ordinances of the Police Jury and referring to the numerous Acts of the Legislature in this opinion, it is sufficient for us to say, that in our opinion the Act of 1855, p. 367, did not repeal the ordinances passed prior to that time establishing a ferry across the Mississippi river. See Holmes v. Wiltz, 11 An. 439.

The sale by the Parish Treasurer, instead of the President of the Police Jury may be in itself such an informality as would enable the Police Jury to rescind the sale of the ferry to plaintiff. But they hold his obligations for the same and have power to ratify the sale and have put the plaintiff in possession of the franchise. The defendant cannot, therefore, inquire into the regularity of the sale, especially as he was present at the same and bid against the plaintiff.

And for the same reason he is estopped from asserting that he held an unexpired lease of the same ferry, or that it had not been properly advertised. McMasters v. Commissioners Atchafalaya Railroad Co. 1 An. 11.

It is true that the ordinance under which plaintiff holds the ferry declares, that if the adjudication be not paid quarterly that the license shall be ipso facto forfeited. But this provision of the ordinance does not compel the Police Jury to enter upon the franchise and oust the plaintiff, if they are of the opinion that the present lease is more advantageous to them than any other they can make. The provision is in favor of the Police Jury, and they may waive it.

The ease was tried by a jury. They heard the witnesses, and if they were of the opinion that the defendant maintained within the limits granted to plaintiff a ferry gratuitously, in order to injure the plaintiff and lessen the value of the franchise purchased by plaintiff, or if they .were of the opinion that the defendant received a compensation in whole or in part from the charges he made for keeping the horses of those crossing, then the testimony is ample to maintain the verdict. And there is testimony in the record from which one at least of the above facts may be inferred. The privilege of crossing one’s friends cannot extend to a whole community.

Judgment affirmed.


text:
    William Bantz v. H. B. Price — Mark Izod, Intervenor.
    Where the plaintiff has recovered a judgment, the proceeding to render his property liable in execution for costs, is statutory, and the forms of the statute must be strictly pursued, under pain of nullity.
    from the District Court of the Parish of Tensas, Farrar, J.

      L. H. Reeves, for H. B. for intervenor. J. for fendant and appellant.
   Buchanan, J.

The intervenor, Izod having obtained judgment against Bantz for §440, with interest and costs, an execution was subsequently issued by the Clerk of the Court against Izod, for his costs, (§9 20) under which the judgment was seized aud sold. It was bid off at Sheriff sale in January, 1850, for the sum of eighteen dollars by Bantz, the defendant in the judgment, in the name of his step-son, Trice, who was not present at the sale, and a deed was made to Price.

Price now seeks to enforce tlie judgment, and has seized land of Bantz under a fi-fa. Bantz enjoins the seizure, alleging that he is the true owner of the judgment, having bought it in reality for his own account, although he used the name of Price in the purchase.

Izod intervenes, and claims that his property in the judgment was never legally divested, because the formalities of law were not complied with ; no detailed bill of costs having been previously made out and demanded, as required by the Act of 1842, p. 440,112, and no notice having been given to him of the seizure.

There was judgment for the intervenor against the plaintiff and defendant. The defendant alone has appealed.

It appears from the evidence, that no detailed bill of costs was made out by the Clerk and demanded of Izod, previous to the issuance of the execution under which the judgment was sold. But the counsel of appellant contends, upon the authority of the case of Copley v. Edwards, 5th Annual, 647, that this provision of the Act of 1842 (reenacted in 1855, Rev. Stat. 124,) does not apply to executions issued for costs after judgment rendered.

In Copley’s case, the judgment had condemned Copley, plaintiff, to pay the costs. Of course, the_/?./«. issued upon that judgment, as in ordinary cases. But this is a case where the plaintiff recovered his costs by the judgment. The proceeding to render his property liable in execution for costs, is therefore statutory, and the forms of the statute must be strictly pursued, under pain of nullity. We see here an example of a judgment bought in for less than one-twentieth of its nominal amount, by the judgment debtor, upon a sale to make the costs, for which the purchaser was already liable. No stronger case could be presented in favor of the requirement in such sales, of a strict compliance with the legal forms.

There are two letters of defendant, addressed to the intervenor, in evidence, from which it appears that after this injunction was sued out, defendant gave in-tervenor information of what had taken place, and made propositions to purchase of intervenor his right to the judgment against Bantz. This correspondence seems to corroborate the allegation of Bantz’s petition, that he had purchased at sheriff’s sale for himself, and not for Price.

Defendant pleads the prescription of five years in bar- of this action, under Article 3507 of the Oode. That Article is not applicable to this case.

Judgment affirmed, with costs.


author: Lank, J.

text:
    B. J. Sage v. J. C. Cain.
    Under the Pre-emption ict of the Legislature of Louisiana of 1853, it was essential to constitute a right of pre-emption that the land claimed should embrace the settlement or improvements of the pre-omptor.
    ..1 PPEAL from the District Court of the Parish of Pointe Coupée, Ratliff, J.

      B. J. Sage, pro. per. T. I. Semmes, D. C. Labatt and T. H. Farrar, for defendant and appellant.
   Lank, J.

This is a petitory action in which plaintiff and defendant claimed title from the State of Louisiana to lots 9 and 10 in the township 4, S. R. 7, east, situate in the parish of Pointe Coupée.

The plaintiff claims by purchase, and the defendant under the preemption Act of 1853.

It appears from the evidence, that there are three contiguous lots lying on the Atchafalaya river, and numbered 8, 9 and 10, and containing respectively about the same quantity of land. That defendant settled on lot No. 8, in the j'ear 1848, and has continued to reside thereon ever since; and did, in the year 1853, purchase the same from the State, without making any claim of preemption to lots 9 and 10, or either of them. It further appears, that at the date of his purchase, his dwelling house, and the whole of his improvements, were on lot No. 8. That in February, 1854, several months after his said purchase, he made application to the Register of the State Land Office, and claimed the right of preference to lots Nos. 9 and 10, under the preemption Act of 1853. That his application was not regarded, and that plaintiff was permitted to purchase from the State lots 9 and 10, which purchase was afterwards contested by defendant before the Register, who decided in favor of plaintiff.

The defendant contends in this court, that by virtue of his settlement and residence on lot 8, he was entitled, under the preemption Act of 1853, to purchase, by preference, not less than forty, nor more than three hundred and twenty acres of land, and that this right was not exhausted or extinguished by his purchase of lot No. 8, containing only 122 44-100 acres. It is true, that he filed his application for a preemption right to lots 9 and 10 before the plaintiff’s purchase, and whilst the Act of 1853 was still in force.

The question thus presented, is not free from difficulty, and the case of Kittridge v. Breaud, 2 Rob. p. 40, seems to favor his pretention.

It is, however, the opinion of the court, that his right of preemption was extinguished by his purchase of lot No. 8, which embraced the whole of his improvements. The coexistence of certain facts were required by the Act of 1863, to constitute a right of preemption — a material one of which was, that the land claimed should embrace the settlement or improvements of the preémptors. The entry of lot 8 rendered it impossible to embrace, within the lands claimed under the Act of 1853, the dwelling house or any portion of the improvements of defendant, prior to the purchase of plaintiff. It, therefore, seems to follow, that the defendant, by his own act, destroyed the coexistence of those facts which were essential to constitute his right of preemption to the lands claimed.

The judgment of the lower court was in favor of plaintiff for the land, but rejected his claim for damages, including attorney’s fees.

The plaintiff is an attorney-at-law, and well qualified to represent his interests in the courts, without the aid of assisting counsel, and if attorney’s fees have been paid, or promised in this case, they can form no legal charge against the defendant.

It is certainly not the policy of the law to encourage lawsuits of any character ; but it is equally certain, that it is not the policy of the law to prevent or deter parties from asserting or defending their real or supposed rights, through the apprehension of damages, or penalties in the event of failure or defeat.

There is no error in the judgment of the lower court.

Judgment affirmed, with costs.


text:
    Succession of Sarah Ann Penny—Foster and Wife, Administratrators, v. A. L. Bloom et al.

    The wife is liable for all debts incurred for the improvement of her separate estate, advances made for the payment of debts and supplies of necessaries for a plantation, which is her paraphernal property, whether she has retained the administration of her paraphernal property or entrusted it to her husband.
    Art. 2377 of the Code has reference only to the settlement of the accounts between husband and wife, and does not control the action of creditors.
    A witness cannot be permitted to state his belief as to the correctness of an account, ho must testify to his knowledge of facts and not to his belief of them.
    The possession by the drawee of a draft drawn by a planter upon his merchant or factor, in favor of a third person, is prima facie proof of the draft having been paid by the drawee.
    There is now no question of the right of a married woman, above the ago of majority, to renounce her mortgage upon the property of her husband, in favor of a third person.
    from the District Court of the Parish of East Feliciana, Ratliff, J.

      Fuqua & Kilbournc and J. McVea, for plaintiffs. Muse & Hardee, J. B. Smith and George S. Sawyer, for defendants and appellants.

      This caso was omitted in the decisions of 1857.

   Buchanan, J.

This case is before us upon oppositions to an account of administration. There are six distinct parties appellant.

1. Dr. Iluff complains that his opposition, founded upon a bill for medical attendance, has not been sustained to the full extent. An examination of the evidence has not satisfied us that the District Judged erred.

2. Charles Knapp ; 3. Bowman & GaiA These two oppositions are similar to each other in principle. Knapp furnished a sugar mill, saw mill and steam engine; and Bowman & Qair erected the buildings to contain the same. This work was done at the request of Albert G. Penny, and during the existence of the community between himself and the deceased Sarah Ann Penny, but upon a tract of land which was the separate property of Mrs. Penny. Subsequently to the furnishing of the materials and completion of the work, the matrimonial community was dissolved by judgment of court, in a suit instituted by Mrs. Penny against her husband for separation of property. The administrators of Mrs.' Penny’s succession resist the payment of these claims, on the ground that they are debts of the community. The opposers maintained that Mrs. Penny’s estate is liable, because her separate property was enhanced in value by the sugar mill and saw mill erected upon the same. The contracts of Knapp and Bowman & Gair, were reduced to writing and recorded, as required by Article 2746 of the Code.

The doctrine of the case of Waggaman v. Zacharie, 8 Rob. 181, is, that the wife’s estate is liable for the increased value which her separate property has received by the improvements placed upon it during the marriage; and this, increased value is not to be taken as synonimous with the costs of the improvements. C. C. 2377.

But the eases of Dickerman v. Reagan, 2 An. 440 ; Dailey v. Pearson, 5 An. 125 ; and Patterson v. Frazier, 8 An. 512, have gone farther, and are understood to establish the doctrine, that the wife is liable for all debts incurred for the improvement of her separate estate, advances made for the payment of such debts, and supplies of necessaries for a plantation, which is the paraphernal property of the wife ; whether the wife retained in her own hands the administration of her paraphernal estate, or entrusted it to her husband according to these latter authorities, the appellants Knapp and Bowman & Gair are entitled to recover of Mrs. Penny's estate. The Article 23Tí of the Code, upon which the case of Wagga-man was decided, was held in the latter cases to have reference only to the settlement of the accounts between husband and wife, and not to control the action of creditors.

4. Slark, Day & Stauffer. The draft of A. G. Penny, held by these opponents, is proved to have been for iron, &c., used in erecting the sugar mill, saw mill and steam engine, upon the plantation of Mrs. Penny. The draft not being paid at maturity by the acceptor, was duly protested and the drawer notified. For the reasons given above, these opponents are entitled to be paid out of Jlirs. Penny’s estate.

5. There were two oppositions filed in the District Court, one by A. Levi, Adler & Co., and one by A. Levi, Bloom & Co. These two firms were represented by the same counsel in the court below, who have argued the case in this court, as if there were appeals taken on, both oppositions. But this appears to be an error.

The motion for appeal, as copied in the transcript, reads as follows :

“ On motion of McVea and Muse & Hardee, of counsel for opposers, it is ordered, that they be allowed an appeal, returnable, &c., on their executing their bond with security, conditioned according to law, in the sum of two hundred and fifty dollarsand the bond of appeal filed, is in the name of A. Levi, Bloom & Co. alone, as principals.

Upon a very careful examination of this voluminous record, of more than five hundred pages, we find nothing to indicate an appeal by A. Levi, Adler <& Co. We are, therefore, constrained to consider that firm as not before this court.

A. Levi, Bloom (6 Co. except to the refusal of the District Court to allow the belief of a witness as to the correctness of an account to go to the jury. The ruling of the court was correct. Witnesses should testify to their knowledge of facts, not to their belief of them.

There are two separate oppositions filed in the name of A. Levi, Bloom <& Co., the first claiming §4,950, with interest for amount of account for goods sold to Mrs. Penny’s representatives after her death, namely, from March 3d, 1854, to January 1st, 1855 ; and the second claiming §32 61 for lumber furnished for the use and benefit of the plantation belonging to Mrs. Penny’s succession, in the months of September and October, 1854.

The last mentioned opposition has been allowed by the District Court; and upon the first, we are of opinion, that Levi, Bloom & Co. have made sufficient proof to entitle them to recover of the estate of Mrs. Penny, the following items of their account, in addition to what was allowed them by the judgment of the court below :

Vouchers — 13, §100 ; 11,10 ; 19, 1 50 ; 21, 20 ; 33, 20 ; 34, 5 ; 36,18 25 ; 37, 16 85 ; 38, 9 ; 39, 26 95 ; 41, 6 25 ; 42, 31 37 ; 43, 10 50 ; 46, 40 80 ; 48, 183 63; 51, 173; 98, 3; 100, 8 72; 101, 2, 38; 105, 14; 106, 5; 109, 6 85 ; 110, 6 25; 111, 74 82; 112, 1 50 ; 114, 5; 115, 42 43; 117, 25 ; 119, 148 94; 120, 4 12 ; 122, 25 17 ; 123 and 124, 4 46 ; 125, 12 81; 126, 6 ; 127, 17 50 ; 128, 208 69 ; 132, 6 57 ; 133, 98 90 ; 134, 29 75 ; 136, 11 25 — Total, §1,327 06.

We will remark, in illustration of our views in relation to a portion of these vouchers, that the possession by the drawee, of a draft drawn by a planter upon his merchant or factor, in favor of a third person, is held by us as prima facie proof of the draft having been paid by the drawee. Bell v. Norwood, 7 La. 95.

6. The administrators have appealed from so much of the judgment of the District Court, as maintains the oppositions of Ellen Gayden and husband; of Hazard, executor of Radish; and of Thomas W. Scott. The opposition of Gay-den and of Hazard, are based upon mortgages granted by A. G. Penny upon slaves belonging to him, in favor of the opponents.

Mrs. Penny was a party to the acts of mortgage, for the purpose of renouncing her own mortgage, arising out of dotal and paraphernal rights, in favor of the mortgagees. Subsequently, Mrs. Penny sued her husband for separation of property, and obtaiued a judgment, under which she seized and sold the property mortgaged to opponents, which she bought at Sheriff’s sale, retaining in her hands, upon the price of the sale, the amount of the opponent’s mortgages recorded.

The counsel of administrators now contends, that Mrs. Penny’s renunciation of her mortgage, which was anterior in date to that of opponents, was not binding upon her and her representatives ; and in support of this position, the learned counsel relies upon the case of Gasquet v. Dimitry, 9 La. 585.

The decision in Gasquet v. Dimitry, was pronounced by the Supreme Court in March, 1835, and directly overruled, (although without naming it,) the elaborate decision in the case Trémé v. Lanaux’s Syndics, 4 N. S. 230, which was supposed to have settled the jurisprudence in favor of the binding effect of a renunciation by a married woman. In Gasquet v. Dimitry, however, it was certainly decided, as is now contended by the counsel for Mrs. Penny’s administrators, that such a renunciation was equivalent to a suretyship by the wife for her husband, and, as such, was void, by Article 2412 of the Civil Code. A re-hearing was asked, however, in Gasquet v. Dimitry ; and pending this application, the Legislature passed the Act of 27th of March, 1835, by the 2d section of which, married women aged above twenty-one years,.were authorized to renounce in favor of third persons, their dotal and paraphernal rights upon the property of their husbands ; provided, they were previously informed by the Notary Public receiving such renunciation, of the nature of their rights, out of the presence of their husbands. The re-hearing in Gasquet v. Dimitry, was only decided in June, 1836, and the original decision was then sustained by a bare majority of the court. And since that time, there has been no question of the right of the married woman, above the age of majority, to renounce her mortgage upon the property of her husband, in favor of a third person. Breau v. Carmouche, 9 Rob. 37 ; Succession of Gremillion, 4 An. 411.

The opponents, Gayden and Hazard, have prayed, in their answer to the appeal, for an amendment of the judgment, directing the property subject to their mortgages, to be sold for their payment. They are entitled to this relief.

We have not been able to agree entirely with our learned brother of the District Court, in his conclusions upon the oppositions of Thomas W. Scott.

It appears from the evidence, that as far back as the year 1842 or 1843, Albert G. Penny made his note for fifteen hundred dollars, in payment of the professional services of a gentleman of the bar of East Feliciana, rendered in several suits in which his wife, the deceased Sarah Ann Penny, was interested.

This note was negotiated in bank, with the accommodation endorsement of the opponent, Thomas W. Scott, and was renewed, with curtailments, from time to time, until in the year 1853, two different notes, (which represented the last renewals of this original note,) made jointly and severally by Albert G. Penny and Thomas W. Scott, were paid by the latter, in the hands of two distinct holders. It is not seen how Mrs. Penny’s estate can be held for these two notes. Granting that the original note of her husband in 1843, was given in payment of a debt for which she was liable, yet the receipt of such note by her creditor was an extinction of her obligation. No subrogation, either legal or conventional, took place in favor of Scott to the rights of Boyle, the supposed creditor of Mrs. Penny. On the contrary, Penny's note for fifteen hundred dollars, with Scott’s endorsement, was received by the bank in part payment of a larger note of Boyle, with Scott’s endorsement, which was held by the bank. Mrs. Penny was not a party to the original note or any of its renewals. Were it even proved (which it is not) that Mrs. Penny contracted to discharge the notes held by this opponent, such a contract would be clearly illegal, under Art. 2412 of the Code.

It is, therefore, adjudged and decreed, that the judgment of the District Court upon the opposition of Dr. Huff, be affirmed ; that the judgment upon the oppositions of Charles Knapp, of Bowman <& Gair, and of Slarh, Day & Stauf-fer, be reversed, and that those oppositions be maintained, and the opponents classed as ordinary creditors of the estate of Sarah Ann Penny, for the sums respectively claimed by them ; that the appellants, A. Levi, Bloom & Co., have judgment against said estate, as ordinary creditors, for'the sum of thirteen hundred and twenty-seven dollars and six cents, with legal interest from judicial demand, in addition to the sum allowed them by the judgment of the District Court; that the judgment upon the oppositions of Ellen E. Gayden and husband, and of A. Hazard, executor of Mary Reddish, be amended, by decreeing that the property mortgaged to those opponents, be sold in satisfaction of their judgments, and as so amended, be affirmed; that the judgment upon the oppositions of Thomas W. Scott, be reversed, and that the oppositions and claims of the said Thomas W. Scott, be rejected.

And it is lastly ordered, that the costs of this appeal be paid, in equal proportions, by the estate of Sarah Ann Penny, by Thomas W. Scott and by Dr. Huff.

Merrick, C. J., recused himself, as having been of counsel.


text:
    City of New Orleans v. J. N. Lea.
    Tho Article of the Constitution which declares w( the Judges both of the Supreme and inferior courts shall at stated times receive a salary which shall not be diminished during their continuance in office, exempts the salary of a Judge from taxation.
    from the Sixth District Court of New Orleans, Howell, J,

      Laville <& Morel, for plaintiff. Defendant in p. p., appellant.
   Cole, J.

The question in this case is, whether the city of New Orleans has the right, under the Constitution, to tax the salary of a Justice of the Supreme Court of the State.

There was judgment for plaintiff, and defendant has appealed.

The first Article of the Constitution of 1852 provides, “ That the powers of the government of the State of Louisiana shall be divided into three distinct departments, and each of them be confided to a separate body of magistracy, to-wit: those which are legislative to one; those which are executive to another; and those which are judicial to another.”

If the right'to tax the salary of Judges be conceded, there would be no limitation but the discretion of the Legislature, to do it to such an extent as virtually to abolish the means of conducting the judicial department.

Its existence ought not to depend upon the will of a coordinate department.

Art. 75 of the Constitution of Louisiana is in these words : “ The Judges both of the Supreme and inferior courts shall at stated times receive a salary which shall not be diminished during their continuance in office.”

It may be, that the restriction in this Article upon the power of the Legislature refers principally to the diminution of the salaries of the Judges by a law fixing it at a less amount than that established at the epoch of their entrance into office.

The object, however, of this Article was to secure the independence of the judiciary. If the Legislature can tax the salaries, it would be deprived of its plenary effect.

In McCulloch v. The State of Maryland et al. the question arose whether the law of Maryland was constitutional which imposed a tax on the operations of a branch of the Bank of the United States, established in the city of Baltimore, in the State of Maryland.

The Supreme Court of the United States were of opinion that the tax was unconstitutional, because it was a tax on the operation of an instrument employed by the Government of the Union to carry its powers into execution.

Chief Justice Marshall gave the opinion of the court, in which he declares, that the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create.

It is true that this case was a contest as to the supremacy of a law of the United States, made in pursuance of the Constitution of the United States, over the legislation of a State; but there is much in the argument of the court which applies to the case at bar.

The doctrine in the case of McCullogh was affirmed and reiterated in Osborn v. The Bank of the United States, 9th Wheaton, p. 738.

If the Legislature have not the direct power of taxing the salaries of the judiciary, they cannot confer such authority upon the city of Now Orleans.

It may not be improper to remark that the four Judges who decide this cause have their respective domicils out of the city of New Orleans, and are not, therefore, interested in the question as to the right of the city to tax the salaries of Judges.

It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed, and that there be judgment in favor of defendant against the demand of plaintiff, and that the latter pay the costs of both courts.

Bocharan, J., recused himself.