author: Sfoffokd, J.

text:
    City of New Orleans v. Mascaro.
    The 59fch section of an ordinance of the Common Council of New Orleans, approved December 29th, 1855, which declares, that “ every mwvufaetw'er of cordials or syrwpsfi shall be taxed “seventy-jive dollars” is null and void, being in violation bf a prohibitory law of the State. The Act of April 25th, 185S, p. 185, reenacted in the revisory statute of March 15th, 1855, sec. 8d, p. 826, having declared “ that it shall not be lawful, hereafter, for any municipal corporation within this State, to levy any tax on persons engaged in selling articles of their own manufacture, manufactured within this State.”
    This statutory prohibition is not repealed, so far as the city of New Orleans is concerned, by the Act of 20th of March, 1856, entitled “ an Act to consolidate the city of New Orleans,” &c. p. 186, and even were it so, the repeal could not give vitality to an ordinance which was void db initio.

    The exemptions specified in the Act of 1856, as exclusive, are confined to taxes upon property; sec. 86. The subject of exemption from taxation upon particular callings, is left where it stood be-
    The repealing clause in the Act of 20th of March, 1856, leaves the 8d section of the Act of March 15th, 1855, “ relative to municipal corporations,” in full force,
    APPEAL from a judgment of the Fourth Justice of New Orleans.

      Laville, for plaintiff. M. Qrivot, for defendant and appellant.
   Sfoffokd, J.

The defendant has appealed from a judgment of the Fourth Justice of the Peace for the parish of Orleans, condemning him to pay to the plaintiff $78 75, as “a tax on the profession he exercises in manufacturing cordials and syrups within the city of New Orleans.” The appeal is taken directly to this court, under the 17th section of the Act of March 15th, 1855, “ relative to the Justices of the Peace for the parish of Orleans.”

In his brief, the plaintiff’s counsel insists that the appeal should be dismissed; but there is no motion filed to that effect. We cannot dismiss the case of our own motion, for it appears that the legality of the city ordinance under which the tax was assessed, is distinctly put at issue on the record. The sum claimed being under $300, our inquiry must be limited to that issue alone.

The tax was levied under the 59th section of an. ordinance of the common council, approved December 29th, 1855. It declares that from and after the 1st day of January, 1856, the taxes and licenses for professions, callings, and other business throughout the city and parish, shall be fixed, assessed and collected, at the rates and sums specially set forth in the following sections:

“ Section 59. Every manufacturer of cordials or syrups, seventy-five dollars.”

Now the legislative Act of April 25th, 1853 (Sess. Acts, p. 135), reenacted in the revisory statute of March 15th, 1855, sec. 3 (Sess. Acts, p. 326), declared, that “ it shall not be lawful, hereafter, for any municipal corporation within this State, to lay any tax on persons engaged in selling articles of their own manufacture, manufactured within this State.”

The 59th section of the ordinance thus passed in violation of a prohibitory law of the State, is therefore null and void.

But the appellee contends that this statutory prohibition was repealed, so far as the city of New Orleans is concerned, by the Act of March 20th, 1856, amendatory of an Act entitled “ an Act to consolidate the city of New Orleans,” &c. Sees. Acts, p. 386.

If it were so, we do not perceive how the repeal could give vitality to an ordinance which was void db initio ; but we find no repeal of the former prohibition in the latter Act. All its clauses can be made to harmonize with the previous exemption accorded to persons engaged in domestic manufactures.

The exemptions specified in the Act of 1856, as exclusive, are confined to taxes upon property alone (sec. 36). The subject of exemplion from taxation upon particular callings or occupations is left where it stood before. There is no new “ or inconsistent provision” upon this subject-matter, and the repealing clause in the Act of March 20th, 1856, leaves the 3d section of the Act of March 15th, 1855, “relative to municipal corporations,” in full force and virtue.

It is therefore ordered, that the judgment of the Fourth Justice of the Peace in this case, be avoided and reversed; and it is further ordered and decreed, that there be judgment for the defendant, with costs in both courts.


source: Caselaw Access Project

author: Lea, J.

license: Public Domain

text:
    Maranthe, Genie et al. v. Charles G. Hunter et al.
    Colored persons, until they are recognized as free, or until they are emancipated, cannot maintain a suit for wages. It would be otherwise in the case of a free person illegally reduced to a condition of slavery.
    Decision in the case of the State v. Harrison^ a slave, 11th. Ann., respecting the constitutionality of the Act of 1855, relative to slaves and free colored persons, affirmed.
    An obligation to emancipate a slave twenty-five years hence, and to take all legal steps, and to incur all necessary charges incident to such emancipation, has reference, not to such legislation as was in force at the date of the contract, but to such as might be in force when the contract is to foe carried into execution.
    APPEAL from the District Court of the parish of Point Coupée, Gooley, J.

      Demid, for plaintiffs and appellants. W. S. Gooley, for defendant.
   Lea, J.

The plaintiffs allege that they were the slaves of the late Julien Poydras, who died in the year 1825 ; that by the terms of the last will and testament of said Poydms they were entitled to their freedom, after having rendered faithful service as slaves for the period of twenty-five years subsequent to the death of said testator; that they have faithfully complied with the conditions of said will; that they are natives of the State, and have attained the legal age to be emancipated ; that they were purchased by the defendants with the express stipulation on their part, that said slaves should be emancipated by and at the expense of the purchasers; that the period fixed for their continuance in slavery has long sinee elapsed, and that the defendants nevertheless refuse to cause them to be emancipated, as in law they are bound to do. Wherefore, they pray that they may be declared free. They further claim remuneration for their services from the date of citation, and pray for general relief.

To the demand, thus set forth in the petition and supplemental petitions, the defendants have excepted, on the following grounds:

1st. That under the allegations of the plaintiffs’ petition, they can maintain an action only for their freedom.

2d. That by the Act of the Legislature of the 16th of March, 1868, all previous laws on the subject of emancipation were absolutely repealed, and that by the terms of said Act, all suits for the emancipation of slaves must be prosecuted by citation directed to the State of Louisiana, as represented by its proper officers, and that consequently the plaintiffs cannot prosecute this action against these defendants.

8d. That said Act of March 16th, 1886, so far as said defendants are concerned, is null and void, as imposing charges and burdens upon said defendants, not assumed by them in their original contract to emancipate said slaves.

For the purpose of determining the merits of the exceptions filed, it must be assumed that the facts set forth in the petition and supplemental petitions, are true; that the defendants did assume at the expiration of twenty-five years from the death of Julim Poydras to cause the plaintiffs to be emancipated, and to pay all necessary and legal charges incident to said emancipation.

We think the first exception above referred to is well taken. The plaintiffs’ action must be restricted to a claim for freedom, or under the prayer for general relief to a demand that the defendants be ordered to take all the proper steps to cause them to be emancipated. See Delphine v. Guillet, 11 Ann. page —. Upon the face of the petition it is apparent that the plaintiffs are not free, and can only claim to be emancipated. Until they are recognized as free, or until they have been emancipated, they cannot maintain a suit for wages. It would be otherwise in the case of a free person who had been illegally reduced to a condition of slavery.

Upon the second ground urged by the defendants we think the defense is untenable. Even on the assumption that the legislation of 1866 repeals absolutely all previous legislation on the subject of the emancipation of slaves, it would not follow that plaintiff’s action cannot be maintained. If the allegations of the petition are true, the defendants have assumed the obligation of procuring the emancipation of the plaintiffs in accordance with the laws of the State, whatever those laws may be. If the Act of 1866 were the only one in force, then it would be the duty of the defendants to proceed in accordance with its provisions.

But by the recent decision of this court, in the case of the State v. Morrison, the statute of 1866, “relative to slaves and free colored persons,” has been declared null and void, as being unconstitutional. The exception, therefore, that the plaintiffs should have instituted a direct action against the State, is without foundation.

This brings us to the consideration of the third exception, to wit: that by the Act of 1866 additional burthens and charges are imposed upon those wishing to emancipate their slaves, beyond those required by previous statutes, and beyond those assumed by the contract of the defendants, that they are not bound to incur such additional charges and obligations as are imposed by this statute, and as all other statutes on the same subject have been repealed, that they are not bound to emancipate them at all.

The learned Judge of the District Court, in an opinion which evinces both ability and research, has maintained the affirmative of both of these propositions. Undoubtedly, no mere act of legislation can change a contract, or impair its obligation. But the question in this case is, what was the contract ? An obligation to emancipate a slave twenty-five years hence, and-to take all legal steps, and to incur all necessary charges incident, to such emancipation, has reference, we think, not to such legislation as was in force at the date of the contract, but to such as might be in force when the contract is to be carried into execution. We cannot suppose that it was contemplated by the parties, that a change in the form, nr even the legal charges incident to an emancipation, might deprive the plaintiffs of their ultimate right to freedom. Whether the statute of 1855 be considered as constitutional or not, or as regulating exclusively, or concurrently with other statutes, the emancipation of slaves, it would impose no new obligation upon the defendants, nor would it relieve them, as they suppose, from those which they have already assumed.

As, however, a majority of the court have concurred in the opinion, and have decreed that the whole of the statute of 1855 was unconstitutional, it becomes unnecessary to consider the effect of the repealing clause.

It is ordered, that the judgment appealed from be reversed ; that the exceptions filed be maintained, so far only as relates to the claim of the plaintiffs for wages; that upon said claim for wages, there be judgment as in case of nonsuit, and that in other respects the exceptions be overruled. It is further ordered, that the case be remanded for further proceedings to be had herein according to law ; and that the defendants and appellees pay the costs of this appeal.


author: Merrick, 0. J.

text:
    State of Louisiana v. Adeline, a Slave.
    The confessions of the accused, being entirely voluntary, made to the officers who went to arres* her, are admissable.
    The jury found the prisoner guilty of manslaughter, and condemned her to the penitentiary for twenty-five years. Held: That there was no error in the period of time fixed for the imprisonment of the accused. The Act of ,6th April, 1856, page 114, did not repeal the 7th section of the Act of 1843, page 93.
    APPEAL from a special tribunal organized for the trial of a slave, parish of Orleans.
    Tappan, District Attorney. Olaalc, for defendant and appellant.
   Merrick, 0. J.

The accused was tried by a special jury, organized under the Act “to provide for the trial of slaves accused of capital crimes in the parish of Orleans, approved 9th March, 1S55, (Acts, p. 87,) for the murder of one John Blahely. The jury found the accused guilty of manslaughter, and condemned her to the penitentiary for twenty-five years.

The motions for a new trial, and in arrest of judgment, proving unavailing, the accused has appealed.

Her counsel urge in her behalf that the judgment of the lower court is erroneous:

1st. Because the court erred in allowing the confessions of the accused to go to the jury.

2d. Because the tribunal which tried the slave was without jurisdiction.

3d. Because the jury could not, after finding the accused guilty of manslaughter, extend the punishment beyond the longest period affixed by law to that crime.

4th. Inasmuch as the court did not convict or acquit the accused of a crime punishable with death, they could not inflict any other than corporeal punishment.

I. From the statement of the Judge, appended to the bill of exceptions, it appears that the confessions of the accused were entirely voluntary, and made to the officers who went to arrest her. Without being interrogated, or even called, she went to the officers and told them that she knew what they had come for; that it was to take her to the calaboose; that she knew very well what she had done, and if she had it to do over, she would do it again. Then in answer to a question, she said she had killed the deceased with a sword-cane, which she described, and said she had thrown it into the well. Her confessions do not appear to have been given under fear, or to have been drawn out by promises, and we see no error in the ruling of the Judge a quo in regard to them. AVo may add that it appears, by the bill of exceptions, that her confessions were corroborated by the discovery of a sword corresponding with the one described by her- on searching the well.

II. The Act relative to slaves and free colored persons, approved May 15th, 1855, having been held unconstitutional, it removes any question which counsel might feel disposed to raise whether the subsequent statute repealed the former. See case of The State v. Harrison, 11 An.

III. The longest period affixed by laqr for the punishment of the crime of manslaughter, coupled with a discretionary fine of $2000, in the case of free persons, is twenty yean But in the case of slaves, a less restricted discretion, is conferred upon the tribunal organized for the trial of slaves. By the 7th section of the Act of 6th of April, 1843, it is provided that “In all cases where capital punishment or imprisonment at hard labor for life is inflicted for any crime committed by a slave, the jury trying the same shall in its discretion pronounce sentence of death, imprisonment at hard.labor for life, or for a shorter term, in prison or in irons in the service of his master, or order that corporeal punishment be inflicted.” See Acts of 1843, p. 92. It has been held that this statute has not been repealed by the statute approved June 1st, 1846. See p„ 114 of Acts of 1846, and cases of State v. Slave Lewis, 3 An. 398; State v. Jackson, a slave, 6 An. 595, and State v. Slave Dick, 10 An. 461. There does not, therefore, appear to be any error in the period of time fixed by the court a quo for the imprisonment of the accused.

IV. It has just been shown that the 9th section of the Act of 1846 had not the effect of repealing the seventh section of the Act of 1843. The jury were therefore not limited to the two kinds of punishment mentioned in the fourth objection urged by the counsel for the accused. It is urged in substance, that the policy of the Aetol'1855, (and in consequence the Act of 1846, which was reenacted by it,) was to make two kinds of punishment, viz; capital, including imprisonment for life, and corporeal punishment. In the one case the State makes' á partial indemnity to the owner of the slave for its loss, in the other lie is not deprived of its services. And it may be added, if imprisonment for a long period of years is resorted to as a punishment, the owner is deprived of his slave for the most valuable period of its life without any indemnity.

As the punishment of imprisonment is more merciful, perhaps, than any corporeal punishment which the jury could inflict commensurate with the offence committed, the argument appears to be more in the interest of the master than the accused, and one which could be addressed to the Legislature with more hopes of success than to this tribunal.

Judgment affirmed.


text:
    E. M. Gaiennié et als. v. Second Municipality of New Orleans.
    Question of prescription — Decision in the case of H&m/y v. The City of New Orleans, 11 Annual, affirmed.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Bonford, for plaintiffs. Boselius and Livingston, for defendant and appellant.
   Lea, J.

The plaintiffs claim a portion of the batture in this city, under a sale from Jean Gravier, dated in May, 1799. The act of transfer purported to convey (up to the river line) the whole of the lot which is the basis of the riparian rights claimed in this case.

The defendant relies upon the act of donation and compromise between the Mayor, Aldermen and inhabitants of New Orleans, Edward Livingston, and the supposed front proprietors of that portion of the city within which the property in dispute is situated. The testamentary executor of the succession of the late Manette St. Amand, has intervened in the suit, and joining the defendant, avers that after the death o’f Pierre Labatut, viz, in 1812, the original lot alleged by the plaintiff to have belonged to him, the batture of which forms the object of their claim, was sold at public sale, and bought by the vendors of his testator, and was sold in such a manner as to transfer all further rights of accretion with the lot itself. The original title of the plaintiff, viz: the sale from Jean Gravier, is recognized in the act of compromise, and indeed forms a part of the title under which the defendant claims ; and any outstanding title to the property in dispute in the succession of St. Amaud is disposed of by the decree of the court, dismissing the intervention of the representative of St. Amand’s succession, from which judgment no appeal has been taken. We have searched the record in vain for any act of sale divesting the succession of Pierre Labatut of its title to the original lot, which is the basis of the riparian rights set up by the plaintiffs in this case.

The only issue, therefore, for solution is, whether the plea of prescription is available or not, and this question, we think, is controled by the recent decision in the case of Bemy v. The City of New Orleans. The possession of the property in dispute by the city, was not of that character whicli can constitute a proper basis for the plea of prescription.

The judgment appealed from, however, decrees that the property in dispute shall be delivered to the plaintiffs and possession given thereof. There is no evidence showing that the property in dispute is not required for the uses of commerce. The plaintiffs’ right of property should be recognized, but their right to be put in possession, should be restricted to such portion of the same as may be shown not to be requisite for the purposes of commerce.

Judgment amended.

It is ordered, adjudged and decreed, that the judgment of the court below be amended, and that there be judgment in favor of the plaintiffs and against the defendant, the city of New Orleans, decreeing that said plaintiffs be recognized to be the true and lawful owners of the property claimed by them in their petition, viz, the batture, alluvion, or increase formed in front of a lot of ground purchased by Pierre Labatv.t from Jean. Qravier, on the 4th day of May, 1799, and of all the future increase in front of said piece or parcel of ground; said lot of ground being situated in the faubourg St. Mary, lately part of the Second Municipality of the city of New Orleans, having 60 feet front on the river, by a depth of 160 feet between parallel lines, the exact position of said property being more particularly fixed by the plan annexed to the petition of the plaintiffs herein, and included in the space designated by the letters A. B. C. and D. on said plan, reserving to the city of New Orleans the possession, for the purposes of administration, of such portion of the propert}' in dispute as may be subject to the servitude established by existing laws on land fronting on the Mississippi river, within the limits of the city of New Orleans. It is further ordered, that the petition of intervention of IS. J. Bernard, testamentary executor of Manette St. Jmand, herein filed, be dismissed, and that the defendant pay the costs in the District Court, and the plaintiffs the costs of this appeal.


author: Spoffohd, J.

text:
    The Police Jury of the Parish of Orleans, Right Bank of the Mississippi River, v. Pierre Nougues.
    The Police Jury aforesaid, by an ordinance adopted 29bh December, 1855, imposed a yearly tax w on each and every person keeping a dairy, within the limits comprised within the upper line of this parish and Verret Avenue, a yearly tax of two dollars for each and every cow, &c.” Under the Act of March 15th, 1S55, p. 395, the said Police Jury may impose a tax “ on all persons pursuing any occupation, trade, or profession,” and, therefore, may impose a tax on dairymen. But, the tax must be levied on all dairymen. The ordinance in question, while professing to tax the occupation, really imposes a tax upon cows kept by dairymen within certain limits. Considered in that light it is equally inconsistent with a just interpretation of the statute which conferred the power of taxation on said plaintiffs. It is not a tax on personal property to be preceded by an assessment, nor even on all cows within their jurisdiction. This is not only repugnant to the principles of equality which govern the exercise of the taxing power by the State, but was, evidently, not within the scope of the authority conferred by legislation on the said Police Jury.
    The 5th section of the general Act “relative to Police Juries,” approved 9th April, 18á7, (seeSess. Acts, p. 82,) was not repealed quoad said Police Jury by the aforesaid Act of 1855.
    APPEAL from a judgment of the Sixth Justice of the Peace of the parish of Orleans, right bank of the Mississippi River.

      Durant & Horner, for plaintiff. Collins for defendant and appellant.
   Spoffohd, J.

The defendant and appellant contests the legality and constitutionality of an ordinance of the Police Jury-of the parish of Orleans on-the riglit bank of the river Mississippi, under which he has been condemned to pay fifteen dollars as a semi-annual instalment of the price of a license for keeping a dairy with fifteen cows.

The ordinance in question was adopted on the 29th December, 1855, and the provisions material to the present case are these:

“ Resolved, that the rate of taxes for licenses on professions and occupations, for the year 1850 be as follows:

“ On each and every person keeping a dairy within the limits comprised between the upper line of this parish and Verret Avenue, a yearly tax of two dollars for each and every cow, payable semi-annually and in advance $2 per cow.”

The legality of this ordinance depends primarily upon the proper interpretation of the Act “ relative to the Police Jury of the parish of Orleans on the right bank of the Mississippi river,” approved March 15th, 1865, (Sess. Acts, p. 395.) The special powers conferred upon the Police Jury of the right bank, relative to taxation, are enumerated in the seventh clause of the 9th section of this Act, in the following terms :

“ To levy a tax on real and personal property and slaves, upon ships, vessels steamboats or other water craft, landing there for more than five days, except the ferry during the term of the privilege, upon all wood yards, carpenter’s yards, dry-docks, livery stables, bakeries, slaughter houses, taverns, billiard tables, and upon all other objects liable to taxation.”

The “ objects liable to taxation” include all persons pursuing any occupation, trade, or profession.” Const. Art. 123.

Dairymen may, therefore, under the Act of March 15th, 1855, be taxed by the Police Jury of the right bank of the parish of Orleans. But, the tax must be levied upon all dairymen. Now the ordinance under examination, while professing to tax the occupation, really imposes atax upon cows kept by dairymen within certain limits on the right bank of the river in the parish of Orleans. The tax is two dollars per cow. Indeed, this is admitted by the counsel of the ap-pellees, who has defended the legality of the tax on the ground that it is a tax on property, not a tax on persons pursuing an occupation.

Considering it in that light, it is equally inconsistent with a just interpretation of the statute which conferred the power of taxation upon the plaintiffs. It is not a tax upon personal property to be preceded by an assessment, nor even on all cows within their jurisdiction, but upon the cows kept by certain individuals, whilst other individuals may keep cows without taxation. This is not only repugnant to the fundamental principles of equality which governs the exercise of the taxing power by the State, but was evidently not within the scope of the authority attempted to be conferred by the legislature upon the Police Jury of the right bank.

It must be observed that this is a tax in its strict sense, intended to aid in filling the general treasury of the jurisdiction within which it was levied, and to defray the general expenses of that jurisdiction — not an assessment upon certain property, to be spent in improving the value of that property, or rendering its use more convenient to the proprietor. In such cases the same principle of equality and uniformity which natural justice dictates, which pervades all -our modern legislation upon this class of subjects, and which has been embodied and consecrated in Article 123 of the Constitution, would seem that the particular properties which are to reap the benefit should bear the burden. The opening and paving of streets in towns, the building and repairing of levees, and the draining of marshes, are special objects for which we have sometimes held that special assessment may be made upon the property to he benefited thereby. New Orleans Draining Co., 11 An. p. 338. Yeatman v. Crandall, do.

The object of the Police Jury in this case could only have been attained in a lawful manner, by enforcing a uniform tax upon all persons pursuing an occupation in the same class, or by taxing personal property in the ordinary manner, or by an income tax.

This would probably have been our construction of the section already quoted from the Act of March 15th, 1855, even if it stood alone. But the 7th section of the same Act declared that the Police Jury of the right bank should “ enjoy the same powers and be subject to the same duties as the Police Juries of the other parishes of the State.”

Now, the 5th section of the general Act “ relative to Police Juries,” approved 9th April, 1847, (Sess. Acts, p. 82,) declared “ that a vote of a majority of all the members elect of Police Juries shall be required to levy any parish tax, or to make any appropriations; provided, that in levying parish taxes they shall levy a uniform per centum on every species of property, trade, or profession on which the State assesses a tax.”

We are of the opinion that the repealing clause at the end of the Act of March 15th, 1855, did not repeal the provision quoad the Police Jury of the parish of Orleans on the right bank of the river Mississippi, who, by the terms of the latter Act, were subjected to the same duties and invested with the same power as other Police Juries.

The law is decisive of the case.

It is, therefore, ordered that the judgment appealed from be reversed, and that ours be for the defendant, with costs in both courts.


author: Merrick, C. J.

text:
    P. N. Faisans v. Samuel Moore.
    Plaintiffs sued for the specific performance of a contract, by which defendant agreecl'to buy of him certain land free from incumbrances: Held, that plaintiff, in order to maintain his action, should have done all required of him by law to put the defendants mora; 0. 0.1907,1908. Besides executing an act of sale of the land to defendant he should have procured the receipt of the Tax Collector and the certificate of the Recorder of Mortgages, showing that the property was free from incumbrances.
    APPEAL from the Fifth District Court of New Orleans.

      St. 'Paul & Bcmny, for plaintiff. Griffon, for defendant and appellant.
   Merrick, C. J.

The plaintiff having in the month of July, 1853, contracted to sell to the defendant three lots of ground, within the district drained by the draining company, for the sum of $1600, brings this action to compel a specific performance of the contract.

He alleges that the price was to he paid in cash, that the defendant paid four hundred and twenty dollars, and the residue was to he paid at the signing of the title; that although the plaintiff has offered to perform the contract on his part, and demanded a compliance on the part of the defendant, yet the defendant refuses to make payment.

The defendant in his answer admits the contract for the property clear of in-cumbrances and the payment of $420, but denies generally the other allegations of the petitioner, and avers that there is a judicial mortgage on the property in favor of the draining company, and avers his willingness to receive the title so soon as the mortgage in favor of the draining company is satisfied.

The case appears to have been tried in the absence of defendant’s counsel.

The judgment of the lower court decreed the defendant, upon the plaintiff’s satisfying the claim of the New Orleans Draining Company and all charges incident thereto upon the lots, to pay to the plaintiff the sum of $1180 and interest, with a proviso that the judgment should only take effect after the plaintiff shall have filed in court a full disclaimer of all the title to the said property. This judgment was signed on the 25th April, 1865. On the 30th day of May this further order was entered on the minutes “ on motion of Si. Paul & Bouny, of counsel for plaintiff, and on filing in court a duly certified copy of a deed of sale from said plaintiff to Samuel Moore, defendant,made in conformity with the judgment herein. It is ordered that said judgment be declared specifically performed so far as plaintiff is concerned.”

The defendant appealed from the judgment rendered the 25th day of April, 1855.

He contends that he has not been put in default, the property being incumbered with taxes and the mortgage in favor of the draining company. Conceding that the indorsement upon the titles of Nov. 29, 1853, by which LeBlanc and Boss certify that they delivered the letter to the defendant, was sufficient proof of such delivery ; still, we do not think the defendant has been put in default.

The only proof of the contract is the admission in the answer that the defendant agreed to buy the property free of incumbrances, and his parol declarations to the same effect, and his refusal to take the property on account of the privilege of the draining company.

This being the evidence on which plaintiff must rely to prove his demand, it makes it incumbent upon him to show that the mortgage of the draining company has been extinguished.

Moreover, to put the defendant in mora, the plaintiff should have done all that was required by law of him on his part; C. C. 1907, 1908 Besides signing the act, the tiling to be done on his part was to procure the. receipts of the Tax Collector and a certificate from the Recorder of Mortgages .‘¡lowing that the property was free from incumbrances. Acts 1848, p. 79, Sec., t ; C. C. 3328.

It is, therefore, ordered, adjudged and decreed by the court the judgment of the lower court be avoided and reversed, and that there hr iiu.gmont in favor of the defendant, as in case of a non-suit, and that the plaintiff pry the costs of both courts.


author: Merrick, C. J. Lea, J., Spoeeokd, J.,

text:
    Board of Health of Louisiana v. Pooley, Nicol & Co.
    This suit was brought to recover the amount of certain drafts, drawn by the captains of certain schooners, for the inspection, at sundry times, of said vessels'at the Rigolets, the Atchafalaya and the Mississippi river, during the time the quarantine regulations were inforced in the year 1855. The defence rests on the ground that the Act of March, 1855, p. 47, did not contemplate the payment of fees for the inspection of vessels at the Rigolets and the Atchafalaya river; that the Board of Health were only authorized by the statute to claim fees for the inspection of vessels in the Mississippi river, and that only one of said vessels was inspected in the Mississippi river, and for that defendants had deposited the money in court.

      JB.y the court: There is not drawn in question the constitutionality or legality of any tax, toll or impost whatsoever, or of any fine, forfeiture or penalty imposed by a municipal corporation, and the amount in controversy is under $8G0. The case is, therefore, not within the provisions of Art. 62 of the Constitution of 1852, which confers on this court its jurisdiction.
    Conceding that the fee imposed by the Act of the Legislature is a tax, toll or impost, upon which no opinion is expressed, the only question this court can consider is the constitutionality of the laws or ordinances under which the tax, fine, toll or impost is ^vied, and not its application to the facts or the construction of such law by the inferior court.
    The u fee ” exacted of vessels undergoing inspection in time of- quarantine, under the Act of 1855, is a tax. The question in this case is purely one of law, touching the legality of a tax, toll or impost, and as such this court is compelled to take jurisdiction of it, and to construe this law for the parties. Spofford, J., dissenting.
    The tax, toll or impost levied upon the defendants’ vessels was a legal exaction. Spofford, J., dissenting.
    The “ fees ” claimed by plaintiff are sanctioned by law, and the law imposing them is constitutional. Lea, J., dissenting.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      H. D. Ogden, for plaintiffs. Mott & Frazer, for defendants and appellants.
   Merrick, C. J.

This suit is brought to recover of the defendants one hundred and five dollars, alleged to be due for certain drafts drawn by the captains of the schooners Southern, West Florida and Emma De Russy, for the inspection, at sundry times, of said vessels at the Rigolets, the Atchafalaya and the Mississippi river, during the time the quarantine regulations were inforced in the year 1855.

The defendants, by their answer, deny that they owe the plaintiffs anything exc.ept $15, which they aver they deposited in court. They deny that the Board of Health had any right to claim any ’fees or charges of defendants’ vessel, and aver that the Act of the Legislature and the regulations of the Board of Health under which said claim is made are unconstitutional and illegal.

The defendants in this court rest the defence to the action on the ground that the Act of the Legislature of the 15th of March, 1855, did not contemplate the payment of fees for the inspection of vessels at the Rigolets and the Ateha-falaya river; that the Board of Health were only authorized by the statute to claim fees for inspection in the Mississippi river, and that only one of their vessels was inspected in the Mississippi river, and for that inspection they have deposited the money in court.

We have no jurisdiction of this case. If the lower court has erred at all, it is in applying a law constitutional in itself to a case to which it was not applicable. Here, then, there is not drawn in question the constitutionality or legality 0f any tax, toll or impost whatsoever, or of any fine, forfeiture or penalty imposed by a municipal corporation, and the amount in controversy is under $800. The case is, therefore, not within the provisions of Article 62 of the Constitution of 1862, which confers on this court its jurisdiction. Conceding tthat the fee imposed by the Act of the Legislature is a tax, toll or impost, (upon which we express no opinion,) it has been settled by this court that the only question which the court can consider is the constitutionality of the law or ordinance under which the tax, fine, toll or impost is levied, and not the application to the facts or construction of such law by the inferior court. In the case of the Third Municipality v. Blanc, 1 An. 386, it is said :

“The concluding part of this Article of the Constitution limits the jurisdiction of this court in criminal cases to questions of law, and the conclusion, that in the case of a petty fine, a greater privilege should be held to be secured the citizen than in a prosecution involving liberty or life, must rest on something more definite than a mere implication.

“ Another conclusive reason against adopting the interpretation of the clause of the Article contended for by the counsel for the defendant is, that the determinations of questions of fact which occur of this kind would be impossible under the present organization of the court.”

In the case of the Second Municipality v. Corning, 4 An. 407, the question raised was the construction of an ordinance, precisely what is sought to be done in the 'present case in regard to an Act of the Legislature. The court said:

“ The tax we find to be lawfull Corning has been condemned to pay a tax which he did not owe; not that the tax itself was illegally imposed, but because it did not apply to him. The amount is not sufficient to enable this court to take cognizance of the appeal; the only decree we can make is to dismiss it.”

These decisions were rendered prior to the adoption of the Constitution of 1862, and as the Constitution of 1852 adopts substantially the provisions of the Article No. 63 of the Constitution of 1846, we must suppose it was the intention of the framers of the Constitution to adopt, with the Article in question, its judicial construction.

Again, if we have jurisdiction of the question of fact by which this law is applied to the inspection of vessels at the Rigolets, we have jurisdiction of every other fact and our jurisdiction is no longer confined in this class of cases to the constitutionality or legality of the law or ordinance levying the tax, toll or impost, but extends to every question of fact which may be raised in the cause to which the statute may be applied.

It is, therefore, ordered, adjudged and decreed by the court, that the appeal in this case be dismissed, and that the appellant pay the costs of the appeal.

Lea, J.,

dissenting. I think the fees claimed by the plaintiff are such as are sanctioned by law, and that the law imposing them is constitutional. I am of the opinion, therefore, that the judgment should be affirmed.

Spoeeokd, J.,

dissenting. Lord Coke’s definition of a tax has been accepted in this court on several occasions: “a burthen, charge, or imposition set on persons or property for public uses; exactions to fill the public coffers for the payment of the debt, and the promotion of the general welfare of the country”

The “fees” exacted from vessels undergoing inspection in the time of quar* antine, under the Act of March 15th, 1855 (p. 471), seem to come within the terms of Lord Coke’s definition ; they are an imposition set on persons or pro* perty for public uses; for observe, they do not'go to the resident physician as a compensation for his work; in effect, they go to the State; the State es* tablished the quarantine not for the benefit of tlie quarantined vessels them* selves, but for the benefit oí the State at large, by guarding it against the importation of pestilence by the vessels. The officers employed receive fixed salaries from the State. The fees, through the machinery of the Board of Health, are expended for the public benefit under-the supervision of the State, because they are required to be deposited -in bank, and the statement thereof approved by the Auditor of Public Accounts. I see no analogy between such an imposition as this and the fees paid to notaries, &c., which are a compensation for services done to the party paying them,' and go directly into the pocket of the party who renders the services.

The jurisdiction of this court extends to “ ali. cases in which the constitutionality or legality of any taw, toll, or impost, whatsoever, shall be in contes-tation.” Constitution,. Art. 62.

The sole question presented by the appellant in this case is, the legality or or illegality of the fees exacted from vessels arriving at the Rigolets and At-chafalaya quarantine stations, and there inspected under the provisions of the Act of March 15 th, 1855, entitled .“an Act to establish Quarantine for the protection of the State.” Sess. Acts, p. 471. It is conceded by the argument, that the law is constitutional.

The appellant contends, that this Act does not authorize the Board of Health to charge fees for the inspection of vessels quarantined at those two stations, but only upon such vessels as are inspected at the quarantine ground on the Mississippi river.

This is, to my mind, purely a question of law touching the legality of a tax, toll, or impost; and as such, I think, we are compelled to take jurisdiction of it, and to construe this law for the parties, irrespective of the amount in dispute between them.

By the seventh section of the Act in question, the quarantine stations of the Rigolets and the Atchafalaya, were established; but it was declared that the provisions of this Act should apply to the station at the Rigolets, only from the day of the issuing of the Governor’s proclamation, as provided by section thirteen, and should continue in force there until suspended by a vote of two-thirds of the members of the Board of Health; and further, that the provisions of the Act should apply to and be enforced at the quarantine station on the Atchafalaya river, from the first of May to the first of November of each year, and also when the Governor shall have issued his proclamation as provided by the thirteenth section, and in such case should remain in full force until suspended by a resolution voted for by two-thirds of the members of the Board of Health.

I understand these provisions to extend the rule as to fees of inspection at the quarantine ground on the Mississippi river to the two stations at the Rego-lets and the Atchafalaya, whenever a quarantine is kept up there in pursuance of the Act. I therefore think the tax, toll or impost, levied upon the defendants’ vessels, was a legal exaction, and that the judgment appealed from should be affirmed.


text:
    H. Gilly v. F. Roumieu.
    Where an agent,'whose authority having been revoked, rendered his account, showing certain assets in his hands belonging to and a balance of money due his principal, and having offered to pay the same on being released from all his liabilities on account of his agency, which was refused — instituted suit against the principal, to compel the homologation of his account and his discharge from all his responsibilities as agent, on delivering the assets and money, due according thereto: JOeld^ that the principal was entitled to a judgment on a rule taken by him, for the money admitted to be due him.
    It is no objection to the judgment on the rule that a part of the case was left open for trial.
    While the mandatary is compelled to render his account, he has the right to retain oril/y a* sufficient a/mowxt out of the property of the principal in his hands, to satisfy his expenses and costs and he may even retain, by way of set off, what the principal owes him, provided the debt be liquidated. 0. 0. 2973, 2992.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Filleul, for plaintiff. Hunt & Denegre, for defendant and appellant.
   Merrick, C. J.

The plaintiff in this action transacted the business of the defendant for some time, as his general mandatary in this city. He was in the habit of making remittances to his principal at Bordeaux, France, by the purchase of cotton. His accounts show that he usually had from three to five thousand dollars balance in his hands to the credit of his principal.

Shortly before the commencement of this suit .the principal revoked his power of attorney, and appointed Messrs. Gratiaa, Commagére & Co., a firm in this city, as agents.

They called upon the plaintiff for an account and for the assets in his hands, consisting of evidences of debts, bank stock and cash, &c.

The plaintiff rendered the account, tendered the balance in his hands with the notes a nd obligations belonging to his principal to the new agents, and demanded a receipt and discharge, and also notified them that he would' cause an account to he made out according to law, and have the same homologated by the District Court.

Gratiaa, Commagére $ Co., obtained from the plaintiff his account and vouchers, promising to settle the account after examining the same, and grant a discharge to the plaintiff, but they returned the account to plaintiff saying that they wished the account to be homologated by the court.

The plaintiff detailed the foregoing facts in his petition, (from which, for the purpose of this trial they are taken,) and annexed an-account thereto, showing the assets in his hands and a balance in money of $3787 62, after deducting his commissions and $150, the fee of his counsel for preparing the account and suing for its homologation.

Plaintiff concludes his petition by praying that his account be decreed regular, exact and correct, that it be homologated, that he be discharged from all responsibilities on his delivering up the balance, $3637 62 cash, together with the titles, notes, accounts, bank stock, &c;, and that said defendant be decreed to pay petitioner $150 for his trouble and expense incurred in obtaining a judicial settlement, and to pay the costs.

The answer admits the agency, and the removal of the plaintiff therefrom; it admits the receipt of defendant’s funds, but avers that plaintiff refuses to deliver the same, and unjustly withholds them from defendant. It admits that plaintiff owes the $3687 62, together with the titles, notes, &c., and avers that he has always been anxious and ready to receive the same and give a full acquittance therefor through his said agents, hut said plaintiff refuses to deliver the same, and has instituted these proceedings with a view to withhold the said property and money .still longer. The defendant further denies that the account is a correct account of the administration of said agent, and that he is precluded by the same from a further demand against said plaintiff, and that the court has no power to homologate the account and discharge the plaintiff, as prayed for, and reserves the right of demanding any property or sum of money belonging to him which may be now or hereafter in the hands of the plaintiff. Defendant prays that the plaintiff’s demand for $150 he dismissed, and that there be judgment in defendant’s favor, for the sum of money, titles and notes which plaintiff admits he owes the defendant.

After filing the answer the defendant took a rule upon the plaintiff to show cause why there should not be judgment in the defendant’s favor, for the $3637 62, and notes and titles, &c., admitted by the plaintiff to he due the defendant.

The plaintiff excepted to the rule, on the ground that the court could not try a part of a case, and that the trial could not take place on any other day than that fixed by the court when the case is called in its turn.

The rule was tried and made absolute, and judgment was rendered against the plaintiff for $3637 62, and the notes, titles, bills, &e., admitted by the plaintiff in his petition and acecount to belong to the defendant.

The plaintiff has appealed from this judgment. -

He contends that he has a privilege for advances .and a right of detention upon the effects in his hands : that the contract of mandate is synallagmatic, arid produces mutual obligations which are to he performed at the same time or the one after the other; that the mandator is hound to warrant and indemnify the man-datary, and to give him a release and discharge when the mandatary renders the account.

That in this ease the defendant was not authorized to require of plaintiff the funds and assets in his hands,'until he should tender the receipt and discharge on his part. :

We see ho error in the judgment of the lower court. The plaintiff, in the account which he has rendered, admits that he has in his hands $3637 62, cash, after retaining his commissions, one hundred and fifty dollars to pay his lawyer for making out the account, and one hundred dollars to pay costs. The law does not contemplate that the mandatary or agent shall, on account of a dispute about a single item, retain in his hands the balance due his principal, however large the same maybe. Were this the ease, it would be a premium offered to the agent to raise difficulties with his principal in order to retain the funds. The code is sufficiently explicit on this subject. While it compels the mandatary to render an account, (No. 2973,) it gives him the right to retain only a sufficient amount out of the property of the principal in his hands to satisfy his expenses and costs, and he may even retain by way of offset what the principal owes him, provided the debt be liquidated; C. C. 2992. Here the plaintiff has in his hands his expenses, his commissions, and two hundred and fifty dollars to pay his lawyer’s fees and costs of suit, and it is only for the balance after these deductions have been made for which judgment was taken against him on his judicial admissions.

It is no objection to this judgment that a part of the ease was left open for trial. Municipality No. 2 v. Corning, 4 An. 407.

The question, whether the agent can tax his principal, with the cost of making out his account, and whether the word “costs” used in Article 2992 of the Code means costs in the rendition of account, are questions which have not been decided by the lower court, and are not before us for examination under our appellate jurisdiction. The only question we have considered is that raised as to the correctness of the judgment appealed from.

Judgment affirmed.


author: Mekrick, O. J.

text:
    Peter Marcy et al. v. The Sun Mutual Insurance Company.
    ÍJamtiffsued on a policy of insurance, upon a floating dock, containing the clause: “ Insurance was against all risks.” Held,: That testimony, offered to prove that the terms “harbor risks” and « river risks,” included the only risks covered by said policy of insurance, and that they have a definitive and settled meaning in the law of insurance, and comprehended only risks from fire, from collision, from extraordinary losses arising from extraordinary perils of the winds and waters, from external accidents only, and not from defects in the thing insured, is inadmissible. In the absence of a custom in regard to “floating docks,” by which the terms used in the policy have acquired a particular signification, the construction is one of law, for the courts, upon the instrument itself. The opinion of witnesses upon the evidence, as it did not appear that they were shipwrights, or had any experience in building docks, was properly excluded.
    That the terms “ all risks ” includes all river risks and harbor risks, so far as those risks were applicable to floating docks.
    That there was a warranty on the part ©f the insured that the dock was seaworthy, well built, staunch, and capable of the business in which it was employed, and fitted with machinery and well protected against accidents arising from the ordinary effects of the elements in which it was employed.
    That where a loss occurs without any known or apparent cause, the presumption is that such loss was occasioned by the unseaworthiness of the dock; yet this presumption may be rebutted by sufficient positive proof, by disinterested witnesses, of its seaworthiness.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Gilmore, Bon/ord and Boselius, for plaintiffs. Maylin and B. Bunt, for defendant and appellant.
   Mekrick, O. J.

The defendant, through its agent in this city, on the 23d day of August, 1854, renewed a policy of insurance upon a floating dock called the “Old Dry Dock.”

The policy was for one year. The premium paid was 1-jf per centum, and the amount of interest insured was $4500.

The policy was a printed marine policy, with such blanks filled as were proper to be filled, and with a clause in writing that “insurance was against all risks.”

In March, 1855, the ship Boynton was received within the dock, when it was attempted to raise the ship by throwing off the water by the pump attached to the engine of the dock. Either from the defects in the dock itself, a sudden leak, the breaking of one of the pumps, or some obstruction to the valves from drift wood, the machinery became insufficient to raise the dock. The ship Aas removed; nevertheless, with all the exertions of those in charge of the dock, it gradually sunk, put out the fires in the furnace, and, going under, became a total loss.

The defendant resisted the payment of the sum insured, on the ground that the dock was not seaworthy, and had not a capacity sufficient for the Boynton, and that the loss was occasioned without any apparent external cause, and by a risk' hot insured against.

The case was tried by a jury, who found for the plaintiff, and the defendant appealed.

There are two bills of exception in the record which require our notice. The defendant offered to prove, by Oapt. Poílook and -other witnesses, that, according to the well established usage in New’ Orleans on the terms “harbor risks” and “river risks,” the perils by which the plaintiffs allege they suffered the loss, and for which they seek to recover in this case, were not included in such risks, which were the only risks covered by the policy offered in evidence: that those are well known terms, and though ambiguous in themselves, have a definitive and settled meaning in the law of insurance, and comprehend only risks from fire, from collision, from 'extraordinary losses arising from extraordinary perils of the winds and waters; from external accidents only, and not from defects in the thing insured.

The court refused to admit the testimony, and the defendant excepted.

The court did not err. The covenant in the present policyis “against all risks.” It is not pretended that any custom has been established in New Orleans in regard to insurances upon floating docks, by which the terms used have acquired a particular signification. In the absence of such custom, the construction is one of law for the courts upon the instrument itself.

On the second branch of the bill of exception, we observe that it does not appear that Captain Swain and Robertson were shipwrights, or had any experience in building docks. Their opinion upon the evidence was properly excluded. Indeed, in the conflict of testimony in this case, a decision of the question by the experts, whether or not the loss was occasioned by the defects in the dock insured would have been, if credited by the jury, a decision of the case itself. 1

The court was also requested to instruct the jury that the written words, “ all risks,” in the policy, must, on account of the nature and employment of the dry dock, be considered by the jury as meaning all river risks and harbor risks. This instruction the court refused, on the ground that it was in the province of the jury to say what was the intention of the parties, and what effect was to be given to the terms of the policy.

We think the court ought to have instructed the jury that the insurance did include the risks named, viz: so far as applicable to the object insured; that the dock was not intended to run from one point on the river to another, or to carry freight, but to be moored to the wharf; that the manner of its use required it to be partially submerged to raise the vessel entering the dock; that as the sinking and raising the dock occasioned its greatest risk, the policy covered all risks from external injuries while in action or use, as well as when entirely afloat.

That the jury ought to have been informed that, although the policy protected the insured against losses from such risks; nevertheless there was a warranty on the part of the insured that the dock was seaworthy or well built, staunch and capable of the business in which it was employed, and fitted with efficient machinery and well protected against accidents arising from the ordinary effects of the element in which it was employed; that if the jury believed that the accident was occasioned by the inherent defects in the dock, such as weakness or rottenness of the timbers and works, or the insufficiency of the machinery, or the defective construction of the valves, &c., the insured are not liable; that if, on the contrary, the jury should be of the opinion that the dock and its machinery were in all respects staunch and well fitted for the business in which it was employed, and not used in this instance beyond its capacity, and that the accident was occasioned by the unusual and extraordinary effect of the drift wood forced by the current into the valves, by which their action was prevented, they having been properly made and secured, or if the loss was occasioned by any other unusual action of the winds, waves or currents of the river, that the plaintiffs would be entitled to recover under the policy, and not otherwise.

The defendant further requested the court to charge the jury that the plaintiffs were not entitled to recover unless they showed the cause of the sinking of the dock, and if no cause be shown to the satisfaction of the jury, they are bound to presume the dry dock unseaworthy ; the court charged that, although the principle is true, it is not altogether applicable to this case.

We think the charge should have been given with the qualification that, although where a loss is occasioned without any known or apparent cause, the presumption is that such loss was occasioned by the unseaworthiness of the dock, yet that this presumption may be rebutted by sufficient positive proof, by disinterested witnesses, of the seaworthiness of the dock. Snether v. Memphis Insurance Company, 3 An. 474; 7 An. 279.

In the conflict of testimony in this case it is impossible to ascertain what principles of law governed the jury in their conclusions. We think it, therefore, our duty to remand the case for a new trial.

Judgment reversed, and a new trial ordered, with instructions to the lower court to be governed by the views herein expressed, and otherwise to proceed according to law; appellees to pay costs of appeal.


author: Mereick, 0. J.

text:
    William H. Nixon v. W. B. Bozeman et al.
    Plaintiff sued for the rescission of the sale of a slave, and for restitution of the price paid the defendant, on the ground that the slave was afflicted with a redhibitory disease, to wit, fits. The slave was tendered to the defendants, and disappeared the following morning, and could not be found. Held: The rule embodied in Art. 25110. 0. is but the embodiment in the Code of the maxim res perii dommo. Until the thing is shown to have perished, the presumption exists that it may be recovered, and that there is still a property in the thing which may be divested by the rescission.
    There is no force in the objection, that because plaintiff has alledged one ground of redhibition, he shall not be permitted to show his inability to deliver the slave to the defendant, on account of defects, in the nature of a second ground of redhibition. By the force of the judgment rescinding the sale, the property in the slave, wheresoever he may be, is in the defendant.
    APPEAL from the Second District Court of New Orleans, Lea, J.^

      Bemnes & Edwards, for plaintiff and appellant. Elmore & King, for defendant. Eunton & Bradford, for warrantor.
   Mereick, 0. J.

(Sfojtoed, J., absent.) This suit is brought to recover back the price paid by the plaintiff to the defendants for a slave, and for the rescission of the sale and the recovery of damages. As the basis of the action, it is alleged that the slave “ was afflicted with a redhibitory disease, to wit, fits, which has rendered his use so inconvenient and imperfect, and has so much impaired his value, that had petitioner known of the existence of the disease, he never would have purchased him.” The demand was against the defendants as bound in solido, it being alleged that-they were partners in buying and selling slaves. The answer admits the partnership. The defendants called in warranty Maamwdo, their immediate vendor.

The case was tried by a jury, who rendered a verdict in favor of plaintiff rescinding the sale, and awarding plaintiff $950,. the price of the slave, and $250 damages, and the return of a note of $25. The'jury also dismissed the demand in warranty.

The plaintiff having remitted $25 of the verdict, judgment was entered thereon accordingly. The defendants have appealed.

Since the cáse has been pending in this court, the plaintiff having died, and the defendant, Matilda Kendig Bushy, having gone into insolvency, G. Be Choisezil, as curator of the vacant estate of the one, and John M. Bell, as syndic of the creditors of the other, have been" made, parties in their respective capacities to this suit.

No motion was made in the lower court to obtain a new trial.

The appellants urge as grounds of reversal in this court, that the judgment is erroneous:

1st. Because it is a judgment in solido.

2d. Because there is no proof that the plaintiff sustained damages to the extent of $250.

3d. Because the judgment does not order the plaintiff to restore the boy to the possession of the defendants.

I. On the first point, the petition charges that the defendants are bound in solido, and alleges that they were partners in buying and selling slaves. The defendants, in their answer, “ admit the partnership alleged.” The'act of sale was made by the defendant Bozeman alone to the plaintiff, without any allusion to the fact, that he had a partner interested in the sale with him, although their immediate vendor had made conveyance to Mrs. Bushy only and not to Bozeman. As no application was made to the lower court to set aside the verdict of the jury, we do not think we are called upon to revise the verdict in this particular, there having been evidence before them from which they might infer the solidarity of the obligation of defendants. 2 Ann. 876.

II. The observation we have just made, applies with equal force to alleged excessive damages allowed by the jury.

III. It appears that the slave was tendered the defendants on the 2d day of March, 1858, and'he disappeared on the following morning. It is further shown, that notwithstanding every reasonable exertion was used to recover the slave, he has not yet been found, although there were rumors of his presence in New Orleans after the tender. On this third point it is urged, that “ the boy has been lost to the plaintiff, and cannot be returned to the defendant in consequence of — not the vice alleged in fhepetitiozi or complained of-_ hut of something else, his disappearing. That the Civil Code, Art. 2510 declares, if the thing affected with vices has perished through the badness of its quality, the sellers must sustain the loss. Art. 2511. If it has perished by a fortuitous event, before the purchaser has instituted, his redhibitory action, the loss must be borne by him.”

We do not think the law cited applicable to this case. The rule embodied in Article No. 2511, is but the embodiment in the code and limitations of the maxim, resperit domino. Until the thing is shown to have perished, the presumption exists that it may yet be recovered; that there is still a property in the thing which may be divested by the rescission. Moreover, there is not much force in the objection, that because the plaintiff has alleged but one ground of rehibibition, he shall not be permitted to show his inability to deliver the slave to the defendants on account of defects in the nature of a second or third ground of redhibition. The judgment rescinds the sale of the slave, and by the force of the judgment, the property in the slave, wherever he may be, is in the defendants.

So far as it respects the defendant in warranty, it is shown that it, the title from Maemurdo to Mrs. Bushy, warrants the title only. It is further shown, that Maemurdo expressly refused fully to guarantee the slave, and ho gave as his reasons that he suspected that the slave had stolen money, and that he pretended to be sickly, which he, Maemurdo, did not believe to be the case. The jury, by their verdict, must have found that it does not appear that Mae-murdo knew that the slave was subject to fits, nor that his statement that he did not believe the slave was sickly, was untrue; and they have further found that it does not appear that Maemurdo was guilty of fraud in making the sale to Mrs. Bushy. C. C. 2523, 2526. We are not prepared to say that the jury erred in their conclusion on this branch of the case.

We do not think this a case in which damages should he allowed as in case of a frivolous appeal.

It is therefore ordered, adjudged and decreed by the court, that the judgment of the lower court be affirmed in favor of G. De Ghoiseul, the curator of the succession of William 3. Mixon, deceased, and the warrantor, John JR. Maemurdo, and against the said Bozeman and the sydic of the creditors of said Matilda EJendig Bushy; and that the said defendants and appellants pay the costs.


text:
    R. J. Davis v. William Robertson.—Same v. Same.
    Under tlie statutes of Mississippi, the trustees of insolvent banks are not restricted to the collection of such assets as are necessary to pay the debts of the corporation, but they have the right to collect all the assets and, after payment ef debts, distribute the surplus among the stockholders.
    In ordinary cases the decisions of the State courts, upon the construction of State laws, not involving questions under the Constitution of the United States, are authoritative. But in a case like this, where there is difference of opinion between the Supreme Court of the United States and the Court of Errors of Mississippi, it is a good reason for following the former, that it is more in harmony with the jurisprudence of Louisiana.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Glarke & Bayne, for plaintiff. Mott & Fraser, for defendant and inter-venor, appellant.
   Merrick, C. J.

On the first day of March, 1815, the Commercial Bank of Natchez commenced suit, in the Circuit Court of Madison county, Mississippi, against R J. Dmis and his sureties, upon a promissory note for $2647 44, due on the 1st day of March, 1889, with eight per cent, interest.

On the twelfth day of June of the same year, 1845, the charter of the Commercial Bank was declared forfeited, and the defendant, William Robertson, appointed trustee. In April, 1847, Robertson, suggesting the dissolution of the corporation, obtained an order reviving the suit in his name as trustee, and obtained, at the same time, a judgment of default against the defendants.

This judgment by default was set aside, and on the motion of the defendants, and the production of a writ of injunction, showing that, at and previous to the institution of the action, the Commercial Bank had been injoined from the collection of its debts, the suit was dismissed. In February, 1850, Robertson, as trustee of the Commercial Bank, sued out his writ of errors upon this decree to the High Court of Errors and Appeals of the State of Mississippi.

From August, 1850, to June, 1852, the writ of error still pending, the parties were treating for a compromise on a proposition of Davis and his sureties.

In the month of June the compromise was agreed upon. One of the sureties of the defendant was to give, in discharge of the debt, his two drafts, payable the first day of October, 1852, for the amount of the face of the original note sued on, without interest, and pay the attorneys fees and costs. The drafts were given accordingly, payable in this city, and the writ of error was dismissed on the 6th day of December, 1852.

Before the maturity of the drafts, Davis informed the attorney of the trustee, at Canton, Mississippi, that the payment of the drafts would be stopped, and. that he wished him to proceed as before in the prosecution of the suit

On the fourth day of October, the maturity of the drafts, the present suit was commenced by attachment to arrest the collection of the drafts by Robertson, but failing in this, the plaintiff was afterwards enabled to perfect his process by personal service. ' Judgment vims rendered against Robertson in the District Court, and the defendant has appealed.

The charter of the Commercial Bank of Natchez was declared forfeited under an Act of the Legislature of Mississippi, approved 26th of July, 1843. This Act provided for the liquidation of the affairs of the banks whose charters should be declared forfeited, by the appointment of a trustee, who was required to give bond and empowered to collect the debts dup to the defunct corporation, and distribute the proceeds according to law, to the payment of the debts of the corporation.

By a subsequent Act, approved February 28th, 1846, it was made the duty of trustees, appointed or to be appointed, to distribute the funds to the creditors of the bank in the order therein laid down, and the surplus, if any, ratably among the stockholders.

The-High Court of Errors and Appeals of «Mississippi, shortly after the maturity of the drafts, decided that the trustee had no authority to collect of the debtor of the bank any more funds than were sufficient to pay the debts. It being admitted that the trustee had already contributed more than sufficient to pay the debts, as a necessary consequence he was, under that decision, incompetent to collect, on their original contracts, anything further from the debtors of the bank. Since the decision, by the High Court of Errors and Appeals, of the case of Coulter and, Richard's Executors v. W. Robertson, Trustee, the question has been considered by the Supreme Court of the United States, in the case of Bacon et al. v. Robertson et al., Howard’s U. S. Reports, 480, wherein the latter court hold directly the reverse of the former.

In ordinary cases we are accustomed to consider the decision of the State tribunals, upon the construction of their own laws, not involving constitutional questions arising under the Constitution of the United States, as the most authoritative exposition of them, and decisive of the meaning of such statutes.

But there are two reasons which induce us to adopt the decision of the. Supreme Court of the United States as controlling our conclusions in this Case.

1st. The first is, that the decision of the Supreme Court of the United States is more in accordance with what we conceive to be the settled jurisprudence of Louisiana. Under our legislation we believe that the debtor of a corporation has never been considered discharged from his obligation by the forfeiture of the charter of such institution. Indeed our courts have, under their equitable powers, appointed (when necessary) a receiver to collect the debts due to such defunct corporation, for the purpose of paying the debts due by it.

2d. Prom the principles announced by the Supreme Court of the United States, we infer that the courts of the United States have taken, or will take, jurisdiction (at least of the funds in the hands of the trustee) in a suit brought, or to be brought, by the non-resident stockholders against those residing in Mississippi and the trustee. And as a legitimate consequence of the reasoning of the Supreme Court of the United States, we have reason to suppose that the sum of money now in controversy, being in the hands of the trustee, will be subjeot to distribution, to be ordered by that or the Circuit Court.

Moreover, equity does not require that the stockholders who now appear to have possesion of that fund by their agent and trustee, and who, in their corporate capacities, furnished the consideration of the original note, the subject of the compromise, should be compelled to return to the plaintiff their money, which he has held for so many years without paying interest.

In conclusion, we observe that it is by no means certain that, under the law as settled by the courts of Mississippi, the plaintiff would be entitled to recover. It is very questionable whether the plaintiff is not estopped by the compromise from contesting the plaintiff’s capacity to receive or retain the money. Por a compromise at common law appears to us to be as conclusive upon the parties and somewhat more comprehensive in what it embraces than the transaction under our own Code. Error of law is not a ground for its rescission, and it can only be set aside where there has been fraud or misrepresentation. 1st Bouvier Inst. 309; Bellée v. Lumly, 2 East. Rep. 469; 1st Oomyn on Contracts, 85, (38); C. C. 1824, 3046, 3047.

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


author: Sfofford, J.

text:
    F. P. Boutté et al. v. Dubois & Mish.
    Construction of the following clause in a contract of lease :
    “8d. The State and municipal taxes, over and above the amount now paid by the lessors, shall be chargeable to and reimbursed by the lessees to the lessors.”

      Held: That the lessor was entitled to annual reimbursements o'f whatever sums he paid for taxes, above the amount fixed in said clause. No reference was made in the contract to a final adjustment in 1861; no estimation was given of an intent to keep up a debtor and creditor account of excess and deficiency eaeh year through the term of lease. No account was to be taken of the deficiency, what was “ over and above” was provided for. The deficiency was not to benefit the lessees in any case; the excess was to be chargeable to them, and was therefore exigible as soon as paid by the lessors.
    APPEAL from the Second District Court of Ne,w Orleans, Morgan, J.

      Martin and Forstall, for plaintiff. Upton and Iioselius, for defendant and appellant.
   Sfofford, J.

In 1851 the defendants, hy notarial act, leased certain premises in New Orleans to the plaintiffs for eight years-to be computed from and after the 6th July, 1853, to end with the 5th July, 1861.

The following are the first three clauses of the agreement as articulated by the notary:

1st. The said Dubois & Mish, for them, their heirs and assigns, bind themselves to pay regularly at the end of each and every month of said lease, on first presentation of the simple receipts of said lessors or their agent, the monthly rent of three hundred dollars. The first payment thereof to become due and to be effected on the 6th day of August, 1853, the second on the 6th of September next ensuing, and so on from month to month, during the continuance of said lease.

2d. All costs, charges and expenses whatsoever for repairing and keeping in good condition said premises, remain now and until the expiration of said lease, to the exclusive charge and account of the lessees.

3d. The State and municipal taxes, over and above the amount now paid by the lessors, shall be chargeable to and reimbursed by the lessees to the lessors.

The present controversy involves the construction to be given to the third of the foregoing clauses. The amount of State and municipal taxes paid on the property by the lessors, for the year 1851, (the year the contract was made,) is admitted to have been $552 50. These taxes for the year 1852 having exceeded that sum by $251 50, and for 1853 by $302 20, this suit was brought in 1854 by the lessors against the lessees, under the third clause of the contract for the reimbursement of these two sums,amounting together to $553 70, for which they recovered judgment against the lessees, who have appealed.

The appellants contend that, by the clause in question, no reimbursement could be called for until the expiration .of the whole period of the lease, in July, 1861, and then only in case the average amountof State and municipal taxation upon this property for that term should exceed $552 50 per year.

The appellees, on the, contrary, insist that as soon as they are compelled to pay for any one year’s taxes upon this property to the state and city, exceeding in amount the sum of $552 50, they have an action against the lessees for the reimbursement of this surplus; and that the surplus they may be compelled to pay one year is not to be offset by the deficiency of another year, should it ever happen that the taxes fall below' the sum stated.

It was well known to the parties that taxes were annually imposed. When they referred to the taxes “ now paid,” it is conceded they meant the taxes for the current year. If the sum paid the next year should exceed that paid for the current year, it was agreed that such sum should be “ chargeable to the lessees.” As soon as the lessors had paid in excess of the stipulated sum for the yearly taxes, they had a charge against the lessees. And as the subject, in the minds of the contracting parties, was an annual tax, we may suppose they contemplated an annual reimbursement for excessive payments. For no reference was made in the contract to a final adjustment of the matter in 1861; no intimation was given of an intent to keep up a debtor and creditor account of excess and deficiency each year, through the term of the lease. Indeed, no account whatever was to be taken of the deficiency. What is “ over and above” is provided for ; what is below is not provided for. The State and city might remit the taxes altogether, and yet the lessees were not to have the úse of the leased property on less onerous terms. The deficiency was not to benefit them in any case ; the excess was to be chargeable to them, and was therefore exigible as soon as paid by the lessors.

It is thus we read the contract, conceiving it to be the most natural construction of the terms used by the parties, the most congruous to the subject matter of the particular clause in question, and the most consistent witli tire general tenor of the instrument in which it is found.

As we concur in the views of the District Judge, upon this point, his judgment is affirmed with costs.


author: Spofford, J. Merrick, O. J.,

text:
    M. S. Carson v. M. Johnson; Sheriff.
    Simulated sale.
    XA. PPEAL from the District Court of the parish of Jackson, Richardson, J.

      Defreese, Gray & Thompson, for plaintiff and appellant. Rives and 8tuVbs, for defendant.
   Spofford, J.

(Merrick, C. J., dissenting.) In May, 1855, Tennent, Renick-son & Go. had a suit pending in the District Court of Ouachita parish against R. A. Carson, for about $1900. R. A. Carson had formerly been a merchant in the town of Vernon, parish of Jackson, but had been unsuccessful, and in the month of May aforesaid was, by his own acknowledgments, insolvent. It does not appear that he had then any other visible property, except four town lots and an undivided half of about twenty-five acres of land in the parish of Jackson.

On the 11th May, 1865, about two weeks before the final judgment against him, in favor of Tennent, Renickson & Co., was signed, R. A. Carson made a notarial conveyance of all the landed property just mentioned to the plaintiff, his brother, a young man who had but recently attained the age of majority, then living in Union parish. The conveyance professes to be a sale for the consideration of $550, “cash in hand paid,” and was recorded in the Recorder’s office of Jackson parish, on the 14th May, 1855.

Tennent, Renickson & Co. afterwards directed the Sheriff to seize the lots and land aforesaid, under their judgment against R. A. Carson. M. S. Carson sued out the present injunction against the Sheriff to restrain the sale, on the allegations that he was the true owner of the land, having bought it for $550 in cash.

Tennent, Renickson & Co. came in and denied the reality of the sale from their debtor R. A. Carson to M. 8. Carson, averred the same to be a fraudulent simulation, and prayed for a dissolution of the injunction, with damages in their favor. After a hearing upon the merits, the District Judge dissolved the injunction with damages, and the plaintiff has appealed.

It cannot be pretended that there was any truth in the averment of the plaintiff’s petition, that he bought the land in question for $550, cash in hand paid. No cásh was paid. The contract sought to be proved by the plaintiff is not a sale, but a remunerative donation from his brother for services rendered him as clerk three or four years before, when he was able to pay his debts. The only proof that there was an actual debt for such services is made by a third brother, who testifies that sometime in the month of May, 1855, (the time of the pretended sale,) “ he heard R. A. Garson admit that he was indebted to plaintiff, M. jS. Carson, in the sum of $550, for services as clerk in the town of Vernon.”

Now, it is shown that all the services that were rendered dated back to the years 1850 and 1851, when the plaintiff was a lad of seventeen or eighteen years of age, inexperienced in business. Nor does it seem that the plaintiff ever claimed or his brother R. A. Carson ever acknowledged the existence of such a debt until the month when this conveyance was made, and it was thought necessary to fix upon a consideration for a conveyance made on the eve of insolvency. In fact, the evidence leads to the conclusion that the idea of compensation was an after-thought which never occurred to the parties till a claim for wages was prescribed, and the pretended debtor found himself in insolvent circumstances, with a large suit impending over him. One of the plaintiff’s witnesses, a fellow clerk, says that Moses Carson, in reply to his enquiry what was he getting as clerk, said he did not know what he was getting.

One of the defendant’s witnesses, a man who bought out R. A. Carson, in January, 1852, when the plaintiff’s services terminated, testified, without objection on the part of plaintiff, that R. A. Garson told him he had written on to his brother to come out here, and that he was not giving him anything for clerking the first year. This was in 1850. When the witness bought out R. A. Garson, the latter desired him to retain his brother as clerk, and said that he had been attentive, that he had got nothing for his services, and that he would' not ask much; witness retained him for three months at ten dollars a month. Does not think there was any contract between plaintiff and his brother about wages; his brother supported him. This witness further states that in the spring of 1856, he sold some horses to R. A. Garson, and he asked for a receipt in his wife’s name, stating that he did not. own any property.

The land would seem to have been worth more than the pretended price. One witness swears that Carson’s interest in it was worth between $800 and $1000. A witness introduced by the plaintiff puts it lower, but still estimates it at $650.

It is not pretended that there was any actual possession by the plaintiff, a constructive possession by simulated notarial title is nothing. The record seems to support the views of the District Judge, who said that “the facts and circumstances of this case are irreconcilable with the reality of the transfer, while they are consistent with the hypothesis that it is a mere paper title.”

It is, therefore, ordered that the judgment be affirmed, with costs

Merrick, O. J.,

dissenting. I do not concur in the conclusions of the majority of the court in this case. There is no better settled rule of law than that the declarations of third parties cannot prejudice another.

The declarations of R. A. Garson, out of the presence of his brother, cannot prejudice the plaintiff, although in the revocatory action they may be evidence for the purpose of showing the sale was fraudulent on his part. To bind the-plaintiff, his own admissions alone could be offered against him.

The testimony of J. O. Jones, himself also a clerk and apparently not related to the plaintiff, proves the indebtedness of R. A. Garson to the plaintiff. He says: That the plaintiff “ was clerk for R. A. Ga/rson; commenced in the fall of 1849, and continued as his clerk to January, 1852, and about that time Ccwson sold and I (Jones) was also one of his clerks, and left January, 1852. In 1850, my salary was $300, and in 1851, $350, and an interest in the profits of the post office. Moses Carson’s services during the years 1850 and 1851 were worth $250 per year.” It is true that the plaintiff told him he did not know how much he was to receive. But the want of a contract would not prevent the plaintiff rocovering the value of his services. I know of no law which refuses to a minor his wages. Were there any reason to doubt the testimony of James H. Carson, the brother of the plaintiff, it is fully corroborated by the preceding testimony of Jones. Now, conceding that £. M. Carson was embarrassed, (and that would account for the delay in paying plaintiffs as well as defendants,) or even insolvent, and it does not follow that the sale made in this case was not intended as a real sale. If the intention of the parties was to give the plaintiff a preference over the other creditors, or to let him have the property at an inadequate price, or even if it was intended that he should hold the property for his own use, although in fraud of creditors, in all these cases, the sale is a real one, and the party attacking it is driven to his revocatory action. C. C. 1973,1974, 1976. It is only in those cases where no title was intended to pass for the benefit of the transferee, or where it is but a mere cloak or mask, that it may be treated as a nullity, and the property seieed in the first instance. 1 Ann. 299. Even in these cases the burden of proof on the injunction appears to be upon the seizing creditor to show the simulation. 10 A. R, 691.

Under our law the consideration specified in a deed is not conclusive. The cash specified in plaintiff’s- deed, being the precise amount of the acknowledged indebtedness of if.- A. Carson to him, may, under the proof in the record, be considered, without violating ordinary language, as identical with such indebtedness. The law declares that the immovable was delivered to the plaintiff by the notarial act of sale. C. C. 2455. There has been no attempt to rebut this legal presumption. On the contrary, the proof shows that if. A. Carson resided in the parish of Ouachita, where defendant’s judgment was rendered against him, whilst the plaintiff resides in the parish of Union, where the notarial act was passed, and where the land lies, the ownership of which the plaintiff claims. I think, therefore, in the absence of all proof to the contrary, that the land must be held to be in the possession of the plaintiff.

As it respects the pleadings, I think the allegation of the plaintiff, that he is the owner and that the Sheriff has illegally seized his property, is a sufficient affirmance that the plaintiff had possession under his title, which was disturbed by such seizure. Now, as the presumption of possession has not been rebutted by the defendants, the burden of proof is upon them to show that the sale was simulated, and not upon the plaintiff to show that it is hona fide. C. C. 1915, 2456. No principle of law is better settled than that fraud and simulation must be clearly established by proof. They are not to be presumed. I cannot see any other safe rule of proceeding, than to follow these positive requirements of the Code. They are the only sound basis upon which titles to real estate can rest with any security. If bad faith in the transfers of real estate, were to be presumed instead of good faith, few would be secure in their possessions. For there are but few who would be able to prove all the circumstances of the payments for their slaves and immovables.

I think, therefore, that the j udgment of the lower court ought to be reversed, and that the seizing creditors should be left to their revocatory action.


author: Buchanan, J.

text:
    Winifred Wood v. William Hardy.
    As owner of one-half and usufructuary under the will of the other half of the note sued on, the plaintiff had the right to maintain an action to enforce payment.
    APPEAL from the District Court of the parish of Claiborne, Land, J.

      McGuire & Bay, for plaintiff. Watkins, for defendant and appellant.
   Buchanan, J.

There are two questions presented in this case:

1st. The right of the plaintiff, as holder of the note sued upon.

2d. A plea of compensation.

The note is dated Minden, 1st May, 1851, signed by defendant, and payable to Robert Baldwin, or bearer, twelve months after date. It appears to have been the property of Martin Wood, who died in 1851. The plaintiff is the widow of Martin Wood, who left a will, made in 1849, which has been probated, and contains the following clauses:

“I give and bequeath unto my wife, Winifred Wood, the plantation and all the land belonging to the Home Farm, some nine hundred acres or more, whereon I now reside, with all the negroes and their increase, say about fifty negroes in number, and the stock of horses, mules, cattle, wagons, and all the household and kitchen furniture belonging to the place, during her natural life; then, if it can be done by my executors, all of the negroes to be set free, and carried to the near part of Mexico, beyond the river Rio Grande. I also set aside the sum of three thousand dollars to accomplish the same. The balance of my money and debts I give to my wife, Winifred Wood, during her life. I give and bequeath to Nancy Boles a tract of land called the Thompson Place, and all the improvements thereon, containing eight hundred and eighty acres, more or less, also one hundred dollars to purchase her a horse. This I give her in consideration of the number of years she has resided in the house with us, and during said time she became a cripple for life. It is my wish that my Red River land, called Goshen, lying part in Caddo and part in Bossier parish, be sold as my executors may deem to the interest of the legatees of my estate; said tract of land contains some nine hundred acres more or less. After the decease of my beloved wife, Winifred Wood, it is my desire that the remaining surplus of my property be sold by my executors, and equal division made between my nieces and nephews [naming them]. I do hereby appoint my friends, William Hardy and James M. Morrow, both of Minden, my executors, to carry out this my last will and testament.”

The note now sued upon is to be reckoned among the debts mentioned in this will, and of which the usufruct is given to plaintiff by its terms. The debt evidenced by that note was property of the community of acquets, and belonged, for one-half, to plaintiff at the dissolution of the community. As owner of one-half, and usufructuary under the will of the other half, the plaintiff has an undoubted right to maintain an action for the recovery of this debt.

There is no seizin in the warranty under the will, at least during plaintiff’s lifetime, of anything but the Goshen tract of land.

A partial payment of the note, and credited on the same, in the year following Martin WooSs death, is inconsistent with defendant’s present pretensions.

The claim of three thousand dollars, in his capacity of executor, if defendant could urge it at all during plaintiff’s lifetime, (which is more than doubtful,) can clearly not be pleaded as an offset against a debt due by him personally.

The prayer of appellee for damages for a frivolous appeal is entitled to favorable consideration.

Judgment of District Court affirmed, with seventy-two dollars damages for a frivolous appeal, and costs.

Spoffoud, J., recused himself.


text:
    E. Williams v James Clark.
    A judgment, based upon a defective citat’on, and an attachment that was set aside, is an absolute nullity, which may be urged as matter of defence by any one having an interest.
    A purchaser at a Sheriff’s sale, made without a previous seizure, acquires nothing, at least as against a third party in possession.
    APPEAL from the District Court of the parish of Jackson, Richardson, J.

      Hives, Rankin and Thompson, for. plaintiff and appellant. McGuire & 'Ray, for defendant.
   Lea, J.

The plaintiff in this case claims a tract of land in virtue of an adjudication made on the 5th July, 1851, at a Sheriff’s sale, under an execution issued 'in the case of the present plaintiff against John W. Rountree. The petition sets forth that, on the 15th Ootdber, I860, Avarida Ansley, wife of John W. Rountree, acting for herself, and pretending to act as attorney in fact for her said husband, transferred to the defendant the land in controversy) which sale, the petitioner avers, is fraudulent, and made without authority.

The plaintiff avers that the. defendant, Clark, took possession of said property on the 15th October, 1850, and that he, 'the plaintiff, is entitled to rent at the rate of $150 per annum from the date of his purchase. He also claims $150 as damages for counsel fees. We deem it unnecessary to refer to the suit instituted on the 8th April, 1850, by the plaintiff for the annulment of the judgment obtained by Mrs. Rountree against her husband for a separation of property, as we do not consider that it has any necessary connection with the legal questions involved in the issue between the parties. /

The defendant avers that judgment, on the execution of which the land was -sold, is a nullity, having been brought against an absentee who was never cited, and having no other basis for the jurisdiction of the court than an attachment, which was dissolved;; that neither the person por the property of the defendant was before the court, and that all proceedings based upon the judgment «re null and void. The defendant further alleges that no actual seizure was made of the property sold; that there was no legal notice of seizure to Roun-tree, or notice to appoint appraisers, nor was there any appraisement.

The case was submitted to a jury, who found a verdict for the defendant.

The position assumed by the plaintiff’s counsel, that the defendant cannot, =as against the plaintiff, avail himself of irregularities in the proceedings anterior to the judgment, nor indeed after judgment, is correct, so far as it relates to the "omission of formalities which are intended for the protection of the judgment debtor, in which a third party is without interest; but the rule cannot be held to extend to such omissions as are the basis of absolute nullities. In this ease it is urged:

1st. That the judgment is a nullity for the want of a citation or a valid attachment.

2d. That the plaintiff acquired no title under the adjudication under which he claims, there having been no seizure of the property sold.

It appears from the record, and from the allegations of the petition that, at the time the. suit against Rountree was filed, he had “ permanently left the State of Louisiana.” A negro boy was seized by virtue of a writ of attachment, but as this writ was set aside, the seizure conferred no jurisdiction on the court; no curator ad hoe was appointed to represent the defendant, and had such appointment been made, the curator would have been without authority to represent the defendant after the attachment was dissolved. The citation issued in the case could not be served personally upon the defendant, but, as appears from the Sheriff’s return, it was served upon one Gilbert D. Ansley, “living in the house with the defendant,” said house being situated in the parish of Jackson. It does not appear at what place the service was made upon Ansley, and he could not at the time have been living with a person who had permanently absconded from the State, and who had not then, nor, so far as we are informed, at at any time since, returned. The judgment, therefore, being based upon a defective citation and an invalid attachment, which was set aside, was an absolute nullity, which nullity might be urged as matter of defence by any one having an interest to call in question the validity of the judgment.

It is clear, also, that no valid seizure was made of the property adjudicated. The defendant, at the date of the constructive seizure, and over since, has been - in actual possession of the property; no attempt was made to dispossess him. The defendant cannot be held to a constructive notice of an invalid seizure. A purchaser at a Sheriff’s sale, made without a previous seizure; acquires nothing, at least as against a third party in possession. See Stockton v. Downey, 6 An.; Gaines v. Merchants’ Bank, 4 An. 371.

Entertaining these views with reference to the foregoing points, it is unnecessary to enter into any discussion of the other questions presented in the pleadings.

Judgment affirmed.