text:
    The Second Municipality of New Orleans v. Morgan.
    The ordinance of the Council of the Second Municipality of New Orleans, of April, 1813, imposing a special tax on real estate within the limits of that Municipality, was passed in violation of the laws defining the powers of the Council, and cannot be enforced. Acts of lltll Eeb. 1805, s. 6; 10th March, 1834, s. 5; 8th March, 1836; 18th March, 1839, s. 6. Nor can the two first sections of the ordinance be enforced alone; being en tire, and some of its provisions illegal, the whole ordinance is void.
    The report of a committee, presented with an ordinance, and adopted with it, may be regarded as a preamble, showing the cause and reason of its enactment.
    The 5th section of the statute of the 10th March, 1834, by fixing the penalty for any delay in the payment of taxes imposed hy the corporate authorities of New Orleans, divested the corporation of all discretion or power over the subject.
    Since the passage of the act of 18th March, 1839, s. 6, the Councils of the Municipalities of New Orleans have been prohibited from issning, for the purpose of borrowing money, any obligation having more than one year to run, unless specially authorized by the legislature.
    An ordinance, or law, is entire, when each part has a general influence over the rest. In such a case, if one part be void, the whole is void. An ordinance, or law, can he partly good and partly bad, only where the parts are in themselves entire, and distinct from each other.
    jGL PPEAL from the Commercial Court of New Orleans, Watts, J.

      Rawle and R. Hunt, for the plaintiffs. R. M. Carter and Grymes, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

The charter of the city of New Orleans provides that the Mayor and City Council shall have power to raise by tax, in such manner as to them' may seem proper, upon the real and personal estate within the said city, such sums of money as may be necessary to supply any deficiency for the lighting, cleaning, paving and watering the sheets of the said city; for supporting the city watch, the levee of the river, the prisons, work-houses and other public buildings, and for such other purposes as the police and good government of said city may require.

An act passed in 1813 further authorizes the Mayor and City Council, to lay such taxes as they may judges necessary to defray the expenses of the public works.

The 5th section of an act passed in 1834, provides that in default of payment of the city taxes, the Mayor and City Council shall recover from the delinquent» eight per cent interest on the amount thereof, from the day on which the same fell due, or ought to have been paid.

In 1836 the old corporation was divided into three distict municipalities, and each municipality invested with the taxing power previously existing.

At the time of the separation, the corporation was heavily in debt, and the municipalities went on, without any express powers to that effect, borrowing large sums of money, guaranteeing the payment of bonds, and associating themselves in the undertakings of other corporations and of individuals, till the year' 1839, when the legislature, to remedy that state of things, ordained as follows: that “ hereafter, it shall not be lawful for either of the Councils of the municipalities of the city of New Orleans to issue its obligations having longer than one year to run, for the purpose of borrowing money, without the special authorization of the legislature; nor shall it be lawful for said Councils to endorse or guarantee any bond or other obligation for any incorporated company, association or individual, nor to be interested in any. manner, directly or indirectly, in the responsibility or undertakings of such companies, associations or individuals, without being first, authorized by law; provided that the loans or emissions of bonds of either of the municipalities now authorized by ordinances, or resolutions, anterior to the passage of this act, shall not be affected by any of the provisions contained in it.”

In April, 1843, the Council of Municipality No. 2, finding it necessary to redeem the paper circulation issued by them during the derangement of our currency, passed the following ordinance :

“1st. Be it ordained, that in the exercise of the authority vested in the Mayor and City Council, by the 6th section of an act to incorporate the city of New Orleans, approved 17th February, 1805, and by the second section of an act amendatory thereof, approved March 8th, 1836, a special tax on all the real estate, situated within the taxable limits of this Municipality, of one dollar on every one hundred dollars, is hereby imposed on the value of real estate, as ascertained by the last assessment, in 1842;' and the treasurer is hereby authorized and required to collect said tax, immediately after the first day of May next.

“ 2nd. Be it further ordained, that the special tax imposed by the preceding section, if not paid into the treasury within ninety days succeeding the first of May next, in addition to said tax, the parties in default shall pay eight per cent per annum interest on said tax, conformably with the 5th section of an act approved March 10th, 1834, explaining the extent of the powers vested in the Mayor and Cily Council of New Orleans.

“ 3rd. Be it further ordained, that all persons or corporations, owners of real estate, taxed by the first article of this ordinance, and who shall pay said tax into the treasury in municipality notes, funded certificates, or in specie, within-six months from the first day of May next, shall, on exhibiting their tax receipt to the treasurer, be entitled to receive a treasury note, or treasury notes, for the amount of such receipt, bearing interest at the rate of six per cent per annum; and the treasury notes so issued shall be signed by the treasurer, and shall be countersigned by the comptroller, who shall, as well as the treasurer, keep an exact account thereof; and each note shall have on it's face the words ‘ Treasury note, issued in reimbursement of special tax of 1843.’ These treasury notes shall be of three classes, and payable in 1845, 1846 and 1847. None of the second class shall be issued until the first is taken, which shall not exceed $>70,000, nor of the third class till the second is taken, which shall not exceed $70,000, and those last issued shall’constitute the third class.

“ 4th. Be it further ordained, that the treasury notes issued under this-ordinance shall be receivable by the treasurer in payment of all debts which were due to the treasury on the first day of January last, and yet remain unpaid ; also for the capital of all ground rent property belonging to the Municipality ; and said notes shall be received in payment of all sums due to the treasury, at any time during the year within which they are payable,

“ 5th. Be it further ordained, that immediately on the receipt of the municipal notes and certificates, both those now in circulation, and those to be issued ’ in payment of the foregoing special tax, or of debts due on the 1st January last, or for the capital of all ground rent property belonging to the Municipality, it shall be the duty of the treasurer to cancel the same and report to the Council, weekly, the amount thus received and cancelled.”

A large majority of the tax payers having complied with the requisitions of this ordinance, the two first series of treasury notes contemplated by it, and a portion of the third series, were issued in their favor. Those treasury notes were in this form:

Treasury Note,

Issued in reimbursement of special tax of 1843, under an ordinance approved April 25th, 1843.

Third Series.

Municipality No. Two.

In the year 1847, Municipality No. Two will pay to the order of Fifty Dollars, with interest at the rate of six per cent per annum, until paid, for value received.

No. . New Orleans, 18

Comptroller. , Treasurer.

The defendant, a property holder in the Municipality, failed to make payment within six months from the passage of the ordinance, and this action was instituted to recover unconditionally from him his share of the contribution, with interest a.t the rate of eight per cent, in conformity with the provisions of the act of 1834.

His answer denies the indebtedness; avers that the ordinance is illegal, and in violation of the plaintiffs’ charter, of the acts of the legislature amending the same, and also of the Constitution of this State, of the United States, and of various acts of Congress.

The court of the first instance gave judgment against him, and he appealed.

The first question presented for our consideration is, whether the ordinance is, in the technical language of the law, entire, each part having a general influence over the rest, or whether it consists of several distinct and independent parts 1

Before entering into this inquiry, it is necessary to premise that this distinction is of English origin, and is unknown to that system of jurisprudence from which ours is derived. Under that system every law is entire, and there is no exception to the rule. Incivile est, nisi totfi lege perspectó, una aliqua partícula ejus proposita judicare vel respondere. L. 24 ff de legibus. This difference is readily explained by .the formation of laws in Rome and in England.

The fundamental principle of Roman jurisprudence is, that every law originates in some preconceived rule of right, which is to be respected and enforced Jn all applications of the law to particular’ cases. It is this mens legislatoris to which the civilian first looks in the interpretation of laws. It is either of generator special'import. But whatever be its import, it is of its essence that it should be true. A rule of right is a truth.

The mens legislatoris in every law being necessarily one single truth, the different parts of tlrp law must be construed with reference to that truth, and each lias a general influence over the rest. It is otherwise with the English statutes. Instead of being deduced from abstract rules of right, they are a succession of definite remedies applied to ascertained grievances; and aecord-jnjriy W6 find that, while the civilian seeks in the first instance the rule of right to be enforced, the English lawyer tries to discover the grievance requiring a remedy; and, as the legislator may have several distinct grievances in view, it is not unusual in England to provide remedies for them by the same statute. As we have adopted the English method in that respect, the question whether this ordinance is entire, or not, must be determined by the rules of English jurisprudence.

“ To detect the grievance which constitutes the cause and reason of the act, recourse may be had to the title and the preamble; as these, from their custom of reciting the grievance or part of it, may often serve to show the general scope and purport of the act, and the inducements which led to its enactment.” Dwarris oil Statutes, page 44, 9th Law Library.

The report of the finance committee presented to the Council with the ordinance and adopted with it, is, to all intents and purposes, its preamble,, and shows in the clearest light the cause and reason of it.

After giving a detailed statement of the embarassments of Municipality No. 2, and of the various means suggested for its relief, it goes on to say, that the only power in the Council to raise money is by a direct tax, but that a direct tax, to an amount sufficient to effect the object in view, would be exceedingly onerous, and its collection in a great measure impracticable. The finance committee therefore abandon all idea of the only tax they had power to impose, and recommend nominally a tax, but in connection with other measures which they say will make it exceedingly light, and probably within the reach of every owner of property. It is impossible to say more distinctly, that those other measures were intended to have a general and controlling influence over the two first sections of the ordinance, which could not by themselves have been carried into effect.

The report proceeds to develop the probable operation of the scheme proposed in these words: An owner of property assessed at $10,000 will be taxed §>100 ¡ This he will pay in municipality notes, which, at ten per cent discount, will cost him $90 in specie. He will be entitled to a treasury note, payable in 1845, for $100 with six per cent interest, for which, if he retains it until due, ho will receive $112 in specie. He will thus, so far from being taxed, receive back his money and eleven per cent interest, besides avoiding the payment of his share of the losses occasioned by the depreciated currency of the Municipality. The advantage will not be as great to- those who receive the notes of 1846 and 1847. Yet the investment will be advantageous, and the indirect gain the same.

The ordinance had but one cause. Its only object was to raise a sum of money by means of a contribution, which, so far from taxing the owners of property, would be a profitable investment. It is of no avail that the two first sections can stand by themselves, unless it be shown that the three last can also stand by themselves. The emission of treasury notes bearing interest, made without consideration, for the purpose of receiving those notes afterwards in payment of municipality dues, is an absurdity of which the plaintiffs must be acquitted. The ordinance under which they claim is entire. A portion of it is manifestly void. They claim from the defendant eight per cent interest under the act of 1834, and seek to inflict upon him, for the same cause, a penalty oqual to the whole amount of his contribution, and interest thereon at the rate of six per cent per annum. The court is unanimously of the opinion that this -cannot be. The act of 1834, by fixing the penalty for the delay in the payment of taxes, has divested the corporation of all discretion or power on the subject. That penalty can neither be increased nor diminished, and the restriction to the issue of treasury notes, in favor of those who pay within a stipulated timo, is a violation of law.

But I am farther of opinion that the issue of treasury notes, payable in a term of years and bearing interest, is an attempt to evade the provisions of the act of 1839, and to do indirectly what the Municipality was prohibited from doing directly.

There are but two ways by which municipal corporations can procure money, by taxes or by loans. I assent to the definitions of a tax given by the defendant’s counsel from Lord Coke and our late Supreme Court: “ 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.” I am unable to comprehend a tax -that taxes not, a burthen that enriches those who bear it, exactions that fill the pockets of those who pay them. I agree with the late Supreme Court, in the case of the New Orleans Navigation Company (11 Mavtin’-s Rep. 324), that the words tax, impost, duty, must be confined to the idea they generally convey. The finance committee who reported the ordinance were of that opinion, when they said that a tax would be exceedingly onerous, and its collection -in a great measure impracticable ; and they accordingly substituted for it a -.contribution which, so Jar from being a tax, was a profitable investment. As the means of Municipality No. 2 have never been doubted, I readily admit that it was as they said. But if it was a profitable investment, at the moment the treasury notes were delivered, any loss sustained in the subsequent disposal of those notes by the holders, cannot be construed into a tax. It was a voluntary act, on their part, beyond the control of the taxing power, and by which they might gain or lose. If it was not a tax, what was it? The finance committee say that it may bo objected to the ordinance, that the reimbursement in the way proposed is only paying one debt by contracting another. This is the true answer to tire question proposed.

When the Council found that tire collection of a direct tax was not practicable, they attempted to raise money by an evasion of the act of 1839. The plea of necessity under which this was done, may'avail elsewhere; it cannot be noticed here. Courts of justice do not recognize the necessity of violating Ihe laws. In Haydon’s case, the Barons of the Exchequer laid down the rule in such cases, as follows :

“ It was then held to be the duty of judges, at all times to make such constructions as would suppress the mischief and advance the remedy; putting down all subtle inventions and evasions for the continuance of the mischief tt pro privato eommodo, and adding force and life to the cure and remedy, according to the true intent of the makers of the act pro bono publico. Dwarris on Statutes, 9th Law Lib., p. 43.

The rule of the civil law is precisely the same. L. 29, de leg. (1, 3). Contra legem facit, qui id facit quod lex prohibet: in fraudem vero, qui salvis verbis legis, sententiam ejus circumvenit. L. 5 C. de leg. (1, 14). Non dubium osf, in legem committere eum qui verba legis amplexus contra legis nititur voluirta-<fem. Nec peenas insertas legibus ovitabit, qui se contra juris sententiam sajva prorrogativa verborum fraudulenter excusat. L. 21, de leg. (1, 3), L. 64. §1,

It was argued at the bar that the ordinance imposed a tax in words clear and unambiguous, and that the two first sections should, under all circumstances, be enforced. This is clearly an error, for I have already shown that their pro visions cannot be enforced as an absolute tax, and that the defendant could not be compelled to comply with them, unless he was placed upon the footing of those who have paid voluntarily. In the spirit and intent of the ordinance, that tax was not a truth: it was a mere false pretence, and I deem it material that it should be known as such. There have been popular delusions enough of late, without giving currency to one that would pass taxation upon the people as a blessing.

If the plaintiffs can enforce in this manner a contribution of one per cent upon the assessed value of real estate, to pay $200,000 of their debts, they might, by parity of reasoning, enforce a contribution of ten per cent to pay two millions of that debt, and extend the reimbursement of it over any number of years, thus defeating, whenever it suited their purpose, the prohibition of the law.

We have been told that this was not such a borrowing of money as the act of 1839 contemplated, and that the object of the Council was not to borrow money, but to pay pressing debts. This is a distinction without a difference. Whether money be raised by laxes or obtained by loan, the presumption is that it is wanted to meet pre-existing engagements. If the prohibition of the act of 1839 was to be considered as applying to money borrowed without necessity, it would be completely inoperative. The treasury notes issued were made payable to order, and such as would be given for any loan. We cannot distinguish where the law does not. Whenever the Council finds it necessary to issue notes having more than one year to run, for the purpose of raising means, they must obtain tlio authorization of the legislature.

The ordinance being entire, and a part of it void, the decision of this cause presents no difficulty.

“ If a by-law be entire, each part having a general influence over the rest, and one part of it be void, the entire by-law is void.” Wilcock on Corporations, p. 88, 14th Law Library.

In the leading case of the King v. The Company of Fishermen of Farnsham, 8 Term Rep., p. 356, Lord Kenyon said: “ With regard to the form of the by-law indeed, though a by-law may be good in part and bad in part, yet it can be so only when the two parts are entire and distinct from each other.”

This principle has been long settled, and I have been unable to find any exception to it. The authorities cited at the bar to prove that: laws and ordinances may be good in part and bad in part, are based upon laws and ordinances composed of entire and distinct parts, and have no application to this cause.

Without the rules of interpretation applicable to entire statutes, I would arrive at the same conclusion. Under the act of 1834, the court could not compel the defendant to pay without ordering at the same time the issue of treasury notes •in his favor, and as I consider that issue prohibited by the act of 1839, the plaintiffs cannot recover.

A majority of the court is of opinion that the judgment of the Commercial Court must be reversed.

It is therefore ordered, adjudged and decreed that the judgment of the Commercial Court be annulled and reversed, and that there be judgment in favor of the defendant for costs in both courts.

       King, J., did not concur with the majority of the court in the judgment pronounced in this case. Eustis, C. J.. having been of counsel, did not sit on its trial.


source: Caselaw Access Project

license: Public Domain

text:
    Doane et al. v. Field et al.
    THIS appeal brought up from the Commercial Court of New Orleans, Watts, J., involved the same questions as the case of Fetter and others, against the same defendants, ante p. 80, and was decided in the same way, for the reasons given in the opinion pronounced in that case.
    C. M. Randall, for the appellants. Wharton, Benjamin and Micou, for the intervenors. No counsel appeared for the defendants.


author: Slidell, J.

text:
    Fink, Executor, v. Martin et al.
    Where plaintiff alleges that he is a creditor of the defendant, and that the latter had executed' a mortgage on his property in favor of his co-defendant, without consideration, and for tho fraudulent purpose of defeating plaintiff’s recourse upon the mortgaged property, and prays • that the mortgage may be cancellod, and the property subjected to the payment of his claims, plaintiff must prove that ho is a creditor. Proof of that fact is essential to support the action; nor is it dispensed with by the fact of the judgment being taken by default. C. P. 312, 360.
    The tacit issue made by a judgment by default, cannot be considered as a plea of any matter amounting only to a dilatory exception. Act 30 March, 1839, g. 33.
    APPEAL from the District Court of the First District, Buchanan, J.

      Hoffman, for the' plaintiff,
    cited Code of Pract. arts. 346, 360. 9 Mart. 459. 6 La. 457. 7 La. 178. 17 La. 84. 6iv. Code, arts. 1968, 1970, 1971, 1972.

      McHenry, for the appellants,
    cited Civil Code, arts. 1965, 1967, 1972, 1973, 1989. 10 Mart. 605,.

      Roselhis, appeared on the same side.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff alleged that he was the dative testamentary executor of the succession of Sarah Baum; that, as such, he had recovered judgment against Martin, for a sum of $1,500 and upwards, in the Court of Probates, and had also claims against him for a still greater amount, upon which suit had been instituted and was pending in the Court of Probates. These claims, it is alleged, had been prosecuted in the Court of Probates against Martin, as the official surety of Powell, a former executor. The precise amount is not alleged either of the judgment or of the claims still in suit.

The petitioner further alleges that, in the year 1842, Martin had, in order to defeat the rights of plaintiff asa creditor, executed, without any consideration, in favor of Ross, the co-defendant, a mortgage to secure the payment of a pretended indebtedness of $30,000 ; that the acknowledgement of indebtedness and the execution of the mortgage, were a mere fraudulent device to cover the whole of the mortgagors property; that the contract of suretyship was made anterior to the execution of this simulated deed, and that the plaintiff has no means of obtaining satisfaction of his judgment, unless the mortgage should be set aside. The petition contains some other allegations which it is unnecessary to detail; and concludes by a prayer that the mortgage be annulled, and the lands and slaves decreed to be liable to the judgments and executions had and to be had against Martin, and applied to pay the same.

Interrogatories were propounded to the defendant Ross. He answered them. Judgment by default was taken against both defendants. A prayer for oyer was then filed, and the default was set aside on an ex parte order. The prayer for oyer was subsequently dismissed, a new default was taken, new interrogatories were propounded, and, after the legal delay, these interrogatories were taken as confessed, and the judgment by default made final according to the prayer of the petition, and without any specification of amounts. After an unsuccessful attempt to obtain a new tidal, the defendants appealed.

The judgment was, in our opinion, erroneously rendered. Without considering the alleged deficiency of evidence on other points, it suffices to say that there was no proof that the plaintiff was a' creditor of the defendant Martin. The allegation that he was such a creditor was indispensable to support the action, and, unless sustained by satisfactory evidence, the relief prayed for could not legally be granted.

The interrogatories do not touch the question of Martin’s indebtedness, nor does the testimony of the witness Smith. The only other evidence exhibited by the record was that of the plaintiffs attorney. His testimony exhibits a proposition of arrangement by giving a mortgage, as made by Martin verbally ; but is so loose and vague that it amounts to nothing more than proving a proposition of compromise of some claim, the nature and amount of which is not shown, nor even its existence declared to have been acknowledged by the defendant. We may suppose, as suggested by counsel, that the testimony was badly taken down by the clerk; but the defendants have a right to have the case considered by us on the statement of evidence as presented by the record, and it is utterly inadequate to sustain the decree.

The plaintiff has contended that, because, after the efforts for mere delay made by the defendants, there was judgment by default and no answer was filed, he was dispensed from the necessity of that full proof which otherwise might have been required. He relies upon article 360 of the Code of Practice. The language of this article is confused and illogical, but it has never been held to admit of the interpretation which the plaintiff demands. There is, to a certain extent, a contradiction between this article and article 312 ; but both accord in this, that some proof must be made to justify the confirmation of the judgment by default. The effect of the judgment by default seems to have been considered as dispensing the plaintiff from proving those allegations, which, under a plea of the general denial, would be considered as admitted; such as the capacity of an executor, &c. It was also considered, in a case cited by counsel, as in the nature of a corroborating circumstance, dispensing with the necessity of more than one witness in the case of a demand exceeding §500. But, in the present case, we are called upon to give to the judgment by default a more enlarged effect, by dispensing with proof of a fact vitally essential to the maintenance of the action, to wit, that Martin, the alleged fraudulent mortgagor, was the plaintiff’s debtor.

Nor does the act of 1839 aid the plaintiff. Giving that act the most liberal interpretation of which it is susceptible, it can, for the purpose of our present enquiry, establish nothing more than that, the tacit issue created by a judgment by default, should not be considered as a plea of such matter as would amount to a dilatory exception. A denial that the plaintiff was- a creditor of Martin, the alleged fraudulent mortgagor, cannot be classed in that category. The defendants have asked a judgment in their favor, or else a judgment of non-suit.

We cannot give either. Justice requires that the case be remanded. It is duo to the rights of the creditor on the one hand, and to the reputation of the defendants on the other, that the case should undergo a careful scrutiny. The defendants will have an opportunity to plead in the cause and vindicate their integrity; and the plaintiff to exhibit, if it exist, sufficient evidence that he is entiled to relief.

It is, therefore decreed, that the judgment of the District Court be avoided, and the case remanded to be proceeded in according to law, the plaintiffs paying the costs of this appeal; the residue of the costs to abide the final event of tho suit.

        McHenry, for tlie appellants, for a re-bearing, urgedthat the judgment should have been one of non-suit. The court has repeatedly decided “ that the discretionary power to remand causes, will be exercised only in extreme oases, when the party has shown due diligence, and is guilty of no laches." Houghteling v. Fisher, 19 La. 477. Dupré v. Richards, 11 Rob. 496. Tho authority to remand a cause is only toba foundin arts. 894, 905, 906 of tho Code of Practice. Art. 905 makes it the duty of the court, in a case like this, to pronounce such a judgment as tho court below should have rendered — which was one of non-suit. Rchcming refused.


author: Rost. J.

text:
    Bertoli v. The Citizens’ Bank.
    No sale, whether judicial, forced or voluntary, of property mortgaged to the Citizens’ Bank of Louisiana, can, in any manner, affect the rights secured to that institution hy the 24th section of its charter, which declares that “ all property mortgaged to that corporation for any purpose, may he seized and sold at any time, according to law, in whosesoever hands or possession the same may he found, notwithstanding any alienation thereof, or change of possession, hy succession,or descent to heirs, or legatees, hy last will and testament, or otherwise, in the same manner as if the same was in possession of the original mortgagor." Act 1st April, 1833, s. 24.
    APPEAL from the Parish Court of New Orleans, Maurian, J.

      Roselius, for the appellant.

      Denis and Pitot, for the defendants,
    cited Williams v. Bank of Louisiana, 378-384. 11 Robinson, 209. B. & C.’s Dig. p. 586, ss. 7, 8.
   The judgment of the court was pronounced by

Rost. J.

The Citizens’ Bank took from one Mathieu Charles Staes, a mortgage on a house and lot-, to secure seventy-one shares of its capital stock, and lent him the sum of money to which he was entitled under the charter. The bank afterwords, at two different times, made loans to Staes, secured by mortgages, on the same property. Staes died insolvent, and his creditors instituted proceedings in the Court of Probates to have his property sold and the proceeds distributed among them according to their rank and privileges. The court ordered all the property to be sold, and the plaintiff purchased at the sale the house and lot mortgaged to the Citizens’ Bank, for little more than the balance due on the stock Joan, leaving; the two mortgage loans unprovided for. He soon after went to the office of the bank, paid the stock Joan to the receiving clerk, and wrote to the board, informing them of his purchase, and requesting a transfer of 1 he stock to him on their boolts. The board referred tlie letter to their counsel, and, on his advice, the property was seized under the last mortgages.

The plaintiff has injoined the proceedings, and claims title to the property by virtue of his purchase, and of the ratification thereof, on the part of the Citizens’Bank, implied from the fact that they received the price in payment of the stock debt. Tlie Parish Court dissolved the injunction, and the plaintiff appealed.

We are satisfied that no sale, whether judicial, forced or voluntary, of property mortgaged to the Citizens’ Bank, can, in any manner, affect the rights secured to that institution by the 24th section of its charter. The legislature made no exception, and intended none. If probate sales could effect a release of the mortgages of the bank, the securities of the State and of the bond-holders would all vanish long before the expiration of the charter.

But, in this case, the debtor was insolvent, and the sale took place at the suit of his creditors, under proceedings having all Ihe material requisites of a forced surrender. The 26th section of the charter contains an express prohibition to include, in such cases, the property mortgaged to the bank, in the ces-sio honorum.

The circumstance that the clerk of the bank received the sum offered him in payment of the stock debt, taken in connection with the fact that, as soon as the board were apprised of the sale, they referred the matter to their counsel, who took out an order of seizure, does not amount to a ratification. The will and intention of the board to ratify, are wanting.

We hold the probate sale to be an absolute nullity, and the property and stock as still belonging to the succession of Sides. The defendants should have refunded to the plaintiff the sum they received from him in payment of the stock debt; and, for the preservation of his rights in this respect, the cause must be remanded.

It is, therefore, ordered and adjudged, that the judgment be reversed, the injunction reinstated, and the cause remanded, with directions to the. court of the first instance, upon due proof being made that the defendants have refunded to the plaintiff S?2,556, paid by him for the stock debt of M. C. Slaes, to dissolve the injunction, and to allow the defendants to proceed under their seizure. It is further ordered and adjudged, that the defendants pay the costs in both courts.

       Eustis, C. J., being interested, did not sit on the trial of this case.


author: Eustts, C. J.

text:
    La Chomette v. Thomas.
    A partner hi commendam is responsible to tlie creditors of the partnership for the amount of the capital he was bound to contribute. Where his portion of the capital has been withdrawn, they may proceed against him by a direct action. 0. C. 2313.

    APPEAL from the District Court of the First District, Buchanan, J. This was an action to recover from Thomas, a partner in commendavh his proportion of a debt due by the partnership to the plaintiff. The partnership had been dissolved, and Thomas had withdrawn the capital contributed by him, with certain profits. There was a judgment below in favor of the plaintiff, from which the defendant appealed.

      Duvigneaud and Toselius, for the plaintiff.
    An action will lie by the creditors of a partnership against a partner in commendam, to subject the amount of capital which he was bound to contribute to the payment of the partnership debts. Massé, Diet, de Droit Commercial, p. 643. 2 Pardessus 511, No. 1034. Delvineourt, p. 35. Merlin, Questions de Droit, vol. 6, p. 10.

      Eyma, for the appellant.
    The right of the creditors to sue a partner in com-mendam in France, is deduced from the provision of art. 1166 of the Code Napoleon. No similar article is to be found in the Code of this State. Under the French laws the creditors have no action, in their own names, against the partner in commendam. Rogron, on art. 26 of the Code of Commerce. Pothier, Confer, de Societé, No. 102. Pandectes Francaises, vol. 19, p. 146.
   The judgment of the court was pronounced by

Eustts, C. J.

This action, although brought in a different court, was heard on appeal in the late Supreme Court, and is reported in 5th Robinson’s Rep., 172. The facts of the case are there fully stated. That which was then wanting — the proof of the debt — has been fully made out; and we have recently recognized the rights of creditors to hold partners in commendam responsible for the amount of the capital which they were bound to put into the partnership of which they are member's. -

Lizardi v. Gispet, Executor—Civil Code, art. 2813. "We will prevent the creditors from obtaining any undue preference over- each other, and in all cases carry into effect the principle of law which makes the commendam fund a common pledge for the creditors of the partnership, but we will permit no obstacle of mere form to prevent the direct recourse of the creditor against the partner in. commendam, whenever his obligation to contribute to the partnership debts is made out. In the present case, the partner in commendam has not only withdrawn his capital on the dissolution of the partnership, but his share of the profits; and why should he not pay his share .of the debts?

His partner, Tissot, has paid one-half of the debt due the plaintiff, $2,482 47, and a discharge has been given him, under a reservation ■ of claims as to other parties, and we are at a loss to perceive on what grounds this creditor has been kept out of his just rights for so long a time.

The doubts which existed in the minds of some, concerning the mode of reaching the partner in commendam in an action by a creditor of the partnership, created perhaps by the opinion of the late Supreme Court in this very case, alone prevent us from amercing the party in damages, as for a frivolous appeal. Judgment affirmed.

         The action reported in 5th Robinson, was instituted before the Commercial Court. The present suit was before the District Court of the First District.


author: Kino, J.

text:
    Musson v. Clayton.
    Wlmru tlio vendor of a slave is aware, at the time of the sale, that the slave is addicted to tl ioving, and omits to declare it to tho purchaser, the latter may rescind the sale, and recover the price, with damages. C. C. 2523.
    PPEAL from tho Parish Court of New Orleans, Maurian, J. il The defendant appealed from a judgment rescinding the sale of a slave, and condemning her, on the delivery of the slave, to repay the price, with interest from judicial demand, and one hundred dollars as damages.

      Masson, for the plaintiff. Michel, for the appellant.
   The judgment of the court was pronounced by

Kino, J.

This is a redhibitory action, instituted by the plaintiff to rescind the sale of a slave-, who is alleged to have been addicted to theft at the time of the purchase. Damages are also claimed on the ground that the defendant knew of the existence of the vice at the time of the sale, and omitted to declare it. There was a judgment in the court below annulling the sale and awarding to the plaintiff $100 damages, from which the defendant has appealed.

Tho evidence has convinced us that the-slave was addicted to the alleged vice, at the time of the sale ; thatthe'fact was well known to the defendant, as appeal's from her own confessions ; and it has not been shown that the fact was communicated to the purchaser. The defendant complains that the damages, awarded by the court below, are unsupported by the evidence. By the 2523d article of the Civil Code, the vendor of a thing, affected with a vice which he omits to declare, is answerable to the purchaser in damages. Although, in the present instance, no specific pecuniary loss has been proved, nor the amount of any particular injury sustained, oiroumstanoes are disclosed by the evidence which, are always properly considered in estimating damages, whether assessed by the judge or the jury. It is shown that a theft of a sum of money was committed, in the plaintiff’s house. Strong circumstances concurred to fix suspicion upon the slave in question, in consequence of which, a police officer was called in, the apartment of the slave searohed. the slave sent before an- exam-ing court, and thence to prison. The quiet of a family was disturbed, and the plaintiff driven to the trouble and expense of a lawsuitfor- the purpose rescinding the sale. After a careful review of the testimony, we are not prepared to say that the judge has unwisely used the discretion committed to him.

Judgment affirmed.


author: Eustis, C. J.

text:
    Alley et al, v. Hawthorn.
    The surety on an appeal bond is not entitled to the benefit of discussion. C. C, 3035. Ifthe judgment appealed from be affirmed, and an execution against the principal be returned unsatisfied, the liability of the surety is fixed. The creditor is not bouud to discuss the whole estate of the principal. Ho is, in no case, bound to do more than to take out an execution 0. P. 596. Stat. 20th March, 1839, s. 20); and where, in consequence of a change in the condition of the estate of the principal, it cannot be reached .by that process, no act is required on the part of the creditor to secure-his immediate recourse against the surety.
    On an appeal from a judgment on a rule against tlio surety in an appcalbond, no objection to the parties to the judgment rendered on the appeal against the principal debtor,, can be considered. The court cannot look beyond the judgment itself.
    APPEAL from the Commercial Court of New Orleans, Watts, 3.

      Elmore and W. W. King, for the plaintiffs. Randall, for the appellant.
   The judgment of the court was delivered by

Eustis, C. J.

The plaintiffs having obtained judgment against Cary Robinson, the latter appealed, and, on the 12th of June, 1839, John N. Hawthorn became his surety on an appeal bond. Pending the appeal,' Robinson made a surrender of his property in one of our courts, became a bankrupt under the bankrupt act, and afterwards died. The syndic, the assignee, and the curator of his estate, were made parties to the appeal, and the judgment was affirmed in June last. 11 Robinson, 190. The plaintiffs took out their execution against Robinson, which was returned nulla bona, and applied, after motion made in court and due notice, for judgment on the bond against the surely, which was awarded. The surety'has appealed; and, considering that the plaintiffs can take nothing by reason of their execution, it is necessary to consider his rights without reference to it.

The state of the law'in relation to judicial sureties on appeal bonds has been liable to misconception, but it is necessary that it should be settled ; and, in so doing,'it will be necessary to examine the subject of suretyship somewhat in detail. On this subject, our Code'is so-clear in its provisions, that there is no necessity of any reference to jurisprudence in order to explain it.

Suretyship is an accessory promise to satisfy an obligation, if the debtor dons not. Civil Code, art. 3004.

The obligation of the surety is to pay the creditor, in case the debtor himself shall not satisfy the debt; and the property of the debtor must be first discussed or seized, unless the surety shall have renounced the plea of discussion, or should be bound, in solido, with the debtor- Ibid. art. .3014. But to these general principles of suretyship, there is an exception in relation to judicial sureties.

The judicial surety cannot exercise the privilege of discussion, but is bound absolutely for the debt. Ibid. art. 3035.

The effects of judicial suretyship are determined in the laws regulating judicial proceedings. Ibid. art. 3037. Accordingly, in the Code of Practice, tide different kinds of judicial suretyship incases of attachment, sequestration, injunction, &c., and the conditions requisite in each case, are provided for. The 575th article of that Code provides for the security on an appeal to the Supremo Court. The obligation of the surety is required for the payment of. the amount of the judgment appealed from, in case the same be affirmed. Articles 576, 577 and 578, provide for the amount of the surety. Article 579 says :

“ In the appeal bond it must be set forth, in substance, that it is given as surety that the appellant shall prosecute his appeal, and that he shall satisfy whatever judgment may be rendered against him, or that the same shall be satisfied out of the proceeds of the sale of his estate, real or personal, if he be cast in his appeal; otherwise that the surety shall be liable in his place.’ ’

We have seen that, by the .contract of suretyship, the obligation of the surety is to satisfs the debt in case the debtor does not; that by article 575,.tho surety on an appeal bond is bound for the payment of the judgment, if the debtor himself is bound to pay it; and that the judicial surety has not the benefit of discussion; and it is with reference to these principles that we must construe the remedies against sureties. It will be observed that, article 579 does not profess to require the particular form of the bond, but only that it should contain, in substance, certain conditions, which, in no reasonable sense, ought to beheld to countervail the principles of the law of judicial suretyship as provided for in the Civil Code; but, on the contrary, ought to be so construed as to carry out and give effect to them.

The law certainly contemplates that the creditor should have immediately an additional security, of a good solvent person, to answer for his debt, when an appeal is taken from his judgment; and that this security should be available, it makes provision not only for the solvency, but even for the residence required of the surety. Civil Code, arts. 3011, 3012. Should the judicial surety become insolvent, his place must be supplied by another; and while, in 'the case of an ordinary surety, the Civil Code gives a direct recourse against the surety, under the reservation of the right of the surety to have the property of the debtor first discussed, yet, in the case of judicial sureties, the privilege .of discussion is not allowed.

The right of discussion must be exercised by the surety at his own expense, and by designating available and unincumbered property sufficient to satisfy the debt, and by furnishing the means of having the discussion carried into effect. So that this right,, on the part of the surety, in point of fact operates little to the detriment of the creditor. To him it is indifferent, whether his debt be satisfied out of the property of the debtor thus tendered to him for seizure, without expense, by the surety, or out of the property of the surety himself. It becomes merely a question as to which property shall be taken to pay the debt — a mere exceptio ordinis, as it was termed under the Roman law. Muh-lenburg, Doctrina Pandectorum, § 486.

Article 596 of the Code of Practice, provided for a summary remedy against the surety on an appeal bond, if on the execution there should not be made sufficient property to satisfy the judgment; and, by a law of 1839, the creditor, on the return of the execution that no property had been found, was entitled to judgment ugainst the surety after ten days notice. Laws of 1839, p. 170.

The appeal bond sued on is dated on the 12th of June, 1839, subsequent to the law last cited, and its obligations, strictly speaking, ought to be tested by a reference to that law, the creditor having saught to obtain relief by proceeding under it.

The decisions of the late .Supreme Court have made no discrimination between article 596 and the law of 1839. In point of fact the difference between them is not material; and there is no necessity for discriminating between them in examining the decisions which the counsel for the appellant has submitted- to us, and on which he rests his defence. Both the .article and the statute fix the obligation of the surety on the appeal bond, on the failure to satissfy the debt Op the execution, of which fact the return is the best evidence. The decisions relied on by the defendant are made in the cases of Chalaron v. McFarlane, 9 La. 227. Flower et al. v. Dubois et al. 10 Rob. 191. Saulet v. Trepagnier et al. 11 Ib. 268.

■ Tho first caso, that of Chalaron) was determined in 1836, .and it .was theft held by the court that, the liability of a surety .on an .appeal bond only beg;ns, when, on a sale of the whole, estate of the d«btor, the proceeds are found insufficient to pay the debt.

In the case of Flower, the court say : “ It 'is tr.ue that, in the .ease of Chala-ron, v. McFarlane, this court established the principle that, from the nature of the obligation of sureties in appeal bonds and the terms of their .engagements, they derive the right of resisting a recourse against them until it is clearly shown by the creditor, that the sale, of all the estate and effects of the principal has proved insufficient to discharge his demand. See also Code of Practice, arts. 579, 596. B. and C.’s Digest, p. 181, §23.” The authority of the decision in Chalaron’s case is here re-asserted. The .case was not determined on the principle settled in that case. The principal had failed and his estate was utterly insolvent and worthless, and the court held that the creditor “was not bound to wait until the final liquidation of an estate from which no benefit was to be derived.”

In the case of Saulet, the principal debtor on the bond had died, leaving a widow in community and .eight children. The court held that the creditor was bound to discuss the property of the eomm$mity in the hands of the widow who had accepted it, before he could look to the surety on the appeal bond, and decided the case on the authority of Chalaron’s case, and art. 579 of the Code of Practice.

These two last cases were decided in the year 1845. By these cases it is evident that the provision of the Civil Code, that judicial sureties shall not have the privilege of discussion, is completely destroyed. Indeed, in the case of Chalaron, it is expressly decided that it does not apply to sureties on appeal bonds. But why does it- not apply to them! The law does not say so; and every reason would induce the belief that the legislature would not wish to make a judicial debt less secure, or more difficult in its recovery, than an ordinary debt. Indeed, we see that the Code of Practice and the statute of 1839, unite in making the recovery against the surety more direct and expeditious. The surety is deprived of the trial by jury, unless he shall allege, under oath, that he has a good defence,.

By art. 596, as well as by the law of 1839, the creditor is bound to issue an execution on his j.udgmen&wkey;not to discuss the whole estate of the debtor, and it is on the return of the execution nulla bona, that the obligation of the surety is fixed. The rule in Chalaron’s case goes too far — farther than the. law warrants, and imposes an obligation on the creditor which neither the letter nor the reason of the law authorizes, and which is diametrically in opposition to the first principles of the law of suretyship,, as establibshed in our Code.

It relieves the judicial surety from the ordinary obligations of a common surety, who, in order to avail himself of the privilege of discussion, is bound to point out to the creditor property of the debtor which will be available for the satisfaction of the debt at his own expense, and to furnish the money for defraying tile cost of discussion; whereas, by the rule in Chalaron’s case, this onerous, expensive and disagreeable task is imposed on the judgment creditor.

Besides, an ordinary surety has no right to offer for discussion property of the debtor which is in litigation. How then can a judicial surety have the right .to involve his creditor in the conflicts of a concurso, in which there is necessarily litigation, and no termination of it until the homologation of the tableau of distribution ?

In an earlier case of Gayoso v. Hickey, 4 La. 302, the creditor is not permitted to reach the surety .on an appéaí bond until, after due demand, a fieri facias shall have been returned ñutía lona. The decision is very properly guarded, and does not go beyond that point. It was delivered by the late Judge Porter..

After maturely considering this subject, we have come to the conclusion that we can impose no obligations on the judgment creditor other than those which the law imposes. He is hound to ,talce his .execution, and the surety has thus the means of pointing out property of the principal with which the debt can be satisfied, and of complying with the condition of his bond. This is his duty, for his own protection ; and the creditor has done all that is required of him when execution is issued.

But, as in the present .case, suppose an execution cannot be lawfully taken out against the property,of the debtoiwsuppose he has made a cessio bonorum, or has died and his succession is under administration, will the law turn the judgment creditor over to to a labyrinth of creditors, ,to await the tardy liquidation of a litigated or insolvent succession ? Is this the security to which he is to be referred on having his rights finally adjudicated upon, .after a delay which the surety himself has enabled the debtor to obtain 1 If it be so, the judicial suretyship is a mere solemn farce, the commencement rather .than the end of litigation, and the provision of the law for the satisfaction of the debt is .amere mockery, not worth having, and .would be often attended -with more vexation, expense and delay than the pursuit of the debt itself.

We.think that, if .the creditor .cannot take out his execution on the judgment by reason of a change in the condition of the debtor’.s estate which prevents its. being reached by that process, the law requires from him .no act in order tp secure his immediate recourse against the surety on an appeal bond, .and that we can require none.

The defendant and appellant has pleaded, in defence of thi* .action, that the plaintiffs are bound to discuss the estate of the insolvent in the hands of the syndic. Hnder.our view pf .the law the plaintiffs are under no such obligation.

There have been obj ections made to the parties to the judgment rendered o.n the appeal .against the principal debtor, Robinson, but we cannot .look beyond ,the judgment itself.

The bills of exception taken to the admission of evidence are not tenable.

Judgment affirmed..


text:
    Anderson et al. v. Brinkley.
    A debtor arrested under tlie provisions of the acts of 28th March, 1840, oh. 118,119, may he imprisoned for three months, unless released on giving bond, as provided for by those acts. The period of imprisonment cannot be affected by the fact of judgment being obtained against him within the three mouths. The provision of .the act of 1840, abolishing the writ of ca. sa.. cannot be considered as authorizing the release of the debtor, before the expiration of the three months, in case of judgment being rendered against him within that period.
    APPEAL from the District Court of the First District, Buchanan, J.

      T. A. Clarke, for the appellants.
    The writ of arrest is intended to oom-pel a disclosure of property. Code of Pract., arts. 212, 214. Article 210 of that Code must be construed with reference to the fact that, at the time of its insertion in the Code, a ca. sa. was authorized against the person of the debtor. The ca. sa. came in aid of the old writ of arrest. The present writ, authorized by the act of 1840, was intended to provide a remedy adapted to the new circumstances produced by the abolition of the ca. sa., by enlarging the effect of the arrest, during the period fixed by the statute’.

      F. B. Conrad, for the defendant.
    The writ of arrest is a conservatory writ* intended to secure the person of the debtor, to answer the judgment which may be rendered againt him. Code of Pract., arts. 208-, 210.
    The ca. sa. being abolished, no other writ can now issue upon a judgment than a fi fa., and the person of the debtor cannot be affected by such a writ. His detention in prison after judgment answer’s no purpose whatever. See Thornhill vs. Christmas, 10 Robinson, p. 543.
   The judgment of the court wasr-prenounced' by

Slidell, J.

The defendant, having, been arrested for debt, confessed judgment on the 10th of November, 1845, and was discharged the next day, under the’ authority of the case of Thornhill v. Christmas, reported in 10 Robinson, p. 543.

We understand that case only to decide that, since the act of March, 1840^ abolishing the writ of capias ad satisfaciendumr no order of arrest can legally be issued, after judgment. It is not necessary to say, on this occasion, whether we are prepared to concur in the opinion there expressed, for the arrest in this case was made at the inception of the suit.

By the act of 1840 the writ of capias ad satisfaciendum was abolished, but the arrest of the debtor was authorized under certain circumstances. The term> during which he could be- retained in custody was limited to three months, with the qualification that, at the expiration of that term, if he be a resident of the State, he is bound to make a surrender of his property, if his creditor require-it. But while the statute thus expressly asserts the right of the creditor to hold his debtor in imprisonment under a writ of arrest for a term- of three months, it has not declared that the obtaining judgment shall curtail this term. To presume Such a curtailment, as an enactment arising by implication, from the abolition of the writ of capias ad satisfaciendum, would be illogical. For the wriq. of capias ad satisfaciendum abolished by the statute, and the writ of arrest which it expressly authorized, are writs very different in their nature.We are unable to see how that which was an arrest before judgment, becomes, by the rendition of judgment, a different proceeding, and assumes the character of a taking upon a capias ad satisfaciendum. It remains still an arrest, and its effect expires only at the time declared by the statute, to wit, at the expiration of the term of three months. We cannot make a qualification which the law-giver has not made.

We therefore couclude that, tire court below erred in considering the arrest obtained in this cause as legally discharged, by the rendition of judgment for the debt against the debtor.

It is therefore decreed that the judgment of the court below, releasing and discharging the defendant from imprisonment, be reversed, and that the rule taken to that end by the defendant be dismissed; the defendant paying the costs of said rule in the lower court, and also the costs of this appeal.

       A similar judgment was pronounced, at the same time, on another appeal taken from a j udgment rendered on a rule between the same parties in another action,


author: Edstts, C. J.

text:
    The New Orleans and Carrollton Railroad Company v. The Second Municipality of New Orleans.
    Where the charter of a company authorizes it to establish a railway along a public street to a particular point, aud to run a locomotive on the road, the company will be entitled to make a turn-out from the main traek to communicate with a depot erected by them near the terminus of the road, containing the machinery necessaiy for reversing the engine, &c., where no objection exists to the construction of a turn out at that particular point, Per Curiam: The right to establish such a dipót results necessarily ftom the-right to establish and maintain the road; but the communication with the main track must be subject to the police power of tho Municipality, and be so constructed and used as to interfere as little as possible with the free use of the public way.
    PPEAL from the District Court of the First District, Buchanan, 3. 1L This action was commenced by an injunction, restraining the defendants from interfering with the construction of the turn-out, the right to make which is the only question presented by the case. The injunction was dissolved, and the plaintiffs appealed.
   The judgment of the court was pronouced by

Edstts, C. J.

The railroad company claim the right of malting a turn-out, near the terminus of their steam transportation in Nayades street, in the neighborhood of Tivoli Circle, in the Second Municipality, leading from the main track to a lot belonging to the company, situated at the termination of Nayades street, near Tivoli Circle. It is proved that they have erected the necessaiy buildings, and prepared the requisite machinery on this lot for reversing the steam engine and other purposes, and that a communication by railway to the main track is necessary for the public convenience and for the preservation of the engines, cars, &c.; and that without this communication, the cars, with the engine attached, are obliged to be backed a distance of eight squares; which is attended with risk to passengers and very injurious to the rails.

The right to establish the railroad on Nayades street is granted to this company by the fourth section of the charter. By an ordinance of the Council of the Municipality of 1833, the privilege of extending the road down Baronne street to Canal street was granted.

Some dissatisfaction having been manifested by the citizens residing on Ba-ronne street, the company ceased to run their steam engine on that street, and terminated the steam route near the Tivoli Circle, notwithstanding an act of the legislature of 1843 gave the company the right to run their locomotives through Baronne street as far down as Canal street.

We thought it but just that the company should have some place at the terminus of their steam route for a depot, and suggested that a subject of this kind could be much better settled by the good judgment of those charged with the administration and police of the Municipality and those to whom the interests of stockholders are committed, than by a decision of a court of law, inasmuch as we believed the interests of the company and the public convenience were identical. We also were averse to interfere with the police power, which the government of the Municipality possesses over the streets and pubiic ways, but which- must always be exercised with proper regard to the rights of others. . , , , , J. ins suggestion being unheeded, the case must therefore be decided.

Benjamin and Micou, for the appellants. Rawle, for the defendants.

We consider that the right to establish a dUptt, suchas that asked in this case, necessarily results from the right the company have to establish and keep in operation the railroad, but that the communication with the main route must necessarily be subject to the police power of the Municipality, and so constructed and used as to interfere as little as possible with a free use of the public way.

As no objection exists to the construction and use of a turn-out at this particular spot, and as the company have established this as a dépót as near as convenience requires to the end of the road on Nayades street, there is no reason why it should not be permitted.

The judgment of the District Court is, therefore,, reversed ; and it is ordered that the plaintiffs be permitted to construct a turn-out from their main route in Nayades street to their lob at the termination of Nayades street near Tivoli Circle, which is to be used as a depot for their engines, cars, &c., and that the defendants pay the costs in both courts. The injunction, so far as it covers the subject of this decree, is maintained.

       Slidell, I., having been of counsel, did not sit on the trial of this case.


author: Kins, J.

text:
    Succession of Ross.
    An admission of the correctness of certain charges in the account of an executor, deliberately made, after an examination of the account by one of the heirs of the deceased who had peculiar means of knowledge, while the account of the executor was before arbitrators, will be conclusive against the heir on a subsequent opposition to the account.
    Where an executor is a legatee of the deceased, he will not be entitled to commissions on the property administered by him, unless the testator has formally declared his intention that he should have the legacy over and above liis commissions. C. C. 1679.
    APPEAL by the executor from- a judgment of the Court of Probates of New Orleans, Bermudez, J.
   The judgment of the court was pronounced by

Kins, J.

William Ross died' in the year 18.32, in .the city of New Orleans, 'where his succession was opened. At his death he left a will, by which he devised his estate equally to his five children, James, John, Robert, George, and Ann, after making a few special bequests, and nominated his son James, and two other persons, his executors. The persons thus named were duly qualified as executors, but the administration of the succession seems to have devolved exclusively upon James Ross. An inventory of the effects of the succession was made, in which were included moveables estimated at $301. The landed property and moveables appear to have been preserved, and administered in kind. On the 20th of June, 1835, James Ross, the executor, purchased of John Ross, his brother, the share of the latter in the succession of their father. The executor continued to administ.ir the succession, without rendering'an account, until July, 1845, when John and George Ross, presented a petition to the Probate Court, praying that, he should be ruled to file a final account of his administration. In compliance with this prayer, a tableau was presented by the exeewtor, exhibiting a statement of the assets, and of the disbursements which he had made on account of the succession. To this tableau C eorge and John filed an opposition, in which they objected specifically to several items upon both the debit and credit side. Upon the appearance of this opposition, the executor contested the right of John to oppose, on the ground that he Mas “ a. stranger to the succession,” and moved orally to dismiss the opposition, alleging, as it appears, that John had previously disposed of his share. John Ross contended, also orally, that the sale was a nullity, having been made to his brother while the latter was executor, and as such prohibited by law from- acquiring by purchase any part of the succession under his administration, either by public or private sale. Civil Code, arts. 1139, 1784.

Upon the issue thus informally presented, the probate judge proceeded to enquire into the character and validity of the act of sale from John Ross to the executor, received a large mass of testimony explanatory of the objects and intentions of the contrasting parties, determined that lh© act was not a sale, but a mortgage to secure the reimbursement of the sum of $300, and maintained the right of John to oppose. From the judgments rendered upon this motion and upon the merits, the executor has appealed. We can-not, under the pleadings and evidence presented in the record, proceed with- propriety to determine what effect should be given to the act of sale. The question of its validity is not properly before us. The act is not referred to in the pleadings by either party; its invalidity is not asserted; no cause of nullity is alleged; and the whole testimony in relation to it has been improperly and irregularly received. There has has been equal irregularity in the motion to dismiss the opposition of John Ross. It appears to have been made orally; it was not even spread upon the minutes of the court as far as appears from the record, and we only learn that such a motion was entertained from casual references to- it in the proceedings. In this condition of the pleadings and evidence; we can not adjudicate finally upon those rights of the parties which depend upon this act. It was not necessary that the Probate Court should have decided upon the character of the act, in order to maintain the right of John to oppose the executor’s account. At- the date of the- transfer there was living another brother of the parties, Robert Ross, who subsequently died. It is not shown that he left forced heirs, or a will, or received his share of his father’s estate, or divested himsdlf of his interest while living. His surviving brother, John, must-be presumed to have inherited from him, and consequently had an interest in the succession which authorised him to call upon the executor to account.

The first question presented by the opposition, relates to the lights of George Ross. From the evidence it appears that, in the commencement of this unhappy controversy, an ineffectual attempt was made to settle, by arbitration, the difficulties subsisting between George and the executor. At that time John disclaimed any interest or right whatever in the succession, and repeatedly declared that he had settled with his brother for his share. While the matter was thus pending before arbitrators, the executor presented a statement of the disbursements made on account of the succession. This was submitted to George, who acknowledged the correctness of most of the charges, but objected to several others, which, with the assent of the executor, were modified in accordance with his wishes. His admissions were made with deliberation, after a scrutiny of the account, and after having been advised by the arbitrators, “to be careful of his rights, and to admit nothing which was not just.” They weré made toó in reference to charges with regard to whieli, from the relations between the parties at the time that the disbursements were made, living, as they did under the same roof, he must have had a personal and competent knowledge. These admissions were properly in evidence before the court, and are conclusive in relation to all the items in reference to which they were made. As between George Ross and the executor, they must form the basis of settlement, and, with the remaining evidence, will enable us to determine finally iipon the controversy between these parties. The admissions embrace all the charges in the executor’s account for sums paid for the use of the succession, which have been opposed, with the exception of the item of commissions. This item must be rejected, the executor being a legatee of the deceased. The funeral expenses of William Ross, Jr., although admitted to be correct, form no charge against the succession, his death having preceded that of the father, and must be stricken off. In.-ether respects, that side of the account, as amended by the admissions of the opponent with the assent of the executor, must be homoligated as between these parties.

Two objections are made in the opposition to the account of assets- The first is, that the moveables have been converted by James to his own use, and were worth more than their appraised value upon the inventory. The second, that the whole rents received have not been accounted for.

In relation to the first of these items, the allegation is not supported by the evidence. The rents appear to us to have been accounted for at a fair rate, but have not been brought down to the day when the tableau was filed. The probate judge made the amendment in this respect, which was correct.

It next becomes necessary to consider the opposition of John Ross. He was present at .the investigation of the account before the arbitrators, but asserting no interest in the succession, and not participating inthe proceeding further than to advise with his brother George, when called .upon, in relation to one or two of the charges objected to by the latter. He appears to have given no such assent to the correctness of the executor’s account, as to conclude him from requiring strict-proof of the items of whicn it is.composed.

The principal evidence relied upon by the executor in support of his account and to resist the opposition, consisted, first, of the admissions of George made in the presence of John, which have already been considered; and secondly, of the sale from. John, which he deemed conclusive against the latter. The fact that John had an interest in the succession of his father, as one of the heirs of a deceased brother, which had not been disposed of, and which authorized him to oppose the account, appears to have escaped the attention of both the court and the counsel upon the tidal below. The consequence has been that but little other testimony was adduced in relation to the disbursements made on account of the succession. For the reasons already assigned we have declined to consider the .transfer from John to the executor, which constituted the evidence mainly relied .upon by the latter. This branch of the case is thus presented without sufficient testimony to enable us to decide upon the rights of the parties, and the deficiency of proofs cannot be strictly ascribed to the negligence of the exscutor. Justice, in our opinion, requires that the cause, as far as relates to the opposition of John Ross, should be remanded for further proceedings. While making this order, we cannot forbear expressing the hope that the remaining causes of controversy may be adjusted between the -parties, without further recourse to courts of justice.

W. G. Kendall, G. W. Christy and T. H. Lewis, for the appellant. Bon-ford, contrá.

Ifc is therefore ordered and decreed that, the judgments appealed from be avoided and reversed. It is further ordered that, the account of assets of the succession of William Boss, deceased, presented by James Boss, the executor, be amended by adding to it the sum of $154 80, being for rents from the 1st of May, 1845, to the 1st of August of the same year; that the amount of debts paid by the executor be amended, by striking from it the charges of $75 for the funeral expenses of William Boss, jr., and of $400 for commissions of the executor, and by reducing the following charges, viz: that of fencing, from $240 to $53 85; that for repairing a roof, &c., from $225 to $150; that for paving side-walks, from $1,115 52 to $1,085 30; that the tableau thus amended be homologated and confirmed, as far as relates to George Boss. It is further ordered (hat, ns relates to the opposition of John Boss, the cause be remanded for further proceedings ; that the appellees pay the costs .of this appeal, and that the appellant pay the costs of the court below..


text:
    Exparte McPheters.

      EN. and A. N. Ogden, for James McPheters, moved for a rule on the i Judge of the Court of Probates of New Orleans, to show cause why a mandamus should not be issued, commanding him to grant an order directing the executor of one Scoville, to file in court, within a limited period, a statement of his condition as executor. The rule having been granted, Bermudez, Judge, showed cause against the application, contending that the Hon. George Eustis, Pierre A. Bost, George B. King and Thomas Slidell, by whom the rule was granted, are not legally justices of the Supreme Court of this State, the constitution of 1845, under which they hold their appointments, being null and void, for reasons stated at length. A mandamus was granted, directing the judge to make the order prayed for..


author: Eustis, C. J,

text:
    Cammack et al. v. Watson et al.
    The action given to a creditor by sect. 7, ch. 3, tit. 4, book 3, {arts. 1963 to 1989), of the Civil Code, to avoid contracts made to his prejudice by a debtor — the Actio Pauliana of the Roman law, is prescribed by one year, to be counted, if brought by a creditor individually, from the time he obtained judgment against his debtor — if by a syndic, or other representative of the creditors collectively, from the day of his appointment. The object of this action is to set aside contracts made with the consent of the parties and having a real existence, but which tho law will not permit to be an impediment to the recovery of the creditor’s debt, unless he shall be presumed, from lapse of time, to have waived his right to have them avoided. There is no similarity between this action and the action to have a simulated sale decreed to be such. The latter is not barred by the prescription established by art. 1989. Sect. 7, ch. 3, tit. 4, .book 3, ofthe Civil Code, does not relate to simulated or pretended agreements

      APPEAL from the District Court of Concordia, Owrry, J. Walter, one of ■the defendants, appealed from a judgment, rendered -on the verdict of a jury, in favor of the plaintiffs.
   The judgment of the court wns pronounced hy

Eustis, C. J,

The plaintiffs, at April term, 1839, in the District Court of Concordia, obtained judgment against, one of the defendants, Watson, for $10,000, with interest and damages. It was had on a judicial confession, in a suit which had been instituted against him as drawer of a 'bill of exchange. An execution was issued, and returned nulla bona, on the 20th of May, 1840.

On the 19th of May, 1841, the plaintiffs instituted this suit, in which they charge that Watson, on the 14th day of December, 1837, made a pretended sale of all his property in the parish of Concordia, where he resided, to his son-in-law, Samuel D. Walker, then, and at the time of the suit, residing in Arkansas; that said sale was false, fraudulent and simulated, made for the purpose of defeating the just claims of the plaintiffs and other creditors, without any price or real consideration, and unaccompanied even by a change of possession from Watson to Walker. They pray that the sale be avoided and annulled by the judgment of the court, and the property thus included in this frauduldnt instrument be decreed to be subject to be seized and sold in satisfaction of their debt.

The jury found “ that the sale from J. Watson to Samuel D. Walker was fraudulent and of no avail,” and gave a verdict for the plaintiffs according to the prayer of the petition.

The debt to plaintiffs was contracted in 1835; at that time Watson was the owner of the plantation and slaves, which are the subject of the present suit.

At the October term of 1844, in the Western District, the late Supreme Court reversed the verdict of a jury, and subjected this plantation and slaves to the payment of two judgments of large amounts, obtained by the Planters’ Bank of Mississippi against Watson, on the ground that the sale in question was fraudulent and simulated. Vide 9th Robinson, 267. A rehearing was granted, and during its pendency, the suit was compromised. All the evidence adduced in that case was received in this, and additional evidence was produced which puts the simulation and turpitude of the whole transaction beyond all reasonable doubt.

The defendants contend that this action is prescribed by the lapse of one year from the time the creditor had obtained his judgment against his debtor, under article 1989 of the Civil Code.

It is true that the revocatory action — the Actio Pauliana of the Roman law, is prescribed by one year from the date of the judgment obtained by the creditor, or of the appointment of representatives of all the creditors in case the suit is instituted by them. But this action is given to enable the creditor to avoid contracts made to his prejudice. , Such is the very word of the titles to the sections, paragraphs and articles of the Code which treat on the subject. Vide section 7, § 1 and 2, articles 1963 to 1989. Its object is to set aside contracts upon which the consent of the parties has operated and which have a real existence, but which the law will not permit to be an impediment to the recovery of the creditor’s debt, unless he shall be presumed, from lapse of time, to have waived his right to have them avoided.

Article 1965 gives the right to the creditor to annul any contract made in fraud of his rights. Art. 1972 declares that the judgment shall be that the contract he avoided, ¿Jr. Article 1977 provides for the restitution of the money paid by the party with whom the debtor contracted, in the event of its having inured to the benefit of the creditors. The next article, 1978, makes provision where the consideration is a pre existing debt, and article 1983 where it is a debt not at the time demandable. Article 1984 mentions other classes of contracts which are subject to the revocatory action, viz: the renunciation of a succession or other right of property, the release of a debt without payment, or any other act of this kind when done to the prejudice of creditors — these may be avoided by them, under the rules provided. By article 1985 creditors are authorized to accept a succession, which the debtor neglects, or refuses to accept. Other articles provide for those rights which creditors cnnnot reach, even if the debtor should refuse to avail himself of them — such as the separation of property, donations made to the debtor which he does not accept, .the right which the debtor has to make his eo-heirs collate, and certain other privileges which arc strictly personal. Arts. 1986, 1987.

The sense of the Code is therfore unquestionable. It provides for the avoidance of contracts. It has no reference, or application, to simulated or pretended agreements. On the contrary, the words do not occur throughout the whole section, which treats on the subject of contracts to be avoided by persons not parties to them.

But it is said that article 1975 presumes the gratuitous contract made by the creditor to be fraudulent ab initio, but still the creditor would lose his right to avoid it unless he brought his action within the year. This is true. But a gratuitous contract is not the less a contract on account of its being gratuitous. The consent necessary to a donation is as time and real as to a contract of sale.. One of the divisions of contracts established by our Code is that, of onerous and gratuitous contracts. Arts. 3765, 1766.

We have examined this subject according to the provisions of our Code, which are too clear and .express to leave any doubt as to their legal intendment, There is no necessity of going beyond it. But a reference to the Roman law, from which this whole section was taken, fortifies the conclusions to which we have arrived after a thorough consideration of the subject.

Petenda est preferendaque hsec actio intra.ut em annum, i. e. quadriennium continuum, ex eo scilicet computandum quo venditio facta .est. Qua vero ex parte locupletior quis debitoris fraude factus est, in perpetuum competit actio. Doctrina Pand. by Muhlenbruch, § 174.

There is no similarity between the revocatory action here spoken of, which is the same as that provided for in our Code, and the action to have a simulated sale decreed to be so. As Merlin says : On se pourvoit contre un acte simulé, par Une simple demande á ce qu’il soit declaré tel. Rep. de Jurisprudence, verbo Simulation.

Is this a contract in any rational sense, which has been thrown as a net over the property of this fraudulent debtor, by his son-in-law and accomplice ? Was it a contract of sale? Was there a consent given that the property should cease to belong to Watson, and thenceforth belong to Walker ?. Was there a price paid ? Was there a delivery? There was not one of these; nor is there one word of truth or sincerity in the whole transaction from the beginning to the end. We have no taste for the details of such affairs. Those •who have can gratify themselves, in the report of the case before cited, in 9th Robinson. We have seen enough to satisfy ns that the plantation and slaves never ceased to belong to Watson, who alone received the revenues of them. It is most obvious that, in a case libe this, there is no basis on which prescription, or any other right adverse to the creditor, can rest. There is no possession — no consideration — no reality in it. The whole is a mere fiction, and the instrument, itself is proof of nothing, except the folly and bad faith of those who put their names to it.

Lockett and Micou, for the plaintiffs. Dunbar, Stacy and Sparrow, for the appellant.

The jurisprudence of this State in relation to instruments of this kind is settled. Since the rule laid down in the case of Hiriart v. Roger et al., 13 La. 129, we are not apprized that there are any decisions which controvert it. It was established after much deliberation ; and we believe is correct in principle, and that every reason of policy and public morals require it to be adhered to. See Civil Code, art. 2456. 17 La. 306. Merlin, loco cit.

In a recent case we lately determined that simulation gives neither possession nor title, and that no act of the parties to a simulated sale can be recognized as affecting the rights of creditors to the property of their debtor.

Bernard v. Auguste, ante p. 69. This opinion is in conformity with that of Baldus, Dumoulin, and other distinguished civilians. The subject can hardly be made more clear by further illustration, and we affirm the judgment of the District Court, with costs in both suits.

       By consent of parties the judgment in this case was pronounced in New Orleans. The appeal was returnable at Alexandria, in the Westorn District.

       In the case of The Planters’ Bank of Mississippi v. Watson et al.


text:
    Perkins v. Kenner.
    APPEAL from the District Court of the First District, Buchanan, J. This appeal was dismissed on motion of A. N. Ogden, for the plaintiff, it appearing that the citation was served after the return day of the appeal. B. Peyton, and I. W. Smith, for the appellant.


author: 'Slidei/l, J.

text:
    McGregor et al. v. Myers et al.
    from the District Court of the First District, Buchanan, J.

      C. A. Jones and G. B. Duncan, for the appellants. Roselius, for the defendants.
   The judgment of the court was pronounced by

'Slidei/l, J.

The pleadings and evidence in this case are so conflicting, vague and unsatisfactory, that we think the court below correctly gave judgment of non-suit.


author: Kras, J.

text:
    Holmes v. Steamer Chieftain and owners.
    Proceedings under the stat. of £5 Mai ch, 1840, to recover damages, and tlie penalty imposed by that statute, on the master and owners of any steamer, or other vessel, on board of which any slave shall have been found without the written consent of his ownei*, maybe in rem. The statute having granted a privilege upon the steamer or vessel for the damages and penalty, the omission to state the names of the master and owners will not prevent the plaintiff from obtaining judgment and execution. O. P. 290, 291- But where the master and owners appear and disclose their names, and except to the petition on the ground of its not having stated their names, plaintiff may amend by making them parties, and he may have judgment both in rem and in personam.

    Action by the owner of a slave against a steamer, to recover damages and the penalty imposed by the stat. of 25 Mirch, 1840, for carrying a slave out of the State, contrary to law. Plaiutirfhaving offered in evidence a bill of sale and the testimony oí a witness, both, were excluded on the ground that they related to aslave named Granville, while the slave alleged to have been tacen out of the State was stated in the petition to be named George. A new trial having been applied for. on the ground that plaintiff’s attorney was not aware. at the time of instituting suit, that the slave was known by another name, it was granted, with leave to amend the pleadings, the judge believing, from the testimony, that the slave was known by the two names, and that, with the excluded testimony, x>laintiff could establish his claim. Held, that the new trial was correctly allowed, and that the amendment of the pleadings did not alter the substance of the demand.
    APPEAL from the District Court of the First District, Bwckanan, J.

      Perin, for the plaintiff. Van Matre, for the appellants.
   The judgment of the court was pronounced by

Kras, J.

This action was instituted to recover $600 damages, and $500 the penalty of the statute of 1840, for an alleged transportation of a slave out of the State, upon the steamboat Chieflain, of which the defendants are the owners. The cause was submitted to a jury, who returned a verdict in favor of the plaintiff, for $300 damages, and for $500, the fine prescribed by the act, in conformity with which a judgment was rendered, from which the defendants have ap-paaled.

The plaintiff has moved to dismiss the appeal. The conclusion at which we heve arrived upon the merits, renders it unnecessary to consider this motion. The defendants assign as errors apparent upon the face of the record :

1st. That the court erred in permitting the plaintiff to amend his petition by setting forth the names of the defendants, after an exception had been filed objecting to the omission as a defect.

2d. In granting a new trial, upon the suggestion of the attorney of the plaintiff that he had, through mistake, described the slave abducted by the name of George, instead of Granville.

3d. In permitting the plaintiff to amend his petition by stating the name of the slave to be Granville, instead of George as originally alleged, which amendment it is averred changed the substance of the action.

The plaintiff appears to have founded his action upon the statute of 1840, which grants to owners a privilege upon vessels on which slaves are found in violation of its provisions, for both the damages and the fine; and he commenced his proceedings by a provisional seizure, alleging in his petition that the owners of the boat were unknown to him. The proceedings being in rem, it was not necessary that the names of the defendants should have been ascertained before commencing suit.- This presented no impediment to liis proceeding to final judgment and execution.- Code of Pract. arts. 290, 291. Bul. & Curry’s Dig. p. 847. The defendants,- however, chose to appeal, and, in their exception to the petition- for this alleged defect, disclosed their names, of which th’e plaintiff availed himself to amend his pleadings, which the judge did not err in permitting to be done. The nature of the action was not changed ; the exception taken- did not tend to the dismissal of the suit; and the plaintiff had a right to a judgment in pefsondm as Well as iríférrí.

There were two trials of the cause in the lower court. Upon the first, the act of safe’of the slave in question was offered in evidence, but was objected to- and excluded, on the ground that the name of the slave was there stated to be' Granville, The testimony of two witnesses, deemed important, was also rejected, because if related to a slave named Granville. There was a verdict for the defendants. A motion was m'ade for a new trial, upon the ground, among others, that the’ counsel of plaintiff was not aware, when- instituting the suit,that the slave was known by another name than that stated in the petition; that he had been surprised by the objection made to the testimony which he had offered; and that' its exclusion had prevented the plaintiff from establishing his claim-

The judge; in- assigning-his reasons for granting a new trial, expresses his belief, founded upon an examination of the testimony, that George and Granville were one and the same person, known by those different names.

He' appears to have' considered that, with the aid of the excluded testimony,which could only be admitted under amended pleadings, the'plaintiff could establish his right to recover. With those convictions upon his mind, he exercised soundly the discretion'vested in courts of the first instance, in granting the new trial. 10 La. 409. The amendment did hot alter the substance of the demand ; it had for its object the furtherance of justice; and' was properly permitted.

Upon the merits, we think that the evidence supports the verdict of the jury. An effort was made to impeach the veracity of the witness on whom the plaintiff mainly relies. This person was examined at two different times under commissions, and it is contended that his statement's on those’ occasions exhibit irreconcileable contradictions. After a careful examination and comparison of Ms answers, we find no discrepancies which may not be fairly ascribed to the natural infirmities of memory, or such as might not occur with the most truthful person testifying at different times. His narrative bears the impress of truthfulness, and, in those instances in which he‘ relates circumstances within the knowledge of other witnesses, his testimony is substantially corroborated. The question of Ms credibility was made before the jury, and they considered him worthy of belief.

5t is contended that the evidence' does not show that the slave was on board of the boat within the limits of this State, without the written consent of the owner. Haile, one of the witnesses, states that, he embarked- at Bayou Sara late in the evening, and saw the slave on board the first or second day after, and that he continued on board until the witness landed in the State of Kentucky. Another witness says that, he had occasion to travel on the Chieftain in 1842, and that the time she then consumed in running from Bayou Sara to the northern limit of the State was nearly forty-eight hours. The overseer of the plaintiff states that the slave had absconded from Ms owner’s plantation in the parish of Point Coupee, and had been absent several weeks previous to the date of hit alleged abduction. These facts were submisted to the jury, who inferred from them that the slave was upon the boat within the limits of the State, withoul the owner's consent; and the evidence-does not authorise us to disturb theii verdict.- , Judgment affirmed.