text:
    Heirs of Guillotte v. City of Lafayette.
    Where the capacity of an administrator is not put specially at issue by the pleadings, ho is not bound to prove it.
    The abandonment contemplated by the act of 1st of June, 1846, for the opening of streets in the city of Lafayette, is one to be made by the owner; and where the property belonged to the community, the surviving husband can only abandon his interest in it.
    The interest of a deceased wife in the community is vested in her heirs upon her death.
    The registry laws do not require the recording of titles by descent.
    The doctrine of estoppel by matters in pays is seldom, if ever, applied to married women.
    APPEAL from the District Court of Jefferson, Clarke, J.

      C. Redmond, for plaintiffs,
    contended: The pleadings put nothing at issue, except the conclusiveness of the expropriation proceedings, in favor of the title asserted by defendant. Nothing is denied; nothing else is averred, than that the corporation acted in good faith under the law, in opening Magazine street; that the property claimed was enrolled on the tableau of the commissioners in the name of P. A. Guillotte ; that he was in possession of said property at that period; that the title to the same was recorded in his name; that he was the owner so far as they had been enabled to ascertain, and that he having surrendered the property thus situated, they had become irrevocable owners of the same.
    On the trial it was proved, that if Mrs. Guillotte was literally not the “oldest inhabitant” in the parish, at least she and her husband were one of the oldest couples therein. We introduced the marriage contract, dated 1793, establishing a community of acquests and large dotal rights, two acts of sale, dated 1811 and 1836, establishing the purchase by the community of the land claimed, and of that taken for the street; proved the dissolution of the community by the death of Mrs. Guillotte, in 1844; that her demise occurred in the parish, and was known to everybody, and to the mayor of Lafayette, and one of the expropriation commissioners; most particularly that, in 1847, when Magazine street was opened, it was a fixed fact which must have come home to the public authorities, no matter how supine, in fifty different ways; that through sheer negligence the land now claimed was appraised in the name of P. Guillotte alone; that after its surrender by him, the half of it was appraised at the same price by an ex-commissioner, and inventoried by him, as belonging to the estate of plaintiff’s mother; better still, that the sum of $225, due by the corporation for her half share of the portion of land contiguous to the above, taken by said city to extend Magazine street, was likewise inventoried as an asset of the estate of Caroline Guillotte, by the self-same ex-commissioner.
    The judge a quo saw this proof before him, and was not able to realize the fact, that Magazine street had been either opened, widened, straightened, or extended by Guillotte s surrender of land adjoining to it. He considered, moreover, that by the fourth section of the act of June 1st, 1846, the commissioners of appraisement are only required “to make a just and eqnitable assessment, 1st, of the lands and improvements to be taken; 2d, the loss and damages sustained ; and 3d, the benefits and advantages to the respective owners, lessees, parties and persons, respectively interested in the lands and premises so required, or to be improved for the purpose aforesaid; 4th, also of the benefit and advantage such improvements may be to all the lots and premises adjacent, or in the vicinity of such improvements, or which said commissioners may deem benefitted thereby according,” &c. That these four things, together with the names of the owners, lessees, parties and persons entitled to and interested in said lots and premises, “as far as the same can be ascertained,” constitute the elements of the estimate and assessment, which together with the plans and report, the 5th section of said act declares shall be final and conclusive, “as well upon the said city of Lafayette, as upon all persons and parties interested in the lots, lands, and premises mentioned in said report, and on all other persons whomsoever.” Nor was his honor unmindful of the fact, that this 5th section immediately precedes the 6th, which provides for cases of voluntary surrender, and under which the defendant claims; that this section having said, that the whole property shall be assessed “without reference to the future improvement thereof proceeds thus: “and the owner or owners thereof shall be entitled to receive from the said city of Lafayette the assessed value thereof, if said owner or owners shall file his or their written assent thereto with the clerk of said. court, within ten days after the first publication of the notice, that the report of assessment is deposited with said clerk; in which case the whole of said lot of ground and improvements shall become the property of said corporation, &c. But if such owner or owners should make no selection within the time above specified, he or they will then be deemed as having agreed to retain such part of his or'"their said property as may not be required for said improvement, and subject himself or themselves to the provisions of this act, when the report of said commissioners shall be confirmed.”
    It thus appears, that the statute of June 1st, 1846, recognizes the distinction which we have taken between a voluntary and a forced surrender.
    The land “to be taken” is well taken, if the names of the owner, “as far as can be ascertained,” is set forth in the report of assessment. That report must set forth the land to be taken; the damage which its taking causes; the benefit which accrues from the taking; the name of the owner: to ascertain which due diligence must be used. This report, so made, and none other, the law says, is conclusive against the world. The next section simply provides, that “the owner” shall have right to relinquish the land forming a part of that needed for the proposed improvement, at a fair appraisement. The owner alone can do this; that is, the real owner, and not the person who shall have been promoted by the commissioners to a place on the expropriation list. Besides, it is impossible to extend the binding effect of proceedings which must be had under the 4th or 5th section, to those which may or may not be had tinder the 6th.
    One word more on the subject of this statute: It must be read by the light of the constitution, which says, that “no vested rights shall be divested unless for purposes of public utility and for adequate compensation previously made.”
    It is very evident, that with the assistance of the statute and the constitution, we could recover the land in Magazine street if we chose. For our interest had vested, nay, our title was complete; our names could have been ascertained, and were actually known to one of the commissioners at least. No compensation has been made to us or to anybody else, either previous to or since the pretended divesture of our rights; the promise, not fulfilled, to raise mortgages affecting the property, is not compensation. The right of taking one man’s property, and paying another man for it, is claimed by the statute. It may not be possible for judicial ingenuity to reconcile this right with the constitutional provision for compensation. However, we do not apprehend that any such question is before the court.
    The defendant’s title in this case being equivalent to naught, her counsel have endeavored, by prefixing thereto a numeral of their own selection, to give it a considerable figurative value. The numeral, in this instance, is a charge of fraud; but fraud is not plead; it is impertinent to the issue; and if it could be argued, a motive must be assigned to justify the accusation. Here there is none imaginable. The property was surrendered at its cash value, “without reference to its future improvement,” upon the defendant’s assurance that they would “release mortgages to that amount.” That property is now appraised at ten thousand dollars, in consequence of the opening of Magazine street, which gives it a frontage on three streets. It was sold for $3200, to be thus paid, but fifteen months previous to the institution of this suit. By simply keeping the property they were sure to realize a large profit. What interest could they have in selling it on such terms, except to forego that profit, and to make themselves individually responsible for the difference between $3200, and the amount of the mortgage debts.
    The plea of inferential agency is, if possible, still more repugnant to the pleadings and facts than the charge of fraud. It is, nevertheless, the same idea presented in a different garb; the pretended agent is secretly constituted for a fraudulent purpose, and then fraudulently disavowed.
    To predicate such charges on the mere fact of relationship, and the presence of three out of eight of the plaintiffs in the parish of Jefferson, whilst the expropriation was going on, is cynical in the extreme. To urge them in the Supreme Court, for the first time, and that too in defiance of the pleadings, implies, in the party pursuing such a course, a singular confidence in their own powers of moral suasion.
    The same observations will apply to the objection that the administrator has no capacity to sue. That capacity has been judicially confessed beyond the possibility of retraction. No facts, however significant, can be adverted to for the purpose of gainsaying that admission. If this be not the law of pleading, then judicial investigations degenerate at once into hot-beds of equivocation, in which every admitted fact becomes the nisus formativus of a new controversy.
    Should the court, in despite of these considerations and of all precedent, entertain the objection, we then say, that the appointment of the administrator, acquiesced in and supported by the heirs, is not to be controverted incidentally by a party from whom he seeks, conjointly with the heirs, to wrest an asset belonging to the estate. That all the parties in interest are before the court; that it is idle to undo what has been done for the purpose of doing it over again. That the suit by the heirs is good per se, and the joinder of a quasi-administrator is no objection to its maintenance. That if it had been so brought, the defendant could have excepted to the absence of the quasi-administrator with much more propriety than he now excepts to his presence. That the right of a defendant to except to the legal capacity of a plaintiff is circumscribed by the defendant’s interest at stake in the controversy. That defendants having gone to trial without raising the objection, it was demonstrated that they had no title to the property-claimed by the plaintiffs, but that the same belonged to the estate of Mrs. Guillotte. That, at all events, this suit was a conservatory process to prevent the spoliation of an unrepresented estate. That it was carried on before the judge of probate who had appointed the administrator, and his countenance of the action after the probate proceedings had been introduced in evidence, is equivalent to his nomination as administrator ad hoc. And, to end by the beginning, the probate “record” was not introduced, but simply the “ probate proceedings,” to show the notoriety of the demise of plaintiff’s mother, and for no other purpose, to which plaintiff’s bond or oath could in no manner conduce. Again, after our introduction of these proceedings, they were introduced by defendant specially for the “ purpose of showing the date at which the succession was opened, and the death of Mrs. Guillotte.” They cannot now be used for any other than the then avowed and specified purpose.
    It were a hopeless as well as a Herculean task to endeavor to meet the authorities quoted by the defendant’s counsel, or to out-quote them. Suffice it to observe that they have fully established the proposition, that the title to one-half of (die community of acquests does not vest, by the demise of the wife, in her heirs And this, too, without adverting to the case.of German v. Gay, 9 Louisiana Rep. 582, in which one of them was engaged. Doubtless, under the circumstances, it was more proper to rely upon Rent & Collyer, and upon Sumner & Metcalfe’s Reports, than upon N. S. vol. 6, p. 401; Louisiana Code, 2371, 2374, 2375 ; Guice v. Lawrence, 2d Ann. 228, whose proximity to the scene of action might subject them to the suspicion of laboring under local prejudices.
    Still less can we undertake to challenge the array of decisions by which the law has been settled to admit of the retractation of judicial admissions. We ourselves should not have suspected that they were susceptible of being so construed; but the best proof that they can be, is that they have been. Here, then, we have another striking illustration of the melancholy truth, that language, when under the management of even its greatest masters, is at best but a very unsafe vehicle for the conveyance of thought.
    As an offset against the eight cardinal points raised by the defendant on appeal, we beg leave to suggest one, namely : That to make the voluntary transfer of the land claimed obligatory on us, that transfer should have been recorded, and that the transcript affords no proof that this has been done as regards the land really sold fronting on Magazine street.

      Ogden and Duncan, also for plaintiffs,
    contended: It is shown that the property in controversy was purchased during the coverture; that Mrs. GuilloUe died in 1844, and that the plaintiffs, as her heirs, claimed the estate by a formal petition filed in court, on which process issued at their request. It seems to us that this makes out clearly the prima facie case on which plaintiffs were entitled, that being all the evidence, to a judgment in their favor.
    By the Spanish law, whatever husband and wife acquire or purchase during the marriage, is community; it matters not whether the purchase was made in the name of either or both, because the time of the purchase is alone to be considered, not the party in whose name it was made. Bruneau v. Bruneau, 9 M. R. S18, 219. Where there is no testimony as to the acquisition, every thing holden by husband and wife is presumed to be common at the dissolution. 7 M. R. 362. The statute regulating the rights of husband and wife is real, not personal; it regulates things and subjects them to the laws of the country where they are found. 7 N. S. 42. And in this case the opiniou of the court, by Judge Porter, cites with approbation the opinion in Saul v. Saul, which decreed community to exist jvhere the parties were married out of the State. It goes further and says, tl)át the Fuero Real and the article of the C. C. 2370, do not affect the right at all; that community in land situated in this State exists even if the married persons never were in the State at all. Cole v. Cole. On the death of one of the spouses the community is terminated ; each party is seized of one undivided half of the property composing the mass, and the surviving party cannot validly alienate the share not belonging to him. Brousard v. Bernard, 7 L. R. 222. “The succession of the deceased was acquired by his heirs from the moment of his death, and with it the right to institute all the actions which the deceased could have instituted. These rights are not suspended during the delay allowed by law to the heir to decide whelher he will accept or renounce the succession.” Womack v. Womack, 2d Ann. 341. Where timéis taken to deliberate, the judge is not bound to appoint an administrator, unless some of the creditors of the succession require it. Bryan v. Atchison, 2d Ann. 465.
    It was argued that the beneficiary heir has no title to any thing but the surplus. In support of that position were read from the Civil Code, articles 940, 1024, 1042 and 1051. According to article 940, the succession is acquired from the moment of the death; if accepted, the heir is considered as seized from the instant the ancestor died; but this right is in suspense till the heir accepts or rejects; and by article 1010, the renunciation is never presumed, but must always be made by a solemn act before a notary. By 1024, the faculty of accepting within prescription is preserved with certain limitations and reservations, even to those who may have formally renounced. By 1042, the administrator is given the same general power which is granted to curators of vacant estates. Article 1088 tells us that a vacant estate is one that no one claims, or to which the heirs are unknown, or one which the heirs renounce. By 1051, it is provided that when the estate is accepted with the benefit of inventory, the administrator shall sell the property, pay the debts, and that he shall hand over the surplus to the heir.
    Now, it seems to us that all this does not establish the proposition contended for, that the beneficiary heir has no title to any thing but the surplus; for the code no where says that the title to the mass is in the administrator, as it is in regard to chattels at common law. It is clear, that the title may be in one person, and a faculty or power of administering that property be in another; take, for example, the heir at common law, with a power given by will to the executor to sell that property, or take the case here of an estate, the title of which is in A. and the usufruct in B.
    Upon the decisions of the Supreme Court of Louisiana our mind comes to the conclusion, and we express it with great distrust in opposition to the expressed opinion of counsel of so much learning as those opposed to tis, that the title to the property composing the mass, and not the surplus only, is in the beneficiary heir, and that he holds this title subject to a power of administration on the part of the administrator. This adhiifiistrator is required to be appointed only at the instance of creditors, and for their protection, by the Code of Practice, which being made after the Civil Code, controls it. At common law the administrator was clothed with the title of the personal property, and the Parliament of England had to compel him to distribute the surplus, and to point out the'mode in which the distribution should be made; the real estate oftfy descended to the heir.
    The argument of the counsel would involve the conclusion, that in Louisiana the title to the whole estate, real and personal, would vest in the administrator whenever the heir accepts with benefit of inventory. The title, we take it, must be somewhere: it cannot rest in abeyance at a time when it is directed to be sold and conveyed. It must, it seems to us, be either in the administrator, subject to the distribution of the surplus, or in the beneficiary hoir, subject to a power to be exercised by the administrator.
    It cannot be claimed that this is a vacant succession, or one which is subject to the rules applicable to a vacant succession; here is a succession the heirs to which are not unknown ; and it is not, we may say, one which the heirs have renounced. On the contrary, the heirs are known and claim the estate, and have actually sued for it by a petitory action as heirs.
    Tho case of McCullough v. Minor is also relied on by defendants; that only decides, that for the purposes of proscription a vacant estate shall be regarded as an entity, and that prescription shall run against it. Could prescription run against this succession on the principle of the luereditus jacens? We apprehend it could not, because it is a succession represented by heirs who are known, and who not only have not renounced, but have actually brought suit to recover it.
    We go farther, however, and contend that these heirs, by the original petition in this cause, accepted absolutely, and that they could not, if they would, throw off the responsibility incurred by that act. By selling any thing belonging to the estate, the heir accepts. The code, from 982 to ¡006 inclusive, lays down the rules by which an heir may be presumed to accept. Whenever he does an act which he would not have a right to do, except as heir, it shall be presumed that he accepts rather than that he has trespassed. If sued as heir and he lets judgment go against him by default, this mere passive conduct shall conclude him. C. C. 994. And when once made he cannot dispute its validity. 1003.
    The rules on this subject are precisely analogous to the rules at common law on the subject of accepting and renouncing the office of executor; and at common law it is-expressly decided, that bringing an action for a debt of the testator, is such an- act of administration as shall make a consent and determine the election. See SI Vineras Ab tit. Executor, (B. a.) 1.

      Benjamin and Micou, for defendant,
    contended : 1. Plaintiffs are without capacity to sue; as shown on tho face of the record. They declare that they sue as beseSdary heirs, and only appear for the purpose of joining the administrator, in-aw act of administration. Under such allegations they cannot maintain a. suit for the succession, which must be represented by an administrator. C. C. 1024, 1051, 1042, 1066. Psultney’s Heirs v. Cecil, 8 L. R. 342. Davis’s Iieirs v. Elkins, 9 L. R. 147. McCullough v. Minor, 2d Ann. 468. 2. Jacques Arthur Guillotte,. who assumes the quality of administrator, has no capacity to act ns such, having given no security, nor taken the oath as-adminisfrator. C. P. 976. C. C. 1034, 1042, 1119, 11*25. It is true, that the capacity of administrator was not specially put at issue, and he was not bound to prove it under our jurisprudence ; but, on- the face of the record, he has made the proof himself that lie is without, authority. None of our derisions go so far as to intimate that when such proof of want of capacity is given, the exception is not available for the defendant. Indeed, the language of the court implies the opposite principle. Moorehead v. Thompson, 1 L.- R. 283. Tucker v. Lisle, 4 L. R. 328. McDonald v. Millaudon, 5 L. R. 40S. On the' merits, defendants contend: 3. That the proceedings for the opening of the' street, under which the title was vested in defendants, were proceedings in rem,- and as such binding on all the world. The statute of 1846 declares, by express provisions, that the proceedings under it are in rem ; the whole context shows this. See particularly sections 5 and 6. Proceedings in rem, by their very nature, are conclusive on all the world. 1 Phil, on Evidence, 328, 354, 357, 346. 3 Phil, on Evidence, 853, note 609, p. 882. Canaan v. Greenwood Turnpike Company, 1 Connect. Rep.

      The principle applies to all courts acting in rem, on any subject matter whatever, or where jurisdiction over the subject matter is peculiar and exclusive. It applies to probate courts acting on wills. Bogardus v. Clark, 4 Paige, 623. Laughton v. Atkins, 1 Pickering, 547. Blount and Wifev. Barrack, 4 Wash. C. G. R. 659. To Admiralty Courts acting on ships and vessels in prize causes. The Mary, 9 Cranch, 126, 144. Baudue v. Nicholson, 4 L. R. 85, 86. To Exchequer Courts Acting on revenue laws and forfeitures and confiscations. 1 Phil, on Evidence, 354, 357. To commissioners acting on the opening of slreets in cities, under statutes antilogous -to that now .under consideration. Owners, Sfc. v. Mayor of Albany, 15 Wendell, 3/4. In which case, the effect of notice by advertisement, is also considered.
    4. The legal title to the property was exclusively in .the .father. The right of his wife’s heirs was an equitable title merely, and contingent on their acceptance of the succession. Even that equitable title was not a distinct interest in the specific property in controversy for the one-half, but an .interest in abeyance until the settlement of the community. Whilst the legal title was in plaintiff’s father, third persons acting in good faith could acquire it .free from the equitable claim, which was dormant and secret. Collyeron Partnership, 118,119. Hoxic v. Cave, 1 Sumner, 182, 183. Byer v. Clark, 5 Metcalf, 580. McAlister v. Montgomery, 3 Kayer, 96. 3 Kent’s Commentaries, 3-3. Bcdot y Ripoli v. Modna et al., 12 R. R. 561. The above cases apply to partners, whose rights in the partnership property are precisely those of the parent and the heirs of his pre-deceased wife, as representing her share in the community. We specially refer to the reasoning of the court in the above cited cases, in 1st Sumner, and 5th Metcalf. See also, 1 American Leading Cases, 336, and note.
    5. The plaintiffs are bound by the proceedings, because of their presence and knowledge of the proceedings, and failure to oppose. Their present claim, under such circumstances, is treated in law as a constructive fraud. 1 Story’s Equity Juris. § 384, et seq. ¡Drewry on Injunctions, 36 vol., Law Library, 36, et seq. Cook et al. v. West. 3 R- R. 332. Thomas v. Scott, 3 R. R. 526. Weld v. Peters, 1st Ann. 434. Erwin v. Lowry, 7 Howard S. C. Rep. 183. Plaintiffs are estopped by this conduct. 2 Smith’s Leading Cases, 30 vol., Law Library, 121. Bexitmi v. Erwin, decided during the present term, and cases there cited.
    6. The plaintiffs were represented by their father, as their agent, and aro bound by his acts.
    Although this agency was not directly proven, .it is established by irresistible presumption : .1st. From the relationship of the parties. 2d. From the fact that all the parties were joint owners, and the party who acted alone was the one that held tlie largest interest in the property. 3(1. From the fact that the property was under mortgage for more than its value; which was a motive with plaintiffs for .allowing their father to dispose of it in the best possible planner, for extinguishing the debt on it. 4th. From tlie fact that during the who]e.proce<etdings for the opening of the street, from the 24th December, 184,6,-to -the 4th September, 1847, this -agency was exercised publicly and notoriously, 'by his representing the whole property in their presence, without .objeetiou. 5th. From .their allowing the recorded title to stand unchanged in his name, from their mother’s death in February, 1844, until a period subsequent to the transfer by him on the 30th June, 1847.
    These facts, and the internal evidence afforded fey the whole history of the case, as shown .in the record, form a presumption of agency much more violent than .that afforded by mere lapse of time. Yet, it has been repeatedly held, that the mere lapse of twenty years, unaccompanied by any other presumption, will be held as conclusive proof of agency. Bedford v. Urquhart. 8 L. R. 248. Bourguignon v. Boudousquie, 6 N. S. 153. Belabigarre v. Second Municipality, 3d Ann. 238.
   The judgment of the court was pronounced by

Rost, J.

This is a petitory action. The city of Lafayette acquired from P. A. Guillotle, who represented himself as the sole owner thereof, a piece of ground, under-the sixth section of an act entitled an act to provide for opening, widening, extending and straightening, laying out, enclosing, and improving streets, &cM approved on the 1st of June, 1846, which provides that in all cases where any portion of a lot of ground, not exceeding two acres, shall be required for the purposes of the act, the commissioners shall fix the value thereof, at the time of the assessment, and without any reference to the future improvement, a]| the buildings and improvements then existing thereon; and the owner shall be entitled to receive, from the city of Lafayette, the assessed value, if he shall file his assent thereto, with the clerk of the court, within ten days after the first publication of the notice, that the report of assessment is deposited with said clerk ; in which case, the whole of said lot and improvements shall become the properly of the corporation.

The consideration of this sale was the sum of $3200, which, says the act, “ is retained and held by the mayor and city council, subject to the demand of the mortgage and privilege creditors of the vendor, to be disposed of and distributed according to law, and the eleventh section of the act of 1846, with which retention the vendor declares himself satisfied, and grants full acquittance and discharge therefor.” It is not shown that any portion of this sum has been paid.

The property sold formed part of the community between the vendor and Caroline Ducasse, his wife, who had died before the sale. Her heirs and the administrator of her succession, now claim the undivided interest which they allege vested in them at her death. The answer of the defendants admits the purchase of the property, for purposes of public utility; and avers that the plaintiffs cannot recover it while it belongs to the public. It also contains a general denial, and the prayer that P. A. Guillotte may be cited in warranty, which was done. There was judgment in favor of the plaintiffs, for one undivided half of the land, and a judgment of non-suit on the claim in warranty. The defendants appealed against the plaintiffs only.

On the appeal, the points have been made, for the first time, that the administrator has no capacity to act, having given no security, nor taken the oath required, and that the other plaintiffs, alleging themselves to be beneficiary heirs, are also without capacity as such to maintain the action. The defendants’ counsel admit that the capacity of the administrator was not specially put at issue, and that he was not bound to prove it; but say, that the mortuary proceedings in the succession of Mrs. Guillotte, offered in evidence by himself, show his want of authority, and the defendants are entitled to take advantage of it.

On suggesting to this court, that on the face of the record it appeared that the record of the mortuary proceedings of the plaintiff’s mother was offered in evidence, and that although certain mortuary proceedings were copied with the record, no certificate of the clerk was therein contained, to show whether the proceedings so copied were all of the mortuary proceedings, or only part thereof; the defendants’ counsel obtained a writ of certiorari, commanding the clerk of the district court to perfect the record, by filing a copy of all the mortuary proceedings, if any there be, or a certificate stating the fact that the proceedings already copied into the record are all the mortuary proceedings. It would seem from the return to the certiorari, that the administrator did not give bond and take the oath required, till after the institution of this suit.

The writ of certiorari was of course granted without prejudice. "We are of opinion that the record was complete as it stood, and that the writ was improvidently issued. We do not understand the words in the note of evidence, “the probate proceedings in the succession of Mrs. Guillotte," as necessarily implying that the entire mortuaria was offered ; that portion of it which was read in court and filed by the clerk was alone in evidence. The certificate of that officer, that the record contains a correct transcript of all the proceedings had, of all the evidence adduced, and a true copy of all the documents filed, in the cause, shows what that portion was.

The evidence upon which the defendants rely, not being in the original record, we cannot notice it. But besides, the other plaintiffs have made themselves parties to the suit, and assumed the quality of heirs. They have, therefore, an undoubted right to stand in judgment, even if the administrator had not. On the merits, we are of opinion that the title of the plaintiffs to the portion of land necessary for the opening of Magazine street, may have been divested by the proceeding in rem, and that, as there were upon the property judicial mortgages, which, from their dates, must be presumed to have originated in community debts, the defendants could only be required to apply the amount of the assessment to the payment of those mortgages. It is not, however, necessary to examine that question in detail, as the counsel of record for the plaintiffs has abandoned that portion of the claim.

In relation to the remainder of the land of which Guillotte made an abandonment to the defendants, it is clear that the abandonment contemplated by the law, is one made by the real owner, and that in this case, the defendants acquired nothing more than the undivided half interest of Guillotte. This case does not materially differ from that of P. F. Smith, Under-tutor, v. Syndic of Dorsey, lately determined. In that case, the property was still in the possession of the syndic of the husband; in this, it has been sold, but not paid for. There is no proof, in either case, of the insolvency of the community. As the registry laws do not require the recording of titles by descent, the legal title did not continue in the father, after the death of his wife, and parties purchasing from him were bound to make inquiry.

We know of no rule of law under which Guillotte can be held to have acted in the sale as agent of the plaintiffs. It is urged that the plaintiffs are bound by the proceedings which resulted in the transfer of the property, because of their presence, and of their failure to oppose them.

Only three of the eight plaintiffs reside in the parish of Jefferson. Two of them are married women, to whom the doctrine of estoppel by matters in pays is seldom, if ever, applicable. The other is a widow; she alone could come under the rule invoked ; but there is nothing in the record which would justify us in subjecting her to it. Her residence in the parish, is the only circumstance from which her knowledge of the proceedings is to be inferred, and that is clearly insufficient. It is said that her claim under the facts of the case, should be held in law a constructive fraud. But the fact is overlooked, that as the defendants have not yet paid the price, no fraud has yet been consummated. We have not noticed the motion to dismiss, because none of the grounds upon which it rests are at all tenable.

It is therefore ordered, that the judgment so far as appealed from be reversed. It is further ordered, that the defendants be quieted in their possession and title to that portion of the ground in controversy, now forming part of Magazine street. It is further ordered, that the plaintiffs recover of the defendants, the undivided half of an irregular piece of ground, situated in the city of Lafayette, between Camp, St. Mary, and Magazine streets, measuring 304 feet 3 inches 1 line on Camp-street, 133 feet 3 inches 6 lines on St. Mary-street, 103 feet 7 inches on Magazine street, and 143 feet 3 inches 4 lines on the line which divides it from the lot sold to the defendants by A. Huard. It is further ordered, that the defendants pay the costs of the district court: those of this appeal to be paid by the plaintiffs and appellees.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Succession of Caroline Trouard.
    A recommendation by a testator in his will “to give from time to time some little assistance” to a certain person, does not amount to a legacy, for the want of certainty; nor does it entitle the person to alimony from the estate of the testator.
    APPEAL from the District Court of Jefferson. Clarke, J.

      L. LeGardeur, for appellants.

      Remy, for appellee.
   The judgment of the court was pronounced by

Rost, J.

This is an appeal from a judgment rendered on the oppositions to the account filed by the executor of Caroline Trouard, wife of Michel Peny.

The parties all concede that the judgment must be reversed; and the only question upon which they have not agreed is, whether the opponent Mrs. Lefebvre is entitled to an alimony, under the following clause of the will of the testatrix. “ Je recommande a mon mari cette pauvre Justine, dont la grande misero fait pitié, de lui donner de temps h autre quelqu-e petit seeours; en le faisant, il pensern vt moi.”

If this can be viewed as a testamentary disposition, it is a legacy to Mme. Lefebvre of some little assistance to be given now and then; and as neither the time of payment nor the amount or thing given are specified, it is too uncertain to be enforced at law, and is purely a matter of conscience with the usufructuary, whose moral duty it is to comply with the wishes of his wife in proportion to the advantage which he derives from her succession.

Art. 1633 C. C. authorizes the legacy of an indeterminate thing. But to sustain such a legacy, it is necessary that the thing given be determined by the class to which it belongs, or by measure or number. Thus the legacy of a horse is good; but the legacy of an animal would bo void for uncertainty. A legacy of grain, or wine, without any other qualification, would also be void, because the heir could liberate himself by giving a grain of corn or a drop of wine. 9 Duranton, No. 240. Rolland de Villargues, verbo, Legs. No. 88. So in the present case, Michel Peny could liberate himself by occasionally giving the legatee the smallest possible assistance. All such cases are considered as properly coming within the rule de minimis.

We are of opinion, that the claim of Mrs. Lefebvre for alimony cannot be sustained.

It is admitted, that Michel Peny has paid community debts to the amount of $443 41; that he is a creditor of the succession in his own right for the sum of $279; and that the executor has still in his hands $688 14 of his share in the assets of the community. It is also admitted, that the share accruing to Mrs. Lefebvre, after the death of Michel Peny, is $1730 58 ; of which Michel Peny has the usufruct, and which he is entitled to receive upon giving bond as required by law. It is finally admitted that the executor is not bound to account for the property of the succession situated in France.

The premises considered, it is ordered, that judgment in this case be reversed, so far as the parties to the appeal are concerned. It is further ordered, that the claim of the opponent, Mrs. Lefebvre, for alimony be disallowed. It is further ordered, that the account filed in this case be amended so as to conform with the foregoing opinion, and that the executor pay over to Michel Peny, the surviving husband of the testatrix, his claim against the succession, the amount paid by him for c'oífímúnity debts, and the remainder of his share in the assets of the community, amounting Éogéíhéf* to fhe sum of $1410 55. It is further ordered, that the executor pay over to the opponent, ItIré. Lcfebvre, $73 50, for the proceeds of movable property belonging to her, and sold through error by the executor'. It is further ordered, that the portion of the coiriiniiiiity accruing to Mrs. Lefaivre be fixed at $1730 58; and that, upon giving bond and security as required by acts. 551, 552, C. C., Michel Peny receive this sum from the executor as usufructuary. It is farther ordered, that the costs in both courts be paid by the succe'ssióif/


author: Eustis, C. J.

text:
    Benjamin Florance v. His Creditors.
    The proceeding to compel an insolvent to make a surrender of the property he has acquired since liis cession of property, cannot be prosecuted by a rule against him taken in the original insolvent proceedings, but mustbe conducted as an ordinary suit, by petition and citation in the court of the parish in which the insolvent is domiciliated.
    APPEAL from the Fourth District Court of New Orleans. Stmwbridge, J. This case came up on a rule taken by the creditors of Benjamin Florance, to compel him to make a surrender of the property he had acquired subsequent to his application for the benefit of a surrender of his property.

      Hoffman and Ogden, for plaintiffs in the rule,
    contended : The appellees, creditors of said Florance, having ascertained that he had become a man of wealth, moved the Fourth District Court (as succeeding the late Commercial Court, in which said Florance had made a surrender of property,) for an order directing him to make a new surrender of his property, as having come to better fortune.
    Every exception was put forth to defeat the application. This was to be expected. They were: 1st. That he was domiciliated in the parish of Jefferson. 2d. That he cannot be held to answer by rule. These exceptions were overruled, and the reasons and authority relied on by the court, are relied on as all-sufficient. See the case of Quimper v. Bierra, 8 R. R. 204.

      Benjamin and Micou, for the insolvent and appellant,
    contended: The first question presented to the court relates to the regularity of the proceedings and the jurisdiction of the lower court. The residence of Florance in the parish of Jefferson is clearly proved. Consequently, no new or original suit can be instituted against him in the parish of New Orleans. Spangenburg’s case, lately decided. But the exception to the jurisdiction was avoided in the lower court, by the plea that this proceeding was merely a continuance of the original proceedings, over which the court had jurisdiction, and not a new suit. Whether this is correct we have now to examine.
    The present proceedings began by a paper entitled a petition, which we consider as a mere motion, and the order endorsed it (though somewhat peremptory in its terms) a rule to show cause; and in this light the proceeding was considered and supported in the court below. No authority was cited below, but the counsel for appellees now rely upon the case of Quimyer v. Bierra, 8 R. R. 204, as conclusive upon the point. The opinion in that case certainly supports the position assumed by the appelles; but it is obvious that the question was not before the court. The suit was brought by an old creditor, not to compel a new cession, but to obtain judgment and execution for his debts. It Was instituted in a court having no jurisdiction over the subject of cessions or surrenders either voluntary or forced.
    The right to sue for a cession is a distinct right from that of suing for the debt. The creditor had the former, but not the latter, right. If the law had given him the right of sumg for his debt, then his suit was well brought and would have been maintained. But not having that right, he had mistaken his j.p^gjiy^ pie asked a relief which the law did not give him, and if he had sought that which the law did confer, he would have been compelled to resort to another court. Whether the proceedings were properly a continuation of the former cession, was evidently not a question at all before the co-urt. That the opinion pronounced on this point was without either examination or reflection will appear by its perusal. We therefore consider the case as a mere obitur dictum, and not entitled to the weight of an authority.
    The first case which bears on the subject in our reports is that of Fitzgerald v. Philips. 3 M. R. 589. in which the court quotes from the Partidas, and from the Code of 1808. The Partidas declare, that the debtor who had made a cession could not be sued by his creditors, unless he should have made such gains as to be able to pay all his debts, or a part of them; while by the Code of 1808 it was declared that the debtor was obliged to surrender whatever property lie may afterwards acquire.
    The form of the proceeding, however, was not determined; and the court say they had not found it in the books, and proceed to say : “ But it is obvious, that with the exception of the arrest of tho debtor, the same steps must be taken and the same remedy sought as where a forced surrender takes place for the first time.” If this be true, the only course would be by a new suit. It was suggested, that the syndic was the proper party to sue; but the court thought that having administered the estate his functions were at an end, and he could bring no new suit whatever ; it was therefore decided that the Partidas remained in force so far as to give each creditor the right to sue for his debt. The case was ended by a judgment for the debt. This case was several times before the court, and was elaborately argued. 3 M. R. 588. 4 M. R. 290, 559. The proceeding was begun and continued by the creditor as an ordinary suit.
    The act of 1817 and the New Code, article 2173, establish more explicitly the right of creditors, but again omit to provide any form for the proceeding. The creditor cannot, under the present law, sue for his debt, but only for a. new cession ; he can only maintain his suit where the debtor has acquired property over and above what is sufficient for his maintenance after paying his new debts.
    If the proceeding were intended to be a mere continuation of the cession, then it woulij seem that the right would have been given to the creditors generally, or to the syndic as their common representative. The law, however, seems to contemplate the entire close of the originafproceedings, which united the creditors as a mass, by giving to each the right of suit. The concurso being at an end there was no longer any common representative; and hence, each creditor was free to act, though the result inured to the common benefit. But this right the creditor could only exercise on due proof. He could force a new cession by showing the acquisition of better fortune; then the burthen of proof rested upon him, and without proof there could be no action of the court. This involves an issue and decree upon the fact. In this issue the defendant certainly has rights. What is the extent of his fortune ? what the amount of his debts ? and what sum is necessary for his maintenance 1 are questions of great importance, and which would be proper for the decision of a jury. The last, especially, a jury should be called upon to assess. The position in life of the debtor, the number of his family, etc., would be subjects more properly cognizable by a jury than a judge.
    It is a general rule, that whenever the law gives a right without prescribing a special form of remedy, the remedy can only be obtained by ordinary suit: by petition, citation, issue and trial. No special" remedy is prescribed in this case. This seems to be conclusive on the point; for all summary proceedings being exceptions, if the case does not fall within them it is necessarily governed by the general rule. But if the court, at the mere suggestion of a creditor, and without any proof whatever, can render an order to surrender, or show cause on a day fixed, then an exception to the usual form of proceeding is created, not recognised by law, and the debtor is deprived of the important right of trial by jury.
    We believe that the books do not afford an instance in which a new cession has ever been compelled by a mere rule. In Morgan v. Dalton, 3 L. R. 334, the debtor having come to better fortune before the administration of the first cession was complete, the court expresses the opinion that the syndic still representing the mass could act in the proceeding; but the form of action was that of an ordinary suit.

      In Beuvais v. Morgan, 2 L. R. 289, and Bernard v. Vignaud, 1 N. S. 10, it was ruled that the functions of the syndic ceased on the completion of his administration, and that after filing his final account he could bring no suit whatever. This is in accordance with the rule of Fitzgerald v. Philips, and leaves the remedy to the individual creditors. The original case is at an end. No cause remains in court in which a rule can be taken, and the jurisdiction of the court has actually ceased over the subject matter. Yet the right to enforce a new surrender exists. It follows that it must be done via ordinaria, for there is no suit pending to which it can be attached as an incident. We have seen by the case from 3 L. R. that even while the estate was in course of administration the syndic did not attempt to confound the new surrender with the old one, by taking a rule. The propriety of a rule in that case was doubtful, but it is clear that after the original proceedings are closed, rules are no longer appropriate remedies.
    In this case, the debtor has only removed to an adjoining parish; but if the rule be established, that such proceedings can be conducted by rule, and in continuance of the original proceedings, then a debtor who may have failed in Caddo parish and afterwards removed to New Orleans, might be forced to go to Caddo to defend a suit of this nature; and, as one suit could be brought after another, they would afford the means of perpetual vexation and annoyance. The debtor might be forever prevented from attaining better fortune by repeated and premature demands for a new cession.
    The view we have taken of this point is the only one consistent with the opinion of this court in the late ease of Plympton v. Preston. The point was not directly before the court, but an attempt had been made upon a mere suggestion of old creditors to sequester the new property of a debtor. The court considered the attempt inadmissible, and declared that the acquisition of a better fortune was a thing en pais, to be judicially ascertained before any order to make the cession could be obtained. This opinion evidently looks to a new suit as the only mode of ascertaining the faetón which the obligation to make a new cession depends.
    Another reason for new and distinct proceedings is, that the debtor himself is not a party to the concurso. He abandons his property, and obtains an order staying all proceedings against him. He then ceases to be a party, and the creditors administer and divide the estate. If a surplus remains ho comes in again to receive it, but until the creditors are paid he has no voice in the matter, and neither appears nor is he represented. To bring him in again by a rule is to make a new party, and rules are only taken against those already parties to suits.
    This mode of proceeding is another instance of the attempt to substitute rules for suits, which this court has so often denounced as calculated to throw the administration of justice into confusion. The plain and undoubted remedy is by suit. The preliminary issue to be tried is one of fact, on which either party should be permitted to call a jury. The debtor has then the common right of every other citizen of defending at his own domicil. If a surrender is decreed, then it will be made where the property lies, and where it may be disposed of to advantage. If he may be called out of his parish and forced to surrender there, in addition to the injustice to himself, the inconvenience of administration and the danger of sacrifice will both be increased.
   The judgment of the court was pronounced by

Eustis, C. J.

The appellees, creditors of Benjamin Florance, who had filed his bilan as an insolvent debtor in the late Commercial Court of New Orleans, in 1849, alleging that he had acquired sufficient property to authorize them in exacting a new surrender for the purpose of paying their several claims which had not been dischax-ged by the insolvent proceedings moved in the Coui't of the Fourth Disti-ict of New Ox-leans, which had succeeded to the commercial court, for an order directing him to make a new sun-ender.

A petition was filed making out a px-oper ease, and the ox-der of the court was, that the insolvent within ten days after notice of the petition and order-, malte a surrender of the property acquired by him since the date of his cession in 1840, or show cause why he should not do so. The insolvent to this px-oceeding filed two exceptions : one to the jurisdiction of the court, he being domiciliated and residing in the parish of Jefferson ; the other, that he was not bound to answer to the rule, the action to compel a new surrender being one which ought to be institued and conducted according to the usual forms of civil actions, by petition, citation, &c.

The exceptions were overruled; the district judge considering the proceedings of the appellees as a continuance of the former proceedings in insolvency, judgment was afterwards rendered decreeing a surrender of property, and the insolvent Florance has appealed.

The right of the creditor, whose debt has not been discharged under the insolvent acts, to compel a new cession of the property of his debtor, if the latter has acquired property over and above what is necessary for his maintenance, is given by the article 2173 of the Code, But on this fund the creditors since the cession have a preference over the old ones.

The practice in proceedings of this kind does not appear to have been uniform. Morgan v. Dalton, 3 L. R. 333. 8 R. R. 304. In the case of Plympton v. Preston, 4th Ann. 360, we had occasion to examine this subject, and we think it necessarily results, from what we held to be the law in that case, that the proceedings of the creditor in the exercise of this right to force a new surrender must be by action in the ordinary form. It is but proper and just that the defendant should have the privilege of meeting the issues of fact presented as in any other suit.

The question of domicil, in a case of this kind, also involves rights of the most serious kind. Men who have failed in remote parts of the State, and instituted their insolvent proceedings in the courts of their domicil, frequently remove and establish themselves in the city or some other part of the Stale. They form new establishments, and often retrieve their fortunes on the credit they obtain. The creditors since the surrender of property have a preference on their property newly acquired over their old ones. To subject the debtor and his new creditors to the exclusive jurisdiction of the courts in a distant parish, having original cognizance of the insolvent proceedings, and to transfer the debtor’s property there for administration and distribution, would be an abuse in the administration of justice.

¥e therefore think, the court erred in overruling the exceptions filed by the appellant. The judgment of the district court is therefore reversed, and the plaintiff’s petition dismissed, with costs in both courts.


text:
    Municipality Number One v. Louisiana State Bank.
    Where the charter of a hank exempts the stock and real estate of the bank from any tax laid by the State, parish, or any body politic or corporate, a taximposedby the Municipality Number One on the real estate of the hank is in direct conflict with the charter, and illegal. Such an exemption is not repealed by the art. 127 of the Constitution.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      R. Preaux, for plaintiff,
    contended : The Municipality Number One sues the bank, to recover the taxes due them on the property which they own in the limits of said municipality.

      The Louisiana State Bank resists, on the ground, that by the 17th section of their charter, (Moreau’s Digest vol. 1, p. 75,) they have forever been exempted from such taxes.
    It has been urged in the court below by the second attorney of the Municipality Number One, who specially attends to such cases, that in comparing the French text of the law with the English text, (see Moreau’s Digest vol. 1, p. Ill, sec. 17, French text,) that the exemption is appliable only to political corporations existing at the time of the adoption of the charter of the bank, and that the Municipality Number One being not yet established at that time, the bank could not oppose the disposition of their charter to the municipality; and I submit this point to the consideration of your honors.
    So far as 1 am concerned, the object of this argument is only to show to your honors that, whatever may be the extent of the privilege granted to the bank on the 14th March, 1818, they have no right to claim any exemption of taxes under our present Constitution.
    I wish to be well understood that I am not here arguing the constitutionality of a law impairing the obligations of contracts. I know that the charters of private corporations have been viewed in this country by the judiciary as contracts between the State and the individuals in whose favor they have been granted, and I admit that as long as corporations do not violate their charters, it is out of the power of the Legislature to pass any law impairing their privileges.
    But the Louisiana State Bank is not in the position of a corporation who have always been faithful to their charter; they have violated it twice; but as they have been relieved by the Legislature, I do not rely upon that in order to show that they are bound to pay the tax.
    After these preliminary explanations, I now come to the point. I intend to submit to your honors, that by the article 418, C. C., the law considers a corporation as an intellectual body, and for certain purposes as a natural person. The same definition of a corporation is given in the Code of 1808, c. 2, p. 89.
    Then, if a corporation is to be considered for certain purposes as a natural person, that is to say, as regards the privilege granted to them in their charter, I maintain that, witbin the limits of the privilege granted to them, they are subjected to the same rules which govern individuals towards the sovereign.
    In the charter of a corporation there may be at the same time privileges and exemptions granted; so far as privileges are concerned, there is no doubt that ns long as corporations do not violate their charter they have the right of enjoying said privileges; but, as to exemptions, corporations as well as individuals are governed by the same rule. To admit a contrary doctrine would be to submit that the sovereign, in remaining still the sovereign, has the right of divesting himself of his sovereignty, which he cannot consistently do, according to Vattel, Bentham.and Grotius.
    Has the Legislature granted a privilege or an exemption to the bank ? The very wording of the section shows that it is an exemption : “be exempt from the payment, &c.” Then this being an exemption, and not a privilege, it is governed by the rules applicable to exemptions granted to individuals, whatever they may be, corporations or single individuals.
    Now the questions to be examined are these: Is the State of Louisiana sovereign ? Has the State the right of changing and modifying its form of government? The answers are very simple. Yes ! Can a Legislature bind, by their act, a State Convention, in matters of exemptions which can never form part of contracts ? Are not all the individuals, corporations or single individuals bound to support the public charges ? And can a Legislature exempt them for ever from supporting said charges, so as to set limits to the power of a convention that knows no limit to their power? I submit these questions to the court.
    The exemption claimed by the Louisiana State Bank was granted under the Old Constitution. It is doubtful that, under that instrument, the Legislature had the power to grant such an exemption; but at any rate, they had no power vested in them to extend the exemption beyond the time of the existence of the Old Constitution, and when the Convention that framed the New Constitution revoked the power vested in the Legislature by the Old Constitution, all the exemptions granted by the Legislature were at once revoked.
    Agreeably to the art. 127 of the present Constitution, after the year 1848 taxation shall be equal and uniform throughout the State. No one species of property shall be taxed higher than another species of property of equal value. Can it be maintained, that taxation shall bo equal, if the exemption claimed by the State Bank of Lomsiana is granted ? And can it be maintained that, in matters of exemptions which are always left at the pleasure of the sovereign, be bank has the right of claiming a right superior to that a simple individual could claim 1 No! In matter of exemptions, corporations and individuals are placed on an equal footing; and I ask candidly of your honors, that if a similar advantage had been granted to a citizen under the Old Constitution, if he would be able to enjoy it under the New Constitution ? Surely, no. Then if he could not, how can the bank claim it ? Is it not evidence, that the framers of our present Constitution had in view those exemptions, and that they directly revoked them by the art. 127.
    The charter of the Poydras Orphan Asylum contains an exemption similar to the one claimed by the Louisiana State Bank ; and although they are a corporation established for purposes of charity, while the Louisiana State Bank is established for the benefit of its stockholders, yet it has been doubted that the Legislature had the power, under the authority of the New Constitution, to renew the exemption which tha.t charitable institution had considered extinguished by that instrument. See the journal .of the House of Representatives of January and February. 1850, and the report of Mr. Larue, the chairman of the Finance Committee.
    The same reasoning, applicable £o the State, is equally applicable to a municipal corporation, which is only a delegation of the sovereignty for purposes of public administration. Art. 130 of the New Constitution. On the whole I refer your honors to the following authentic authorities: Providence Bank v. Billings and Pettman, 4 Peter’s Rep. 514. Corporation of the Br>.ck Presbyterian Church v. Mayor, Aldermen and Community of New York, 5 Cowen’s Rep. 538. Stuyvesant v. Mayor, Sfc., of New York, 7 Cowen’s Rep. 605.
    Á bill of exception has been taken by the appellee. The counsel of the appellees intended to introduce evidence to prove that the bank had paid no taxes till this time; but the present tax had been demanded because the Legislature of 1847, 1848 and 1849, have adopted acts extending to the municipal corporations of New Orleans the obligation, that taxes be equal and uniform; and this is the reason for the lax which has been imposed on the bank. That institution does not claim an exemption only for their banking house, but they intend to extend it to all the real estate they possess.

      Hunton and Bradford, for the defendant,
    contended : The Louisiana State Bank was incorporated by an act of the Legislature of Louisiana approved March J4th, 1818, its corporate powers and privileges to terminate with the last day of the year 187Q.
    By the 17th section of the act of incoi’poration it was enacted, that in consideration of the privileges and benefits conferred by this act upon the said bank, the president, directors and company thereof shall pay to this State the sum of one hundred thousand dollars, and that the stock of, and real estate belonging to, the said bank shall forever, during the continuance .of its charter, be exempt from the payment of any State tax, and from the payment of any tax laid by any parish or other body politic or corporate, under the authority of this State. See 1 Moreau’s Digest, p. 6.8. Under this act defendants claim to be exempted from taxation.
    Since the great case of Dartmouth College v. Woodward, it is too late to doubt that a charter of incorporation such as this, is a contract within the meaning of the Constitution of the United States, and that the rights acquired under such a charter are protected by that instrument.
    It is not seriously denied by the counsel of plaintiff that, at the time the Louisiana State Bank was incorporated, the Legislature had tffe right, in consideration of a price paid, to exempt thp bank from taxation thenceforth, or, in other words, to make that contract with the bank evidenced by the act of 1818 referred to ; and since the exemption has been acknowledged an.d acquiesced in during a period of thirty years, we shall assume that the act of incorporation was valid and constitutional. But it is asked: “Had the Lsgislature which chartered the bank the right to bind the Convention which framed the New Constitution in matters of exemption.”
    The court may have observed, that a large portion of the argument presented by the brief of plaintiif’s counsel in this case, rests upon the distinction between a privilege and an exemption. Now we had always thought that an exemption from the burthen of taxation was but a privilege, and generally that a special exemption from any onerous charge was nothing more nor less than a special privilege. Indeed, the very definition of an exemption, as given by Bouvier and other law dictionary makers, is “a privilege which dispenses,” &c., and we cannot perceive that the distinction attempted to be established really exists.
    But, in answer to the question propounded, we say emphatically, yes! The Constitution of the United States declares, that no State shall pass any law impairing the obligation of a contract; and any law of the State of Louisiana, then, made either by the Legislature of the State, or by delegates of the people in convention, which contravenes the provisions of the Constitution of the United States is null and void.
    This case, however, presents really no question involving a conflict between the Constitution of the United States and that of Louisiana, and none between the present Constitution and the act of 1818, passed under the Old Constitution.
    Art. 142 of the New Constitution secures and continues in force all rights, claims and contracts, as well of individuals as of bodies corporate, which existed previous to its adoption, and which are not inconsistent with it.
    The Louisiana State Bank, under the law and Old Constitution, had the right to exercise the corporate powers free of taxation. Is there anything in the New Constitution abrogating that right ? Does art. 127 subject to taxation property not taxable before ? Does it not rather prescribe the rates of taxation upon property which was taxable then and before ? The article, when duly considered, explains itself. It only means, that taxation upon property “on which taxes may be levied” shall be equal and uniform, and not that all property within the State of Louisiana shall be subject to taxation.
    But even if the Convention which framed the New Constitution intended, by ait. 127, to subject to taxation property which had been exempted by the State for a number of years, in consideration of a price paid, of a fair equivalent, they intended to transcend their powers, and to do that which the Constitution of the United States forbade them to do. „
    The State of Louisiana, as well as the parish of Orleans have, heretofore; scrupulously observed the contract solemnly made with the bank by the Legislature in the year 1818. The State has fully kept its faith, but the Municipality Number One, itself a creation of the State, a corporation deriving its powers of taxation solely from the State, claims for itself the right to annul this contract, and in express violation of the provisions of the charter, demanded from the bank the payment of taxes on the real estate it owns within the limits of said municipality, and this, too, on no more plausible pretext or better reason than is to be found in the imiginary distinction between the said bank’s exercising its corporate powers with the privilege of not paying taxes, and its exercising these powers exempt from taxation.
   The judgment of the court was pronounced by

Eustis, C. J.

This is a suit for taxes imposed by the municipality on the property of the Louisiana State Bank. "The bank had judgment in the court of the first instance, and the municipality has appealed.

By the charter of the bank, “in consideration of the privileges and benefits conferred by this act upon the said bank,” the bank undertook to pay to the State the sum of one hundred thousand dollars in ten equal annual payments; and in the same section it is provided, that the stock and real estate, belonging to said bank, shall forever be exempt from the payment of any State tax, and from the payment of any tax laid by any parish or other body politic or corporate under the authority of this Stake.

The tax sought to be exacted, we understand to be imposed on real estate, and the authority on the part of the municipality to impose it, to be asserted to be derived from the State. The exaction would be in direct conflict with the charter.

But it is said, this privilege of the corporation, which was granted for a fair equivalent, is repealed by the 127th article of the Constitution, which provides for equality and uniformity of taxation throughout the State.

The repeal would, under the argument presented, rest but upon an implication. Such We do not understand to be the purpose of this Constitution, which provides that no law impairing the obligation of contracts shall be passed, and that vested rights shall not be divested, unless for purposes of public utility, and for adequate compensation previously made. Art. 109. We think the whole sense and tenor of the instrument excludes any such construction as that contended for.

The judgment of the district court is therefore affirmed, with costs.


text:
    Samuel F. Rice v. Gaspard DeBuys.
    In proceedings under the act of 1st of June, 1846, for contesting certain elections, there is no appeal. Parties are left to their ordinary remedies of quo warranto, or action at law.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      J. M. Wolf, for plaintiff.

      A. Canonge, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an appeal taken by the plaintiff from an order of the Court of the Fifth District of New Orleans, dismissing his petition.

• The proceedings had were taken for the purpose of contesting the election of the defendant to the office of Assessor for the Eighth Representative District of New Orleans, and are only authorized when in conformity with the statute providing for contesting elections of parish officers, passed on the 1st June, 1Ó46.

We understand that by the 4th section of this statute no appeal can be taken in the proceedings under it. Parties are left to their ordinary remedies by quo warranto, or action at law; but necessity appears to require that the possession of the elective offices should be determined without the delays of a law suit.

The motion to dismiss the appeal made by the counsel for the defendant must therefore prevail.

Appeal dismissed, at plaintiffs costs.


author: Preston, J.

text:
    State v. Desmond and E. and O. Connor.
    In capital cases, the jury should not be permitted to separate after they have been sworn, either with or without the consent of the prisoner. The practice is to keep the jury in charge of the sheriff, however long the trial may last.
    Where a prisoner was indicted for murder, and the jury found him guilty of manslaughter, upon a new trial he cannot be again tried for the crime of murder.
    There can be no accessories to manslaughter before the fact. Aiders and abettors are principals, and should be tried as such.
    APPEAL from the District Court of Jefferson, Clarice, J.

      A. W. Jourdan, District Attorney, for the State.

      Michel and Burns, for defendants.
   The judgment of the court was pronounced by

Preston, J.

It has been established in this case, beyond doubt, by the testimony of Michel, Burns, Heffernan, and others, that the jury separated after being sworn in the case, indulged in a crowd in taking refreshments at a bar in the vicinity of the court-house, and were not at the time in the charge of the sheriff or one of his officers. The district judge stated, that there was an irregularity in this respect, but that there was no suspicion that the jury had been, during the separation, improperly influenced or tampered with.

The accused being convicted, Desmond technically, and the Connors substantially, of manslaughter, applied for a new trial on account of this irregularity, which was refused, they were sentenced, and have appealed. As they acquiesced in the very temporary separation of the juiy, we should greatly doubt the propriety of granting a new trial, were it an original question in our courts. But the late court of errors and appeals in criminal cases decided, in the case of the State against Hornsby, that in capital Cases the jury should not be permitted to separate after they had been sworn, either with or without the consent of the prisoner. And it has become the established practice in the State, in capital cases, to keep the juiy in the charge of the sheriff, however long the trial might last. See also the case of the Commonwealth of Massachusetts v. Dr. Webster, 39.

It cannot be denied that this operates as a great hardship upon juries, and that in this enlightened age of confidence in our institutions, we might trust those who are charged with the life and liberty of the citizen, to exercise the solemn trust in a rational manner, and without the apprehension of their being corrupted, even by influence, or violating their oaths, to try the accused impartially, and decide according to the law and evidence. Indeed, there is no occasion in which we so much need the best exercise of our faculties, supported by regular rest and diet, as when called to decide upon the life and liberty of our fellow-man.

But, an enlightened court, organized for the very purpose of establishing uniform principles and practice in criminal matters, having decided that the separation of the juiy, without being in charge of a sworn officer, is fatal to the regularity of the proceedings in a capital case, limiting the decision to that case alone, and the inferior tribunals having in general conformed to the decision, and the Legislature, notwithstanding the hardship upon juries, and the apparent distrust of their independence and integrity, not having provided for their relief, we feel bound to follow the decision, and in this case to direct that the verdict be set aside, and a new trial granted, as was done in the case of the State against Hornsby, which was precisely similar to the present case.

The jury returned a verdict that Desmond was guilty of manslaughter, and that Edward and Owen Connor were accessories. There can be no accessories before the fact in manslaughter. The Connors were not charged as accessories after the fact, but as aiders and abettors of a murder. The jury, evidently, did not intend to acquit them, and yet have not found them guilty of a crime put in issue by the pleadings. The verdict is imperfect, or rather insensible, and is no bar to a further prosecution of the real crime of which they now stand charged. 2 P. Williams 439. Comyn’s Dig., Indictment N.

Desmond can only be prosecuted for manslaughter, having been substantially acquitted of murder. The Connors are charged to have aided, abetted, and assisted him in the act of which he is accused. If he be guilty of manslaughter, and they aided, abetted, and assisted him in the act, they should all be prosecuted together as principals, for the crime of manslaughter.

It is therefore ordered, that the judgment of the district court be reversed, the verdict of the jury be set aside, and that the accused be put upon their trial for manslaughter alone.


text:
    Miles Judson, Adm’r., v. Sarah Connolly and her Husband.
    Where the succession is insolvent the administrator represents the creditors, and may attack conveyances of the property made by the deceased before his death, upon the ground of simulation, although the deceased could not himself have disputed the reality of those conveyances.
    Under the article 1980 C. C. insolvency may be proved as any other fact.
    It is not necessary that the insolvency of a succession should be proved by a tableau of the debts exhibited in court and homologated. The insolvency may be proved by judgments against the deceased.
    Judgments rendered by the State courts are evidence, although the whole record be not introduced.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Halsey, for plaintiff.

      Roselius and G. Schmidt, for defendants.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff alleges that the defendants had in their possession, under simulated conveyances and otherwise, a large amount of property belonging to Felix Connolly, whose succession he administers; that they have sold a portion of said property and received the proceeds; and that they have also received a large amount of rents. He claims the property of the succession remaining in their possession, the proceeds of that which has heen alienated and the rents received.

The defence is, that the administrator cannot maintain this action, because he represents the deceased who could not be heard in a court of justice, if he alleged a simulation to which he was a party; that all the heirs of the deceased are present or represented ; that four of them have accepted the succession unconditionally, and until it is shown that they are unable to pay its debts, it cannot be «Ptt8Íá.eKgd,as insolvent; that if it be insolvent, the administrator is without capagliy&jbftct and a syndic should have been appointed.

The answer,'also, contains a general denial, and a plea of prescription under ai^iple 19§2 C- C. There was judgment in favor of the plaintiff in the first instJflcerand.the defendants appealed.

We have stated the pleadings with precision, because in the oral argument -miAny ¿Joints were raised which are not put at issue by them, and upon which it is therefore unnecessary to express an opinion.

‘The cause of action is similar to that of the same plaintiff against Bridget Connolly, reported in 4th Ann. 169. In that case no defence was made and the judgment was confirmed on a default. On the appeal, the counsel for the defendant made the plea now set up, that the administrator represented the deceased, and could not be heard, because the deceased himself could not have alleged the simulation. He also filed several pleas of prescription. We held, that the succession being shown to be insolvent, the administrator represented the creditors and could maintain the action in their behalf, and being clearly of opinion that the pleas of prescription were not tenable, we affirmed the judgment. We are satisfied with our decision in that case as far as it goes, and we must now ascertain whether there is any thing in the defence set up, and in the evidence adduced in support of it, which will require or justify a different decree in this case.

The simulation alleged is sufficiently proved. But the defendant’s counsel contends that the plaintiff, so far from showing the insolvency of the succession has proved that it was solvent; the heirs having, as he admits, accepted purely and simply, and there being no proof of their insolvency.-

Some of the heirs were minors and could not thus accept. The qualify which the others assumed, in the suit which they instituted against the present defendant, rendered them liable as heirs pure and simple. But the compromise upon which that suit was brought does not affect the right of the' creditors to show íhé' simulation. The heirs of Felix Connolly could not, by accepting the succession’ purely and simply, and leaving nearly all his property in the hands of the defendant, defeat the rights of the creditors in- that property beyond fhe amount of the' share of Sarah Connolly in the succession. The compromise effected between-the heirs of Felix Connolly on the simulation, was not such a partition of the' succession as will compel the creditors to resort to the heirs for payment.-

To prove the insolvency of the succession, the plaintiff offered in evidence copies of judgment rendered against Felix Connolly; to the introduction of which the defendants objected OU various grounds, which we will separately notice.

First, that the insolvency of the succession could only be shown by a tableau of the debts of the succession duly exhibited in the court seized with-it,- and homologated by the court. This principie is recognized in the case of Sample v. Fletcher, 3 N. S. 382, and was undoubtedly the law under the Code of 1808. The consequence was that it was almost impossible to prove the fact of insolvency. To remedy this defect in our legislation, the framers of the New Code introduced in that -work art. 1980, which affected a radical change of the old law. Under that' article', insolvency may be proved as-' any other fact, and we are of opinion that it is sufficiently established by the evidence adduced in this case.

It was further urged, against the introduction of those judgments, that they were not evidence against the defendant, she not being a party to them ; and also that the entire record- of the case, in which-the judgments Were rendered should have been produced.

We have already held,-as our predecessors have done before ment is prima facie evidence of tbe debt against third persi directly attacked' on the ground of fraud and collusion. Fox v. Fox, 4th Ann. 135. Sorapuru v. Lacroix, 1 L. R. 378. But the defendant is not a must be considered as having accepted unconditionally the sui Connolly, and cannot contest the judgments rendered against a third person, the judgments rendered by the' State courts t evidence, although the whole record was not produced. We mrSik therefor take them as evidence of indebtedness, and their amount is sufficient tolüió’ insolvency of the succession.

We have uniformly held, that a prescription established by art. 1982 of the Civil Code, does not apply to cases of simulation.

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


author: Slidell, J.

text:
    William Robertson, Trustee, &c. v. E. R. Travis.
    Whore tho judgment of the court dissolving an injunction and awarding damages is written out with all the necessary specifications, and the clerk only records on the minutes that the injunction was dissolved with damages, the irregularity of the entry on the minutes Í3 not sufficient to annul the judgment.
    Where the defendant in an injunction prays for the dissolution of the injunction with damages, the plaintiff cannot avoid the damages by absenting himself, and suffering a non-suit as to the injunction.
    An agreement between the seizing creditor and the debtor as to the terms of sale does not exempt the debtor from damages, under the act of March 25th, 1831, in case he sues out an injunction against the sale.
    APPEAL from the District Court of Carroll, Selby, J.

      A. N. Ogden, for plaintiff.

      Stacey and Sparrow, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

It is assigned for error, that no legal entry of the judgment was made upon the minutes. The entry upon the minutes was as follows : “Robertson, Trustee, et al. v. E. R. Travis, Sheriff, et al. In this case the injunction is dissolved, with fifteen per cent damages.” The judgment in extenso with all the essential particulars of names, dates, amount, &c., seems to hav,- been written on the petition, or some other paper of record in the cause in the usual manner. Although, under the art. 544, it would have been more regular on the part of the clerk to enter the judgment in full on the minutes, we do not consider the irregularity here of such a nature as would authorize us to annul the judgment. It is proper to observe, that there is no reason to suppose that the appellants were led astray by the informality of the entry upon the minutes.

The judgment commences with the following recital: “The above entitled suit this day came regularly up for trial.” The cause had been previously put at issue by answer. In the absence of any thing upon the face of the record to the contrary, we must presume that the case was duly brought to trial. It appears to have been tried upon the 30th May, and the judgment was signed upon the 31st. The signing was, in this sense, premature, that the party was not thereby deprived, of the usual delay for asking a new trial.

It is said, that as the case was tried in the absence of the plaintiff, the only legal judgment was one of non-suit. This position seems to us untenable in this case. It was a case of injunction, and the defendant ahswered and prayed for damages under the statute. If the plaintiff could avoid damages under the statute by absenting himself at the trial, the purpose of the statute would be frustrated. The judgment in this case went no further than to dissolve the injunction, and adjudge damages against the plaintiff and his sureties.

It is said, that this sale was one by agreement of parties, and therefore does not come under the statute of 1831, which is to be construed strictly. The sheriff in his advertisement states, that he had seized, under two writs of fi. fa. property which he will proceed to sell; and at the close of the advertisement, in giving the terms of sale, slates them as “by agreement of parties.” What the agreement was, under which the sheriff was acting, we do not know, the transcript containing no statement of evidence. We are not prepared to say that any agreement respecting the terms of sale would exclude a creditor from demanding damages for an injunction unlawfully issued. Suppose, for example, the parties choose to agree that the property shall be put up at the first crying at twelve month’s credit, and the sheriff is proceeding under fi. fa. to a sale, and is enjoined without lawful cause, upon what principle can such a case be considered as not within the purview of the mischief at which the statute was aimed ?

It was argued, that we ought to consider the agreement annexed to the petition for injunction, and that it would authorize a reversal of the judgment. This we cannot do. The evidence on which the cause was tried is not before ús, and the answer does not admit the existence or binding force of that agreement.

Judgment affirmed, with costs.


text:
    James A. Gillespie v. Police Jury of Concordia.
    Where an ordinance of a police jury, imposing a certain tax for the construction of levees, is preceded by a preamble in which the police jury assert the unlimited right of imposing such taxes, has been approved by the Legislature, and the tax declared legal, this action of the Legislature does not prevent the police jury from levying such other taxes as may be deemed necessary for the above purpose.
    Where the necessity of a special tax for the construction of levees is alleged to have been produced by the mal-administration of the police jury: This is a question of administration of which the courts cannot taire cognizance.
    A special tax levied by the police jury for the levees upon the lands of persons in the district, is not unconstitutional because of its not being an ad valorem tax.
    APPEAL from the District Court of Concordia, Farrar, J.

      A. N. Ogden, for plaintiff.

      Stacey and Sparrow, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs have enjoined the collection of a special tax, laid in 1848 upon their lands in the parish of Concordia, for the construction of a levee, under the following ordinance:

“ Resolvod, That a special tax be levied of ten cents per acre, on cultivated lands, and of five cents per acre on uncultivated lands within the parish, to be collected as soon as practicable, in cash, and the same to be appropriated to the construction of a levee from A. C. Hender’son’s plantation to the point opposite Ellis’s cliffs, and that the land commissioner of the second ward be, and he is-hereby required to suspend the calling out of hands for the purpose of constructing the aforesaid levee.”

The grounds upon which they rely are, that the police jury had no authority to impose a special tax, and that the tax is unequal and unjust, and in violation of the Constitution and laws of the State. That a law passed in 1842, provided ample means for the making of this and other levees of the same class, requiring that they should be made by requisition ; but that the defendants have, by the passage of illegal ordinances, applied the annual levee tax to purposes not specified in the law. They ask that the defendants be compelled to show whether, since 1842, the levee tax has been appropriated as the law requires. The answer admits the levying of the tax und'er the above ordinance, and denies all the other allegations of the petition. There was judgment in favor of the defendants dissolving the injunction with damages ; and the plaintiffs appealed.

Before going into the merits of the case, we will •premise that the plaintiffs’ counsel admit the light of the police jury to impose an annual levee tax of ten cents per acre on cultivated lands, and five cents per acre, on uncultivated lands, under an ordinance passed in 1841, and that the levee tax for the year 1848 was only half of that amount; so that one-half of the special tax might have been levied under those ordinances, supposing that they were to receive the interpretation put upon them by the plaintiffs.

When, in 1829, a general law relative to roads and levees was passed, a section of that law provided that it should not apply to the parish of Concordia, except go far as adopted by the police jury of that parish, and that the said police jury should have plenary and unlimited power to make such enactments, conoern*nS roads and levees, as they might deem.necessary and proper, including the power to authorize the assessment and collection of taxes which they might deem necessary, on the private land claims within any levee district established ■by them.

A law passed in 1833, exempted all the parishes situated on the banks of the Bfississippi river from the operation of the act of 1829, and authorized the police’jury of these parishes to pass all such ordinances as they might deem necessary, relative to roads and levees, ditches and bridges, and to impose such fines and penalties to enforce the same as they might deem proper and expedient ; those fines and penalties to be recovered and enforced by indictment or information before any competent court.

It appears, then, that ,the power of the Legislature, on the subject of roads and levees, has been delegated to the other river parishes as well as to the parish of Concordia. Under .that delegation, th.e power of those parishes to impose a special levee tax in ca?es of necessity, cannot be doubted ; and the first question for our consideration is, whether the grant of a similar power originally made to the police jury of the parish of Concordia, has been so limited by subsequent legislation, as to leave them in any case without the means of constructing works admitted to be of indispensable necessity.

In 1841, the Legislature passed an act relative to roads and levees in the parish of Concordia. The sixth section of that act authorized the police jury to impose a tax which was not to exceed five cents per acre on cultivated, and three cents per acre on uncultivated lands. In the same year, the police jury passed two ordinances, regulating with great wisdom and foresight, the subject of roads and levees, and decreeing an annual levee tax of ten cents per acre, on cultivated, and fiye cents per acre on uncultivated lands, in violation of the act of 1841.

In 1842, the Legislature passed another act approving and adopting those ordinances, declaring them to have legal force and effect, and repealing the act of 1841. It is urged, that those ordinances have thus become laws of the State, and that they have limited the power of the police jury to the levying of a tax of ten cents per acre on cultivated, and five cents on uncultivated lands, for each year. The two ordinances passed by the police jury in 1841, assert, in the piost unqualified manner, the unlimited power of that body over the subject of roads and levees, and their authority to impose any taxes to carry those powers into effect. The preamble of the act of 1842 shows, that the object of the Legislature in passing it was to remove doubts which had arisen, whether the police jury had power to pass those ordinances, and the act itself recognizing fully the existence of the power, ordains that “ each and eyery part of those ordinances be and the same are hereby approved and adopted, and declared to have full and legal force and effect.”

Now, it appears to ps, that if the most effectual way of discovering the true meaning of a law is, by considering the reason and spirit of it, or the cause Which induced the Legislature to enact it, the act of 1842 cannot be construed so as to limit the powers of the police jury to the provisions of the ordinances. That act recognizes the power claimed by them, and without affixing limits to it, simply sanctions the manner in which it has been exercised. By giving those ordinances the sanction of an act of the Legislature, the police jury have debarred themselves of the right of repealing them at pleasure. But, we do not understand that they have thereby surrendered powers previously vested in them, and not enumerated therein. The power of levying any taxes they may deem necessary, is one of those expressly asserted in the preamble of the ordinances which the Legislature has approved and adopted in all their parts.

The annual lovee tax cannot exceed the limit fixed by the ordinances of 1841; but, in cases of necessity those ordinances do not, in our opinion, take from the police jury the power of imposing a special tax.' Taking a common sense view of the subject, the power of the police jury, though of course not unlimited, should be sufficiently ample to meet all the emergencies which call for its exercise. If, in any case after the proceeds of the annual tax had been expended in necessary works and repairs, sudden abrasions of the bank of the river should make it necessary to construct large extents of levee, we would, with great reluctance, adopt a construction which would deprive police juries of the means of accomplishing that indispensable object. It is true, that the ordinances of 1841 provide for the making of levees, in cases like the present, by a requisition; but, we do not consider this disposition as restrictive of the powers vested in the police jury to adopt other means. Had a requisition been resorted to, as there was no money in the treasury, a special tax would still have been required.

It is urged, that the necessity for the special tax was only created by the mal-administration of the defendants, by dispensing a large portion of the inhabitants of the parish from paying the levee tax, and by the application of the portion paid to objects different from those for which it was intended. The complaint is, that the defendants disregard the act of the Legislature, requiring the levee fund in each ward to be kept distinct and separate, and to be applied to the making and repairing certain specified levees ; that they have made of it a common parish fund; and further, that they have passed an ordinance providing for the payment to each front proprietor of two dollars per rod for the levees constrxxcted by them, or by those under whom they hold ; the effect of which ordinance has been to prevent any thing from coming into the treasury, for the purposes contemplated by the ordinance of 1841.

The answer to these grounds is, that they present questions of administration, which, if entertained in the present form of action, would throw upon us the administration of every parish, and of every municipal corporation in the State. Supposing that a case might be presented in which it would be in our power to redress the wrong complained of; we are satisfied that this is not such a case. Admitting all the acts of mal-administration alleged, it is nevertheless time, that the treasury was empty ; that the work to be constructed was indispensable to the safety of a portion of the parish; and that whether constructed by requisition, or by contract, a tax was necessary to pay for it. Under: that state of facts, we would not be justified in declaring the tax illegal, because it might have been unnecessary, under a better administration of the affairs of the parish. Ye cannot give a remedy by which the local government would be rendered unable to perform its appropriate functions. Egerton v. Municipality Number Three, 1 Ann. 435.

If the power be conceded, it is one of the consequences of our form of government that the correction of abuses, in the administrative exercise of that power, must, to a great extent, be left to the people, who have it once a year in their power to select proper agents. Under the view taken in the case of Second Municipality v. Duncan, 2d Ann. 182, the tax was not unconstitutional, for not being an ad valorem tax; and the ground that it was illegal, because a portion of the land owners of the parish was exempted from it, is not sustained by the evidence.

It was urged, for the first time in this court, that the ordinance imposing the tax was illegal, because it was passed by less than a majority of the members elect of the police jury, in violation of the act of 1847, relative to police juries ; which provides that a majority of all the members elect shall be required to levy any parish tax.' We do not consider the evidence adduced to show the number of members elect for the year in which the tax was laid as conclusive; and, moreover, this is not one of the grounds upon which the injunction was obtained.

For the reasons assigned, it is ordered, that the judgment in this case be affirmed, with costs.


text:
    Same Case — On a Re-hearing.
   The judgment of the court, on a re-hearing, was pronounced by

Rost, J.

In this case, interest and damages having been improperly allowed on the dissolution of the injunction, it is ordered, that the judgment heretofore rendered, be set aside, and that the judgment of the court be as follows:

It is ordered, that the judgment of the district court be reversed. It is further ordered, that the injunction be dissolved, without damages or interest. It is further ordered, that the costs of the district court be paid by the plaintiffs in injunction, and those of this appeal by the defendants and appellees.