text:
    No. 7075.
    James Buckley vs. Wm. H. Seymour.
    A state of tacts brought to the attention of the court which would justify and require a new trial after judgment will justify the re-opening and re-assignment oí the case before judgment.
    ■One who is publicly acting as the deputy of a notary, and whose oath oí office has been administered by the notary himself, is qualified to make demand of paymentand perform the other functions oí a deputy notary.
    Only legal interest will be allowed when a larger interest is not stipulated in writing,
    ^PPEAL from the Fifth District Court, parish of Orleans. Rogers, J.

      Sam. P. ■Blanc for plaintiff and appellee.

      A. J. Lewis for defendant and appellant.
   The opinion of the court was delivered by

Spencer, J.

J. A. Gresham executed his note to plaintiff, with W. H. Seymour as indorser, for $4125..

Plaintiff alleges1 that after various partial payments thereon by •Gresham, there remained due thereon at its maturity $1507 20, which not being paid on due demand, said note was protested, and the indor•ser duly notified. He therefore brings this suit against the indorser.

The defendant answered by a general denial, and the averment that ■Gresham had made payments to an amount which reduced the balance due to $957 20; that there was never any legal demand of payment, protest, or notice of protest, of said note. By supplemental answer he alleged in general terms that Gresham had made other and further payments on said note, and that there was but little if any thing due thereon.

After considerable testimony had been taken on the subject of payments, the court on objection of plaintiff’s counsel to proof by defend•ant of any other defense than that of payment, permitted and required defendant to elect between the plea of payment and that of want of demand, protest, and motion, on the ground that they were inconsistent, 'The defendant elected the latter plea. He complains of this ruling, but reserved no bill of exceptions to this refusal of the judge to hear further evidence on the plea of payment. We need not therefore notice the matter further.

The note was protested on thirty-first July, 1876, and notice of protest served on the next day, first of August; but by clerical error the notary certifies that the notice was served on thirty-first August instead of first August. He and his deputy were called to explain, and did explain, this error. Defendant objected to the proof. It is unnecessary to pass upon the objection, since the whole theory of the defense proceeds upon the assumption that the notice was given or attempted to be given on first August. The theory, as we shall see hereafter, is that the notary on first August left the notice for Seymour in the wrong office, to wit, Shannon’s, and that one Dunham, by mistake, inclosed it in his letter of that date to Shannon in New York.

After the case had been submitted to the court, but before any decision thereon, the plaintiff made application to have the case re-opened, and re-assigned for trial, on the ground that he had since the trial discovered new and important testimony, etc. This application was accompanied by the usual affidavits, of diligence, discovery, materiality, together with detail of facts expected to be proved, etc. The court granted the application, re-opened the case, and re-assigned it for trial on-day of-.

The judge states as reason, that the facts disclosed would have been good ground for new trial, and that therefore he re-opened and re-assigned the cause. We see no error in this. A state of facts which would justify and require a new trial after judgment certainly justifies the re-opening and re-assignment of the case before judgment. The law does not require courts to do vain things — to go on and render judgments which it is manifest they would immediately have to set aside.

The merits of this controversy are narrowed down to two questions—

First — As to the legality of the demand of payment, and therefore of the protest;

Second — As to whether there was in fact a good service of notice of protest on Seymour.

The first question grows entirely out of the fact that the deputy notary, Barry, who demanded payment of the note, was sworn as such by Cohn, the notary, and not by a judge or justice of the peace. It is further urged that Barry was appointed by Cohn as deputy, and by him sworn as such, on sixth January, 1868, and that the offices of both Cohn and Barry, ex necessitate, were vacated by the going into operation of the new constitution in April, 1868. Arts. 150,153, and 158 of that constitution are cited as authority for this proposition. We do not think they support it. It is stated as a fact by defendant that Cohn was re-appointed and qualified anew as notary under the constitution of 1868, but that Barry did not. We think it matter of no moment whether he ought to have done so or not, or whether he did so or not. Notaries and their deputies are officers recognized by law. R. S. 2491 to 2527. Notaries were in 1868 authorized to administer oaths, “ quoad the duties of their office,” R. S. 2493, and to appoint deputies. R. S. 2527.

Whether the notary Cohn had authority to administer the oath to his deputy or not is unimportant so far as third persons and the public are concerned. Barry was in the actual and open exercise of the duties of the office of deputy notary, and the public is not to be expected or required to institute investigations into the regularity and legality of the mode of his qualification. Such a requirement would be absurd in the last degree. The same rule would require every person filing a suit in court to investigate the question as to whether the deputy clerk or deputy sheriff actually discharging duties as such was or was not duly sworn as such. In conclusion, it is enough to say that Barry was an acting deputy notary, under color of authority, and so far as third persons are concerned this suffices to legalize his acts. The demand of payment and protest were therefore legal.

The only remaining question is one of fact. Mr. Cohn, the notary, certifies that on (31st) first August, 1876, he gave notice of protest to Seymour, by leaving the same “ on his desk in his office, he not being in.” Cohn states as a witness “positively” that he served the notice as stated, “ early in the morning of the first August.” It is not denied that he is a correct and truthful man. But the defendant contends that, by mistake Cohn left the notice on Shannon’s desk in an adjoining office; that by mistake one Dunham put this notice into a letter by him written that day to Shannon in New York. The testimony of Dunham and Shannon was taken, and it may be said to establish the fact that Dunham did send the notice to Shannon, and that it did not return to New Orleans until seventeenth August. But we do not think this shows the statement of Cohn to be false. Both might be true; for after Cohn left it on Seymour’s desk it might have been taken into Shannon’s office by some other person. •

Many witnesses were sworn with purpose of showing that Cohn did not come into Seymour’s office on first August, 1876. This testimony was taken in May and June, 1877, and all the witnesses state that they had never been talked to on the subject. The witnesses who are emphatic and positive that Cohn did not come into Seymour’s office that day are Seymour, the defendant, and Killaly, his copying-clerk. These witnesses both swear positively that they were in the office the whole time from 9 A. M. to 4 P. M. of that day, and that it was impossible that Cohn could have come in and they not have seen him. But when we come to compare the testimony of these witnesses they are utterly irreconcilable. As we have stated, Seymour states that he was in the office all day, passing acts and helping Killaly make up his indexes, etc.; that he knew he was there all day without going out, only by reference to the amount of work he did in the office that day; that is his means of knowing, etc. Now Killaly swore that he came to the office that morning at nine o’clock, and produces a memorandum to that effect; that he found the office door open, and presumes it was opened by the colored man who attended the office. He swears that defendant Seymour was not in the office that day 1 Now Seymour swears he was there all day, and helping Killaly. Being asked if any person or persons came in during the day, Killaly said plenty of them, but could not name a single man, but he could swear Cohn did not come. In some respects this witness’s memory was remarkably minute— descending into minutes in point of time, and to trifles in other matters. The judge a quo heard all this testimony and he did not consider it as disproving the truth of Cohn’s statement. Neither do we. Perhaps it was before 9 A. M. that Cohn left the notice, for he says it was early in the morning, and perhaps this accounts for the office being open when Killaly reached it. Mr. Cohn, who had officially and contemporaneously certified, swears positively to doing a certain thing on a certain day, more than a year before. Seymour and Killaly swear that they were in the office all day and did not see him do it. We have no great confidence in the accuracy of a man’s statement who undertakes to swear where he was every minute of a certain day, a year ago, where it is not pretended he was engaged otherwise than in the ordinary routine of his daily business. It is manifest that Killaly’s memory is very bad, indeed, for he swears that Seymour was absent from his office all day, whereas Seymour swears that he was in the office all day from nine to four o’clock, and produces notarial acts passed by him at his office on that day.

Cohn may have deposited the notice before Seymour or Killaly reached the office. He certified officially at the time that he had so deposited the notice and confirmed the truth of his certificate by his positive oath to same effect. Defendant has not disproved by satisfactory evidence the truth of Cohn’s statement. We attach but little importance to Dunham having sent the notice on to New York by mistake, as he swears; and we may add that we give but little credit to his evidence. This record teems with facts’ and circumstances going to show that he was either a remarkably unfortunate man, or else a man who was not unfamiliar with “ ways that are dark.” It is unnecessary to detail these facts and circumstances; suffice it to say that, like the district judge, we prefer to believe Mr. Cohn.

We think, however, that the judgment is for too much by $25, and improperly allows eight per cent interest. The note stipulating no interest, it only draws five per cent from maturity. Plaintiff himself states that he received $2500 in money, and was to allow five per cent bonus thereon, making $2625, and that subsequently he received $17 80 more. This reduces the debt to $1482 20,-instead of $1507 20, as allowed below.

It is therefore ordered, adjudged, and decreed that the judgment, appealed from be amended by reducing the amount thereof from $1507 20 to fourteen hundred and eighty-two 20-100 dollars, and by reducing the rate of interest thereon from eight to five per cent, and ■that as thus amended said judgment be affirmed at costs of defendant in the court below, and at plaintiff’s costs in this court.


source: Caselaw Access Project

author: Marr, J.

license: Public Domain

text:
    No. 6791.
    A. M. Agelasto vs. W. R. Mills. Rightor et al., Sureties.
    Whore an appellee, on the ground of the insolvency of the sureties on the appeal bond, has procured a judgment of the district court setting aside the appeal, (which has been filed in this court and not afterwards dismissed,) he can not subsequently pursue the sureties in virtue of a judgment rendered in the case by this court.
    APPEAL from the Sixth District Court, parish of Orleans. Tissot, J., presiding in place of Iiightor, J., recused.

      Robert G. Rugué for plaintiff and appellant.

      Lyman Harding and J. Livingston for defendants and appellees.
   The opinion of the court was delivered by

Marr, J.

William R. Mills obtained an order for a suspensive appeal from an order of seizure and sale ; and he gave the usual bond, in the sum of $9000, with N. H. Rightor as surety for $4000, and D. W. Eames and Joshua G-. Baker as sureties, each for $2500. Plaintiff moved to set aside the appeal, on the ground that the sureties were insufficient. Pending this motion, on the 4th May, 1874, the transcript was filed in this court, and on the 4th June the district court dismissed the appeal. Mills applied for a prohibition to prevent the execution of the writ of seizure and sale. The usual rule nisi was granted; but it seems not to have been passed upon. The appeal was heard and determined ; and a final decree was rendered by this court on the 30th November, 1874, affirming the order of seizure and sale.

After the decree of affirmance was rendered the sheriff re-advertised the mortgaged property; and on the 6th of February, 1875, part of it, two lots and the buildings and improvements in the Sixth District, was sold for $2000, cash, of which $614 43 were applied to a prior mortgage, §479 78 to the costs, and §895 55 to taxes due, aggregating the sum of §1989 76, and leaving §10 24 to be applied to the mortgage debt, which amounted, up to the day of sale, to §6077 24. The other property mortgaged, a lot with buildings and improvements in the Second District, was not sold, for want of bidders. On the 27th February this property was offered on twelve-months credit, and was not sold, for want of bidders, on account of the prior mortgages exceeding its value; and the-writ was returned by order of plaintiff’s attorney on the 24th of August, 1876.

A rule was then taken on the sureties in the appeal bond, to make them liable for the balance of the mortgage debt, §6067. The sureties answered that they were not liable, because the order granting the appeal had been rescinded, the bond avoided, and the sureties discharged; that the order of seizure and sale had been satisfied by the sale of the mortgaged property; and that there was no personal judgment against Mills.

The district court discharged the rule on the ground that where the appeal was set aside because of the insolvency of the sureties there was no longer an appeal bond, there were no sureties, there was no appeal; and that the judgment setting aside the appeal and releasing the sureties stands unreversed and is; forever final.

If it had been properly brought to the notice of this court that the order of appeal had been set aside by the district court because of the insolvency of the sureties, no doubt the appeal would have been dismissed. If the appellee had directed the attention of the court to the fact that he was arrested by the application for a writ of prohibition in the exercise of his right to enforce the order of seizure and sale, after the order of appeal had been set aside, no.doubt the court would have passed upon the application, and would have dismissed it, and refused to hear the appeal, if the district court correctly decided that the bond was insufficient.

We are not prepared to say that if the appellee fails to have the appeal dismissed in this court, after the order of appeal has been set aside in the district court, and permits the further action of the district court to be suspended by the application for a prohibition, the jurisdiction of this court would be divested, and that its final action and decree on the appeal would be a nullity. The appeal bond is for the benefit of the appellee ; and if he fails to bring to the notice of the court the fact that he is not secured by such a bond as he has the right to require, it does not follow that the court may not validly pass upon the appeal on the merits.

But it is clear that if the appellee procure the judgment of the district court setting aside the appeal for want of a sufficient bond, he has no claim on the sureties, whom he has thus formally refused to accept. It is obvious that the right of the plaintiff to proceed, after the district court has set aside the order of appeal for insolvency of the sureties, is no longer suspended by the appeal; and if he is delayed until the final hearing of the appeal, it must be because of some other act on the part of the appellant, or some omission on the part of the appellee, for which the rejected and released sureties in the appeal bond are not answerable.

The judgment appealed from is, therefore, affirmed with costs.

Rehearing refused.


author: Spencer, J. Manning, O. J.

text:
    No. 7125.
    Lafayette Fire Insurance Company vs. H. E. Remmers.
    A bill oí exceptions need not be taken to the rulings o£ the court in civil suits. It is only necessary to note the exceptions in the note of evidence.
    A party objecting to evidence offered in the court below must see that the objections are stated in the note of evidence; otherwise this court will not consider them.
    The. surety on an appeal bond has the right to show in his defonse that a legal sale of the principal’s property would have satisfied the plaintiff’s writ, or that the fraud of the plaintiff prevented its satisfaction.
    Whore in an application for a rehearing no time is asked in which to file a printed statement of the applicant’s points and authorities, and none has been filed, the rehearing will be refused.
    j^PPEAL from the Fifth District Court, parish of Orleans. Sogers, J.

      Hornor & Benedict for plaintiff and appellee.

      Kramer & Dalton for defendant and appellant.
   The opinion of the court on the original hearing was delivered by Spencer, J., and on the application for a rehearing by Manning, C. J.

Spencer, J.

The plaintiff obtained final judgment in this court against Remmers on a mortgage note for §2800, interest, costs, and attorneys’ fees. See 29 An. Webert was surety on the appeal bond in that case.

Pending that suit, the defendant, Remmers, brought suit in the Fifth District Court of Orleans to recover of plaintiff §3500, amount of a fire policy on property which had been burned, said suit being styled Remmers vs. Lafayette Fire Insurance Company.

Soon after obtaining its judgment against Remmers, the Insurance Company issued execution, seized the mortgaged property, and also the claim and suit of Remmers against itself, then pending as aforesaid. The real estate was bought in at first offering by the Company for $1070, which, after deducting costs, taxes, fees, etc., left a net credit of $378 43 on the suit. The claim and suit of Remmers vs. the Company failing to bring two thirds its appraisement was re-advertised for sale at twelve months. The sheriff returns that at this second offering this claim and suit were adjudicated to W. S. Benedict for one Joseph Mathis for $100, which sum less Certain costs was also credited on the writ, which was thereupon returned unsatisfied. Thereupon the present rule was taken against Webert, the surety, to make him liable for the balance of the judgment against Remmers.

Webert answered the rule by alleging in substance that at said second sale said suit and claim were adjudicated to him (Webert) for $3050, more than enough to satisfy the writ; that by consent of the sheriff he stepped out of the auction-room for a few minutes to get the surety on the twelve-months bond, offering and tendering to the sheriff before leaving $3050 in money as a guarantee for his return with his surety to sign the bond; that the sheriff said he would wait his return, and had made no demand on him or tendered the bond for signature ; that on his return, in about ten minutes, to his amazement he was told that the property had been re-offered, and adjudicated to the agent of the Insurance Company for $100, although said agent had just a few minutes before bid on it to the amount of $3025. He alleges conspiracy between the sheriff and plaintiff, and avers “that by this fraud, perpetrated by plaintiffs on this appearer, through the instrumentality of the sheriff, this appearer has been defrauded out of property adjudicated to him, and of the value of $3500, for which he was entitled to a credit of twelve months, and but for said fraud, combination, and conspiracy between the plaintiffs and the sheriff the defendant in execution would have been entitled to a credit of $3050 on said judgment.”

The rule came on for trial, and the following is the note of evidence :

“Plaintiff offers in evidence the judgment in this case, No. 7315, also the decree of the Supreme Coiut ordering the execution thereof.

“Also the motion of appeal and bond of appeal.

“ Also the writ of fi. fa. and sheriff’s return.

“ Defendant offers the witness now on the stand to prove the allegations of his answers.

“Objected to by plaintiff.

“Objection sustained by the court.

Exceptions reserved by defendant.

“ Rule submitted.”

There was judgment against the surety for the balance of the judgment, $2697 67, with interest and costs.

The surety appeals, and claims that the court a qua improperly rejected evidence to sustain the allegations of his answer.

Plaintiff contends that as the defendant in rule took no “bill of exceptions,” and that as the note of evidence does not set out the grounds of plaintiff’s objections, and as there is no assignment of errors, this court can not consider or determine the question whether the evidence was properly or improperly rejected ; and finally that “it does not appear from this note of evidence, nor is it a fact, that there was any witness on the stand.”

This last proposition is certainly advanced in the very teeth of the record, which declares that he “ offers the witness now on the stand to prove,” etc.

As to the bill of exceptions, the law (Act No. 102,1877,) does not require one to be taken, but authorizes the exception to be stated in the note of evidence.

We think it was the duty of the plaintiff, making objections to defendant’s evidence, to state tkém, and see that they were properly noted. He knew better than any one else what were his objections, and if he did not state them we can not presume what they were or supply them in a case where the record purports to contain a note of the evidence. Perhaps he assigned no grounds of objection, and if so neither the clerk nor defendant is responsible for the record not showing any. If what the defendant in the rule alleged and offered to prove be true, it is manifest that the sale of the property of Bemmers realized more than enough to satisfy plaintiffs writ, and that this proceeding against the surety is wrongful and illegal. We are at a loss to conceive upon what grounds he was debarred from the right to prove the facts alleged. He certainly had the right to show either that plaintiff’s writ was satisfied, or that a legal sale of the principal’s property would have satisfied it, or that the fraud of the plaintiff prevented its satisfaction. Any one of these facts was good cause why judgment should not be rendered against him in this proceeding.

If what he charges be true, flagrant injustice has been done him and his principal, and we are not disposed, upon what is to say the most of it a doubtful technicality, to cut him off from relief.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that this case be remanded to be proceeded with according to law, appellee paying costs of this appeal.

Ok Application por Beheabing.

Manning, O. J.

The application for a rehearing of this cause was filed in time, and with it a statement in manuscript of the reasons upon which the application is founded. No time was asked in which to file a printed statement of the points and authorities on which the applicant relies, and none has been filed. Bule IX makes this imperative: For want thereof,

The rehearing is refused.


author: Srencer, J.

text:
    No. 7213.
    State ex rel. J. P. Becker vs. Judge Sixth District Court.
    No district court o£ the parish of Orleans has authority to issue a writ of injunction to restrain the execution of a judgment rendered by any other district court of that parish. The court which renders the judgment can alone enjoin its execution.
    ^PPLICATION for writs of mandamus and prohibition.

      W E. Murphy for relator.

      Simeon Belclen for respondent.
   The opinion of the court was delivered by

Srencer, J.

Relator, Becker, having obtained judgment in the Third District Court of Orleans against William Winkleman, issued execution thereon.

Frederick H. Quick, alleging that Becker was about to cause the seizure of certain premises belonging to him, obtained in the Sixth District Court of Orleans an injunction restraining the execution of said writ. Relator asks that said court be prohibited from proceeding in said cause.

The only question necessary for us to decide is, whether 'the Sixth District Court had jurisdiction and authority to issue said injunction against the process of the Third District Court:

Act No. 86 of 1870 provides, section one — ■“ That whenever a suit or judicial- proceeding is instituted in any of the courts of the parish of Orleans where such court has jurisdiction, all parties to such suits shall be confined exclusively to such court for the trial of all issues or matters that may arise in the course of such litigation, or out of the judgment rendered in such litigation ; and no other judge shall have jurisdiction to grant orders of injunction, sequestration, or any other order by which the proceeding in such litigation or judgment rendered therein, or property in litigation shall be stayed or in any manner interfered with or interrupted; nor shall any other judge grant any of the above orders in favor of any party not a party to such litigation or judgment, claiming to have an interest therein orto be affected .thereby; but all such orders shall be granted by the judge before whom the original suit or judicial proceedings were instituted.”

The second section makes it the duty of the judge who may have granted such order, in contravention of this act, to immediately (on having the fact brought to his knowledge, ex parte or otherwise) revoke and rescind such orders, either in chambers or open court, and to cause the officer in charge of the execution of such writ to be notified of such revocation, and to return the same' at once, etc. It denounces severe penalties for disregarding its provisions.

We see no reason to doubt that the proceedings in the. Sixth District Court were taken in violation of this mandatory and punitory statute, and are illegal and void.

It is therefore ordered that the provisional writ of prohibition heretofore issued be made peremptory, and that defendants pay costs of this proceeding.


author: Mare, J.

text:
    No. 6863.
    James G. Clark vs. the Board of Health et al.
    'The act No. 37 of the extra session of the Legislature of 1877, regulating the sale of coal oil, petroleum, etc., prescribing penalties for the infraction of the act, and delegating to the Board of Health the authority to enforce the law, does not violate article 114 or article 118 of the constitution of the State; or that provision of the constitution of the United States giving to Congress the power to regulate commerco between the States; or that provision forbidding any State to lay any impost or export duty except what may be necessary to the execution of its inspection laws. Act No. 37 is an inspection law.
    PPEAL from the Sixth District Court, parish of J. Orleans. Rightor,

      McGloin & Nixon for plaintiffs and appellants.

      Kennedy & Austin for defendant and appellee.
   The opinion of the court was delivered by

Mare, J.

Appellants, plaintiffs, dealers in coal oil, in the city of New Orleans, brought this suit to have declared unconstitutional and void an act of the Legislature, No. 37, of the extra session of 1877, p. 60, entitled An act to provide for the gauging and inspecting coal oils, or fluids derived wholly or in part from coal or petroleum; to regulate the sale or disposition of the same; to prohibit, in certain cases, the sale or disposition of illuminating oils or fluids dangerous to life and prop•erty, and to prescribe penalties for violations of this act.”

They also sought to obtain an injunction forbidding the Board of Health .to collect fees, as provided for'in the act, and to execute it otherwise, on the ground that its provisions are in conflict with both the Federal and State constitutions.

Appellees, defendants, excepted that the petition disclosed no cause •of action; and they also answered by pleading the general issue; On rule nisi, the district court refused to grant the preliminary injunction; and, on trial on the merits, there was judgment in favor of defendants •against plaintiffs, from which plaintiffs appealed.

There are no issues of fact involved. The plaintiffs object that the •act in question violates articles llá and 118 of the State constitution; and article 1, section 8, clause 3, and section 10, clause 2, of the constitution of the United States. We shall consider these objections ire their order.

First — Article 114 of the constitution of the State provides that " every law shall express its object or objects in the title.” The first and second sections of the act authorize the State Board of Health, in the parish of Orleans, and the mayors and councils of the towns and cities in other parishes, of not less than 2000 inhabitants, to appoint gaugers and inspectors of coal oils and all illuminating fluids or oils derived wholly or in part from coal or petroleum, and of all fluids commonly known in commerce as naphtha, deodorized naphtha, or gasoline, or benzine; the gaugers and inspectors to be sworn, and to give bond for the faithful performance of their duties; and to receive such salaries-as may be fixed by the Board of Health, or the mayors and councils by which they are respectively appointed.

The third and fourth sections prescribe the duties of these gaugers and inspectors. The fourth section provides that they shall give proper certificates to those requiring such gauging and inspection, duplicates to be furnished to the Board of Health, and it authorizes the Board of Health in New Orleans to collect a fee of a quarter of a cent a gallon, for gauging and inspecting oils not in barrels, and twelve and a half -cents per bárrel, including the replacing of the bung.

The fifth section imposes a penalty for selling or exposing for sale coal oil or illuminating oil or fluid, as described in the first section, not gauged and inspected. The sixth section prescribes the penalty for selling or exposing for sale, or giving or delivering such coal oils or illuminating fluids the flashing point of which is less than 125 degrees of Fahrenheit, unless the package be stamped conspicuously, “ explosive and dangerous:” and the seventh section prescribes the penalty for selling or giving or delivering any such illuminating oils or fluids which have not been inspected, gauged, and stamped.

The eighth section makes it the duty of the Board of Health in, New Orleans, and of the district attorneys in the country parishes, to sue for the penalties incurred by violation of the act; and provides for the disposition to be made of the fines recovered, to be paid to the Board of Health in New Orleans, and to the Oharity Hospitals at Shreveport and Baton Rouge.

The ninth section, the more effectually to carry out the provisions of the act, authorizes the district attorneys in the country parishes, and the Board of Health in New Orleans, at the time of bringing suit, or subsequently, without bond, to obtain a writ of injunction forbidding the defendant in such suit to do or suffer to be done any of the acts on account of which such suit was brought: and the tenth section fixes the date at which the act shall take effect; and repeals all conflicting or inconsistent laws.

If there is any part of this act which is not strictly germain to and. included in the objects expressed in the title, we confess our total inability to perceive it: nor can we discover in it any violation of act 114 of the constitution.

Second — Article 118 of the constitution provides that “taxation shall be equal and uniform throughout the State;” it also forbids specific-taxation; and it requires that all property shall be taxed ad valorem.

There is nothing in this act that can be supposed to be in violation of this article of the constitution except the fee of a quarter of a cent, per gallon, or twelve and a half cents per barrel, which section 4 authorizes the Board of Health in New Orleans to collect.

As early as 1805 an act of the Legislature was passed, regulating the inspection of flour, beef, and pork, fixing the weight of the barrel, the fees for inspection, and penalties for violation of the provisions of the act. In 1816, an act was passed regulating the inspection of tobacco-in hogsheads and casks, fixing the fees for inspection, and prescribing penalties, etc. Hay also was made subject to inspection; and so were weights and measures. These laws have been' revised, and re-enacted;- and they are local regulations; they are now in force. Similar laws exist in all the States; and yet, it is a fundamental principle in all well-organized governments, that taxation must be uniform and equal; and this-' principle derives no additional force by the mere formulation of it in written constitutions.

Inspection laws are a necessity. They have for their object the protection of buyers and consumers against fraud in weights andi measures; and of life and property against the risks of exposing for sale and selling, without proper notice and warning, dangerous commodities, and such articles of food as are unfit for use, or, from their condition, would be injurious to health.

It is admitted, indeed it can not be questioned, that as inspection laws are necessary, it is also necessary to compensate the persons charged with the important duties required of inspectors. The specific-objections to the'act in question are that the fees fixed by section 3 are applicable to dealers in New Orleans alone; and are, therefore, partial;- and that they are not paid to the inspectors as compensation for their services, but to the Board of Health; and it is urged that this feature-makes them a tax.

With respect to this first objection, it is a sufficient answer to say that inspection laws are local. They are specially required at the great marts; and in a crowded city like New Orleans, where immense quantities of the explosive and dangerous illuminating fluids specified in the-•first section of the -act are in the hands of the numerous dealers, and are used in so many houses, and by so many of the inhabitants; where 'liability to explosions is so greatly increased; and where the consequences would be so much more destructive of life and property than' in a small village, or in a single isolated house, there is so much the greater necessity for careful inspection, and for putting conspicuously on the packages in which these fluids are contained marks indicating plainly to dealers and consumers the degree of caution which is necessary to be observed in handling and using them.

In the country parishes, the Legislature deemed it sufficient to authorize the mayors and councils to appoint and to fix the salaries of the gaugers and inspectors; but it also deemed it necessary, in the city of New Orleans, to intrust this entire business to the Board of Health, ■composed, in part, at least, of scientific men, capable of ascertaining the qualifications of the gaugers and inspectors appointed by them, and of seeing that the important duties required of these functionaries are faithfully performed. The Board of Health fixes and pays the salaries; and obtains the means to pay them by collecting the fees provided in the act.

All such legislation falls within the police power of the State ; aind the State has chosen, in view of the grave interests involved, to delegate to the Board of Health the authority and the duty to see that the law is enforced. There can be no reason why the State should not thus provide for the execution of this branch of the police power, as validly ■as it might have contented itself with providing for the appointment of the inspectors by the Governor, or otherwise, and have fixed their feesu It was not unwise to require the Board to take upon itself this inspection, and to make the inspectors dependent upon and responsible to •the Board.

We do not perceive in what respect the public interest suffers any detriment by the special provisions applicable to the city of New Orleans alone; nor do we think that this feature in the act, or any other of its provisions, violates article 118 of the constitution.

Third — Clause 3, section 8, article 1, of the cpnstitution of the United States declares that the Congress shall have power “ to regulate ■commerce with foreign nations, and among the several States, and with the Indian tribes.” Under this clause foreign nations and the several States of the Union have the right to send to our market the products of the soil, and the results of their skill and labor, subject to such regulations and restrictions as the Congress may impose. The State •can not interpose any obstacle to this traffic, commerce; but the State •can protect the health, the lives, and the property of its inhabitants «gainst false weights and false measures: against the improper exposure «nd sale of articles dangerous to life and to property, or injurious to health by their unsound condition and. unfitness for food for man or ■beast. Such regulations do not fall within the terms and meaning of this clause of the constitution; they belong, not to the Oongress, but ho the police power of the State; and. the Oongress can not interfere with •the proper exercise of this power. The inhabitants of other States and foreign countries may send their hay, flour, beef, pork, tobacco, illuminating oils, to our market for sale, and no power in the State can prevent it; but the State can and it is bound to subject all such articles to ■such inspection as will protect buyers and consumers from fraud, health. from injury, and life and property from destruction.

Fourth — Clause 2, section 10, article 1, declares that “ no State shall without the consent of Congress lay any imposts or duties on imports or exports, except what may be absolutely necessary for the execution of its inspection laws, * * * and all such laws shall be subject to the revision and control of the Congress.”

It is clear that the act of 1877 is an inspection law. Not a dollar of the fees goes into the State treasury; and whether these fees are in excess of what would be absolutely necessary or not, they are not a tax. They are the means provided to be used and expended by the Board of Health in the execution of the law. It is not alleged, nor is it proven, that the fees allowed are not absolutely necessary for executing the law; and the presumption is that, having the power to the extent of the necessity, the Legislature has not exceeded that power. But if this allegation were made, the serious question would arise whether it would be cognizable in a judicial tribunal.

Unquestionably, there are some of the prohibitions in restriction' of State power in section 10 of article 1 of the constitution which must be enforced by the judicial power; perhaps all those contained in the first clause of this section; but with respect to the State laws which clause 2 recognizes and does not prohibit, within certain limitations they seem to be subjected to one tribunal only — “ to the revision and control of the Congress.”

It is not necessary, however, to pass upon this question. It suffices to say that in this case there is no allegation, there is no proof, author- . izing any inquiry as to the necessity of the amount fixed by the statute for the execution of the law; nór is there in the act itself any apparent violation of the constitution of the United States.

■ The act is wise and wholesome; and its rigid enforcement may prevent or diminish the number of the shocking accidents from the' incautious use of illuminating oils and fluids with which the columns of the daily press teem.

The judgment appealed from is affirmed with costs.

Rehearing refused.


author: DeBlanc, J.

text:
    No. 7149.
    The Louisiana National Bank vs. the Board of Liquidation.
    The mere faot that certain valid State warrants paid to the State as tho purchase' price of State bonds that had been issued to the freo-school fund, (and which the State had no power to sell,) are in the treasury of the State, and not in tho hands of their owner, is not a ground for a refusal by the Board of Liquidation to fund them. ’
    ^PPEAL from the Third District Court, parish of Orleans. Monroe,

      H. G. Miller for plaintiff and appellee.

      H. N. Ogden, Attorney General, for defendant and appellant.
   The opinion of the court was delivered by

DeBlanc, J.

On the 5th of May, 1871, the Louisiana National Bank loaned the State — to assist it in stopping crevasses, the sum of $20,000, and — to pay that sum — an appropriation was made by the Legislature on the 5th of March 1872. Under that appropriation, and in settlement of said loan and the interest which had accrued on it, the Auditor gave to the bank his warrant for $21,751.10c. With that warrant and a small amount in cash, plaintiff liquidated the price of twenty nine bonds sold to it under act No. 81 of 1872, and which had been issued by the State, on the 1st of July 1857, to the free-school fund. These facts are tacitly admitted by defendant, and fully established by the evidence.

The Bank applied to the Board of liquidation to do one of two things — to either fund the twenty-nine bonds purchased by it, or to issue consols for the amount of the warrant representing the loan made to the State in 1871, and which was surrendered in part settlement of the price of said bonds.

This court having held that the sale of the school bonds is an absolute nullity — 29 A. 77 — the Board properly refused to accede to the first of the Bank’s demands, but it should have granted the other. The loan was made to protect the State against the impending disasters of an overflow, and is — of this there can be no reasonable doubt — a valid and outstanding claim against it.

The only defence opposed to the alternative application of the Bank is that the Auditor’s warrant surrendered as the price of the school1 bonds is in the public treasury, and can be taken therefrom but by direction of the Legislature. That defence is not tenable: the fact that the State is in possession of the evidence of one of its indisputable liabilities, is an additional reason why the as yet unsatisfied and already surrendered warrant should be funded. The State is justly entitled to the possession of the school bonds, but it could not justly keep the money loaned, the warrant delivered for that loan, the cake and the picayune.

In. substance, the decree of the lower court is strictly correct: in form, it is not as complete as it should have been.

It is therefore ordered, adjudged and decreed that the judgment appealed from is amended, and the Board of liquidation ordered to fund the claim evidenced by warrant No. 2222, now deposited in the State Treasury, and drawn by the Auditor to the order of the Louisiana National Bank, on the 31st of May 1872.

It is further ordered, adjudged and decreed that, as amended, the judgment appealed from is affirmed with costs.


text:
    No. 7118.
    John Magner vs. the Hibernia Insurance Company.
    A debtor whose property has been seized, sold and bought in by his mortgage creditor, can not subsequently .acquire a tax title to the property, to the prejudice of the creditor, in virtue of a sale made by the tax collector, for taxes assessed in his name, and which had accrued on the property while he was the owner.
    APPEAL from the Sixth District Court, parish of Orleans. Mghtor, J.

      John S. Tally for plaintiff and appellant.

      Thos. Gilmore & Sons for defendant and appellee.
   The opinion of the court was delivered by

DeBlanc, J.

On the 12th of October 1874, defendant, then a mortgage creditor of plaintiff, purchased — at a sale made by the sheriff to ■satisfy its claim, the property described in that officer’s deed, and— by said sale and purchase — defendant’s claim was but partly extinguished.

On the 15th of March 1875, the Insurance Company took a rule on the sheriff to be placed in possession of the property purchased by it 'in October 1874. The rule was made absolute, and — long after — on the 16th of November 1877, a writ of possession issued from the decree rendered in the rule. On the 26th of that month, the execution of that writ was enjoined by John Magner, on the ground that — on the 1st of June 1876 — he had acquired his creditor’s property at a tax sale.

That property was seized and sold by the State Collector for the ■taxes thereon levied and due in 1874, before the company had bought it at the sheriff’s sale. In the act which evidences the last-mentioned sale, •there is a declaration that the adjudicatee has retained — to be applied to the payment of those very taxes — the sum of 35139.55c.

How and from whom did the Tax-Collector seize the property ? Was 'it from John Magner, who — though he continued in possession of the .same — had then no title to it ? Was it from the company, after the formalities prescribed by law? On Whom were the demands made, the notices served ? We have found no evidence in the record relating to these'facts, and two titles are before us : by both, it is the interest of John Magner which is transferred — : in 1874, to the Insurance Company — in 1876, to John Magner himself.

When, at that date — he purchased and took title to that property, he knew that it had — nearly twenty months before — been acquired by the Insurance Company, which then was and is now its creditor, and he— most probably — knew that — in April 1875, a rule to place said purchaser in possession had been made absolute.

It is true that — out of the price of adjudication of the 12th of October 1874, the Insurance Company had retained an amount corresponding to that of the State taxes of that year, and which outranked its mortgage ; but it is also true that Magner was primarily liable for those taxes, and he could not — by the payment of his own, his acknowledged debt — evict his creditor and divest his title; nor can he successfully urge that — howsoever and under whatever circumstances it may have been made — the payment of such a claim by him, the debtor thereof, and of not a cent more than that claim, against the enforcement of which he was morally and legally bound to protect his creditor and his creditor’s property, could, can or did — as between them, constitute— in fact or in law — the payment of a price and the consideration of a forced sale of his creditor’s property, made for no other purpose than to satisfy a prior legal claim due to the State by the purchaser at that sale. I-Ie had the money to pay the taxes : he could have paid them before, as he did immediately after the sale : but he could certainly not — taking advantage of his own wrong, his own fault — acquire his creditor’s property, seized and sold for his own debt, and do this without paying a single dollar over and above the amount for which he — the debtor — was liable before the adjudication from the Oollector to him, before a sale which he had the means, and which it was his duty and obligation to prevent. •

The deed from the Oollector to Magner recites “ that after having complied with all the legal requisites, the Oollector seized and sold the property at public auction, and that John Magner being the last and highest bidder, it was adjudicated to him for the price of sixty-two dollars and forty-three cents.” 'What, according to the terms of the deed, was thus adjudicated? The right, title, and interest of John Magner in and to said property. At the date of that sale, and so far as disclosed by the record, he had no right, title or interest, in, on or to the same. He purchased, in 1876, what — to his knowledge — he had been divested of in 1874, by the foreclosure of a mortgage granted by himself, by the enforcement of his own obligation.

The taxes for which the property was seized and sold by the Collector were clue by John Magner before the sale from the sheriff to the Insurance Company, and at the date of the sale from the Collector to Magner. They were so due by him — if not to the State — to said company. As lately held by this court, the payment of the price of a sale made under such circumstances is but the payment of a claim for which the purchaser was liable before the sale; and he could not — by failure to comply with his obligation, by retaining the money with which he could have satisfied it — compel the enforcement of his own obligation, and derive, through that enforcement, by merely bidding and paying the amount of the tax due by him, a valid title to his creditor’s property.

30 A. ante.

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

Rehearing refused.


author: Manning, C. J.

text:
    No. 7005.
    E. E. Mailhot vs. Robert Pugh.
    The owner of a plantation is not liable for damages to an adjoining plantation caused by works oreetod on his own plantation, in order to prevent its inundation by a destructive overflow of tlie Mississippi river; more .especially when the owner of the adjoining place refused to co-operate in a common work for the protection of both places.
    One can not claim indemnity for damages which he has contributed to bring about by his own negligence, or culpable indolence.
    APPEAL from the Fifteenth Judicial District Court, parish of Assumption. Whittington, judge ad hoc.

      Walter Guión and Wm. Heed Mills for plaintiff and appellant.

      F. T>. White and L. W. Folse for defendant and appellee.
   The opinion of the court was delivered by

Manning, C. J.

The parties to this suit are owners of adjoining plantations on the right bank of Bayou Lafourche in the parish of Assumption. The plaintiff’s demand is for eight thousand dollars as compensation for damages caused, as he alleges, by the acts of the defendant which occasioned the destruction of his crops in 1874.

The waters of the Mississippi river rose high in that year. There were several-crevasses, and consequent inundations. These two plantations were endangered by the back water, which from the confirmation of that part of the country, was sure to flow in upon them from the rear, and this necessitated the construction of works for their protection.

The cause of action partly rests upon an alleged contract between the “owners of the two plantations to keep up a common line of defence against back water, and upon the existence of a ditch, alleged to -be common to both properties, through which some of the crevasse water passed, and in which was a temporary obstruction, placed there by defendant and by him subsequently removed.

Both of these failed to be substantiated on the trial. There was no proof of any contract between the present owners for a common system of defence, and none to establish a pre-existing contract which would amount to, or would entail, a servitude upon the lands. The ditch is there, but so far from being common, it is entirely on the defendant’s land.

The action resolves itself into a claim for damages for loss occasioned by works erected by the defendant upon his own land to protect it from an alarming accession of water, and from what proved to be an extraordinary inundation. It is matter of public history that the overflow of 1874 carried ruin and devastation to an unusually extensive area of country, spreading especially over the alluvial basin between the Atchafalaya and Lafourche, and causing unprecedented destruction in the parish where the properties of these litigants are situated.

The pivotal inquiry then here is, is the defendant liable in damages for injury, caused by works erected on his own land to save it and the crops upon it from destruction, in an exceptional and pressing emergency.

The plan adopted by the defendant for the protection of his property, and the works erected in carrying it out, was intelligent and systematic. It was not hap-hazard. Nothing was done from mere transient impulse, or the suggestion of a moment, but the plan was conceived as a whole, and so perfected and executed. It also appears that defendant was both willing and anxious to have the co-operation of the plaintiff in maturing, adopting, and carrying out some system of defence, common to both, which each would assist in preparing, and which would equally protect both. Turjeon, the overseer at Mailhot’s place, saw the necessity of a protecting levee being thrown up without delay, and the two proprietors had that matter under consideration. The judge who tried this case says in his written reasons for judgment; — “ On the first of May three interviews between plaintiff and the defendant were had on the subject of building such protecting levee between their two places on the side of the canal towards Mail-hot. Propositions between them were made at one time, an agreement accepted, then rejected, and eventually nothing was done towards building the projected levees.

“ These several interviews, and the conversation which took place thereat, and which is fully set forth by the testimony, will not lead me to believe other than that Mr. Mailhot was well aware of such a protecting levee as was spoken of and contemplated, being required as a means of defense to protect his plantation and cane from inundation by the crevasse water of the Mississippi, and to make it evident that Mr. Mailhot, at the time, could not 'have had any idea or belief that Mr. Pugh, by reason of his levee, dam or otherwise, intended to protect him, Mailhot, from inundation by crevasse water.”

Further on, in relation to the same matter, the judge proceeds;—

“ Plaintiff says it was impossible for him to put up a levee in time, because Pugh positively refused to enter into the agreement. From the testimony I do not understand that Mr. Pugh refused to enter into an agreement with Mailhot. On the contrary, defendant sought plaintiff, and expressed a desire to make an agreement with him for the erection of a proposed levee.

“Mr. Mailhot knew of the crevasses; knew that-the water was coming; was aware that his levee was bad and weak, in fact in almost a worthless condition, and yet, after being advised by his overseer to build a stronger and more perfect levee on his side towards Pugh, to the building of which Pugh had consented and offered to assist him, he refused to do any thing; waits idly during the time. Turjeon says a levee sufficient to protect Mailhot could have been built, at a cost of about fifty dollars, and finally quietly «subsides to the seepage and inundation, merely remarking to Mr. Pugh, “ if I am inundated, I shall hold you responsible for what damage I may sustaiD.”

The defendant, testifying, says his whole object was to protect a part of his crop from the imminent inundation, and that he was desirous of preventing any pretext for complaint, and therefore offered to assist the plaintiff in building a levee between certain designated points, provided a written agreement was made, exhibiting the stipulations and intentions of both parties, so as to prevent any misunderstanding, or pretense of legal obligation arising from effectuating those intentions. This was declined by plaintiff. Turjeon says that at one of the interviews between the plaintiff and the defendant, it was understood that the defendant was to work the pump, which working plaintiff alleges was one of the causes of his losses, and that the defendant also avowed his purpose to remove the dam, which subsequent removal was another cause of the inundation of plaintiff’s land. This last statement was objected to, and a bill reserved to its rejection, which we think well taken, and not necessary to discuss.

An examination of the testimony satisfies us that the plaintiff had in his power his own protection, by a timely adhesion to the system of common defence promptly adopted by his more energetic neighbour, which, if jointly executed with vigour, would have saved both from the devastating floods, which were sweeping on too fast to permit delay. The defendant, failing to obtain the co-operation of the plaintiff, proceeded to execute his own plan by the erection of levees upon his own property, and the construction of works thereon. These caused the damage to the plaintiff, as he alleges, and became the occasion of this suit.

It is disputed by the defendant that the works, erected by him, caused the damage. He charges that the seepage water was sufficient to have produced disaster to the plaintiffs crops, but it will be conclusive of the litigation, if we consider the matter in the light most favorable to the plaintiff, and as if the constructions of defendant had caused the damage.

The jurisconsults and tribunals of France have considered the questions presented in this case, not merely as abstract propositions, or naked principles, but in their practical application to actual events, and the consequences produced by them. France, like our State is traversed by rivers, whose banks are often unable to contain the swollen volume of water pent up between them, and give way under the pressure, or are submerged by the rising flood, until large tracts of country suffer from the inundation.

In Dalbon contre Graveson, it was held that — le propriátaire inférieur a le droit de construiré des digues ou autres ouvrages pour se garantir de ces inondations, lors méme qu’il aggraverait par la les dommages qu’elles peuvent causer aux propriótaires supórieurs. The Court delivering its reasons, or opinion, explain that the principles governing such cases are different from those regulating natural servitudes — que les ouvrages pour se garantir dans Tintórieur de sa propriáté des dóbordements d’un fleuve ou d’un torrent sont régis par d’autres principes que ceux sur les servitudes naturelles — and proceed to declare, Que chacun peut se préserver dans sa propriáté des dóbordements d’un fleuve lors méme que les ouvrages faits pour s’en garantir porteraient prejudice au voisin. * * * qu’en effet il en est du dóbordement des riviéres córame des incursions del’ennemi, dont chacun peut, par le droit naturel, songer a se garantir, sans s’occuper du sort de son voisin, qui n’aurait pas la méme prévoyance. Journal clu Palais, 1813, p. 384. '-And this was re-affirmed later. Duvernoy contre Sampso, Idem, 1861, p. 888.

The syllabus of these two cases is almost in the language of LaTaure when treating of this subject: le propriétaire infárieur a le droit de construiré des digues pour se préserver de l’inondation du torrent ou du fleuve qui borde son héritage encore ses digues fassent refluer Ies eaux d’une maniere prójudicable aux voisins. Edition 1827, p. 655.

Chardon, treating of the obligations of the proprietor, says ; — Tons les ouvrages qu’ils jugent propos a garantir leurs propriótés des desastres d’un débordement, soit en élevant leurs terrains jusqu’au bord du de la rive, soit par des digues, des chaussées, ou des murs construit sur leur propre sol et hors du lit du cours d’eau, peuvent étre executés á leur gré. * * * Il est cependant certain qu’il ne peut ainsi refuser le passage aux grandes eaux qu’en les repoussant ailleurs, et par la ex-posant les autres riverains a supportós les desastres qu’il redoute pour ■■ses héritages, nóanmoins, il use d’un droit légitime, il est d’autant moins responsable des consequences que les riverains peuvent, par de semblables travaux, les óviter; que, s’ils ne le font pas, ils devront s’en prendre, non a ce propriótaire vigilant, ruáis a leur indolence. Droit 'd’Alluvion, 345.

So Demolombe, reiterating what had been taught by his predecessors with striking unanimity, that a proprietor has a right to protect himself from damage by an overflow by the erection of works on his ■own land, even though they should cause the overflow to be more hurtful to his neighbor, continues; — Et lors máme que l’effet de ces travaux, plantations, digues, ou autres, serait, comme il arrive presque toujours, de rendre les eaux plus hostile etplus dommagéablesur autres fonds, les proprietaries de ceux-ci ne seraient pas fondós a se plaindre; car chacun peut en faire autant de son coté ; ce droit de preservation et de légitime défense est reciproque ; il était impossible que la loi imposát aux propriétaires riverains des fleuves et des rivieres l’obligation de laisser dévorer leurs fonds sans pouvoir rien faire pour les garantir. * * * Ces principes, si conformes a la raison et á l’équité, ont óté de tous temps reconnus, soit en droit romain, soit dans notre ancienne jurisprudence frangaise; et ils sont encore aujourd’hui consacrés par l’accord unánime des arrets et des auteurs, tome 11, No. 30.

To the plaintiff’s demand, the defendant opposes these legal principles which we think protect him from liability for any damage that may have been occasioned by the works erected by him on his own land for his own protection. But he goes further, and maintains that the plaintiff’s injury from the overflow occurred, irrespective of any act done by him, the defendant. Turjeon, who speaks intelligently, was on the spot all the time, and was the plaintiff’s overseer at the time, says, the water was in the plaintiff’s field before the pump began to work, or the dam was removed. This was the seepage water, which got into the plaintiff’s field because his levee was bad, as this witness testifies, and besides, the water was passing into the defendant’s field before the dam was. •cut. He says distinctly, in his belief, the dam would have been washed away any how, and we (Mailhot’s place) would have been inundated, and that if there had not been any levee at all made on Pugh’s plantation, the Mailhot place would have been drowned out' much faster.

The defendant explained to the plaintiff his whole plan of defenceagainst the back water as early as the first of May. He had formed the plan on 27th. April, and explained it to Mr. Rogers, his overseer, and directed him to set to work to execute it. It was done. The different levees were constructed, and the water that had collected inside-of them was drained or forced out by means of the pump, upon the-abandoned land outside of his levees. But before the completion of these works, or rather at the very commencement of them, Rogers, finding that the waters were backing up the canal or ditch, which ran parallel with the division line between the two places, but is cut wholly on Pugh’s land, without orders, put up a small dam on the canal. This dam was fifteen or eighteen inches above the water, and was not. intended to be permanent. During its construction, work was hurrying' on the levees. The canal was an open drain for the Pugh plantation, and at the time the dam was placed in it, was the only ditch of that plantation open to the rear. The dam remained until the 12th. of May, when the pump having been erected, and the levees of defendant completed, and the pump ready to start, defendant ordered Mr. Rogers to cut the dam. This was done. At the time of the cutting, under the testimony, it appears the water was running over it twelve or fourteen inches, and had been so running for eight or ten days. The dam cut, defendant’s pump started and drained water from the inside of his levees out, and on to the surface of his abandoned land.

The cutting of this dam, and the continued working of the pump, plaintiff alleges, was the direct and immediate cause of the inundation of his land, and the damage to his crops. The waters commenced to-rise on April 27th., and commenced to fall on May 22d.

It seems certain that if the dam had not been cut on the 12th., it must have given way under the pressure of the constantly swelling volume of water, but if it could be indubitably established that it would not have given way, plaintiff had a right to cut it. • Its temporary location in the canal was intended only to serve a transient purpose, viz to hold the waters in check until the system of connected levees should be completed. Surely the defendant was not bound by any principle of' law or ethics, to sit with folded hands, and see his property engulfed iby the floods that were spreading like a sea all around him, because the plaintiff did not choose to join with him in a plan of common defence, or did not choose to protect himself by works of his own.

The Code rises into the domain of morals, and stamps an ethical .principle with legal sanction, when it declares, that every act whatever of man, that causes. damage to another, obliges him to repair it by whose fault it happened. But the act which one has a right to do, and which an imminent peril requires him to do, to avoid a disaster that is Lurrying towards him, is not a fault. And if it were, he who has by his fault contributed to that of the other — who has by obstinacy or bad judgment, or negligence, or indolence, himself been the author of his -own misfortunes, and through these or like causes, has contributed to produce the condition of which he complains — cannot invoke in his behalf, and for his indemnification, an equitable principle which was intended to apply only for the benefit of those who are without fault in 'the particular matters that form the subject of complaint.

The judgment of the lower court is affirmed.

Rehearing is refused.


text:
    No. 7077.
    A. F. Cochran vs. Ocean Dry-Dock Company. John L. Sterry et al., Third Opponents.
    A claim for taxes by the State will not be allowed when there is no proof of its registry or existence.
    "The city of New Orleans is not entitled to a preference for license dues, unless its claim for the same has been registered.
    'The lessor of land fronting on a river and leased for dockyard purposes, is entitled to the lessor’s privilege on the dock itself, when the dock is attached in front of the land by a permanent staging, and for a permanent purpose.
    ‘The stockholders of a corporation have no right to appropriate any part of its assets to pay salaries due them as officers of the company, or due them on any other account, until all creditors, who are not stockholders, have been paid.
    APPEAL from the Fourth District Court, parish of Orleans. Houston, J.

      Bentinclc Egan for plaintiff and appellant.

      W. W. King, Horace E. Upton, Sam’l P. Blanc, Hornor & Benedict, •■.and Brauglm, Buck & JDinkelspiel for opponents and appellees.
   The opinion of the court was delivered by

DeBlanc, J.

Under a writ of fieri facias issued out of a judgment obtained by plaintiff against defendant, the dry dock and its appurtenances belonging to the latter were seized and sold for §7300. The proceeds of that sale are in the hands of the sheriff, and the object of this litigation is to regulate, between the creditors of defendant, the distribution of said proceeds.

Who are those who claim to be its creditors ?

1. The State of Louisiana, for the taxes of 1874, 1875 and 1876, ¡amounting, in the aggregate, to §493, and two per cent thereon for attorney’s fees. No proof has been introduced of either the existence •or registry of that claim, and it should not have been allowed.

26 A. 592.

2. The city of New Orleans, for a license of 1876, two hundred dollars. The evidence that such a license was due has not been recorded, and the city is not entitled to a preference which can be acquired — as to-third parties — but from the date of the registry prescribed by our constitution and laws. C. 123. 26 A. 80. 350. 592. 28 A. 496.

3. Peter Marcy, as a lessor, $1836.33, with interest and costs. He— in 1865 — leased to one Spencer Field a shipyard fronting on the Mississippi river. The rent of that property, from 1867 to. 1875, was paid by the defendant, and it is manifest that — since its formation — the company has had control of that property and has used it for its exclusive-benefit. The lease was renewed and extended by its own officers. ,

Those who oppose this claim contend that the company’s dock was. in the river, at a distance of sixty or one hundred feet from the bank,, and that Marcy had no privilege thereon, because it was not on the property leased by him. The dock was attached in front of said property for a permanent purpose, and connected with it by a permanent, staging. Without the yard, the dock would have been useless to the-company, and the lessor’s privilege did extend to and embrace it.

5 A 366 A. 452. C. C. 2705.

4. John Gf. Follett and Thomas G. Mackie — as also Spencer Field and J. B. Williams — were stockholders in the Ocean Dry-Dock Company, and their liabilities as such must be satisfied before their salaries as officers of said company. The claims of said Follett and Mackie,, that of N. O. Folger, as transferree of Spencer Field, and of Francisco Yillegas — as transferree of J. B. Williams, may be due, but can be legally paid only out of any balance which may remain of the proceeds in the sheriff’s hands, after a full satisfaction of those creditors who are-not members of said company and who did not share in the division of Its stock. It is in evidence that Follett, Mackie, Field and Williams divided among themselves, in settlement of their salaries twenty-eight, thousand dollars worth of that stock.

“ The stockholders have no right to enter into or participate in any combination, the object of which is to divest the company of its property and obtain it for themselves to the prejudice of the members or creditors. Nor are they entitled to any share of the capital stock, or-to any dividends of the profits, until its creditors are paid.

“The property of the corporation in equity is regarded as held intrust for the payment of its debts; and a sale of its capital stock, and a division of the proceeds among the directors, will not defeat the rights of creditors.” 2 R. R. 573. Field on Corporations, $172 and 173, p. 187., Chicago R. R. Co. vs. Howard, 7 Wall. 392. Jackson vs. Ludeling, 21 Wall. 916.

5. C. B. Johnson is the holder of a note of $1000, signed by Spencer Field as president. This claim was dismissed by the lower court. The evidence establishes that this note was held by Folger until after its maturity. Spencer Field took it from him and placed it in the hands of the company’s attorney for collection against the company. He swore that it was given for a loan from Folger to the company, and that the amount thereof was deposited in the New-Orleans National Bank. The company’s cash-book shows no such entry, and the evidence adduced in support of that alleged loan and of the disposition made of the same is as vague as unsatisfactory. The loan was not authorized by a resolution, and two of the managers and directors swore they had no knowledge of it. Johnson was not even called as a witness, during the trial, to sustain bis own demand. His silence and the circumstances which surround Field’s course as to that note, justify the belief that said note represents a fraction of the claim which he considered he could justly realize from the company. He was — he said — under the impression that — as president of said company — he could not sue in his own name, and we are left under the unremoved impression that he alone has an interest in the judgment obtained by Johnson. That judgment entitles him to only a proportionate share, in any balance that may remain to be distributed among the stockholders.

6. As to those creditors who are not stockholders or the transferrees of stockholders, and who have caused execution to issue out of the judgments rendered in their favor, they have the privilege which results from their respective seizures and must be paid — after satisfaction of the costs incurred in this case and the lessor’s claim — in the order in which their seizures are levied. The creditors to be so paid are A. F. Cochran, A. Martin, G-. Lauson, John L. Sterry, Forstall & Delavigne and Peter Fink.

7. After satisfaction of the judgments referred to in the preceding paragraph, the claims of the city of New Orleans, Bentinck Egan and H. Cartens are the next in rank, and must be paid out of the proceeds of the sale; and any balance then and thereafter remaining in the hands of the sheriff, shall be applied to the judgments of C. B. Johnson, Thomas G-. Mackie, J. F. Follett and Francisco Villegas, in proportion corresponding to the amounts of said balance and judgments. • As stockholders or the transferrees of stockholders, after maturity of the transferred claims, the four last-named parties did not and could not acquire any preference over one another.

Of all the appellees, Bentinck Egan is the only one who has asked an-amendment of the judgment of the lower court, and we cannot — as suggested — postpone the distribution of the proceeds of the sale, in the interest of those who have not appealed. To do that, we would have to remand the case.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court is amended as follows: Out of the proceeds of the sale retained by the sheriff, and after paying the costs incurred in this case, in this and the lower court, he shall pay the seizing and opposing creditors in the order hereinafter indicated, to wit:

1st. To Peter Marcy, as lessor, the several sums, with interests and costs allowed him by the judgment appealed from.

2d. In the order of the seizures levied by them, the judgments obtained by A. P. Cochran, A. Martin, G. Lauson, John L. Sterry, Forstall and Delavigne and Peter Pink, with the interest, and costs to which they are each entitled.

3d. To the city of New Orleans two hundred dollars — to Bentinck Egan five hundred and ninety dollars, to Brady and McLellan two hun ■ dred and forty-seven dollars and thirty cents, and to Henry Cartens one hundred twelve dollars and seven cents.

4th. To Prancisco Villegas, J. P. Follett, Thomas G. Mackie and C. B. Johnson, the balance of the proceeds of the sale, in proportion to the amount of their respective judgments.

It is further ordered, adjudged and decreed that the opposition of the State of Louisiana is dismissed as in case of nonsuit, and its rights specially reserved, and that — as hereinbefore amended — the j udgment of the lower court is affirmed.

Rehearing refused.


text:
    No. 5523.
    L. C. Perret vs. Alice King.
    A stipulation made by the vendee of a newspaper to pay “ all of the outstanding liabilities” of the paper, will not make the vendee liable for the damages for libel subseauently recovered against the vendor, in a suit pending when the sale of the paper was made.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      Labatt & Aroni and W. F. Mellen for plaintiff and appellant.

      Wm. O. Denegre and Chas. E. Schmidt for defendant and appellee.
   The opinion of the court was delivered by

Marr, J.

In March, 1869, the plaintiff, appellant, instituted suit against Charles A. Weed, the owner of the “ New-Orleans Times,” a newspaper conducted by him, to recover $10,000 damages for libel. There was a verdict and judgment in favor of the defendant in that suit. Plaintiff appealed; and in March, 1873, this court reversed the judgment of the district court, and awarded to plaintiff $15,000 in dam-

ages against Charles A. Weed, proprietor of the newspaper styled “The Kew-Orleans Times.” 25 An. 170.

In December, 1872, Weed was indebted to Mrs. Alice King, his vendor, in a sum exceeding fifty thousand dollars, on account of the price of the “ Times ” establishment; and he owed other debts, one to J. H. McKee for $7000. On the 13th December, he sold the entire •“ Times ” newspaper establishment to Mrs. King, with all the assets, in consideration of which Mrs. King assumed the payment of “all the outstanding liabilities of the said newspaper known as the New-Orleans Times.”

She also agreed to pay the debt due to McKee, and to cancel and return Weed’s three notes in her favor, owned and held by her, each for $25,000, on one of which $20,000 had been paid.

This suit was brought to recover of Mrs. King the amount of the judgment in favor of plaintiff against Weed, with interest and costs, upon the allegation that it was one of the outstanding liabilities assumed by her in her agreement with Weed.

In her answer Mrs. King, after general denial, and admission that she was the owner of the “ Times,” specially denied that she had ever “ stipulated or contracted or agreed to assume the payment of plaintiff’s claim against C. A. Weed.”

There were objections taken and reserved to portions of the parol testimony offered on the trial, which it is not necessary to notice now. 'This testimony tended to show what liabilities Mrs. King had assumed. The agreement offered in evidence was a copy.published in the “Times” newspaper. The original had been lost or mislaid: and it differed from the original only in that there was attached to the original a list of the liabilities to be paid by Mrs. King.

Prima facie, this assumption by Mrs. King would be limited to what the parties understood as debts incurred in and about the conducting of the paper. Mrs. King’s object was, manifestly, to secure, as far ■as she could, the large sum due to her on account of the price ; and Weed’s object was to rid himself of his personal liability for the debts •which were acknowledged to be due, and which he desired to have paid. Whatever might be the amount so assumed by Mrs. King, it would •diminish to that extent the net value of the establishment to her ; and It would diminish the sum which would otherwise have been applicable to Weed’s other debts, or to his other purposes, in the event that the ■value of the establishment was in excess of the debt due to Mrs. King.

It does not appear at what date, precisely, the verdict and judgment in favor of Weed were rendered; nor when the appeal was taken : but the case was pending on appeal in December, 1872, when Mrs. King became the proprietor. The proprietor of a newspaper, sued for libel, would not rank that claim as one of his debts, nor would he, in disposing of his property, be inclined to reserve from the price a sum sufficient to cover such demand. He could not know, nor could the purchaser know, what amount might be awarded. The demand was for ten thousand dollars, with interest from March, 1869, and costs ; so that if the seller had understood, and the purchaser had understood, that such demand was to be treated as part of the price, and assumed by the purchaser, the amount reserved would have been in excess of $10,000.

In this case there was a verdict and a judgment in favor of Weed,, exonerating him from liability. The appeal did not set aside that judgment ; and it would require very positive proof to show that either Weed or Mrs. King allowed this claim to enter into their estimation. Weed wished to pay what he considered his debts, liabilities. The books of the “ Times ” establishment showed the amount of the liabilities and of the assets: and an agent of Mrs. King had been in the office, “in. possession of the whole newspaper, as the representative of Mrs. King,” from the death of her husband. Weed desired to avoid being forced into bankruptcy. The “Times” establishment had been seized for the debt due McKee; and it was necessary to make some arrangement by which Mrs. King could be protected, and the threatened bankruptcy avoided. This agreement was the result of that condition of affairs.

If one should read the assumption clause in the agreement between Weed and Mrs. King, and the petition and answer in this case, and the decision of this court in March, 1873, as reported in 25 An. 170, his impression would be that a judgment against Weed, who had been the proprietor of the “ Times ” newspaper, for damages for a malicious libel, was not one of the outstanding liabilities of the “ said newspaper ” in December, 1872, when Mrs. KiDg again became the proprietor. In libel suits the verdict of a jury in favor of defendant creates a very strong presumption of the absence of right to recover. The debts and liabilities of the newspaper, in general business parlance, would be construed to be such as created some legal or equitable right or lien upon the property, the types, presses, stock, etc.: such as wages, sums due for paper and other materials and supplies, and the salaries of editors and writers. There was no lien or equitable right upon the property, more especially against the vendor, Mrs. King, in favor of the plaintiff, who had been injured in his feelings, perhaps in his reputation, by the malicious wrong of Weed ; and the interpretation which would make Mrs. King liable to plaintiff in this case, on the assumption in her agreement with Weed, is not that which the language necessarily imports ; nor is it either j ust or reasonable.

If the case be considered without reference to the testimony objected to, the pretensions of plaintiff would be so extraordinary that they could not be allowed. We think, however, it was competent to prove by the testimony of Green, who kept the books, who was Mrs. King’s representative, and by Mr. Hunt, who, as her attorney at law and in fact, made the agreement with Weed in her behalf, that there was a list of debts, an estimation of the liabilities to be paid by Mrs. King, with, reference to which this contract was made; and that the claim of plaintiff was not considered or taken into the estimation by either party.

The judge of the district court concluded that the liabilities of the newspaper, assumed by Mrs. King, in the absence of proof to the contrary, would be those arising ex contractu, not such as arose ex delicto; and this is our view of the law, and our interpretation of the agreement..

The judgment appealed from is therefore affirmed with costs.

Rehearing refused.