author: Manning, C. J.

text:
    No. 5956.
    The City of New Orleans vs. John Davidson et al.
    A debt due to a municipal corporation for taxes, can not be offset, or compensated, by any debt due' by the corporation. Thus the tax due for one year, can not be compensated by an overpayment of taxes made by the debtor the year previous.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Sam. P. Blanc for plaintiff and appellee.

      Ogden & Hill for defendants and appellants.
   The opinion of the court was delivered by

Manning, C. J.

Several suits of the City of New Orleans against-delinquent taxpayers are here cumulated without objection. The collection of the taxes of 1874 was resisted on various grounds, of which one only is now insisted on: viz that each defendant is entitled to oflset any tax which he may owe the City, by the sum he paid to its tax collectors for taxes of 1870 in excess of two per centum on the assessed value of his property.

In 1870 the City assessed and collected .a tax of two and three eighths per cent, on the assessed value of property. The act of March 16,1870 restricted cities and municipal corporations from levying any tax for any purpose exceeding two per centum on that value. Acts 1870, ex. sess. p. 130. The defendant paid the whole assessed tax of 1870, and therefore,'as they allege, paid three eighths of one per cent, more than the City should have demanded. In these cases, this excess amounted to $1,641.36. The defendants plead that sum in compensation of the taxes of 1874.

A tax is not a debt in the usual and ordinary sense of that word. It is not a contract between two parties, but the imposition of a tax is the positive act of the government, binding upon the inhabitants, and does not require their individual or personal consent to enable it to be enforced. Taxes are not demands against which a set-off is admissible, says Cooley. Taxation, 13 and authorities cited in note. They are to be regarded not as a debt, but as a contribution required from the citizen for the support of government. Union Co. v. Bordelon, 7 Annual, 192. Considerations of public policy require that a tax of one year should not be compensated by an overpayment of a previous year. The taxes of each year are laid to meet the exigencies of that year. If they could be reduced by a deduction of such sums as had been already wrongfully demanded and paid, the revenues requisite for the support of government might be diminished so largely as to occasion public detriment. But outside of this public policy, as a matter of law, taxes are not such demands as admit of a plea in compensation.

This does not of course touch the question of the right of the property owner, who has paid to the City a tax illegally exacted of him, to sue for such sum as was wrongfully paid. We are here concerned only with his alleged right to compel the City to compensate her tax of one year by an overpayment of a previous year, and this is condemned both by law and public policy.

Judgments affirmed.


source: Caselaw Access Project

author: Egan, J.

license: Public Domain

text:
    No. 7009.
    Mrs. Caroline Forrester et al. vs. Moses Mann.
    The declaration made by a wife and her husband in a written contract that a certain plantation was her property, is not invalidated by the fact that she was a married woman.
    Contracts made by a married woman personally, or by her authorized agent, ior supplies and overseer’s wages for the benefit of her separate plantation are, if recorded, binding on the crops grown on the plantation that year.
    One who has formed a valid contract can not claim a release from its obligations, on account of an error of judgment, or ignorance of the law regulating the rights and obligations of married women, in this State, when it appears that he had another motive for making the contract, besides the error of law, and no fraud, or bad faith is shown on either side.
    APPEAL from the Seventh Judicial District Court, parish of West . Feliciana. Fbisí, J.

      Wickliffe & Fisher for plaintiffs and appellants.

      W. W. Leake for defendant and appellee.
   The opinion of the court was delivered by

Egan, J.

W. W. Forrester was employed and acted as overseer on the plantation of Mrs. Richardson in the year 1875 at a salary of one thousand dollars. He also sold to her agent, Smith, for the use of the place the same year certain necessary supplies of corn, fodder, seed cane, etc., amounting to $3639. Both contracts were in writing, and recorded regularly, and the amounts were stipulated to be paid as privileged charges out of the crops of the year. A few days before they became due Forrester transferred these claims to the defendant Mann in consideration of a mortgage note of Smith for $2500, besides interest accrued and to accrue, and $1840, which Mann undertook and agreed to pay him by the first of January, 1876. Mann, who was a merchant, also advanced to Mrs. Richardson for the use of the place that year to the amount of several thousand dollars under contract with the same agent Smith, who it seems managed every thing connected with the plantation, crops, etc., and made, and was fully authorized to make, all contracts and to enter into all obligations in relation to it by virtue of a written power of attorney containing the fullest and most minute general and special powers which could be conferred under the law. Mann received and sold the crops of the year and applied the proceeds to the payment of his account, which was kept in the name of Smith, agent, leaving a balance due him of only §195 75. In this account was included a charge of §1000 for the wages of Forrester as overseer. It appears, and is admitted, that Mann paid to Forrester §918 77 of the §1840 agreed to be paid by the written contract between them evidencing the transfer of Forrester’s privileged claims against Mrs. Richardson and the crops raised on her plantation in 1875, to obtain the undivided and undisputed control of which seems to have been his object in purchasing those claims from Forrester. There is some evidence that the latter threatened to seize the crops, unless he was paid, and it is not unreasonable or improbable to suppose that he would have done so but for the agreement with Mann. Mann denies his knowledge of these threats, or that they were made to him, but we do not consider that fact very material. Forrester is dead, and Mann alone is left to testify as to the motives of their agreement. We think, however, they sufficiently appear from the attendant circumstances, and that they were that Mann might without molestation or hindrance control all the crops of the year. The plaintiffs, widow and heirs of Forrester, sued to recove rthe balance due by Mann under that contract, which is shown by the accounts of Mann himself rendered to Forrester, who also dealt with him, to be §921 23. The defendant sets up error and failure of consideration, and a reconventional demand of §2400 on account of the note of Smith transferred to and alleged by him to have been collected by Forrester and moneys paid to him under the contract. The error and want of consideration are based upon the alleged fact that Mrs. Richardson was a married woman at the time the contract for overseer’s wages and the purchase of supplies from him was entered into by Smith as her agent; that the plantation did not belong to her; that the agent had no authority to bind her, and that the consideration did not inure to her benefit. It is further set up that defendant had sued her on the claim for supplies furnished by Forrester, and judgment was rendered against him whereby the obligations of warranty in the transfer became exigible from the latter and his heirs. The fullest possible authority, as we have already remarked, was vested in Smith by a written power of attorney executed by Mrs. Richardson with the authorization of her husband with especial reference also to the making just such purchases and contracts. In this power of attorney, which relates specially to the management and control of the plantation, crops, etc., it is recited that Mrs. Richardson had become the purchaser and owner of the Island plantation, in this parish, at sheriffs sale, this day made, which said property is fully described in the sheriff’s transfer. This is the plantation in question. There is no other evidence on the subject; there is nothing in the record to show that she was not, as she and her husband asserted, the owner, unless it may be said because she was a married woman in 1875. We think this is a non sequitur. It needs no argument to show that a married woman may own, control, and contract for the benefit of separate property. This property was managed and controlled by her agent and in her name, especially to the knowledge of this defendant as of Forrester, as is shown by the fact that he himself credited and dealt with the same agent in that capacity and through him received, controlled, and appropriated to his own account-the crops raised upon the plantation in 1875 by virtue of-no other or greater right than those with which Forrester was clothed, and, indeed, as we have seen, actually collected and received through the proceeds of the crops made on this plantation, the amount of the overseer’s wages by virtue of his transfer from Forrester. It is further shown that he resided in the neighborhood and was on the plantation while Forrester was actually rendering the services; and it is quite evident that he was as well aware of all the facts as Forrester himself, as to the conduct of whom there is not the slightest shadow of fraud or concealment in any thing, but, on the contrary, the most perfect good faith. It is not pretended or shown either that Forrester did not render the services or furnish the supplies which constituted the consideration for the obligations transferred to Mann, nor is their privileged character questioned. On the contrary, both are established. It is manifest that at the time of the transfer Mann expected to collect the amount of both claims out of the proceeds of the crops, and that it is only because they did not produce enough that the present pretext of error is set up. If there was error, it was of judgment, or at most of law, as to the title to the property standing in the name of Mrs. Richardson, and managed for her by an agent of her own selection and creation.

The defendant can not plead ignorance of the law regulating the rights and obligations of married women in Louisiana. In his' position it was his business, and, indeed, we must presume that he was, in fact, much more familiar with the law on that subject than Forrester. It is also evident that whether a personal obligation rested on Mrs. Richardson or not, an obligation and privilege did exist on the crops in favor of the claims of Forrester so transferred to the defendant, and, indeed, it was actually so decreed in the very suit against her by the defendant which is offered here in support of his defense and reconventional demand. It is then evident that his desire to control the privileged claims, and to avoid a conflict of claims was at least one of the causes, and it seems to us the principal cause, of the contract, and not the error of law only, if indeed it existed, as we think is not sufficiently shown in. this record. Domat says, vol. 1, sec. 1240: “If the error of law has not been the only cause of the covenant, and he who has done himself some prejudice may have had some other motive, the error will not be sufficient to annul the contract.” Our own Civil Code, art. 1846, says: “ Error-in law as well as error in fact invalidates a contract ivhen such error is its only or principal cause, subject to the following modifications and restrictions,” among which is enumerated “a contract made for the purpose of avoiding litigation,” which it.is declared “can not be rescinded for error of law.” Judge Story in his Equity Jurisprudence, vol. 1, s. 149, says: “ Where the means of information are open to both parties, and where each is presumed to exercise his own skill, diligence, and judgment in regard to extrinsic circumstances, equity will not relieve,” and “the like principle applies to all other cases where the parties act upon their own judgment in matters mutually open to them.” In like manner he further says: “ Where the fact is equally unknown to both parties; or where each has equal and adequate means of information; or where the fact is doubtful from its own nature; in every such case where the parties have acted with entire good faith, equity will not interpose, for in such cases the equity is decreed equal between the parties.” And again he says: “The like rule will apply to all cases of sale of real or personal estates made in good faith, where material circumstances affecting the value are equally unknown to both parties;” s. 150, same volume. In the next section he announces the general rule to be that “ mistake or ignorance of facts is a proper subject of relief only where it is a material ingredient in the contract, and disappoints the intention of the parties by a mutual error, or where it is inconsistent with good faith. But where each party is equally innocent, and there is no concealment of facts which the other party has a right to.know, and no surprise or imposition exists, the mistake or ignorance, whether mutual or unilateral, is treated as laying no foundation for equitable interference. It is strictly damnum absque injuria.” The principles of our-own law do not materially vary from those thus announced by these-two eminent authors, except as we have seen that with us the error-must have been as to the entire or principal part of the consideration-, even where it is as to matters of law. > The same rule applies where-the error is as to matters of fact. See C. C. art. 1825; see, also, C. C. art.. 1845; while art. 1826, O. 0., provides that “no error in the motive can-invalidate a contract unless the other party was apprised that it was-the principal cause of the agreement, or unless, from the nature of the-transaction, it must be presumed that he knew it.” No such proof is made in the present case, nor does any such presumption arise in a ■transaction for the transfer of rights which it is well known derive their •chief value and security from their privilege upon the crops of the year. Had it not been so in this instance, who would suppose that the defendant would have exchanged for the claims of Forrester his own personal obligation and a mortgage note which he alleges not only to have been -collectable, but actually collected, and both together amounting to very nearly or quite the sum of the claim purchased from Forrester. But, again, not only did the defendant actually collect the $1000 for overseer’s wages out of the crops of the year, but he was allowed by the judgment of the .court in the suit by himself against Mrs. Richardson ■a privilege upon all the property sequestered in that case, and an order for its sale to pay the amount of the other claim transferred, although the court denied him a personal judgment against Mrs. Richardson, the propriety of which denial may well be questioned if it rested upon no other foundation than the facts in the case at bar; upon which facts, at ■all events, must rest the rights of the defendant here.

Now it nowhere appears, and it was the duty of the defendant to have shown the amount realized by him under the judgment in question; non constat but that it may have paid the entire debt; at all events, •the evidence was in his power and he should have produced it. The fact that he has not done so by no means operates in his favor. But aside from this, the account of the defendant discloses many and considerable items which are not shown to have been privileged charges against the crops, and some of which certainly are not; such as payment of premiums on life policies, taxes, whisky, table-cloths, cheese • and crackers, braids, ribbon, corsets, fine-tooth combs, cash paid on Canfield note, and many charges of “sundry merchandise,” without stating its character, while some of the largest items of account, •amounting to more than $500, are proved by the testimony of one witness almost if not quite unsupported; and although the defendant him- ■ self was a witness, he only swore that Scott, Mrs. Richardson’s agent, ■made no objection to the account. This might do as between them, but .certainly not as against the present plaintiffs. Take off, then, the amount of the items not shown to be privileged on the crop, and the defendant received, if not quite enough, at least a very considerable sum, which should have been applied for that reason to the claim obtained from Forrester. Again, were the whole amount privileged, Forrester’s claims were at least of equal privilege; see C. C. s. 217, and it was the duty of Mann to have so treated them, and applied the proceeds of the crops; and if, in addition, we deduct from defendant’s account against Scott, agent, the items not privileged, or not shown to • be so, without going further the full claims of Forrester would be paid from the proceeds oí the crop by imputation of law; and no agreement or imputation, tacit or other, and no other is here claimed between Scott and Mann, could affect the rights of Forrester or his widow and heirs. But from all the facts of the case, as developed in this record, we not only think that it was the duty of Mann to have applied the proceeds of the crops to the Forrester claims for the reason^already stated, but also for the further reason that by his purchase of them he had deprived Forrester of the power and opportunity to protect himself ■and enforce at least his privileges, as he would no doubt have done; and because we think it is evident that Mann bound himself absolutely and with his eyes open, and without any deceit or concealment of any fact by Forrester, to pay the price stipulated; and if there was any error, it *as the result of his own miscalculation as to the amount of the crop, or its proceeds, of which he has not offered any other evidence than his own statements of account, the correctness of the charges in which, as a whole, is not otherwise shown than by the statement that Scott made no objection to the account as rendered, although some of the items are sw'orn to by one of the witnesses, and the defendant ■swears that he received no other sugars or molasses of the crop than those credited in the account.

But, again, the defendant’s recorded contract to furnish supplies was only to the extent of $5000, less than half the amount of his account; to which may be added a note of Mann, Fischer & Oo. for ■$1911 20, consideration not shown at all, while the same act or instrument contains an express stipulation for the payment, out of the crops, of 'the Forrester note for supplies furnished, amounting to $3799, and as will be seen by reference to the note itself, which was of record the same day, bearing eight per cent interest from November 1, 1875. While, as we have already seen, the balance against Scott, agent, was only $195 75 on an account with defendant aggregating within a fraction of $13,000, certainly the defendant could not claim to be paid under any view, and even were Forrester’s privileges not concurrent, as they were, beyond his registry before paying the Forrester claims. This would pay_ the latter claims entire and leave a margin still applicable to the defendant’s unregistered claim.

We will dismiss the ease with the remark that the judgment disallowing the defendant a personal judgment against Mrs. Biehardson, and which is claimed to have operated a breach of warranty as against Forrester, was rendered on the twenty-eighth of March, 1876; and that subsequently, as late as the fourteenth of June, 1876, defendant, who had previously rendered an account showing a balance due Forrester of $945 23, rendered another statement to the same effect, referring to that already rendered, and only deducting from that amount two items amounting to $24, but still stating a balance due of $921 23. This was a$ least singular, if there was any thing in his defense to the present action, which was filed on the twenty-ninth of May, 1877. This admission of indebtedness at least could hardly be said to have been made in error or in ignorance of the. facts, and neither the defendant nor any other witness has testified that it was so made. It is unnecessary to pass upon the plaintiffs’ plea of prescription filed in this court to the reconventional demand, as the latter has no foundation.

The judgment appealed from was erroneous, and is therefore avoided and reversed, and it is now decreed that defendant’s demand' in reconvention be rejected, and that plaintiffs do have and recover from defendant, Moses Mann, nine hundred and twenty-one dollars and twenty-three cents, with eight per cent interest from November 1,1875, and costs of both courts.


author: Egan, J. Spencer, J.

text:
    No. 6601.
    Edward Meyer vs. G. Deffarge. H. Mehnert, Garnishee.
    In a contest between a j udgment creditor and a garnishee, the fact that there is no-note of evidence, assignment of error, or agreed statement of facts, will not justify a dismissal of the appeal, when the record contains the answers of the garnishee to the intex-x-ogatories served on him, the allegation of the creditor himself of the existence of the writ of fieri facias, and other matters of proof, which though not specifically noted as evidence, yet taken together afford sufficient basis for an intelligent judgment.
    Docxxments annexed to, and incorporated with the answers filed by a'garnishee are thereby properly in evidence, as part of his answers.
    Answers of a garnishee are a part of the pleadings, and are before the court withoxxt the necessity of being formally offered in evidence.
    Where a garnishee sets up in his answers, that the judgment debtor’s one third interest in the property seized in the garnishee’s hands was sold and transfex-x-ed to a third person before interrogatories were served on him, a subsequent judgment annulling the sale of the seized property as simulated, and fraudulent, will not render the garnishee liable for the whole amount of the judgment creditor’s debt, but only for the value of the debtor’s interest in the seized property.
    REPEAL from the Fourth District Oourt, parish of Orleans. Houston,

      F. W. Baker and Hornor & Benedict for plaintiff and appellee.

      C. E. Schmidt and Cotton & Levy for garnishee and appellant.
   The opinion of the court on the original hearing was delivered by Egan, L, and on the rehearing by Spencer, J.

On the Motion to Dismiss.

Egan, J.

The plaintiff obtained judgment against his debtor, Deffarge, upon which a fieri facias was issued and Mfebnert garnisheed under it. He was called upon to answer, and did answer two successive sets of interrogatories annexed to two successive petitions. After his last answers were filed the plaintiff, owing to information conveyed in them, filed still another petition, all under color of and treating it as part of his proceedings in garnishment, by which he made the original defendant Deffarge, Mehnert, the garnishee, and one Boubi all parties defendant for the prirpose of annulling and setting aside as simulated and fraudulent an assignment or transfer of all the interests and rights of Deffarge, the judgment debtor, in and to certain assets in the hands of Mehnert. Judgment was rendered accordingly in favor o'f the plaintiff setting aside the transfer to Boubi as simulated, and at the same time against the garnishee, Mehnert, who had set up this transfer as a shield, and whose answers had been traversed by the plaintiffs decreeing him to pay to the plaintiff the amount of his original debt and judgment with interest, costs, etc. h'rom this judgment the present appeal was taken by Mehnert, the garnishee, only Deffarge having offered no defense, and Boubi having filed an answer admitting the simulation, while Mehnert answered disclaiming all knowledge of or participation in the collusion, fraud, and simulation charged to exist as between Deffarge and Boubi. No exception seems to have been taken to this very unusual conjoining of proceedings in garnishment with an action to annul and have declared simulated a transfer which stood in the path of the proceeding in garnishment, and however unusual and calculated to breed confusion, as it has done in this very novel case, we are not disposed to make for the parties exceptions which they have not chosen to make.

As to the garnishee, he can not complain of this manner of proceeding, as no right or interest of his has been affected, and he has no further concern than his own protection. Among the other novelties of the case is the fact that owing to peculiar circumstances attending it, and the death of the original counsel pending appeal, it was reinstated after having been dismissed on the motion of the plaintiff and appellee who has been allowed to file new and additional grounds to dismiss the appeal, which must be disposed of first, and to the proper understanding of which the foregoing statement of the case was'necessary; and as the .grounds taken in the original motion fall by reason of the filing under leave and order of this court of the additional papers and proceedings and a new and more complete and formal certificate of the clerk, the want of which were complained of, we shall proceed to consider the grounds of the second motion.

The first is “that the transcript is imperfect and incomplete by reason of the absence and failure to file within the delay originally given by the court the same documents, the absence of which was originally complained of, as we have since allowed the appellant to bring up by certiorari and file the missing documents, and as upon an examination of the case we do not consider their production necessary to an adjudication of the case as between the plaintiff and garnishee under fieri facias, this ground is not well taken.

.The second ground is that the record contains no note of evidence,, assignment of errors, nor agreed statement of facts on the trial in the lower court upon which the judgment was based. In support of this-ground we are referred to the case of Cooley vs. Broad, 29 An. 71. That was a case between original parties and not a proceeding in garnishment like the present, and under the facts of that case the decision was the inevitable result of well-settled law, and previous adjudications of' this court, and while papers and documents appeared in that record of which there was no note, as evidence, we could take no account of them as such and had nothing to review in the absence of a statement of facts or assignment of errors.

In the case at bar, however, while there is no mere note of evidence or assignment of errors or any agreed statement of facts, we have in the-record the answer of the garnishee to the interrogatories propounded to him, the allegation of the plaintiff himself (who makes the motion) of the existence of a writ of fieri facias, which also figures as part of the record of the original case, all of which has been filed upon the call and to meet the motion of the plaintiff himself, and finally we have the judgment of the court below decreeing and the answer of the transferee admitting the simulation and unreality of the transfer attached. Attached to and as part of the answers of the garnishee are several documents, including the simulated transfer itself, and which arc thus as-fully before the court as if each line and letter were, as indeed in fact and intendment of law they are, sworn to and written down as part of the answers of the garnishee. These answers did not require to be offered in evidence, although they furnished a basis for the action of the-court. They are pleadings in the cause between the plaintiff and the-garnishee, who files and is called upon to file no other pleadings. They are therefore before us also. It is unnecessary to add that the judgment decreeing the simulation being rendered at the instance of the plaintiff himself as part of and in connection with the garnishment proceeding did not require to be filed or noted in evidence any more than did the judicial admission of the fact of simulation contained in the answer of the transferee in the same case. All these together afford sufficient basis for an intelligent judgment in this class of cases, and though not noted as such -furnish together sufficient evidence for the-action of the court.

The motion to dismiss is therefore overruled.

On the Merits.

We have thus discussed iu detail this anomalous case, and it is only necessary to add on the merits that the garnishee has himself presented for our consideration a complete record, showing the plaintiff’s right to proceed by garnishment process and the amount of his judgment debt; that the answers of the garnishee together with the traverse evidence show the existence of sufficient assets and funds in his hands or under his control to pay and satisfy its full amount, and that the judgment-setting aside the simulated transfer of those assets and funds which was-interposed by the garnishee as a shield against the plaintiff’s demand-leaves the garnishee without further excuse or defense. The judgment-of the court below was against him -and in favor of the plaintiff for the full amount of his judgment and interest against the original debtor, Deffarge, and costs of court. We think it did substantial justice under the facts presented to us.

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

On Application for Rehearing.

Spencer, J.

The garnishee was by our decree condemned absolutely to pay the amount of plaintiff’s judgment against defendant, amounting-in principal and interest to about 1600. The record shows his possession of apparently good assets to amount of several thousand dollars and of' §78 53 in money, in which defendant has an interest and ownership of one third. The garnishee complains of this absolute judgment, and we-think he is entitled to relief from it as matter of law; though we think as matter of fact, and in view of the large amount of assets as compared to the amount of the judgment, no'substantial injury could be sustained by him. The rehearing is granted.

On Rehearing.

For the reasons stated above, it is ordered, adjudged, and decreed that the judgment heretofore rendered by this court be set aside, and itisnow ordered and decreed that the judgment appealed from be set aside and-avoided, so far as relates to the garnishee, and that there be judgment in favor of the plaintiff, Edward Meyer, condemning the garnishee, H„ Mehnert, to pay to plaintiff in money one third of §78 53, and to surrender and deliver to the sheriff the one third interest of G-. Deffarge in and to all the assets described in his answers to interrogatories, to be-sold or collected by the sheriff according to law in satisfaction of thefieri facias in his hands against defendant, and that in default thereof said garnishee pay the full amount in principal, interest, and costs of plaintiff’s judgment against the defendant Deffarge.

It is further ordered that the costs of appeal be paid by plaintiff and those of the court below by the defendant.


author: Spencer, J.

text:
    No. 6973.
    Acquilla McElvin vs. Mrs. Elizabeth M. Taylor et al.
    A wife separate in property from lier husband, who is insolvent, is liable, not merely for supplies furnished to her, either in person or to her son or husband, and on her exclusive credit, ior the use ol her plantation, hut also for household expenses, and those for the education ol her children. But she is not liable for her husband’s debts, or lor items o£ indebtedness not contracted by her, and which neither inured to her benefit, nor were legitimate household expenses.
    A citation served on the husband, addressed to the husband and wile, is a good service on the wile.
    APPEAL from the Sixth Judicial District Court, parish of St. Helena. Duncan, J.

      O. P. Amacker and Julius E. Wilson for plaintiff and appellee.

      E. F. Russell & Lee and Jno. M. Bonner for defendant and appellant.
   The opinion of the court was delivered by

Spencer, J.

This is an action by plaintiff on mortgage note for twelve hundred dollars ($1200), made and executed by defendant, a married woman, separated in property from her husband, by judgment of court duly executed. The note was signed and executed with the authorization of the husband, payable to I. W. Cutrer & Co., or bearer, on or before the first of November, 1870, di’awing eight per cent interest after due, and dated May 28, 1870.

The note is secured by mortgage executed also with the authorization of defendant’s husband, on certain landed estate, fully described in certified copy of act of mortgage annexed to plaintiff’s petition.

The plaintiff avers in his petition that the consideration of this note inured to the separate interest and benefit of the defendant, and asks that there be judgment in his favor for amount of said note, with interest and attorney’s fees as set forth in the act of mortgage, and that the land described therein be seized and sold to pay same, with costs.

The answer of Mrs. Elizabeth Taylor, defendant, admits her signature to the note sued on, but denies generally and specially each and every allegation in plaintiff’s petition, and specially denies that the consideration of the note inured to her separate interest and benefit; also pleads payment and prescription of throe and five years.

The defendant being separate in property from her husband, who is shown to be insolvent by the judgment and execution of the wife unsatisfied, and haying the control and administration of her estate, was capable with the authorization of the husband of contracting a debt for supplies and cash advanced for her plantation, which is declared in the act of mortgage to be the consideration of the note. She was, besides, by the terms of articles 2135 and 2389 of the Civil Code bound “ to contribute iu proportion to her fortune and that of her husband, both to the household expenses, and to those of the education of their children,” And “ if there remain nothing to the husband, she is bound to support those expenses alone.”

The accounts of Cutrer & Oo. with the defendant were offered in evidence, and, with the exceptions hereafter noticed, were sufficiently proven by Cutrer’s and his clerk’s testimony. The articles were such as would be needed on a plantation and in a family, and we have no doubt were received and used by the defendant in that way. True, the Articles were not all delivered to her personally, but her son and husband received them and hauled them home. She had arranged with Cutrer & Oo. for these goods, and they were sold entirely on her credit. It would be unreasonable to expect a retail merchant to follow up the goods and see that her son and husband did not divert them.

The accounts of Cutrer and Oo. show to her debit.............$1738 96

To her credit................................................ 480 20

Leaving balance........................................$1258 76

In this account there is included a sum of $523 40, paid on account ■of certain notes of defendant and husband given, in 1867, to T. G. Davidson, before the judgment of separation. The evidence satisfies us that these notes were for the debts of the husband. The account also includes $12 paid to Lea, $7 88 to Human, and $26 to the husband; also $12 difference in exchanging a pistol with defendant’s son. These items were, we think, not proven to have been paid by her order, or to have been for her benefit, or such as she ought to have been responsible for. They amount in the aggregate to $581 28. Deducting which sum from $1258 76 leaves amount due by defendant, $677 48. The district court gave judgment for $1113, with eight per cent interest from maturity of note, November 1,1870, with five per cent attorney’s fees and recognition of mortgage. The amount of the judgment should have been, we think, $677 48.

As regards defendant’s plea of three and five years’ preseriptioh, we think it is not good. The suit is upon a note maturing November 1-4, 1870, and not on the account. This suit was filed February 23,1875. The testimony shows that the original citations were lost, but that they were made out by the clerk, addressed each to the tvife and husband, and ■one served on the husband in February, or early in March, 1875. One was also evidently served on the wife, for on November 2,1875, two days before prescription would have accrued on the note, she filed a motion to dismiss the suit because the citation served on her did not have the seal of the court to it. The court sustained her motion so far as to order a new citation to the wife. It is unnecessary for us to decide what interruptive effect would result from a citation without a seal, since the evidence shows clearly that in February or March, 1875, a citation addressed to the wife and husband was served on the husband in person. This was a good service on the wife. C. P. 192.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended by reducing the principal thereof from $1113 to $677 48; interest and attorney’s fees to be be collected on this last amount, and that, as so amended, said judgment be affirmed. Costs of appeal to be paid by plaintiff, and those below by defendant.


text:
    No. 6105.
    City of New Orleans vs. J. Davidson and J. D. Hill et al.
    The taxes due a municipal corporation, for one year, can not be compensated by an overpayment of taxes made by the debtor the year previous.
    The assessment against a tax-payer is not rendered null by merely omitting from the assessment roll, as exempt from taxation, five hundred dollars worth of personal property, and one thousand dollars of income.
    Where the exemption from taxation fixed by law applies equally, and uniformly to all tax-payers, it can not be said to contravene the constitutional requirement of equality, and uniformity of taxation.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Sam. P. Blanc for plaintiff and appellee.

      Ogden & Hill for defendant and appellant.
   The opinion of the court was delivered by

Manning, C. J.

These are suits of the City f<jr taxes of 1875, which have been cumulated by consent. The defence in this court rests upon two objections, 1. the right to compensate the tax now demanded by such sum as was paid for the taxes of 1870, in excess of what was then legally demandable, 2. the assessment is null, because made in violation of art. 118 of the Constitution, and because of the omission from the rolls of five hundred dollars’ worth of personal property, and one thousand dollars of income, of each person liable to assessment.

The first point has been decided adversely to the defendants in the City vs. John Davidson etals. The second objection remains for consideration.

The constitution requires that taxation shall be equal and uniform, and that all property shall be taxed in proportion to its value. It confers upon the General Assembly the power to exempt from taxation property actually used for church, school, or charitable purposes, and the power to levy an income tax upon all persons pursuing any occupation, trade, or calling, and such tax shall be pro rata on the. amount of income, or business done.

The General Assembly, by act of March 16,1870, exempted, from taxation every income which shall not exceed one thousand dollars a year, and household furniture to the value of one thousand dollars. Acts, ex. sess. p. 38. It also exempted certain property if used for church, school, or charitable purposes. The rolls of the taxes of 1875 were made in accordance with the Act just' cited, and omitted to assess incomes and household furniture cf the value exempted therein.

Perfect equality of taxation is unattainable. A tax on property by valuation is the fairest mode, but that can not be apportioned or collected with absolute justice. It is not essential to the validity of taxation that it be levied according to rules of abstract justice. Abstractly it is unjust that the same property shall be taxed twice, and other property not taxed at all, but it is readily seen that this may and does often happen. It was said in the State v. Poydras, 9 Annual, 165— taxation need not be universal in order to be uniform. Certain objects may be taxed and others exempted, certain occupations may be taxed, and others not, or some occupations may be taxed for a greater amount than others, but as between different subjects of taxation, all in the same class must be taxed equally. The same principle was reiterated in the City v. Kaufman, 29 Annual, 283.

So also exemptions, either by failing to include the exempted property in the subjects of taxation, or by excluding them by designation, do not necessarily destroy the equality or uniformity of taxation. Cooley says — there are some cases in which the legislature has exempted household furniture, tools of trade, etc. and the limited personal effects which very poor persons may be possessed of, but these are to be regarded as rather in the nature of limitations of the general rule than as exceptions to it. Taxation p. 130. And in another work the same writer says — “the constitutional requirement of equality and uniformity only extends to such objects of taxation as the legislature shall determine to be properly subject to the burthen. The power to determine the persons and the objects to be taxed is trusted exclusively to the legislative department, but over all those" the burthen must be spread, or it will be unequal and unlawful as to those selected to make payment.” And in support of this dictum he cites and digests the case of Weeks v. Milwaukie, 10 Wis. 242 which is quoted at length by the counsel of the defendants in this case. Const. Lim. p. 515.

So also in the case in 9 Wis. 410, the name of which is not given us, but the opinion is copied in externo in the defendants’ brief, it is said — “ the rule of taxation shall be uniform, that is to say, the course or mode of proceeding in levying or laying taxes shall be uniform. It shall in all cases be alike. The act of laying a tax on property consists bf several distinct steps, such as the assessment or fixing its value, the establishing its rate, etc. and in order to have the rule or course of proceeding uniform, each step must be uniform. The valuation must be uniform, the rate must be uniform. Thus uniformity becomes equality.”

Gilman v. City of Sheboygan, 2 Black, 510 was a case from Wisconsin, where the constitution requires the rule of taxation to be uniform. The City Council had levied a tax upon all the real estate within its limits to pay the interest on its bonds, issued in aid of a railroad, but bad not levied any tax upon any other kind - of property, and it was proved or admitted that at the time this tax was levied, there was personal property in the City to the amount of three or four hundred thousand dollars. The Court reviewed several of the leading eases in its Opinion and particularly the Wisconsin cases, and held that the tax, having been levied exclusively on real estate, was a discrimination in favor of personal property, and such discrimination was beyond the constitutional power of the legislature.

This Sheboygan case itself came under discussion in Muscatine v. Railroad Co. 1 Dill, Circ. Rep. 536 before Miller J. in chambers on application for injunction. A statute of Iowa had exempted railroad property from all other taxes but one’per cent per annum paid into the State treasury. The constitution of the State declares that all taxation shall be uniform. The Justice says — “in this case there is no attempt to render any species of property liable to taxation for any specific debt (as in the Sheboygan case) but an exemption of the railroad from all other burdens, in consideration of a definite sum, which may be more or less than its share of such burthen. Whether this exemption be forbidden by the constitution or not, I am quite clear that it does not render void the tax which is levied upon other property.”

If the legislature had exempted from taxation one thousand dollars of income, when derived from real estate, or if it had exempted one thousand dollars’ worth of household furniture of those who only owned that much, it would have been a discrimination in the one case against personal property, and in the other in favor of persons who owned but little furniture. Such discrimination- would be illegal, because unconstitutional. But the income of all persons up to one thousand dollars is exempt, and the household furniture of every one of that value is exempt. The defendants have the benefit of these exemptions equally with all other persons. They doubtless omitted from their lists of property for assessment these sums, which the legislature had declared exempt. Where the exemption applies equally and uniformly to all tax-payers, it can not be said to contravene the constitutional requirement of equality and uniformity. The objection of the defendants to the assessment and collection of the City taxes is not well founded.

Judgments affirmed.