author:
Buchanan, J.
      Spopford, J.

text:
    City of New Orleans v. The Commercial Bank of New Orleans.
    Article 128 of the Constitution has reserved the right of the Legislature to exempt any property it deems fit, from taxation altogether. But if it tax at all, then it must tax equally, or in a uniform ratio according to aD assessment legally made, all property of the same description, upon which a tax is levied.
    I have never considered the Article 123 of the Constitution, to be applicable to the exercise of the taxing power, by municipal corporations, for local purposes. — Spofford% J.
    from the Fifth District Court of New Orleans, Augustin, J.

      Labatt & Eustis, for plaintiff.

      E. Eawle, for defendant and appellant.
   Buchanan, J.

This is a suit instituted for city tax on real estate and slaves belonging to defendant, for the year 18S2.

The defence is, that the property of the defendant is exempt from any taxation by the city of New Orleans, according to an Act of the Legislature, approved 17th March, 1852.

The Act of the Legislature, pleaded by defendant, provides, that all the property held by the Commercial Bank of New Orleans, for the purpose of transacting their business and supplying the city of New Orleans with water, be and the same are hereby exempted from any taxation by the city of New Orleans, provided that all charitable institutions in the said city be supplied with water, free of charge.

In this court, a point has been made by plaintiff, which does not seem to have been urged in the court below. It is, in effect, that the Act of the Legislature exempting defendant’s property from taxation, is contrary to that provision of the Constitution, which declares that all taxation shall be equal and uniform.

It is manifest, that this constitutional provision cannot be invoked by plaintiff, in the present case. The Article 123, which contains it, has also explained the meaning of the provision in a mode which leaves no room for doubt. All property, says the Article, on which taxes may be levied in this State, shall be taxed in proportion to its value, to be ascertained as directed by law. No one species of property shall be taxed higher than another species of property, on which taxes shall be levied.

It is clear, that this Article has reserved the right of the Legislature to exempt any property it deems fit, from taxation altogether. But if it tax at all, then, says the Constitution, it must tax equally, or in a uniform ratio, according to an assessment legally made, all property of the same description, upon which a tax is levied. Thus, in the case of Cumming v. Police Jury of Rapides, relied upon by plaintiff’s counsel, the lands of the inhabitants of a particular district of the parish of Rapides, were taxed specially by the Police Jury of the parish, in addition to the tax levied upon the lands of the same persons, in common with the lands of all other inhabitants of the parish. In other words, the inhabitants of that district were assessed for two taxes, while those of the other districts of the parish were assessed for but one, for property of the same species; which was held to be unconstitutional. It is at once seen, that there is no analogy between the case stated, and the case at bar.

But the plaintiff has put his right to recover upon the ground, that defendant has not complied with the proviso found in the Act of the Legislature in question ; and on this point, it has been proved, that although the defendant supplies water, free of charge, to those charitable institutions situated on the line of its water pipes, yet there are various other charitable institutions which it neglects, and some of which it has even refused to supply, on the ground that said institutions are in parts of the city not traversed by its pipes.

We think the plaintiff has mistaken the legal consequence of such neglect and refusal. The Act of the Legislature confers a privilege upon the defendant, coupled with an onerous obligation. The privilege is an exemption from municipal taxation. The obligation is a gratuitous supply of water to all charitable institutions in the city of New Orleans. Now, it is obvious that the obligation was not intended to enure to the benefit of the city corporation ; but rather the contrary. For the apparent gratuity is in reality defrayed by the city, in the deprivation of a prolific source of revenue. So far, therefore, from being interested in enforcing the performance of the obligation imposed on defendant by the Act of the Legislature in question, the. city has a direct adverse interest. The parties in whose favor the stipulation has been made, are the charitable institutions of the city, severally. And every party coming under that denomination has, by law, an action against defendant to enforce the obligation. 0. P., Article 35. Considering the Act of 17th March, 1852, as a contract, there can be no dispute of its having been accepted, cum onere, by the defendant. The defence pleaded in this action, is conclusive proof of that fact. How, then, can the city treat it as a nullity ?

It is therefore adjudged and decreed, that the judgment of the District Court be reversed; and that there be judgment for defendant, with costs in both courts.

Spopford, J.

' In addition to what is said in the opinion of Mr. Justice Buchanan, I would remark that I have never considered the Art. 128 o.f the Constitution, to be applicable to the exercise of the taxing power by municipal corporations for local purposes.

Note. — Merrick, O. J., took no part in this decision, not having been present at the argument.


source: Caselaw Access Project

author: Buchanan, J.

license: Public Domain

text:
    J. Michael v. Mutual Insurance Co. of Nashville.
    A foreign Insurance Company, doing business in New Orleans, through an agent, cannot be permitted to frustrate a claim in Louisiana upon a contract made with it, by revoking the power of its agenton the eve of the institution of a suit for a loss, of which it has been notified.
    Insurers are estopped from denying payment of the premium where there is an acknowledgment in the policy, unless they can show that the acknowledgment was made in error, by fraud or du-
    Where insurers plead non-payment of the premium as a bar to recovery on a policy, and in a sup. plemental answer alleged misrepresentation aud concealment, the first is waived.
    When premises insured against loss by fire have been thoroughly examined by the agent of the insurers, itis conclusive upon the insurers as to whatsoever is apparent.
    from the Third District Court of New Orleans, Kennedy, J.

      Roselius, for plaintiff.

      Semmes, for defendants and appellants:
    1.The agent, on whom service of citation was made, was not authorized to stand in judgment for defendants. The power to appear in court is one of the most important that can be conferred, and is equivalent to that of alienation. C. C., 2965, 2966; Fusilier v. Robin, 4 An.,.61; Barnes v. Profilet, 5 An., 118; Sloan v. Menard, 5 An., 218.
    2.The agent’s power was revoked before the suit was brought. C. C., 2998.
    3.He could not at any time delegate his authority to another to receive payment of premiums. 2 Mass., 237; 15 Pick., 302 ; 11 Howard,222 ; 1 Hill, 505 ; Story’s Agency, s. 14.
    4.Unless expressly authorized, an agent can receive in payment of a debt due to his principal nothing but money. 7 M., 317; 2' An., 797: 5 An., 157 ; Story’s Agency, s. 109; 4 L. R., 337; 6 L. R., 85; N. S., 145; 5 An., 157.
    5.There was misrepresentation and concealment, (Arnold, 516; 17 Ward, 359; 12 Johns, 517,); and whether the concealment was accidental or intentional, makes no difference. 1 Arnold, 536; 8 Peters, 567; 2 R., 266; 9 L. R., 163.
   Buchanan, J.

Plaintiff insured a stock of goods in his store at Bayou Sara against fire, for one year, viz., from the 3d February, 1852, to 3d February, 1853 The store was destroyed by fire and the stock of goods consumed, on the 27th August, 1852. This suit was instituted oti the 14th October, 1852, on the policy of insurance, executed and signed at New Orleans, by 'William A. Johnson, as the agent of the defendants, a company domiciled in Nashville, Tenn. The petition and citation were served on the 8th November, 1852, on the said Johnson, who filed, for exception, that he was no longer the agent of defendants, “ the agency of said insurance company in New Orleans having- been some time since withdrawn.” In support of said exception a telegraphic dispatch was given in evidence, dated Nashville, 29th September, 1852, and received in New Orleans the same day, of the following tenor: “ Trustees have withdrawn agency at New Orleans, decline risks after 1st October.”

The District Judge properly overruled the exception. A foreign Insurance Company, doing business through an agent in New Orleans, and taking risks in Louisiana, cannot be permitted to frustrate a claim in a Louisiana court upon a contract made with it, by revoking the power of its agent on the eve of the institution of a suit for a loss, of which it has been notified. Such a proceeding savors of bad faith. The dispatch in question is even suspicious and contradictory in its terms. On the 29th September, Johnson is informed that the trustees have withdrawn their agency at New Orleans; and yet he is authorized to receive new risks on their account up to the 1st October, inclusive, being full two days later than the date of the dispatch and of its reception.

The exception being overruled, the defendants appeared, by counsel, and filed their answer, denying their liability, on the special ground that the premium had not been received by Johnson, their agent, and that said Johnson was withouMutualt power to bind them “until the actual payment of the premium of insurance.”

It is proved that plaintiff paid the premium upon the policy sued upon to the person from whom he received that policy, and who appears to have been an itinerant insurance broker, through whom this contract was made between the parties, one of whom resided at Bayou Sara and the other at New Orleans. Defendants entrusted the policy to this itinerant broker for delivery to plaintiff, and he was the proper person to whom to make payment of the premium.

Besides, the defendants are estopped by the acknowledgment contained in their contract from denying the payment, unless they can show that the said acknowledgment was made in error, or induced by fraud or duress, nothing of which is pretended. This acknowledgment is in the following words: “ In consideration of ninety-three dollars and seventy-five cents, paid to William A. Johnson, their authorized agent, by the insured hereafter named, the receipt of which is hereby acknowledged,” etc.

It was, perhaps, unnecessary for us to have noticed this plea of non-payment of the premium, as, by a supplemental and amended answer, the defence has been put upon a different ground, to wit, that the plaintiff was guilty of misrepresentation in his discription of the premisos insured, and concealed essential particulars, which, if known, would have prevented defendants from insuring at all, or only at a great increase of premium. The first plea, which was, in substance, that there was no contract, is inconsistent with the second, which alleges the contract to be void for fraudulent concealment; and, consequently, according to correct rules of pleading, is to be viewed as waived by the amended plea,

Upon this defence it is proved that plaintiff, in his application for insurance, made no mention of the fact that there was an eating-house, bar-room and billiard saloon kept by another person in another portion of the building in which jhis dry good store was situated. It is proved that the premises were thoroughly examined by the insurance broker through whom plaintiff’s application was transmitted; and such inspection is declared by a President of an Insurance Company, examined as a witness for defendants, to be conclusive upon the latter.

It is therefore adjudged and decreed, that the judgment of the District Court he affirmed, with costs.

Re-hearing refused.

Note. — Mekkick, 0.. J., not being present at the argument, took no part in this decision.


author: Voorhies J.

text:
    Succession of Charles Fortin.—Louis Fortin and Armand Duplantier, Opponents.
    Mad. F. eonveyed her interest in certain property to a married son, in consideration of a life annuity. By the Court: It is evident that the transaction which took place between the parties was , not intended, as understood by them, to bean onerous donation, but as it purports to be, a contract of annuity for life — rente armuelle 'Qiagére. As this property was acquired during the marriage, it belonged to the community, and the community was, consequently, liable for the payment of the annuity — or rente constit/uée.

    The admission by the widow of the son, that the property conveyed was the separate property of her deceased husband, may possibly, be binding on her, but it is clear that such admission cannot, in any manner, affect the rights of her minor children, considering that the ownership of the property, burthened as it is with the obligation of this life annuity, may turn out to be more onerous than advantageous to them.
    PPEAL from the District Court — Fourth Judicial District — Parish of St. Xjl John Baptist, Duffel, J.

      Roman & Berault, for appellants.

      Blache, for opponents.
   Voorhies J.

On the 5th September, 1853, Mrs. Felicie Communy, widow of the late Charles Fortin, and natural tutrix of her minor children, named; Emile, George and Amelia Fortin, filed a provisional account of her tutorship and a final account of her administration of the estate of her deceased husband.

The under-tutors of her minor children .opposed the homologation of her accounts on several grounds. The fourth, and indeed the only ground which would seem to offer any difficulty, is as follows, viz:

“Because the said community is credited with the sum of $12,000, as an indemnity due to it for the like amount paid by the deceased to his mother, widow Fortin, up to the time of his death, for nine years of an annuity which was constituted in her favor by the aforesaid Act of the 16th of April, 1841, before F. Grima, Notary Public ; the said annuity being a charge by the said widow Fortin, to the deceased, of which revenues the said community had the benefit and enjoyment.”

It is to be observed that both counsel would seem to have conceded or assumed, that in the purchase by Charles Fortin, from his mother, the prpperty purchased became his separate property. Is it so ? The fact of his having purchased from his mother does not make it different in legal effect from a purchase of property from a stranger. What was the nature of the contract, which existed between the deceased and his mother ? The record shows that Louis Fortin died on the 29th of October, 1828, leaving as his sole heirs. Charles, Edouard, and Frangoise Arsine Fortin, issue of his marriage with Celeste Parent. At the time of his death, he owned a plantation, slaves, etc., in partnership with Armand Duplantier, four-fifths of which belonged to him. His. widow, Celeste Parent, his children, and 'Duplantier, continued to hold this, property in common until the 16th of April, 1841, when a partition was made between them, by which, the widow conveyed all her interest therein to hen said children, in consideration of an annuity; — rente eonstitutée — the stipulations of which, are as follows, to-wit:

“ Et la dite dame veuve Fortin a dit et declaré que désirant se retirer de la dite société, elle a proposé á ses co-associés susnommés de céder et transporter-a ses enfants, les dits sieurs Oha/i'les et Edouard Fortin et la dite dame Armand Euplantier, ses droits et intéréts dans la dite soeiété, ci-dessus éva-lués et determines á la somme de quarante-trois mille cinq cent trente-trois piastres, cinquante-quatre cents, six quarante-cinquiémes moyennant une rente annuelle et viagére de quatre mille piastres, qui lui serait pavee annullement par ses dits enfants, dans tout le cours du mois de mars, et dont un tiers, c’est-a-dire mille trois cent trente-trois piastres, trente-trois cents un tiers, devra étre payé par chacun de ses dits trois enfants, laquelle proposition a été accep-tóe par les dits sieurs Charles et Edoua/rd Fortin et par la dite dame Fran-goise Arséne Fortin, sous l’assistance et avec l’autorisation de son mari, le dit sieur Armand Euplantier.

En conséquenco la dite dame veuve Fortin déclare par les présentes eéder et transporter á Messieurs Charles Fortin, Edouan'd Fortin et dame Frangoise Arséne Fortin, épouse autorisée du dit sieur Euplantier, acceptant pour eux et leurs héritiers ou a3mnts-cause, les deux cinquiémes indivis de la susdite habitation, ainsi que les esclaves, animaux et utensiles qui en dépendent, et généralement tous les droits, titres, actions et reclamations qu’elle a et peut avoir á exercer contre les biens, mobiliers et immobiliers dépondant de la dite soeiété et de la succession du feu Louis Fortin, son mari, tant en raison de ses droits matrimoniaux qu’on raison de la communauté de biens qui a existé entre elle et son dófunt mari, se dessaisissant de tous ses droits en faveur de Mme Euplantier et de Messieurs Charles et Edouard Fortin, pour par eux en jouir et disposer comme bon leur semblera, en vertu des presentes.

Oette cession est faite á la charge par lesdits Charles Fortin, Edouard Fortin et Dame Euplantier de payer á ladite dame veuve Fortin, la rente viagére qu’ils vont ci-aprés eréer et constituer.

En considération de la cession á eux ci-dossus faite, lesdits sieurs Charles Fortin, Edouard. Fortin et dame Frangoise Arséne Fortin, épouse dudit sieur Euplantier, et par son mari düment autorisée et assistée, déclarent par les pré-sentes eréer et constituer en faveur de ladite dame veuve Fortin, leur mére, ce acceptant, chacun une rente annuelle et viagére de mille trois cent trente-' trois piastres trente-trois cents un tiers, qu’ils s’obligent, chacun, de payer á. ladite dame veuve Fortín, dans tout le mois de Mars de chacune des annees qui suivront la dato des présentes, jusqu’au jour du décés de ladite dame veuve Fortín, á compter duquel jour cotte rente sera éteinte et amortie.”

It is contended by the appellant’s counsel, that the transaction which took place between the widow, Louis Fortin, and her children, cannot be viewed in any other light than as an onerous donation, made to them exclusively, although the act which evidences that transaction does not express it to be a donation eo nomine. In this, we are unable to concur with the learned counsel. In the language of our Oode, Art. 1511, “the onerous donation is not a real donation, if the value of the objects given does not manifestly exceed that of the charges imposed on the donee.” Does the value of the property thus conveyed manifestly exceed that of the charges imposed on Charles, Edouard and Frangoise Arséne Fortin? ¥e think not. Then it is evident that the transaction which took place between the parties was not intended or understood by them to be an onerous donation, but, as it purports to be, a contract of annuity for life — rente annuelle viagére. 0. 0. 2764, et seq.; Mayor v. Duplessis, 5 M. 309. As this property was acquired during the marriage, it belonged to the community, and the community was, consequently, liable for the payment of the annuity or rente constitute. O. 0. 2311. It is true, the admission of 1 the widow that it is the separate property of the estate of her deceased husband, may possibly be binding upon her, but it appears to us clear that such admission cannot, in any manner, affect the rights of the minors, considering that the ownership of the property, burdened as it is with the obligation of this life annuity, may turn out to be more onerous than advantageous to them. Therefore, we think it is essential as a prerequisite to a settlement and partition of the community, that the rights of the minors in this respect should be properly determined.

The appellees, in their answer, have prayed for an amendment of the judgment of the court below in regard to an item of $4,000, which is ordered to be credited to the community, as the price paid for a tract of land of one arpcnt front by forty in depth, which was purchased by Oharles Fortin, in 1841. It is urged that the credit should have been for $2,000, as Oharles Fortin bought the land in partnership with his brother, Fdouard Fortin for $4,000, and therefore, only paid $2,000, for his half. On this point, no argument has been offered on the part of the appellant and the facts appear to warrant the conclusion that the judgment is erroneous in this respect.

It is, therefore, ordered and decreed, that the judgment of the court below be avoided and reversed, and that the case be remanded for further proceedings according to law ; and that in reforming the account, the sum of two thousand, instead of four thousand dollars, be credited to the community; and it is further ordered that the costs of appeal be borne by the estate of Oharles Fortin deceased.


text:
    Pontchartrain Railroad Company v. Lafayette and Pontchartrain Railroad Company.
    The exclusive privilege, vested in the plaintiffs, by the Act of 1830, to construct a railroad, within certain limits, must be construed with reference to the extent of the city of New Orleans, at the time of the passage of the Act.
    In the year 1830, Jackson street, now in the Fourth District, was within the limits, in which the Pontchartrain Railroad Company had the exclusive right for twenty-five years, of constructing a railroad to Lake Pontchartrain.
    The construction of a railroad by defendants, in Jackson street, within twenty-five years from the 26th of January, 1880, is an infringement of the rights of the plaintiffs and therefore unlawful.
    PPEAL from the Second District Court of New Orleans, Lea, J.
    XX Mott & Fraser and Fustis, for plaintiffs and appellants.

      Michel & Oil-more, for defendants.
   Buchanan, J.

The Act of the Legislature incorporating the Pontchartrain Railroad Company, approved the 26th January, 1830, in its 5th Section, contained-the following clause : “ and it is stipulated and agreed that for and during the space of twTenty-five years, from the passage of this Act, said corporation shall have the exclusive right and privilege of constructing and using a railroad or railway, leading to and from the city of New Orleans, its faubourgs and the incorporated limits thereof, to and from Lake Pontchartrain; and that during that period no other body corporate or person or persons, shall make any similar road for the transportation of passengers or property, between said city, its faubourgs, and the incorporated limits thereof, and said Lake, or be invested with any similar privileges.”

The petition in this case alleges, that the defendants, a corporation formed under the general corporation law of the State, have so incorporated themselves for the purpose of constructing and using a railroad from the Mississippi river along Jackson street, in the Fourth District of the city,of New Orleans, to the Lake Pontchartrain, with the intention of transporting passengers and property between the city of New Orleans and said lake ; that the said Company has commenced the construction of said railroad, having laid out the line thereof, and levelled and graded a great portion thereof; and that the railroad thus laid out and being constructed, is a direct violation of the exclusive privilege given by the charter of plaintiffs.

After an exception, that the petition contained no cause of action, which was properly overruled, the defendants answered, acknowledging that they have incorporated themselves under the State law, for the purpose of constructing a railroad, as alleged by plaintiff, from the Mississippi river, running through Jackson street, in the Fourth District, of the city of New Orleans, to the Lake Pontchartrain; and have commenced the construction of said railroad. But they aver that the construction of such railroad does not infringe the plaintiffs' exclusive privilege, inasmuch as defendants’ proposed road is entirely within the parish of Jefferson.

The Fourth District of the city of New Orleans occupies territory, which previously to the Constitution of 1852, was part of the parish of Jefferson. That Constitution, Article 8, made it a portion of the parish of Orleans. But both before and after the adoption of that Constitution, the said territory was under a municipal organization, namely: from the year 1818 to the year 1838, under that of New Orleans, being within the corporate limits of said city, and from 1833 to 1852, constituting a separate municipal corporation, entitled the city of Lafayette. The exclusive privilege vested in plaintiffs by the Act of 1830, must be construed in reference to the extent of the city of New Orleans at the date of the passage of that Act. See the case of the City of New Orleans v. Anderson, 9 An.

There is no questien, that Jackson street in the present Fourth District of the city of New Orleans, the place where the defendants’ railroad is located, is within the limits to which the plaintiffs had the exclusive right for twenty-five years from and after the 26th January, 1830; and as this action was brought within that period of time, the plaintiffs must recover. The proof of damage caused by the acts of defendants in the premises, is entirely too vague to form the basis of a judgment. Our decree must, therefore, be, for nominal damages only, as a vindication of the right of property against its deliberate violation.

It is, therefore, adjudged and decreed, that the verdict and judgment appealed from, be reversed, and that plaintiffs recover of defendants ten dollars damages, with costs in both courts.


author: Spojtord, J.

text:
    State of Louisiana v. G. Maxent and U. Guesnon.
    ,<5ne of the counts of indictment charged that the prisoner, “under the color and pretence of fighting a duel, with the deceased, but in violation of the agreement and rules ” assaulted and murdered him. Held: That a homicide committed under such circumstances is indictable as murder,
    defendants accepted the jurors who passed upon their case, without the objection that a proper lis i hadnot been served upon them. Held: that it was too late for them to raise such objections after verdict.
    En the refusal of the Judge to allow the prisoner’s counsel to state new points and propositions in the hearing of the jury, when they came in and asked for further instructions from the court, there is not such error as would authorize a reversal of the judgment. In such a matter, much must be entrusted to the discretion of the District Judge.
    from the Eirst District Court of New Orleans, Bo^erUm-, J.

      Morse, Attorney General, for the State.

      Dufov/r & Boselius, for defendants and appellants.
   Spojtord, J.

It seems unnecessary to discuss the question, whether the of-fence of killing a man in a duel, is reduced below the grade of murder by the Act of 20th March, 1818, Sec. 16, which declares that, “if any person shall voluntarily engage in a duel with rapier or small sword, back sword, pistol or other dangerous weapon, to the hazard of life, and death should ensue, the survivor shall, upon conviction, suffer death ; and all and every person aiding and abetting as second, agent, and abettor, who shall be duly convicted, shall be punished, as accessories before the fact in murder.”

For, one of the counts of the indictment charges that the prisoners “ under the color and pretence of fighting a duel, with the deceased, hut in violation of the agreement and rules ” assaulted and murdered him. There can be no question in the mind of any casuist, that a homicide committed under such circumstances is indictable as murder. There being a count under which the verdict is good even if there 'was a pretended duel, we are not called upon to say what the proper form of indictment would have been, had death ensued from a duel fairly fought.

The first three points in the brief filed on behalf of Maxent, are thus irrelevant.

We find no evidence in the record that the jury were intimidated into giving a hasty verdict.

We are of opinion that the defendants having accepted the jurors who passed upon their case without any objection, on the ground that a proper list had not been served upon them, it was too late for them to raise such objections after the verdict.

In the refusal of the Judge to allow the prisoner’s counsel to state new points and propositions in the hearing of the jury, when they came in and asked fresh instructions from the court, we do not find such error as would authorize a reversal of thejudgment. In such a matter, much must be entrusted to the discretion of the District Judge.

The defendants were both found guilty of manslaughter. Ottesnon moved that the judgment against himself be arrested, upon the special ground that he was indicted as an accessory before the fact to Maxenl's offence, and as the latter had only been convicted of manslaughter, he could not be an accessory before the fact, the principal’s crime not admitting of accessories before. 1 East. Pleas Crown, p. 353.

But an inspection of the indictment, shows, that Quemón was charged with being present, aiding and abetting Maxent, to commit the alleged felony. He was, therefore, indicted as a principal, and not as an accessory before the fact. An accessory hefore the fact is one who being absent at the time of the commission of the crime, doth yet procure, counsel or command its commission. 1 Hale’s Pleas Crown, p. 616. See also the State v. White, 7 An. 531.

The objection urged by the same party, in his motion.in arrest, that he should have been indicted as second in a duel, under the Statute of 20th March, 1818, Sec. 16, is disposed of, already. Non aonstat that the indictment was not properly framed, although there was a duel, when it is alleged that under pre-tence of a duel, a murder was committed by violating the agreement and rules.

The judgment*against both prisoners is, therefore, affirmed with costs.


author: Buchanan, J. Spofford, J.

text:
    W. Miller v. John Roy.
    Plaintiff issued execution upon a judgment in February, 1858. This execution has never been returned; and in January, 1855, a rule was taken upon the Sheriff, (who in the meantime had gone out of office) to render him liable for the amount of the judgment, under the Act of 1826. On the trial of the rule, it was admitted that a witness summoned for the Sheriff, would prove, if present, that the counsel of plaintiff was informed and knew that the only property of defendant found, was incumbered to such an extent, that nothing could be made on the execution. A certificate of mortgages was also given in evidence, to prove the same facts. Held: that upon this proof the Sheriff is not liable under the statute.
    from the Eirst District Court of New Orleans, Larue, J.

      A. P. Field and J. Henderson, Jr., for plaintiff.

      M. Blache, for James P. Freret, appellant in rule.
   Buchanan, J.

The plaintiff having recovered judgment against defendant for three hundred dollars and costs, issued execution upon the same in February, 1853. This execution has never been returned; and in January, 1855, a rule was taken upon the Sheriff (who in the meantime had gone out of office) to render him liable for the amount of the judgment, under the Act of 1826.

On the trial of the rule, it was admitted' that a witness summoned for the Sheriff, would prove, if present, that the counsel of plaintiff was informed and knew that the only property of defendant found, was incumbered to such an extent that nothing could be made on the execution. A certificate of mortgages was also given in evidence, to prove the same fact.

Upon the proof, we do not think the Sheriff liable under the statute.

It is therefore adjudged and decreed, that the judgment of the District Court be reversed ; and that there be judgment for the appellant, James P. Freret, with costs in both courts.

Spofford, J.

The rule is predicated upon the alleged neglect of the Sheriff to return within the legal period a, fl. fa. issued on the 23d February, 1853.

That fl. fa. appears in the record with an incomplete return thereon.

But it also appears in the record that an alias ft. fa. was issued, which has not been returned by the Sheriff, and with regard to which no complaint is made. It seems to me that the plaintiff by procuring this alias writ has waived his right to proceed against the Sheriff, for failing to return the former writ in time.

It also appears that long after the expiration of the return day of the first writ, the plaintiff took rules on certain mortgage creditors of the owner of the property seized, to show cause why said mortgages should not be cancelled, and the property sold to satisfy his claim. These rules were never brought to a final trial, and the Sheriff’s defence is thus established by the plaintiff’s own course of action.

I, therefore, concur in the decree.


author: Spoítord, J. Buchanan, J.,

text:
    Municipality No. One v. Wheeler & Blake.
    A retroactive statute which has no relation to crimes and penalties, is not an ex post facto law.
    Retrospective laws, in civil matters, do not violate the constitution, unless they tend to divest vested rights or to impair the obligation of contracts.
    Parol evidence is admissible to correct a mistake in the date of a receipt produced by the defendants.
    The power of expounding the law, which includes the great and responsible duty of declaring whether the legislative assemblies, State and municipal, have transcended in their past action the limits of their powers as defined by the Constitution and the laws, belongs to the judiciary alone. Bucka/ficm^ X, dissenting.
    The Legislature does not, in the Act of Tth February» I860, declare in so many words that the city ordinances in existence and which imposed taxes on capital for 1848 and 1849, were legal; but it has done the same thing in a different manner, by authorizing the Municipal Councils to re-enact those ordinances, and by giving the ordinances thus re-enacted a retroactive effect, so as in facj. to render the former ordinances legal, with a new date. This was clearly an interference by the legislative, with the judicial department of the government. BuclLO/ncm, J.
    It is a general principle of constitutional law, that the law can only provide for the future. Buch-cma/n, J.
    from the Second District Court of New Orleans, Lea, J.

      H. Denis & F. T. Pm'lcer, Robert Preaux, J. Livingston, for plaintiff. '

      Race S Foster, for defendants.
   Spoítord, J.

The defendants and appellants contend that the Act of 7th. February, 1850, (session Acts, p. 5,) empowering each of the Municipalities of New Orleans to levy taxes on capital on the assessment rolls of 1848 and 1849, (not to exceed the amounts imposed by ordinances already passed,) as well as the ordinance of Municipality No. 1, in pursuance thereof, approved 19th March,, 1850, are unconstitutional and void.

The statute is said to bo unconstitutional because it is retroactive in its ope-ration.

It is not an ex post fapto law, as it has no relation to crimes and penalties.

Article 8 of the Civil Code, which is the creature of the legislative power,, cannot control the power that created it.

However repugnant to logic and sound policy they may be, retrospectiv.o-laws in civil matters do not violate the Constitution, unless they tend to divest, vested rights or to impair the obligation of contracts, neither of which can be., predicated of the Act in question.

“Mais eñfin, tant qu’une loi existe, si mauvaise, si peu logique qu’elle puisse étre sous tel ou tel rapport, le pouvoir judiciaire ne peut pas ne point l’appli-quer : Dura lex, sed est lex. En fait, done, le législateur peut porter une disposition retroactive; et toute irrationelle que sera cette disposition, elle n’en devra pas moins s’appliquer.” Marcadé, §62.

But the the law under consideration does not seem to be obnoxious to severe censure. It is not, strictly speaking, a retrospective law. It authorizes the future imposition and collection of a tax according to a past assessment. This was within the legislative power. Shaw v. Dennis, 5 Gilmore, 418 ; Opelousas & Great Western Railroad Co. v. Harris, 10 Ann,-. There was an equity in authorizing the course in the present instance which frees the law from the odium of injustice. A tax had been levied upon capital in those years by the municipality, under the impression that the Legislature had previously conferred the power. The tax-pavers had received the benefit derived from the outlay of the money sought to be re-ircibursedby the new tax. Many persons had paid the tax without resistance, and, indeed, it appears in this very case that the defendants, paid their tax for.the year 1848, which they seek to recover in reconvention. The equity of preserving equality in this matter was probably the main inducement to the passage of the Act by the Legislature, after doubts" had arisen about the legality of the old ordinances.

The Act.does not involve the exercise of a judicial function. It provides for the passage of a new ordinance.

The point ruled in the case of Municipality No. 3 v. Michoud, 6 An, 605, has no application to the present case. The Municipality, there, attempted without any legislative authorization, to revive back taxes which had been remitted.

Parol evidence was properly received by the District Judge, to correct a mistake in the date of the tax receipt produced by the defendants.

The demand in reconvention was not necessarily connected with and incidental to the main action.

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

Buchanan, J.,

dissenting. On the 7th February, 1850, an Act of the Legislature was passed, entitled: “An Act to authorize the several municipalities of the city of New Orleans to levy taxes upon capital.”

This Act commences by a preamble, in which it is stated that doubts have arisen whether the several municipalities of the city of New Orleans had the power'to tax the capital employed in commerce, and that it is essential to the interests of those municipalities, that all doubts upon the subject should be promptly removed.

The first section empowers each of the municipalities to levy taxes on capital within its limits.

The second section provides as follows : “ That each of the municipalities of said city shall be and is hereby empowered to levy a tax on capital on the assessment roll for the year one thousand eight hundred and forty-eight, and a tax on capital on the assessment roll for the year one thousand eight hundred and forty-nine ; provided, that the taxes on capital on the said assessment rolls, shall not exceed the amounts .already imposed by existing ofdinances of the said municipalities.

This suit is brought against the defendants, for a tax of one per cent, upon an assessed capital of twenty thousand dollars for the year 1849, imposed by an ordinance of Municipality No. One, approved the 19th of March, 1851, and : which ordinance purports to have been made in conformity with the Act of the Legislature above quoted. Plaintiff has also given in evidenee an ordinance of the municipality, approved 8th June, 1849, imposing a lax on capital of one per cent, for the year 1849.

The suit is defended principally upon the ground of the illegality of the municipal tax in question, and the unconstitutionality of the legislation by which it has been sought to be legalized.

The preamble of the Act of 7th February, 1850, declares its object to be, the removal of doubts upon a point of law. So far as the future was concerned, this was strictly within the constitutional attributes of the Legislature, it being the prerogative and peculiar duty of that branch of the government, to make the law; and, consequently, its dictates, when duly promulgated, fix the law from the moment of such promulgation, so far as they do not interfere with vested rights, or impair the obligation of contracts previously made. But the power, of expounding the law, which includes the great and' responsible duty of declaring whether the legislative assemblies, State and municipal, have transcended in their past action, the limits of their powers, as defined by the Constitution and the laws, — this belongs to the judiciary alone. The first article of the State Constitution of 1845, (in force in 1850,), declares, that the powers of government shall be divided into three distinct departments — the legislative, the executive, and the judicial; and each of them shall be confided to a separate body of magistracy. And the second article says “ No.one of these departments, nor any person holding office in one of them, shall exercise power properly belonging to either of the others,,except in the instances expressly directed or permitted by the Constitution itself..

See Cohen v. Virginia, 6th Wheaton, 264; Story on the Const. U. S., book 3d, chap. 4.

As to the power of the municipalities of New Orleans to tax capital, previous to the enabling law of 1850,.there has been a judicial decision of the highest tribunal in the State, in the case of Municipality No. Three v. Sherman Johnson, 6th An., p. 20, adverse to the legality of such tax. I consider this case has settled the question ; and, therefore, the ordinance of Municipality No. 1, of 8th June, 1849, must be held to have been illegal and of no binding force or obligation.

The case of Municipality No. Three v. Sherman Johnson, as we gather from an examination of the record in this court, was a suit for a tax on capital imposed by the 3d Municipality for the year 1848. It was, therefore, within the purview of the second section of the Act of 7th February, 1850. Yet the Supreme Court have taken no notice of that statute in their decision, rendered in January, 185.1. I take this silence to be an intimation of the views of our predecessors in relation to that law. The Legislature does not, in that Act, declare in so many words that the city ordinances in existence, and which imposed taxes on capital for 1848 and 1849, were legal; but it has done the same thing in a different manner, by authorizing the municipal Councils to re-enact those ordinances, and by giving the ordinances thus re-enacted a retroactive effect, so as in fact to render the former ordinances legal, with a new date. This was clearly an interference by the legislative, with the judicial, department of the government. Another ground upon which I hold the law of 7th February, 1850, and the ordinance of 19th March, 1851, made under said law, to be invalid, is, that they are retrospective, and relate to a time preceding the existence of the Legislature which authorized them. It is a general principle of constitutional law, that the law can only provide for the future. Const. U. S., art. 1, sec. 9th ; Const, of La., 1845, art 109 ; Municipality No. Three v. Michoud, 6th An., 610. In the case of Miehoud, Judge Preston, as the organ of the court, said: “ It is true that the Council of the municipality, on the 29th December, 1846, revived the ordinances imposing taxes on rural as well as urban property ; but laws can prescribe only for the future; they can have no retrospective operation. La. Code, art. 8. The revived ordinance could, therefore, only operate on taxation for the year 1846 and subsequently. The power to levy and collect taxes, has ever been understood to operate prospectively, and never retrospectively, as contended. If the Council could legally tax for a year back, we see no reason to prevent them from doing so for any number of years. Such has never been the interpretation of the power to lay and collect taxes, either by the Legislature, or political corporations acting under its authority.”

And of similar import is the language of Dwarris, an esteemed English writer : “It is, in the general, true, say the books, that no statute is to have a retrospect, beyond the time of its commencement; for the rule and law of Parliament is, that nova aonstitutio futuris forma/m, debit imponere, non prceteritis. And not only is it the doctrine of the English law, that a statute is not to have a retrospective effect, but it is also founded on the principles of general jurisprudence. A retrospective statute would partake in its character of the mis-chiefs of an ex post faoto law, as to all cases of crimes and penalties; and in matters relating to contracts or property, would violate every sound principle.” Dwarris on Statutes, 9th Law Library, chap. 11th.

In the case at bar, if we look at the organization of the Legislature which passed the statute under review, the impossibility of a binding retrospective taxation becomes apparent. That Legislature was the third elected under the Constitution of 1845 ; and assembled and qualified for the first time on the third Monday of January, 1850. It was as incapable of fixing the objects and rate of taxation for 1849 as for 1859; nay more so, because the objects and rate of taxation for 1849 had already been determined by law, and the presumption was, that the taxes for that year had been already collected. 'With his tax receipt in his pocket, was the citizen to be a second time harassed by exactions, created after he had paid his quota of taxation ?

I am also struck by the unfairness that inevitably results from such a mode of taxation, as this case presents. It is a tax on capital employed in commerce ; a capital exposed to fluctuation beyond all other kinds of property. The assessment of the capital of a merchant at $20,000, in 1849, may have been in perfect conformity with the true condition of his affairs; yet nothing is more probable that the year 1851 may have found that same merchant a bankrupt. It seems inequitable and contrary to daily experience, to renew against this industrious and useful class, an obligation to pay, predicated on the condition of the commercial world, years back, without regard to the intervening events, and when it is admitted that the obligation could not have been legally enforced at the time to which it relates.

I am of opinion that there should be judgment for defendants.


author: Spofeord, J. Lea, J. Mebrick, 0. J. Vookhies, J.,

text:
    Gray v. Lonsdale.
    A receipt is not conclusive against the party signing it, but it is to be deemzd prima fade evidence of the fact it asserts, and the intention it purports to express; the burden is on the party who desires to contradict or escape from it, to make out a clear case of error or fraud.
    PPEAL from the Third District Court of Now Orleans, Kennedy, J.
    -£i- Garnett Duncan, for plaintiff.

      T. Hunton, for defendant.
   Spofeord, J.

I adopt the following opinion prepared by Mr. Chief Justice Slidell, during the session of this Court in May last:

It may be conceded that the judgment paid by Gray was a liability of Lons-dale & Gray, and that under the agreement of dissolution, and the subsequent agreement of 1848, Lonsdale was bound to hold Gray harmless from this liability. But the question remains whether the receipt of May, 1851, endorsed upon the agreement of 1848, is not an insuperable obstacle, as the evidence stands, to the plaintiff’s recovery. Upon this point the case turned in the court below, and must turn here.

The agreement of 1848 embodied a promise by Lonsdale to pay all outstanding liabilities of Lonsdale & Gray, and, therefore, comprehended the Sayre claim. We are authorized by the evidence to believe, with the District Judge, that the claim was known to both parties when the receipt was signed. When, therefore, in May, 1851, Gray signed on the back of this agreement, comprehending this liability so known to both, the broad acknowledgment: “ this obligation is this day satisfied by money, notes and obligations, which if paid, will be in full of the within,” how is he to escape from it ? In one way only. By showing by satisfactory evidence that there was a mistake in the confection of the receipt. It is true, a receipt is not conclusive against the party signing it, but it is to be deemed prima facie evidence of the fact it asserts and the intention it purports to express ; the burden is on the party who desires to contradict or escape from it, to make out a clear case of error or fraud. This has not been done in the present case. The receipt is not contradicted, and the plaintiff’s case has, in reality, little to rest upon but a mere conjecture of oversight or forgetfulness, unsatisfactorily inferred from the fact that although the Sayre claim existed, it had not yet ripened into judgment and been paid by Gray.

Judg ment affirmed, costs of appeal to be paid by plaintiff.

Lea, J.

I concur in this opinion.

Mebrick, 0. J.

I concur in the opinion prepared by Chief Justice Slidell for these additional reasons, viz :

Gray lived at Louisville, where the suit in chancery was pending against himself and Lonsdale; hence that suit, to which Gray was more immediately amenable, than Lonsdale must have been, in the contemplation of Gray when he entered into the compromise or agreement of December, 1848. At this time Lonsdale's affairs must have been much embarrassed, or Gray^ and the other creditors would not have consented to take twenty per centum on their claims.

Now, in view of the facts that Lonsdale was so embarressed in his affairs, that he resided beyond the jurisdiction of the Court of Chancery which held immediate jurisdiction over Gray, and that the suit was still pending against him at the date of his receipt, 1 am led to conclude that Gray, by the comprehensive language of his acquittance, intended to take upon himself the risk of the litigation in chancery, and to discharge Lonsdale from all liability on account of the agreement of December, 1848.

I think, therefore, the judgment should be affirmed.

Vookhies, J.,

dissenting.

(Buchanan, J., concurring in the dissenting opinion.)

On the 17th January, 1847, plaintiff sold to defendant all his interest in the assets of their partnership for the price of $9000, $2500 of which were paid in cash, and the residue was made payable on terms of credit. The defendant also assumed all the liabilities of the firm, which existed at its dissolution, to take place on the 14th of March following. Subsequently, on the 13th December, 1848, the parties signed another instrument, in which, after setting forth the previous agreement, it recites: “ and whereas, said Lonsdale has not performed said agreement, but said Gray has paid or become bound to pay the following sums, to-wit: to H. Ames & Co. (by compromise) $235 40 ; Curtis & Pyrena Wood's draft, $991 09 ; W. P. Holloway & Co., draft for H. Parish, for $1270 54; Stank, Day, Stauffer & Co., account of $294 31; fee bills, costs, &c., in a suit of Swigert v. Lonsdale & Gray, $57 82; also $238 50, lost and paid by having to discount Thomas Brown's draft to secure prompt payment of the balance ; and whereas said Gray has been sued by Blame & Tompkins, upon a claim against Lonsdale & Gray for $1496 36 : Now, if the said Lonsdale shall well and truly pay the said Gray, the said sums of money which the said Gray has paid, and assumed to pay, with interest and costs that may accrue thereon, as above specified, on account of the firm of Lonsdale & Gray, within twelvemonths from the date hereof, and shall also pay and satisfy, from time to time, as the same may arise and be established, all claims and demands that may hereafter appear against said firm of Lonsdale S Gray, and save said Gray harmless therefrom ; then, said Gray, in consideration that the creditors of said Lonsdale have agreed to accept from him twenty per cen-tum upon his individual debts, and grant him indulgence for the payment thereof, binds h’imself to surrender and give up to said Lonsdale, said acceptances, amounting to $6500, and receive in lieu thereof, his four notes for twenty per centum upon the amount of said claim of $6500, payable, &c.” This sum of $6500 foi’med part of the price of the assets, payable by defendant, on terms of credit. The following receipts are endorsed on the last mentioned agreement, viz:

“ Received, New Orleans, February 11th, 1850, from Henry T. Lonsdale, five hundred and eighty seven dollars 53-100 — being for H. Ames& Go's debt, $235 40, for fee bill $57 82, and Stark, Day, Stauffeo• & Go., $294 31.

“GEO. E. H. GRAY.”

“ This obligation is this day satisfied by money, and notes, and obligations, which, if paid, will be in full of the within.

“ New Orleans, May 1st, 1851.

“ GEO. E. H. GRAY.”

In the year 1846 the firm of MeKee & Swigert filed a bill in the Louisville Chancery Court, against B. A. Overton and others, on which certain bagging, rope and hemp, were attached and replevied by Lonsdale & Gray, on 9th day of October, 1846, on giving bond and security. MeKee & Swigert then filed an amended bill, making Lonsdale S Gray defendants in the suit, in which David L. Sayre intervened and claimed the ownership of the property. On the 21stMay, 1852, the court decreed that Sayre recover of Lonsdale & Gray, the sum of $7l3, and his costs expended on the cross bill. An execution was issued on this judgment, and satisfied on the 12th September, 1852, by the plaintiff, Gray, the principal,i interest and cost of which amount to the sum of $768 11.

The plaintiff sues for the recovery of this amount. The defendant, in his answer, admits the contract of the 17th February, 1847, but says that it was novated by the one of the 13th December, 1848. After setting forth the receipts thereon endorsed, he avers “ that the notes and obligations referred to in said endorsment were duly paid to said Gray, or if not paid that said Gray had not used due and legal dilligence to collect the same; that the firm of Lonsdale & Gray were never indebted to David L. Sayre-, that the judgment in the petition referred to and set forth, is not in any manner binding upon the defendant; that at the time the said cross bill and demand of the said Sayre was filed, to-wit, in February, 1848, defendant and said Gray had ceased to be partners, their partnership having been previously dissolved ; that the defendant never signed the replevin bond mentioned in this petition; and that this defendant was never cited to answer the cross bill filed by said Sayre, and never authorized any one to appear and answer said cross bill for him, &c.”

It is obvious that this answer is repugnant to the inference sought to be drawn from the plaintiff’s receipts, which were evidently intended to apply only to the debts specified in the contract of the 13th December, 1848. The receipt of the 1st May, 1851, clearly refers to the one given only two days before, as follows :

“Received, New Orleans, 29th April, 1851, from H. T. Lonsdale, eighteen hundred and twenty-one 36-100 dollars in cash, his note at one year after date, for one thousand and thirty-three 90-100 dollars, and an obligation to ,pay Eolloioay's draft in favor of R. Parish, £or $1270 54-100, which when paid, will be in full of all claims to date, and all demands.

GEO. E. H. GRAY”

It is evident that this receipt was intended to apply only to the debts of the partnership, for which the plaintiff had then become liable. This is made more apparent, from the fact that both amounts nearly correspond. The receipt of the 1st May, 1851, must be construed as applicable to the extinguishment of the obligation contracted by the defendant, to pay the plaintiff twenty per centum on the sum of $6500, the price due by him on the sale of the assets of the partnership.

Indeed this may be considered as the only stipulation contained in the agreement of 1848, i. e., to discharge Lonsdale from the payment of the whole amount of the $6500 ; the other matters contained in the contract, as recitals, and inducement, were clearly not intended to affect the previous obligations contracted by the defendant to pay all the debts or liabilities of the partnership. It is true, the stipulation of the defendant is reitevated, that “ he shall pay and satisfy from time to time, as the same may arise and be established, all claims and demands that may hereafter appear against said firm of Lonsdale & Gray, and save said Gray harmless therefrom; ” but it is clear that this added nothing to his former obligations, nor did it operate any change in them. The reiterated promise to perform them, as he was already bound to do, certainly did not create any new obligations. Hence it'is clear that the defendant must be held liable to the plaintiff for the amount of the Sayre claim, unless it be shown that he has paid the same either to the creditor or to the plaintiff. How can it be said that he has done so, when he denies expressly that any such obligation or debt ever existed against the partnership ? Such denial must necessarily repel any inference that the Sayre claim was included in the alleged settlement between the parties. Indeed, how could it be said to be included in their settlement, when it was not then established? The liability of the firm of Lonsdale & Gray, for the claim of Sayre, is denied by the defendant, as we have seen; but, under the agreement of 1848,.it is clear that the defendant acknowledges the pendency of the suit by his assumpsit to reimburse to the plaintiff the sum of $57 82, stated to be “for fee bills, costs, &c., in a •suit of Swigert v. Lonsdale & Gray.”

I, therefore, think that the judgment ought to be reversed.


author: Lea, J.

text:
    Jean Chatard v. The City of New Orleans.
    It would be a prudent and proper practice in cases affecting the public health or convenience, or the enforcement of police regulations generally, that applicants for writs of injunction should be required, before the writ is granted, to establish contradictorily, at least a prima facie necessity for the protection of the writ.
    from the Fifth District Court of New Orleans, Augustin, J.

      Z. Latour, for plaintiff and appellant.

      J. Livingston, for defendant.
   Lea, J.

The plaintiff in this case has succeeded in accomplishing the object for which the injunction was obtained. As lessee of the St. Mary’s market, he has been permitted, under the cover of the writ issued herein, to enjoy without interruption, the revenues arising from the rent of the fruit stalls situated on the side walks at each end of the market, in violation of a city ordinance ordering their removal, which was passed several months before his rights as lessee were acquired. In the meantime, the public have been subjected, for nearly a year, to the inconvenience which it was the object of the ordinance to remove.

After the injunction had been obtained, a rule was taken by the defendant, to show cause why it should not be set aside and dissolved, on the grounds: 1st. That no cause sufficient in law was set forth in the petition to justify the order granting the writ; and, 2d, That the amount of the bond was insufficient, and the surety on the bond not good and solvent. The order of court upon which the writ was based, required a bond with good and solvent security, in the sum of $1,000. A bond for one-half of this sum was furnished, and thereupon the writ was issued. On the trial of the rule, no evidence was offered to prove that the surety on the bond was good even for this amount. The rule was made absolute, and the injunction dissolved. Prom this judgment, the plaintiff has taken a suspensive appeal.

It is unnecessary to inquire into the merits of that portion of the rule which may be considered in the nature of an exception. Upon the other grounds set forth in the rule, it is evident that there is no error in the judgment appealed from.

We think it would be a prudent and proper practice, in cases affecting the public health or convenience, or the enforcement of police regulations generally, that applicants for writs of injunction should be required, before the writ is granted, to establish contradictorily, at least a prima facie necessity for the protection of the writ.

Judgment affirmed, with costs.


author: Lea, J. Mereick, 0. J. Slidell, C. J. Voorhies, J.

text:
    J. Corning & Co v. John H. Elliott et als.
    Plaintiffs were holders of two drafts accepted by Lowe <& Pattison, who enjoined plaintiffs from selling the acceptances. The injunction was dissolved, and plaintiffs sought to make the sureties on the injunction bonds liable. It was in evidence, that the plaintiffs instituted suit upon the drafts and recovered judgment for the amount thereof, against Lowe & Pattison. One of the parties, W. IT. Pattison, made a cession of his property to his creditors, on January 5th, 1853. It was proved that at the time of the issuing of the injunction a sale of the paper held by the plaintiffs might have been made and would have been made at a discount of 2yz per cent, per month if the injunction had not restrained the sale of it. Held: That the amount recoverable upon the obligation less the discount of 2>¿ per month, is the sum of which the plaintiffs have been deprived by the issuing of this injunction.
    There was no evidence to show that the other parties were insolvent, or that the drafts have become worthless in consequence of the injunction. Held: That as the obligation in this case does not arise from a quasi offence, it is clear that in the assessment of damages, the law leaves no discretion to the Judge, who must be governed by the rules laid down in the Civil Code. Art. 1928. Voorhies, J., with whom concurred Buchanan, J., dissenting.
    The Act of 1831, authorizes the Court, upon the dissolution of injunctions to condemn the plaintiffs and suretyjointly and severally to pay 10 per cent, interest on the amount of the judgment enjoined, and not more than 20 per cent, as damages, unless damages to a greater amount be proved. Held: It is true this applies to cases where judgments are enjoined, but it can hardly be contended that other cases are entitled to be placed on a more favorable footing, and I am unable, to conceive with the Judge a, quo, that the sureties on the injunction bonds, should be held liable for the amount of the drafts, as the measure of damages. Vooriiies, J., with whom concurred Buchanan, J., dissenting.
    Judicial sureties cannot (except in cases specially provided fox1) claim the benefit of a discussion ofi the principal debtor, before recourse is had against them. C. C. 3038, 8035; 2 An. 880.
    A party is entitled to be placed in the condition in which he would have been, had no injunction, been issued.
    from the Second District Court of New Orleans, Lea, J.

      Benjamin, Bradford S Finney, for plaintiffs.

      Goold & Stansbury, andi Mdise & W. M. Randolph, for defendants and appellants.
   The following reasons for his judgment were given by

Lea, J.

The plaintiffs were holders of two drafts of exchange, accepted: by Lowe & Pattison, of this city, one drawn by H. JL. Jfimnatty & Co., to. the order of and endorsed by A. Pattison for $3,500, dated at Yazoo City,, Mississippi, on the 20th December, 2850, and payable twelve months after-date, and the other drawn by James F. Woods, to the order of and endoi-sed by France A. Woods, for $4,500, dated at Brulé Landing,, parish of West Baton Rouge, on the 24th February, 1851, payable twelve months after date. The plaintiffs had made an arrangement for the sale of these drafts at the rate of' per cent, discount, per month, when, on or about the 4th of November, 1851, the acceptors, Lowe & Pattison, applied for and obtained an injunction restraining the plaintiffs from selling or negotiating said drafts, thereby preventing the sale of them as above stated. The injunction suit was prosecuted in due course of law, and after trial had, the injunction was dissolved. In the the meantime, however, the acceptors failed, and one of the firm, W. H. Pat-tison, made a surrender of his property under the insolvent laws. This suit is brought by the holders of the drafts above mentioned, against the sureties on the injunction bond, to recover the amount of the two bills of exchange, the holders tendering- to the defendant on such payment being made, a subrogation of all the petitioners’ rights in and to said bilis. The defendants sever in their answers, but substantially adopt the same defence; i. e. they deny that the plaintiffs have exhausted their recourse or remedies against the other parties to the drafts, or that they have shown their inability to realize their debt out of the property of the drawers and endorsers; they deny the validity of the judgment dissolving the injunction, and aver that it was void for want of proper parties; they further deny that Lowe & Pattison were in good credit at the time of the issuing of the injunction, or that the paper could have been sold as represented ; they deny that the injunction was wrongfully issued.

I consider it sufficiently proved that at the time of the issuing of the injunction, a sale of the paper held by the plaintiff might have been made and would have been made at a discount of 2-J- Per cent, per month, if the injunction had not restrained the sale of it. The amount recoverable upon the obligation loss the discount of 2£ per month is the sum of which the plaintiffs have been deprived b3r the issuing- of the injunction.

The plea of discussion may be disposed of by observing that the defendants are judicial sureties, and as such cannot (except in cases specially provided for) claim the benefit of a discussion of the property of the principal debtor before recourse is had against them. See 0. 0. 3033, 3035 ; see also 2 An. 830. If the injunction issued wrongfully, it was incumbent upon the defendants to establish the fact, it being a matter of defence. As respects the validity of the judgment, it is not pretended that it was not obtained contradictorily with at least one of the parties bound in solido, and as such would be binding on the sureties. In the case of Henrick v. Conant, 4th An., 276, no judgment was obtained against the solvent partner, and it was held that no confession of judgment made by an insolvent after a cession of his property could affect the property ceded, and as the sequestration bond was for the restoration of the articles sequestered, the surety was hold not liable. I do not perceive the applicability of such a decision to the case at bar.

The only real question to bo determined is, what is the proper measure of damages? The case of Segond v. Ramy, 3d An. 126, has reference merely to the construction of the Act of 1831, concerning injunctions. Moreover, there was no evidence that the plaintiff suffered any loss by the insolvency of the judgment debtor; had it been proved that the judgment debtor had absconded or left the State, or become insolvent, the judgment might have been different. In Hutchinson's case, 3d An. 548, no question was presented having reference to the depreciation of the notes withheld ; the court considered the damages excessive and illegal; but in that case the plaintiff' claimed the notes together with damages, incident to their detention ; indeed, the court may be considered as intimating that had the jury not awarded the return of the notes to the plaintiff, the verdict would not have been disturbed.

In the case at bar, the plaintiff’s right of property in the notes, was interfered with by the plaintiff in the injunction suit at a time when they might have realized a certain amount of money for them. The acceptors having since become insolvent, the plaintiffs are now told that the other parties to the notes not resident within the jurisdiction of the court are good and solvent; some of these parties reside out of the State, some within the State but out of the jurisdiction of this court. It is the opinion of one of the witnesses, W. E. Pattison, that the other partios to th.ese notes are solvent. To this, it may be urged that the solvency or insolvency of persons residing- abroad, is, as a general rule, altogether conjectural. Certainly no evidence has been introduced which would, in my opinion, justify the assurance that the plaintiffs, if left exclusively to their recourse against the other parties to the bills, would ever receive even a part of their debt. Be this as it may, the offer made by the plaintiffs is altogether equitable: if the bills are good, take them; and if not, do not throw upon us the additional trouble and expense of useless litigation. I do not wish to be understood as deciding that every interference with the right of property can be treated as a conversion, but certainly there are cases where the court is without any other means of arriving at a just estimate of damages than by considering the wrong complained of, as such. The plaintiffs are entitled to be placed in the condition in which they would have been, had no injunction been issued. It is not certain that they will ever collect a dollar upon the obligations now in their hand. It would, however, be unjust to allow the plaintiff' to receive the price which they would have obtained for the bills and to retain them also. The only means of doing justice between the parties is to give the plaintiffs the value of the notes at the time of the issuing of the injunction, and to subrogate the defendants to the plaintiffs’ right therein upon paying the value. The plaintiffs’ counsel contends that the measure of this value is the amount expressed upon their face. It is hardly consistent with their own offer to sell them at 2$ per cent, discount per month. In the case of the Draining Company v. Lizardi, 2d An., there was an actual conversion, the court considering that but for the conversion, the bond might have been made available for their actual value. In the case of Just v. Wright, 8th Rob., the plaintiff was prevented from collecting his debt, having attached property sufficient to pay it. In the case at bar, the acceptors became insolvent before the maturity of one of the notes, and it is questionable whether in the ordinary course of their business, they could hav.e paid either of them. The evidence in this case furnishes a fixed and certain measure of damages, and I do not consider that the liability of the sureties should be extended so as to make them the guarantors of the solvency of the parties to the drafts.

Mereick, 0. J.

This opinion, prepared by Chief Justice Slidell, before the adjournment of the court in June last, is now adopted as the opinion of the majority of the court.

Slidell, C. J.

The reasons given by the learned Judge of the District Court amply supports the judgment rendered. As no amendment of the judgment has been asked by the appellees, it is unecessary to enquire whether the Court below might not have gone farther, as claimed in argument by the appellees, and taken the face of the bills as the measure of damages.

Judgment affirmed with costs.

Voorhies, J.

(Dissenting.) The obligation of the defendants is that of suretyship, “ to secure the payment of such damages as may have been sustained in case it should be decided that the injunction had been wrongfully obtained ” by Loioe & Pattison. C. P. 804. It appears that the plaintiffs were holders of two drafts, accepted bj' Loioe & Pattison, one drawn by H. A. Fun-nally & Co., to the order of and endorsed by A. Pattison, Jr., for $8,500, dated 20th Dec. 1850, and payable twelve months after date, and the other drawn by James E. Woods, to the order of and endorsed by Frances A. Woods, for $4,500, dated West Baton Rouge, 24th February, 1851, and payable twelve months after date; this draft appears to have been secured by mortgage. The drawers of the other draft resided out of the State. Lowe & Pattison sued out an injunction against the plaintiffs, alleging that the latter had obtained these drafts from W. B. Partee & Co., who were insolvent, for the purpose of giving them an undue preference over the other creditors, and that they were themselves creditors to a large amount? The injunction was dissolved, and the plaintiffs now seek to make the sureties on the injunction bonds liable.

The Act of 1831, authorizes the court, upon the dissolution of injunctions, to condemn-the plaintiff and surety jointly and severally, to pay ten per cent, interest on the amount of the judgment enjoined^ and not more than twenty per cent, as damages, unless damages to a greater amount be proved. 3 An. 127. It is true that this applies to cases where judgments are enjoined, but it can hardly be contended that the other cases are entitled to be placed on a more favorable footing. I am unable to concur with the Judge a quo, that the suretiesin the injunction bonds should be held liable for the amount of the drafts, as the measure of damages. It is in evidence that the plaintiffs instituted suit upon the drafts, and recovered judgment for the amount thereof against Lowe & Pat~ tison. One of the parties, W. H. Pattison, made a cession of his property to his creditors, on the 5th of January, 1853. There is no evidence before us which shows that the other partios are insolvent, or that the drafts have become worthless, in consequence of the injunction. In the case of Hutchinson v. Sparks, 3 An. 648, the court hold, that “ withholding from the defendant the evidences of debt upon which he desired to raise money, should not indu'ce a more rigorous measure of damages than withholding alike sum of money; and in such a case, the measure of damages would be interest.” C. 0, 1928, 1929. On the hypothesis that the solvency of the drawers and endorsers to the drafts stood unaffected by the injunction, it would be difficult to draw any distinction, in principle, between the present and that case. There Sparles had actual possession of the notes, which he withheld from Hutchinson, who was, thereby, prevented from raising money to prosecute his business successfully. Here it is complained that the plaintiffs had made an arrangement for the sale of the drafts, at the rate of 2-¡¡- per cent, discount per month, when they were prevented from effecting the same in consequence of the injunction, and in the meantime, the acceptors failed, and one of them, W. H. Pattison, made a surrender of his property under the insolvent laws. As the obligation, in this case, does not arise from a quasi-offence, it is clear that in the assessment of damages, the law leaves no discretion to the Judge, who must be governed by the rules laid down in the Civil Code, Art. 1928.

I am, therefore, of opinion that there should be a judgment of non-suit against the plaintiffs with costs in both courts.

Mr. Justice Buciianan, concurring.


author: Spoitoed J.

text:
    Michael Carvin v. Thos. C. Bates & Co.
    Plaintiff obtained a judgment against T. O. Bates & Oo. The pleadings nowhere disclosed the individual names of the partners. The N. 0., O. and G-. W. 3t. It. Oo. were garnisheed by him and ashed whether anything was due by the Company to defendants, Thos. O. Bates <& Go., or to Thos. O. Bates and-■ Benson. The It. R. Company answered in the negative. Plaintiff attempted to contradict them. The evidence showed that the It. R. Company owed at the time of the service of the interrogatories, a firm styled Bates, Benson & Oo., more than the amount of plaintiff’s claims v. Thos. 0. Bates & Co.; but that Bates, Benson db Oo. were a distinct firm composed in part of different members, and doing a distinct business from TJios. O. Bates & Co.] and that Thos O. Bates and IVilUa/m B. Benson belonged to both firms. There was no evidence that either firm had liquidated its affairs, or that there was any collusion to defeat the plaintiff’s demand.

      HeM,: That the debt due by the R. R. Company to Bates, Bmson & Oo. was a particular asset of that firm, and that as such it could not be taken in execution for the debt of an individual member of the firm; nor could the supposed interest of an individual member of the firm in this particular-asset of the partnership, be seized under fi. fa. to satisfy his individual debt. No more could the supposed interest of Bates anil Benson in this asset belonging to Bates, Benson & Co., he seized to satisfy the debt of T. O. Bates t& Oo. If it could not be thus seized in execution, it could not be thus attached.
    from the Fifth District Court of New Orleans. D. Augustin, J.

      Michel & Gilmore, for plaintiff.

      M. M. Cohen and Holt, for N. O,, O. and Q-. W. R. R.Co., garnishee and appellant :
    Partnership property must be applied to the payment of partnership debts, in preference to those of the individual partners.” C. C., 2794; 12 L., 870; 13 L., 279; 2 R., 458; 11 R., 130; 2 A., 87 and 810; 3 A., 189 and 319.
   Spoitoed J.

The New Orleans, Opelousas and Great Western Railroad Company has appealed from a judgment condemning the Company, as garnishee, to pay to the plaintiff the amount of his judgment against T. C. Bates & Co.

The plaintiff sought and procured his judgment against the firm of T. C. Bates & Co., in its social name, and the pleadings nowhere disclose the individual names of the partners.

The Railroad Company cited in garnishment was asked, whether anything was due by the Company to “defendants, Thos. C.Bates & Co., or to Thos. C. Bates and-Benson ?”

The Vice President of the Company, on its behalf, answered all of the plaintiff’s interrogatories in the negative.

The plaintiff sought to contradict these answers, and the question now is, has he succeeded in doing so 1

The evidence is clear that the Company, at the date of the service of the interrogatories, owed a firm styled Bates, Benson & Go. more than the amount of the plaintiif’s claim against T. C. Bates & Go.

But the evidence is equally clear that Bates, Benson & Co. were a distinct firm, composed in part of different members, and doing a distinct business from T. C. Bales & Go., although Thomas C. Bates and William B. Benson belonged to both firms.

There is no evidence that either firm had liquidated its affairs, or that there was any collusion to defeat the plaintiff’s demand.

The debt due by the Railroad Company' to Bales, Benson & Co. was a particular asset of that firm.

As such, it'could not be taken in execution for the debt of an individual member of that firm, nor could the supposed interest of an individual member of the firm in this particular asset of the partnership, be seized under fi.fa. to satisfy his individual debt. Smith v. McMeeken, 3 An., 319; Bank of Tennessee v. McKeaze, 11 Rob., 136. No more could the supposed interest of Bales and Benson in this asset belonging to Bates, Benson & Co., be seized to satisfy the debt of T. C. Bates & Co.

If it could not be thus seized in execution, it could not be thus attached. Alexander v. Burns, 6 An., 704.

The answers of the garnishee have not, then, been successfully impeached, and the judgment must be reversed.

It is therefore ordered, that the judgment rendered in this case against the New Orleans, Opelousas and Great Western Railroad Company, cited in garnishment, be avoided and reversed; and it is further ordered and decreed, that there be judgment in favor of the said Company, with costs in both courts.


author: Merrick, 0. J. Voobhies, X,

text:
    Succession of John Ducker.
    It is well settled, both by the Civil and Common Law, that a judgment gives rise to an action to enforce it. Whenever this action is brought, it is subject to the law of the forum, and the prescription of the forum alone will bar such action.
    Anypaymentof a debt made by one who administers an estate both as Tutor and Curator, interrupts prescription of the debt, whether the payment be made in one capacity or the other.
    A statute of Mississippi provides, that “judgment in any court of record of this State shall not be revived by scire facias; nor shall mvy action of debt be vnsMtuted thereon after the cxpwaMon of seven yecui'S next after the date of such judgment f etc. Voorhies, J., andBucnAUAN, J., (dissenting,) were of opinion that, under this statute, a judgment that could not be enforced in Mississippi, could not be enforced in this State. “ An action to enforce the payment of a judgment is undoubtedly the remedy given to the creditor by the law of the forum, but the faith, credit and effect to be given to such judgment must be considered as pertaining to or inherent to the right.”
    PPEAL from the District Court of Concordia, Farrar, J.
    ÍX Sage, for York.

      Farrar and Clark, for opponents.

      Stacey, for absent heirs.
   Merrick, 0. J.

A majority of the court are of the opinion that the judgment of the lower court should not be disturbed, except so far as to amend the same by rejecting the payment of $2000 alleged to have been made to the Planters’ Bank.

The principal contest has arisen out of the construction of the statute of Mississippi, which declares that no action of debt shall be instituted on a judgment after the expiration of seven years after the date of said judgment. It is contended in this court, on the one hand, that this statute bars the right, and consequently can be invoked everywhere; on the other hand, that it is but a statute of limitations, and bars the remedy only. We think the latter opinion is so well established by authority, in which our own courts and the Court of the United States concur, that it ought not to he disturbed by us. It is well settled, both by the Civil and the Common Law, that a judgment gives rise to an action to enforce it. Whenever this action.is brought, it is subject to the law of the forum, and the prescription of the forum alone will bar such action. 3 Zacharie, p. 373, No. 769: JDeseffeis de la chose jvgée; 2 Savigny, 246-248; 13 Peters’ R., 324, 328; McElmoyle v. Cohen, 7 N. S.. 108 ; Union Cotton Co. v. Lobdell, 3 An., 220; Lacoste v. Benton, 7 An., 600 ; Bacon v. Dahlgreen, 7 An., 272; Taylor & Hadden v. Joor.

It appears that Gen. Sparrmo administered the estate, in his capacity both of tutor and curator. Many of his vouchers state that the money was received of him as tutor, others that it was received of him as tutor and curator, and others as curator only. Ashe had the capacity to administer the estate in both capaci-cities, a majority of the court think that any payment made by him on account of the estate interrupted prescription, and that the ■ payment by him of the notes held by the Bank of the United States had the effect of interrupting prescription upon them.

We have been unable to discover any evidence of the payment of the $2000 to the Planters, Bank, and we are unanimously of the opinion that the judgment must be amended in this particular, as prayed for.

It is therefore ordered, adjudged and decreed by the court, that the judgment of the lower court be so amended as to direct and order that H. D. Mandeville, John W. Walworth and the Montgomery trustees of the Planters’ Bank of Mississippi he placed upon said tableau of distribution for their judgment of $3199 74, with 8 per cent, interest thereon per annum, from the Oth day of December, 1836, until paid, payable in the money of said Planters’ Bank; and it is further ordered, adjudged and decreed, that the judgment of the lower court he, in all other respects, affirmed; and it is further ordered, that the cost of this appeal be divided equally between and paid by the succession of John Ditcher, Horatio B. Pennoch, S. W. Oákey and Maria Boulden.

Voobhies, X,

with whom concurred Buchanan, X,

dissenting. In September, 1837, John Ditcher’s succession was opened in Jefferson county, State of Mississippi, the place of his domicil, and Thomas A. Compton was appointed the administrator. The creditors were duly notified to present their claims within eighteen months, in accordance with the statute of that State. On the 28th October, 1844, the administrator filed his final account of administration, showing a balance of $3860 61 after the payment of the debts, which amount was homolo-gated by the Probate Court.

The deceased also left a considerable estate in Louisiana, on which letters of administration were granted to Edward Sparrow by the Probate Court of the parish of Concordia, about the same time that the Mississippi estate was opened.

The record shows that Sparrow’s first account of administration was filed on the 1st May, 1845, and the second, with a statement or list of claims against the estate, purporting to be a tableau of distribution, on the 11th May, 1849. This account, showing the receipt of funds to the amount of $58,281 42, and disbursements to that of $18,288 79, leaving a balance of $39,992 63, alleged to be for distribution among the ordinary creditors, has given rise to various oppositions. H. B. Pennoch, S. W. Oákey and Maria Boulden filed an opposition, as creditors, against all the claims therein set forth, but afterwards withdrew the same, except as to those set up by the Bank of the United States, as follows, viz :

1. Twelve thousand and four dollars, besides interest, amount of judgment rendered in Mississippi on the 16th June, 1836, against John Ducker, in favor of said Bank.

2. Twelve thousand five hundred and twenty dollars, besides interest, amount of judgment also rendered in Mississippi, on the 16th June, 1836, against John Ducker, in favor of the Planters’ Bank of Mississippi, and by the latter transferred to the Bank of the United States.

3. Thirteen thousand two hundred and thirty-two dollars and forty one cents, as transferrees Of two promissory notes signed by John Ducker, on the 2d May, 1837, to the order of and endorsed by George Overakei and Farnsworth, and by the latter to the Planters’ Bank of Mississippi, their transferrors, one for the sum of $6421 44, payable eleven months after date, and the other for the sum of 6810 97, payable nineteen months after date. On the 26th April, 1839, Edward Sparrow, as tutor of the minor, Sarah Ducker, paid on eacli of these notes the sum of $2692 34, which is endorsed thereon.

On the 6th May, 1850, the trustees of the Bank of the United States also filed an opposition to this account, complaining: 1. That 8 per cent, interest, to which they were entitled under the law of Mississippi, had not been allowed on said notes, which were, besides, improperly classed with the privilege to be paid in the notes of said Planters’ Bank. 2. That the judgment debt of $12,520, which they held as transferrees of said Planters’ Bank, was also improperly classed with the like privilege of being paid in the notes of said Bank. 3. That their judgment debt of $12,004 was improperly rejected.

The District Court sustained the opposition of the Bank of the United States, and also decreed an amendment of the tableau by classing the trustees of the Planters’ Bank of Mississippi as creditors for the sum of $3199 74, with 8 per cent, interest from the 3d of December, 1830, until paid, subject to a credit of $2000, paid on the 6th March, 1839, and with privilege to the estate to pay the residue in the notes of said Bank.

H. W. Pennocli, S. W. Oalcey, Maria Boulden and the Planters’ Bank are appellants from said judgment.

The appellees’ prayer for an amendment of the judgment appealed from, in their favor, has been waived by them, and, 1 understand, the judgment acquiesced in by the curator. But it is clear that the rights of the appellants, Pennoclc, Oalcey and Boulden, cannot be affected by this understandings consequently, the case must be considered without reference to it.

It is contended by these appellants that the appellees’ demand is barred by the statutes of Mississippi, one of which provides: “ All claims against the estates of deceased persons shall be presented to the executor, administrator or collector within eighteen months after the publication of notice for that purpose by such executor, administrator, etc., and not after; and all claims not presented within the time aforesaid shall be forever barred, and the estate of the testator or intestate shall be thereafter discharged from the payment of such claim or claims,” etc., etc.

This statute has been held by the highest tribunal of Mississippi to be merely a statute of limitations, a bar to the remedy. It is true our predecessors, in the case of Harrison v. Stacy, 6 R. R., 15, held otherwise; but this was previous to the ruling of the Mississippi court, whose decisions must be viewed as the correct exposition of its own statutes. 5 Smedes & Marshall’s Rep., 661; 7 Ibid, 441; 10 Wheat, ICO.

The other statute declares: “Judgments in any court of record of this State shall not be revived by scire facias; nor shall any action of debt be instituted thereon after the expiration of seven years next after the date of such judgment, etc.” Under this statute, it is clear that not only the remedy, but the right of the appellees to the judgments in question, would be extinct in Mississippi, as no action of debt could be instituted thereon. The question, then, recurs, are they entitled to anymore force and effect in this State 1 The negative seems to have been the doctrine recognized by our predecessors in the case of the Succession of Tilglman, 7 R. R., 391, which is directly in point.

In the case of Hampton v. McConnel, Chief Justice Marshall said: “This is precisely the same case as that of Mills v. Dugué. The court cannot distinguish the two cases. The doctrine then held was, that the judgment of a court should have the same credit, validity and effect, in every other court of the United States, which it had in the State where it was pronounced, and that whatever pleas would be good to a suit thereon in such "State, could be pleaded in any other court in the United States.” The distinction between the right and the remedy is too well settled and understood to need any illustration. An action to enforce the payment of a judgment is undoubtedly the remedy given to the creditor by the law of the forum, but the faith, credit and effect to be given to such judgment must be considered as pertaining to or inherent to the right. 13 Peters, 324.

But it has been urged by the appellees, that their claims were presented to and duly acknowledged By the curator. There is no evidence in the record which shows that the $12,004 judgment was ever presented to the administrator in Mississippi.

The testimony of Joseph L. Roberts shows, that he acted as the agent of the appellees, and, as such, presented a transcript of this judgment, together with that of another, to Sparrow, the curator, in the fall of 1842 or spring of 1843 ; that the presentation was subsequently acknowledged on the envelope of one of them in the handwriting of General Sparrow. These envelopes were in his (witness’s) office, but could not be found.

Mr. Clark testified, that at the time he filed the opposition for the appellees, the transcript was placed in his hands by Roberts; “it then hadan envelope, which contained a writing to this effect: ‘Presented 12th April, 1844,’ in the handwriting of and signed by Sparrow, as curator.” It was his impression that he had filed it with the opposition.

Ferguson testified, that when he handed the record to Mr. Clark, as attorney, “ it had written upon it the acknowledgment of Sparrow, curator or tutor, written in Sparrow's handwriting, and signed by him, as curator or tutor. He was struck with the fact that the acknowledgment of Sparrow was on the envelope, instead of on the document itself.” General Sparrow. testified that he had no recollection of the presentation of the claim previous to the filing of the tableau on the 12th May, 1849.

This, in my opinion, did not amount to a sufficient acknowledgment to interrupt prescription. It is requisite that the creditor should present his claim, if liquidated, to the administrator or curator, who is thereupon authorized to write on the evidence of the same, a declaration that he has no objection to its payment, or any other words amounting to an acknowledgment sufficient to authorize the Judge to order it to be ranked among the acknowledged debts of the succession. C. P., 985; 12 R. R., 508'.

As regards the other judgment, there is no proof of its acknowledgment, except the following endorsement on the transcript: “ Presented, 1st January, 1841, Edward Sparrow, tutor, etc.” I consider this insufficient to bind the succession, or to interrupt prescription.

I hold the two promissory notes given by the deceased on the 2d May, 1837, to be extinguished by prescription. C. C., 3505, 3506. The partial payment endorsed on each of these notes, in April, 1839, by Edward Sparrow, as tutor of the minor Sarah Rucker, is the only evidence exhibited by the record of the acknowledgment of this claim, and is clearly insufficient to render the estate liable or to interrupt prescription.

The trustees of the Planters’ Bank of Mississippi complain of the credit of $2000, allowed against their claim. There is no' proof of this payment in the record. It ought, therefore, to be rejected.

I am, therefore, of opinion, that the judgment of the court below ought tobe reversed, the tableau of distribution be amended, so as to exclude the claims set up by the trustees of the Bank of the United States, in so far as the same may be prejudicial to the rights of Pennock, Oakey and Boulden, and also amended by classing the trustees of the Planters’Bank as ordinary creditors, for the sum of $3199 74, with eight per cent, per annum interest from the 3d of December, 1836, until paid, and all the eosts resulting from the opposition of the trustees of the Bank of the United States should be borne by that Bank, in so far as the said costs may be prejudicial to the rights of said Pennock, Oakey and Boulden.


author: Merrick, C. J.

text:
    City of New Orleans v. Branch of Louisiana State Bank.
    The charter of the Louisiana State Bank exempts from taxation the hanking houses of its branches, and all real estate acquired in the regular course of its business.
    The assessment by the city authorities, on account of the subscription to railroad stock, and for the consolidated loan tax, is essentially a tax.
    from the Sixth District Court of New Orleans, Cotton, J.

      Labatt, for plaintiff and appellant.

      Hunton & Bradford, for defendant.
   Merrick, C. J.

This suit was instituted to recover of the defendant $2593 63, taxes levied upon the real estate of the defendants to meet the first installments of the subscription of the city of New'Orleans to the Jackson and Great Northern Railroad Company, and to the Opelousas and Great Western Railroad Company, and also to meet the consolidated loan tax of the city.

The Bank contends, that by the 17th section of her act of incorporation, her real estate is exempt from taxation. The last paragraph of this section is in these words, viz:

“ And the stock of, and real estate belonging to said Bank, shall, forever during the continuance of its charter, be exempt from the payment of any State tax, and from the payment of any tax laid by any parish or other body, public or corporate, under the authority of this State.”

The language of the charter of the Bank is comprehensive, and clearly embraces any real estate which the Bank may possess in the regular course of its business, as a banking institution. There is nothing in the record to show that the property owned by the Bank was acquired in any other manner, or that it is held for any other purpose.

The assessment made under the Act of the Legislature, approved 12th March, 1852, providing for the subscription of stock in works of internal improvement by parishes and municipal corporations, is essentially the assessment of a tax. The contingent benefit which the tax-payer may or may not derive from the stock, does not, in our opinion, change its character. Like other taxes, it is assessed; it is collected by the Tax Collector, and goes into the city treasury to constitute the fund to meet the subscriptions of stock. It is designated by the Act .of the Legislature, authorizing the subscription of stock, as a tax. We Ibipk, therefore, that the attempt of counsel to distinguish the assessment from a tax, has failed, and that the case of Municipality No. One v. The Louisiana State Bank, 5 Ann., 397, is decisive of this.

Finding no error in the judgment of the lower court, which is in favor of the defendant, it is ordered that the same be affirmed, with costs.


text:
    Same Case.
   Merrick, C. J.

The Louisiana State Bank has made herself a party in the place of the Branch Bank, attempted to be sued in this case.

This cause can hardly be distinguished from the case of the City v. The State Bank of Louisiana, (No. 3547,) just decided. As was intimated in that opinion, the charter of the Bank exempts from taxation not only the banking house of the mother Bank, but also the banking houses needed for its branches, and all real estate acquired in the regular course of business as a Bank, and held for the furtherance of its interests as such institution.

In the ease referred to, we have decided that the assessment by the city authorities, on account of the subscription of railroad stock, and for the consolidated loan tax, is essentially a tax. The ease, therefore; of the City of Lafayette v. Male Orphan Asylum, 4 An., 1, relied on by plaintiff, is inapplicable.

The judgment of the lower court must be affirmed.

Judgment affirmed, with costs.