text:
    No. 6302.
    Bayly & Pond vs. Paul Fourchy et al.
    •X dcfoiKlnnfc cannot be bold in damages on account of tlie publication of an alleged libolous letter, when tbe plaintiff fails to show that tbe letter was either written, or composed by tbe defendant, or that be caused it to be written, or composed, or assisted therein, or published it, or caused it to be published.
    '.The sworn statement of a man of admitted truth that he did not write certain memoranda, will outweigh the conflicting testimony of witnesses, some of whom recognize a resemblance to his handwriting in that of the memoranda, and some of whom who do not.
    Because one insurance company has agreed with a certain plaintiff to pay on its policy such proportion as might be adjudged in a certain suit due to him by another company on its policy, and, haying an interest in the question, has employed counsel to assist in the investigation, is no reason to hold it bound in damages for slanderous matter in the pleadings of that other company, especially where it is shown not to have known of the -charges made in the pleadings.
    INo client can be held in damages for any slanderous or libelous words uttered by his attorney-
    APPEAL from the Fifth Judicial District Court, parish of Orleans. Gullom, J.

      Kennard, Howe & Prentiss for plaintiffs and appellants.

      A. & W. Voorhies, Semmes & Mott, for defendants and appellees.
    Kennard, Howe & Prentiss, for plaintiffs and appellants, contended :
    First — The verdict of the jury will not bo disturbed unless “manifestly erroneous,” and then only to correct such errors as the court can •correct from the evidence in the record. 20 An. 465,458 ; 22 An. 31; '8 L. 492 ; and many other decisions quoted in 1 Hennen’s Dig. 92 (6), 1.
    Second — When from the evidence in the record an error of the jury can be readily detected and corrected, this court will make the correction, and render such judgment as should have been made by the lower court. 29 An. 172 ; 25 An. 174 ; Perret vs. N. 0. Times newspaper.
    Third — The verdict of the jury is manifestly erroneous only as to the question of 'damages allowed. The record contains plenary proof of large actual damages.
    Fourth — That the verdict of the jury, so far as damages are concerned, is rather a compromise than a verdict. See Falvey vs. Stamford, 11 English Reports; Moak’s Notes, p. 146, (54); Bowman vs. Flower, 3 N. S. 641; 3 A. 69 ; 3 Johnson, 63 ; Sedgwick on Damages, 36 and 45 ; Domat du Droit Public, lib. 3 ; Merlin’s Rep. verbo injure; 2 L. 72 ; 5 R. 116.
    Fifth — All who concur in the authorship or publication of a libel are alike responsible. Hence a corporation may become liable for a libel. Townshend on Slander and Libel, 2d ed. S. S. 115,117 (and note 3, p. 148), 265, sec. 265, p. 460 ; 27 A. 367 ; 28 A. 435 ; 11 A. 206.
    Thomas J. Semmes, contra, contended :
    First — That the plaintiffs suing as a firm cannot recover damages for a personal libel. Townshend on Slander, sec. 262 ; 3 C. and F. 196 (14 E. L. p. 269).
    Second — That where suit is brought for libel on the business interests of a firm, malice or willful purpose to injure is a necessary ingredient of the action. 57 N. Y. 125 ; 4 Queen’s Bench, 70.
    Third — That the answer was not instigated by the company or its president. It was filed by counsel on t.heir own view of the facts. This is evidence of probable cause and want of malice, and protects the defendants. 62 Ill. 107 ; 25 Penn. 275 ; 8 A. 12; 11 A. 289 ; 9 A. 219. Fourth — That a defendant cannot be held liable for averments pertinent to the issue in defense of a suit against them. 86 E. C. L. 126 ; 5 Queen’s B. 94; 11 B. Monroe, 48 ; Marshall, 480 ; 3 Metcalf, 198 ; 4 N. Y. 91; 1 Denio, 43 ; 1 Harrington, 3; 4 Sneed, 11; 2 Strobhart, 447 ; 21 A. 376 ; Revised Stat. of La. 1870, section 123; 3 Ellis & Blackburn, 929 ; (77 E. O. L.); 8 M & W. 691; 4 Queen’s B. 735.
    Fifth — The office of the innuendo is to point the application, not enlarge the sense. Andrew vs. Woodmansee, 15 Wend. 235.
    Sixth — The innuendo must allege that those who read the article understood it in the sense of the innuendo. 34 California, 58; 15 Wend. 235.
    Seventh — The initiation of the libel cannot be proved by witnesses. 4 Wend. 325 ; 5 John, 211.
   The opinion of the court was delivered by

Spencer, J.

Plaintiffs sue defendants for 1100,000 damages, caused by certain alleged libelous and slanderous acts. The acts complained of are:

First. The publication in the New Orleans Bulletin of an article signed “S. A. Durand, adjuster,” wherein it is alleged there are various slanderous and false charges made relative to plaintiffs and their business. Both defendants are charged with participation in this publication.

Second. The filing and publication by the defendant, the Merchants’ Mutual Insurance Company, of an answer in the case of Bayly & Pond vs. the London and Lancashire Fire Insurance Company, in the United States Circuit Court, wherein plaintiffs are charged with arson and other high crimes.

The defendants filed a general denial, and the case was tried by a jury, which returned a verdict of one cent damages for^plaintiffs against defendants in solido.

Plaintiffs appeal, and defendants pray an amendment of the judg.-mentso as to reject plaintiffs’ demand in toto.

The record is very voluminous, and much evidence was adduced pro and con.

We may simplify the case by premising that no serious attempt was-made to hold the insurance company liable for the publication of the Durand letter; nor is it pretended that Fourchy is personally liable for the slander alleged to have been contained in the answer-filed as aforesaid in the Circuit Court. We have, therefore, two questions presented, viz.:

1. Is Fourchy responsible for the publication of the Durand letter, and if so, is it libelous ?

2. Is the insurance company liable and responsible for the answer filed in the Circuit Court ?

As regards the first question, under the view we have taken it wilf not be necessary to discuss whether the Durand letter did or did not contain libelous matter ; for the reason that we think the plaintiffs have-failed to show that that letter was either writtten or composed by Fourchy, or that he caused it to be written or composed, or assisted therein, or published it, or caused it to be published. In saying that Fourchy did not write any part of the Durand article, we speak of the article proper, and not of the document annexed and referred to by Durand. The annexed document consisted entirely of extracts taken from the sworn statements of B. M. Pond, relative to the fire and the loss of Bayly & Pond thereby. The extract from Pond’s testimony was procured by Durand from Mr. Fourchy, under circumstances which will be hereafter mentioned.

There is no dispute as to the -fact that the manuscript letter delivered to and published by the Bulletin was signed by S. A. Durand, and that he, in person, carried it to the Bulletin office, and solicited its publication. Mr. Baker, the editor, seems to have objected to the article as being too severe, and undertook to make certain alterations in it, by erasures and interlineations. Durand, though not a regular employee of the Merchants’ Insurance Company, frequented its office, having been sent from'Atlanta, Ga., to act as an adjuster of the Bayly & Pond loss by another of the many companies involved therein.

While negotiations were pending between Durand and Baker, for the publication, they called together at the Merchants’ Insurance Company’s office, where they found Mr. Fourchy, the president of the company. Mr. Baker then mentioned to Mr. Fourchy the fact of Mr. Durand desiring him to publish the letter, stating that he thought it too severe. Fourchy replied that it was a matter with which he had nothing to do, and that he and Mr. Durand must act to suit themselves. After some further talk between Baker and Durand, the former said to the latter: “If you will sign the paper with your own name, I will publish it.” Durand took a pen and signed it, and they both left the office.

•Mr. Fourchy (whom plaintiffs’ counsel admits to be a man of undoubted truthfulness) swears that he had no share or concern in the writing or publication of the letter, That some time before its publication Durand brought to him 'copies of Pond’s sworn statements above mentioned ; that he asked Durand’s permission to make a copy of them; that he did make the copy, and put it in his desk; that at a still later period Durand came into his office, and asked for the loan of the copy, and upon receiving it took it away and did not return it. This copy so borrowed, and in Fourchy’s handwriting, was delivered by Durand to the Bulletin, as an annex to his letter. Mr. Fourchy swears that he never saw the Durand letter before its publication but one time, and that was momentarily, when Durand handed it to him and asked him to read it. He did read it, and at once returned it to Durand. He says that Durand had repeatedly urged upon the underwriters of Bgyly & Pond the necessity of replying through the press to the various articles published assailing the insurance companies; but that he absolutely refused to enter into any newspaper war. This statement of Mr. Fourchy’s position at the time is confirmed by other witnesses. It seems that the president of one of the interested companies made a similar suggestion at one of their conferences ; but Mr. Fourchy promptly opposed the proposition.

The plaintiffs endeavored to show that certain interlineations and erasures, some in ink, and some in pencil, were in Fourchy’s handwriting. One witness testified very confidently that the interlineations in ink were in defendant’s hand; but Mr. Baker, the editor, at once exploded that theory by swearing that he had himself made them. Further effort to fix those in ink on the defendant seems then to have been abandoned, and resort was then had to experts, to show that those in pencil were of defendant’s making. We have the original manuscript before us, and have, therefore, ample opportunity to appreciate the difficulty of this undertaking. The pencil markings are very indistinct, cramped, crowded, and some of them written on the back of the paper. Three experts thought they could trace a resemblance to Fourchy’s handwriting in those peneiliDgs. Per contra, one said that it was utterly impossible to do any thing of the sort. Many of the employees of the insurance company and of a bank, of both which Fourchy was president, were sworn, but they could recognize no resemblance to Fourchy’s hand. Suffice it to say that in our opinion such evidence, when confronted by the positive oath and denial of an admittedly truthful man, weighs but little ; especially when it is shown by equally credible witnesses that Eourchy had persistently refused to enter upon a discussion of the Bayly & Pond Are, through the newspapers.

Wo are satisfied that the paper which Welshans says Eourchy exhibited to him was the copy of B. M. Pond’s answers on oath. He says it was headed “B. M. Pond on Bayly & Pond;” a very appropriate designation of that document, containing as it did, some rather startling statements as to the grocery business in New Orleans.

The effort to show that the Merchants’ Insurance Company paid for the publication was equally abortive. So far, therefore, as Eourchy is concerned, the plaintiffs have failed to make out a case.

2. The facts relative to the second question are as follows : Bayly & Pond were heavy dealers in the grocery business, and were burned out in latter part of May, 1874. The loss was large. They had insurance in seventeen different companies, aggregating $197,000. They stated their loss at first, at $193,721 64; later, at $183,312 88, and finally) after deducting what was saved, at $181,608 05.

The insurance companies appointed a committee to examine into the matter, and they seem to have reached the conclusion that the loss was about $132,000. There was, in consequence, delay in adjusting the loss, and more or less discussion about the circumstances attending the fire. Some of plaintiffs’ employees were arrested and charged with arson, but finally released. At length, an agreement was reached to the effect that the insurance companies would settle as for a loss of $160,000, each company to pay its pro rata on that basis. That Bayly & Pond should bring a suit against one or more of the companies, and establish their right to indemnity and the amount of their loss. If they established a greater sum than $160,000, the companies were to pay the additional sum. If less, the insured were to make restitution ; both parties reserving their full rights. The companies to abide the result of the suit to be instituted. Accordingly, Bayly & Pond brought suit in the United States Circuit Court, against the London and Lancashire Insurance Company, to recover on its policy. That company filed an answer, and alleged that Bayly & Pond had fired or caused to be fired their own premises, and had made up false and fraudulent statements of their losses, etc. It seems that several of the other companies interested employed counsel to assist the defense. Among these was the Merchants’ Mutual Insurance Company. No pleadings were filed in its behalf, however. Its name nowhere appears as a party to that suit. It had simply agreed t'o pay, not any part of the sum due by the defendant in that suit, but the same proportion on its own policy as should be recovered of the defendant company.

It is affirmatively proven that the Merchants’ Mutual Insurance Company gave its counsel no instruction whatever, as to the line of defense to be adopted; certainly gave no instruction to charge the plaintiffs with arson and false swearing. It is equally certain that no paper or pleading was written or filed in the name of that company making such charges.- The very most that can be said, therefore, is that the attorney of the Merchants’ Insurance Company, in its interests, maintained in the name of the London and Lancashire Company, in oral argument, these charges against plaintiffs. The President of the Merchants’ Mutual states that he never authorized his attorney to make such charges, and never saw or knew of the answer referred to until this suit was brought. Our. statute declares explicitly (R. S. 123), that “ no client or other person shall be held liable or responsible for any slanderous or libelous words uttered by his attorney-at-law,” etc. Because the Merchants’ Insurance Company had agreed to pay on its policy such proportion as might be adjudged due by another company on its policy, and, having an interest in the question, had employed counsel to assist in the investigation, is no reason to hold it [bound in damages for slanderous matter in the pleadings of -that other company, especially where it is shown not to have known, much less directed, such slanders to be charged.

We think there should have been judgment for the defendants.

It is, therefore, ordered and decreed that the judgment appealed from is avoided and reversed, and it is now ordered and decreed that plaintiffs’ demands be rejected at their costs in both courts.


source: Caselaw Access Project

author: Spencer, J.

license: Public Domain

text:
    No. 7730.
    Succession of Elizabeth A. Carroll.
    whether or not a consent judgment v-as rendered In a ease is a question of fact which this Court will remand to the lower court for trial.
    ^PPEAL from the Parish Court, parish-of Red River. Broughton, J.

      L. B. Watkins and J. F. Pierson for'succession.

      Joseph H. Pierson for opponent.
   On Motion to Dismiss.

The opinion of the court was delivered by

Spencer, J.

The appellee has filed in this court his affidavit to the effect that the judgment appealed from was rendered by the consent and agreement of the parties to this suit. He prays that the appeal be dismissed.

Appellants deny the allegations of the appellee, and ask that the canse be remanded to try the issue thus made. Consent decrees cannot be appealed from ; but this court cannot sit as one of original ¡jurisdiction to try the issue here raised.

It is therefore ordered and decreed that this cause be remanded to the court a qua, for the sole purpose of trying the question, whether or not the decree appealed from in this cause was rendered by consent and agreement of parties.


author: DeBlanc, J.

text:
    No. 7734.
    J. C. Thiac et al. vs. Aimee Jumonville, Wife, etc.
    Where the recorded contract made by a planter with. liis factor fixes the amount of the • advances and supplies for which the latter shall have a privilege on the growing crop, the factor will not have a privilege on the crop for advances over and above the fixed amount, to the prejudice of a second factor having a subsequently recorded privilege on the crop.
    Money of a planter in the hands of his factor will not be imputed to the payment of the privilege debt for advances subsequently made by the factor to enable the planter to make his growing crop, when the’Contract between them stipulates that the privilege debt should be paid out of the proceeds of the crop, and when there is a large balance due the factor for certain advances made by him and not covered by his privilege. The money of the planter will be imputed to the payment of that unsecured balance.
    Where a judgment is based on two debts due by the debtor, and the two debts are carefully and separately designated in the judgment, one as an ordinary, and the other as a privilege debt, the law will imputea payment on the judgment to the extinguishment first of the privilege debt.
    APPEAL from the Fifteenth Judicial District Oourt, parish of Assumption. Beattie, J.

      Walter Guion for J. C. Thiac, plaintiff and appellant.

      Guion & Folse for Raphael Beltran, plaintiff and appellee.
    Walter Guion, for plaintiff and appellant, contended :
    First — Where the plaintiff in sequestration has no privilege the surety-on his bond cannot be held, even though the property be carried away. 0. P. 279, 280 ; 30 A. 522.
    Second — A defendant cannot except to the jurisdiction of the court, as to person,'when he has accepted the forum. 29 A. 194 ; 30 A. 891.
    Third — Jurisdiction having once vested in a court, cannot be taken away by any act of defendant, or any other party. 1 N. S. 299; 14 L. 129 ; 19 A. 500 ; 22 A. 572. '
    Fourth — The oourt which first causes property to be seized must decide all questions of conflicting privileges on if. C. P. 126 ; 28 A. 585 ; 29 A. 315, 320.
    Fifth — A third person claiming a right or lien on property sequestered may intervene and set up bis claim even after tlie release of the property on bond.
    Sixth — Where the privilege of the first furnisher of supplies is recorded for a fixed sum, he cannot claim the proceeds of the crop after the payment of that sum, to the prejudice of a second furnisher of supplies whose privilege was subsequently recorded. 21 A. 498 ; 30 A. 1332.
    Seventh — Where two separate debts are merged in a judgment a payment will not be imputed to either of the debts, but to the partial extinguishment of'the judgment as an entirety.
    Guion & Folse, contra.
   The opinion of the court was delivered by

DeBlanc, J.

In 1877, on the 16th of April, Mr. Yives, acting as the agent of his wife, went before a notary, and — in his own words, “ granted unto Raphael Beltran a special lien and general privilege ‘and mortgage upon the whole of the sugar and molasses ” to be made- — during that year — on a plantation which she had leased, to secure the, re-imbursement of promised advances, the amount of which is fixed — in the act— at precisely eight thousand dollars — and, in 1877, on the 27th of April, a similar privilege “ was granted ” te J. C. Thiac for additional advances, which were not to exceed the sum of three thousand dollars.

Those contracts were recorded on the very day they were entered into — the last one — that of the 27th of April — contains the following «lause: “ It is distinctly understood that this act is — in no manner — to interfere with or impair a prior act- of mortgage granted by Edward Yives, as agent of his wife, on the 16th of April 1877, in favor of Raphael Beltran.”

Under these contracts, Beltran advanced more, Thiac less than they had respectively promised — and, in December 1877, they sued out writs -of sequestration, and caused to be seized — Thiac on the 20th, and Bel-tran on the 29th of said month — -the sugar and molasses subject to their privilege.

Defendant released on bond the sequestered effects, sent them out of the jurisdiction in which they had been seized, and disposed of them. She — thereafter—confessed judgment in favor of Beltran and Thiac, with recognition of the privilege mentioned in the acts of the 16th and 27th of April.

In May 1878 — after the release on bond — the cases of the two creditors against Mrs. Yives, were cumulated on motion of Beltran’s counsel, *' in order to fix the parties’ rights and rank their privileges.” This was ■done without objection. In May 1879, the counsel who had applied for and obtained the order of cumulation, moved to strike it out, on grounds which they must have abandoned, as — in their brief — they merely ask an affirmance of the judgment appealed from.

The district judge held that Beltran’s privilege on the sequestered effects, is superior in rank to that of Thiac, because his contract was the first recorded. Beltran’s counsel contend that — as between Mrs. Vivos and that client — -there existed a privilege beyond that stipulated in the act of the 16th of April, one which — in their opinion — secures, not only the promised advances, but also those — whatever may be their amount — which were needed to carry on defendant’s plantation during the year 1877, and that the priority conceded by Thiac extends to all the advances made by Beltran, whether stipulated or not.

By the recordation of the act of the 16th of April, Beltran and Mrs. Vives notified the world that he would advance to her the sum of eight thousand dollars — nothing more — and she, that — to secure those specified advances — her crop was subject to a privilege in his favor — and in his turn — Beltran was notified, by the recordation of the act of the 27th of April, that — beyond the sum of eight thousand dollars — his claim for any advance made to Mrs. Vives, would — from that date — be outranked by that of Thiac. 30 A. 1332.

When, and before Mrs. Vives entered into a contract with Beltran, she had — in his hands — the sum of $1159 91, which — it is clear — formed no part of the amount which he was to advance, and that sum was properly imputed — by the creditor — to the satisfaction of the general indebtedness of Mrs. Vives, which far exceeds the stipulated loan. He was not bound to impute it to the satisfaction of exclusively the restricted claim of $8000, which — -it was expressly agreed — was to be paid out of the proceeds of the sale of the sugar and molasses, and which— otherwise — would have been partly paid, before the date of the contract from which it sprung.

According to their contracts, the two creditors were to receive— out of the proceeds of the sale of sugar and molasses — Beltran eight, Thiac three thousand dollars ; and — as they have not yet received, out of those proceeds — a proportion equal to the respective advances actually made by them, they are still entitled, under those contracts, and in the order hereafter fixed, to a balance which, added to what they have realized from that source, shall cover the amounts of the effected advances.

Beltran has been paid — -out of funds which — as between him and Thiac — were properly applied to the partial satisfaction of his claim of.•.. $8,000 00 the sum of. 6,464 81f

Leaving due a balance of..... i.$1,545 18¿ which — by reason of at least the priority conceded by Thiac — must be paid by preference to any balance due the latter, out of any money that may be recovered by the enforcement of the lien acknowledged in their favor, on the, 16th, and 27th of April.

As to Thiac, he advanced to Mrs. Vives. @1,594 69 Received, out of the proceeds of the sale of a portion of the

sugar and molasses.'. 1,140 00

And, under the contract of the 27th of April, is yet entitled to @454 69

which — as between him and Beltran — he can claim, out of the proceeds of any effects subject to the common privilege, but after satisfaction of the balance herein fixed as due to his co-creditor.

Thiac’s counsel argues that he had, against Mrs. Vivos, two separate debts, now merged into one judgment, which — in its very nature— became non-collectible, and not subject to execution, except as an-entirety, and that — inasmuch as what he received, was paid on that judgment, that payment must be imputed, first to the interest, and then proportionally to the principal of the two debts.

In the judgment which he obtained against Mrs. Vives, the two debts are carefully and separately designated, one as being an ordinary, the other a privileged debt — and, of the two, that-which — at the date of' the payment — Mrs. Vives was most interested in discharging was the-last mentioned. C. ,0. 2166 (2162); Gilbert, Codos annotés, p. 556, No. 8'.

On the last pages of the brief of Beltran’s counsel, they say: “ A mere glance at Thiac’s account will show that it is almost entirely made up of due-bills, orders, etc., given by Mrs. Vives, to her hands, and bought or paid by him.” On the third page of that brief, we find the declaration that “ so far as the facts are concerned, or that Beltran, or Thiac furnished the amounts claimed by them, there is no dispute.”' Besides, by referring to the motion which is the basis of this litigation, no doubt can be entertained that its sole object was to fix the rank of their otherwise uncontested privileges.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is amended, and Raphael Beltran’s privilege on the sequestered property recognized as superior to that of Jean Charles Thiac, to the extent of fifteen hundred and forty-five dollars, eighteen and one third cents, with legal interest thereon from the 29th of December 1877 ; and — beyond that amount — that Jean Charles Thiac be paid — by preference to Raphael Beltran, and out of any proceeds of the sequestered effects, the sum of four hundred and fifty-four dollars and sixty-nine cents, with legal interest from the 20th of December* 1877. The costs of the appeal to be paid by Raphael Beltran.

It is further ordered, adjudged and decreed that — as thus amended — said judgment is affirmed.


author: DeBlanc, J. Marr, J. DeBlanc, J.

text:
    No. 7332.
    Succession of Hugh McCloskey.
    ■Actions against sheriffs and their sureties are prescribed by the lapse of two years from the date at which the right of action accrued.
    Where the wroDg complained of is malfeasance, an active violation of the official duty of the sheriff, as for a false return, a wrongful seizure, etc., the right of action accrues, and the proscription begins to run from the date of the act.
    Where the wrong complained of is merely a passive violation by the sheriff of his official duty, such as the failure to pay over money collected by him, the right of action accrues, and the prescription begins to run only from the date of the demand made by the party entitled, or his agent or attorney.
    j^PPEAL from the Second District Court, parish of Orleans. Bissot,

      Thos. Gilmore & Sons for executors, appellants.

      8. P. Blanc, assistant city attorney, and F. N. Butler for the city of 'New Orleans, appellee.

      JS. H. Farrar, agent, in propria persona, opponent and appellee.
    <7. It. Ferguson for Hollingsworth, opponent and appellee.

      Breaux, Fenner & Hall, and T. G. W. Filis, amici curiae.

    T. Gilmore & Sons, for executors, contended :
    First — -The effect of that sale (it being a sale, under a decree of the probate court, to pay a debt of the successions of Dubois and Mish) was to extinguish any mortgage or privilege that might have •existed on the property. Succession of Triche, 29 An. 385; 27 An. :279; 24 An. 482 ; 23 An. 298; 21 An. 424, 253; Hennen’s Digest, page '962, No. 2.
    “Second — Beyond that, the evidence shows that the city taxes of 1869 and 1870 were collected by the sheriff under writs of fieri facias. Sheriff’s receipts, A and B, pages 311, 312, 313. Those claimed for 1868, if unpaid at the time of the sale, were not recorded, and without inscription there was no privilege against the property which •could affect third persons. Constitution of 186S, art. 123; Act of 1869, page 114; Adams vs. Wakefield, 26 An. 592; Savings Institution vs. Leslie, 28 An. 496 — both cases of city taxes for 1868; Marin vs. Sheriff, 30 An. 293; Cochran vs. Ocean Dry Dock, 30 An.
    ‘Third — By sections 3615 and 3620 of the Revised Statutes, the sheriff is prohibited from executing a deed of sale to the purchaser until the State and municipal taxes are paid. Not only, therefore, was it his duty to see that the taxes were paid, but he was the special agent of the city to collect them. Ordinances of City, pages 179-190; testimony of Walsh, pages 290-295; Ricker, pages 306-308; Presas, 334-336.

      Fourth — Where property of a succession is sold, and and the accrued taxes due the city of New Orleans are assumed by the purchaser, and the city acquiesces in the assumption, the succession will not be held for the taxes.
    Fifth — Action against the sureties of a sheriff for failure to pay over money collected by him is prescribed in one and two years. And for any tort of the sheriff, such as seizing under attachment the property of a third person, the prescription of one year applies. 0. 0. 3536; Louque’s Digest, p. 495; Rev. Stats. 2816, 2546; 23 An. 300; 25 An. 360; 30 An. 486.
    S. P. Blanc and F.- N. Butler, for the city, contended :
    First- — At the date of the sale, the succession owed the tax; it was then due and exigible; the law required that ah taxes due should be paid out of the proceeds of the sale, and the succession, which has realized the entire purchase price, cannot shift its liability, and relegate the city to a third party for the collection of its tax.
    Second — That until Act No. 73 of 1872 the city of New Orleans did not have to record her liens for taxes, and that after the passage of that act she could not be construed to lose one of her liens for taxes for want of the required record, if it appeared that the record was made as soon thereafter as was practicable.
    Third — The constitutional article requiring the Legislature to provide by law for the registration of mortgages and privileges did not require individuals or corporations to register their liens or mortgages until the Legislature had provided the laws required by the constitution. 24 An. 214; 28 An. 497.
    E. H. Farrar, for himself as agent, contended:
    First — That a sheriff is responsible as depositary for money collected by him, and his liability for such collections is imprescriptible. C. C. 2979 to 2981; 23 An. 474; 26 An. 126.
    Second — The prescription of two years in favor of sheriffs and their sureties, provided in section 3546 of the Revised Statutes, does not begin to run until a demand is made on the sheriff. 3 R. 297; 14 A. 216; 23 A. 299; 30 A. 486.
   The opinion of the court was delivered by

DeBlanc, J.

To the sixth provisional account filed by James D. Martin, as executor of the last will of Hugh McCloskey, three oppositions have been filed.

1. One by the city of New Orleans, in which it claims as being due by said succession taxes of 1868, 1869, 1870, 1871,1872,1873,1874, 1875, 1876,1877, and 1878.

This opposition was partly maintained as to the taxes of 1878, and dismissed as to only the taxes alleged to have been levied in 1868,1869, and 1870.

2. Two others — one by David M. HolliDgswortli, and the third by E. H. Earrar, Esq., as agent of Mrs. Ellen T. V. Fisher. These are based upon claims against McCloskey, as one of the sureties of T. L, Maxwell, late sheriff of the parish of Orleans.

I.

City’s opposition.

The taxes of 1878 were levied on property belongingto the deceased’s succession, and which was sold — in March of that year — to pay legacies, and upon the express condition that the purchasers should assume the payment — over and above the price of adjudication — of all taxes due and exigible in 1878.

The city’s claim for the tax of that year was $1202 60, and — of that amount — the city received from one of the purchasers of the property sold subject to said tax, $525, leaving due a balance of $667 50. It is urged that — by thus dividing its tax-bill — the city acquiesced in the terms of the sale made in March.

“ The mere indication made by a debtor of a person who is to pay in his place, does not operate a novation,” unless the creditor has expressly declared his intention to discharge his debtor.

C. C. 2194 (2190), 2192 (2188).

The terms and conditions of the sale were not fixed with the consent of the city authorities, and could not — without that consent, affect its established rights ; nor can its acceptance of a part of its claim, be construed as an abandonment of the action which it had and has, to enforce the payment of the balance due, on the cash proceeds of the sale.

■ As to the taxes of 1871, 1873, 1874, 1875, 1876, and 1877, the executor contends that the property on which they were levied, has not been sold, and that the city cannot require that they be paid out of funds arising from the sale of other property. Were it not proven — as justly remarked by the district judge — that the estate of McOIoskeyis solvent, that the object of the -executor’s account is to distribute thousands of dollars to his legatees, that defence might be considered and sustained; but debts must be paid before legacies, and the city’s right to collect its annual revenues does not depend on exclusively the sale of the property subject to its tax-liens; and — as regards a solvent succession — that right may be exercised against any funds which belong to it and which are not affected by a privilege excluding that of the city.

In 1871, McCloskey purchased at sheriff’s sale, and for $51,000, which he paid cash, an improved lot of ground, on which — -in 1868 — the city had levied a tax o£ $1200. At the date of the sale, no tax-lien was recorded against said property, and it is now settled that — since the promulgation of the act of 1869, which carried into effect the 123d article of the State constitution — no unrecorded privilege can affect third parties.

26 A. 592; 28 A. 496; 30 A. 293.

The city’s claim for the taxes of 1869 and 1870 is absolutely unfounded. They were paid to and received by the sheriff, who then held writs which he was about to enforce against the assessed property; and the fact that they were not accounted for and did not reach the city's treasury, did not revive a liability which was discharged by a payment regularly made.

IT.

Opposition of E. H. Farrar, agent.

Thomas L. Maxwell — as sheriff of the parish of Orleans — received for Mrs. Fisher, two hundred and eleven dollars, which he failed to account for, and which are claimed against the succession of McCloskey, one of the sureties of Maxwell on his official bond. The executor opposes — as a bar to her demand the prescription of two years, and — to sustain that plea — his counsel rely on sections 2816 and 3546 of the Revised Statutes, which provide : “ That the sheriffs and their sureties shall be able to prescribe against their acts of misfeasance, non-feasance, costs, offences, and quasi-offences, after the lapse of two years from the day of the omission or commission of the acts complained of.”

In Hugh vs. Hernandez, a majority of our predecessors held “that the action against the sureties of a sheriff for money collected by him, and not accounted for to the party entitled to it, is barred by the prescription of two years.” 25 An. 360.

That construction is not justified by the terms of the law — for, as said by Mr. Justice Wyly, who did not concur in that opinion, “the sheriff’s obligation did not spring from any act of omission or commission, nor from an offence or quasi-offence. When he took the money, he committed no wrong, he discharged a duty, and — from the date of that lawful taking — incurred the obligation to restore.

The difficulty in this matter — added the dissenting Justice — arises from confounding the reason for the suit and the cause of the obligation. The sheriff failed or refused to pay over the money; this was the reason for the suit. The obligation to restore was not created by the failure or refusal to pay — it existed long before.

This construction is evidently correct, and Mrs. Fisher’s action against the sureties of the sheriff, is a personal action, which could have been barred but by the prescription of ten years.

III.

Opposition of Hollingsworth.

In 1870, Thomas Maxwell attached, as belonging to a debtor of Gayarré and others, a lot of furniture which Déjean had purchased from Hearing, and sold to another party. A controversy grew out of' that attachment, and — while it was pending — Dójean released the furniture from the attachment, by leaving in the hands of the sheriff the price for which he had sold it — from four hundred and ninety-eight to five hundred dollars. He, thereafter, surrendered in bankruptcy and Hollingsworth purchased from his assignee the claim which he had' against Maxwell, on account of that deposit.

The executor contends that the sheriff was without authority to-receive money in lieu of the attached property, and that — by inducing him to accept that substitution — Déjean—by his own act — discharged his sureties from any liability as to that matter.

It appears — from Déjean’s testimony — that the furniture attached was released by the sheriff, not by virtue of any order of court, but under a private agreement entered into between them. The sheriff turned over to him part of the furniture which he held under and subject to the writ issued on the judgment of Gayarré and others. That was a violation of his official duty, for which he and the sureties on his bond could have been made to suffer, had the judgment creditors succeeded in maintaining their attachment; and — in order to protect Maxwell against the effects of his unauthorized act — Dójean deposited in his hands what they both considered as the value of the released furniture.

Could Maxwell — as sheriff — have relieved himself from 'responsibility, by tendering to the creditors the amount thus deposited, and compelled them to receive it, in lieu of whatever rights they had acquired under the attachment? Assuredly not; and — had Déjean not failed and retained his claim, could he have enforced it against the sureties of Maxwell ? Would he not have been told ; “ You and he did what you had no authority to do — you trusted Maxwell, not the sheriff — your deposit was a voluntary, not a judicial deposit. It was not under an order of court that the sheriff delivered to you a part of the attached furniture, nor under any writ that he took your money. This he and you did of your own will, by mutual agreement, and that officer’s sureties are not liable for a loss which was the result of your own violation of the law.”

In the Gayarré case, introduced in evidence on behalf of Hollings-worth, our predecessors held that Hearing — Déjean’s vendor — was the owner of the furniture which had been attached as belonging to Gay-arre’s debtor. He might have complained of the delivery of the furniture to Dójean; but the latter was not a party to that suit, could not have released said furniture on bond, and obtained from Maxwell, as a. favor, that which he could not have claimed as a matter of right — and that was the possession of effects which he held for a judgment creditor, and which — thereafter—were decreed to belong to Hearing. The unauthorized act, which alone exposed the sureties of the insolvent sheriff to an action on the part of the owner and seizing creditor, for the value of the effects delivered to Déjean, was that delivery itself — tor it was his duty — as sheriff — to retain, subject to the order of the court, the effects-which he had attached. As to the deposit of the money, that was Dé-jean’s act: it created a personal, not an official liability, which Déjean himself could have enforced, and which Hollingsworth — as his transferee — can enforce but against Maxwell.

This defence, we presume, was not urged in the lower court. It is-not alluded to in the brief submitted by Hollingsworth’s counsel, nor in the exhaustive opinion which precedes the decree rendered by the district court. Howsoever that may be, that defence must prevail.

It is — therefore—ordered, adjudged and decreed that, in so far only as it sustains the opposition of David M. Hollingsworth, the judgment, appealed from is avoided and reversed, and his demand rejected; the costs of his opposition in the appellate and district courts to be paid by him.

It is further ordered, adjudged and decreed that — in all other respects — the judgment appealed from is affirmed at the costs of the succession of Hugh McCloskey.

On Rehearing.

Marr, J.

The rehearing was granted, in this case, to David M. Hol-lingsworth, and to the succession of McCloskey as against the city of New Orleans. No complaint was made as to that part of the original-decree which affirmed the judgment of the district court on the opposition of E. H. Earrar; and it became final by the lapse of time. Amici' curiae have asked a modification of our opinion, in so far as it relates-to the prescription in favor of sheriffs and their sureties; and we have-carefully reconsidered the whole case.

I.

Our decision in the claim and opposition of Hollingsworth rests-upon the single ground that the money demanded by him was not received by the sheriff in his official capacity; and that the sureties were not liable for that reason. We see no reason to doubt the correctness of the original decree rejecting this demand; and it will not be disturbed.

II.

We were in error as to the amount due by tlie succession to the city 'for taxes of 1878 on the property in square No. 172. The city claimed $1202 50. It was proven that $525 had been paid by purchasers of part of the property; and the judgment of the district court reduced the amount to $677 50. The assessed value of the property was $50,000;. and the limit of taxation was fixed by the act of 1876, sec. 11, p. 57, at one and a half per cent. At this rate the whole amount of the tax would have been $750; and the actual balance, after deducting the $525 paid oh account, should have been $225. The judgment of the district court, and our decree affirming it, must be corrected in this respect.

III.

The decree in favor of Farrar having become final is beyond our control. The only defense set up against it was the prescription of two years. In the agreement of counsel it was admitied that no demand had ever been made on the sheriff or his sureties until -about two months before the opposition was filed. As we shall see hereafter, the prescription in favor of the sheriff and his sureties for money received by him in his official capacity, does not begin to run until demand has been made of the sheriff, and he has refused or failed to pay. As the demand was made for the first time only about two months before the filing of the opposition, the prescription of two years had not been acquired; and, strictly speaking, it was not necessary to express the opinion that this prescription was not applicable. In support of the plea our attention was called to a single decision, Hugh vs. Hernandez, 25 An. 360; and we adopted the views of the justice who dissented in that case, that the demand was not subject to the prescription of two years. A review of the authorities cited in argument, on the rehearing, inclines us to the opinion that the question has passed into the domain of res adjudicada; and that the views expressed in the original opinion are contrary to the settled jurisprudence of the State, which we would not willingly disturb.

In Semple vs. Buhler, 6 N. S. 665, which was a suit against a sheriff for malfeasance in taking the wife of the purchaser as surety in a twelvemonths’ bond, the court held that the action was barred by.the pre•scription of one year ; and in Fisk vs. Browder, 6 N. S. 691, which was also a suit against the sheriff for malfeasance in making a false return ón a fieri facias; the court again decided that it was prescribed by the lapse of one year.

In 1837 the Legislature passed an act entitled “ An Act to extend the time of prescription in reference to the acts of sheriffs,” which provides that “ no sheriff or his security or securities shall be able to prescribe against his acts of malfeasance, non-feasance, costs, offences and quasi-offences, but after the lapse of two years from the day of the omission of acts complained of.” Acts of 1837, p. 34.

Under the dominion of this act a suit was brought against a sheriff and liis sureties, in his official bond, for his failure to pay to the judgment creditor a sum of money received by him, proceeds of a sale under fieri facias. The court being of opinion that the act covered all the cases in which the sureties of the sheriff could be held liable, maintained the plea of prescription of two years. Mullhollan vs. Henderson, 3 Rob. 297.

In Brice vs. Jones, 5 An. 635, which was a suit against a sheriff for damages for a wrongful seizure, the court held that the prescription of two years was applicable ; and in Kohler vs. Walden, 23 An. 299, which was a suit against a sheriff and his sureties for his failure to pay over money received by him in his official capacity, it was decided that the demand was subject to the prescription of two years.

In the general compilation, acts of 1855, under the title “An Act relative to sheriffs,” p. 367, sec. 10, the act of 1837 was modified and re-enacted as follows :

“That the sheriffs and their securities shall be able to prescribe against their acts of misfeasance, non-feasance, costs, offences and quasi-offences, after the lapse of two years from the omission or commission of the ,acts complained ofand this section was re-enacted, iotidem verbis, in the Revised Statutes of 1870, sections 2816, 3546. No doubt the word costs was a misprint for torts, originally; and it was merely copied from the original, in 1855, and again in 1870.

In Fuqua vs. Young, 14 An. 216, which was a suit against the sureties of a sheriff to recover a sum of money received by him from sales under execution, the court decided that the prescription of two years began to run only from the date of the demand by the judgment creditor, and non-payment by the sheriff; and this doctrine -was affirmed in Kohler vs. Walden, 23 An. This question came before us in Soulé vs. Norwood, 30 An. 486 ; and we decided that, by the terms of the O. P. art. 766, the sheriff was not in default for not paying until the first demand of payment made by plaintiff; and that the right of action did not accrue, and prescription did not begin to run, until the sheriff was put in mora for non-payment of the money collected by him.

We think these several decisions establish the following propositions :

1st. That actions against sheriffs and their sureties are prescribed by the lapse of two years from the day the right of action accrues. See, also, Hardee vs. Dunn, 13 An. 161.

2d. That where the wrong complained of is malfeasance, an active violation of the official duty of the sheriff, as for a false return, a wrongful seizure, etc., the right of action, accrues, and the prescription begins to run from the date of the act.

3d. That where the wrong complained of is merely a passive violation by the sheriff of his official duty, as failure to pay over money collected by him, the right of action accrues, and the prescription begins to run only from the date of the demand made by the party entitled, or his agent or attorney.

It will not be expected that we should say or intimate in advance how we would decide any question' whatever that may hereafter be brought before us ; but we think it not amiss to say that should we be required to pass judicially upon the question of prescription in favor of sheriffs and their sureties, we shall not consider ourselves bound or concluded by the views expressed in our original opinion in this case, however correct we might consider them, if we were at liberty to treat the question as res■ nova.

Our former decree must be modified in conformity with the views herein expressed ; and, accordingly, it is now ordered, adjudged and decreed, that the claim of the city of New Orleans against the succession of Hugh McOloskey for taxes for the year 1878, on the property in square No. 172, be reduced to the sum of two hundred and twenty-five dollars: that the costs of this appeal be borne equally by the city of New Orleans, the succession of Hugh McOloskey, and David M. Hol-lingsworth : and that the original decree herein be, in all other respects, affirmed.

ON REHEARING.

DeBlanc, J.

We held that the action of a judgment creditor against a sheriff and the sureties on his bond, for money collected by the sheriff, on process to him directed, and which he has failed to pay to the creditor, is not barred by the prescription of two years.

That opinion is assailed on the grounds — 1st: that it violates the rule of stare decisis — 2d. that we have entirely mistaken the cause of the obligation evidenced by the bond, and misplaced the time at which it springs into existence.

I.

To sustain the invoked prescription and the charge that we have violated the rule of stare decisis, two decisions are relied upon, one rendered in 1842, the other in 1873, the first by all the judges of this court, and the last — in which the first is not referred to — by only four of said] judges.

We are reminded that, for thirty-seven years, those decisions have-been acquiesced in. This assertion is partly contradicted by our reports. In 1871, less than two years before the last one was read, the very judges by whom it was rendered, held, without a dissenting voice, that a suit to recover from the sheriff money made by him in a judicial proceeding, is not an action against the sheriff for misfeasance or non-feasance in office, and is not prescribed by two years.”

23 A. 474.

In “Soulé vs. Norwood,” the prescription of two years was pleaded in bar of plaintiff’s action against the sureties of a sheriff, for the recovery of money collected by the latter, and — in that case — we ourselves said: “ That it was unnecessary to decide whether that prescription applied to such an action.” 30 A. 486. Those expressions justify the inference that — then—we had neither convinced ourselves, nor been convinced that the Legislature could have intended to shelter, under any prescription, the prevarications of one who — when he collects — does so under a mandate created by law — and who, when he receives, is bound as a depositary.

“ The rule of stare decisis is entitled to great weight and respect, when — as said by this court — there has been, on a point of law, a series of adjudications, all to the same effect.”

6 R. R. 225.

This is undoubtedly correct; but can it be justly asserted that, on the point now under discussion, the jurisprudence has been settled by an unbroken line of invariable adjudications ? It cannot be, and it is not too late to disregard an evident misconstruction, and to hold that the object of the misconstrued enactment could not have been to protect official prevarications ; but that it merely was to fix a reasonable delay, within which the sheriff and his sureties would remain liable for his errors, omissions and neglect in the discharge of his duties.

II.

Have we, as charged, mistaken the case of the sureties’ obligation, and the date when it accrued? We haye not — unless,'however, the sheriff’s obligation to pay to the creditor the money which he receives for him and under a writ, arises — not when he receives the money — but only when, upon the creditor’s demand, he fails to pay it over, and— from that failure — becomes liable, with his sureties, and for an act which, as contended, can be considered as merely an act of misfeasance or non-feasance.

How reconcile that pretension with the admission that the sheriff holds by exclusively the authority of the law, in exclusively the sacred character of an official depositary ? The very foundation of that pretension is sapped by that admission.

One of the express stipulations of the bond subscribed by the sheriff and Ms sureties, is that he shall well and truly pay over all sums of money that shall come into his hands in that capacity; and to contend — as the counsel do — that such an obligation does not precede the sheriff’s failure to pay the money thus received, is to ignore the very terms of the bond, and the date of an obligation which springs from his and his sureties’ consent.

Does the sheriff, by converting to his own use money received by him, in his official capacity and under a writ, and by failing or refusing to pay it over to the party for whom it was received, incur but the prescriptible liability which attaches to acts of misfeasance or non-feasance ? That cannot be : his liability, under such circumstances, is one which no prescription can shelter or destroy.

The term " misfeasance ” — as said by the Supreme Court of Connecticut — “ is often carelessly used to describe a malfeasance — a misfeasance being a default in not doing a lawful act in a proper manner, omitting to do it as it should be done, while a malfeasance is the doing of an act wholly wrongful, etc.”

33 Conn. 115 ; Stewart’s R., vol. 1, p. 576.

Bouvier and Abbott’s Law Dictionaries, in verba,.

Acting on that construction, said court held that the act of a deputy sheriff, who had taken the property of a third person, claiming it to be the property of defendant, was not a mere neglect, default or misfeasance.”

It is admitted that — so far as the sheriff is concerned — the obligation to pay over money which he has collected upon a writ, is of a fiduciary character ; but, we are impatiently told : with that obligation the sureties have nothing to do — that the sheriff may, in his official capacity, incur liabilities distinct from, and independent of those which spring from his bond, while those of his sureties can arise but under the bond, and from alone a violation of the sheriffs duty.

The bond — as to the sheriff and his sureties — evidences but one obligation. As to the sheriff, one of the conditions of that obligation is that he shall pay over whatever he collects and holds for others — and, as to his sureties, the condition is that if he does not pay, they shall. The sheriff does not twice incur the obligation to return what he thus receives ; first, alone and because he did receive, and afterward with his sureties, and then because he failed to pay. His failure does not create his or his sureties’ obligation, it fixes the extent of their anterior and conditional liability, and that failure can, ip no way, lessen that common obligation, and divest it of its fiduciary character.- 26 A. 676 ; 19 L. 462.

Those who hold and possess for others, and not in their names, can never prescribe. That honest, universal and unchangeable doctrine forms a part of our legislation; and, to sustain the two decisions in which it was disregarded — we must, not only adopt a manifest miscon-struetion of the letter and spirit of the act of 1837, but — besides—overrule, for the sole purpose of justifying that misconstruction, the countless adjudications which proclaim that irreversible doctrine, and which, as they are just and constantly adhered to, should — more than the others — be protected by the rule of “ stare decisis.”

The statute of 1837, as at first adopted and afterwards amended, was — it seems — doomed to repeated misconstructions. According to its plain provisions, the prescription of two years runs from the day of the omission or commission of the acts complained of, and — nevertheless— it was several times held that it commences to run from the date of the creditor’s demand, and the sheriff’s default or refusal to pay after that demand.

That default, or his refusal to pay, cannot be correctly qualified as “ the commission of an act ” — this is self evident — nor can it be properly considered as a mere omission, which — generally—implies a guiltless neglect, an undesigned inattention. The Legislature, by the term “ commission,” meant the unlawful execution of a writ or order, in the mistaken attempt to lawfully execute the one or the other, and not, assuredly, the premeditated refusal, the unjustifiable failure of the officer to comply with his obligation and return a deposit; and by the term “ omission,” the undesigned default to execute a writ, an order, or the like.

For these reasons — and on this point — I respectfully dissent from my colleagues’ views and adhere to our former opinion.


text:
    No. 7557.
    City of New Orleans vs. Canal and Banking Company.
    A statute taxing bank stock in the bands of tlie shareholders, and exempting the slock from taxation in the hands of the bank, does not impose double taxation on the same thing.
    After assessment rolls have been legally exposed, for correction and closed, is is too late to object to the methods by which the assessors fixed the value of the property assessed* !New Orleans vs. Canal Bank, 29 A. 851, affirmed. '
    There is no provision of the constitution which requires taxes to be levied on a roll made in the preceding year.
    ^PPEAL from the Fifth District Court, parish of Orleans. Boyers,

      Sam. P. Blanc, assistant city attorney, for plaintiff and appellee.

      John & W. S. Finney for defendant and appellant.
    Sam. P. Blanc, for plaintiff, contended :
    First — One of the defenses is, that during the time of making the assessments defendants had on hand, not taking into account the value of its real estate, in United States currency, a value largely exceeding the remainder of their capital and accumulated capital, and, therefore, after deducting the value of the real estate, and such non-taxable property, there could be nothing left for taxation as shares. It cannot prevail. 29 A. 851.
    Second — No exemption from taxation can be claimed under any act since 1868, except of property actually used for church, school, or charitable purposes. 31 A. 292, 440, 637, 519 ; 27 A. 646, 376.
    Third — The requirement of re-assessment or back assessment is a common exercise of power, and occurs frequently in the laws, and has been held to be proper by the courts. Acts 1872, No. 73, sec. 8 ; Acts 1877, Ex. Sess. No. 96, sec. — ; Acts 1878, Ex. Sess. No. 9, sec. 18 ; Dillon Mun. Corp. I 595 ; New Orleans vs. Southern Bank, 15 An. 89.
    John & ~W. S. Einney, for the defendant, contended :
    Eirst — The question is whether a man who was assessed in 1877, and had his share of the public burdens apportioned under the same law and at the same time, with other fellow-citizens, can be called on to pay his contributions by a new and different rule established by* law after the year.
    Periodical assessments are essential to equality and uniformity. Cooley on Constitutional Limitations, p. 496.
    But what sort of periodical assessment is that, which after a'year has passed reaches back and affects new objects and new values in the hands of a few, while the great mass of citizens remain entirely unaffected. Suppose a certain number of shares barely sufficient to secure a debt had been pledged in 1877, and the debtor became bankrupt ? The tax, then, if paid at all, must be paid by the creditor ; for it bears a privilege on the shares. The law makes a different contract for the lender from that which he made for himself. In 1877, he contracted for and was entitled to the security of the whole value of the shares ; by the subsequent law the State and the city take a part. Does not that divest a vested right? 6 A. 610; 10 A. 745 ; Const, art. 110.
    Second — The mode of assessment was entirely irregular. The third clause of Act No. 9 makes it the duty of the assessor in case the officers fail to furnish a statement as required, to proceed, with the assistance of two taxpayers, to value the property according to his knowledge from the best information he can obtain in relation to it. It is not pretended that any such thing was done. The assessor worked out the result alone from a statement of the bank published in the newspapers on the 30th June, 1877.

      Sam. P. Blanc, in reply :
    First — “It has often been decided that, where the only defect in a tax was the want of previous legislation, this might be supplied retrospectively.” Cooley on Taxation, pp. 228, 229 ; Booth vs. Wood-bury, 82 Conn. 118 ; Crowell vs. Hopltinson, 45 N. H. 9 ; Lowell vs. Oliver, 8 Allen, 247 ; Comer vs. Folsom, 13 Minn. 219; State vs. Demorest, 32 N. J. 528 ; Barbour vs. Camden, 51 Me. 608 ; Board of Commissioners vs. Bears, 25 Ind. 110 ; Taylor vs. Thompson, 42 Ill.
    9 ; Tucker vs. Justices, 34 Geo. 370.
    Second — As early as 1856, by act of that year, p. 110, sec. 74, it was provided that real and other property omitted in the assessment of one or more years, when discovered, shall be assessed for the years during which it was neglected. This includes banking capital. 15 A. 90 ; 10 A. 745 ; 5 Gilmore, 418 ; 4 Wall. 173 ; 21 A. 104 ; 10 A. 677; 14 A. 853 ; 13 A. 268 ; Dillon on Municipal Corporations, secs. 595, 652 ; 17 Wis. 71,1863.
    Third — There is no proof that the assessment was irregular. The court will presume that they did their duty.
    Fourth — This complaint of irregularity cannot be heard here. Defendant had his remedy. 19 A. 475.
   The opinion of the court was delivered by

Spencer, J.

Paragraph 8 of section 1 of Act No. 8 of the extra session of 1878, approved March 26th, provides for the assessment of “ the shares of stockholders in all banks and banking associations in this State ; said shares shall be assessed at their value, after deducting from the capital stock of said banks and banking associations "all property otherwise assessed or exempt from taxation ; and said shares shall be included at such ascertained value, in the valuation of the personal property of such stockholders, in the assessment of taxes at the place where such bank or banking association is located, and not elsewhere, whether the said stockholder resides in said place or not.” It then requires the president of such bank to furnish a list, etc., of its shareholders, and requires the bank to pay to the tax-collector the taxes on said assessment on account of said shareholders, etc. It then directs that the “ method thus provided for assessing bank capital and shares of stock in banks shall be carried into effect in the assessment of the same for the collection of taxes for the city of New Orleans and the State payable in the year 1878,” and that the assessments of said property made in 1877 are canceled and annulled.

Paragraph seventh subjects to taxation all property of banks “ over and above their capital stock.”

Paiagraph sixth excepts from taxation the capital stock of banks,' K whose shares are assessed in the hands of the stockholders.”

The difference between this statute and former revenue laws is simply in the mode of taxing the same thing-. Heretofore, the capital was assessed against the bank. Under this act, it is assessed against its stockholders. There is no double taxation here ; for, as we have seen, when the capital is assessed to the shareholders, it is not assessable against the bank.

The present suit is brought by the city to recover of the defendant the sum of $11,925 78, taxes of 1878, being the aggregate amount of taxes assessed against the stockholders on the value of their respective shares, and against the bank on property, in excess, “ over and above its capital stock.” In other words, the capital stock is taxed through its ultimate owners the shareholders, and the surplus of property held beyond its capital is taxed through the bank itself.

The defense urged before this court addresses itself

First. To the method adopted by the assessors in the ascertainment of the value of the shares of the stockholders, and- of the surplus over and above the capital.

Second. To the constitutionality of that clause of paragraph eighth which directs that the method thereby adopted of taxing bank capital and shares shall be carried into effect for the taxes of State and city payable in the year 1878 ; and that the assessments of such property made in 1877 be annulled.

1. As regards the methods adopted by the assessors to ascertain the values to be taxed, we think the objection, even if well founded, comes too late. After assessments have been made, the law directs the rolls to be exposed and advertised for thirty days, and requires all persons objecting thereto to come forward and claim corrections. Ample opportunity and efficient means are provided to enable the tax-payer to have all errors corrected. If he does not urge his objections within the time allowed, he is thereafter precluded. It may not be amiss to add that the shares are assessed to the stockholders individually, and it may well be doubted whether the bank can disturb an assessment made against them. At all events, it cannot do so after the legal delays. It is not competent, therefore, for the bank now to dispute either the value of the shares, or the amount and value of its surplus. That is no longer open to dispute. This view dispenses us from the necessity of again considering the question, whether in ascertaining the taxable capital of the bank the assessors are bound to deduct from its capital stock all the legal tender and national currency held by the bank at the time of the assessment. That question was so elaborately considered by us in the case of the city of New Orleans vs. Canal Bank, reported in 29 A. 851, that .its further discussion would seem to be useless ; more especially as in that case the Supreme Court of the United States affirmed our conclusions. -

2. It is argued that paragraph eighth is retrospective legislation, and, therefore, violative of art. 110 of the constitution of 1868. It has been usual for the legislature to levy taxes for the current year upon assessment rolls made in the preceding year. But we know no provision of the constitution enjoining it so to do.

So far as we can see, it was perfectly lawful for the legislature to> adopt a different system, and to levy the taxes of 1878 on an assessment made in 1878. We understand that paragraph to provide that the taxes on bank capital and shares, collectible by the city and State in 1878, shall be calculated, assessed, and imposed according to the plan and method therein directed; and to this end it annuls the assessments made of such property in 1877, and directs an immediate re-assessment. Whereas in 1877 the assessment of this capital was against the bank, it now directs it to be made against the shareholders. It was in substance the assessment of the same thing, in a different way ; but without imposing any additional burden. The new assessment in point of fact gave as a result some sixty dollars less taxes than that of 1877. The rate of taxation was ad valorem, and the same as that on all other taxable property; and the method of assessment was applicable to all banks and banking associations. The real object of the change of method is manifest. Under the laws of the Unit'ed States, the capital stock of the national banks is exempt from taxation by any State or municipal authority ; but the shares of the stockholders in such banks are thought to be taxable.

The purpose and effect, therefore, of the act of 1878, were, in reality, to lessen the burdens of taxation on the State banks, and other property holders of the State, by compelling the stockholders of the national bank to contribute to the expenses of the government, whose protection they enjoy. We are at a loss to understand in what sense such legislation is retrospective. The act was passed in March, 1878, and provides for the assessment and collection of taxes for 1878. Whether the assessors in point of fact adopted incorrect data, or overestimated the objects to be taxed, we are not at liberty to inquire. At all events, this assessment in 1878 yielded a less amount of taxes than would have been obtained from that of 1877.

We are equally at a loss to perceive in what way the bank or its-shareholders are prejudiced. If the tax were levied on the bank, it would be paid out of its funds, and the shareholders would receive that much less. If levied on the shareholders and paid by the bank or by them, the result is precisely the same.

The judgment below was for plaintiff. It is correct, and is affirmed with costs.


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    No. 7705.
    John B. Durham vs. Julia Williams, Tutrix, et al.
    Where tho husband purchases in his name property during the community-for cash,-and makes no declaration, of intention to acquire for his separate estate, nor that the funds used wore his separate means, the property falls into the community, which becomes his debtor to the extent of his separate iunds, if used.
    The wife’s interest in the community is residuary — one half of what remains after its debts are paid, whether due to third persons, or one of the spouses.
    The administration of the estate of the husband, involves that of the community.
    -Pending the administration and settlement of the community, the wife cannot mortgage or alienate any of its effects, so as to defeat its creditors, or to give to her creditors a right to be paid by preference to, or even concurrently with, the creditors of the community. Any rights granted by her upon the community aro, of necessity, subordinate to tho par- • amount claims of community creditors.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Boarman, J.

      T. T. & A. D. Land for plaintiff and appellant.

      Alexander & Blanchard for defendants and appellees.
    T. T. & A. D. Land, for plaintiff, contended :
    First — The general jule of law is that all estates acquired during marriage by purchase form part of the community. C. C. 2402 (2371); 5 A. 611; 7 A. 104 ; 14 A. 618 ; 15 A. 588.
    Alexander & Blanchard, for the defendant, contended ;
    First — Property acquired by the wife during community with her separate paraphernal funds is not community. 1 L. 295 ; 1 R. 367 ; 2 A. 930 ; 8 A. 286 ; 29 A. 597 ; 30 A. 167.
    ¡Second — -The same rule governs the purchases of the husband. C. C. 2402.
    'Third — In settling the community the amount put in by the spouse is taken back and nothing is left to divide. 6 A. 635 ; 9 A. 60; 12 A. 559 ; 13 A. 378 ; 14 A. 618, 726.
    .Fourth — 14 A. 618, cited by plaintiff, is good authority for remanding this case.
   The opinion of the court was delivered by

Spencer, J.

Mrs. Julia Williams mortgaged to John B. Durham her “ undivided interest ” in and to a lot and improvements thereon in ¡Shreveport, to secure a debt of $3500. The extent of her interest is not ■stated in the act of mortgage. Durham foreclosed his mortgage and 'bought her interest in said lot.

He now brings this suit against the minor heirs of B. F. Hollings-worth, as owners of the remaining interest, in order to effect a partition.

These minors are under the tutorship of Mrs. Julia Williams, their •mother, who was the wife of B. F. Hollingsworth, deceased. He claims to have acquired at said sale, and to own, the following fractions in said property : one half thereof, and one sixth and one fourth of one sixth •of the other half. The minors file a general denial, and aver that they ■own 19-24ths of said lot.

The lot in question was bought by B. F. Hollingsworth, from one Allen, during his marriage with Julia Williams, at the price of 12250 in cash. The deed makes no declaration on'the part of Hollingsworth of •any intention to acquire said property for his separate estate, nor of •his having paid therefor with his separate funds.

Under this state of facts, the property fell into the community, whether the funds used in the purchase were or not those of the husband. C. C. 2402 (2371); Young vs. Young, 5 A. 611; Bass vs. Larch, 7 A. 104; Joffrion vs. Bordelon, 14 A. 618; Breaux vs. Carmanche, 15 A. 588.

Hollingsworth at his death left a will, which was duly probated ; and letters testamentary were duly granted to his executors, who, so far as appears, have never been discharged. By that will he left his property to his wife Julia, and their five children, in equal parts, i. e., one sixth to each.

Subsequently, one of these children died, and the mother, Mrs. Julia Williams, inherited one fourth of its sixth. At the time she granted the mortgage, therefore, she held in said lot an interest of one half, as partner in community, and one sixth and one fourth of one ■sixth of the other half.

But the wife’s interest in the community is residuary. It is one half of what remains after its debts are paid. The debts of the community consist not only of what may be due third persons, but of such sums as eithef of the spouses may have furnished from his or her separate means to acquire or improve community property.

Evidence was adduced by the defendants in this cause which renders it somewhat probable that the funds (12250) used in the pur■chase of this lot were the separate property of the husband. The estate of Hollingsworth seems to be yet under administration. If is manifest that that administration involves the administration of the ■community.

It is equally manifest that pending the administration and settlement of the community the wife cannot mortgage or alienate any of its effects so as to defeat its creditors, or so as to give her creditors a right to be paid by priority to, or even concurrently with, such community creditors. See Cestac vs. Florance, 31 A. 493. Any rights which she may grant upon the community are of necessity subordinate to the paramount claims o£ the creditors o£ the community. Hence, whatever interest Mrs. Williams had in said lot, as a partner in community, was-of necessity residuary — one half after payment of community debts. We think evidence was, under the general issue, properly received to show this diminution of plaintiffs rights in or upon the property. On the record before us, we cannot undertake to fix what amount, if any,, is due by the community to the separate estate of the deceased husband. The case must be remanded to have the rights of parties in this regard settled.

We hold and decree, therefore, that the lot in question was community property between Hollingsworth and his wife, Julia Williams ; that one half thereof vested in her, subject to the payment of the debts of the community ; that she owned one sixth of the other half as legatee-of the husband, and one .fourth of one sixth of one half as heir of her deceased child ; and that Durham by his purchase could, at most, acquire only her rights.

It is further decreed that the judgment appealed from be avoided and reversed, and this case is remanded to the'court a qua, to be-proceeded with in accordance with the views herein expressed and according to law, appellees paying costs of appeal.


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    No. 6376.
    Widow Ursin Soniat vs. Thos. Miles et al.
    Where the holder of two of three mortgage notes, secured by the same mortgage on certain? property, proceeds by due legal process and forecloses the mortgage, and buys in the property, the holder of the third mortgage note has no right to seize the property in the hands of the purchaser, and thus disregard the foreclosure, on the ground that the property had been sold without appraisement, when it appears that an appraisement was-waived by an express stipulation in the act of mortgage, and when it further appears that such holder was tendered and refused his share of the purchase price of the property.
    Unless the contrary appears, it will be presumed that the sheriff in malcing a judicial sale,, gave all of the notices required by law.
    A mortgagee who proceeds regularly under executory process to foreclose a mortgage which he holds concurrently with other mortgagees, is not required to give any special notice of his proceeding to his co-mortgagees.
    PPEAL from the Fifth District Court J. , parish of Orleans. Cullom„

      Victor Olivier, Jr., and Edward Phillips for plaintiff and appellant.

      Robt. Mott for defendant and appellee.
    V. Olivier, Jr., and Edward Phillips, for plaintiff and appellant, contended:
    First — Where several notes for different amounts, but in all other respects precisely alike, and due at the same time, are secured by the same mortgage, but held by different parties, the holder of one of them cannot cause the mortgaged property to be sold for cash, and without appraisement, without notifying the holders of the other notes in any manner, or causing them to be represented.
    Second — Such holder cannot have such property sold at all for payment of his notes alone. It must be sold for the payment of the whole debt

    Third — The sale of the property under the same or a concurrent mortgage, or to pay one or a portion of the notes secured by the same, or a concurrent mortgage, and held by different parties, and all due at the same time, does not release the mortgage as to the notes held by such third parties, and not embraced in the application for such sale. 16 La. 169; O. G 3282; 30 An. 1314; 14 An. 654; 6 An. 306, 313.
    Robert Mott, contra, contended;
    The plaintiff, Miles, had an undoubted right to foreclose the mortgage, and to have the whole of the property sold to pay whole amount of the debt, so far as the proceeds would go. C. P. 686.
    The mortgage is indivisible, and prevails over all the immovables, and each and-every portion thereof. C. C. 3249 ; R. C. G 3282 ; Howard vs. Schmidt, 29 An. 126.
    The appraisement having been waived, the property was legally sold without appraisement. Insurance Company vs. Bagley, 19 An. 89; Broadwell vs. Rodriquez, 18 An. 68; Jouet vs. Mortimer, 29 An. 206, 129; 21 An. 529, 624; 5 An. 306; 16 An. 170.
   The opinion of the court was delivered by

DeBlanc, J.

In this case, plaintiff’s demand was dismissed on the ground that her petition does not disclose a cause of action.

What does she allege ? That — in a notarial act, passed on the 25th ■of February 1868 — one J. M. Hall acknowledged to be indebted to L. F. Generes, in the sum of $12,000, and — to evidence that indebtedness— subscribed three notes payable one year after date, to his own order, by him indorsed, the payment of which he secured by a mortgage. That, on the 10th of January, 1870, the property subject to that mortgage was sold by Hall to one Brown, who assumed the payment of said notes, which passed, one to her, the others to Thomas Miles ; and that — on the 4th of May 1875 — she obtained against Brown, and on the note which had passed to her, a judgment recognizing the validity of the mortgage securing its payment, and ordering the sale of the mortgaged property.

She also alleges that — on the 21st of July 1874 — Miles had caused to be seized and advertised for sale, without the benefit of appraisement and for cash, the property twice hypothecated, first by Hall and then by Brown, to secure their respective claims, and that — on the 9th of November — “nearly six months before her judgment was obtained” — the property thus seized, was sold and adjudicated to Miles for $4000; but that— in so far as she is concerned' — the mortgage hereinbefore mentioned and granted by Hall in 1868, has not been legally extinguished, and is still properly recorded.

This is the substance of what plaintiff alleges, and she prays for ad-judgment against Hall & Brown, in solido, for the amount of her note, and — besides—for the recognition of the vendor’s lien and privilege resulting from the sale and assumpsit of the 10th of January, and that, the property oh which it bears be seized and sold, and the proceeds of the sale applied to the satisfaction of her claim.

Hall and Miles are absent from the State, and Robert Mott Esq., who was appointed to represent them in this suit, excepted to plaintiff’s, demand — 1st: because the court before which it was brought, is without jurisdiction as to the question therein involved — and 2d: because her petition sets forth no cause of action.

That exception was maintained, plaintiff’s claim rejected, and she1 appealed.

What does she judicially admit? “That Thomas Miles, the holder of two of the three notes delivered by Hall to Generes, foreclosed the mortgages securing their payment, and that at a sheriff’s sale, made' under an order of court, he bought the property subject to those mortgages, for $4000 — the whole of which, less $320 52, was applied to the satisfaction of taxes and costs.”

She does not, in her pleadings, contest — in any way or for any cause — the validity of the sale from the sheriff to Miles, but merely complains that — according to one of the stipulations of the act of mortgage — the property adjudicated to him was sold without appraisement, and contends that said property should again be seized and again sold to satisfy the judgment which she obtained against Brown, nearly six months after its adjudication to Miles.

“ When a debt, secured by mortgage, is due in several installments, and the assignee of the second causes the property to be seized and sold, the sale gives a complete title to the purchaser, and the creditor of the first installment cannot seize the property in his hands,” unless he-alleges and proves that the sale, is an absolute nullity, or unless he proceeds against that purchaser, by the hypothecary action, for any proportion of the price to which he may be entitled, under a prior or concurrent mortgage.

5 N. S. 149. O. P. 690, 679, 683, 709. 24 A. 382.

Here, plaintiff was tendered, and declined to receive what is alleged to be her share of the net proceeds of the price at which the property was adjudicated to Miles, with the interest which had thereon accrued,, and insists that — inasmuch- as the note she holds is secured,, as were those of Miles, by the mortgage which he has foreclosed, that mortgage —as to her — has not been extinguished. That is true, but the very authorities upon which she relies leave no doubt that — now—the common mortgage secures — not the entire amount of her original claim— but the proportion of the price of the hypothecated property to which, she is entitled, which was tendered to and refused by her.

5 A. 306. 16 L. 170. C. P. 709.

We are referred to the article of the Code which declares that, “ in its nature, the mortgage is indivisible, and prevails over each and every portion of all the immovables subjected to it.” The indivisibility of the mortgage — as said by Paul Pont — is no obstacle to the division of the principal obligation, if that obligation be divisible.” In this instance, three separate notes were delivered, and the mprtgage consented in favor of Generes and suóh person or persons who may eventually be the holder or holders of- the same. This is one of the express stipulations of the parties’ contract, and under, that stipulation — if not otherwise— Miles and the plaintiff could, as holders of said notes, proceed either collectively or separately to enforce the mortgage, and cause the whole-of the property to be seized and sold subject to the mortgage.

This is the law, and we are bound to presume that it was complied with, as it commands that, when the sheriff puts up property for sale, he shall give notice, before he commences the crying, that it is sold subject to allprivileges and hypothecations of whatsoever kind they may be, with which the same is burdened.

C. P. 679.

Could Miles have foreclosed the mortgage, without notice to plaintiff? “He applied to a court of justice; from that court he obtained am order of seizure and sale; under that order a writ was issued, placed im the hands of a public officer; he effected a seizure of the hypothecated! property, and advertised, in the official journal, when, where and oa what conditions it would be sold ; and — as to those who held prior or concurrent mortgages — the law requires no other notice than that which was then given.”

29 A. 133.

As to Hall, plaintiff alleges that he is an absentee, but does not allege that he owns property in the State, and — under these circumstances — no personal judgment could be'rendered against him. As to Brown, he was regularly cited, did not' appear or answer, and — inasmuch as. the decree of the lower court merely sustained an exception filed in the-names and in behalf of exclusively the other defendants — this suit, as to him, is still undecided and pending in said court.

Considering the facts which we have recited, we conclude that — as regards the proportion to which she is entitled, out of the proceeds of the sale of the 9th of November 1874, plaintiff’s action should have been maintained, that proportion fixed, and — to secure its payment — her mortgage recognized. As, however, no evidence was taken to that effect, this cause must be remanded.

It is, therefore, ordered, adjudged and decreed that — as concerns J. M. Hall — the judgment appealed from is affirmed, and — as concerns Thomas Miles, annulled, avoided and reversed — one half of the costs of appeal to be paid by plaintiff, the other half by Miles.

It is further ordered that this cause be remanded to the lower court, there to be proceeded with according to the views herein expressed and according to law.


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    No. 6043.
    John Williams & Son vs. Charles Morgan.

      A common carrier is responsible for damages done to goods by the negligence of his employees.
    ^PPEAL from the Sixth District Court, parish of Orleans. Saucier,

      Bayne & Benshaw for plaintiffs and appellants.

      Leovy & Kruttschnitt for defendants and appellees.
    Bayne & Renshaw, for plaintiffs, contended :
    First — The carrier’s obligation was to deliver in good order. Civil Code, 2764 ; 24 An. 333 ; 23 An. 586 ; 27 An. 233.
    This obligation is of the highest order, and the existence of commerce depends upon its maintenance. 13 An. 269 ; 14 An. 431; 11 Rob. 24; 17 An. 291.
    Second — The prescription of one year does not apply. 23 A. 363.
    Leovy & Kruttschnitt, for defendant, contended :
    First — In the absence of compensation, only gross negligence can create in this case a legal liability. Gross negligence is neither alleged nor proved.
    Sec ind — Plaintiff must make his case clear. His witnesses guess at the proportion of meal damaged.
   The opinion of the court was delivered by

Spencer, J.

This is a suit to recover of Charles Morgan, owner of tbe Morgan’s Louisiana and Texas Railroad, the amount o£ 11408 23 for -damages to a lot of cotton-seed meal, and $>270, tbe value of the sacks holding said meal. The allegation is that said meal, consisting of ■about 180€ sacks, was part of a larger lot shipped over said road to the Leighton plantation, on Bayou Lafourche, in January and February, 1872; and that while in transita it was greatly damaged by being ■exposed to rain and bad weather, whereby it was rendered unfit for use as a fertilizer. Plaintiffs claim that at least fifty per cent of loss was sustained on said 1800 sacks, and that the sacks themselves were rendered worthless by rotting and adhering to the meal,- which became ■clotted and worthless. The answer admits having received the meal In good order and condition; denies that the damage was due to any ■act or neglect of defendant, but was the result of the acts and negligence -of plaintiffs’ own agents.

The court below nonsuited plaintiffs, and they have appealed.

The facts seem to be as follows: Plaintiffs consigned the meal to their said plantation, which is situated about six miles above the rail-Toad-crossing of the Lafourche. The Morgan road gave through bills, transferring its freights at the crossing to the flatboats of one C. C. Williams, who had a contract with the road to deliver its freights up ■and down the bayou.

Eight hundred and three sacks of this meal were brought by the ■cars to this crossing Saturday night or Sunday morning. The evidence shows that it was put out of the cars on the platform, and was then ■subjected to rain, which fell on Sunday morning. Fhe evidence also shows that the flat which, was used for transporting cotton-seed meal never did any work on Sundays. The meal, which was at first protected by tarpaulins, was uncovered, in order to use the tarpaulins to protect a lot of sugar. The evidence satisfies us that this meal was thoroughly watered that day, and that on the day after plaintiff made complaint ■thereof. We are also satisfied that the result of this was to materially •damage the meal, and to render worthless the sacks containing it.

The defense attempts to show that one Long, who was then overseeing on the Leighton plantation, had sent word to C. C. Williams, the flatboat man, not to send up any more meal for a few days, as it was inconvenient at that time to haul it from the landing.

Even if it be conceded that Long had any authority to modify the ■contract of affreightment between plaintiffs and defendant, we are satisfied that that order was not the cause of the meal being left over ¡Sunday on the railroad platform. It was because the flats did not run on Sundays. But it is shown that Long was not manager of the Leighton place, but a mere overseer. R. L. Pugh, the son-in-law of plaintiff, John Williams, was the responsible head of the place. Besides, if the railroad employees were not able to protect freights thus proposed to be left in their charge, they should have notified that fact to the party asking the detention.

The evidence, as to any further damage than that of the 803 sacks, is unsatisfactory and inconclusive. We think the defendant should make good the loss on these 803 sacks, which the evidence shows amounted to fifty per cent of their value. The value of this lot of meal is shown to be about $1256 44. Fifty per cent of this is $628 22. The 803 sacks are shown to be worth about ten cents apiece, making $80 30, giving total for damage to meal, and price of sacks, $708 52, for which plaintiffs should have judgment.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is now decreed that J. M. Holloway, subrogee of John Williams & Son, plaintiffs, do have and recover of the estate of Charles Morgan seven hundred and eight dollars and fifty-two cents, with legal interest from judicial demand, and costs of both courts.


author: White, J.

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    No. 5994.
    C. V. Lagay, Administrator, vs. Mr. and Mrs. J. S. Marston.
    An act of sale "will be annulled where tlie proof of notorious iusanity is manifest.
    Where in a sale made by a vendor, declared subsequently to have been notoriously insane, cash was stated to have been paid by the vendee, in decreeing the sale null on account of such notorious insanity restitutio ad integrum will not be ordered without proof that the cash stated to have been paid inured to the benefit of the vendor.
    APPEAL from the Fifth District Court, parish of Orleans. Cullom, J.

      A. & W. Voorhies for plaintiff and appellee.

      Singleton & Browne for defendants and appellants.
    Singleton & Browne, for defendants and appellants, contended:
    The preponderance of evidence shows that the -vendor was not insane when she sold her property to the defendants.
    Even if she had been insane, it is clearly shown she was not notoriously so, and that she was not so to the knowledge of defendants.
    The transaction complained of was perfectly fair, and much to the advantage of the vendor.
    The full value of the property sold was given for it.
    At all events, and under all the views that may be taken of the case, the cash portion of the price of sale paid .by defendants should be returned to them if the sale is set aside.

      A. & W. Voorhies, contra, contended :
    The sale made to the defendants is null and void, both because the vend- or was then notoriously insane, and because she was so particularly to the knowledge of the vendees.
    This is clearly made out by proof in the record.
    The very nature and conditions of the act of sale show that the vendor was insane, aud that the vendees took advantage of it.
    C. C. art. 1788, | 3 ; C. 0. art. 402.
   The opinion of the court was delivered by

White, J.

On the 2d September, 1872, Mrs. Widow Paul Legay, who was then between seventy-four and seventy-six years of age, sold to Mrs, Mary Ann Alonzo, wife of James Shaw Marston, two lots of ground with the buildings and improvements, situate' one on Basin the other on Dauphin street, in this city. The consideration of the sale as stated in the act was 14000, $1000 whereof represented as paid cash and the remainder evidenced by three notes of equal amount payable six, twelve, and eighteen months after date, all to the order of the maker and by her indorsed. The act, moreover, stipulated that the purchaser should pay to the seller during her life a yearly income of two hundred dollars, payable quarterly in advance, the payment of the first quarter being acknowledged; should provide the seller in addition with lodging, board, wearing apparel, and medical attendance, during her life, and give burial to her remains, and erect a suitable tomb thereover. On the 6th September, 1872, the son of Mrs. Legay commenced proceedings for her interdiction, and having been appointed administrator pro tempore, instituted on the 3d of October, 1872, the present suit, which seeks to have declared null and void the sale to which we have just • referred.

The proceedings for interdiction culminated in a decree of interdiction, rendered on the 10th of January, 1873, and which is final, having never been appealed from.

The plaintiff was appointed curator, and in that capacity prosecutes this action begun by him as administrator pro tempore. The suit was accompanied by a sequestration, the property having been bonded by the plaintiff on the 28th June, 1873. The defendant for answer insists on the validity of the sale. The lower court declared the sale null and void. The question is entirely one of fact, that is, does the proof show that at the time of the sale the vendor was notoriously insane, as prescribed by C. C. 402 ? The proof leaves no doubt on our minds that the deceased many years ago was, while on a visit to France, the victim of mental disturbance ; that since, whatever may have been the fluctuations of her malady, she has been continually the sufferer from a — at least partially — diseased mind. The family physician, under whose treatment she was almost at the inception of her malady and since, unequivocally pronounced her insane. So did the medical men who examined her in the interdiction suit. We coincide with the lower judge in thinking, after a review of all the testimony, that its burden largely establishes that the mental derangement was notorious in the legal sense of the term, that is, “ was generally known by the persons who saw and conversed with the party.” O. 0. 402. This conclusion is decisive ©f the ease, except that it is urged in the brief of counsel, though not in the pleadings, that the court below should have decreed by way of restitutio ad integrum the return of the notes purporting to have been furnished and cash paid. Even could we supply pleadings not before the lower court, we could not give the relief asked; now even were it conceded that the declarations in the act of sale and the testimony in the record conclusively established that the notes were delivered and the cash paid to the vendor, such proof would not, without additional proof that the delivery and payment redounded to the benefit of the vendor, justify their restitution.

“ When minors or persons under interdiction * * * are admitted * * * to the benefit of restitution against their engagements * * * the re-imbursement of what may have been paid them in consequence of those engagements cannot be required of them, unless -it be proved that what was paid accrued to their benefit.” C. C. 2229. True, the terms of the law refer only to interdicts, and not to contracts made with persons notoriously insane. But the principle is alike applicable to both. The right to destroy a contract made with one notoriously insane imports, as a legal consequence, restitution only up to the benefit received ; otherwise the contract would, by the very act of annulment, be enforced, and the will, which the lawmaker has recognized as legally incapable of generating contracts, become the creator of obligations. As aptly said byDemolombe, vol. 29, p. 173 : “ Those who are relieved from the obligations of contracts on account of incapacity, cannot as a matter of course be bound by the contract which is annulled. They can only be bound by the equitable theory that one person cannot be allowed to enrich himself at the expense of another.” The proof is, that the vendor left the house of her son a day or so before the sale, which was on the 2d of September; that after the sale she went to the house of the vendees, whence she was removed on the 5th of September, neither the notes nor money being found then in her possession. Nor do we think the testimony as to the deposit referred to by counsel adequate to show the resulting benefit. The son who testified to the $1400 testifies that it had been in bank for a long time, thereby precluding the possibility of its having been the result of the sale. We will reserve the rights of the defendants.

The judgment below is affirmed with costs, reserving to the defendant her right to recover such sum as'she may hereafter show to have actually inured to the benefit of Mrs. Legay, resulting from the act of sale of the 2d September, 1872.