author: Vookhies, J. Lea, J.,

text:
    John O. Bartels & A. W. Dana v. Their Creditors and the Creditors of Stafford, Bartels & Co.
    Insolvents leased a hotel from S. for one year from the 14th January, 1855, for $15,000 per annum, payable in monthly installments of $1,250. In May, 1855, the lease was sold, by order of Court, and S. the lessor, became the purchaser. Held: That the purchase of the lease by the lessor extinguished the lease, and the lessor should be put down on the tableau as a creditor of the insolvents only for the sum due at the date of the sale of the lease. For the remaining seven months nothing was due him, as (he being the purchaser) the lease was dissolved by confusion. Decision in Cook & Morehouse v. Dodge <& Johnson, 6 An. 275, affirmed.
    The order for the sale of the lease does noi say that the purchaser shall assume the payment of the rent, and no such construction is warranted by implication of law. Neither the forced nor voluntary assignment of alessee’s right of occupation carries with it any such obligation. Lea, J., with whom concurred Spofford, J., dissenting. >

    There, are, two ways of selling the unexpired term of a lease; one by selling it for a premium subject to the payment of rent to the landlord; the other by selling or assigning the right of occupation without the assumption of rent. The latter is the more frequent, as it rarely happens that the unexpired term of a lease is worth a premium. Lea, J., with whom concurred Spofford, J., dissenting.
    Where a lease is offered for sale upon the condition that the purchaser shall asmme the payment of the rent, confusion would take place should the lessor, himself, become the purchaser. But where the payment of the rent is not to be assumed, by the terms of the sale, the rights of the lessor who purchases, are not extinguished: he has not acquired any obligation due himself and the price of the purchase, in such cases, is due not to .the lessor, but to the principal lessee, or his representatives. Lea, J., with whom concurred Spofford, J., dissenting.
    Code 2676, 2677, 2696.

      APPEAL from the Fifth. District Court of New Orleans, Augustin, J.

      Glarle & Bayne, for Syndic. Magne, Mott & Fraser, Bate & Foster, and Duncan & McGonnel, for different creditors.
   Vookhies, J.

A provisional tableau of distribution filed by the syndic in this case has given rise to various oppositions.

1. The claim of F. S. Blatter for the sum of $17,705, classed as a privilege for rent, is opposed by Fdward Turpin, one of the creditors of the insolvents. Blatter, it appears, leased his property, known as the “ City Hotel,” to George W. Gullorn and John 0. Bartels, for the term of three years from the 14th of January, 1852, at an annual rent of $16,200, payable in monthly instalments of $1,350. On the 20th of December, 1854, Blatter leased the same property to James Stafford, John 0. Bartels and Amos W. Dana for the term of one year from the 14th of January, 1855, for the sum of $15,000, payable in monthly instalments of $1,250. The lessees under each contract furnished to the lessors their corresponding promissory notes. On the 30th of the same month in which the last contract of lease was entered into, Bartels and Dana, filed a petition in the Fifth District Court of New Orleans, accompanied with a schedule or statement of their affairs, in order to obtain a respite for one, two and three years from their creditors. Blatter was carried on the schedule thus filed as a creditor of the insolvents for the sum of $3,048 75, as the balance stated to be due to him on the three last installments of the lease ending the 14th of January, 1855. In the proceedings, there is no reference to the other contract of lease. On the refusal of their creditors to grant the respite, Bartels and Dana made a voluntary cession of their property on the 27th of February, 1855. At the syndic’s sale in May, 1855, the lease to the insolvents was adjudicated unconditionally to the lessor, Blatter, for the price of $3,000. Blatter's claim for rent was allowed for the entire term of tho lease, ending the 14th of January, 1856, to-wit: $15,000, with the lessor’s privilege, deducting therefrom the price of adjudication, to-wit: $3,000.

We are now required to determine, under these circumstances, whether Blatter is legally entitled to be classed on the tableau for the rent of the unexpired term of the lease, to be reckoned from the date of his purchase, to-wit: seven months and a half at $1,250 per month, making an aggregate of $9,375. We have recently decided a case in which we held, that the purchase of a lease by the lessor, operated as a dissolution of the contract of lease by confusion, the qualities of lessor and lessee uniting in the vendee. It is true, in that casej the consideration for the transfer of the lessee’s rights was expressly stipulated to be a premium, whilst in the present, no such mention is made; but it appears to us this is immaterial, as the effect in either case must be the same ; the divestiture of the lessee’s rights to which the purchaser becomes subroga-ted. Let us suppose, for instance, that any other person than the lessor himself had become the purchaser of the lease, would not such purchaser be bound not only for the purchase money, but for the rent stipulated to be paid by his vendor ? Illustrating farther, in a sub-lease, which the law permits the lessee to make, the rights of the lessor cannot be affected. The lessee has the right to under-lease or even to cede his lease to another person, unless this power has been expressly interdicted.” O. O. 2696. In such case the landlord’s privilege or right of pledge only would be affected. 0. O. 2676, 2677. What difference then is there between such a conveyance and a forced alienation of the lease to another person ? As to the legal effect of either quoad tho lessor, we think there can be none. We are, therefore, of opinion that the lease in this ease was dissolved by the sale to Slatter, the lessor. Slatter is, consequently, only entitled to recover the following sums with the lessor’s privilege, to be classed as such on the tableau of distribution, to-wit: $3,048 75, balance due under the first lease, and $3,875, balance due for five and a half months’ rent under the last lease, after having deducted therefrom $3,000, the purchase money for the unexpired term.

2. The claims of several creditors, for supplies as retail dealers, and for services rendered as domestics or servants, classed as privileges, are also opposed by Turpin. The controversy in this matter seems to be limited to the question, whether these creditors are entitled to the privileges allowed them by the judgment of the court below, to secure the payment of their respective claims. According to the decision in the case of Cook & Morehouse v. Dodge & Johnson, 6 An. 275, they are clearly not entitled to be ranked as privileged creditors. We do not think there is any good reason to authorize us to overrule that decision. Unless manifestly erroneous, we think it would be unwise for us to disregard the interpretation of a statute by ouy predecessors.

The claim of Sampson & Keene, classed as a privilege, is also opposed. They claim the vendor’s privilege on the price of certain furniture which was sold by them to the insolvents. The proof leaves no doubt on our minds as to the correctness of their claim, which was allowed by the judgment of the court below.

4. The following claims classed as privileges on the tableau are also opposed, to-wit:

Clerk’s costs and costs retained.:. $100 00

Sheriff’s costs of sale, advertising, &e.', labor, &c.'... 887 70

Notary’s fees...'. 150 00

Appraiser’s fees. 100 00

The sheriffs throughout the State are bound, whenever they return a paper or process into court, to endorse thereon th'o specified items of fees to which they may be entitled. All officers claiming costs or fees are bound, whenever required to do so, to deliver to .the person against whom such fees may be charged, an explicit fee bill. Clerks and sheriffs can only demand such fees as are expressly allowed’them by law. In the Act entitled “An act to regulate and define costs and fees generally,” (Session Acts of 1855, 162,) the only charge in relation to sheriff’s feesjlcft to the discretion of the court, is that for keeping personal property and slaves in certain cases. The fees which notaries may demand, are also defined and regulated by tbat Act. As none of the claims thus classed appear to have been established by the requisite proof, it is clear that they cannot be allowed. But considering the admissions in the record, which may have misled the parties in this regard, we think it would be inequitable to conclude them. Justice therefore,- requires that the cause should be remanded to determine the matter legally.

5. The claim of J. Stafford for $6,300, classed as an ordinary debt, is also contested. He was, as we have seen, one of the joint lessees under the second lease, and bound in solido with his partners for the rent. He was also bound for the debts contracted for the hotel after he became a partner, about July, 1853, as shown by the testimony of B. Barnett. Under that lease we have allowed Slatter $6,250 as rent, with the lessor’s privilege. Under these circumstances, we do not think Stafford should be permitted to partake in tho fund of the estate until the payment of the other creditors. Por the same reason, wc think the claims of J. Stafford & Co. for $3,502 and $274 41, classed as ordinary debts, should also be disallowed, so far as the same may be prejudicial to the other creditors. It is clear that the rights of the creditors of a partnership cannot be affected by equities which may exist between the partners.

6. We do not think there is any material error to the prejudice of the creditors in the amount allowed as commissions to the provisional syndic and syndic by the judgment of the court below.

It is, therefore, ordered and decreed, that the judgment of the court below be avoided and reversed, that F. 8. Slatter be classed on the tableau of distribution as a creditor for the sum of six thousand nine hundred and twenty-three dollars and seventy-five cents, with interest thereon, according to law, with the lessor’s privilege, being the balance due him for rent after deducting the sum of $3,000, the purchase money of the lease, that the claims of the creditors for supplies as retail dealers, and for services as domestics or servants be disallowed as privileges, and the same be classed as ordinary debts, that the claims of J. Stafford and of J. Stafford & Co., classed as ordinary debts, be rejected, that the cause be remanded to determine the amounts to which the clerk, sheriff notary and appraisers may be respectively entitled, that the judgment in other respects be affirmed, and that the costs of appeal be borne by the appellees against whom the judgment is reversed, and by the appellants where the judgment is affirmed in favor of the appellees.

Lea, J.,

(with whom concurred Spoefobd, J.) dissenting. I concur in the opinion of the majority of the court, as delivered by Mr. Justice Voobhies, except so far as it relates to the construction of the obligation assumed by S. F. Slatter, in the purchase of the lease at the Sheriff’s sale.

In the opinion of the court, “ the contract of lease was extinguished by the sale of it to the lessor,” on the ground, “that having become the purchaser of the lease he, the lessor, united in himself the qualities of lessor and lessee.”

The facts of the case, so far they are essential to the illustration of the question presented, are as follows: On the 2d of May, 1855, an order of court was granted for the sale of all the property belonging to the insolvents. By virtue of the order, the Sheriff offered for sale, on the 15th of May, the unexpired term of the lease made by Slatter to the insolvents, having then seven and a half months to run ; at which sale, Slatter himself became the purchaser for the sum of $3000. The question is, whether at this sale, Slatter assumed the payment of a monthly rent of $1,250, in addition to a premium of $3,000-; or whether the $3,000 was a bid made for the right of occupation of the hotel for the unexpired term of the lease. The test suggested in the opinion of the court, by which this question should be solved, is certainly a fair one. What would have been the obligation of any other purchaser but the lessor, at such a sale ? Eor it would be contrary to all rules of equitable construction to impose upon Slatter a different obligation from that which would have been assumed by any other bidder. Now the order of sale does not say that the purchaser shall assume the payment of the rent; the lease does not appear to have been sold subject to any such condition, and it is not so stated in the adjudication. No such construction is warranted by implication of law. Neither the forced nor the voluntary assignment of a lessee’s right of occupation, carries with it any such obligation.

It is not necessary to embarrass the inquiry with speculations as to the probable rights of a lessor in a case where his contract was infringed by such an arrangement. In the case at bar, no such question is presented ; the lessor having acquiesced in the sale by becoming himself the purchaser. There are two ways of selling the unexpired 'term of a lease; one by selling it for a premium, subject to the payment of the rent to the landlord, the other by selling or assigning the right of occupation without the assumption of the rent. The latter is the more frequent way of selling or assigning it, since it rarely happens that the unexpired term of’ a lease is worth a premium. The case of a sub-lease is a familiar illustration of one form of this latter mode of assignment. The sub-tenant has nothing to do with -the original contract of lease. He is bound only for the payment of the rent which he stipulates to pay as sub-lessee; and whatever may be the rights of the landlord to cause the lease to be cancelled for the non-payment of. the rent by his tenant, he can in no case hold the sub-tenant liable for the payment of the rent under a contract to which he is not privy. Even the lessor’s privilege would not extend to the effects of the under-lessee, except so far as the latter might be indebted to the principal tenant. C. C. 2676. 6 Rob. 294. .

Now, it must be conceded, that where a lease is offered for sale upon the condition that the purchaser shall assume the payment of th.e rent, confusion would take place should the lessor himself become the purchaser, for the reason that the relation of debtor and creditor would be united in the same person ; and this would be in accordance with the decision lately rendered in the case of Young v. Cambot; and for the like reason, where the payment of the rent is not to be assumed by the terms of the sale, the rights of the lessor, who purchases under such circumstances, are not extinguished. He has not, by the purchase, acquired any obligation due to himself; the price of the purchase in such case is due not to the lessor, but the principal lessee or his representatives. This doctrine was fully recognized in the case of Bach & Co. v. Cottingham, recently decided.

In that case, as in the case at bar, a judicial sale was made of the unexpired term of a lease, the purchaser paying a fixed sum therefor. Before the expiration of the lease, the property was destroyed by fire. The lessor, who had received the whole of his rent up to .the expiration of his lease, was sued both by the purchaser of the lease-and the seizing creditors of the principal lessee, for the reimbursement of the overpaid rent; the former contending, that by the terms of his purchase, he had acquired all the rights of the original lessee. But the court held, that the right to reimbursement had not passed to the purchaser of the unexpired term of the lease, but remained vested in the original lessee and, as such, was liable to seizure by his creditors. It is olear, therefore, that the purchaser of the unexpired term of the lease, was not subrogated to the contract of lease with its rights and corresponding obligations. He became not the assignee of 'filie contract, but he acquired the right of occupation under the contract. There is nothing in the nature of the proceedings for a sale, nor in the presumptions arising from the facts of this case, which would indicate the intention or the expectation that the purchaser was to pay a premium on the lease. Had such been the intention of the syndic at the time the order of sale was applied for, it should have been clearly expressed.

But the facts of the case absolutely repel any such presumption. It appears to me manifest, that no person could be expected to pay a premium for the unexpired lease of a hotel, after the business season had nearly expired, and at a time when the season was approaching at which many of the large hotels of the city are closed from inability to pay expenses, and when those which are not closed, are kept open at a charge to the proprietors; and yet it is contended, that a purchaser would, under the circumstances, not only have assumed to pay a monthly rent of $1,250, but would be liable for a premium of $3,000 more for the privilege of so doing. As respects Slatter himself, such a conclusion is not less improbable, for having his accruing rent to the extent of $9,375 secured to him, by his privilege of lessor, we are to conclude that he offered a premium of $3,000 more for the purpose of extinguishing his claim, thereby making a voluntary sacrifice of the whole of it. A rule of interpretation which leads to such a conclusion, cannot, in my opinion, correctly illustrate the intentions of the parties.

I think that Slatter, after being charged with the amount of his bid, should be placed on the tableau, as a creditor for the rent accruing until the expiration of the lease.


source: Caselaw Access Project

author: Voorhies, J.

license: Public Domain

text:
    City of New Orleans v. William H. Garland.
    An affidavit alleging tliat the defendant attempted to depart permanently from the State, that he concealed himself to avoid being cited, and that he is about to remove his property out of the State, is insufficient for an attachment. The allegations refer, indefinitely, to the past' — malee no allusion to the present, or future, and are too vague to form the legal foundation of an attachment.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Livingston, City Attorney. Ilunton & Pike, for defendant and appellee.
   Voorhies, J.

This is an appeal taken from a judgment setting aside a writ ■ of attachment.

The petition charges “ that William H. Garland attempted to depart from the State permanently, and that he concealed himself so as to avoid being cited to appear and answer the demand of petitioner, and that he is about to remove his property out of the State.” Besides the correctness of the allegations of the petition, and the amount of the debt claimed, the affidavit declares that “ the said Garland did attempt to depart permanently from the State of Louisiana, and is about to remove his property out of the State.”

A creditor may attach the property of his debtor, “when such debtor is about leaving permanently the State, without there being a possibility, in the ordinary course of judicial proceedings, of obtaining or executing judgment against him previous to his departure, or when such debtor has already left the State never again to return; or when such debtor resides out of the State; or when he conceals himself to avoid being cited and forced to answer to the suit intended to be brought against him.” C. P., 240. To obtain the attachment, it is essential that the creditor should make “ a declaration under oath, at the foot of his petition, stating the amount of the sum due to him, and that his debtor is either on the eve of leaving the State permanently, that he has left it never again to return, that he resides out of the State, or that he conceals himself in order to avoid being cited.” C. P., 243.

Under these provisons, we think it is clear .that the affidavit must be considered defective. The allegations, both in the petition and affidavit, in regard to the departure and concealment of the defendant, refer indefinitely to the past, making no allusion either to the present or future, too vague indeed to form the legal foundation of an attachment. As the 'remedy by attachment has always been considered harsh, a party who resorts to it must therefore bring himself strictly within the requirements of the law..

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


author: Spoffoxd, J. Merrick, C. J. Lea, J.,

text:
    The State of Louisiana, on the relation of John Holmes, v. Emile Wiltz.
    An interpretation of a statute which must lead to consequences mischievious and absurd is inadmissible, if the statute is susceptible of another interpretation whereby such consequences maybe avoided. The legislative intention must be honestly sought after and faithfully executed, if not in conflict with a paramount law. And in cases like this, the meaning must be sought, not merely in the words of the statute itself, but in its subject matter, in the history of the legislation thereupon, in the purpose of the law, the reason of its enactment, and the evil it sought to remedy.
    The subject matter of the Act of 14th March, 1855, (“ an Act creating a Recorder of Mortgages for the parish of Orleans,”) is not the erection of a new office It seems to imply the recognition of an existing office, whose duties are well known. It does not purport to extinguish that office, and to substitute a new and different one. It provides for the mode of appointing an incumbent to fill it at stated intervals, for the mode of giving his bond, and for the appointment of his deputy, whose duties are to be commensurate with his own, but for whose acts he and his sureties are to be responsible. All these sections relate to the officer,‘not to the office; the office exists independent of the statute; and these simple provisions about the incumbent constitute its whole subject matter.
    The statute in question is in fact but a grouping together in one act of parts of three pre-existing laws, with very slight changes of phraseology, and no change whatever of substance. By it the Legislature has merely said “ here is a condensed statement of all the law now in force relative to the mode of appointment, term of service,'amount and condition of the bond, and appointment, duties of and responsibility for a deputy, of the Recorder of -Mortgages for the parish of Orleans: all else, upon these specified matters, is repealed.”
    It cannot fairly be inferred that an ancient office was thereby abolished, and a new one created. The literal terms of the statute do not seem to require such a construction; its history, subject matter and purpose alike forbid it.
    A person holding an existing office under a fixed tenure cannot be removed, or liis regular term of service abridged by an ordinary act of legislation, other tfian an Act abolishing the office. The mode of removing officers is prescribed by the Constitution:
    "While the history of the legislation, and the circumstances under which the statute was enacted may be inquired into, as furnishing aids to its interpretation, still the plain and unequivocal meaning, according to its received acceptation, of the language in which an Act is expressed, should not be overlooked. Lea, J., dissenting.
    Under the Constitution unless the object of a law is expressed in its title, the law is absolutely void; indeed nothing else can be lawfully included in it; if therefore, the object or intention of the lawgiver is not made clear by the other parts of the Act, it must be determined with absolute certainty by a reference to its title. Lea, J., dissenting.
    The object -of the statute in question is expressed m its title: that title is “ an Act creating a Record er of Mortgages for the parish of Orleans.’” The statute created anew the office of Recorder of Mortgages, and authorized the appointment of a new officer. Lea, J., dissenting.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Lacy & Wooldridge and Moise & W. M. Randolph, for plaintiff. Ogden & Leovy, for defendant and appellant.
   Spoffoxd, J.

(Lea, J., dissenting.) The defendant, holding a commission from the late Governor, as Recorder of Mortgages for the parish of Orleansj for two years from the 1st day of March, 1885, has appealled from a judgment ordering him, by peremptory mandamus, to register the bond, and recognize the capacity of the relator, Holmes, who was commissioned by the present Governor on the 18th March, 1856, as “Recorder of Mortgages for the parish of Orleans, vice Emile Wilts, whose term of office has expired by the provisions of an Act entitled “an Act creating a Recorder of Mortgages for the parish of Orleans,” approved March 14th, 1855. The judgment appealed from also condemns the defendant to deliver all the archives of the office of Recorder of Mortgages in his possession to the relator, and to pay the costs of these proceedings.

The relator has moved to dismiss the appeal; the matter in dispute is shown by affidavit to exceed three hundred dollars, and the case is within our appellate jurisdiction.

The controversy turns principally upon the construction of the repealing section of the “ Act creating a Recorder of Mortgages for the parish of Orleans,” approved March 14th, 1855. (Session Acts, p. 821.) Section four declares “ that all law's contrary to the provisions of this Act, and all laws on the same subject matter, except what is contained in the Civil Code and Code of Practice, be repealed.”

The relator contends that, therefore, the statute of March 14th, 1855, abolished the office of Recorder of Mortgages for the city and parish of New Orleans, which had existed at least ever since the 20th March, 1818, (Session Acts, p. 136,) and created a new, distinct and independent office, which has never been filled until the relator was appointed as its first incumbent on the 15th March, 1856.

If this be true, the judgment is clearly wrong in decreeing the defendant to deliver the archives of his extinct office to the incumbent of a new and different office, without any warrant of law'. Eor the Act of March 14th, 1855, upon which the relator bases all his pretensions, insisting that we must shut our eyes to everything else in our voluminous statute books, has declared what shall be done with the important and valuable documents belonging to the office said to have been abolished. If the statute has created a new office, it has left the first incumbent to enter upon a new career, unembarrassed by the custody of ancient records, but with faint lights to guide him.

The first section declares “ that the Governor shall nominate and, by and with the advice and consent of the Senate, appoint a Recorder of Mortgages for the parish of Orleans, who shall hold his office for two years, and until his successor shall be duly appointed and qualified.”

“ Sec. 2. That he shall furnish to the Governor of the State his bond, with one or more securities, to the amount of forty thousand dollars, for the faithful execution of the duties required of him by law, and for the payment of such damages as may be sustained by his failure to discharge such duties.

“Sec. 3. That he is authorized and empowered to appoint a deputy, whose duties shall be the same as those of said Recorders; provided, that he and his sureties shall be responsible for the official acts of said deputy.” Then follows the repealing section already quoted, and this is all.

An interpretation which must lead to consequences both mischievous and absurd is inadmissible, if the statute is susceptible of another interpretation whereby such consequences may be avoided. The legislative intention must be honestly sought after and faithfully executed, if not'in conflict with a paramount law. And, in cases like the present, we are authorized to search for that meaning, not merely in the words of the statute itself, but in the subject matter, in the history of the legislation thereupon, in the purpose of the new law, the reason of its enactment, and the evil it sopght to remedy. Ardry v. Ardry, 16 L., 268; Cox v. Williams, 5 N. S., 140.; Commercial Bank v. Foster, 5 An., 516.

The subject matter of the law, then, is not the erection of a new office. Indeed, it seems to imply the recognition of an existing office, whose duties were well known. It does not purport to extinguish that office and to substitute a new and different one. It provides for the mode of appointing an incumbent to fill it at stated intervals, for the mode of giving his bond, and for the appointment of his deputy, whoso duties are to }>e commensurate with his own, but for whose acts he and his sureties are to be responsible. All these sections relate to the officer, not to the office; the office exists independent of the statute; and these simple provisions about the incumbent constitute its whole subject matter.

But the repealing clause is relied upon as accomplishing a great deal more than the statute would have done otherwise.

We take notice that, during the .session of 1855, one hundred and forty other Acts wore passed with the same repealing section.

These Acts were adopted in pursuance of a sj'stem inaugurated at the preceding session of the same General Assembly.

On the 15th March, 1854, was approved the “Act to provide for the revision of the statutes of the State of a general character,” whereby a legislative committee was appointed “to revise the statutes of the State of a general character, to simplify their language, to correct their incongruities, to supply their deficiencies, to arrange them in order, and to 'rodtice them to one connected text, with a view to their adoption as the Revised Statutes of the State.” (Session Acts, p. 57.1

This committee proceeded with more than the usual celerity of codifiers, and the work was prepared in season for the next session. But an obstacle to its adoption as a whole was found in Art. 117 of the Constitution; “The Legislature shall never adopt any system or code of laws by general reference to such system or code of laws, but in all cases shall specify the several provisions of the laws it may enact.” To evade this obstacle, it was proposed to pass the Revised Statutes in detail, with a sweeping repealing clause at the end of each; and, like evasions in general, this seems to have been productive of unforeseen troubles.

But, by this change, the Legislature did not, as contended by the relator’s counsel, abandon their original’purpose of “ revising” the statutes; this is manifest from their own declaration .in the “ Act to regulate and define the duties of the commissioner appointed to revise the statutes of the State, and to fix his compensation ” approved March 15th, 1855, (p. 212). That statute provided that the person selected by the joint committee of the two houses “ to revise the statutes of the State under their supervision and direction, be continued in his functions until the final completion and adoption of the “Revised Statutes” by the .General Assembly and their publication.”

It provided further “ that it shall be his duty- after their adoption and enactment by the General Assembly, to compile them into a book, to be called the “ Revised Statutes of Louisiana,” with marginal notes, table of contents and index, similar to the work reported to the Legislature

These matters of history may aid us in arriving at the true meaning of the last section of the statute before us. For we find that the statute contains nothing that is original, except this repealing section.

As already remarked, it introduced no new office unknown to the law before. Jn fact, it is but a grouping together, in one statute, of parts of three pre-exist-ing laws, with very slight changes of phraseology, and no change whatever of substance.

The first section is taken from the Act of March 20th, 1813, p. 136; the second from the Article 3358 of the Civil Code, and the third from the Act of March 7th, 1843, p. 29.

The duties of the office are not described, and therefore do not enter into the “ subject matter;” they are left as they stood before. The original of this office is to be found in the code of 1808, p. 464. The Register of Mortgages at New Orleans was Register for the whole Territory. His duties were prescribed in the old code. By the Act of March 24th, 1810, sec. 25, Sess. Acts, p. —, the duties of this register at New Orleans were reduced almost to those of a register for the county of Orleans merely, the Parish Judges of the parishes where mortgaged property was situated being made recorders of mortgages for their respective parishes.

By the Act of 20th March, 1813, -the term of the incumbent and the mode of appointing him were declared, but no change was made in the nature of the offices. The same term and the same mode of appointment have been re-declared in the Act of 14lh March, 1855, and still no change is made in the office itself or its duties.

By the present code adopted in 1825 (and which is specially reserved as still in force by the repealing clause under consideration) the same office is recognized as then existing, and the duties thereof more distinctly defined than before.

“Art. 3349. There is established in each parish an office for the recording of mortgages, privileges and donations.”

“ Art. 3350. This office is kept in the parish of Orleans by a particular officer called the Recorder of Mortgages.”

“Art.. 3351 et seq. describe the duties of the Recorder of Mortgages for the parish of Orleans.

Art. 3521 of this code constitutes a repealing clause as extensive as the one annexed to (he statute under consideration.

It has not been suggested that the code of 1825, which treats directly of the office itself, extinguished the old office and established a new one.

On the 7th March, 1843, the Act authorizing the appointment of a deputy to the Recorder of Mortgages for the city and parish of New Orleans was passed in the identical terms preserved in the 3d section of the Act of March 14 th, 1855.

This review of the pre-existing legislation relative both to the office and the officer, may also contribute to elucidate the meaning and intent of the Act in question.

By this statute we think the Legislature has merely said: “here is a condensed statement of all the law now in force relative to the mode of appointment, term of service, amount and conditions of the bond, and appointment, duties of, and responsibility for a deputy, of the Recorder of Mortgages for the parish of Orleans; all else, upon these specified matters, is repealed.”

We cannot fairly infer that an ancient office was thereby abolished and a new one created. The literal terms of the statute do not seem to require such a construction; its history, subject-matter and purpose alike forbid it.

If the-offiee to which Emile Willzw as duly appointed for a term of two years, from the 1st of March, 1855, has not been abolished, there was no vacancy when the relator was appointed to it, nor is there yet.

For, it is inadmissible to say that a person holding an existing office, under a fixed tenure, can be removed, or that his regular term of service can be abridged, by an ordinary act of legislation other than an Act abolishing the office. The mode of removing officers is prescribed by the Constitution.

It is therefore ordered that thf judgment of the District Court be avoided and reversed, that the petition for a mandamus be dismissed, and that the relator pay costs in both courts.

Merrick, C. J.

I concur with Mr. Justice Spoeford. It may also be remarked that the Article of the Civil Code cited by him, 2358, and which is the second section of the Act of 1855, is in these words, viz:

“ The Register of Mortgages for the parish of Orleans shall furnish the (Governor of the State one or more sureties, te the amount of forty thousand dollars, for the faithful execution of the duties required of him by law, and for the payment of such damages as may be sustained' by his failure to discharge such duties.”

This Article, as well as all other Articles in the Civil Code on the subject of registry, arc expressly exempted from repeal. The defendant, Wiliz, had given his bond in conformity to this Article of the code which is expressly recognized by the Act of 1855 as being in force. ' Now* the office having been continued, nothing short of an express declaration to that effect ought, in legislation merely revisionary, to be deemed sufficient to remove the incumbent.

Lea, J.,

dissenting. In March, 1855, an Act of the Legislature was approved having the following title : “ An Act creating a Recorder of Mortgages for the parish of Orleans.” By the first section of this Act it was enacted “ that the Governor shall nominate, and by and with the advice and consent of the Senate, shall appoint a Recorder of Mortgages for the parish of Orleans, who shall hold his office for two years and until his successor shall be duly appointed and qualified.”

In accordance with the instructions contained in this section, the Governor did nominate, and by and with the advice and consent of the Senate, appointed a Recorder of Mortgages, investing him with a commission authorizing him to hold the office from and after the date thereof. By virtue of the commission thus given to him, the relator, John Holmes, claims to be put in possession of the records, documents, books, papers and effects appertaining to said office of Recorder of Mortgages.

For answer to this demand, Emile Wiliz, the defendant, avers that he is the Recorder of Mortgages of the parish of Orleans, holding the office under a commission from Governor Hebert bearing date of the 1st March, 1855 ; that said commission was issued to him in strict conformity with the Constitution and laws of the State of Louisiana, and that by virtue of said appointment and commission, and by the laws under which- it was given, he 'is entitled to hold the office for the space of two years from the date thereof, to wit, until the 1st March, 1857. In other words, the defendant contends that the law under which he was appointed, never having been repealed, he is entitled to hold the office according to the tenor of his commission.

In the argument of the ease at bar, questions have been presented affecting the interpretation of nearly all the revisory legislation of 1855; questions which are environed with difficulties which scarcely any rule of interpretation can reconcile, but which, it appears to me, the issue presented imposes upon us the necessity of solving only' in part.

For the purpose of determining the issue between the parties, it is only necessary to inquire whether a new office has been created? and if so, whether the previous legislation inconsistent with the creation of such new office has been repealed? It is urged that the statute which is the subject of interpretation and which is entitled “ An Act creating a Recorder of Mortgages for the parish of Orleans,” did not in fact create and was not intended to create such an officer; that the section which instructs the Governor to nominate, and by and with the advice and consent of the Senate to appoint a Recorder of Mortgages, does not authorize, and was not intended to authorize him to make such appointment except in accordance with the provisions of previously existing statutes; and that the section which provides “ that all laws contrary to the provisions of the Act in question, and all laws on the same subject matter, except such as are contained in the Civil Code and Code of Practice are repealed,” in fact repealed none of them, but left the previous legislation precisely where it was before the passage of the Act, which is but a mere compilation of previous statutes having in itself rio inherent vitality. This is not the language adopted in the arguments of counsel, but this (as it appears to me) is a correct statement of the conclusion to which it leads. If Wilts is entitled to retain the office, then it is clear (and indeed it is so argued) that the statute of 1855 did not create a new office, did not authorize the Governor to make a new appointment, and did not repeal the previous legislation on the subject.

Now, I fully concede the correctness of those rules of interpretation which have been so concisely and clearly laid down in the opinion of the majority of the court. I think we may, and should look beyond the Act which is the subject matter of interpretation, for the purpose of ascertaining its meaning; that we should notice the fact that 140 Acts of a revisory character were passed during the session of the Legislature in 1855, and that it is proper that we should look to the history of the legislation which led to the enactment of these revisory statutes; more especially do Íconcur with my colleagues that any construction of these statutes which would lead to consequences both mischievous and absurd, should, if possible, be avoided; and whatever may have been the inadvertencies of legislation, it may be assumed that the Legislature did not intend to produce a state of anarchy: and where this would be the necessary result of a particular construction of a statute, the court will endeavor to find some other meaning not inconsistent with sound rules of interpretation; but even then, no mere inconvenience, however great, nor even any supposed public necessity could justify the court in ignoring the palpable force and meaning of language. It would involve a departure from its constitutional sphere, and an invasion of that appertaining to an independent and co-ordinate department of the government.

The history of the legislation which led to the enactment of the statutes of 1855 is substantially as follows: In 1854, the Legislature passed an Act entitled “ An Act to provide for the revision of the statutes of the Slate," the preamble of which is in the following words, “ Whereas it is a matter of great public importance that the public statutes of this State should be revised, their language simplified, their incongruities corrected, their deficiencies supplied, and the whole arranged in order and reduced to one connected text, with a view to their adoption as the revised statutes of this State, to the end that all may know he law, therefore,” &e. The first section provides for the appointment of a committee of revision. The second section provides that “ said-committee shall select some suitable person, whose duty it shall be, under .the supervision and direction of said committee, to revise the statutes of the State of a general character, to simplify their language, to correct their incongruities, to supply their deficiencies, to arrange them in order, and to reduce'them to one connected text, with a view to their adoption as the ‘ Revised Statutes ’ of the State.” The other sections of the Act refer merely to details for carrying out the work.

Now, it is evident that when this Act was passed, it was the intention of the Legislature, not to authorize the compilation of a mere digest of the laws of the State, but to adopt a body of laws under the'general head of “ Revised Statutes.” It became manifest, however, that this plan'was open to objections, as being in contravention of the 115th and 117th Articles of the Constitution. Being unwilling to authorize a mere digest of the-laws, and being prohibited from adopting a compilation of revised statutes, they resorted to the plan of selecting separate and independent subjects of legislation, each of which should be the subject matter of a distinct statute which should embrace such of the provisions of antecedent statutes on the same subject as they might think proper to retain; and when the entire legislation upon a single subject matter was thus condensed, it appears to have been the intention that no reference should be made to previous statutes for the purpose of ascertaining the law; — hence the repealing clause. Both in form and in fact, the several statutes were separate and independent Acts of legislation. Among these statutes .thus enacted is that upon the interpretation of which depend the rights of the parties in this litigation.

Approaching then the solution of the issue between the parties with a reference to the history of the whole legislation out of which it springs, and with a view solely to a recognition of the intention of the Legislature in the enactment of the statute referred to, as ascertained by those rules of interpretation which obtain in all countries having a fixed jurisprudence, the questions to be determined are : — Did the Legislature intend j.o create a new office? Did they intend to authorize the appointment of a new officer? Did they intend to repeal all previous legislation on the same subject matter and substitute the new statute in its place? Now, although I have freely conceded the propriety of looking to the history of legislation and to the circumstances under which it is enacted, as furnishing aids to its interpretation,'! must still insist that the plain and unequivocal meaning (according to its received acceptation) of the language in which an Act is expressed, should not be overlooked. In the interpretation of that part of the legislation of Louisiana enacted since the adoption of the Constitution of 1845, we are furnished.with a constitutional guide which, I believe, is peculiar to our State. Owing to ‘the chaotic character of the legislation prior to that period, and owing to the fact that the title of a law often afforded no indication of its contents, it was, for-the express purpose of determining with certainty the objects of legislation, adopted into the fundamental law of the State that “ every law shall embrace but one object, and that shall be expressed in the title.” Constitution, Art. 115. Unless, therefore, the object of a law is expressed in the title, it is absolutely void; indeed, nothing else can be lawfully included with it. If, therefore, the object or intention of the lawgiver is not made clear by the other parts of an Act, it must be determined with absolute certainty by a reference to the title. Now, the issue between the parties in this case is, whether a new office was or was not created by the statute 'under which the relator was appointed. If the object of the statute was to create anew the office of Recorder of Mortgages by new legislation, which should be a substitute for that which they intended to repeal, then the relator, as it appears to me, is clearly entitled to a judgment in his favor. If the object was merely to recognize an office already created by legislation which has not been repealed, but which is still in force, then it is equally clear that the judgment should be against him : but the designation of the object of the Act as “it is expressed in the title” is, as has been before stated, “ An Act creating a Recorder of Mortgages for the parish of Orleans.” It appears to me that this is a constitutional solution of the issue. Pursuant to this declared object, the first section instructs the Governor to make the appointment; and the last section repeals all Acts contrary to the provisions of this Act and all laws on the same subject matter, except such as are contained in the Civil Code and Code of Practice.

But putting the statute itself entirely out of consideration, as if it had never been passed, let us suppose that the Legislature was now about to pass an Act for the express purpose of “ creating a Recorder of Mortgages for the parish of Orleans,” and for the purpose of instructing the Governor to appoint an incumbent to the office thus created, and for the further purpose of repealing the previous legislation on the subject so as to leave no such laws in force, what language could they adopt for the purpose of giving expression to their intentions ? If the language in which the statute under consideration is expressed fails to convey that meaning, I think it would be difficult to select such as would convey it.

Had the new statutes of 1855 been merely revisory, it might be questionable whether, as independent and separate statutes, in the absence of any repealing clause, they would not have operated as a repeal of the statutes which were the subject of revision; for the doctrine appears to be supported by authority, that “ a subsequent statute revising the whole subject matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must, on principles of law as well as of reason, operate to repeal the former.” See Smith’s Commentary on Statutory construction, § 786.

Such appears to have been the interpretation of similar statutes in Great Britain, even in civil matters. The first section of the statute 6, Geo. 4th, simply repealed all previous statutes of bankruptcy. There being no saving clause as to acts, of bankruptcy committed, or any inchoate proceedings under the former acts, it was held that the court had no power to imply a saving clause, although it was plain that by a mere inadvertence in legislation, the kingdom was left destitute of its bankrupt law. The court was pressed for a construction which might avert so general an evil; but Lord Tenterden said, “We are not at liberty to break in upon the general rule,” though' he admitted that it was very unfortunate that an Act of so much importance had been framed with so little care.” Smith’s Commentary, §765.

It is not necessary, however, in this case to determine what may be the full extent and effect of the repealing clause. The statute I think creates the office of Recorder of Mortgages as a substitute for the former office, and authorizes the appointment of a new officer. The further continuance in office of the former officer is inconsistent with the new legislation, the new office being a substitute for the old one, the archives and other muniments of office appertaining to the latter would belong of right to the new officer.

These views are the result of my examination of the particular statute which is subject of interpretation in this case and of the history of the legislation which led to its enactment; but I am not unwilling to concede that where it is manifest from the context of the new statute that a substitution of the new legislation in the place of previous and similar provisions on the same subject was not intended, the repealing clause should be to that extent restricted in its application ; hut such a departure from the ordinary rules of interpretation should be confined to cases where the terms of the statute itself necessarily demand it, in order to give effect to the whole statute; on the ground that an Act should be so construed as, if possible, to give effect to all its parts. The Act now under consideration is not of that character.

I think the judgment should be affirmed-.


author: Buchanan, J.

text:
    R. F. Nichols v. His Creditors.
    An opposition to the proceedings of creditors granting a respite is not too late, if the proceedings have not been homologated, although ten days may have elapsed since they were regularly filed in court.
    Code, 8058.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Howard, for Syndic. Sprig, for Voorhies, Griggs <& Go., opponents and and appellants.
   Buchanan, J.

The appellee petitioned for a respite, and a meeting of his creditors was ordered to take place before a notary public, in order to deliberate upon his applicatien. The proees verbal of the meeting of creditors, with the certificate of the notary that the legal majority of creditors had granted the respite prayed for, were filed in court on the 18th of June, 1855.

On the 11th of February, 1856, the appellants, Voorhies, Griggs & Go., creditors of petitioner, filed an opposition to his proceedings, on various grounds.

On the 28th February, 1856, this opposition pending and undecided, the appellee presented to the district court, his petition for the homologation of the proceedings before the notary, which was allowed by the court, on the ground that appellants’ opposition was filed too late, more than ten days having elapsed since the proees ver bal of the deliberations of the creditors was returned into the clerk’s office. A bill of exceptions was reserved to this ruling of the court, which sets forth the faots.

We think the court erred, and that the opposition of the appellants was in time. The rule of practice recognized in the case of Longbottom v. Babcock, 9 L. R. 42, is: “ When an act is to be done within a given time, as the filing of an answer and the like, it may be done afterwards, if nothing occurs to prevent it.” This was the case ot an opposition to an account of administration. See also Chiasson's Heirs v. Dupuy, 9 L. R. 57. In both those cases, there had been no judgment of homologation, and therefore oppositions were held to be in time, although the delay fixed by law for opposing such accounts had expired.

The same principle was applied to motions for new trial in the case of Smelsor v. Wilson, 4 Rob. 152.

Indeed, the practice has been long established, to homologate, so Jar as not opposed, at the end of the legal delay, for the purpose of excluding further opposition. As to the particular case of respite, we find it distinctly laid down in Article 3058 of the Civil Code, that the contract of respite has no effect, until it is homologated byi- a judgment of the court which has ordered the meeting of creditors, 4 Martin’s Rep. 466. 1 N. S. 240.

A different rule has been applied to the case of an opposition to the discharge of an insolvent who has petitioned for a surrender of property. But that is because, by the 17th section of the Act of 1817, it is not necessary to homologate the proceedings of a meeting of creditors convened under that act.

It is therefore adjudged and decreed, that the judgment of homologation be reversed, so far as it affects the appellants, VoorMes, Griggs S Go., and that the cause be remanded for further proceedings, upon the opposition filed by said appellants, on the 11th of February, 1856, according to law; the appellee to jmy the costs of appeal in both courts.

      Voorhies, J., recused himself in this case.


author: Buen ah an, J. Merrick, O. J. Spojjfobd, J. Mekkick, 0. J.

text:
    Johanna Kearney Foulkes, Administratrix, v. Robert Howes.
    defendant, the highest bidder at an auction sale of property belonging to the succession, refused to comply with the terms of adjudication. The property was regularly resold, and there was a loss. This suit was brought for the difference of price between the first and second sale. By the Court: The petition states that the property was adjudicated to Robert Howes at the first auction sale for the sum of five thousand dollars, all of which will more fulhj appear by referenced the proces verbal of sale, hereto annexed for greater certainty. But the proces verbal states that the property was adjudicated to Robert Howes for the minor children ofJolm Foulkes, and this is confirmed by the evidence of the auctioneer, who produced on the trial the card handed to him at the time of adjudication with the name of the purchaser written on it, as follows: “ Tutot' Robert I/owes, for the minor children of John Foulkes.” This is a variation between the allegata and probata, which in so rigorous a proceeding as that upon afolle enchére, is fatal to the action.
    Fn order to extend the operation of Article 2593 of the Code, to the granting of damages against the party who has made the bid in the name of another, there should be bad faith on the part of the bidder, or at least a want of that care which a good father of family would have used.
    The Supreme Court having decided both ways as to the rights of the defendant to make a bid for the minors without the previous consent of a family meeting, it seems unreasonable to hold the defendant -liable for error of law as to his right so to bid.
    It having been irrevocably determined that the folie enchére was valid, it follows, as an irresistible sequence of that judgment, that defendant is liable under Articles 2589 and 2593 of the Code. Spofford, J., dissenting, with whom concurred Lea, J.
    There is n-o fatal discrepancy between the allegata and probata. The proces 'verbal itself was annexed to the petition, aud specially referred to in it for greater certainty. The liability of defendant is personal under Article 8898, for the very reason that he caused the adjudication to be made to him as tutor without sufficient authority to bind the minors. By legal intendment the adjudication was made to him personally, Spofford, <Tm dissenting, with whom concurred Lea* J.

      Neither error of law, nor the absence of bad faith can4 release the defendant and oblige the succession to lose the money. This is not an action in damages for a tort, where malice must be proved although even then, ignorance of the law, however obscure and uncertain it may be, has not been held to constitute an excuse. The substance of this aétion is to recover the damages, liquidated by the law itself, for the breach of a contract. Spoffotd, J., dissenting, with whom concurred Lea, J.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Benjamin, Bradford, & Finney, for plaintiff. Durant & Honor, for defendant and appellant.
   Buen ah an, J.

(Spoitobd, J. and Lea, J., dissenting.) Tho petition states that the property was adjudicated to Robert Howes at the first auction sale for the sum of five thousand dollars, all of which will more fully appear by referenced the proees verbal of sale, hereto annexed for greater certainty. But the proees verbal states that the property was adjudicated to Robert Howes, for the minor children of John Foulhes. And this is’ confirmed by the evidence of the auctioneer, who produced on the trial the card handed to him at the time of adjudication, with the name of the purchaser written on it, as follows:

“ Tutor, Robert Howes, for the minor children of John Foulhes

This is a variation between the allegata and the probata which, in so rigorous a proceeding as that upon a 'folie encMre is fatal to the action. See the observations of the court in Guillote v. Jennings, 4th Annual, 242.

But it is said that Howes was without legal authority to purchase for his wards, and that the adjudication is to be'considered as made to himself personally, under Article 2693 of the Code. We think that, in order to extend the operation of this Article to the granting of damages against the party who has made the bid, in the name of another, which is the object of tho present action, there should be bad faith on the part of the bidder, or at least a want of that care which a good father of family would have used. But the judgment of this court pronounced in the May term of last year between the same parties, is a sufficient voucher for the good faith of Howes in making1 the bid in question. We refer to that decision for the facts of the case. The solo ground upon which the defendant is charged with personal liability’1, is in the words of Article 2693, that he was “ without sufficient authority to bind the minors, in whose name he bid at the auction sale. And the want of authority is inferred from the decision of this court upon the re-hearing of the former case just mentioned, pronounced last January; which held that the tutor should have been authorized to make the purchase by a family meeting previously to the sale. But upon this point .of law, this court was divided, two out of the five judges holding the contrary doctrine, namely, that the consent of the family meeting might be obtained after the purchase. And this had been the doctrine of the majority of the court last year, when the case was first decided. Under these circumstances it seems unreasonable to mulct tho defendant in damages for having erred upon a matter of law upon which this court, the expounders of the law in the last resort,-, has decided both ways. In other words, we are asked to punish the defendant for that which this court, as constituted last May, declared to be a legal act; and which is only now held ille-gal, because of the resignation of the two judges and the election of two others in the interval between the petition for a re-hearing of the first judgment, and the decision of that application for re-hearing1.

The circumstances of this case exclude the demand of tho plaintiff.

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

Merrick, O. J.

(wi th whom concurred Yooriiies, J.) Under the peculiar facts of this case, I am inclined to concur in the conclusions o( Mr. Justice Buch-an am.

The tutor of the first sale took upon himself in his bid, no name or capacity which he did not possess.

We are informed by the counsel for the plaintiff that this suit is prosecuted for the benefit of the minors for whom Howes is tutor.

I am unwilling to see a tutor who has been acting in good faith and for what was fairly supposed to be for the interests of his wards, mulcted in eighteen hundred dollars damages for a mere error of judgment. Had the administra-trix sued for or even favored a specific performance of the contract, with permission to use the superior mortgage of the minors in its payment (which would have been injurious to no one) instead of insisting upon her strict rights in the other form it is probable that the tutor would have been enabled to comply with his bid.

If there has been any loss, it has been occasioned, perhaps, as much by the obstinacy of the administratrix as the error of judgment of the tutor.

Not finding the tutor within the strict letter of Article No. 2593 of the Civil Code, I am willing, in a proceeding, avowedly for the benefit of his wards, for whom he has acted with his best ability, to leave him where I find him, without imposing upon him a penalty for his zeal and exertions in their behalf.

Spojjfobd, J.

(dissenting, with whom concurred Lea, J.) It has been irrevocably determined that the sale to Dr. Puissan a la folie enehére, under Article 2589 of the Civil Code, at the risk of the defendant Howes, was a rightful procedure and vested a title in Dr. Puissan. See the case of the Succession of Georye Foulkes, ante p.

It matters not how much the court may have wavered and differed in coming to that conclusion, nor indeed would it matter so far as the determination of this cause is concerned, if the conclusions were erroneous; for res judicata pro veritute aeaipitur.

It was decided that Howes made a bid in the name of the minors under his tutelage without sufficient authority to bind them.

Tie refused to pay the price, was duly put in default, neglected to take any steps to procure relief by attempting to comply with the requisites of law, and the result has been a resale of the property at a sacrifice of $1815, “ If at the second crying, the thing is adjudicated for a smaller price than that which had been offered by the person to whom the first adjudication was made, the latter remains a debtor to the vendor for the deficiency and for all the expenses incurred subsequent to the first sale. But if a higher price is offered for the thing than that for which it was first adjudged, the first purchaser has no claim for the excess.” 0. 0. 2589.

“ The person who bids in the name of another without sufficient authority to bind him, is considered to have bought on his own account, and is answerable for all the consequences of the adjudication.” 0. 0. 2593.

Under these Articles the liability of the defendant appears to me to be an inevitable sequence of our former judgment.

I am unable to perceive any fatal discrepancy between the allegata and pro-bata, nor does it seem to have been noticed by counsel. The procos verba itself was annexed to the petition and specially referred to in it for greater certainty. The liability of Hoioes, is personal under Article 2598, for the very reason that he caused the adjudication to be made to him, as tutor without sufficient authority to bind the minors. By legal intendment the adjudication was made to him personally.

Nor do I perceive how an error of law, or a lack of bad faith on his part can release the defendant and oblige the succession of Foullces to lose this money. This is not an action in damages -for a tort, where malice must be proved, although even then ignorance of ’the law, however obscure and uncertain it may be, has not been held to constitute an excuse. The substance of this action is to recover the damages, liquidated by'the law itself, for the breach of a contract. By the act of Hoioes the succession of Foullces, and by consequence its creditors have lost $1,815 ; now should not this loss fall upon the man whose mistaken notions of law occasioned it, though he may have acted in the best of faith, rather than upon the innocent creditors of the injured succession, since we have already determined that the administratrix acted throughout in strict conformity to law ?

If we are at liberty to look into these equities in a proceeding of strict law, it should also be observed that Howes himself is proven to have caused the sacrifice, by insisting upon his own title at the re-sale, and menacing the bidders with a law-suit.

It has been said, that if we affirm the judgment, it may greatly injure the defendants, and possibly deprive the minors under his protection of a home. If so, it is an extremely hard case ; but rules of law are inflexible or they are worthless.

The rule that operates a hardship to-day, may work beneficially in' all time to come. Wo cannot make an exception where the law does not, without invading the legislative province. And it has ever been found that that system of law is best, which leaves the least to the discretion of the Judge.

The claim being ex contractu and not ex delicto, the prescription of one year is inapplicable. Bor these reasons, I think the judgment of the district court should be affirmed.

An application having been made for a rehearing, the following judgment was rendered:

Mekkick, 0. J.

We find in the application for a rehearing in this case, the following passage :

“ Time is wanting to express our views fully.' We respectfully refer the majority of the court to the opinion of Judge Spoffoed, in connection with what we hastily suggest. We will not say that that opinion is unanswerable; although in our humble opinion no answer suggests itself. But we submit, that that opinion should be refuted, or should control the decision of this case, in the interest of the jurisprudence oLour State.

If there be an answer, let it be given, and the decision of your honors be vindicated.”

The high standing of the gentlemen who have applied for the rehearing in this case, requires from us some notice of the petition for a rehearing so extraordinary in its tone. We have hitherto supposed that we had discharged our dutj', when we had respectfully considered each others opinions and decided each individual case, upon the reasons applicable to it. We were not aware that we owed to counsel or the public, the duty of combatting the opinion of the Judge who might be unable to concur with the majority in opinion, neither had we surmised the way, or learned precisely, how we were to be informed, and on what occasions it would be necessary and proper to vindicate any particular decision of this court.

We thought that in the case before us, all that was required of either the minority or majority of the court was, that the case should be so decided that injustice should not be done under the law to the one party or the other.

The majority of the court did not believe, that in a proceeding striati juris, they were bound to enlarge the letter of the law, in order to embrace and mulct a tutor in damages for the benefit of his wards, whom he was endeavoring to serve to the best of his abilities; nor did they think that the question in this controversy had already been adjudged against the defendant in the former suit.

The minority of the court have entertained, and with marked ability expressed, different views, which are entitled to the same respect, although not decisive of the matters in controversy, as the opinion of the majority of this court, and no more. Neither the opinion of the majority nor minority was written to catch the approbation of this or that man, (motives unworthy of any judicial tribunal, whose sole object should be to do justice in each case, according to the laws of the land.) Nor can it be permitted to any one, how respectable soever his standing may be, so far to forget in his official intercourse with this tribunal, what is due to it, as to point out, under the pretence of its interest to jurisprudence, what particular opinions are worthy of favor, and what need to be vindicated by the court.

A majority of the court are of the opinion, that justice has been done between these parties to this suit.

Rehearing refused ; and inasmuch as the application for a rehearing is considered disrespectful to the court, it is ordered that the same be taken from the files by the Olerk, and returned to the counsel who filed it.


author: Lea, J.

text:
    Charles Patterson v. D. D. Tompkins and M. Marigny, Sheriff.
    Under an allegation made by the plaintiff, who sought to enjoin the sale of property seized by defendant, that plaintiff was the owner of the property seized, he cannot be permitted to prove the ex-tinguishment of the mortgage note held by defendant.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Holland, for plaintiff. Scott, for defendant and appellant. Larue, for Sheriff.
   Lea, J.

The plaintiff has sued out an injunction restraining the execution of a judgment obtained by the defendant, Tompldm, against J. W. DoTbear, on the ground that the property seized does not belong to the defendant in execution but to the plaintiff in the injunction. This is the only ground urged in the petition why the injunction should be granted. The evidence shows that the plaintiff purchased the property seized in execution from DoTbear, who purchased the same from John M. Bach, in whose favor the property was mortgaged to secure the payment of the notes given for the price. Upon one of these notes the defendant, Tompkins, as transferree, obtained judgment against Dolbear, with privilege as a mortgage creditor upon the property seized in execution. The act of mortgage given to secure the vendee’s notes was made in favor of Bach, or any other holder or owner of the same; it moreover contained the pact de non alienando. Under these circumstances the plaintiff’s injunction had no legal foundation, the property being liable in his hands for the payment of the judgment without the necessity of resorting to the hypothe-cary action.

The plaintiff, on the trial of the case, was permitted to introduce evidence to prove the payment and consequent extinguishment of the note by DoTbear, acting either on his own behalf or agent of Mr. Tompkins. But this evidence was objected to by the defendant on the trial of the case as being inadmissable under the pleadings. We think the objection was well taken, and that the testimony should have been rejected.

Setting aside the testimony introduced for the purpose of proving the payment of the note, and the case is clearly with the defendant.

It is ordered that the judgment appealed from be reversed, that the injunction herein issued be set aside, and that the defendant, D. D. Tompkins, do have and recover of the plaintiff, Charles Patterson, and his surety, Joseph Gartz, in solido, thirty dollars damages; sfnd it is further ordered that the plaintiff, Charles Patterson, pay costs in- both courts.


author: Buchanan, J., Merrick, O. J., Spofford, J.',

text:
    Henriette, alias Mary, v. Heirs of Charles Barnes.
    The emancipation of a slave by last will only takes effect after the formalities prescribed by Article 187 of the Code have been fulfilled; that is to say, after a declaration shall have been made to a competent court; after that declaration shall have been advertised ; and after the oppositions, if any be made, shall be determined. The declaration of intention to emancipate is to be made by the executor, or by the heir of the testator. Buchanan and Voorhies, JJ., and Merrick, O. J.
    Since the statute of 1846 a slave taken from Louisiana to California does not thereby acquire freedom, Buchanan and Voorhies, JJ., and Merrick; 0. J.
    A slave carried from Louisiana to California by her-master, though she there acquires the status of a free person, cannot stand in judgment in this State, except in a suit for freedom. Spofford,
    Voorhies and Lea, JJ., and Merrick, C. J.
    If the court were to decree to the plaintiff, now in California, the legacies bequeathed to her, her freedom would be recognized, which would be final between the parties to this suit. What then would prevent her return to Louisiana? What force would there be in the Act of 1846, after her freedom had been recognized by the court. Merrick, C. J., and Voorhies, J.
    APPEAL from the District Court, Third District, Parish of Jefferson, Burthe, J.

      B. N. Ogden, for plaintiff. Marks, for defendants and appellants.
   Buchanan, J.,

with whom concurred Merrick, 0. J., and Voorhies, J. This suit was instituted in April, 1852. The plaintiff sues for herself and for her minor daughter, for legacies bequeathed to them by the late Charles Ba/rnes, to wit: one thousand dollars to the mother and five hundred dollars to the daughter. The defence is, first, that the plaintiff is a slave to the succession and not capable of standing in judgment: and if this exception be overruled, that the legacies in question exceed the disposable portion (the testator having left a father and mother) and should be reduced to such portion.

The will of Charles Barnes, made at Freeport, in the parish of Jefferson, June 14th, 1847, reads as follows : “I, Charles Barnes, will and bequeath to my servant girls, named Henrietta, alias Mary, and her child, Mary, alias Marietta, their freedom and emancipation, according to law, from and after my decease, and as much of the proceeds of my property as one thousand dollars, and all my house furniture, to the said girl Henrietta, alias Mary ; and the sum of five hundred dollars to be invested in a lot of ground in the corporation of Lafayette or Freeport, to be and is hereby given to my little servant girl Mary, alias Marietta. If possible, my executors will purchase for Henrietta, alias Mary, a lot and dwelling with said one thousand dollars, which is thus to be laid out. I hereby dispose of the balance of my property to my relation as the law directs for the same.”

This is an enfranchisement by last will; and this mode of enfranchising a slave is recognized by our law, provided the manumission be made with the forms and under the conditions prescribed by law. C. Code, Art. 184.- Those forms and conditions are particularly detailed in Articles 185 and 187. We infer from the phraseology of the Article first quoted (184) that an emancipation of a slave by last will only takes effect after the formalities prescribed by Article 187 of the Code shall have been fulfilled; that is to say, after a declaration shall have been made to a competent court; after that declaration shall have been advertised; and after the oppositions, if any be made, shall be determined. 4 Rob., 179; 9 An., 176; Delphine v. Guillet, lately decided. The declaration of intention to emancipate is to be made by the executor, or by the heir of the testator. But in the present case none of these formalities have been observed. On the contrary, it seems to be taken for granted that the plaintiff has acquired the status of a free person because her master, Barnes, after making his will, took her and her child with him to California, a State in which slavery does not exist, with the avowed intention that she should be free; in which State, as appears from the petition, she still resides.

We cannot admit the correctness of this position. Barnes’ will was made in Louisiana, of which State he was at the time a resident; where his property is situated; and where his succession is in course of administration. It is evident from the language of the will, made two years before his departure for California, that the intention of the testator was that the emancipation should be effected according to the law of Louisiana. It is the policy of this State, as evinced by its legislation, to restrict the power of masters to emancipate their slaves. Emancipation is considered to be a matter which concerns the State, inasmuch as its tendency is to substitute a free colored population for the system of compulsory labor, which involves to such a vast extent the fortunes of our citizens and the production of our agricultural staples. Accordingly we find that in the year 1842 masters were forbidden by law to take their slaves into free States. (Acts of 1842, p. 314.) And in the year 1846 it was enacted that no slave should thenceforward bo entitled to his or her freedom, under the pretence that he or she has been, with or without the consent of his or her owner, in a country where slavery does not exist, or in any of the States where slavery is prohibited. (Session Acts of 1846, p. 163.) This latter statute is conclusive of the right of plaintiff to be considered as actually free, in consequence of having been taken by her master to California. Under the decisions of the Supreme Court of Louisiana prior to the Act of 1846, such transportation would have had the effect contended for; but it is well known that the Act in question was passed in consequence of those decisions. The defendants’ exception should have been maintained.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and that this suit be dismissed, at cost of plaintiff and appellee.

Merrick, O. J.,

with whom concurred Vooriiies, J. The plaintiff is quoad. our laws still a slave. (Acts of 1846, p. 168.) Were we to decree to the plaintiff the legacies bequeathed to her in the will of Charles Barnes, we should recognize her freedom by a judgment which would be final between the parties to this suit. What then would prevent her return to Louisiana? What force would there be in the Act of 1846 after we had recognized her freedom ?

I think for the reasons assigned both by Mr. Justice Buchanan and Mr. Justice Spofford that the judgment of the lower éoúrt ought to be reversed.

Spofford, J.',

with whom concurred Merrick, 0. J., Vooriiies, J., and Lea, J. The plaintiff was not manumitted acording to the forms of our law before she departed for California with her master.

Although, by the law of California, where she now resides, she possesses the status of a free person, and although she cannot now be reclaimed by the heirs of Barnes, because she is not a fugitive from labor or service, having been carried hence to California by her master, with intent to remain permanently, still the policy of our local statutes forbids that she should stand in judgment in the courts of Louisiana for any other cause than to sue for her freedom. Act of May 30th, 1846, p. 163; 0. 0., 177. As, if she returned hither, she would be a slave until duly enfranchised according to our laws, so, until she is thus enfranchised, she cannot be heard in our courts to sue for a legacy left her in Louisiana by the will of Barnes, executed here when she was his slave.

For these reasons I concur in the judgment of non-suit.


author: Merrick, O. J. Spofford, J.

text:
    George G. Ealer v. James P. Freret.
    After the testimony had been taken, and the argument commenced, the cause was continued. Pending the continuance a new judge was elected, who refused to try the case de nono, but permitted counsel to take bills of exceptions to the testimony which had previously been introduced. Held: The plaintiff had the right to have the cause tried de 7i0«o,but as he was not prejudiced by the action of the court, inasmuch as his bill of exceptions shows that his sole purpose in asking for. a trial denonOy was to allow him to except to certain evidence, which the court permitted, there is therefore, no error in the proceeding? of the inferior court.
    Parol evidence is admissable to show fraud in the registry of title to a steamboat.
    4PPEAL from the Second District Court of Now Orleans, Morgan, J.

      H. & E. E. Marr and Mott <1 Fraser, for plaintiff and appellant. Thomas Eunton, for defendant.
   Merrick, O. J.

(Spoffohd, J., dissenting.) There are several bills of exception in this case which must be disposed of before considering the merits.

The first we notice is, the bill taken by the plaintiff to the refusal of the judge to try the case de novo. It appears that whilst the predecessor of the present District Judge was on that bench, the. testimony was heard and the argument of one of the counsel concluded, but there being a want of time to complete the case, it was continued. At the trial, in November, 1855, the defendant’s counsel moved the court to take up the case just as it was left at the former trial in July, that is to treat the testimony as concluded. The plaintiff opposed the motion and insisted that “the testimony should be offered anew, subject to all legal exceptions.” The court refused to allow the testimony to be offered de now, and the plaintiff excepted. It is, we think, clear that the plaintiff had the right to try the case de now. The judge before whom the case had been submitted, having failed to render judgment, the regular mode would have been to proceed as in the case of a now trial. But it is not enough for the party who desires the reversal of a judgment to show that the court erred, he should show that ho has been prejudiced by such decision.

The bill of exceptions in this case shows that the plaintiff desired to try the case de now for one purpose only, viz: to secure himself the right to except to the testimony as it should be again offered. This right appears to have been accorded him, at the last trial of the case. Seven bills of exception to testimony, attest the fact that the parties were not prejudiced by the refusal of the District Judge to go through the formality of requiring the testimony to be offered piece by piece, as was done on the first trial.

Had the plaintiff been prevented from offering other and further testimony, or from excepting to the testimony offered, it would have been clearly error. As the case is now presented to us the plaintiff has not been prejudiced, he merely wished to except to the testimony and he has fully exercised that right. Parol proof was admissible on behalf of the .attaching creditors to show that the real interest in the steamboat was in T. Graham & Son. The Act of Congress requiring the registry of the title of steamboats and other vessels, was intended as a protection against fraud. It could never have been in the contemplation of Congress to make it a shield to a party who had made a false and fraudulent registry. But to hold that no proof except written evidence could be adduced to show fraud, would be to give such effect to the Act. It is well settled that the registry, so far from being conclusive proof of title, is so little considered, that it requires some auxiliary evidence in order to charge, as owner, the party in whose name the vessel is registered. 1 Greenleaf Ev. No. 494.

We think the judge a quo erred in receiving the testimony of those of the attaching creditors who were examined as witnesses. It is true they are not parties to this suit, nevertheless the judgment in favor of the defendant who is merely their agent, would directly benefit them. The testimony, therefore, of A. E. May, L. M. Wilson, J. A. Greer, A. M. Elgin, John Gline and W. A. MeOlure must be excluded.

With this testimony rejected, the defendant is without sufficient evidence to overcome the repeated written and verbal acknowledgments of T. Graham & Son, that they had no interest whatever in the steamboat Louisa. Still there is in the record a document which, as the case now stands, must have a controlling effect in this controversy. It is the document executed by Scotto G. Burrell and T. Graham & Son, as the boat was leaving for St. Louis for sale. It provides for the sale of the boat; and L. J. T. Wilson, the clerk of the boat, was empowered to receive three-fourths of the proceeds, and by him to be handed to Messrs. May & Vanhoolc, of New Orleans, for the purpose of securing to L. M. Wilson and Borancy & Son, and the balance to be placed on their said May & Vanhooh's, books to the credit of said T. Graham & Son. The other one-fourth of the proceeds was by said contract to be paid to Scotto G. Burrell. It was also provided that if the boat could not be sold within one week at St. Louis she was to bo brought back to New Orleans.

This instrument signed by Seotto G. Burrell and T. Graham & Son, indirectly recognizes Seotto 0. Burrell as the one-fourth owner and Graham & Son as the owners for the other three of the boat, and in the doubt created by the other testimony, they must be considered as owners in that proportion.

We think that the testimony shows .that Henry JD. Baler and George G. Baler were aware of the presence of J. T. W. Graham, of St. Louis, and that they knew S. O. Burrell was without authority to sell the boat, and we think that the purchase by George G. Baler was,'under the circumstances, in fraud of T. Graham & Son.

The only title, therefore, which George G. Baler acquired by this salé was the one-fourth interest which Seotto 0. Burrell owned in the boat. Claiming as George Baler does, the proceeds of the sale of the boat, we think he is entitled to recover one-fourth of the proceeds of the steamboat Louisa in the hands of the defendant. It is, therefore, ordered, adjudged and decreed by the court that the judgment of the lower court be reversed, and that the plaintiff do recover of the defendant and have judgment against him for the one-fourth part of the proceeds of the sale of said steamboat in the hands of the sheriff, after deducting simply the costs of the sale, and no other costs, and it is further ordered that this case be remanded to the lower court to make the deduction and ascertain the said one-fourth and award execution therefor. And it is further ordered that the defendant and appellee pay the costs of both courts. 1

Spofford, J.

(dissenting.) Concurring in many of the views expressed by Mr. C. J. Merrick, J am yet unable to see how the plaintiff can recover any part of the proceeds of the boat.

I regard the plaintiff and his brother Henry B. Ealer as one person in the transaction with Seotto 0. Burrell, at St. Louis; and, concurring in the opinion of the Chief Justice that they had notice of the title of the Grahams, and of the lack of authority in Burrell to sell at the time he did, I am compelled to regard their pretended purchase as a simulation, the result of collusion with Burrell, which can give the plaintiff no claim in law or equity upon any part of the proceeds.

There is, in my judgment, no such proof of title in Seotto O. Burrell as would authorize Burrell himself, still less his fraudulent pretended vendee, to recover anything. And the plaintiff can only recover upon the strength of his title. The defendant was not bound to show title in the Grahams.

I think the judgment should be affirmed.


author: Merrick, C. J.

text:
    James C. Kathman et al. v. The City of New Orleans.
    The Legislature, "by the Act of 11th of March, 1854, p. 46, intended, infixing the compensation of the Assessors, to include, under the term property, the capital which it was the duty of the Assessors to ascertain.
    The term property, in its enlarged signification, includes capital.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Collins, for plaintiff. Livingston, City Attorney, for appellant.
   Merrick, C. J.

"We think the Legislature by the Act of the 11th of March, 1884,. p. 46, intended in fixing the compensation of the Assessors, to include, under the term property, the capital which it was the duty of the Assessor to ascertain. The term property, in its enlarged signification, includes capital. The Assessors wore required to carry the capital into the assessment roll, and it figures therein precisely as do real estate and slaves, as a subject of taxation. The only difference between the two is, that capital required no further assessment than to ascertain the amount, whilst slaves and real estate require an estimate of their value.

The testimony renders it probable that something ought to be deducted from the amount claimed by the Assessors of the Second and Third Districts. But there is nothing in the record by which we can ascertain the precise amount. As to the sums claimed by the city for printing, there is nothiug to show that it was done at the request of the Assessors. For all that appears, it was done for the convenience of the city, and for the further assurance of the correctness of the tax rolls. It appears, moreover, to have been done before the copy of the tax roll was delivered to the city.

Judgment affirmed.


text:
    City of New Orleans, praying for the opening of Dryades Street.
    The owner of property and others interested will not be considered as having notice of the proceedings of the commissioners of estimate and assessment after the expiration of the delay fixed by the court for filing their report; and where the report was afterward filed and homologated— it will not bind. them.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Limingston, City Attorney, Glarlce & Bayne, Dunlap & Glarlce, Eg-gleston, Leomj, J. 0. Glarlce, and Glarlce & Waples, for different opponents.
   Lea, J.

The commissioners of estimate and assessment appointed by the court, upon the application to open Dryades street, under the provisions of the statute of 1832, made their report on the 23d of February, 1854. The appellants having made opposition thereto, it was on motion referred hack to the commissioners for correction, with instructions that an amended report should be filed within ten days from the date of the order, viz, the 22d of April, 1854. The delay fixed by the court expired on the 2d day of May. No report, however, was filed on that day, nor was any application made by the commissioners for an extension of the time. On the 25th of May, the amended report was filed, and on the 12th of June, (no opposition having been filod,) it was, on motion, homologated,

The appellants complain that this j udgment was rendered eat parte, without any notice, either actual or constructive, having been given to them of the' filing of the amended report.

The question presented then is this : Are the owners of property and others interested, to be considered as having had notice of the proceedings of the commissioners, after the expiration of the delay fixed by the court ? Up to that period, the order of court, by its very terms, was a notice to them, but in the absence of any order of court extending the delay, it was a mere matter of conjecture to the proprietors at what period the amended report might he filed.

Parties, when once properly brought before the court, are bound to recognize its orders, and are deemed to have notice of all matters necessarily incident thereto, among which, in this case, would be the order of extension; but it would he unreasonable, as it was ruled in the' proceedings for the opening of Exchange Alley, “ to hold these parties to perpetual vigilance in watching, day by day, the minutes of the court, while the city remained inactive and the commissioners disregarded and disobeyed the orders of the court.” See 4 An. 5. Nor is the case altered in principle by the fact, that the report was actually filed within twenty-three days after the delay fixed by the court had expired. If the owners of property are, without notice, to be held to watchfulness for twenty-three days, awaiting the uncertain action of the commissioners, it is impossible to fix a period at which such diligence would cease to be obligatory. Any designation of^such a'period, would be clearly arbitrary. The ground urged in support of the motion to dismiss the appeal for want of interest and for want of citation to the proper -parties, are not supported by a reference to the record. The citations appear to have been properly served, and the appealable interest of the appellants is. displayed in the record.

It is ordered, that the judgment appealed from be reversed, and that the cause be remanded for further proceedings according to law; the appellee pdyiiig the costs of the appeal.