text:
    No. 8150.
    Orr & Lindsley vs. Lisso & Scheen.
    Foreign creditors, having contracted with citizens of Louisiana whilst its Insolvency Laws were in force, cannot claim in the State Courts an exception from the operation of those laws; and an order of a State Court, accepting a cessio bonorum and staying further proceedings against 'an insolvent, will arrest the action of such foreign, as well as of home creditors.
    APPEAL from the Tenth Judicial District Court, parish of Red River, Logan, J.

      J. D. Roach for Plaintiffs and Appellants.

      L. D. Watkins for Defendants and Appellees :
    First — That a judgment is improperly signed after a debtor has made a cession of his goods. 14 An. 443.
    Second — That the rights of all creditors should remain in the state they were at the date of the insolvency.
    Third — That thereafter the suit should be cumulated with the proceedings in concurso.

    Fourth — That when a debtor cedes his property to his creditors, and a stay of proceedings is granted, the cession operates the civil death of the debtor, and he cannot, consequently, remain a party in a suit. 1 M. 193, Dimes vs. Estovan; 3 M. 90, Syndic of Bermudez vs. Canez and Milne ; 2 IT. S. 307, Canez vs. Schooner Kinley; 14 An. 443, Lyons vs. McCray; and various other authorities cited in brief.
    Fifth — The law governing the application and order for a stay of proceedings is different and distinct from that governing the discharge of the debtor, and its effects on creditors.
    Sixth — That the stay of proceedings was necessarily granted in the judge's order of acceptance, and this proceeding has only the additional effect of enforcing this stay against these plaintiffs, non-resident creditors, and prohibiting them from obtaining a judgment in a court of this State -during the pendency of the insolvency proceedings, in which they refuse to participate.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiffs, representing themselves as citizens of Missouri, claim from the defendants the amount of their note, dated at St. Louis on October 26th, 1878, and payable in New Orleans.

The suit was instituted on May 20th, 1879. A default was entered on November 6th following, and appears to have been confirmed on May 8th, 1880. The judgment was not regularly entered and has remained unsigned.

On the 13th following, the defendants entered an appéarance for the sole purpose of averring that they, individually and as partners, had made a full, final and complete surrender of all their assets and property in accordance with the terms and provisions of the State insolvent laws, and obtained an order from the court accepting the same for the benefit of all their creditors, and ordering a stay of proceedings.

The evidence shows the verity of the facts averred by the parties. The cessio bonorum took place, and the order set up was made on May 8th, 1880, the day of confirmation of default. An attorney was thereby appointed by the court to represent the absent creditors of the insolvents, namely, those residing out of'the State.

There was judgment sustaining the defense, reserving the rights of the plaintiffs to be exercised in concurso with the creditors of the insolvents. From this judgment the plaintiffs have appealed.

The question presented is as to the effect of the order staying further proceedings against the insolvents, as concerns creditors who were citizens of another State.

It is important to note that the insolvent laws now in force in this State were in existence in 1867, when Congress adopted a uniform system of bankruptcy. The operation and effect of those laws were suspended until September 1st, 1878, when the general bankruptcy law was repealed by Congress. This repeal vivified the State laws, in the meantime dormant.

The contract evidenced by the note sued on was, therefore, entered into after such repeal, after the State laws had again gone into operation.

The power of State Legislatures to pass insolvent laws cannot be doubted, provided there be no act of Congress establishing a uniform system of bankruptcy conflicting with their provisions, and provided the laws be so framed as not to impair the obligation of contracts.

Such State laws, however, cannot be constitutionally made to apply to contracts entered into before they were passed, but may be made applicable to such future contracts as can be considered as having been made in reference to them.

4 Wheat. 122; 5 How. 308; 6 Wheat. 131; 12 Wheat. 213; 1 Wall. 229; 4 Wall. 409; Cooley, Const. L. 359.

As there was no general Federal bankruptcy law in force at the time the note was issued, and the State laws revived by the repeal are not charged with being violative of the Constitution of the United States, prohibiting the passage by States of laws impairing the obligation of contracts, the ease before us must be considered and dealt with as though the State of Louisiana were an independent sovereignty, unrestrained by any superior authority or power.

Under the well-settled jurisprudence, Federal, State and local, on the subject, it must be assumed, that when the plaintiffs contracted with the defendants, they knew them to be citizens of Louisiana, entitled to the protection of the laws of their State for the security of their persons, rights and property; and that the law of the State, at the time the contract was made, in effect provided that the obligation of the contract should not be absolute, but qualified by the condition that the party should be discharged upon his becoming insolvent and complying with the local insolvent laws.

They are presumed to have contracted in reference to those laws and to the jurisprudence expounding them, and to have impliedly assented that the contract was to be construed, governed and controlled thereby. There can be no other standard by which to ascertain the extent of rights and obligations, than that which the circumstances indicate, under which they were acquired or incurred. The qualifications attached to the contract by law the moment the contract was formed became inseparable from it and traveled with it through all the stages of its existence.

4 Wheat. 122; 12 Wheat. 213; 1 How. 311; 2 How. 608; 18 How. 431; 6 Otto, 448, 598; 96 U. S. 607; 4 Litt. 34, 47; 9 Cal. 81; 31 Penn. 175; 14 Rich. 148; 3 Mart. 531; 3 An. 337; Cooley, Const. L. 360; Bump. Const. notes, 121, 122, 155; Roser, Interstate C.

Now, by the insolvent laws of Louisiana, in existence when the contract was formed and which have not since changed, the defendants were entitled to make a surrender of their property to obtain a stay of proceedings and to make their absent creditors parties by constructive notice in the person of an attorney appointed to represent them ad hoc. The jurisprudence then was, and still is, that the order of a competent court accepting the surrender and staying all proceedings, preclude any creditor from instituting a suit in a State Court; that the State can 'exercise the fullest authority over her own tribunals, and prohibit citizens of other States from suing in them on contracts made either in or out of the State; that her insolvent laws extend to all persons, whether citizens of other States or foreigners, and that all contracts were declared affected by them, whether made to be performed in or out of the State. 5 An. 371; 8 An. 377; 10 An. 145.

The plaintiffs must, therefore, be taken as having contracted in reference to those laws and to that exposition of their meaning and purport, and to have consented to all contingent eventualities. Under those laws and that jurisprudence, the defendants were authorized to do •that which they have done and to obtain the relief which was allowed them.

The citizens of this State are most unquestionably bound by those proceedings; citizens of other States must alike he bound. They cannot be permitted to claim, and cannot be recognized as having rights, which would place them on a footing of superiority over those of this State. Were it otherwise, they would have it in their power to sue, recover judgment, levy on the surrendered property and satify themselves, in preference to local creditors, and thus nullify and set at naught the laws passed by the State for the protection' of its citizens. A State Court, created by the State Constitution, whose jurisdiction is defined by State legislation, is bound to enforce State insolvency laws in the manner in which it is provided that they shall be.

We have considered the elaborate opinions in Ogden vs. Saunders, 12 Wheat. 213, which cover some hundred pages of the report, and the leading opinion in Baldwin vs. Hale, 1 Wall. 225.

The effect of those decisions is to hold, that the State insolvent laws can have no extra territorial operation, and when pleaded in bar to an action by citizens of a different State against an insolvent, brought in courts of the United States, or a different State from that whose insolvent laws are invoked, they will be disregarded by such courts.

These authorities do not impeach the authority and duty of the courts of each State to enforce their own insolvent laws against all parties whatsoever.

Finding, as we do, that the Supreme Court of the United States has accordingly considered the effect of a certificate of discharge, under a State insolvent law, to be, that it “ cannot be pleaded in bar of an action brought by a citizen of another State, in the courts of the United States, or of any other State than that where the discharge was obtained,” we feel fortified in the conclusion, that the stay of proceeding, multo fortiori, can be enforced in this case. Gilman vs. Lockwood, 4 Wall. 410.

The plaintiffs are, therefore, impeded in the further prosecution of their suit. The judgment confirming the default must be considered a nullity or remain inchoate, according as it may have been rendered after or before the order staying proceedings was made.

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

Mr. Justice Levy recuses himself, having been of counsel.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 6840.
    Mrs. Eliza C. Johnson vs. The New Orleans National Banking Association et al.
    An appeal lies to this Court from an order of a State Court ^removing a cause to the Circuit Court of the United States.
    A suit involving a Federal question, within the provisions of Sec. 2 of the Act of Congress of March 3d, 1875, is removable "by the State Court to the Circuit Court of the United States*

      APPEAL from the Sixth Judicial District Court for the parish of Ot leans. Bightor, J.

      Singleton & Browne for Plaintiff and Appellant.

      Bouse & Grant for Defendants and Appellees:
    The plaintiff sues to set aside a sale made by a special commissioner under a decree of tbe United States Circuit Court for tbe District of Louisiana, for tbe sale of mortgaged property, for alleged informalities. .
    Tbe defendants petitioned for tbe removal of the caseto tbe said Circuit Court, on tbe ground that tbe suit involved a Federal question, within tbe provisions of Sec. 2, of the Act of Congress, approved March 3,1875.
    Tbe plaintiff appeals from tbe order of tbe late Sixth District Court removing tbe cause.
   The opinion of the Court was delivered by

Fenner, J.

This is an appeal from an order of the lower court removing the cause to the U. S. Circuit Court.

Appellee objects that an appeal does not lie from such order; and as that objection goes to our jurisdiction we must decide it. An able opinion of Judge Woods, sitting as U. S. Circuit Judge, is quoted in support of the objection. The right of appeal, in such case, is too firmly established in the jurisprudence of this Court to be departed from until reversed by the Supreme Court of the United States.

28 An. 29; 29 An. 372; 30 An. 474; 31 An. 41, 363; 32 An. 405. See, also, 106 Mass. 180; 25 Wis. 424; 51 Ill. 439.

On the merits, however, the ease is clearly with the appellees.

The controversy is as to the regularity and validity of a decree and proceedings thereunder of a Federal Court, and of defendant’s title under a sale made in pursuance thereof. The decree and proceedings attacked were in an equity cause, the modes of procedure in which are regulated by the laws of the United States, and their regularity and validity tested thereby. U. S. Rev. St. 913-914.

The correct decision of the case depends upon'the “laws of the United States” regulating the subject-matter, and the case, therefore, arises under said laws and is removable under the second section of the Act of March 3d, 1875.

Cohens vs. Virginia, 6 Wheat. 379.

Asborn vs. Bank, 9 Wheat. 822.

Hébert vs. Lefenere 31 An. 363.

No errors in the proceedings for removal are assigned or pointed out by brief, and we discover none.

The judgment appeal from is affirmed at appellant’s cost.


author: Todd, J.

text:
    No. 7906.
    City of New Orleans vs. John Dubarry.
    The license tax imposed by the City of New Orleans on keepers of private markets, does not violate the Constitutional rule of equality and uniformity in taxation, though no license tax at all is imposed upon the sellers of meat, vegetables and other articles, in the public markets of the City.
    APPEAL from the Third District Court for the parish of Orleans. Monroe, J.

      S. P. Blanc, Assistant City Attorney, and Denegre & Stauffer for Plaintiff and Appellant.

      Simeon Belden for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

The City of New Orleans sues to recover of the defendant the sum of three hundred dollars, the amount of a license tax claimed to be due by him as the keeper of a private market.

The defense is that the city ordinance imposing this license is in violation of that clause of the Constitution requiring taxation to be equal and uniform.

There was judgment for the defendant and the city has appealed.

The tax or license is resisted on the ground that market men selling meat, vegetables, etc., in the public markets of the city are not required to pay a license, whilst those conducting private markets in which the same articles are sold, are required to pay the license in question.

The City of New Orleans has power in its discretion to tax all trades and calling’s save those that are specially exempted. This conceded, taxation, under the Constitution, must be uniform, but it need not be universal. That is, upon every distinct trade, calling or occupation not exempted, a license may be required. But the city may exercise this power upon certain objects and callings, and may ignore and so exempt others from its operation. Certain occupations may be taxed for a greater amount, and others for a less, and to that end the city may divide occupations and callings into several classes, and impose a .different tax upon each class; but upon all objects of taxation in the same class there must be equality.

State vs. Poydras, 9 An. 163.

State vs. Lathrop, 10 An. 402.

Upon this point we read in Cooley on Taxation, p. 128, as follows:

“It has already been stated that inequality does not necessarily follow the restricting to a few subjects only or to a single subject. A license tax cannot be deemed unequal because reaching one occupation only, if it is to reach all who follow that. Let it reach all of a class either of persons or things, whether they reside in any particular locality, or are scattered all over the State.”

In further illustration of this principle, we find in the case of Kaliski vs. Grady, 25 An. 576, it was shown that a tax of $50 was levied upon dealers in spiritous liquors on steamboats, and $85 on persons carrying on the same business on land, and it was held constitutional.

And in the case of the City vs. Kaufman, 29 An. 283, the keeper of a junk store, where iron, paper, rags, cordage, etc., were sold, was adjudged to pay a license of $250, though it was shown that the ordinary dealers in merchandise including those articles were charged a much lower license.

Applying these principles to this case, the question arises, do the keepers of the private markets and those selling meats, vegetables, fish, etc., in the public markets, follow the same occupation and calling, and is that occupation and calling so completely the same that those pursuing them respectively cannot be separated and classified, and the,one class subjected to a license and the other exempted from any tax whatever ? And this is the question for our solution.

•The City of New Orleans for the convenience of its citizens has erected public markets in various localities in the city. The buildings are large and commodious and erected at great expense. In their construction it was designed not only to provide for the wants of the citizens, but also to construct them in such a manner as to adapt them fully to the purposes for which they were intended, and at the same time in their peculiar construction to fit them to be used without detriment to the public health.

Further, to promote these objects, these public markets have been subjected to peculiar police regulations. Thus these markets are required to be opened and closed at certain hours. They are also divided into different departments or sections, so to speak. One, in which meat is sold exclusively; another, fish; another, vegetables; and so on. Not only this, but they are further subdivided into stalls, and it is required that only one article or commodity can be sold in each stall. This division and subdivision subserves a double purpose, the convenience of the taxpayers and, chiefly, the facility that is thus offered for a thorough inspection on the part of the officers piovided to that end by the city government.

Do the private markets, equally with the public markets, present all these conditions, restrictions and advantages ? The evidence satisfies us that they do not.

In the first place, the buildings in which these private markets are kept are owned or leased by those keeping them. They have not been constructed with any view to the business for which they are used, but are mere ordinary buildings. And the testimony in the record shows that they cannot be as easily and effectually subjected to the proper sanitary regulations as the public markets, to promote cleanliness and the soundness and preservation of the articles sold.

Besides, all the various articles which are sold in these private markets are not offered for sale on separate stalls or apartments as in the public markets, but we find that all such commodities as meat, poultry, fish, game, fruit, vegetables, etc., are kept exposed for sale in the same room, altogether. They are, it is true, subject to be regulated by rules established by the city authorities, but, in fact, whatever regulations may be made for them, they cannot, in the very nature of things, be subjected to the same regulations provided for the public markets, nor are they as favorable for that prompt and complete inspection which the public markets afford, and which offers the main protection to the public health.

We can realize more readily the difference between them were we to suppose for a moment that the public markets were closed and abolished, and the sole reliance of the citizens were on the private markets to supply them with all these commodities for daily use. We can easily see what injurious consequences would result to the convenience of the citizens, and to the police, good government and health of the city.

With these differences between the two kinds of markets, and with all these advantages in favor of the public markets, we deem it sound policy and the exercise of a wise discretion on the part of the city to encourage all who desire to sell their commodities to occupy the public markets provided by the city; and that there is that difference in the conditions of the business, the mode and method of it as pursued in the two markets, to justify the city in treating these market men as comprising two distinct classes of dealers and discriminating between them by licensing the one and indirectly exempting the other.

Courts of justice will not interfere with the administration of the revenue laws, State or municipal, and strike those laws with nullity unless they are in plain violation of the Constitution. No system of revenue- or taxation devised by human wisdom has even been found in its practical operation to bear equally upon all and to meet the exact theoretical standard of equality and uniformity. If it substantially meets these constitutional requirements, and in its spirit and intendment conforms thereto, it is all that can be expected or required.

It is proper to say that no other question than the one discussed is presented by the record. The case was argued and has been considered solely with reference to the provisions of the Constitution Of .1868, since the ordinance complained of was passed whilst that Constitution was in force.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered by the court below, it is ordered, adjudged and decreed that the plaintiff recover of the defendant the sum of three hundred dollars, the amount of the license in question, with the interest as prayed for from the first of March, 1879, and that the privilege and right of pledge claimed be recognized and made executory, and the injunction issued prohibiting the defendant from pursuing his occupation as the keeper of a private market till the payment of the license be made perpetual, defendant to pay costs of both courts.

Mr. Justice Pooh® takes no part in this case.

Rehearing refused.


text:
    No. 6841.
    Mrs. H. Escoubas et al. vs. The Calcasieu Sulphur Mining Company of Louisiana. M. Musson et al., Appellants.
    In* &u Appeal by third persons, the failure to cite the delendant in the case is fatal and will cause the dismissal of the Appeal. • ‘
    APPEAL from the Sixth District Court for the parish of Orleans. Saucier', J".

      Thos. Hunton for Appellants.

      •A. Robert and W. W. Howe for Plaintiffs and Appellees:
    WháfO a third party interested appeals, and does not cite the defendant in the suit, the appeal will be dismissed.
    Where an appeal is taken by a third party interested, he must cite both plaintiff and defendant in the suit, otherwise the appeal will be dismissed for want of proper parties.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Fenner, J.

This is an appeal by petition, by third persons, from a ■ judgment to which they were not parties.

The failure to cite, or demand citation of, the defendant in the judgment is fatal to the appeal. This Court has no power to revise the judgments of inferior tribunals, where the parties' thereto are not before it.

State vs. Wickliffe, 21 An. 755. It is unnecessary to consider other grounds assigned in the motion to dismiss.

It is, therefore, ordered that this appeal be dismissed, at appellants’ cost.


text:
    No. 6786.
    J. H. Massie, E. E. Chubbuck, Subrogee, vs. J. M. Baily & Co. and T. R. Brady.
    The issue in this case was, whether one of the Defendants had signed the written obligation sued upon, as agent of the other Defendants, or aB their surety. The Court held that, under the evidence and the facts and circumstances of the case, it was satisfied said Defendant bound himself as surety; but that the failure to execute the contract, not .having been caused by his fraud or bad faith, he was liable only for the amount of actual damages suffered by the Plaintiff.
    APPEAL from the Fifth District Court for the parish of Orleans. Cullom, J.

      J. E. Wallace and W. B. Hyman for Plaintiff and Appellee.

      Bentinch Egan and Cotton & Levy for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

Plaintiff claims three thousand four hundred dollars, with legal interest from July 25th, 1871, and costs.

This claim is based on the following agreement:

“ New Orleans, March 25th, 1871.
“We hereby agree to deliver to J. H. Young, agent of J. H. Massie, sixty thousand feet of oak flitch, assorted thickness, 2, 2|, 3, 3| and 4 inch, and thirty thousand feet of square-edged oak plank 2, 2| and 3 inch thick. One-third or more of this lot of lumber to be delivered at the City of New Orleans from the first load brought down by the Barge C. A. Loud (now here).
“All of the above lumber to be delivered at the City of New Orleans within four months from date written above.
“ Said lumber to be received in full payment for the Steamboat Lida Norvel.
(Signed) J. M. Baily & Co.
“ I hereby agree to deliver the above lumber.
(Signed) T. R. Brady.
Witness: H. H. Romaine.”

An inspection of this instrument, as it appears in the record, shows after Brady’s signature the letters “Ag’t,” and the same erased or obliterated by lines drawn across them thus: and the main controversy in the case grows out of this abbreviated word agent — -the plaintiff contending that Brady bound himself personally, and Brady that he signed as agent. The one further affirms that the instrument, when first delivered, did not contain this word, and Brady that it did, and the word “ ag’t” without the obliteration.

Brady first excepted to the action on the ground that in a previous suit upon the same instrument, he had been treated .as an agent of J. M. Baily & Co., his co-defendants in this case, and that under such Judicial admission, the plaintiff was estopped from pursuing him personally.

This exception was referred to and tried with the merits. Brady subsequently filed an answer of general denial. From a judgment in favor'of the plaintiff for the full amount claimed, he (Brady) has alone . appealed.

There are several hundred pages of testimony in the record upon this question touching the capacity in which Brady signed the instrument, whether personally or as agent. Numbers of witnesses for plaintiff swear that the document, when first written and delivered, contained simply the signature of Brady, without the word agent or letters denoting it, while quite as large a number, including Brady himself, swear that this word was written and accompanied the signature, and was erased or oblit erated subsequently to its delivery to plaintiff.

We at first turned with relief from this mass of testimony, reeking with charges of forgery and false swearing, to the following agreement of counsel:

“ By consent of parties hereto * * * the question of forgery or no forgery is hereby waived, and this case is submitted to the Court for its decree against or in favor of T. R. Brady, upon the evidence in writing now on file and the pleadings and the law.”

We imagined, inasmuch as nearly all the testimony was on this very question of “forgery or no forgery,” that our labors would be greatly abridged. What was our disappointment when we turned to the briefs of counsel and read the widely different constructions placed upon this agreement, constructions so much at variance, at the same time so ingenious, that instead of affording the relief expected, we found we had but an additional labor on our hands to interpret this enigmatical agreement.

The counsel for plaintiff congratulate themselves and the Court that by the effect of this agreement the whole matter at issue is narrowed down to a simple inspection of the instrument as seen in the record; that is, with the signature of Brady to an unconditional promise, with the letters “ag’t” obliterated or scratched out, showing conclusively, in their views, that Brady bound himself personally, and thus putting, as they contend, the question of his liability beyond controversy.

On the other hand, the defendants’ counsel are even more congratulatory over this agreement, and point to it exultingly as an absolute abandonment of the charge that there was an alteration of the instrument after it was first signed, and as an admission that it was signed by Brady as agent, and that the word agent was originally in the instrument when delivered, and thus construing, of course, draw the conclusion, that signing as agent, Brady could not be personally bound.

To escape this legal puzzle, thrust' so unexpectedly upon us, or rather to assist us in solving it, there was no other alternative than to return to the testimony itself upon this vital point, and however voluminous and contradictory it might be, by a patient study and investigation of it Seek to find the truth. We have made this investigation, and carefully and deliberately weighed the conflicting evidence, and the conclusion we have reached is, that the defendant, Brady, signed that instrument, without any qualification, binding and intending to bind himself personally and as surety for Baily & Co. for the delivery of the lumber stipulated in the contract. Believing this, we cannot construe the agreement referred to as a consent or acknowledgment on the part of plaintiff’s counsel, that Brady signed the contract in question simply as agent.

Not only the weight of the direct evidence supports our conclusion in regard to Brady binding himself personally, but the facts and circumstances existing at the time the contract was made, and which are undisputed, make any other view of the matter unreasonable and even extravagant.

It is shown that previously to the execution of this contract plaintiff had sold and delivered the steamboat mentioned in the instrument to J. M. Baily & Co., the price of which was still unpaid. Baily & Co. were non-residents, and were on the. eve of leaving the State for their home, and to secure what was owing him, plaintiff was about taking out an attachment and seizing the barge O. A. Loud belonging to them.

They desisted from taking such measures, solely in consideration of Brady’s signing the obligation for the delivery of the lumber, to be received in payment of the debt.

It is not to be supposed that plaintiff would have accepted the obligation signed by him as agent for Baily & Go., that offered no security for the debt, and besides, he had Baily & Co. personally bound, they having already signed the instrument through a member of their firm then present — and there could be no object in getting Brady to sign as their agent under such circumstances. It could add nothing to the contract, or in any way tend to secure the obligation created thereby.' But the obligation was given, and after it received the signature of Brady and was delivered, Baily & Co. were allowed to depart and take their barge with them.

It is, however, 'urged that in a previous suit against Baily & Co., in this same contract, plaintiff had Baily & Co. cited through Brady as their agent, and in his petition styled Brady their agent, and that he was bound by these admissions, and could not in a subsequent suit treat him in a different or personal capacity. We have examined the proceeding, which is in the record, and it does not impart any such meaning or consequence. Brady was undoubtedly the agent and factor of Baily & Co., who were large lumber dealers. Their business which previously had been conducted with the plaintiff, had been turned over to Brady, who thereafter was to receive their consignments, and dispose of the same. When we construe the allegations of the petition and proceedings in the case referred to, with reference to the relations thus established between the parties, they fail to possess any significance whatever touching the special matter involved in the present suit.

On the merits, it is not denied that there was a complete failure on the part of the defendants, Baily & Co., and Brady, to comply with the contract or to fulfill any of its stipulations.

Baily’& Co. obligated themselves to deliver certain lumber designated and described in the instrument, and Brady, though binding himself in the same terms, became, as we have shown, their security. There was a complete failure to make the delivery. What liability did Brady incur by this failure ?

The plaintiff claims $2,400, the alleged value of the lumber, and $1,000 damages, actual, exemplary and vindictive, and for attorney’s fees.”

The court a qua gave judgment for the full amount of the claim. The value of 60,000 feet of lumber was claimed, estimated at $40 per thousand.

There is considerable conflict in the testimony touching the value of the lumber at the time it should have been delivered. A number of witnesses estimate it at less than $40 per thousand, and some as low as from $25 to $30. We are inclined to think that $35 per thousand would be a just and fair allowance for it, after a careful examination of the testimony on this point. This would make the total value $2,100.

To the extent, too, of the damages allowed, we think there was error in the judgment.

The failure to deliver the lumber stipulated in the contract,’was not caused by any fraud or bad faith on the part of Brady, and his liability must be tested by Art. 1934, R. C. C., a fair construction of which would exempt him from the damages claimed, and make him liable only for the actual value of the lumber with interest on the same from the date of his default.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended by reducing the same therein allowed to twenty-one hundred dollars with legal interest from the 25th July, 1871, and as thus amended, it be affirmed, the defendant, T. R. Brady, to pay the costs of the lower court and the plaintiff the costs of this appeal.

Rehearing refused.


text:
    No. 8174.
    Harvey Shannon vs. Mrs. Hannah Lane and Husband.
    "When property, at-the sale of the tax collector, was bid in for the State, and afterwards was redeemed by a mortgage creditor, by payment of the taxes for the amount of which it was adjudicated to the State, the owner, from whom the mortgage creditor claims back the redemption money, is not allowed to contest the original legality of the taxes.
    The Ordinance of the Convention of 1879, for the relief of delinquent tar payers, affords no assistance, in that respect, to the party whose property has been redeemed as aforesaid.
    APPEAL from the Eighth Judicial District Court, parish of Madison. D éloney, J.
    Farrar, Spencer & Farrar for Plaintiff and Appellee:
    First — The right of redemption of property sold for taxes is expressly granted to the third persons having an interest.
    Second — A third party, paying delinquent taxes due on property on which he held amortgage, has a right to demand and recover the full amount paid by him, with twelve per cent interest from date of payment. Act 96 of 1877.
    Third — The-owner of such property cannot plead in bar of repayment illegal assessments made by the parish authorities. If any illegal assessment has been made, recourse must, be had against the parish,
    Fourth — The Tax Collector is not clothed with judicial authority, and must collect under and in accordance with the assessment rolls placed-in his hands.

      A. L. Slack and J. B. Stone for Defendants and Appellants:
    First — Prior to 1877, a Polioe Jury could not levy a tax for “ any purpose ” exceeding 100 per ' centum of the State tax proper, which was at that time four mills. Acts of 1872, p. 56; Acts of 1877, p. 158, Sec. 103. 29 An. 1.
    Second — A Parish tax before 1877, exceediug four mills was extortionate — levied in contravention of a prohibitory law — and consequently, the excess, over this limit was null and void.
    Third — Police Juries are political corporations — the mere creatures of the Legislature — and' possess no power, but* those delegated by law. 3 An. 309; 9 An. 44; Blackwell’s Tax Titles, p. 448; Cooley’s Limitations, 517, 518, 521; ft. C. O. 433.
    Fourth — Where A, under the provisions of the late Constitutional Ordinance for the relief of delinquent taxpayers, pays B’s taxes, A can recover of B no ¡more than what the Tax Collector himself oould have legally demanded. In such a case the act of A cannot estop B from setting up the illegality of the taxes.
    Fifth — One to be estopped must be a party, or privy, to the transaction. The voluntary act of A cannot estop B. One can be estopped by his own act of omission or commission, where others are injured or defrauded thereby. In this case if plaintiff is injured it is the result of his own act, not the defendant’s.
    Sixth — The doctrine of estoppel does not apply where there is no frgud. 2 Story Equ. 10 Ed., Sec. 1543. Estoppels are not favored in law. 30 An. 1309. 22 An. 368. 1. G-r. Evi., Sec. 204 and note. Big. on Es., p, 293, Eos, 3, 4 and 5. Estoppel is invoked as the means of promoting fair dealing and rebuking fraud. Is it promoting fair dealing and rebuking fraud to prevent a defendant from setting up a legal defense ?
    Seventh — One cannot be subrogated to a tax title that was annulled by payment of the taxes.

      Eighth — All a delinquent or “interested party,” under the Constitutional Ordinance was required to pay were the “ taxes due.” Illegal parish exactions, levied in violation of law, are not “ taxes due,” for the reason they cannot be legally enforced, and hence, if not collectible, not due. C. P. 1.
    Hinth — "Where one can enjoin a seizure for illegal taxes, he has equally as great a right, when •ued for the same taxes, to set up as a defense to the suit what he could by injunction.
    Tenth — One who pays the taxes of another is not subrogated to the rights or privileges of the State; subrogation cannot take place except in the cases provided by law. Taxes are not debts. 26 An. 697.
   The opinion of the Court was delivered by

Fenner, J.

Defendant was delinquent in the payment of State and parish taxes upon a plantation owned by her, for the years 1872,1873-4-5-6 and 7, and was duly entered upon the delinquent lists for said years, which were regularly recorded as required by law. In 1878 the tax collector, after advertisement and compliance with all other requirements of law, exposed the same at public sale for payment of said delinquent taxes, and the highest bid being insufficient to pay the taxes with costs, charges, interest and expenses, the property was bid in for the State and adjudicated to her.

In February, 1880, plaintiff, a creditor of defendant, with mortgage on the plantation referred to, came forward and redeemed the property by paying the taxes for which the.property had been sold, and the subsequent taxes thereon.

These amounted to $1850 58, and he brings this suit to recover the same from the defendant as the owner of the property.

Defendant admits her liability for the amount of State taxes paid for her account by plaintiff, but disputes the amount of the parish taxes on the grounds that the same were illegal, excessive and more than the parish itself could have collected from her, and that plaintiff, as her negotiorum gestor, had no right to pay more than she owed and can collect from her no more than she did so owe.

She relies upon the decision of this Court in the case of Lafitte vs. Morgans, 29 An. 1, where it was held that, under the Act of 1872, the police jury of the parish had no right to levy a tax in excess of four mills on the dollar and the school tax, without first obtaining the sanction of a majority of the voters at an election held for that purpose. She shows that the parish taxes, levied for the years prior to 1877, and paid by plaintiff, largely exceeded that rate, and claims that, to this extent, the payment by plaintiff did not enure to her benefit and cannot be recovered from her.

We cast no reflection upon the decision in Lafitte vs. Morgans, which we think correct, and if, as in that case, defendant was now enjoining the sale of her property by the tax collector for the enforcement of these illegal parish taxes, we should grant the relief there awarded.

We think, however, the defendant has let go by the utile tempus, within which she might have successfully urged defences' against these excessive taxes, and she cannot now set them up against this plaintiff.

Proceedings for the assessment and collection of taxes are assimilated, in many respects, to judicial proceedings, for which they are regarded as substitutes. The assessment, the record of the delinquent lists and the tax collector’s sale are the respective equivalents of judgment, seizure and execution sale.

The law is careful to surround all these proceedings with requirements as to notice, delays, and other formalities, intended as safeguards for the taxpayers, and to afford them ample opportunity to protect themselves against unlawful exactions. With these requirements this Court has enforced the most rigorous compliance as a condition of the validity of such proceedings.

It is not pretended that there has been, in this case, the slightest deficiency of perfect regularity in all the proceedings for the assessment and collection of these taxes, or that, in the whole course thereof, the defendant, though duly notified, made any objection thereto.

These regular proceedings culminated in a sale of the property at public auction, open to all bidders. Had the property been adjudicated, at a price, to any third person, the law is clear that the owner could only have redeemed it by paying to the party purchasing the amount of the purchase price with interest.

Act 96 of 1877, Sec. 57.

Section 58 of the same act, however, provided that if the highest price bid should be “ an amount insufficient to pay the licenses and taxes so proceeded for in such cases,” then the collector shall “ bid the same in for the State, and such property so Bid in for¡the State may be redeemed, as in other cases of tax sales, with the right of redemption.”

This puts the State in the position of a purchaser at the price of the taxes “ proceeded for,” and subjects the owner’s right of redemption to the same rules laid down in the preceding section as to any other purchaser, to wit, repayment of the purchase price. This is made still more clear by section 62 of the act, which authorizes any person interested to redeem property so bid in for the State, by paying the taxes for which the same were returned, etc.”

These and all other provisions of the act subject the right of redemption to the condition of paying the taxes “ proceeded for, ” or for which the property “ was returned,” that being, in effect, the purchase-price at which the property was bid in for the State, and they exclude the idea of any right to contest the original legality .of those taxes.

It is perfectly clear that, under this statute, neither the owner nor any other person interested could have redeemed this property without paying the amount of the taxes " proceeded for ” and for which the property was' returned,” without reference to their original legality.

It is contended, however, that the Ordinance of the Convention of 1879 for the relief of the delinquent tax payers, was in force at the date when plaintiff herein redeemed this property, and that the rights of the parties must be governed thereby.

We think this proposition is correct, and cannot assent to plaintiff’s assertion that under article 259 of the Constitution, the act of 1877 remained in force until April 1880, and that this ordinance only then became operative.

The ordinance referred to is not a part of the Constitution and was not submitted to the people for ratification. It was an independent legislative enactment of the Convention and took effect as soon as promulgated, and repealed all laws inconsistent with it.

We cannot, however, give it the effect, sought to be deduced from it by the defendant, of enabling her or any interested person, desiring to redeem lands bid in by the State, to go behind the tax sale and contest the validity of the taxes for which the land was sold. Its manifest purpose, and the extent of the relief intended to be afforded to delinquent tax payers, were simply to remit all interest, penalties, costs and charges, and to enable them to redeem their property by paying the principal of the taxes and licenses for which it had been sold, and of the other licenses and taxes since due.

It is true the language of the act gives the right of redemption on payment of “ the principal of all taxes and licenses that may be due thereon at the date of redemption ; ” but we cannot interpret the word “ due ” as having the effect to reopen questions as to the original legality of taxes, closed by the regular proceedings of assessment and collection and final sale thereunder, having as to such questions, in our opinion, the effect of the thing adjudged.

The plaintiff here had the right to redeem. The tax collector was not a judicial officer, having authority to adjudicate upon questions affecting the legality of taxes. He was a mere ministerial officer only empowered to collect the taxes as they appeared on the assessment rolls. Plaintiff could not have redeemed, and the tax collector had no authority to permit him to redeem, otherwise than by paying the taxes assessed. Defendant would have been in ho better position.

We think, however, defendant is entitled to the benefit of all the advantages conferred upon her by the ordinance so far as her pleadings claim them.

The judgment properly allows her credit for the difference between the face, and the actual, value of the parish warrants paid in by plaintiff, and properly disallowed any but legal interest on plaintiff’s claim.

It should also have allowed the discount for payment anterior to January 1st, 1881, as provided by the ordinance, amounting to $75 33, and must be amended accordingly.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be reduced in amount from $1747 40 to $1672 07, and that, as thus amended, it be affirmed, appellee paying costs of this appeal.

Rehearing refused.


author: Bermudez, C. J. Todd, J.

text:
    No. 8086.
    George Osgood vs. J. W. Black et al.
    On Motion to Dismiss.
    An interlocutory order, which dissolves an injunction, on a bond for the amount oí damages claimed by the Plaintiff in injunction, cannot work an irreparable injury and is, therefore, not appealable.
    APPEAL from the Civil District Court, parish of Orleans. Lazarus, J.

      Brice & Far dee and & Howard Me Caleb for Defendants and Appellees :
    First — In an injunction suit where it is not alleged the damage will work irreparable injury, the injunction may be dissolved on bond. C. P. 307.
    Second — Where the damage complained of is estimated in dolía i s and cents in tho petition for injunction, and the same is dissolved on bond, tho plaintiff has no right of appeal.
    Third — In case an appeal is allowed to the Supreme Court, in such case the appeal may be dismissed on motion when it is apparent on the face iff the petition that the damages complained of are fixed in a determinate sum in the petition of plaintiff.

      J. B. Beckwith for Plaintiff and Appellant:
    ^ixfjt — The petition discloses a cause oí action and aright to the writ of injunction as prayed for. Williams vs. Payson, 14 An. 7. v
    Second — Where the object and effect of an injunction is to prevent the practice of future . frauds and wrongs against the rights of plaintiffs threatened to he committed in the future, the court is without power to dissolve the writ on bond under Art. 307 C. P.
    Third — Art. 307 C. P. applies only to cases where some right to some specific article or class of articles of movable property capable of manual delivery as immovable property, or some right in immovable property is in dispute. The bond required by that section only relates to that description of property or right. Art. 307 C. P.
    Fourth — This Court will entertain and hear an appeal from an order dissolving an injunction on bond, under the provisions of Art. 307, C. P., to determine whether, under the facts as disclosed in the petition, the bond ordered to be given to dissolve tho injunction is inadequate in amount to protect the plaintiff and to prevent Art. 307 C. P. being used in such manner as to defeat the spirit of the article and the plaintiff’s remedy.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The defendants and appellees claim that the appeal herein taken should be dismissed for the following reasons :

First — This Court has no jurisdiction over the case;

Second — The appeal was not made returnable within ten days as it should have been, the suit involving a right of office;

Third — The order appealed from does not work an irreparable injury.

The plaintiff asserts the valuable privilege of exercising, under a commission from the Executive, the functions of a branch pilot of the port of New Orleans; that the defendants exercise similar functions without authority and in violation of penal laws; that they have already inflicted severe damages upon him, which he estimates at $1500; and that they will continue to injure him unless they be enjoined. .He accordingly prays for a money judgment, for a preliminary, and in due course for a perpetual, injunction. On a bond of $500 furnished by the plaintiff, a preliminary injunction was by order of the court duly issued and served. Subsequently, on motion of the defendants, the injunction was ordered to be dissolved, on taeir furnishing a bond for $1500. Before the bond was given, the plaintiff sought and obtained a suspensive appeal from the dissolving order.

The caséis appealable. We therefore have jurisdiction over it.

The main issue which the motion to dismiss presents simply is: Whether an appeal lies from the dissolving order. To solve the question we must test the validity of the order.

From whatever standpoint the matter be viewed, it is manifest that the motion must prevail.

In the first place the plaintiff has no standing in court, solitary and alone as he is, to inquire into the rights and pretensions of the defendants, whom he formally charges with usurpation of, and intrusion into, a public office.

If such be the fact, it is a matter in which the community, the State, is concerned, and which can be brought to the knowledge and attention of courts by the State only; either in a civil action, on her own motion, or at the instance of a party interested, or in a criminal proceeding on the complaint of some citizen.

R. S. 2593, 2595, 2596, 2597; Act of 1877, No. 63, p. 103; State ex rel. Ford vs. Miltenberger.

The State is no party plaintiff in any shape in this suit. What, then, is the authority of the plaintiff to prefer the charges which he has propounded and to demand the relief which he seeks ?

Commissioned officers of the class to which plaintiff claims to belong, have no warrant on their own suggestion, themselves to draw in question the rights or pretensions oí parties represented as claiming to be like officers and charged with usurpation of and intrusion into office. The law provides for the mode in which such matters can be investigated and affords adequate remedy.

The unwarranted use of the exclusive prerogatvies of the State by individuals for their personal benefit, cannot be tolerated in any form. 8 An. 388; 5 Kans. 518. In the next place, the plaintiff has not averred a state of facts from which it can be inferred that he will sustain irreparable injury in case the defendants be not enjoined from continuing, and do persist, in their alleged wrongful acts. Had he done so, however, the averment would not have been binding on the court. O. B. 53, 394, 546. It would not have been entitled to any consideration, for the obvious reason that the plaintiff has himself placed an evaluation of $1500 on the damages, or inj ury, said to have been occasioned by the defendants and sustained by him at the filing of the petition. If the acts apprehended be committed, they would be similar to those already assessed by the plaintiff, and likewise would be susceptible of appreciation and atonement, in dollars and cents. The injury then would be reparable.

As the plaintiff has no standing in court for an injunction, none should have issued.

The case is one in which the defendants might, on the face of the petition, have successfully asked for an unconditional dissolution of the writ. The court, therefore, could have set the remedy aside without requiring a bond as a condition precedent. It did not, therefore, err in dissolving it as was done. If it did, it was an error of which the defendants, but not the plaintiff, could have complained. 2 An. 321; 4 An. 147; 14 An. 57; 28 An. 649; O. B. 53, f. 394, 546, and case No. 8111 in this Court.

As the dissolving order was valid, no appeal could be taken from it

It is, therefore, ordered that the motion be sustained, and that the appeal be dismissed with costs.

On the Application sob a Rehearing.

Todd, J.

By our former decree the appeal, which was taken from an order authorizing the dissolution of the injunction sued out by the plaintiff, on bond, was dismissed.

The motion for dismissal was on the ground that the interlocutory order appealed from did not work an irreparable injury, and that, therefore, no appeal would lie from 'it. We held that the dissolving the injunction on bond would not work an irreparable injury, and dismissed the appeal. We adhere to our former decree, but, inasmuch as the appellant’s counsel contends that in our reasons for the decree, we prematurely decided questions pertaining to the merits of the ease and to his right of action, we take occasion to sa# that in reviewing our previous opinion, we want it understood that we rest our dismissal of the appeal solely on the ground that the order appealed from could not work an irreparable injury, and if anything in that opinion goes beyond this and would seem to deny or question the appellant’s right of action or standing in court, or to pass upon anything pertaining to the merits of the case, the same may be considered as obiter, and the case goes back to the lower court with every issue presented by the petition or pleadings still open for determination therein.

Rehearing refused.


author: Levy, J.

text:
    No. 6764.
    Josephine M. King vs. Wm. F. Harper. Morris Heyman, Intervenor.
    An Intervenor in a suit by provisional seizure for rent of a stable, averring that be is the owner of tbe borses seized and that be pays rent to tbe lessee of tbe stable to keep said borses there, discloses a cause of action in bis Petition of intervention.
    ^PPEAL from the Sixth District Court, parish of Orleans. Rightor,

      Geo. L. Bright for Plaintiff and Appellee:
    Horses, feed, harness and carts, put in a stable for sale, by a third’ person, are subject to the lessor’s ben.

      Ghas. Louque for the Intervenor and Appellant.
   The opinion of the Court was delivered by

Levy, J.

The plaintiff, Miss Josephine M. King, rented to the defendant, Wm. E. Harper, a certain stable, in the City of New Orleans, for the sum of one hundred dollars per month, from the 1st of December, 1876, until the 31st of October, 1877, payable on the first day of each month during said lease, in advance, for which said Harper furnished his eleven promissory notes, six of which, she alleges, are unpaid and are held by her. It was stipulated in the lease that the non-payment of a month’s rent or instalment at maturity will make the rent for the unexpired term of the lease due and payable. She alleged that she had good reason to .believe that the said lessee would remove the furniture or property on which she had a lien or privilege, out of the leased premises, and she would be thereby deprived of her lien. She prayed for and obtained a writ of provisional seizure, and the provisional seizure of the furniture, effects and property in said leased premises, and prayed for judgment against said Harper for the sum of six hundred dollars, with eight per cent per annum interest thereon from 1st- of May, 1877, until paid and costs.

Under the writ of provisional seizure, the sheriff seized the' effects and property on said premises, among which were twelve horses (one of which died on the day subsequent to the seizure), and other property.

Morris Heyman filed an intervention and opposition, in which he claimed to be owner of the horses seized by the sheriff, and by virtue of an order of court, the seized horses were delivered to him on his execution of bond for $650.

In this petition, Morris Heyman alleged that he was the.owner of said horses, valued at about $2500, a quantity of feed, harness and one cart, valued at about $300, in the stable leased as aforesaid; that he placed said stock and property in said stable for the purpose and convenience of sale, paying to the proprietor of said stable rent, at the rate of fifteen cents per head per day for the accommodation of his stock. He alleged that he was indebted to the defendant up to that day in the sum of eighty cents, and tendered and deposited said sum for the benefit of whom it might concern. He prayed for judgment for the property claimed, or in default thereof, for its alternative value as set forth, and for dissolution of the provisional seizure.-

The plaintiff filed, an exception as to the sufficiency of the forthcoming bond on the ground of adequacy of amount and solvency of surety. This exception was overruled, and from the judgment thereon plaintiff has appealed.

To the petition of intervention and third opposition of Morris Hey-man, plaintiff filed the exception of no cause of action, and the court dismissed the petition; from this judgment Heyman has appealed. The sufficiency of the amount and of the surety of the bond seems to us to be established by the evidence in the record, and there was no error in the judgment of the lower court in overruling this exception.

The judge a quo has given no written reasons for his judgment sustaining the exception of no cause of action, and the exception itself is general that there exists no cause of action.

In his brief, counsel for the plaintiff relies upon Arts. 2705, 2707, 2708 O. C. He contends, that the movables which were seized were placed there by the intervenor, with his consent, for sale; that they were not there transiently or accidentally, and that being placed on the leased premises for sale, are subject to the lessor’s lien. He insists that Hey-man was not an under-tenant.

The allegations of the petition of intervention must be taken as to the trial of the exception as true. In the petition, intervenor avers that “ he placed the said stock and property in said stable for the purpose and convenience of sale, paying to the proprietor of said stable rent at the rate of fifteen cents per head per day for the accommodation of his stock.”

“ Rent is a certain profit in money, provisions, chattels or labor, issuing out of lands and tenements in retribution for the use.” Bouvier, Law Dictionary, 446. Here the intervenor agreed to pay money for the use of certain lands and tenements. He used the premises, in consideration of the rent to be paid, as a convenience for the keeping and'sale of his stock. He was to all intents and purposes, according to the prayer of his petition, an under-tenant of the lessee Harper; his property had .been seized for the satisfaction of the whole amount of the rent due by his lessor, and, if an under-tenant, he was liable only so far as he was indebted to his lessor Harper. Hence his petition disclosed a cause of action on its face. The allegations of his petition, however, Were open to attack, and if not sustained by sufficient proof, his action could be dismissed.

Article 2707 O. O. is as follows: “ This right of pledge includes not only the effects of the principal lessee or tenant, but those of the under-tenant, so far as the latter is indebted to the principal lessee at the time when the proprietor chooses to exercise his right. A payment made in anticipation by the under-tenant to his principal does not release him from the owner’s claim.”

We think the exception should not have been sustained.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court, overruling the exception to the sufficiency of the bond and solvency of the surety, be affirmed, and the judgment sustaining the exception of no cause of action as to the petition of intervention and third opposition of Morris Heyman, be annulled, avoided and reversed, and that this cause be remanded to the Civil District Court of the parish of Orleans, which has superseded the Sixth District Court of said parish, to be proceeded with according to law. The plaintiff, appellee herein, to pay the costs of this appeal.