author: Sudeii,, J.

text:
    McKee v. Ellis.
    An appeal will lie though the judgment he forless than throe hundred dollars, where tlio amount claimed exceeds that sum. Const, art. 63.
    APPEAL from the Parish Court of New Orleans, Maurian, J. The defendant appealed from a judgment against him for $300, in an action for an assault and battery, in which the plaintiff claimed $1000 as damages.

      Robert, for the plaintiff.
    The appeal should be dismissed. In actions for damages the right to appeal is determined by the amount of the judgment bejow — not by the sum claimed in the petition. See Howard’s Rep. Cooke v, Woodson, 5 Cranch 13. Wise et al. v. Columbian Turnpike Co., 7 Cranch 276. Wilson v. Daniel, 3 Dallas, 401. Gordon v. Ogden, 3 Peters 33. Smith v. Honey, 3 Ibid, 469.

      R. Hunt, for the appellant.
    The 63d article of the constitution of Louisiana says: “The Supreme Court, except in cases hereinafter provided, shall have appellate jurisdiction only, which jurisdiction shall extend to all cases where the matter in dispute shall exceed $300.’ To ascertain the matter in dispute, we must recur to the foundation of the original controversy: to.the matter in dispute when the action was instituted : to the thing demanded by the plaintiff and refused by the defendant, and i'or which suit was brought. The descriptive words of the constitution point emphatically to this criterion; and in common understanding, the thing demanded, and not the thing recovered — the sum claimed (as in the present instance $1,000, damages,) and not that for which a judgment is rendered, constitutes'the matter in dispute between the parties.
    This construction not only comports with every word in the constitution, but avoids an inconvenience, which would otherwise affect the impartial administration of justice. For if the judgment was considered as the rule to ascertain the value of the matter in dispute, then whenever a judgment was rendered for less than $.300, the defendant could have no relief, though the judgment should be most erroneous and injurious, while the plaintiff would have a right toan appeal and a revision of the cause — his demand (which is alone to govern him) being for more than $300. It is not to be presumed that the framers of our constitution intended to give any party such an advantage over his antagonist. 3 Dallas’ Rep. 404.
    But we are not without authority for the true meaning of this provision in our constitution.
    “The 4th article, sec. 2d, of the former constitution of this State, provided as follows: “The Supreme Court shall have appellate jurisdiction only, which jurisdiction shall extend to all civil cases when the matter in dispute shall exceed the sum of three hundred dollars.”
    From the journals of the convention of Louisiana, held in 1844 — 1845, wo learn, that the committee of the convention, to whom was referred phe 4th ar* tide of the constitution of 1812, concerning the judiciary department of the State, reported the following, among other provisions: “The Supreme Court shall have appellate jurisdiction only, except hereinafter provided, which jurisdiction shall extend to all cases, when the matter in dispute shall exceed $500.” When this provision came up for consideration before the convention, a motion was made by a delegate from East Feliciana (Mr. Ratliff,) to strike out $500, and to insert $300, for the avowed purpose of keeping the appellate jurisdiction .of the court unchanged, so far as the value of the matter in dispute was involved.
    The convention decided by a large majority, in the the proportion of 3 to 2, that the jurisdiction of this court, so far as it depends on the value of the matter in dispute, shall remain co-extensive with the jurisdiction of the Supreme Court under the constitution of 1812. The court cannot fail to observe that the very language of the 2d see. 4th art. of the constitution of 1812, is copied into and embodied in the 63d article of the constitution of 18.45. In adopting that language, the .convention adopted it in the sense in which it had been understood, construed and acted on by. the legislature, by the courts and by the people of the State. Indeed .the convention were urged to adopt it, because it was well understood. A leading member of that body, to whom I have already alluded, (Mr. Eustis) now the Chief Justice of this court, while expounding the views of the Judiciary committee on the subject of the appellate jurisdiction of the court, said: “The committee propose the adoption of the words of the constitution of 181-2. They are of opinion that no change ought to be made in them. They have been -long sine® settled by legislative' and judicial Interpretation.”
    Let us see then h,ow the provision of the constitution has been understood and expounded — how the words of the constitution have been settled by legist |q,tiypgad judicial interpretation. The legislative interpretation admits of up doubt. The Code of Practice declares, as follows, article 874: “The Supreme Court has only appellate jurisdiction, which it exercises in all civil cases where the object in dispute exceeds the sum of §300.” Art. 875: “The Supreme Court’has jurisdiction, although the judgment appealed from be for less than §300, if the demand was for more than that sum.”
    Such is the legislative interpretation, confirmed by a long series of judicial interpretations. In Hart v. Lodwick, 8 La. 166, it was held, that inasmuch as plaintifPs demand exceeded §300, he was entitled to an appeal against all the appellees who had judgment in their favor, even against those whose demands were under §300. So, in Buckner el al. v. Baker et al., 11 La. 462, it was held that plaintiffs, whose demand exceeded §300, were entitled to an appeal even against intervenors whose judgments amounted to §295 only. It was well settled, then, by these as well as by other decisions, that a plaintiff who claimed more than §300, had a right to appeal from a judgment for a sum less than §300. Of course, this rule was not construed to include a case in which a plaintiff made a fictitious demand for the mere purpose of obtaining an appeal; as if, in a suit on a promissory note for §1000. where the piaintiff could only recover that amount with interest, he claimed $1,000, damages. In every such case, the court promptly dismissed the appeal as an attempted fraud on its jurisdiction. But where the value of the thing claimed exceeded $300[; where a bond fide demand was made for a sum exceeding that amount, or where, as in present action, the law prescribed no limitation as to the amount to be recovered, and the plaintiff, who had aright to estimate his damages at any sum, demanded more than $300, the plaintiff had a right to appeal from a judgment for less than $300. It was equally well settled by the decisions of the late Supreme Court, that the defendant was entitled to an equal right of appeal from a judgment for less than,$300, when the plaintiff in his original demand claimed more than §300. In Philips v. Stanley, 1 La. 246, plaintiff sued for SI,000, damages. The verdict fixed them at one dollar. Defendant appealed. The court held that he was entitled to an appeal. “It is the sum claimed,” said the court, “and not that for which judgment is rendered, which confers jui'isdiction on the Supreme Court.” So, in Lewis v. Clark, 2 La. 437, plaintiff sued for §80.0, and damages. The court assessed his damages at $192 76. Defendant appealed. The court held that he was entitled to an appeal. They said: “It has been rejieatedjy decided, that it is the sum claimed, and not that recovered, which confers jurisdiction on this court.” S.o, in Gerber v. Marzoni, 3 Rob. 371, defendant appealed from a judgment'for less than $300. The court refused to dismiss the appeal. They said; “The jurisdiction of the Supreme Courtis to be tested by the v.alue of what is claimed in the petition. Whatever may be the amount of the judgment given, either party has a right of appeal.” It would be easy to cite other -decisions to the same effect. But it is sufficient to observe that the entire series of decisions of the Supreme Court, on the right of plaintiff as well as of defendant to appeal from a judgment for less than $300, where the demand was for more than that sum, is uniform and unbroken, from the adoption of the constitution of 1812 up to the year 1846, without a solitary conflicting decision, without even the dissenting opinion of a single judge.
    Surely, then, in adopting the provisions of the constitution of 1812 — in refusing to make any change in the words of the provision, because they had long since been settled by judicial and legislative interpretation — the convention ex-jiressed as strongly as they could, by words aDd by action, their determination to adhere to the construction put upon the provision for a period of thirty-three years, and universally acquiesced in by the people of the State; a construction .sanctified by time, approved through a series of years, and reaffirmed and republished by the highest judicial tribunal of Louisiana, at the very time the provision was adopted by the convention. Si de interpretatione legis qua^ratur, in primis inspiciendum est quo jure ciyitas retro in ejusmodi casibus usa fulsset. ff. 1, 3, 57. If the construction of the words of the constitution, as a question of original interpretation, res integra, admitted of doubt, the deliberate action of the legislature, and the solemn and repeated decisions of the Supreme Court have long since settled the construction too firmly to be shaken, without well founded alarm to the people. “ Miserable” says a great judge, “ miserable indeed must be the condition of that community, where the law is unsettled, &nd decisions upon the very point are disregarded when they again come di» rectly or indirectly into discussion. In such a state of things, good men have nothing to hope, and bad men nothing to fear.”
    In vain was it attempted, in the convention of 1845, to restrict the jurisdic~ tion of this court within narrower limits, and to shut out a large .class of suitors •on account of the smallness of the matter in dispute.
    To give a novel construction now to the words of the constitution, and thereby to exclude from this court persons, who, under the well settled and uniform construction of the same words in the constitution of 1812, were entitled to an appeal to the Supreme Court, would frustrate the intention of the convention. It would be a fraud upon the constitution. It would be to alter, and not to expound the constitution.
    The reasoning by which the appellee seeks to oust this court of jurisdiction over the present case, is not less startling than the object sought after.
    By the judiciary act of 1789, an appeal is allowed from the Circuit Courts to the Supreme Court of the United States in certain cases, where the matter in dispute exceeds $2,000. The Supreme Court of the United States have determined that their jurisdiction depends on the sum or value of the matter in .dispute in that court, and not that which was in dispute in the Circuit Court; and that therefore a plaintiff, who sues for more than $2,000, may appeal from a judgment for less than $2,000, but that the defendant would not be entitled to an appeal from such a judgment. As the words of this statute are similar to the words of the constitution of Louisiana, the counsel for the appellee contends that we should reject the construction put upon the words of our own constitution by our own courts, and adopt an interpretation similar to that put upon the statute of the United States, by the courts of the United States; and he refers us to Howard’s Reports. 3 Peters’ Reports 33. 7 Cranch, 276. 5 Cranch 13. and 3 Dallas, 401.
    The case from Howards Report's, is a mere repetition of the point decided in 3d Peters’Rep. 34; and the case in 3d Peters, Gordon and others v. Ogden, is based upon the authority of Wise and Lynn v. The Columbian Turnpike Company, 7 Cranch 276, decided in 1812, and upon the settled practice of the court, which had conformed ever since to that decision. In pronouncing their opinion, the court admitted that the case from 3 Dallas, 401, was directly in point; and that it turned on the principle that, the jurisdiction of the court depended on the sum which was in dispute before the judgment was rendered in the Circuit Court. They added, that although that case was decided by a divided court, and although they thought the jurisdiction of the court depended, by a true construction of the statute on the value of the matter in dispute in the Supreme Court, they “should be much inclined to adhere to the decision in Wilson v. Daniel, (3 Dallas 401,) had not a contrary practice since prevailed.” The court then showed that the case from 5 Cranch, 13, was not in point; and relied upon the decision in 7 Cranch 276, overruling the decision in Dallas, and upon the practice of the courts from that time up to 1830. It is clear then from the language and reasoning of the Supreme Court of the United States, that if the decision in Wilson v. Daniel had been supported by subsequent decisions, and conformed to in practice, the court would have adhered to it. Thus, the true principle to be extracted from the cases cited by the appellee proves fatal to his object.
    But had there been no such principle in these cases, the notion that we should abandon the construction put by the legislature and courts of Louisiana upon a clause in our own constitution, and adopt the construction given by the courts of the Union to a similar clause in a statute of the United States, when there is no collision between the clauses, is notto be tolerated. It is a principle universally recognised that the judicial department of every government, where such department exists, is the appropriate organ for construing the statutes of that government. The Supreme Court of the United Strtes have invariably held that, in cases depending on the statutes or constitution of a State, the settled construction of those statutes or of the constitution by the state courts, must be regarded. The exposition of the law is a part of the law; a fixed and received construction by a State, in its own courts, of its constitution and statutes, makes a part thereof; and the Supreme Court of the United States is bound to conform to such a construction. It would be a perversion of principle, if the judicial exposition of the laws of a State by the state tribunals, should be disregarded. If this be tho rule for the construction of the constitution of the State, when it comes immediately and directly for exposition before' the Supreme Court of the United States: if that Supreme Court be bound, as it has determined it is bound, where the highest judicial tribunal of a State gives a different construction to a statute, from the exposition formerly adopted by the Supreme Court of the United States, to conform to the construction of the state tribunal, it is not easy to understand, how the fixed, received construction, given by Louisiana herself, to the words of her own constitution, in her own courts, can be disregarded, for the purpose of conforming to another and a contradictory exposition of similar words in a statute of the United States, by the Supreme Court of the United States.
   The judgment of the court was pronounced by

Sudeii,, J.

This is an action for an assault and battery. The damages are’ laid in the petition at one thousand dollars. There was judgment against Ellis for three hundred dollars, and he has appealed. The appellee asks that the appeal be dismissed for want of jurisdiction in this court.

He rests his motion mainly on decisions of the Supreme Court of the United' States. The judiciary act of 1789 gives a writ of error to that court from Circuit coui'ts, in certain cases, where the matter in dispute exceeds the value of two thousand dollars, exclusive of costs. Under this statute, that court has repeatedly held, and it is now the settled interpretation in that tribunal, that, although a greater amount than two thousand dollars be claimed, yet, if there be judgment against the defendant for less than two thousand, the defendant is not entitled to a revision by the Supreme Court of the United States. The language of our constitution, except the expression “ exclusive of costs,” is substantially the same. Art. 63 declares that, “ The Supreme Court, except in cases hereinafter provided, shall have appellate jurisdiction only, which jurisdiction shall extend to all cases when the matter in dispute exceeds three hundred dollars.”- The appellee asks that we should apply the interpretation adopted in like cases by the Supreme Court of the United States, and consider the matter in dispute as to be tested by the amount of the judgment in the lower court; while the appellant, on the contrary, contends that the amount in dispute must be ascertained by the amount claimed in the petition.

Whatever may be the relative weight of argument on the abstract question of interpretation of these expressions “matter in dispute,” found in the act of 1789 and in the constitution of Louisiana, there is another consideration which forbids us to to treat the question in the abstract. The former constitution of this State, which gave place in 1845 to that under which this court was established, contains in the judiciary clause the same expressions, “matter in dispute,” as article 63, already cited. During a period of thirty years, it received from the Supreme Court the interpretation which the appellant contends should be given to the existing- constitution. It is proper also to remark that, the legislative harmonized with the judicial interpretation. See Code of Pract. art. 875. In copying those words from the constitution of 1812, we must presume that the convention were aware of the construction they had uniformly received, and intended that, in the new constitution, they should have the same meaning. Motion to dismiss refused.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Duclaud v. Rousseau.
    {§. intervened in the niarriage' contract between the defendant and her husband, andínádéál donation to the former of the right of habitation in á' house, with certain rights of use upon a lot of ground, subject to the condition that, in case of a sale of the property by the donor, or of her death, the rights of habitation and use should cease. It was stipulated that, in either of those events, the donee should receive from fíic dónoí o’f her succession, a certain áum as an indemnity. The Contract in which the donation wás made'wa‘s fégisteféd' by the recorder of mortgages. S. subsequently mortgaged the property to plaintiff. Tbeproperty was seized and sold by the latter, on a confession of judgment by S., and purchased by plaintiff at the sheriff’s sale. The certificate of the recorder of mortgages produced at the time of executing the mortgage, showed the property to be free from mortgage, and made no mention of the donation; but the inscription of the marriage contract, and the encumbrance created by it, were'notified to the bidders at' the time of the sale, in an action by the purchaser to compel the donee to surrender the premises to him: Held, that the iuscription of the marriage contract antei’ior to the execution of the mortgage, was notice to the plaintiff of its existence ; and that the execution of the mortgage and the confession of judgment by the donor, do not amount to a sale of the property, and cannot affect the donee’s right to the servitude established in her favor,
    A mortgage is a species of alienation, but not a sale. It is an alienation of a right on' the property — not of the property itself, the title to which, as'well as the possession, remains in the owner.
    The execution of a mortgage does-not imply the debtor’s assent to any judicial sale subse-quently made to‘satisfy the debt,
    The nature of the evidence upon which a judgment is obtained — whether by the-confession of the debtor or otherwise, does not affect the general rule that, in sales under execution, the law neither requires nor presúmes' the as’sent of the debtor. Such a sale can never he considered a voluntary one.
    Every condition attached to a donation must be so performed, as it is probable that the parties’ intended it should he performed. O. G. 2032.
    In the interpretation of donations, words must be understood according to their usual signification and popular use ,* and where the intention of the parties is doubtful, the doubt must inure to the benefit of the donee. G. C. l04‘O, 1942.
    A creditor cannot sue to* annul a contract, made by the* debtor, before his debt accrued. C. O’. 1988.
    APPEAL from- the Parish Court of New Orleans, Maurian, J. Éugenie Savary, the widow of one Joseph Savary, became a party to a marriage contract, executed on the 19 December,-1836, between the defendant and Joseph Rousseau, by which she made to her and her children a donation inteY vivos, as follows: “lo. Du droit d’habitation et d’usage, pendant sa vie et jusqu’au décés de la future épouse, et aussi pendant ía vie des enfants qui pourraient naítre du mariage des futurs époux, d’une maison briquetée entre poteaux, d’environ'23 pieds de face, sur 25 pieds de profondeur, que la dite veuve Savary avait fait Construiré sur partie d’un lot de terre situé rue St. Antoine, entre les rues Amour et Bons Enfants,faubourg Marigny, sur íéquelexistait déjú des edifices oú elle résidait. 2o. Du droit de se servir et d’usage en commún avecla ditó veuve Savary^ pendant tout le tems que durera le droit d’habitation ci-dessus donné, de la cour commune ú cette maison et aux édifices oú la dite veuve' Savary réside, ainsi que de la cuisine qui fait partie des dits édifices le tout sui-* vant certaines conditions mentionnées au dit acte, savoir: lo. Dáosle cas de vente par la veuve Savary de la propriété dontfait partie la dite maison, dont le droit d’habitation est donné k la future épouse; et, encoré, en cas de décés de la dite veuve Savary,le droit d’habitation et d’usage cessera d’ezisler,et la future épouse devra rendre les liaux dans le mois de l’événement de l’un ou de l’autre de ces deux cas; mais la dite veuve Savary ou sa succession devra payer k la dite future épouse, pour l’indemniser du dit droit d’liabitation et d’usage, la somme de §1,000, dont la veuve Savary fait donation entre-vifs k la future épouse, ce acceptant dans l’un et dans l’autre des deux cas ci-dessus prévus; laquelle somme sera payée k la future épouse dans- le courant du mois qui suivra l’óvénement qui donnera lieu k la cessation du dit droit d’habitation et d’usage.”
    This contract was recorded by the register of mortgages a few days after its date. The donor subsequently executed a mortgage on 1he same lot of grottnd, and the certificate produced on the occasion from the register states, the property to be free from any mortgage in the name of Mad. Savary. The debt secured by the mortgage, not having been paid at maturity, plaintiff obtained a judgment on the confession of the mortgagor, and caused the lot to be sold under execution, and became the purchaser thereof. Notice of the existence of the marriage contract and of the encumbrance resulting from it, was given at the time of this sale. The present action was instituted to compel the defendant to surrender the possession of the property to the plaintiff, the purchaser, at the judicial sale. The court below was of opinion: “ 1st. That the sale by the sheriff, being made under a writ issued on the mortgage consented to by Mrs. Savary, on the property sold, must be viewed as though it had been made by Mrs. Savary herself: and that consequently the resolutory condition affixed to the marriage contract is fulfilled. 2d. That the plaintiff, as purchaser at the sheriff’s sale, acquired nothing but the rights which Mrs. Savary was possessed of, with the charges corresponding thereto. 3d. That the plaintiff, as the mortgage creditor, and therefore, the assignee of Mrs. Savary, could not avail himself of her implied consent to have the property mortgaged sold, without making himself liable to all the obligations, without the performance of which Mrs. Savary could not sell the property. 4th. That Mrs. Savary, according to the marriage contract, could not have sold the property without paying §1,000 to the defendant. 5th. That the defendant was legally put in default, as to the delivery of the premises, but that no offer to pay her the §1,000 was proved, nor even alleged by the plaintiff. 6th. That although under these circumstances, judgment could not be rendered in favor of the plaintiff; yet, justice required that that this litigation should be put an end to, by a judgment, condemning the defendant to surrender the property and the plaintiff to pay §1,000.” It accordingly ordered the defendant to surrender the property in dispute to the plaintiff upon the latter paying to her §1,000, and costs. From this judgment the plaintiff appealed.

      Desliz, for the appellant,
    contended that the execution of the mortgage, and subsequent sale under a judgment by confession, amounted to a voluntary alienation of the property by the donor, and such as Was contemplated by the condition. Code, law 7, de Rebus Alien. Merlin, Répert. Verbo Hypothéque, sec. 1, § 2. Denisart, Collection, verbo Aliénation. Ferriére, Diet, de Pratique, verbo Aliénation. Pothier, Coutume d’Orleans, vol. 2, p. 435. Sirey, vol. 13, part 2, p. 34.

      Le Gardeur, for the defendant.
    The whole controversy between the parties turns upon a correct interpretation of the condition, the accomplishment of which was to operate as a dissolution of the appellee’s rights under the donation. With a view to arrive at that correct interpretation, certain questions have been propounded by the court.

      I. Did the mortgage given by the widoio Savary affect in any manner the rights of the defendant?

    The principles of law which relate to the accomplishment of conditions are: 1st. That, in general, conditions ought to be accomplished informa speeijica. 2d. That they ought to be accomplished in the manner that was probably intended by the parties. 3d. That nothing can be added to or omitted from a condition, to make it more onerous. 4th and lastly. That a condition cannot be extended from one case to another, on account of analogy between those cases-Civil Code, art. 2(132. Pothier on Obligations, no'. 208. Toullier, vol. 6, no-580. If these principles be correct, it is plain that the mortgage granted by the widow Savary could not affect the rights of the defendant. What was the condition, the accomplishment of which was to operate as a dissolution of those rights ? a sale of the property by Mad. Savary. Now, taking for granted that there exists the greatest possible analogy between a mortgage and a sale, still it cannot be denied that they are different contracts, and governed by different rules, and as a condition cannot be extended from one case to another on account of analogy between them, the inevitable conclusion is that, the condition under consideration was not affected by the mortgage with which Mad. Savary was pleased to encumber the property in favor of Duclaud. But it is contended that by this mortgage she alienated the property, because a mortgage is an alienation. This is true. But an alienation is not a sale. The word alienation is a generical term, which embraces all the different manners in which our rights to property may be disposed of; it is the genus, and each different manner of disposing the species. Thus it is that a donation, a mortgage, a sale, a pledge, are alienations, and yet a donation is not n pledge, a mortgage is not a sale. Now, the parties did not agree that the donation should be dissolved in case the property sliould be alienated by Mad. Savary, but in case it should be sold by her; thus expressly defining the kind of alienation which was to operate as a dissolution of the contract, and thereby excluding all other kinds from having a like effect. Inclusiounius Jit exdusio alterius. Suppose, for a moment that A should give to B a special power to sell certain property; that B should, under that power, mortgage the property; that the mortgage creditor should cause the property to be seized and sold, and it should be adjudicated to C. In an action by A against C for the recovery of the property, would the mortgage granted by B affect the rights of A ? Certainly not. Because although a mortgage is an alienation, the power to sell does not include the power to mortgage, a salo and a mortgage being different kinds of alienation. ¿jachante, Droit Civil Francais, vol. 3, § 412, p. 126, in fine. Civil Code, art. 2966. Here the parties have agreed upon a sale of the property as the dissolving conditioa of the contract, and the mortgaging of the property cannot affect their rights, because a mortgage is not a sale. It is, however, contended that the ikst question propounded by the court, must be solved in the affirmative, because a mortgage implies the debtor’s consent to the judicial sale made upon the creditor’s demand. To this proposition we cannot assent. The power of the creditor to have the property sold is not given to him by the mortgage, but originates in the preexisting obligation, the performance of which is secured by the mortgage, which is but an accessory to it. This is clearly explained by the following quotation from Merlin’s Repertoire de Jurisprudence, Vo. Hypotheque, sec. 11, § 111, art. 1, no. 1, to wit:
    “ Quiconque s’estobligé personnellement, esttenu de remplir son engagement sur tons ses biens mobiliers et immobiliers, préseos et á venir.
    Les biens du débiteursont le gage common de ses créanciers ; etle prix s’en distribue entre eux par contribution, á moins qu’il n’y ait entre les créanciers des causes légitimes de préférence.
    Les causes légitimes de preference, sont les privileges et les hypothéques.
    Ces trois articles présentent la thóorie des hypothéques avec une précisioa et une netteté admirables. Toute obligation personnelle peut se résoudre dófinitivoment en celle de payer une somme déterminée, et le débiteur peutétre contraint h acquitter toutes les sonunes dúes, par la vente forcee de ses biens, ciuelle que soit lour nature, et quelle que soit l’époque á laquelle iis luí adviennent. Le prix de ces biens doit étre distribué entre tous les créanciers indistinctement, á moins qu’il n’y ait entre eux des causes légitimes de préférence. Ce sont ces causes légitimes de préférence qui portent le nom de privileges ot d’hypothéques. Les préférences out lieu dans chacune dos distributions succcssivcs, lors memo que le prix des biens sorait plus que suffisant pour acquitter toutes les dettes; mais elles sont surtout d’une tres grande importance, lorsque le prix dos biens n’égale pas le montant des dettes.
    Cette exposition, tout succincte qu’elle est, nous dócouvre ia nature et les effets généraux de l’hypothéque. L’hypothéque peut étre déíinie 1’aíFectation particuliéro d’un bien appartenantuu débiteur pour la súreté de l’exécution de ses engagemens. Elle établit un droit accessoire á celui qui resulte d'une obligation principóle, en telio sorte qu’il ne peut y avoir d’hypothéque qu’autant qu’il y a une obligation principóle á laquelle l’hypothéque trouve á se rattacher. L’hypothéque ost un droit dans la chose, jus in re, qui afFeote la chose elle-méme, et qui consiste principalement á assurer au créancier qui en est investí,, la préférenee sur d’autres eréanciers, dans la distribution duprixde la chose hypothéquée. Li’hypothéquc ne dcplacc pas méme la possession, du moins le plus souvent; I’une et Vautre continuent de tester dans la main du débiteur dont le bien est gravé d’hypothéque.

    11-est aisé d’npercevoir que l’hypothéque considérée isolément dans les rapports qu’elle établit entre le débiteur et le créancier, n’esl d’aucune utilité actuelle pour ce dernier ; en effet, tant que la chose hypothéquée reste sur la téte du débiteur, le créancier hypothécaire peut bien en provoquer la vente pour étre payé sur le prix; mais un créancier non hypothécaire a, tout de méme, le droit de contraindre son débiteur d l’exécution de ses engagemens, en faisant vendre ses biens, et en s’en faisant délivrer le prix, é concurrence de sa créance. L’hypothéque ne prend de l’ejjicaeité dans la main du créancier hypothécaire, que dans le cas oil il suit la chosehypothéquée contre le tiers qui l’a acquise; et dans celui oú, se irouvant en concurrence avec divers eréanciers du méme débiteur, il rédame la prefer ence qat lid assigne son titre.”

    If, as is clearly shown by Merlin, the power to sell, originating in a pre-existing obligation, exists before the mortgage is granted; if the ownership and possession of the mortgaged property continue io the hands of the debtor — the consequence must be that the mortgage granted by Mad. Savary lo Duclaud, did not in any manner aifect the rights of the defendant. But be this as it may, it will not be contested that, in mortgaging the property to Duclaud, Mad. Savary mortgaged that property as it stood in her possession. She did not mortgage an unencumbered property, because the property was encumbered in her hands; non dat qui nonhabet. Therefore, the rights of Duclaud attached to an encumbered property; it was that property which he caused to be sold, that property which he purchased. The rights of the defendant were clearly then, unaffected by the mortgage and the proceedings under it. It may be true, as is contended by the opposite party, that Mad. Savary, when the hypothecation in favor of Duclaud took place, neglected to disclose the encumbrance with which the property was burthened; but it is equally true that this neglect, although it may give rise to an action against her, ean have no effect upon the rights of the defendant, who neither intervened in, nor assented to the act, which, so far as she is concerned, is res inter alios acta.

    II. In sales under execution is consent presumed on the part of the debtor?

    This question turns exclusively upon the nature and character of sales under execution so for as the debtor is concerned, for if it can be shown by conclusive authority that those sales are considered as being made without the consent and against the wish of the debtor, it is plain that his consent cannot be presumed. Zachari®, in his Cours de Droit Civil Fiv.ncais, voi. 2, p. 492, § 350, says:
    “ La vepte est volontaire lorsque ie propriétaire y procede de son plein gré. La vente e's.t nécessaire, lorsqu’il est obligé d’y consentir par suite d’une nécessité juridique á laquelle i] se trouve sounds; e’estee qui a lieu dans les circonstances suivantes:

      Quand un créancier poursuit contre son débiteur la vente de biens qui appartiennent d ce dernier, &¡c.

      La vente que les eréanciers poursuívent contre leur débiteur ou contre le tiersdétenteur d’un immeuble qui leur est hypoihéqué, est plus spéeialement appelée vente ou expropriation forcee, par opposition aux autres ventes nteessaires quiprésententplus ou moins d’affinité avec les ventes volontaires.

    Pothier, in his ‘‘Traite de la Procédure Civile,” paxt iv, chap, n, section v, page 209, vol. 9, (edition of 1835), says: “ Lasaisie i-éelle estunacte iudicaix-e, par lequel un créancier met sous la main de justice l’héritage, ou autres immeubies de son débiteui-, a l’effet d’en poursuivre ia vente, pour étre payé sur le prix.” And at page 258, “ L’adjudication conlient une véritable vente, que la justiee, pour le saisi et malgré luí, fait á l’adjudicataire de l’héritage saisi.” Domat (book i. title it, sect, xm, no. 9), says: “ Les créanciers ont droit do faire vendre les biens de leurs débiteurs; etces sortes de ventes sont farcies, et se font en justice.” And at no. 17, of the 11th section of the same book and title: “ La rédhibition de la diminution du prix, k cause des défauts de la chose vendue, n’a pas lieu dans les ventes publiques, qui se font en justice. Cardans ces ventes, ce n’est pas le propriitaire qui vend, mais c’est l'autorité de la justice qui tientlieu duvendeur, et qui n’adjuge lachóse que telle qu’elleest.”
    The court’s attention is further called to the following quotations from Troplong’s commentary on Sale, to wit:
    “No. 17. Nous terminerons ce que nous avons á dire sur ce point, en rappellant que, quoiquo le consentement doive étre libre, néanmoins on peut pour causo d’utilité publique contraindre uue personne ii vendre son bien. Des motifs non moins plausibles, autorisent aussi l’expropriation forcee ou saisic immobilldra.

      “ No. 432, L’obligation de garantir l’acheteur de tous troubles et éviction est de droit dans le coutrat de vente. Mais la disposition do notre article s’applique-t-elle nux ventes sur saisie? A entendre M. Pigeau, l’adjudicataire aurait contre Je saisi et les créanciers uno action en garantie. Mais cette opinion et irréfléchie. Ni le saisi, ni les créanciers ns sont les vendeurs. L’un est dépouillé nrnlgré lui de sapropriété, les nutres nefont que sollicker de la justice l’exécution de leur contrat. A vrai dire, c’est la justice qui vend.”

    “ No. 584. Dans I’ancienne jurisprudence on mettait parmi les vices rédliibitoires, l’incommodité qu’une servitude cachée faisait éprouver á I’acquéretir. Si le Code Civil avait suivi ce systems, on devrait décider, sans plus ample ex-amen, que Pacheteur d’un immeuble par voie d’expropriation forcee, n’a pas deletion pour se faire indemniser d’une servitude latente qui vient tout-;\-coup diininuer la valeur de l’objet acheté. Mais le Code a suivi un autre classement. Néanmoins, je pense que les motifs qui ont fait édicler Part. 1649, doivent étendre sa disposition au cas d’une servitude occulte, dontl’acquéreur sat expropriation forcée se trouve grevó. La raison en ost, qu’ il n’y a de vendeur dans ces sortes de nenies que la justice.

    Our own jurisprudence has adopted the principles of foreign civilians on this subject. Thus in Martin’s Reports, vol. 11, page 611, the Supreme Court, in examining into a sheriff’s sale, say: “ Laws which deprive men of their property, without their consent, should be strictly pursued.” Thus again, in the same yolume, page 710: “All laws which deprive the citizen of his property, against his wish, must be strictly pursued.”
    These authorities show conclusively that, in a sale under execution, the debtor Is deprived of his property without his consent, against his wish, and by the sole operation of law. Indeed, this is the very reason why those sales are called, in our jurisprudence, forced sales, and, in the French law, expwpriations forcées; for if the debtor’s consent conld be presumed, the sale would not be a forced, but a voluntary one.
    We have, therefore, shown that the mortgage given by Mad. Savory, did not in any manner affect the rights of the defendant; that, after seizure under execution, there is no difference between a judgment on a mortgage debt and a judgment on an ordinary debt; and lastly, that in sales under execution, no consent is presumed on the part of the debtor. What are we to conclude from this? Unquestionably that the forced sale relied upon by the plaintiff, is not the voluntary sale contemplated by the parties to the donation; that the resolutory condition has therefore failed; and that the defendant is clearly entitled to a judgment, quieting her in the enjoyment and possession of the rights vested in her by the donation.
   The judgment of the court was pronounced by

Rost, J.

The widow of Joseph Savary intervened in the marriage contract between the defendant and her husband, and made a donation to the future wife and her children, of the right of habitation in a bouse in the city of New Orleans, and of certain rights of use of the town lot on part of which it is built, on .condition that, in case of the sale of the property by the donor, or of the death of said donor, those rights of use and habitation should cease to exist, and the donor, ox her succession., should, in either case, pay the future wife the sum of $1,000, as an indemnity, within one month from the death or sale. This contract was inscribed in tlie office of the recorder of mortgages, five days after its date. Subsequently, the widow Savary gave the plaintiff a mortgage on the same town lot, and the certificate of the recorder produced on that occasion shows the property to have been free from mortgage in her name, and makes no mention of the donation. The debt, to secure the payment of which the mortgage was given, not having been paid at maturity, the plaintiff obtained a judgment upon it, on the confession of Mad. Savary, and caused the house and lot in controversy to be seized and sold under execution. The inscription of the marriage contract and the encumbrance it creates upon the property, were notified to the bidders at the time of the adjudication, and are related at large in the sale made by the sheriff.

The plaintiff has instituted this action to compel the defendant to surrender to him tire possession of the premises, on the following grounds: 1. That the plaintiff had no notice of the encumbrance, at the time he took the mortgage. 2. That the mortgage was a voluntary alienation of the property, to the amount of the debt. 3. That the giving of the mortgage and the subsequent confession of judgment on the mortgage debt, constitute the sale by the sheriff the voluntary act of Mad. Savary; and that, in consequence of said sale, the rights of use and habitation claimed by the defendant, have censed to exist, 4. That the right of Mad. Savary to annul the donation, by selling the property, was not personal, and could be exercised for her by any of her creditors, and particularly by a mortgage creditor.

The defendant denies all the allegations of the petition, and alleges that the sale ofthe property by the sheriff, cannot be viewed as being a sale by the widcno Savary, and is not the dissolving condition contemplated by the parties in the act of donation; that should the court be of a different opinion, the plaintiff is bound to pay her the indemnity stipulated in her favor by the contract establishing the servitude complained of.

The court below, being of opinion that the mortgage and subsequent sheriff’s sale put an end to the rights of use and habitation of the defendant, and that she was equitably entitled to the indemnity claimed, gave judgment in favor of the plaintiff, on condition that he should pay her the sum of one thousand dollars. From this judgment the plaintiff has appealed, and the defendant asks that it be amended in her favor.

The inscription of the marriage contract being anterior to the date of the mortgage given to the plaintiff, affected him with notice, and his right to recover rests solely upon the question, whether the donation was dissolved by the sheriff’s sale. Writers on the civil law assert that, a mortgage is a species of alienation. This is true, but it is not a sale, and the contract in this case is only to be dissolved by a sale. A mortgage is the alienation of aright in the property, not the alienation of the property itseif. Perfect ownership becomes imperfect when the property is mortgaged, by the alienation of that real right; but the title and the possession still remain in the owner. Troplong, Hypoth. 2d vol. art. 386. Merlin, Rep. de Jurisp. verbo Hypothéque, sect. 2d, § 3, art, 1. Civil Code, arts, 3246, 3248.

The fact of giving a mortgage, no more implies the debtor’s assent to the judicial sale subsequently made to satisfy the debt thus secured, than the fact of contracting an ordinary debt would imply it. The probable intention of Mad. Savary when she gave the mortgage, was to pay the debt at maturity and have the mortgage released. It cannot be presumed that she intended to violate her obligation. The law views the' property of debtors as the common pledge of their creditors, and the right to have it sold does not depend upon the nature of their obligations, but is inherent to the obligations themselves, whatever they be. As long as the other creditors of Mad. Savary did not interfere, the only additional right which the mortgage gave the plaintiff, was that of having the mortgaged property seized and sold first, instead of proceeding as the law provides in ordinaiy seizures under execution.

The fact that the widow Savary honestly confessed the justice of a claim against which she had no defence to make, has no material bearing on this controversy. The nature of the evidence upon which a judgment is obtained does not affect the general rule that, in sales under execution the law neither requires nor presumes the assent of the judgment debtor. See Domat. b. 1st. tit. 2, sect. 13, no. 9. Troplong, De la Vente, nos. 17, 432, 584, 585. Sales under execution are regulatinns of the use of property falling within the eminent domain of the sovereign. He alone speaks in the writ, commanding the sheriff to seize, take into his custody, advertise and sell the property of debtors; he alone passes to the purchaser the titles of the former owner. In the words of Troplong, it is justice alone which sells. Troplong, Vente, art. 584.

Our courts have uniformly considered that sheriff’s sales were made without the consent of the debtor, and have accordingly held that, the laws regulating the manner of making those sales, should be strictly pursued. 11 Mart. 611, 710. But if the positions assumed by the plaintiff’s counsel were conceded, an insuperable difficulty would still remain. The counsel has attempted to establish them by analogies and legal inferences, which no one but a lawyer can understand. Js it to be supposed that the illiterate woman who entered into the contract under consideration understood them, and had them in contemplation at the time. Every condition attached to a donation, must be performed in the manner that it is probable the parties intended that it should be. In the interpretation of donations, words must be understood in their usual signification and popular use; and where the intention of the parties is doubtful, the doubt should inure to the benefitof the donee. Civil Code, arts. 2032, 1940, 1952.

We are well convinced that the only dissolving conditions contemplated by the parties, were either an ordinary sale effected by the donor personally for a price agreed upon by her, or her death happening during the continuance of her possession; and whatever may be the real or supposed analogy between the sale intended and that which took place, we are not at liberty to extend the condition from onecase to the other. Pothier, Oblig. no. 206.

The last ground taken by the plaintiff’s counsel is answered by what precedes; and moreover, no creditor can annul a contract made by his debtor, before the time his debt accrued. Civil Code, art. 1988.

For the reasons assigned, it is ordered'that the judgment in this case be reversed, and that there be judgment in favor of the defendant, with costs in both courts.


text:
    Townsend v. Harrison.
    The privilege granted to an artificer or laborer, on the buildings or other works constructed by him, for the payment of his labor, will exist, as between the parties to the contract, though the work exceed five hundred dollars in value and the contract has not been registered with the recorder of mortgages- The parties to a eonuract cannot take advantage of its non-in. srdption.

      Appeal from the District Court of Iberville, Nicholls, J.

      W. E. Edwards, for the plaintiff.

      Labauve, fin- the appellant.
    Plaintiff is not entitled to any privilege. Civil Code, arts. 2743, 2740, 3152, 3239. Taylor v. Cram, 16 La. 292.
   The judgment of the court was pronounced by

Rost, J.

This is a most unjust litigation, on the part of the defendant. The plaintiff claims the stipulated compensation for putting up two sets of kettles and their chimneys, making the sugar-mill and engine walls, putting up the engine and boilers, and doing other work in the sugar-house of the defendant.

It is conclusively proved that the work was faithfully done, and that the kettles performed uncommonly well. The compensation claimed for the work is much below the usual price, and the defendant has shown no reason to resist the payment of the sum agreed upon by him. The case was tried before a jury, who returned the following verdict:

“Verdict in favor of plaintiff for the the sum of four hundred and forty-five dollars and sixty-two and a half cents, with legal interest from the institution of this suit, and that, the plaintiff be granted a privilege upon the sugar-house and mill belonging to the defendant, Samuel J. Harrison, to secure the payment of the plaintiff’s claim and the costs of this suit.”1

Judgment was rendered in favor of the plaintiff, and the defendant has appealed. The appellee has prayed for the affirmance of the judgment, with damages for a frivolous appeal.

The appellant asks a reversal of the judgment, on the ground that it is unsupported by the lawand evidence; and that, as the contract entered into detween the plaintiff and the defendant exceeds five hundred dollars in amount, and has not been recorded, the plaintiff is not entitled to the privilege given him by the judgment; and further, that interest was improperly allowed from the judicial demand.

The first ground has already been answered. In the case of Shepherd v. The Orleans Cotton Tress Company, ante page 100, lately determined, we held that, parties to a contract cannot take advantage of the non-inscription of the mortgage which it creates, or which results from it by the operation of law.

The same rule applies to privileges like the present. Interest upon the balance claimed was clearly due from the time the defendant was put in default by the judicial demand. Judgment affirmed.


author: Eustis, C. J.

text:
    Cammack v. Griffin et al.
    In the distribution of the proceeds of a steamer sold under attachment, the creditors of the boat are entitled to a preference over one claiming a privilege as a vendor of the steamer.
    Where a vendor takes the notes of the purchaser, payable at a future day, “ in payment of the balance of the price ” it is a novation of the debt; and the remedy of the vendor will be confined to a personal action against the parties to the notes.
    Where the vendors of a steamer intervene in an action by an attaching creditor, claiming to be paidj by preference out of the proceeds of the sale, the amount of notes secured hy a deed of trust on the steamer, the production of the notes and deed of trust is indispensable to the establishment of their claim. An endorsement on the enrollment declaring the existence of the deed of trust and the date and amount of the notes, and the recital of the deed in tho net of sale to tho defendant in attachment, are not sufficient against third persons
    APPEAL from the Commercial Court of New Orleans, Watts, J. . Moore sold to the defendant, Griffin, in October, 1845, the steamer Sea Bird, by notarial act. Tho act of sale recites : “ That this sale is made for the price of $10,500, in part payment of which said purchaser has paid to the vendor $3,500 in ready money; and in payment of the balance of said price, to wit, $7000, the said purchaser has, first, furnished his three several promissory notes, for the sum of $8,00 06 each, each drawn to the order of and endorsed by William K. English, dated this day, and payable &c.; and second, tho said purchaser hereby puts himself in the place and stead of said vendor, and assumes to pay to his acquittance live certain promissory' notes, given by him to Albert Todd and Charles TI. Haven, as trustees, in trust for Willard Arnold of Kentucky, and secured by deed of trust bearing date 24th September, 1845; one lor the sum of $320 50, payable 24th November, 1845; one for $1069 83, payable 24th December, 1845; another for the same amount, payable 24th February, 1846; one for same amount, payable 24th March, 1846; and one for the same amount payable 24th May, 1846, with interest from date until paid, at the rate of six per cent per annum.” A memorandum of the deed of trust, giving its date, with a description of the notes, was endorsed on the enrollment of the steamer, by the surveyor and inspector, and is set forth in the act of sale to Griffin. Cammack, the plaintiff, having attached the boat, Moore, and the trustees of Arnold, intervened, claiming a privilege as vendors, the former for two oi the notes executed in his favor remaining unpaid, and the latter for the amount of the five notes due to them as trustees. There were other intervenors, whose claims the nature of the decision renders it unnecessary to notice. There was a judgment below ordering the payment, in the first place, of certain claims of the first class, for wages of the crew; advances of money, supplies and materials, &c., leaving a balance oí $2517 67, which was ordered to be jraid to Todd and Haven, trustees. Moore was also decreed to be entitled to a privilege as vendor, for the amount of his unpaid notes. The plaintiff, Merle, Beylle Sf Co. and H. C. Cammack Sf Co., intervening parties, appealed.

      C. M. Jones and L. Pierce, for the plaintiffs and appellants.
    The court below considered that Moore had the privilege, given by the Code to the vendor of moveable things while in the possession of the vendee. But this article of the Code is not applicacle to a ship or vessel, as will appear by examining the articles of the Code touching privileges on certain moveables. The section 2d; beginning at article 3183, says “there are some privileges which act on particular moveables,” and, after enumerating various ones, all inapplicable in terms to ships and vessels, at no. 7 mentions that of “the price due on moveable effects, if they are yet in pos'session of the purchaser.” Ships and vessels are never spoken of as moveable effects. The enumeration of the nine cases of privilege shows plainly that the legislator had not, at the time, in contemplation ships and vessels, but intended to treat of them apart; and so he does, after discussing separately the six items from which the others are corollaries: “the privilege of the lessor,” — “the privilege on the thiug pledged,” — “the privilege of the depositor,” — “of expenses incurred in the preservation of the thing” — “of the privilege of the vendor of moveable effects-” — “of the privilege of the innkeeper.” He then commences another section — section 3d — headed, “ Of the privileges on ships and merchandise,” and says, article 3204, “the. following debts are privileged on the price of ships and other vessels,” Sec.: “8thly, sums due to sellers, &c., if the vessel has never made a voyage,” &c. Here, then, is a positive enactment concerning this matter; and it is only before a vessel has made a voyage, that the seller preserves his privilege of vendor. It is in evidence that the Sea Bird had made voyages since her purchase, and under this article the privilege was lost.
    But the two notes were taken in payment; and if there had been no voyage, the privilege of the vendor would have been lost. Barrow v. Howe, 2 Mart. N. S. pp. 147, 150. Abat v. Nolte’s Syndics, 6 Ibid, N. S. pp. 636, 638. .
    The claim of Todd and Haven, as trustees for Arnold was acquired under a trust deed, of which we know nothing more than is endorsed on the papers in the words following:
    “I, Isaac H. Hodges, surveyor and inspector, have this day filed a deed of' trust in favor of Albert Todd and Charles H. Haven, as trustees, in trust for Willard Arnold, of Kentucky, to secure the said Arnold the payment of five promissory notes,” reciting the dates and amounts of the notes. It has been shown that there is no vendor’s privilege for this; but it is urged on behalf of Arnold, that this trust deed is intended as a mortgage; that vessels are liable to be mortgaged (art. 3256); that it is not necessary that they should be recorded, but that hypothecations of vessels are made according to the laws and usages of commerce (art. 3272,) and that the mortgage arising from this trust deed, and so noticed on the papers, has its validity recognised by those usages and laws existing in the general Commercial Code, “upheld by general consent, growing out of the mutual wants of nations, and founded on principles of natural equity", which are of universal obligation.” Malcom-v. Henrietta, 7 La. Rep. 492.
    In any case, to be binding on others, the mortgage must be shown to be according to the laws and usages of commerce. What are these laws and usages. By the law of France, mortgages of vessels are forbidden. Boulay Paty, Droit Com. Mar. pp. 106-8. Abbot on Shipping, edit, of Í812, p. 13. By the laws of England, mortgages of a ship or vessel are allowed; and this form of security is regulated, first, by a statute George III, and after, by a statute of 6 George IV, § 110. This statute is of so late a date, that judge Bullard could' not have had reference to it, as making the commercial law, and We must therefore go back to the practical difficulties and doubts under the old statutes. Vide Bell’s Commentaries, vol. i. p. 158, 164. Holt on Shipping, vol. i, p. 306) says: “ Notwithstanding the above cases, Witson v. Hinther, 5 Taunton, C42, &c„ it is not to be concluded that there can be no valid mortgage of a ship.” “The mortgage of a ship, like the mortgage of any other chattel, may take place subject to the restrictions laid down in courts of law and equity relative to such mortgages. The main and fundamental principle, as respects property in shipping, is this, that there can be no valid mortgage without complying with all the forms of the register acts: a transfer by mortgage, made known to the public, and confined to british subjects, is within the spirit of the acts,” &c. The english mortgages, are, therefore, altogether subject to the statutes, passed from time to time, in William, George the Third and George the Fourth’s time. Where are the general commercial laws to which we are to look? That a ship can be mortgaged for debt, we are told by the Code; that it is to be under the general commercial law, &c., we are told by the Supreme Court, in 7 La. Rep., but we are not aware of any nation that has construed these mortgages independent of statute. We know merely what would be a useful rule of equity to be hereafter established. Judgingfrom analogy to the requisitions of the statutes, a mortgage of a ship, to be binding upon third persons, and others acquiring privileges by virtue of laws of their own states or sovereignties and under them, should be so fully stated, recited and explaimed upon the ship’s papers, that there could be no mistake or misunderstanding concerning the nature and extent of the incumbrance on the part of a creditor seeking information, or persons-wishing to require precise information as to his security upon a projected advance.
    The plaintiff is deprived of the privilege, given to him by the laws of his country, by an instrument reputed to have been made in the State of Missouri. This instrument is not recorded; the clauses and conditions of the defeasance are not stated, much less recited; and the act is not verified by Hodges.
    This would not be a mortgage in England ; shall it be so construed here, because Grifjin, the purchaser, acknowledges that he has never paid puch notes ? It may well be his personal debt if such notes exist; but it is nota lien — it is not a mortgage, entitled to effect- against third persons under the commercial law. 5 Taunton, supra.

      The pretended mortgage, however, in the present case, was made in a common law State, aud “there is no substantial difference at common law between a mortgage of real estate and a chattel; in both cases the property vests in the mortgagee subject to be defeated by the performance of the condition; and ou forfeiture, or non-performance of the condition, his interest becomes absolute.” Badlamv. Tucker et al., I Pick. 399.
    Unless, therefore, there was a stipulation in this trust deed leaving the possession with the morgagor, the vessel not having been reduced into possession before the attachment, the latter will have the preference. Edwards v. Harben,% Durn. and East, 596. Kidd v. Rawlinson, 2 B. and P., 60. Abbott on Shipping, 10'. Portland Bank v. Stubbs, 6 Mass. 425. Putnam v. Dutch, 8 Mass. Ptep. 287. Galev. Ward, 14 Mass. 352. Lamb v. Durant, 12 Mass. 54. Lam-phear v. Sumner. 17 Mass. 110. Bartlett v. V/illiams, 1 Pick 288; and. vide 3 Cowen’s Rep. p. 187 in note, for all the decisions upon this point. As we have not the trust deed, if any there were, before us, we cannot presume as to its stipulations. There is no reference in the memorandum on the boat’s papers to any special agreement as to possession, and it must be considered as a transfer with a defeasance. In such case, under the above decisions, the mortgagee has been negligent, and the attaching creditors have preference, as stated in 2 D. and E. and 1st Pickering.

      Cohen and Preston, for the intervenors, Moore, and Todd and Haven.

    The judgment in favor of Moore is correct. Civil Code, arts. 3194, 3184, no. 7, illustrated by 3230, and 3234. Pier claim is postponed only to law charges, 2 Rob. 280; 527. 10 La. 68, Terry's case. Art. 3204 relates to privileges upon ships and vessels for sixty days, into whose hands soever they may come; but the vendor’s privilege is only while the moveable belongs to the vendee. These privileges do not conflict: one is special — into whosoever hands;. the other is a general privilege, in the hands of the vendee. 17 La. 161. As to the pretence that Moore took the two notes in payment, the authority cited by the counsel of plaintiff only establishes that nothing prevents a debtor and creditor from agreeing, by contract, that a note shall be given and received as a payment. In the cases on this point a recipt was given. ■ The novation resultodfrom clear expressions used to that effect.
    The trustees of Arnold, claim by virtue of the stipulation in their favor, in the sale from Moore to Griffin, that they should be paid as ¡’art of the price. See La. Code, art. 1884. But in addition to the vendor’s priviilege in common with Moore, the trustees had a mortgage. The Civil Code, art. 3272, gives the mortgage, which was made according to the laws and usages of commerce. Abbott on Shipping, p. 36. The Civil Code, article 3256, declares ships and other vessels susceptible of mortgage ; and art. 3272 declares, “that hypothecations of ships and other vessels are made according to the laws and usages of commerce.”
    An attaching creditor has no priority of payment over privileges and mortgages. An attachment only giyes a priority of payment over ordinary creditors, or such as attach later. The attaching creditor can only take the property, cum onare; he attaches the right, title and interest of defendant in the thing, subject to prior liens. Blit the plaintiff contends that the vendor of a ship has no privilege, because none is given by the section 3, headed, of Privileges ok Ships, &e., art. 3204, &c. To this we reply, that articles 3194, and 3184, no. 7, give the privilege, if the property still remain in the possession of the purpurchaser; and articles 3204, &c. give the privilege into whose hands soever the property comes.

      T. A. Clarke, for the appellants. PL. C. Cammack Co. W. S. Upton, and C. M. Randall, for other appellees.
   The judgment of the court was pronounced by

Eustis, C. J.

The appeal before us is from a judgment of the late Commercial Court of New Orleans, distributing the proceeds of the steamer Sea Bird among the different classes of creditors. It is prepared with great care, and we regret that it is not in our power to determine several important questions of law which the learned judge has passed upon inhis opinion.

We concur in the judgment as to the distribution in favor of the creditors, which gives them a preference to the privilege claimod for the vendor. The balance, §2,517 67, which is assigned to Todd 6s Haven, trustees of Arnold, we think they are not entitled to receive, adversely to the attaching creditors. It appears that, in October, 1845, in New Orleans, by public act, Moore sold to Griffin the steamer Sea Bird, for the sum of §10,500, of which §3,500 was paid in cash, and, in payment of the balance of said price, the purchaser furnished his three promissory notes for the sum of §800 06 each, payable one at ten days after date, and the others on the first of April and July then next ensuing; and the purchaser placed himself in the stead of the vender and assumed to pay, to his acquittance, five certain promissory notes given by the vendor to Albert Todd, and Charles H. Haven, as trustees for Willard Arnold, of Kentucky, and secured by deed of trust, dated the 24th of September, 1845. The notes were five in number, and bore interest from date, and the last was payable in May, 1846.

An endorsmeut, on the enrollment, of the deed of trust, giving its date and a description of the notes, was made at St. Louis, and the same endorsement was made in the new enrollment, taken out in New Orleans on the change of ownership. On the steamer being attached, Moore filed his petition and inventory, in which he claimed the vendor’s privilege for two of the notes of §800 06, which he alleges are unpaid. Todd and Haven, as trustees for Arnold, also intervened, and claimed the vendor’s privilege, for §4,599 82, the amount of the five notes which constituted part of the price of the steamer, in the sale from Moore to Griffin, averring that the steamer was subject to the hypothecation creatod by the deed of trust endorsed on the enrollment. The judgment of the Commercial Court was in favor of the latter claim, which took the balance of the proceeds of the steamer, §2,517 67; and also considered that Moore’s privilege, as vendor, existed, and was in full effect for the amount of the two unpaid notes.

To this claim of Moore, it is objected that the two notes were received in payment of part of the price. The authorities, cited by the counsel for the plaintiff, aro conclusive on this point, and the words of the act leave no room for doubt. There is a complete novation of the debt, by a substitution in payment of the notes for the price. The notes, on their face, bear that they are mpart payment for the steamboat Sea Bird, by act &c. It is clear that tho remedy of Moore is confined to his personal action against the parties to tho notes. Barrow v. Howe, 2 Mart. N. S. 147. Abat v. Nolté’s syndics, 6 Ibid, N. S. 637. In relation to tho claim of Todd and ITavan, we have no evidence whatever, except the endorsement on the enrollment and the recital in the act of sale from Moore to Gi'ijfin. The notes themselves were not produced, nor was the deed of trust exhibited ; and on every principle of the law of evidence, against third persons, attaching creditors, their production was indispensable to the establishment of the claim of the intervenors, notwithstanding the confession of judgment by English, in favor of those intervenors. Several reasons have been offered in the written argument of the counsel for Todd Haven, against the objections taken to the insufficiency of the evidence adduced by them. It is said that Cam-mack admitted their claim, as proved by the testimony of Marks. We think there is nothing in the testimony which would authorize the belief that, Cam-mack dispensed with the formalities of law, or his rights as a litigant. It is an error to suppose that Moore, in his intervention, asserted the enforcement of the privilege of Todd 4' Haven,'arisingfrom their alleged debt as being part of tho price. Moore claimed only the amount of his two notes, with privilege. It is also stated that the pleadings do not deny the claim. A confession of judgment in favor of these intervenors, by English, the master and owner of the steamer, was filed on the 16th January, 1846, and, on the 21st of February following, the allegations and rights of the intervenors were formally put at issue, by an answer to the petition of intervenors by the plaintiff.

The intervention of Todd Haven is not sustained by evidence, and therefore falls ; and the balance, §2517 67, is subject to the attachment of the plaintiff, who has judgment for a sum exceeding that amount.

It is therefore decreed that the judgment of the Commercial Court, in favor of Todd &f Haven, trustees, andof Moore, be reversed, and that the sum of §2,517 67 be held subject to the attachment of the plaintiff, and that the appellees .pay the costs of this appeal; in other respects, the judgment of the Com.mercjal Court is affirmed,

      Slidell, J. did not sit in this caso, h avin g been of counsel in the court of the hist instance.


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    Eugenie v. Preval et al.
    Prior to the stat. of 30 May, 1S4G, the removal of the owner, with a slave, into a country where slavery did not exist, and the acquisition of a domicil there, emancipated the slave. That statute cannot be considered as affecting any rights perfected before its passage.
    Appeal by the plaintiff from a judgment of non-suit rendered by the District Court of New Orleans, Buchanan, J.

      David, for the appellant. Benjamin and Micou, for the defendants.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiff, who was the slave of Qallien Preval, sues for her liberty, and makes Preval, Mrs. Faure, his daughter, and Miss JSaynal, defendants., Miss liaynal and Prival disclaimed any ownership, or right of property in the plaintiff. Mrs. Faure asserts her ownership of the plaintiff, and puts at issue the allegations of the petition. Mrs. Faure, before her marriage, left Louisiana, in the year 1830, for Prance, and the plaintiff was sent with her. She married in France, and returned, after several years, to Louisiana, leaving the plaintiff in France, who only returned in 1838. During the residence of Mrs. Faure, in France, the plaintiff remained in her service. Mrs. Faure has since resided with her father, her husband remaining in the service of France.

Mrs. Faure having married an officer in the french army, her domicil became that of her husband, and must so be held, for all purposes relating to her rights in this suit. Could she hold the plaintiff in slavery in France ? Itiscertain that she could not. The domicil of the servant and her mistress was in France, and the court cannot be ignorant of the institutions of a country whose jurisprudence is every day referred to in illustration of our own. Merlin, Rép. verbo Esclav'igc, § 1.

This case is nearly the same with that decided in June last, of Josephine v. Poultney, 1 Ann. Rep.p. 329, in which we held that the status of freedom was acquired, not by having been in a country in which slavery did not exist, but by A residence and domicil there. We did not consider tho statute of 1846, relied upon by the counsel for the defendant, as retrospective in its operation, nor in any manner derogating from the general principle, which is established by our Code, in relation to the effect of laws, art. 8 : “ A law can prescribe only for the future; it can have no retrospective operation, nor can it impair the obligation of contracts.” The statute is as follows:

An act to protect the rights of slaveholders, Sfc.

“Be it enacted, &c. That from the passage of this act, no slave shall be 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.”

It cannot be presumed that it was the intention of the legislature to strike at the past, and divest a right acquired by residence in a foreign country. We understand that statute as operating upon the status of that class of persons for the future, and not upon any rights which hnd become absolute and vested before its passage. It settles the law on this subject, on the principle laid down by Lord Stowell, in the case of the slave Grace, reported in 2 Haggard’s Reports, 94, determined in the High Court of Admiralty of England, on an appeal from the Vice Admiralty Court of Antigua. The common law courts of England have, since the celebrated case of Somerseit, maintained the contrary doctrine. Forbes v. Cochrane, 2 Barnwell & Cresswell, 448.

The courts of the different States of the Union, it is believed, have been uniform in their decisions on this subject, and the case of Smith v. Smith, 13 La. 441, was in conformity with them. In that cause the subject is fully examined, and the jurisprudence of the State is shown to be settled by a series of adjudged cases. The right of the legislature to regulate the condition of this class of persons is unquestionable; and, in giving the plaintiff the benefit of the condition which sire has acquired, it must be understood, that the judgment is confined to the right of owership and dominion, asserted over her by the •defendant, who claims her as a slave.

It is therefore decreed .that the judgment appealed from be reversed, and .that the plaintiff recover her freedom, and that the defendant, Mrs. Faure, pay to the plaintiff, the sum of $146, for wages from the institution of this suit; that the said defendant pay the costs of this appeal; those of the court below incurred in proceedings against the two other defendants, to be borne by the plaintiff; the rest to be paid by Mrs. Fame.

        Benjamin and Micov, for a re-hearing. The court, in its judgment, assumes, “that it is certain that the plaintiff could no.t be held in slavery in France;” and the opinion is further expressed “ that, the court cannot he ignorant of the institutions of a country whoso jurisprudence is every day referred to in illustration of our own.” The rule of law in Louisiana has been fixed and uniform, “ that foreign laws when invoked in favor of a party must be proven as facts,” because no tribunal on earth is omniscient. Campbell v. Miller, 3 Mart. N. S. 149. Hernandez v. Garetage, 4 Ib. N. S. 419. Norwood v. Green, 5 Ib. N. S. 176. Bray v. Cumming, 5 Ib. N. S. 254. Malpica v. McKown, 1 La. 255. Crozier v. Hodge, 3 La. 358. But this is not all :at this very moment a bill is pending before the legislature for the purpose of fixing the mode in which the laws of our sister States are to be proven in court; and yet the 'court declares that it has a judicial knowledge of the institutions of a foreign country. The .question before the courtis not one of general law, of principles relative to contracts, of those mattors of general principle .which being based on truth and justice are common'to all countries and all ages. It is one of municipal law. It is an eleventavy principle that slavery is a municipal institution. If this court has judicial knowledge of tho law of France on the ¡subject of slavery, it has the same knowledge of her game laws, of the laws relative to her forests and woods, of the jurisdiction and powers of hor mayors, prefects of police and municipal officers. Re-hearing refused.


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    The Second Municipality of New Orleans v. Duncan.
    The ordinance of the council of the Second Municipality of New Orleans of 29th August, 1846, imposing a special tax on all real estate within the limits of the municipality, for the purpose of paying its debts and providing for the support of the public schools, is legal and constitutional.
    Art. 127 of the constitution applies to state, and not to municipal taxes.
    In the exercise of the power conferred on the council of the city of New Orleans by the Otli sec. of the stat. of 17 Neb. 1-805, and subsequently transferred to the councils of the different municipalities by the stat. of 8 March, 183C, of taxing real and personal estate, the corporation is not bound to tax both species of property at the same time; a tax may be legally imposed on either alone.
    APPEAL from the Third District Court of New Orleans, Kennedy, J. The defendant appealed from a judgment in this case in the following words : “After evidence and argument, and at the suggestion of the court, a decree is now herein entered, pro forma, in favor of the plaintiffs and against the defendant without prejudice.” The action was instituted by the municipality to recover the amount of a tax on real estate owned by the defendant. The tax was assessed under an ordinance of 29 August, 1846, imposing a tax on all real estate within the limits of the municipality.

      Lee and Durant, for the plaintiffs,
    cited stat. 17 Feby. 1805, s. 6. Oahcy v. Mayor, 1 La. 1.

      Duncan, pro se.

      Schmidt, on the same side.
    By the 32d article of the constitution, the power of imposing and collecting taxes belongs exclusively to the legislature, the members of which, who are mere temporary agents of the people, cannot delegate this power, because the constitution gives them no such authority. The same inference is the only legitimate deduction which can be drawn from the 127th art. of the constitution, which provides “ that taxation shall he equal and uniform throughout the State;” because such equality and uniformity are only attainable, by confining the exercise of the power to the legislature, whose authority is coextensive with the territorial limits of the State. It follows that the new constitution has virtually abrogated all powers of taxation possessed by every other political body, except the legislature; and hence, whatever may have been the former powers of the plaintiffs in relation to taxation, they have ceased to exist under the present order of things.
    The power of imposing taxes is not an attribute usually belonging to municipal corporations, and when the power is bestowed, it is always limited, so as to be exercised for specific and not for general purposes. Such is the rule deducible from the 6th section of the act of the I7th February, 1805, and from the 2d section of the act of 8th March, 1836, which confer only specific powers, to be exercised for the purposes enumerated, and the special tax does not fulfil any of these purposes.
    The 1st section of the act of 16th February, 1841, even if in force and constitutional, does not authorize the blending of lawful and unlawful taxation; and the whole ordinance is necessarily void from tins inherent defect, and because it is impossible to ascertain what portion of the tax is to be applied to the public schools.
    Supposing that the municipality enjoyed the unquestionable right to lay taxes for the purposes mentioned in the preamble of the ordinance, yet it is null and void. All taxation must be fair and equal, “ so that no one class of individuals, and no one species of property, may he unequally or unduly assessed,” to use the language of Chancellor Kent. 2 Com. 23. If the legislature itself imposed the tax, it must have observed this rule, and it would be preposterous to contend that its creature, tho corporation, can, in its exorcise of a delegated power, do more than the principal could have done, had he acted for himself. That it acts unequally, is obvious, since it affects only land and slaves; while horses, carriages, capital, stock in trade of every description, ships, steamboats, money in banks, and the innumerable moveable effects of a large and flourishing commercial community, are entirely exempt from the operation of the tax.
    Because all taxation must be exercised in the usual and ordinary form1, and nothing can justify the imposition of a special or extraordinary tax, but some overj whelming calamity endangering the social' existence of the community.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action for the amount of a tax on real estate owned by the defendant. It is charged that, by an ordinance of the 29th of August,-1846, a special tax of one per cent was imposed oft all real estate with-in the taxable limits of the muni'cijpality, and that the sum,of eighty-five dollars is due by the defendant, according to the assessmentpmade on a lot belonging to him, situated within said limits. There was judgment for the plaintiffs, and the defendant appealed. The matter in dispute between the parties not exceeding the sum of three hundred dollars, the duty of this court is confined to a consideration of the constitutionality and legality of the tax. No questions have been raised in argument, except those whish relate directly to one or' the other of these subjects.

The ordinance is as follows:

“Whereas, by the statement of the acting treasurer of this municipality, it appears that the revenue^of said municipality will not be sufficient to meet the demands on the treasury, owing to She maturity of notes and bonds issued by said municipality; and as it is the duty and determination of the council to make all necessary arrangements in their power for the faithful observance of ail contracts, and discharge of all debts of said municipality; and, whereas,- an expenditure is required for the necessary improvements af said municipality, for the municipal hall, for which an outlay has been made and heavy contracts entered into at the north by the contractor, who relies upon the faithful payment of the instalments by the municipality, as well as for the public schools, which are of paramount importance and utility to the people, and deserving of our wannest support; therefore,

Be it ordained, that by virtue of the authority vested in the mayor and city council by the Cfth section of an act to incorporate the city of New Orleans, approved the 17th February, 1805, and by the 2d section of an act approved 8th March, 1836, and the 1st section of an act approved 16:th February, 1841, relative to public schools, and'other acts of the legislature, a special tax on all real estate situated within the taxable limits of this municipality, of one dollar on every hundred dollars, is hereby imposed on the value of real estate, as ascertained by the assessment of 1846. Also, a tax of four dollars on each slave in said municipality, as per said assessment of 1846: and the treasurer is hereby authorized and required to collect said taxes immediately after the first day of October.”

The objects of the imposition of this tax are within the lawful powers of the municipality and proper subjects of administration. The tax itself is said to be unconstitutional, it being in conflict with art. 127 of the constitution of 1845-That article, by its very terms, applies to state, and not to municipal taxes. It provides for the equality and uniformity of taxation throughout the State. As an approximation to either of these objects would be impossible without a general valuation of the properly to bo taxed, the article provides for the postponement of its operation until after the year 1848, thus giving time for the legislature to provide the machinery to carry into effect a principle which has hitherto been a standing monument of the impotency of civil government, in applying to the complicated facts of society, abstractions, however true, just and important they may be. As we have had occasion to observe recently, in the case of Egerton v. The Third Municipality, 1 Ann. Rep. 435, the framers of this constitution had before them the condition of the municipalities of New Orleans, with their debts, their abuses and their wants, and their corporate existence is recognized and óontinuéd as to certain public rights, by an express provision. The jurisprudence Under which the present system of taxation had grown up, was before them, and the power of remedying the evils of misgovernment was left, in statu quo, With the legislature; and the convention confined itself to providing for the state government, leaving the Municipal bodies, as it is believed sound policy justified, under legislative control.

It remains next to examine the question of the legality Of this tax.- It is urged in argument that, by the act of 1805, which is called the charter of the city, the mayor and council are authorized to raise money by taxation on real and personal estate only, and that the right of taxation is indivisible, and must be exercised entirely on both, and not on one alone, of these objects. In the case of Oakey v. The Mayor et al., 1 La. p. 1, et seq. decided in 1830, the Supreme Court thus notices this construction, which was maintained by the counsel who argued that case: “ The first objection is that, by the charter, the corporation is authorized to tax real and personal estate, and that the tax now complained of is on real estate alone, It does not appear to us that the power given to tax real and personal estate, renders it imperative on the corporation to tax both. By the same section of the law, the city council are empowered to exercise their authority as to them may seem proper.”

It was also urged by the counsel for the plaintiff in that case that, taxes could’ only be laid under the act of 1805, to meet a deficiency in the ordinary revenues of the city: but this view was not sustained by the court, which recognized in' the corporation a general power to raise money by taxation. From that period the power has been exercised, and, on the division of the city, the councils of the' municipalities succeeded to that of the corporation of New Orleans. The act of 1841, referred to' in the preamble of the ordinance, authorizes the municipalities to establish schools within their limits, and to levy taxes for their support„ This construction of the power of the council to lay taxes, has been acted upon ever since that decision was made, not only without any check on the part of the legislature, but with an implied assent, resulting from their legislation on subjects of municipal'administration; an’d, asíate as 1844', an act was passed requiring the approval' of the mayor, or, in the event of his veto, the votes of three-fourths of the members of the council passing the same, te every municipal ordinance creating a special tax on real estate. And this court, in the case of The Second Municipality v. Morgan, 1 Ann. 111, recognized the power of the municipality to lay aspeeial tax on real'estate, for the legitimate purposes of administration. The constitutional provision concerning taxation, is the declaration of a principle which has its foundation in political justice, and is one of the bases of the social compact under our institutions. In recognizing it as such, we are not assisted in our inquiries as to the course we are bound to pursue in the matter under advisement.

We have no means before ua by which we ean form an idea of the equality of the taxation by this municipality, in its practical results. We are furnished with no evidence of the mode in which the public burthens operate upon the inhabitants. We have a simple admission made in the record, “that there is no other speeial ordinance of the Second Municipality assessing taxes on personal property.” We know of no reason imperative on the municipality to impose their taxes in any particular form, or to include any other species of property in an ordinance imposing a tax on real estate. It constitutes no objection, under any view of the subject, to the validity of this tax, that personal property was not also taxed by special ordinance.

To establish the inequality of a tax like this affirmatively something more, must be offered than a naked fact like this, which does not aid us in forming a general conclusion. Nor does it follow that, because article 127 of the constitution does not apply to municipal taxes, the right of municipal corporations to lay taxes is arbitrary and without restraint. That right is always limited by the principles on which our institutions are founded, and which the constitution recognises as sacred. The Supreme Court of Kentucky, in the case of the City of Louisville v. M’Quillan’s Heirs, 9 Dana's Reports, 516, in answer to an argument pressed at bar, that the right of the city of Louisville to tax was unlimited, has presented this subject in a very clear light s

“But,” say the court, “if the assessment against M' Quillan'e heirs, should be deemed a tax, we cannot admit that the taxing power is, in this country, altogether arbitrary. Such a doctrine would be no'less alarming than anomalous, When shall a tax be levied ? To what amount ? Shall it be a capitation or property tax ? Direct or indirect 1 Ad valorem or specific ? And what classes of property are the fittest subjects of taxation, are all questions wisely confided by our constitution to the legislative department, subject to no other limitation than that of the moral influence of public virtue, and responsibility to public opinion. But, in some other respects, and so far as the power of taxation may be effectual without being thus limited, it is, in our judgment, limited by some of the declared ends and principles of the fundamental law. Among these political ends and principles, equality, as far as practicable, and security of property against irresponsible power, are eminently conspicuous in our state constitution. An exact equalization of the burden of taxation, is unattainable anti utopian. But still there are well defined limits within which the practical equality of the constitution may be preserved, and Which, therefore, should be deemed impassable barriers to legislative power. Taxation may not be universal ; but it must be general and uniform. Thus, if a capitation tax be laid, none of the class of persons thus taxed can be constitutionally exempt, upon any other ground than that of public service. The legislature, in the plenitude of its taxing power, cannot have constitutional authority to exact from one citizen, or even one county, the entire revenue for the whole commonwealth. Such an exaction, by whatever name the legislature might choose to call it, would not be a tax, but would be undoubtedly the taking of private property for public use, and which could not be done constitutionally, without the consent of the owner or others, or without retribution of the value in money.

“ The distinction between constitutional taxation, and the taking of private property for public use by legislative will, may not be definable with perfect precision. But we are clearly of the opinion that, whenever tbe property of a citizen shall be taken from him by the sovereign will, and Appropriated, without bis consent, to the benefit of the public, the exaction should not be considered as a (aX; unless similar contributions be made by that public itself, or shall be exacted rather, by the same public will, from such constituent members of the same community generally, as own the same kind of property. Taxation and representation go together; and representative responsibility íb one of the chief conservative- principles of our form of government. When taxes are levied, therefore, they must be imposed on the public in whose name and for whose benefit they are required, and to whom those who impose them are responsible. And, although there may be a discrimination in the subjects of taxation, still, persons in the same class, and property of the same kind must generally be subjected alike to the same common burden. This alone is taxation, according to our notion of constitutional taxation in Kentucky. And this idea, fortified by the spirit of our constitution, is in our judgment, confirmed by so much of the twelfth section of the tenth article as declares ‘nor.shall any man’s properly be taken, or applied to public use, without the consent of his representatives, and without just compensation being previously made to him.’ “The object of this great guaranty was to secure every citizen against spoliation by a dominant faction, or by a rapacious public power, acting in obedience to the will of a constituent body for whose use his property may be taken, and from whom no similar contribution is required. It intended that public responsibility and the power of exaction for public use, should be in some degree commensurable; and, therefore, it should be understood as providing that the public shall not take the property of any citizenfor its own use, withouthis consent or an equivalent in money, or in similar contributions by itself. If this bo not its practical effect, it is mero brutum fulmen, and may always be evaded by exactions made in the false semblance of taxation.”

See also the case of Sutton’s Heirs v. City of Louisville, 5th Dana’s Reports, 28.

The extreme difficulty of approaching aa equality in the distribution of the burthens of taxation is obvious to the most seperficiai observer, nor is its'solution rendered more easy by the progress of the science of political economy- The various, complicated and hidden sources of wealth, and the different opinions of economists as to the operation of any one tax or impost, show the obstacles which would attend any judicial enquiry as to the aiiproximation to equality in a system of taxation. Federalist, No. 21. 2 Story, on Const. § 994 et seq. Debates in Convention of Louisiana, p. 802 ei seq. In the case before us, to use the language of Chief Justice Marshall, “we are not driven to the perplexing enquiry, so unfit for the judicial department, what degree of taxation is the legitimate use, and what degree may amount to the abuse of the power.” M’Culloch v. State of Maryland, 4 Wheaton, 430. In conclusion it may not be out of plaee to state that, as the guardians of the rights and property of citizens, we should fail-in our duty if we were to forbear to exercise our power on any proper occasion te protect them from spoliation; at the same time it must be confined to its constitutional limits, and to those cases in which its authority cannot be questioned, and its action will consequently be- effectual.

As this, court held in the case of The Second Municipality v. Morgan, 1 Ann. R. 111, in which a citizen was relieved against the enforcement of fin illegal municipal exaction, the form of taxation presents no impediment to the ac tion of the judiciary in any violation of common right, and the wrong which it endeavors to cover .will be as fully redressed, as in cases of a direct and palpable Unlawful appropriation of private property. That in both cases the citizen has a right to claim judicial protection, and that no judge can -withhold it, is equally supported by authority and the sound principles of the social compact.

M'Culloch v. The State of Maryland, 4 Wheaton, 427. Bussey v. Gilmore, 3 Greenleaf, 191. Nance v. Howard, Breese’s Rep. 183. 3 Howard, 133, 151, 212, 720. 3 Dallas, 171. 5 Wheaton, 317. Second Municipality v. Morgan, 1 Annual Rep. 111. Apthorp v. Portland Bank, 12 Massachusetts, 262.

Judgment affirmed.


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    Youngblood v. Dodd.
    Improper behaviour on the part of an overseer, in the use'of abusive language and threats of violence towards others in the service of his employer, will authorize his immediate discharge, without rendering his employer liable for his wages for the whole term for which he was engaged.
    Appeal from the District Court of Iberville, Nicholls, .1.

      Talbot, for the plaintiff,
    cited Civ. Code, arts. 2719, 2720. Nolan V. Banks, 1 Rob. 332.

      JSdwards and Labauve, for the appellant,
    cited Civ. Code, arts. 271-9 to 2721. 3 La. 299.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff alleges that he engaged his services to the defendant, as overseer, at the salary of $800 a year, and entered upon the discharge of his duties on the first day of January, 1846; that, on the 8thof February following, he was discharged, without cause, by the son and acting agent of the defendant, and that he is entitled and claims to be paid for the whole year. The answer denies every allegation in the petition, and prays that the plaintiff be put to strict proof. The court below gave judgment in favor of the plaintiff for the sum claimed, and the defendant appealed.

We think there is error in the judgment. It appears by the plaintiff’s own declaration that he sent to the defendant’s house for a riding horse, which was refused him, and that, upon that refusal, he went to the acting agent of the defendant, used abusive language to him, and threatened him with corporeal chastisement if he meddled with his business.

The court below seems to have been of opinion that the declarations must be taken together-, and that the plaintiff had the right to chastise those who meddled with his business. We incline to a different opinion; but, if the law should be, as supposed by the judge, it was no part of the plaintiff’s business to use the ridiug horses of his employer against his will, and he has shown no justification for the threats he made. He avers in his petition the capacity of the person who discharged him, and we consider his outrageous conduct to that person a sufficient cause.

In the case of Conrey v. Brandegee, ante, p. 132, we held that honeste muere formed part of the contract of agency, and that threats of personal violence by either party justified the other in withdrawing from it, under a full reservation of his rights. -That decision settles this case; and the claim of the plaintiff must be limited to compensation for the time be actually served, at the rate of $800 per annum. This compensation the defendant is -willing to allow-

^ "1S therefore ordered that the judgment in this case be reversed, and that there be judgment for the plaintiff for the sum of $84 50, with legal interest from judicial demand, and the costs of the District Court; those of this appeal to be paid by the plaintiff and appellee.