Davenport's Heirs v. Fortier et al. IV, N. S. 72.

THIRD District.

A bill of exceptions left unexamined, it having been rendered. unimportant by subsequent circumstances.

Flower et al. v. Arnaud. IV, N. S. 73.

A debtor, the claim on whom has been seized and sold, may retain against the purchaser whatever he might retain against his creditor before the sale.

The treasurer may withhold from a person, to whom the legislature has made an allowance, the amount of his taxes, for which the collector has reported him as a defaulter to the treasurer.

PARISH Court of New Orleans.

MARTIN, J., delivered the opinion of the court.

On the dissolution of the injunction, in this court, in the suit of Flower et al. v. Livingston, 2 N. S. 514, the plaintiffs took out an alias fieri facias, which was levied on "the right of the defendant to the sum of 800 dollars, which may now be, or hereafter may become due, by the state, &c., being part of a greater sum allowed him, by an act to fix the compensation to be allowed to the jurisconsults, appointed to revise and amend the Civil Code, &c. The plaintiffs became the last bidders for this right, at the sheriff's sale, and brought suit against the defendant, the treasurer of the state, who had refused to pay.

The answer denied the right of the courts of justice to seize moneys to be paid by him to individuals, and averred that he had paid out, and accounted for, all moneys due by the state to Livingston. That the sum appropriated to his payment was 4000 dollars, the payment of 800 dollars of which was deferred by law, till after the completion of the Code of Commerce. Leaving only 3200 dollars, now due, and of which 2000 dollars had been paid to Workman, on Livings

[Flower et al. v. Arnaud.]

ton's order, 379 dollars and 92 cents were due to the state for taxes, and an execution had issued to the sheriff, of the parish of Orleans therefor; 46 dollars and 12 cents for parish taxes; 344 dollars and 5 cents were due for taxes on Livingston's land, in the parish of Washita, for the years 1820, 1821, and 1822, and execution had issued therefor; 429 dollars and 91 cents had been paid (as the balance due) to the plaintiffs.

The parish judge allowed to the plaintiffs judgment for 46 dollars and 12 cents, and they appealed.

It seems the parish judge allowed all the items stated by the defendant, except the parish tax, which was not due to the state.

The sum paid to Workman is admitted to have been correctly paid.

The only difficulty is, as to the amount of Livingston's state taxes, for which execution was in the hands of the sheriffs of the parishes of Orleans and Washita.

We think that the treasurer had a right to detain from the present plaintiffs, the purchasers of Livingston's right, all which he might retain from the latter. It is clear, that if Livingston had called for the payment of the sum allowed him, the treasurer would have had the right of retaining those arrearages of taxes, the collection of which, it is the treasurer's duty to make, and the amount of taxes stated, is only that of those taxes, for which Livingston was reported as a delinquent, by the collectors, to the treasurer, in order that he might proceed to enforce payment.

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

Christy, for the plaintiffs.

Preston, for the defendant.

Pilié v. Dreux's Syndics. IV, N. S. 75.

Freret v. Same. IV, N. S. 76.

FIRST District.

Same point as in Saulet v. Dreux's Syndics, 3 N. S. 615.

Williams et al. v. Spencer et al. IV, N. S. 77.

If a case, which ought to have been brought in the district court, is brought in the court of probates, where it is dismissed for want of jurisdiction, the district court, in affirming the judgment of the court of probates cannot pass on the merits of the case.

THIRD District.

MARTIN, J., delivered the opinion of the court.

This suit originated in the court of probates of East Feliciana, and the object of it was the partition of the estate of Rebecca Horton, the ancestor of all the parties. But the petition states, that the estate, consisting of real and personal property, is claimed by the defendants, under a written conveyance, which the plaintiffs allege was entered into without any consideration.

The answer denies the jurisdiction of the court of probates, and avers title in the defendants.

The court of probates sustained the plea to its jurisdiction, and dismissed the petition. The plaintiffs appealed to the district court, which affirmed the judgment, and they appealed to this court.

They rely on the act of the legislature of 1820, p. 92, and contend that after the affirming the judgment of the court of probates (if it was rightfully affirmed) the district court being seised of the case, ought to have passed on it, on the merits.

According to the plaintiff's own showing, the question, on which this case turns, is the insufficiency of the title under which the defendants claim. The title is the thing in dispute. The case was not, therefore, within the jurisdiction of the court of probates.

On the appeal, the district court was first to determine whether the judgment of the court of probates was correct, and if it appeared so, to affirm.

We do not think that in any case the appellate court can give any other judgment than the judge a quo could and ought to have given.

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

Watts and Lobdell, for the plaintiffs.

Wickner v. Croghan. IV, N. S. 79.

A payment when not applied by the payor, must be imputed to the debt he had the greatest interest to discharge.

FIRST District.

MARTIN, J., delivered the opinion of the court.

The plaintiff states she sold the defendant a tract of land in April, 1818, for 8000 dollars, payable one-half on the 1st of January following, and one-half one year thereafter; and, in February, 1819, she sold him another tract, for 18,000 dollars, payable by equal instalments, in March, 1820 and 1821; that the defendant, at various periods, paid several sums, amounting in the aggregate to 20,641 dollars and 42 cents, with interest thereon down to April 4, 1823, when the parties came to a settlement, in which they agreed that 5358 dollars remained due, for which she received two promissory notes, bearing interest at ten per cent. per year, which remain unpaid.

On this she procured a writ of seizure and sale, on the first tract, for the price of which she had retained a special mortgage.

On motion of the defendant, she was ruled to show cause why the order should not be set aside; neither of the notes being shown to refer to the price of the tract. The rule was discharged and the plaintiff appealed.

We think the court erred. The payment of the price of the first tract was secured by a mortgage; that of the second was not.

The payments made by the defendant, must be first imputed to the first debt, as the one which he had the greatest interest to discharge, i. e., that which was the most burthensome, being secured by mortgage, which was also the oldest. Civil Code, 290, art. 196.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and that the rule obtained by the defendant against the plaintiff be made absolute; and it is further ordered, that she pay costs in both courts.

Cuvillier, for the plaintiff.

Pierce, for the defendant.

Poutz v. Louisiana State Insurance Company.
IV, N. S. 80.

The march of French troops into Spain in 1823, was an act of war of France against Spain.

FIRST District.

PORTER, J., delivered the opinion of the court.

The petitioner insured with the defendants a quantity of merchandise, on board the ship Adele, bound for Havre, on a premium of twelve per cent., on their estimated value, but subject to the condition that the insurers should return ten per cent., in case no act of war took place between France and Spain during the voyage.

The vessel reached Havre, the 17th of April, 1823, and on the sth of the same month the French armies entered Spain.

The judge of the court of the first instance, decided in favor of the defendants. The petitioner appealed.

We are at a loss to conceive on what grounds it was expected this action could be maintained.

The policy of insurance does not make the return of a part of the premium depend on a declaration of war, but an act of war. The invasion of Spain by the French armies was most emphatically the latter. Its object was not merely to make war in the ordinary acceptation of the term, but to overthrow the government of the country. It was war against the constitutional and legitimate government of Spain, and it must have been in relation to that government the parties contracted. They did not intend to make their policy of insurance depend on the question who possessed de jure the sovereign authority of that country. Nor is it a question courts of justice can decide. They can only look to the government, which is recognised by their own. That established in Spain, at the period of the invasion by the French, was considered by the government of the United States, as representing the nation. An invasion, to destroy that government, must be considered an act of war against the state it represented; nor can it change the character of the act, that the French were secretly invited by the king to destroy the liberties of his country, and restore him to absolute power; until they succeeded, they were making war against the nation, because they were making war against the authorities constituted by that nation, and which authorities formed, at that time, its government. Had the patriots of Spain succeeded in repelling that invasion, and maintained the form of