New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-04-14
COURT RECORD.
MONDAY, APRIL ID, 1874.
Supreme Court.

| supreme COuTts
Adjourned to Monday. April 90
Superior District Court.
State VS.. Charles Clinton ct al.-New Or
deans Gas Company, intervenor, alleges ap
preparation to pay gas bills is Just account
| Tor legitimate expenses.
Charles Morgan, intervenor, alleges ap
preparation of $l270 60, for transportation
OF soldiers, was necessary and legitimate
| expense
A. L. D. Conrad ct ais. vs. Citizens Bank
| Petitioners allege deposit made Septem
Der II, 1868, of S767S 80, by their father
which the bank refuses to pay, and pray
judgment for the amount.
Fourth District Court.
Astor kissem ct ais. vs. j. H. Polhaus e.
| Co.-JudgmeEt for plaintiff Reconven.
| tionai demand of defendant dismissed.
Fifth District Court.
Judge Cullom rendered the following de-
ci-ion:
I John Marcadal VS.. George Crena.-The
| plaintiff IS judgmen. creditor Of the de-
| PENDANT. and his vendor of certain property
which he caused to be seized and sold to
satisfy his vendors privilege. The property
was sold by the civil sheriff, who on &C
| count of these proceedings, was prevented
from paying over the proceeds OF the sale.
The intervenors admit by their intervention
for the purpose OF sharing in the distribu-
| ton of the proceeds of the sale the legality
| thereof. On the nineteenth of January.
| 1874, L. Nerges fled third opposition,
claiming $40 80 for salary as barkeeper
| and servant in coieehouse No. s CarondeIet
street. the proceeds of sale of the contents
of which constituting the fund now sought
| to be distributed. On the fourth of Janu.
airy John Zopf filed third opposition.
| claiming Si24 30 tor services as Darkeeper
| in said cofeehouse. He claims a privilege
| therefor, and exhibits certificate of Oar
| cantel, deputy recorder, showing that on
| the twentienth Of January, 1874, he caused
his privilege to be recorded. On the twenty
sixth Of March Mrs. Widow E. Stouse also
fled a third opposition, claiming Sll75 for
rent due, and asking for recognition of
her privilege. These oppositions are an
swered IN the negative. The proof in the
cases CT Zoph and Verges is com
plete. while IL that of Mrs. Stouse
opposition was mace 10 the writ
ten contract of lease, OF the ground
that it had not been stamped according to
law. With regard to the privilege OF Verges,
lind i, good and valid, but ranking second
to that OF the Selling creditor. John Zopti's
claim can not DE allowed as privilege,
for, although his services as barkeeper
were employed by the sheriff during the
litigation of plaintiff, it is also shown that
a keeper was also employed. The latter,
under the law, was in possession, and the
sheriff, although probably promoting the
best interests of the plaintiff and defendant
thereby, had 10 legal authority to employ
clerks or barkeepers to carry on the BUSH
ness. His prescribed duty was to seize the
effects and place keeper in charge of them.
This claim must therefore be rejected
Tie lessor, being called upon to declare
whether lie relied upon a written or a verbal
lease, offered written contract in evidence.
1t was objected to on the ground that it had
not been stamped according TO the require.
ments of the United States revenue stamp
act. At the time of its execution stamp
of five cents had been placed upon it, and
on or about Monday, March 80, 1874, other
stamps had been placed upon it by the les
sors clerk, and without the agency of the
United States commissioner. The stamp
act requires that On all written contracts of
lease OF lands and tenements where the
amount stipulated exceeds $500, there
shall. De affixed "a stamp cf fifty
cents. and tor every additional $500,
or fraction in excess. fifty cents. So
that the stamp on the lease in question
should have been So. have examined all
the authorities 20 which have been re-
ierred. but can find none that relieves the
embarrassment which the failure Of the
lessor TO atiix the prescribed amount of
stamps has given rise to. Aware that the
sldHt dCl VI tLo y I!ltu States Ol ulV l.,
1862, was in many respects similar to and
in very great degree identical with that
OF England, have examined some OF the
decisions OF the courts of that government,
believing them TO be the ablest and most
comprehensive TO be met with. and have
found nothing that would authorize me to
receive the lessons contrac: Of lease in evil
dence. In Owen vs. Thomas, 3 Mylne &
heen's Reports, p. 3j3, 1t was held an agree
ma m hGf rrGn N l1ptInc in,
an instrument offered in evidence withou.
beng first duly stamped, would not be re-
celved, and that such an agreement would
amount TO conspiracy to defraud the
revenue. In Abraham vs. Dubois, Camp,
269. il was said that conduct tending to
evade the stamp act, SO as to deprive .he
government OF the revenues under it, is a
very serious otfense. The case of Rex vs.
the inhabitants of Preston, reported at page
l0-S, il } Barnwell & Alderson's English
Commercial Law Reports. the court held
that where an instrument is not required by
law 10 be stamped within a particular
tine after its execution, the court,
upon is being offered in evidence,
viii not inquire when the stamp
was affixed. nor, If a penalty was incurred,
whether tie proper penalty was pai,. in the
stamping.
The resemblance of that case to this is
scarcely discernable, and yet it is the near
est approximation to it have been able TO
find.
As late as May, :. d. 1870, there was
some conrrariety of opinion among the
judges OF our own Supreme Court as to the
constltutlonality of the present stamp act.
Chief Justice Ludeling minated very
strongly that, had the cOnstitutionality of |
the act been raised by the pleadings he |
would have dissented from the opinion |
read by the majority of his associates. hile |
Justice WHY did read a dissenting opinion, |
and boldly, and, l think, correctly asserted |
the doctrine that there is no authority in |
Congress to place this restriction upon the |
State courts" But the court. nevertheless.
held that 'the failure of a litigant topiace [
the required internal revenue stamps on
petition and affidavit in an attachment suit |
under the act of Congress of 1861, or to
have the documents stamped las required by |
the collector of the district, will work the \
nullity Of the proceedings" This doctrine
has since been applied to documents offered |
IA evidence, and the question seems settled
IN Louisiana that Congress may
what shall be considered
evidence in State court. If it were
any longer open for discussion. my convic.
lion OF its unsoundness and of its incom.
with the fundamental principles
u our government would constrain me to
hesitate before giving it the sanction OF my
udicia! opinion. Aug. Mahon, Vincent
6atalera and Emile Martin failed to estab-
ish their claims, while L. Huidobre. Jones |
Thomas, Emile Pelletier and Fileul did
prove the correctness of theirs. All these
:laims are inferior in rank to that Of the
elzure creditor. The judgment OF the
'ourt must be one of non suit as to the
lain OF Mrs. Stouse, recognizing that of |
|ohn Zopt. with costs, with privilege sec
nd to that Of Marcadal. and rejecting that
II l.. terges, with costs. as against the pro-
eeds of the sG.le, because il was never re-
orded. There must be Judgment against
Aug. Mahon, Vincent Batalera and Z. Mar