Moreau v. Duncan

1 Mart. 99

• Court: Supreme Court of Louisiana
• Decided: July 1, 1810
• Status: Published

Opinion

Lewis, J.

The plaintiff ought to recover, for he is liable for the tax. He ought to receive it at the time the process issues. It would be inconvenient and unsafe to wait till the determination of the suit to exact it from the party cast, who might not be able to pay it.

The defendant having obtained the process on the issuing of which the tax was demandable ought then to have paid the tax, and if the plaintiff has indulged him, a suit may now be maintained.

Martin, J.

It certainly would have been the best way to render this imposition productive, and the collection of it easy, to have required the payment of the tax, at the inception of the suit. But the Legislature having provided, at the time they imposed the tax, that it should be deducted out of a certain fee, to be taxed by the Judge and paid by the party cast, has certainly postponed the collection of it to the conclusion of the suit.

The tax being expressly required to be paid out of the fee taxed for the attorney of the successful party, it appears to me the fisc cannot expect any tax in cases in which no attorney’s fee is taxed, or where the successful party has appeared in propria persona, in cases in which the object dispute is less than $100, or in cases in which the party cast, is not able to pay.

I consider this as an imposition, on attorney’s taxed fees paid by the party cast, which is not to be advanced or insured by the person who brings the suit, nor his attorney.