State vs. Gunter. trial, with a view to ascertaining whether or not that court has ruled correctly as to matters of law based upon the facts proved. As, for instance, in regard to the competency of jurors or witnesses, or the propriety of challenges to jurors. The case at bar is a novel one, and while the judge is doubtless right in saying that evidence in criminal cases is not required to be taken down in writing as in civil cases, it is to be regretted that, as he thought proper to hear evidence in support of the motion for new trial, we are not afforded, by a statement of the facts upon which he ruled, to consider how far he ruled correctly. The better practice is to append to the motion for new trial evidence in the shape of supporting affidavits which come up with the motion itself; otherwise, it is only by bills of exception that the facts upon which the court below ruled in incidental matters in criminal cases come before us. The bill under consideration does not present the evidence referred to, and we are therefore unable to pass upon or consider it, and thus to afford the accused the benefit of this bill of exception. The motion for new trial itself is based upon the discovery since the trial of important and material evidence, first, affecting the competency of one of the jurors who tried the case, and contradicting his statements when sworn on his voir dire; and, second, in regard to statements made prior to the trial by the principal witnesses for the State, in regard to the material facts and their means of knowledge of them, directly contradicting their evidence as given on the trial. Next, upon the ground of alleged misconduct of the district attorney, in giving to the jury and permitting them to take with them to their room, without the knowledge or consent of the counsel for the accused or of the court, and specially inviting the attention of the jury to certain law books with passages marked, with a view of influencing their verdict; matters which were not known to the accused till some time after the jury had retired to their room. Misconduct on the part of the jury, based upon the same matter, is also alleged. The motion for new trial further sets forth the fact that the judge gave certain charges to the jury alleged to be erroneous, which are stated in and as part of the motion; and also the general ground that the verdict is contrary to the law and the evidence. None of the grounds for new trial are presented for our consideration by bills of exception. If the district attorney did so hand law books with marked passages to the jury for use in their room, it was extremely irregular and improper, no matter how intended. We are, therefore, compelled to remind counsel that the charge of the court, whether in a criminal or civil case, can not be proved by witnesses, much less by the affidavit of the accused for new trial, but can only be brought before this court for review through a bill of exceptions-see 8 R. 529, State vs. Gunter. and 571; 10 M. 66; State vs. McClanahan, 9 An. 210-and that facts appearing as one of the grounds in a motion for new trial will not supply the place of a bill of exceptions. See State vs. Romero, 5 An. 24. The counsel should have taken a bill stating the facts of the conduct on the part of the district attorney and the jury complained of. Without it, they are not properly before us, and we can not assume, without bills of exception, either the existence of those facts, or that the court gave the charges complained of. It is, therefore, unnecessary, as it would be improper, for us to pass upon their correctness or incorrectness. Our attention has been invited to a statement contained in the certificate of the clerk at the close of the transcript, that the evidence of certain witnesses taken on a preliminary trial of the accused, and which was offered in evidence on the trial in the court below, was handed to the jury by order of the court and never returned by them. This statement is made as a reason for not including this written evidence in the transcript. It was neither necessary nor proper that it should be so included, and no bill of exceptions was taken to its being handed to the jury on their retirement, so that the principles just referred to in regard to statements of fact in the motion for new trial apply equally to this also. We will, however, take occasion, in this connection, to remark that if such a thing was done, it is, to say the least, unusual, and that we are not prepared to apply to such a state of facts as that presented by the clerk's statement the principle which, under the peculiar circumstances of that case, seems to have been announced in the State vs. Bradley, 6 An. 556, where the jury improperly took with them to their room a paper offered in evidence, especially as the court then immediately instructed the jury to disregard it. Such partial reminder of the facts of cases out of the presence of court or counsel would be extremely dangerous, especially as juries are now constituted. While, however, we have applied the principles of well settled law to the various matters reviewed and discussed by us in detail, on the whole case, we are not left without an impression of the possibility that there may have been irregularities calculated to influence the result of the trial unfavorably to the accused, and that his counsel may have mis taken the manner of presenting them for the consideration of this court. As, therefore, less injury would be done to the State by our granting another trial than, possibly, to the accused by refusing it, and as this court has held new trials may sometimes be granted though no precedent exist for them, It is ordered that the verdict and sentence appealed from be and they are avoided and set aside, and the case remanded to be proceeded with according to law. City of New Orleans vs. Davidson. No. 5956. THE CITY OF NEW ORLEANS VS. JOHN DAVIDSON ET AL. A debt due to a municipal corporation for taxes, can not be offset, or compensated, by any debt due by the corporation. Thus the tax due for one year, can not be compensated by an overpayment of taxes made by the debtor the year previous. ·A' PPEAL from the Superior District Court, parish of Orleans. Hawkins, J. Sam. P. Blanc for plaintiff and appellee. Ogden & Hill for defendants and appellants. The opinion of the court was delivered by MANNING, C. J. Several suits of the City of New Orleans against delinquent taxpayers are here cumulated without objection. The collection of the taxes of 1874 was resisted on various grounds, of which one only is now insisted on: viz that each defendant is entitled to offset any tax which he may owe the City, by the sum he paid to its tax collectors for taxes of 1870 in excess of two per centum on the assessed value of his property. of two and three The act of March In 1870 the City assessed and collected a tax eighths per cent, on the assessed value of property. 16, 1870 restricted cities and municipal corporations from levying any tax for any purpose exceeding two per centum on that value. Acts 1870, ex. sess. p. 130. The defendant paid the whole assessed tax of 1870, and therefore, as they allege, paid three eighths of one per cent. more than the City should have demanded. In these cases, this excess amounted to $1,641.36. The defendants plead that sum in compensa tion of the taxes of 1874. A tax is not a debt in the usual and ordinary sense of that word. It is not a contract between two parties, but the imposition of a tax is the positive act of the government, binding upon the inhabitants, and does not require their individual or personal consent to enable it to be enforced. Taxes are not demands against which a set-off is admissible, says Cooley. Taxation, 13 and authorities cited in note. They are to be regarded not as a debt, but as a contribution required from the citizen for the support of government. Union Co. v. Bordelon, 7 Annual, 192. Considerations of public policy require that a tax of one year should not be compensated by an overpayment of a previous year. The taxes of each year are laid to meet the exigencies of that year. If they could be reduced by a deduction of such sums as had been already wrongfully demanded and paid, the revenues requisite for the support of government might be diminished so largely as to occasion public City of New Orleans vs. Davidson. detriment. But outside of this public policy, as a matter of law, taxes are not such demands as admit of a plea in compensation. This does not of course touch the question of the right of the property owner, who has paid to the City a tax illegally exacted of him, to sue for such sum as was wrongfully paid. We are here concerned only with his alleged right to compel the City to compensate her tax of one year by an overpayment of a previous year, and this is condemned both by law and public policy. Judgments affirmed. No. 7009. MRS. CAROLINE FORRESTER ET AL. VS. MOSES MANN. The declaration made by a wife and her husband in a written contract that a certain plantation was her property, is not invalidated by the fact that she was a married woman. Contracts made by a married woman personally, or by her authorized agent, for sup plies and overseer's wages for the benefit of her separate plantation are, if re corded, binding on the crops grown on the plantation that year. One who has formed a valid contract can not claim a release from its obligations. on account of an error of judgment, or ignorance of the law regulating the rights and obligations of married women, in this State, when it appears that he had another motive for making the contract, besides the error of law, and ne fraud, or bad faith is shown on either side. A PPEAL from the Seventh Judicial District Court, parish of West Wickliffe & Fisher for plaintiffs and appellants. W. W. Leake for defendant and appellee. The opinion of the court was delivered by EGAN, J. W. W. Forrester was employed and acted as overseer on the plantation of Mrs. Richardson in the year 1875 at a salary of one thousand dollars. He also sold to her agent, Smith, for the use of the place the same year certain necessary supplies of corn, fodder, seed cane, etc., amounting to $3639. Both contracts were in writing, and recorded regularly, and the amounts were stipulated to be paid as privi leged charges out of the crops of the year. A few days before they became due Forrester transferred these claims to the defendant Mann in consideration of a mortgage note of Smith for $2500, besides interest accrued and to accrue, and $1840, which Mann undertook and agreed t pay him by the first of January, 1876. Mann, who was a merchant, also advanced to Mrs. Richardson for the use of the place that year to the amount of several thousand dollars under contract with the same agent Smith, who it seems managed every thing connected with the plantation, Forrester vs. Mann. crops, etc., and made, and was fully authorized to make, all contracts and to enter into all obligations in relation to it by virtue of a written power of attorney containing the fullest and most minute general and special powers which could be conferred under the law. Mann received and sold the crops of the year and applied the proceeds to the payment of his account, which was kept in the name of Smith, agent, leaving a balance due him of only $195 75. In this account was included a charge of $1000 for the wages of Forrester as overseer. It appears, and is admitted, that Mann paid to Forrester $918 77 of the $1840 agreed to be paid by the written contract between them evidencing the transfer of Forrester's privileged claims against Mrs. Richardson and the crops raised on her plantation in 1875, to obtain the undivided and undisputed control of which seems to have been his object in purchasing those claims from Forrester. There is some evidence that the latter threatened to seize the crops, unless he was paid, and it is not unreasonable or improbable to suppose that he would have done so but for the agreement with Mann. Mann denies his knowledge of these threats, or that they were made to him, but we do not consider that fact very material. Forrester is dead, and Mann alone is left to testify as to the motives of their agreement. We think, however, they sufficiently appear from the attendant circumstances, and that they were that Mann might without molestation or hindrance control all the crops of the year. The plaintiffs, widow and heirs of Forrester, sued to recove rthe balance due by Mann under that contract, which is shown by the accounts of Mann himself rendered to Forrester, who also dealt with him, to be $921 23. The defendant sets up error and failure of consideration, and a reconventional demand of $2400 on account of the note of Smith transferred to and alleged by him to have been collected by Forrester and moneys paid to him under the contract. The error and want of consideration are based upon the alleged fact that Mrs. Richardson was a married woman at the time the contract for overseer's wages and the purchase of supplies from him was entered into by Smith as her agent; that the plantation did not belong to her; that the agent had no authority to bind her, and that the consideration did not inure to her benefit. It is further set up that defendant had sued her on the claim for supplies furnished by Forrester, and judgment was rendered against him whereby the obligations of warranty in the transfer became exigible from the latter and his heirs. The fullest possible authority, as we have already remarked, was vested in Smith by a written power of attorney executed by Mrs. Richardson with the authorization of her husband with especial reference also to the making just such purchases and contracts. In this power of attorney, which relates specially to the management and control of the plantation, crops, etc., it is recited that Mrs. Richardson had |