text:
    No. 69.
    J. W. Stallcup vs. J. L. Pyron.
    Registry of an aot of sal© under private signature, íb sufficient notice to third persons, of the mutation of title, without proof of the signatures of the parties to the act. Distinction between the effect of registry of an act of sale, as to notice, and the effect of the act itself as proof of title. Previous Decisions affirmed.
    APPEAL from the First Judicial District Court, parish of Caddo. Taylor, J. ■ •

      Alexander & Blanchard for Plaintiff and Appellant:
    Rirst — Petitory action. Plaintiff claims under public act executed January 15th, 1881, recorded January 25th, 1881
    Second — Defendant claims under private act, dated December 2d, .1879, recorded (by copying in conveyance booh) Sept. 15th, 1880, without any acknowledgment or proof whatever of its execution.
    Third — Plaintiff in good faith; no knowledge of defendant’s title, or the pretended registry thereof, or his possession of the land.
    Rourth — The means of obtaining knowledge not equivalent to actual knowledge. Parties presumed to b&iu good faith, until the contrary is shown. 7 A. 3.
    Rjfth — Sale of immovables under private signature have effect against creditors and third persons in general only from day such sale is registered according to law, and the actual delivery of the thing sold. O. O. 2442, 2246.
    Sixth — Registry of private act of sale without effect, unless previous to its being recorded it was acknowledged by the party, or proved by the oath of one of the witnesses, and such acknowledgment or proof recorded with the instrument. C. C. 2253 ; 28 An. 725; 16 L* 443, 454; 9 An. 154; 6 An. 171; 4 R. 335.
    Seventh — Plaintiff’s title superior, because must be held older in point of registry.

      Land & Land for Defendant and Appellee:
    Rirst — If an act of sale under private signature is recorded in the proper office, the question whether it was recorded on sufficient proof is immaterial so far as concerns the question of notice to the public. 9 An. 547; 10 An. 502; 11 An. 533; 25 An. Ill; 28 An. 725.
    Second — Defendant’s title being prior in registry, must prevail.
   The opinion of the Court was delivered by

Poché, J.

This is a petitory action in which both parties claim title to the same property, derived from a common author.

Plaintiff rests his title on a sale from Fanny Festervant, by authentic act under date 'of January 5,1881, recorded on the 25th of the same month and year.

Defendant claims under a sale under private signature from the same person, bearing date of December 2d, 1879, recorded on September 15th, 1880, but not proved by any of the attesting witnesses until the 12th of February, 1881.

The judgment of the District Court was in favor of defendant, and plaintiff appeals.

He contends that, although his sale was posterior in date to that of defendant, his title is the best, for the reason that defendant’s sale ¡under private signature, was inscribed without proof of the signatures of the parties thereto, as required by Art. 2253 of our Civil Code, and contends that the registry of defendant’s title, as made, was absolutely without effect as to third parties.

The record shows that, at the time of his purchase, defendant was already in possession of the lands in controversy under a homestead «entry made by him under the laws of the United States, in March, 1878, hut which had been subsequently cancelled as erroneous, and that his possession has since co'ntinued. The issue under the pleadings is thus narrowed down to the effect, as to third parties, of the registry of defendant’s sale effected as above set forth.

It is elementary that, between the parties to the act, defendant’s sale without registry was translative of title, and was a perfect convey- ' anee, and that registry in the proper office was the only element wanting to render it binding on third parties, and on the world. The object of registry is notice, and we hold, as settled, that notice is given by the registry of a sale under private signature, even without proof of the signatures of the parties thereto, as required by Art. 2253.

A broad distinction exists and must be made in law, between the effect of registry of an act of sale, as to notice, and the effect of such an act as proof of title. And, in this connection, it is to be noted that, in the Code of 1825, Art. 2250, which is Art. 2253 of our present Code, is to be found under the head of “ Copies of Titles.” The rule is, that an act of sale under private signature, recorded in the conveyance office, even without proof of the signatures of the parties to the act, is sufficient to give notice, which is the only object of registry; but that such an act, thus registered, could not be used as evidence of the title which it purports to transfer, adversely to third parties, without proof of such signatures. To illustrate, if, at the time of the trial of this case; no proof had ever been given of the signatures of the parties at or preceding the registry, as prescribed in Art. 2253, and if the attesting witnesses and the parties to the act had been dead, or no proof as required by the article, could have been offered on the trial, of the signatures to the act, then, and in that case, the act would have had no effect as to plaintiff, and would not have been evidence adversely to him of the title set up in the case at bar. This shows the distinction to be made between the sufficiency of the proof for registry as to notice, and. the proof of acts of sale under private signature, as controlled by the rules of evidence.

These views are not in the least in conflict, but are, on the contrary, in perfect harmony with the textual provisions of the Code, and are in keeping with numerous adjudications of this Court on that point.

In 9 An. 154, Kittredge vs. Hebert, one of the very decisions cited by plaintiff, the doctrine which we are seeking to enforce, is clearly recognized, and the same doctrine was still more emphatically sanctioned in the ease of Hampton vs. Morgan, page 547 of the same volume, where the Court held: “ If the recorder of conveyances does put a sale under private signature on the record, the question whether he does so or not on sufficient proof, is immaterial so far as concerns the question of notice to the public. It has been so held in case of registry of mortgages by private writing, and we are aware of no legislation excluding registries of conveyances from the same equitable doctrine. The object of registry, both of sales and mortgages, is notice to the public; and this object is fulfilled no matter whether the proof on which the recorder acts is formal or informal.”

Plaintiff argues, however, that the court had fallen, in the case cited, into the error of confounding the law which governs the registry of acts of sale with that regulating the inscription of mortgages. We are clear that the court committed no such error, and that the language used has exclusive reference to the effect of such registry as notice, and not as to the question of the effect of such acts thus registered, as a question of evidence or proof of title.

The fallacy is on the part of plaintiff himself, who -fails to recognize the distinction which is so clear, and which has been consistently and persistently recognized and enforced in numerous decisions of our predecessors. Oakey vs. Corry, 10 An. 502; Boykin vs. Wright, 11 An. 533; Pierce vs. Clark, 25 An. 111; Fairthorn vs. Davis, 28 An. 725; Dyke vs. Dyer, 14 An. 701.

Plaintiff calls our attention to his bill of exceptions from the judge’s ruling on the admission in evidence of defendant’s act of sale, to which he objected on the ground that said act had no effect against him but • from the day of its registry, and that as to plaintiff, that act had no effect before the date of the proof of its execution. The very language used by plaintiff shows that his objection went to the effect and not to the admissibility of the document, and that the judge’s ruling was correct. The same objection was urged and the same ruling made in the case -oited above from 9 An. 154.

The judgment of the lower court is, therefore, affirmed at appellant’s costs.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 79.
    The State of Louisiana vs. Wade Hampton.
    *Wlien an attempt is made to discredit a -witness by showing that be made a contradictory statement on a previous occasion, it is not sacramental that the exact time of the alleged contradictory statement should be designated; it is enough that sufficient reference be made to the circumstances that attended the statement, and to the statement itself, so as to place the witness fully on his guard. School Board vs. Trimble, cwitepage 1073.
    APPEAL from the Sixth Judicial District Court, parish of Morehouse. Brigham, J.
    The District Attorney, for the State, Appellee.

      Newton & Hall for Defendant and Appellant.
   The opinion of-the Court was delivered by

Poché, J.

The motion to dismiss this appeal on the ground that the transcript was filed too late cannot prevail. In the order of appeal the return day was fixed for the 13th of October, 1881, aDd the transcript was filed on the 17th of the same month ; the Court not sitting on Sunday, the 16th, three judicial days had, therefore, not elapsed since the return day.

On the Merits.

The accused appeals from a conviction for larceny, and complains, in a bill of exceptions, of the error of the judge in allowing the State to introduce testimony for the purpose of contradicting one of his witnesses, by showing that said witness .had made previous statements contradictory to what he had said on the trial, without laying the proper foundation for such testimony. Witness for the accused was asked the following question by the district attorney: “ Did you or not tell James McGowan, the prosecuting witness in this case, at his gate, that the hogs found in the hog pen belonging to accused would have been killed during the night that they were turned out of said pen by McGowan ? ” The witness having denied making such a statement, the State then offered to prove by McGowan that the witness had made the statement referred to. Counsel for accused objected, on the ground that proper legal foundation had not been laid for the admission of such testimony» the object of which was to impeach and contradict his said witness, and he reserved his bill to the adverse ruling of the District Judge.

The rule governing this kind of evidence, as laid down by the very authorities < uoted by counsel, requires that the introduction of such testimony ust be preceded by a proper foundation, calculated to protect the witnes. sought to be contradicted against an unjust surprise, and to give him a fair and reasonable opportunity to explain his previous statements anti o reconcile them, if he can, with his subsequent statements mad cn-O- trial of the case.

To that end, he must first be questioned touching his previous statements, to which his mind must be directed with certainty, by a detail of circumstances calculated to recall to his mind the particular statements or conversation which are referred to.

In this case, the question propounded to him refers him to a particular statement which he is charged to have previously made to a person properly described and designated with great certainty, at a particular place specifically described, and touching a subject minutely detailed.

As acknowledged by counsel, the only missing link in the question is the time at which the alleged statement was made. And we do not understand that that element is sacramental under the rule, when the witness is otherwise fully informed and cautioned by circumstances sufficiently certain, and evidently calculated to remove all doubts, in his mind, as to the identical conversation sought to be directed to his attention.

We; therefore, hold that, under the circumstances of this case, a proper legal foundation had been laid by the State for the introduction of the proffered testimony, which was properly admitted. Roscoe’s Crim. Evidence; 5 An. 408, Fletcher vs. Fletcher; 6 An. 596, Paradite vs. Sun M. Insurance Co.; 10 An. 16, McDowell vs. General M. Insurance Co.; 13 An. 191, Fletcher vs. Wife; School Board of Union parish vs. J. E. Trimble, 33 An., not yet reported.

The judgment of the lower court is, therefore, affirmed with costs.


author: Todd, J.

text:
    No. 74.
    The State of Louisiana vs. Hamp Askins.
    The accused has the right to waive the constitutional provision of the trial by jury and elect to be tried by the Court. Decision in State vs. White, just rendered, affirmed.
    It is not necessary that the Parish in which the offense was committed, should be named in the body of the indictment. The law provides that it is sufficient that it should be named in the margin of that instrument.
    The Record showing that the prisoner was formally arraigned, the legal and necessary inference is, that he was present at the arraignment.
    In cases not capital, it is not indispensable that the prisoner be asked if he has anything to say why sentence should not be pronounced. Affirming State vs. Taylor, 27 An. 393.
    The presence of the accused during the trial is sufficiently shown by the Record. State vs. White, also affirmed in this particular.
    APPEAL from the Twenty-third Judicial District Court, parish of Iberville. Cole, J.

      JS. B. Talbot, District Attorney, for the State, Appellee.

      Barrow & Pope and Wm. A. Seay for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant was sentenced to nine months imprisonment at hard labor in the penitentiary, after trial before the District Judge, having on his arraignment waived trial by jury and asked to be tried by the court.

Erom such sentence he has appealed. The main error assigned was-the alleged illegality of the trial before the judge from the want of a constitutional provision authorizing the waiver of jury by the accused, and specially warranting trial without jury. This question was disposed of in the case of the State vs. White, just decided, and our decision on this point, for the reasons therein assigned, is adhered to.

In addition to the error mentioned, the counsel for the accused assign the following:

1. “ That the information does not show that the crime alleged was committed in the parish of Iberville, the parish in'the body of the information being left in blank.”

The caption of the information sets forth the State, the parish (Iberville) and the court.

In the body of it is charged “ that one Hamp Askins, late of the parish of Iberville, on the 28th July, A. D. 1881, * * * in the parish of-aforesaid, and within the jurisdiction of. the Twenty-third District Court, in and for the said parish and State.”

It might seem that the venue was sufficiently laid, especially in view of the following provision of Sec. 1062 Revised Statutes:

“ It shall not be necessary to state any venue in the body of any indictment, but the State, parish or other jurisdiction named in the margin thereof, shall be taken to be the venue for all the facts stated in the body of such indictment,” etc.

-And also the further provision :

“ No indictment for any offense shall be held insufficient * * * for stating offense to have been committed on a day subsequent to the finding of the indictment * * * nor for want of a proper or perfect venue,” etc.

Besides, there was no motion to quash, and had -there been a defect of the kind charged, it was á mere formal one, and should have been taken advantage of by such motion. There is, therefore, no force in this point.

2. “ That the accused was arraigned through counsel, and it does-not appear that the accused was present at the time.”

The record shows — and we quote from it — the following:

“ Accused was formally arraigned, entered the plea of not guilty, asked to be tried- by the court, and the case is assigned for Monday the 12th inst.,” and by an amendment to the minutes the words were added “ accused being represented by counsel, Chas. O. Lauve.”

■ The accused could not have been formally arraigned unless he was present.

Bishop thus describes an arraignment and its purpose :

“ It consists of reading the indictment to him, and requiring him to say in open court, whether or not he is guilty of what is therein alleged against him.”

And again : “ The forms in common use direct the prisoner while the indictment is being read to hold up his hand,” and this part of the ceremony is stated to be for the purpose of making known the person of the offender to the court.

From this it is apparent that the prisoner could not have been formally arraigned, as the record declares, unless he was present in court.

3. The next assignment is that the accused was not allowed time to move for a new trial or in arrest of judgment; and that he was not asked by the judge if he had anything to say why sentence of the law should not be pronounced against him before passing the sentence.

The accused was represented by counsel, and there is nothing in the record to show that any application was'made or any wish expressed to move either for a new trial or in arrest of judgment. We cannot presume that there was any denial of the right in this instance in the absence of any evidence or suggestion in the record that such right or privilege was asked for and refused, or further time requested to make such motions. On the contrary, the record shows that there was ample time afforded for such motions if the accused desired to present them, inasmuch as he was tried and convicted on the 12th and not senieneed till the 16th of the same month.

In regard to the prisoner being asked before sentenced, if he had anything to say why the sentence should not be pronounced, and the alleged necessity therefor, the authorities are somewhat divided; but in this State, where this identical question was before the court, it was expressly ruled that such formality was not necessary in a case not capital. State vs. Taylor, 27 An. 393

* This ruling is supported by the following authorities: State vs. Ball, 27 Mo. 324; Jeffries vs. Commonwealth, 12 Allen 145, 153; Grady vs. State, 11 Ga. 253; Jones vs. State, 51 Miss. 718.

Under the weight of these authorities we must decline to disturb the ruling above referred to in State vs. Taylor. In capital cases, however, the authorities concur in holding that the ceremony is indispensable, and we will add, a proper one to be observed in all cases, and even in misdemeanors.

We omitted to mention another assignment, which was in relation to the record not showing the presence of the prisoner during the trial. This question was likewise presented upon a record precisely similar— ipsissimis verbis — with the one before us, in the case of the State vs. White, above referred to, and we there held that the presence of the accused was shown with sufficient certainty by entry in question.

For these reasons, and for the reasons given in the case referred to of State vs. White, decided at this term, the judgment and sentence appealed from are affirmed.


text:
    No. 65.
    Succession of James Hoss.
    In this case, the administrator of the succession of the deceased partner of a commercial firm is sued for maladministration by the surviving partner. Under the facts of the case, that the surviving partner himself partly toot charge of the recovery of the assets of the late firm, and partly acted conjointly with the administrator, it is held by the Court that, whatever liability both the administrator and surviving partner incurred towards the creditors of the firm, the action of said surviving partner in the premises, has debarred him from any claim against the administrator.
    APPEAL from the First Judicial District Court, parish of Caddo. Alexander, Judge ad hoc.

      Looney & Mstner for the Opponent and Appellant.

      Wise & Herndon for the Administrator and Appellee.
   The opinion of the Court was delivered by

Todd, J.

James Hoss died in September, 1873, in the city of Shreveport. At the time of his death he was a member of the commercial partnership of Hoss & Noel, doing a mercantile business in said city.

Soon after Hoss’ death, the surviving partner, Taylor Noel, applied for the appointment of liquidator of the partnership, but never thereafter qualified as such. He, however, by the consent of the administrator of Hoss’ (his deceased partner’s) succession, retained in his possession and under his control the effects of the partnership. These effects consisted of the stock of goods, notes, accounts, rights and credits belonging to the firm, and appraised at $13,309 35. Noel sold the stock of goods, and gave his attention to the collection of the debts due the firm* and to the payment of its liabilities; till the 5th of January, 1875, when the books, notes, accounts, etc., were turned over by him to Messrs. Egan & Wise, the attorneys of the administrator of James Hoss’ succession.

Jacob Hoss, the administrator of this succession, was appointed in December, 1873, and in the petition for his appointment he stated that it was the wish of Taylor Noel, surviving partner, and of the creditors of the firm, that he should take charge of and administer the effects of the partnership. These éffects were included in the inventory of the succession, to the extent of the deceased’s interest therein, which was two-thirds; Noel’s interest embracing the other third.

Notwithstanding his appointment, and that his application included an administration of the partnership effects, Hoss still permitted Noel to remain the actual administrator of the partnership, as stated, down to the 5th of January, 1875.

On the 17th February, 1877, Hoss filed his first account of administration, which was homologated on the 26th May, 1877, not having been opposed.

On the 11th of June, 1878, the administrator filed his second account. This account was opposed by the largest creditors of the firm, and by Noel, the surviving partner. The former, however, subsequently withdrew their opposition, and the opposition of Noel alone remained. It was tried in the District Court, before a judge ad hoc, and dismissed, and the account homologated; and from this judgment he, Noel, has appealed.

The opposition alleges neglect and laches on the part of the administrator, through which, it is' charged, that the larger part of the notes and accounts and other assets of the firm were lost. The administrator’s accounts show only a small part of the debts due the firm, according to the inventory, to have been collected; and the sole question presented, is, whether the administrator is liable to the surviving partner of the firm for the amounts uncollected or any part thereof. It is mainly a question of fact. The counsel for the opponent have correctly laid down the abstract legal principles governing the duties and obligations of administrators and measuring their liability, and supported them by numerous and apposite authorities. They would prove conclusive in this case touching the liability of this administrator did the facts of the case justify their application.

What are the facts ?'

As previously stated, the entire assets of the partnership were retained for more than a year after its dissolution by the opponent, as surviving partner, with the permission of the administrator. This was an irregularity on the part of the administrator, and there is no doubt that, if any loss had occurred in that time, by reason of the neglect or want of diligence on the part of the person thus entrusted, without authority of law, with the collection of the debts, and the administration of the effects of the firm, the creditors of the firm, — and there were large claims outstanding against it, — would have had just cause of complaint; and the administrator would, in that event, be clearly responsible to them for such loss. Upon this point, however, we have in the record the testimony of Noel himself, who says

“ James Hoss died in August or September, 1873, 'with yellow fever; as soon as the epidemic ceased, in the latter part of October, 1873, witness went to work to liquidate and settle the partnership, and gave his diligent labor to that end and purpose up to the 5th of January, 1875, when he turned over to Jacob Hoss, administrator.”

It Is evident to every one having experience in such matters, that the year following the dissolution of a partnership, particularly one dissolved by the death of a partner, is the most propitious time for collecting the debts due the dissolved firm. As a general rule, the main collections must be made within that time or never, and can be more successfully made by the surviving partner, from his intimate acquaintance with the business and his personal interest in the matter, than by any one else. If, as he says, he used- due diligence in their collection, it is reasonable to presume that all debts remaining uncollected after that period, were either bad debts or debts -whose collection would be attended with difficulty and delay. If the surviving partner did use every effort to collect them during that period and failed to do so, he certainly cannot charge such failure to the administrator, whatever the creditors of the partnership might do. On the contrary, however, had he failed to use the proper diligence, and the failure to collect during that time been attributable to his neglect, he would be justly responsible to the administrator of his deceased partner’s succession for his laches, instead of that administrator being responsible to him, as he claims in this case, for that would be to permit him to profit by his own wrong, and in the absence of complaining creditors he has no right to champion their claims and in their behalf seek to hold the administrator responsible for failures or delinquencies occurring at any period of the administration.

On the 5th of, January, 1875, Noel, having sold, as stated, the stock of goods and collected part of the debts, delivered the books and uncollected claims to Messrs. Egan & Wise, attorneys of the administrator, who receipted to him for them. Some of the larger notes had, however, been turned over to them by Noel for collection previously.

To ascertain what degree of diligence was used by this firm in the collection of these claims after they came into their hands, we must refer to the testimony in the record.

Mr. Wise, one of the firm, called as a witness, on this point, says:

“ A few months after the death of James Hoss, and after the yellow fever epidemic had subsided, Taylor Noel employed the firm of Egan & Wise to have him qualified as liquidating partner of the firm of Hoss & Noel. We made the application for his appointment, and he went into the possession of the assets and remained in possession until January, 1875. * * * The only claims or assets of the firm received by Jacob Hoss or his attorneys, were such as those shown by the vouchers on file. After we got the books into our office, in 1875 or 1876, we got J. W. Tabor, a competent bookkeeper, to draw off a large number of accounts due by various persons and for various amounts. We presented these accounts to the various persons as soon as we could see them or communicate with them, and, in most instances, were shown the receipts of Taylor Noel for the amounts.”

In a previous part of his testimony he refers to particular claims, some of which were sued on and put into judgments, and others not sued on because, in his opinion, the succession would be subjected to cost, without hope of realizing anything on.the debts; and after describing the manner of proceeding with reference to the collection of the debts', the witness concludes on this point; thus: “ Taylor Noel was very frequently in our office discussing and consulting with us in reference to the claims against these various persons. He knew of the steps we were taking, as we often called on him to inform us about persons, as to whether it would be advisable to sue or not; and he never made any objection to the manner in which we were proceeding.”

Mr. Wise’s testimony stands uncontradicted, and is supported by other witnesses. In connection with his testimony, we will here state that one of the largest claims due was a mortgage claim of $6000, which the opponent complains was not collected. It is shown by Mr. Wise and other witnesses, that the mortgaged property was taken for the debt, as the best that could be done; and that this was advised and consented to by Noel himself.

On the 15th of July, 1875, the following written agreement was entered into between Hoss, Administrator, and Noel, the surviving partner, to wit:

“ Be it known that we, Jacob Hoss, Administrator of the succession of James Hoss, and Taylor Noel, have entered into the following agreement, to wit:
“That E. B. Herndon shall be put in possession .of all the notes, accounts and assets generally, due the late firm of Hoss & Noel, for the purpose of settling and collecting same; and all amounts collected placed in a ■ bank in the city of Shreveport to the credit of Hoss & Noel in liquidation, and shall only be drawn therefrom by said parties signing checks or drafts conjointly.”

Under this agreement the assets were placed in the hands of Mr. Herndon, who was thus made the attorney of both parties for the purposes expressed in the instrument. Such being the case, if Mr. Herndon had failed to give proper attention to the collection of the claims, it is evident that Hoss as administrator would have no right of action against Mr.-Noel for such failure on the part of their common agent, and just as little could the administrator be held accountable to Noel for such delinquency, whatever rights the creditors of the concern might have had against both. The evidence, however, satisfies us that there was no delinquency in this instance of which either Noel or Hoss, Administrator, had a right to complain.

Mr. Herndon in his testimony on this point says: “ Under an agreement with Taylor Noel and Jacob Hoss, Administrator, some of the accounts due the firm of Hoss & Noel were turned over to me for collection.”

The witness then proceeds to take up these claims, one by one, and shows what disposition was made of them, and if uncollected, giving the reasons therefor. Resuming he further says:

“ I got on a horse and called in person on all these persons. I had several interviews with Taylor Noel during the time the claims were in my hands and advised with him about them. It would have been a needless expense in my opinion to have brought suit upon these claims.”

There is much more in his testimony to the same-effect, but we deem further quotation from this witness or others corroborative, unnecessary.

We have thus followed the administration of this unfortunate partnership from the very beginning, and, departing from our usual rule of stating our conclusions from the evidence, have copied extensively from the evidence itself, with a view that it might or not appear whether there was any fact or circumstance attending this administration that could reasonably afford the opponent ground of complaint and legally subject the administrator to a liability in his favor on account of his (the administrator’s) acts and omissions. We fail to find such. Whatever may have been done or omitted by the administrator, seems to have been done or omitted with the sanction of Noel, and partly through Noel himself.

We leave out of view the liability that both the administrator and Noel may have incurred to the creditors of the partnership, and have confined our attention to the consideration exclusively of those matters which might affect the responsibility of the administrator to the surviving partner.

Nor have we dwelt on the fact referred to by the counsel for the administrator, that the debts of the partnership are far beyond its assets, and still unpaid; that, until paid, Noel could receive nothing therefrom; and .that he was thus without interest to make this contest, and the suit or opposition, was, therefore, speculative on his part. This fact of excess of debts referred to does clearly appear from the record, but while it may not establish opponent’s entire want of interest, however remote or contingent it may appear, yet it may well be viewed as confirming the justice of the conclusions we have announced touching the unreasonableness of his complaints.

The judgment appealed from is affirmed at the cost of the appellant.


author: Fenner, J. Poché, J.

text:
    No. 60.
    The State of Louisiana vs. Mark West.
    This case is similar to that of the State vs. Dellwood, just decided, on the two following points, which are affirmed in this opinion, to wit:
    1st. An Appellant should not be prejudiced by the error committed by the judge in fixing the return day of the Appeal.
    2d. A public officer vacates the office held by him by accepting another office incompatible , with the former.
    APPEAL from the Second Judicial District Court, parish of Webster. Drew, J.

      J. A. W. Lowry, District Attorney, for the State, Appellee.

      M. G. Mosely for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The motion to dismiss in this case, is based on the same ground as that in the case of State vs. Dellwood, just decided, and the facts and circumstances of the two cases are identical. For the reasons there given, the motion is overruled.

The only error -assigned is the denial of the motion to set aside the venire of jurors on the ground of disqualification of the jury commissioners by reason of their holding inconsistent offices. The motion was identical with that made in the case of State vs. Dellwood, and for the reasons given by us in that case, we hold the motion was properly overruled.

Judgment affirmed.

Dissenting Opinion.

Poché, J.

For the reasons given in my dissenting opinion in the case of the State vs. Dellwood, I dissent from the opinion of the majority on the motion to dismiss this appeal, and take no part in the opinion on the merits of this case.


author: Fenner, J.

text:
    No. 72.
    Lizzie Dickson vs. M. H. Dickson et al.
    The Defendants in this case are held liable in damages to the Plaintiff for having by threats, persuasion and otherwise induced the laborers on the latter’s plantations to abandon their work and violate their contracts of employment, by which fact the said plantations were left uncultivated.
    APPEAL from the First Judicial District Court, parish of Caddo. Taylor, J.

      J. Henry Shepherd for Plaintiff and Appellee:
    ITirsfc — A party who, without opposition, suffers evidence to be adduced contrary to or beyond the allegations contained in the pleadings, though it might have been excluded on legal grounds, is bound by its effect. Evidence makes pleadings. 15 La. 328; 15 An. 389; 20 An. 241, 379. 12 R. 20.
    Second — Every act of man, that causes damage to another obliges him by whose fault it occurs to repair it. R. C. C. 2315.
    Third — Illegal trespass through malice and with intent to injure, constitutes an offense sub* ject to exemplary damages, and in such cases reparation must be equal to the injury. Sedgwick on Damages, Chapter XVTtl; Nelson vs. Morgan, 2 Martin 263; Edwards va. Turner, 6 R. 382; Grant vs. McDonough, 7 An. 447; Frazier vs. Parsons, 24 An. 339; Cooper vs. Capel, 29 An. 214.
    Co-trespassers are liable in solido.

      Looney & Elstner and Wise & Herndon for Defendants and Appellants:
    An act-iqn of damages caused by the homicide of a free human being cannot be maintained.*' Hukgk vs. the N. O. and C. Railroad Co., 6 An. 495.
    Then how can an action be maintained for loss of labor of a free human being? See Hen. Dig., 2d vol., p. 1056.
    To recover damages, the damage must he made direct or certain. A probable oanse is not sufficient. 16 An. 121; 21 An. 185; 17 An.-294; 18 An. 597; 15 An. 268, 45719 An. 121 ; 22 An. 378; 29 An. 764.
    One not owner of the land has no action of trespass. 23 An. 529.
   The opinion of the Court was delivered by

Fenner, J.

The cause of action, in this case, as appears from the pleadings and the evidence, is the following:

Plaintiff had leased from her mother, Mrs. H. P. Dickson, for the term of five years, at an annual rental of $4000 per annum, two plantations, known as Lake and Kansas plantations, tke'property of the community of acquests and gains which subsisted between Michael Dickson, deceased, and his surviving widow, who held the same as legal usufructuary. The plaintiff and three of the defendant's are co-heirs of Michael Dickson, and the other defendant is husband of one of the defendant co-heirs. Defendants were anxious that their mother, Mrs. H. P. Dickson, should renounce her legal usufruct, and that their sister, the plaintiff, should abandon her lease of these valuable plantations, in order that there might be a settlement of the estate and a partition thereof amongst the heirs. They importuned their mother and sister to enter into this arrangement, but the plaintiff persistently refused to give up her lease. The three male defendants then formed, proclaimed and entered into a common design or conspiracy to force the plaintiH to accede to their wishes by rendering the lease valueless to her if she persisted in holding to it, and, for that purpose, to deprive the plantations of labor by threats, persuasions and other inducements addressed to the laborers. In prosecuting this common intent, they did visit the said plantations repeatedly in the early part of the year 1880, while the plaintiff was making her arrangements with the laborers thereon for the then current year, and they did, by means of threats, persuasions and otherwise, induce the laborers to refuse to contract or to abandon their contracts with the plaintiff, and to leave the plantations. These acts were done with no legitimate purpose of securing labor for themselves by offering superior inducements, but solely for the purpose of injuring the plaintifl and of preventing her from deriving any benefit from her lease. The result was that all the laborers on one of the plantations-abandoned it, and the place remained uncultivated during the year. A considerable number of those on the other place also left it, and a large part of the land lay idle in consequence.

We have carefully weighed the conflicting testimony, with the aid of the masterly review and summing up thereof by the judge a quo, and we think it fully sustains the above conclusions, which are announced by us almost in his own language.

It is manifest that these acts, thus wantonly and maliciously done by defendants, were, in the sense of the law, faults, that is, acts done in the exercise of no legal rights of their own, and in violation of the rights and feelings of the defendant, who was entitled to pursue her lawful . business without interference or hindrance from defendants. For the damages resulting from such acts, the defendants are responsible.

We see no sufficient reason for interfering .with the estimate of the judge a quo as to the quantum of damages.

The judgment appealed frc ' " " " :med at appellants’ cost.


author: Bermudez, C. J.

text:
    No. 7244.

    Benito Vinas vs. The Merchants’ Mutual Insurance Company.
    A party may allege fraud in lila pleadings, in a civil suit, for the purposes of his case, without thereby rendering himself liable in damages for slander, when he has made the charge in good faith, without malice and under a state of things from which the fraud could reasonably be inferred. The authorities on this point reviewed.
    APPEAL from the Fifth District Court, parish of Orleans. Bogers, J.

      George L. Bright for Plaintiff and Appellant: •
    ~We submit we have shown:
    First — That an Insurance Company who charges a claimant with fraud when he seeks to recover a loss upon a policy is liable in damages for slander and libel.
    Second — That all the-facts recited in the petition are proved.
    Third — That the wrong done the plaintiff is aggravated by the fact that the Insurance Company procured a notorious vagabond, unworthy of belief, to substantiate the ialse charge they had made.

      Albert Voorhies for Defendant and Appellee :
    First — This being an action for malicious prosecution, plaintiff must allege and prove — first, the falsity of the chargesecondly, malice on part of defendant, — and, thirdly, want of probable canse.
    Second — Plaintiff has not alleged want of probable cause, and has failed to prove either & the above three requisites.

      Third — The judgment in the original suit is not res judicata in the subsequent suit for malicious prosecution, since the demand is not the same, nor is the cause of action the same.
    Fourth — A corporation is responsible for damages, caused by its agents in the discharge of their duties; but it cannot commit a crime or offence: its officers, who have done so, are personally responsible dviliter.

    Fifth — The overruling of an exception that a corporation cannot be sued for damages ex de~ licto, does not determine that plaintiff has a cause of action; but the whole case comes up upon the merits.
    Sixth — A defendant cannot be made liable for averments pertinent to the issue in defense of a suit against them. This is a privileged communication under the policy of the law.
    Seventh — Fraudulent over-valuation proven by showing that the property was worth less than half the valued insurance, and the insured attempting to pass as new old and second-hand boilers.
    Eighth — To impeach a witness, the proper question is whether, from his reputation for truth and veracity, he is to be believed on oath. The answer that, from his reputation generally, or from knowledge of his character, he cannot be believed under oath, — is essentially defective and inadmissible.
    Ninth — Under the general issue, on a suit oí damages for malicious prosecution, the truth of the charge is at issue.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff claims of the defendant $20,000 damages for libel and defamation of character.

He alleges that he insured with the defendants two steam boilers of the value of $3500, and that, when he claimed the loss, the defendants charged him with fraud, with an attempt to defraud them, and that they procured a false witness, wholly and notoriously unworthy of belief, to defame him and establish their false defense.

The suit was instituted on the 7th of October, 1869. The defendants pleaded no cause of action, in this : that a corporation cannot be made responsible for damages ex delicto. The District Court maintained the exception. The Supreme Court reversed the judgment and remanded the case.

Joining issue, the defendants then answered: that the allegations in the answer to thesu.it which the plaintiff had brought in 1867 against them on the policy of insurance, were made in good faith, and were based upon what they considered to be the truth; that they had good reason to believe the said allegations to be true and still believe them to be true.

The case was tried by a jury who, after a charge, rendered a verdict against plaintiff. Thereupon the court pronounced judgment in favor of the defendants. The plaintiff appeals.

Technically, this is an action for malicious prosecution. If not identical in all its features, it is at least germane to it and resembles it very much.

It is possible that we would have the power of reviewing the judgment of the Court as reported in 27 An. 367, overruling the exception of no cause of action and remanding the case, such judgment being merely interlocutory and revisable until the determination of the case on its merits, but we deem it unnecessary to exercise that power. ■ It is proper, however, that we should state that we do not consider that the Court then decided that the petition disclosed a cause of action, and that we are of opinion that it only declared that corporations are not protected from civil prosecutions for damages ex delicto. We reach this conclusion as the exception was merely: that the facts alleged in the petition (if true, which was, however, not admitted, except for the purpose of the exception), do not constitute a ground of action, as a corporation cannot be made responsible in damages ex delicto. The exception did not otherwise assail the sufficiency of the petition, which can be certainly charged after all the evidence has been admitted and the case on appeal.

The defense set up in consequence by the defendant is, not only that the plaintiff has neither alleged nor proved want of probable cause, but that the evidence in the record shows: absence of malice, good faith and justification, in setting up the defense raised at the time — under the circumstances then in existence.

We do not consider that it was incumbent on the plaintiff to allege and prove the falsity of the charge of fraud and malice on the part of the defendant, and want of probable cause. It was sufficient for the plaintiff to have proved, as he has, the use of the language charged and it then rested on the defendant to establish exoneration from liability, for some valid reason.

The charge of fraud made by the defendant at the time of the institution of the suit on the policy, was pertinent to the issue and could be asserted with impunity, provided it were made imgood faith, with probable cause, to be ascertained from the surrounding circumstances, and a state of facts honestly believed to be then in existence.

We have considered the evidence in the case, and think with the jury that the defendants were not actuated by malice, that they acted in good faith and were justified from the condition of things, to infer that the plaintiff had been guilty of misrepresentation at the time the insurance was effected on the boilers.

In Cook’s Law of Defamation (marg. p. 60, Law Library, vol. 22), the rule is laid down :

“ The proceedings connected with the judicature of the country are so important to the public good, that the law holds that nothing that may be therein said with probable cause, whether with or without malice, can be slander; and in like manner, that nothing written with*probable cause, under the sanction of such occasion, can be libel.”

Townsend, in his work on Slander and Libel, 2d. ed. J 221, says, that the right of appealing to the civil tribunals is more extensive than the right of appealing to the criminal tribunals and that, according to the better and prevailing opinion, whatever a party may allege in his pleading as, or in connection with his ground of complaint, can never give a right of action for. slander or libel. The immunity thus enjoyed by a party complaining, extends also to a party defending.

Those principles appear to have been recognized in the jurisprudence of this State. 6 N. S. 477; 21 An. 375; 28 An. 436; 14 An. 406.

The failure to succeed is not evidence of malice or of want of probable cause. 3 R. 18; 34 Ala. 336; 13 Gray, Mass., 201; 98 U.S. 187; 1 Hilliard on Torts. See, also, 5 La. 318; 13 La. 90; 15 La. 280; 12 An. 335; 530, 714; 6 An. 178; 13 An. 274; H. D. p. 823, No. 6.

The question of probable cause depends upon the party’s honest belief, based upon reasonable grounds. 66 N. Y. 526; 32 An. 511; Cooley on Torts, p. 181; 2 Tredell Law, N. C. 236; 8 Dana, Ky., 310; 26 Ala. 616; 33 Vermont, 489.

The plaintiff says in his testimony that the boilers were new, and that he bought them as such, at Bagdad, for upwards of $2000.

The custom-house certificate, which was offered and introduced in this suit, and which was not produced on the trial of the suit on the policy, mentions them as dos calderas de vapor usadas, as part of the cargo of the Matias,” bound for New Orleans. Witnesses heard on behalf of plaintiff show that the boilers were second-hand. They had previously served on a steamer which had wrecked, had been inventoried and had been sold with other articles at auction for $125. A witness, whose testimony the plaintiff violently assails as that of a vagabond, unworthy of belief, declares also that the boilers were not new and had been repaired at the foot of his wharf. His testimony is not indispensable.

The defendant has shown that the boilers, if new, would have been worth $2868, including the steam and mud drum, valued at upwards of $1200, leaving as the value of the boilers $1668.

It may be, that, on the trial of the suit on the policy, the defendants did not establish fraud to the satisfaction of the court, but such omission does not necessarily require them to be mulcted in damages. In the opinion delivered in that case, and which is unreported, the Court merely said: “ An over-valuation is not even established with any certainty, but if it were, it would not, in itself, be proof of fraud.”

The defendants may have failed to prove the fraud charged and, in consequence, may have lost the case; they may, as they were, have been condemned in damages for a frivolous appeal, but they do not, on that account, necessarily become liable in the present action. What was not there shown, could be, and was in this case, established.

We find that the charge complained of was made on an issue pertinent to a case in which the defendants were parties, in good faith, with probable cause, and under circumstances which suggested and justified it at the time. See Stewart vs. Sonneborn, 98 U. S. 191.

This was a suit peculiarly within the province of the jury. We have read the charges given to them by the court, to which no exception was taken, and we think that the verdict and the judgment upon it have done justice to the parties.

It is, therefore, ordered that the judgment appealed from be affirmed with costs.


text:
    No. 8300.
    The State of Louisiana vs. Willie Kane.
    It is not material, in a prosecution for larceny, that the Information should state the exact day of the commission of the ofíense, provided the proof shows that it was committed within one year of the filing of the Information. This is not an open question any longer.
    Nor is the allegation of ownership of the thing stolen material in cases of larceny. Affirming Decision in 33 An. 120.
    1 PPEAL from the Criminal District Court for the parish of Orleans. A. Boman, J.

      J. C. Egan, Attorney General, for the State, Appellee:
    First — In an information for larceny it is sufficient to allege the ownership of the property stolen to be in the ostensible or apparent owner. 33 An. 122; Wharton on Criminal Law, 8th ed-, vol. 1, Sec. 945.
    Second — Time is not of the essence of the commission of larceny, and the information is satis- • fied hy proof of any day anterior to the filing of the charge, provided it be within one year. Bishop on Criminal Procedure, vol. 1, Sec. 400.
    Third — This Court has jurisdiction in criminal cases on questions of law alone. Constitution, Art. 81; 11 An. 478.
    The Defendant and Appellant unrepresented.
   The opinion of the Court was delivered by

Poché, J.

The defendant appeals from a convietion and sentence under a charge of larceny of some money, the alleged property of Mrs. Mary Schoemmehl.

He reserved a bill of exceptions to the ruling of the judge in admitting testimony showing that the offence was committed on the 28th of December, 1880, because the information charged that it had been committed on the 4th of January, 1881. It is now not an open question that time is not of the essence of the commission of the- offence of larceny, provided the proof shows that the offence was committed within one year of the filing of the information, which in this case was filed on April 8th, 1881.

Bishop, in his work on Criminal Procedure, vol. 1, Sec. 400, lays down the rule in the following clear and unambiguous language:

“ It is not necessary to prove the offence to have been committed on the day of the month and'year specified in the indictmént. Any day before or after, within the statute of limitations, is sufficient.” State vs. Hypolite Polite, 33 An., not yet reported. There is no force in the reasoning of defendant’s counsel, that he had pleaded not guilty to the offence charged to have been committed on the 4th of January, 1881, thus fixing the issue between time and the State to that particular date, and that he was prepared to prove an alibi on that date. As the jury found, beyond doubt, that the offence had been committed by the defendant on the 28th of December, 1880, it was immaterial to consider his whereabouts on any other day. In a plea of not guilty to an indictment, the issue presented between the State and the accused is one of guilt or innocence of the charge preferred, and is not circumscribed by the date alleged, in the absence of proof of prescription within the statute of limitations.

The defendant moved for a new trial on the grounds :

1st. That there was no proof of the ownership of Mrs. Schoemmeh! of the property charged to have been stolen, the proof showing that the money belonged to the succession of her husband.

This objection is disposed of by referring to the case of the State vs. Everage, 33 An. 120, in which an identical objection was overruled, and in which this Court held that such a question might be raised in a civil action involving the legal title of property, but not in a criminal case where the issue was not the legal title of the property, but the felonious taking of the same by the accused.

2d. The other grounds set up in his motion for new trial, involve questions of facts, with which this Court cannot interfere. Those grounds can, therefore, not avail the accused in this appeal. There is no error in the judgment of the lower court, which is, therefore, affirmed.


author: Levy, J.

text:
    No. 8136.
    The State of Louisiana vs. Succession of Richard Taylor.
    The Defendant in a suit brought by the State of Louisiana in her own courts, cannot require her to furnish security for costs.
    APPEAL from the Civil District Court, parish of Orleans. J. Monroe,

      J. G. Egan, Attorney General, for Plaintiff and Appellant:
    First — The State is sovereign in so far as she has not parted with her attributes of sovereignty to the Federal government.
    Second — -In a monarchy the exemption of the sovereign from the operation of statutes in which he is not named is founded on prerogative. 1 Watts (Pa.) 54; 2 Blackstone, 400.

      Third — The prerogative is a principle of our government and a part of the law of the land, Ib.; 19 mil. 239.
    Eourth — The people of the State, being the sovereign, have succeeded to the rights, of the King, the former sovereign. 4 Crown (N. Y., 349.
    Eifth — ETo court can make a direct judgment against the United States for costs and expenses in a suit to which she is a party, either on behalf of any suitor or any officer of the government. 12 Wheaton, 550.
    Sixth — If the people were plaintiff no judgment for costs could be given against them. 50 HI., 441; 41 H. H., 238; 18 Johnson, 229; 4 Cowen, 345; 3 Kent Com. 297, note 33.
    Seventh — In the construction of statutes declaring or affecting rights and interests they are ' not to be interpreted so as to embrace the sovereign power of the State unless the statute specially named, or it be clear and indisputable from the act that it was intended to include the State. Sedgwick on Construction of Statutory Law, p. 337; 1 Blaekstone Com. 262; 35 East, 333; D. Warris on the Construction of Statutes, p. 151; 1 Kent, 460; 4 Mason Cr. Ct. Rep., p. 427; 28 Miss., 753; 20 ml., .255; 4 Gil., 20.
    Eighth — The State is exempt from giving bond and security. 5 R. 237; 33 An. 712.

      Kennard, Howe & Prentiss for Defendant and Appellee:
    Eirst — Where a State is brought into the forum of litigation upon a contract, and, a fortiori, when she herself comes in, asking for an enforcement of contract rights “ she can claim no immunity as incident to her political sovereignty.” Davis vs. Gray, 16 Wall. 232.
    Second — The dogmas cited by the Attorney General with reference to monarchies, are not followed in the enlightened and free community of Louisiana. Thus the doctrine, nullum tempus occurrit regi, has been disregarded in matters of contract, where the State was suing. Succession of Zaoharie, 30 An. 1262; Graham vs. Tignor, 23 An. 570; Pepper vs. Dunlap, 9 An. 141.
    Third — In the case at bar, the State is suing upon her alleged contract. There is no reason why she should stand in any other position than any other litigant. She makes a claim which is technical. She takes out a writ which is harsh. She seizes money of defendant and spends it in useless costs. The doctrine that the State is not included in statutes unless specially mentioned, is not recognized in Louisiana. 23 An. 570; 9 An. 141. And it therefore follows, that in such a case as this, where the State sues on its contract, she must give security like any other suitor.
    Eourth — The rule that a plaintiff may be required to secure the costs to which the defendant may be unjustly put, in case the defendant succeeds, is a rule of practice founded on the simplest notions of justice. The State has no more right to evade it than has any other litigant. The argument of the Attorney General proves too much. If correct, it would allow the counsel of the State to ignore any article of the Code of Practice, according to their whim or convenience.
   The opinion of the Court was delivered by

Levy, J.

The question presented for our decision, in this appeal is: can the State be required to furnish security for costs in a suit instituted by herself, in her own courts, on the demand, to that effect, by the defendant ?

The State of Louisiana instituted this suit against the Succession of Richard Taylor, the object sought being the rescission of a contract of lease of the New Canal.

Defendant obtained a rule on the State to show cause why the State should not give security for costs. The rule was made absolute; the State refused to furnish the security, whereupon the case was dismissed and from the judgment of dismissal the State has appealed.

■The main ground upon which the appellee relies to sustain the cor- • rectness of his position and upon which the judge a quo bases his judgment is, that the State comes into court “ upon a contract asking for an enforcement of contract rights” and, therefore, “ she can claim no immunity as incident to her political sovereignty.”

This doctrine, however sound, has no applicability to the question now before us. We are not called upon to decide as to the merits or demerits of any claim based upon a contract in which the State is interested or which she seeks to enforce or rescind, but merely as to the liability of the State to be amerced in costs in a proceeding instituted in her own courts. The authority of Davis vs. Gray, 16 Wallace, 232, relied upon by counsel of appellee, does not, in our opinion, sustain his position. There it was sought'to enforce the obligation of a contract, and the court held: “That the act of incorporation and the land grant here in question, were contracts, is too well settled in this Court to require discussion. As such, they were within the protection of that clause of the Constitution of the United States which declares that, no State shall pass any law impairing the obligation of contracts. * * * When a State becomes a party to a contract, as in the case before us, the same rules of law are applied to her as to private persons under like circumstances. When she or her representatives are properly brought into the forum of litigation, neither she nor they can assert any right or immunity as incident to her political sovereignty.” We construe this as having relation only to the incapacity of the State to assert its right growing out of its State sovereignty, to do any act which may impair the obligation of a contract, because such act would contravene the article of the Federal Constitution. Any different construction would subvert what we regard as the settled jurisprudence of the Supreme Court of the United States and would oppose itself to the adjudications of several States of the Union on the subject of the non-liability of a State to pay costs. We think there is a marked distinction between the cases falling under the rule above quoted and that of the liability of the State to enforce a remedy or means of enforcement of a contract before its own tribunals. In 2 Wheaton, 395, the Supreme Court said : “ The United States never pays costs.” In 12 Wheaton, 550, “ It is a general rule, that no court can make a direct judgment or decree against the United States for costs and expenses in a suit to whioh the United States is party, either in behalf of any suitor or any officer of the government.” In 5 Howard, 29, “The United States is not liable for costs.” The Supreme Court of Alabama, in the case of Gwema vs. Powell and Bradley, held that, “No costs can be adjudged against the State when it is plaintiff in a civi action and fails in its suit.” So, also, in Vermont, 2 Tyler (Vt.) R. 44; 4 Gill & Johnson, Md. R. 407. In 1 Gilman (Ill.) R. 555, it was held: “ A State is never bound to give a bond for costs in any case; neither does it ever pay costs, except in some particular way pointed out by statute.” 12 Ill. 154; 4 Gil. 20; 1 Scam. 178; 50 Ill. 441.

The same policy and reasons which exempt the State from the necessity of giving bond in cases of appeal, &c., apply to security for costs. And, if the State is not liable to pay costs, it would be a vain and useless thing to require security therefor. The present suit is one in which the State is a party in her own name and to enforce her own rights and not those of any person or individual. In her own courts, constituted by herself, whose officers are appointed by herself, and whose costs and fees are paid by herself out of a fund specially created for that purpose, it would be an extraordinary proceeding to require her to furnish security for the payment of costs. We think the court below erred in its judgment.

The judgment appealed from is annulled, avoided and reversed, and this case is remanded to the Civil District Court of the parish of Orleans to be proceeded with according to law.


author:
Poché, J. Todd, J.
     Bermudez, C. J.

text:
    No. 8137.
    The New Orleans City Railroad Company vs. The Crescent City Railroad Company.
    On Motion to Dismiss.
    This Court cannot take cognizance of evidence outside of the Transcript, in support of the charge of Appellant’s acquiescence in the judgment appealed from. The case must he remanded for the purpose of such investigation. »
    It is only when the fact alleged on one side is expressly admitted on the other, that the remanding is unnecessary. The jurisdiction of this Court in such cases clearly defined.
    When an Appeal is taken from the decree of a State Court ordering the removal of the case to the United States Circuit Court, under the laws of Congress, and the Appellant himself files the Record in the Federal Court and there moves for the dissolution of the Injunction granted by the State Court, there is an acquiescence hy the Appellant in the judgment appealed from and the Appeal will he dismissed hy this Court.
    APPEAL from the Civil District Court, parish of Orleans. Monroe, J.

      Carleton Hunt for Plaintiff and Appellee:
    A party who acquiesces in a judgment rendered against him hy voluntarily executing the same cannot appeal therefrom. C. P. 567.
    This Court will take judicial notice in an especial manner of the course of proceeding, the decision and: the jurisprudence of the Circuit Court of the United States for the Fifth Judicial Circuit, District of Louisiana.

      John M. Bonner for Defendant and Appellant:
    First — The Supreme Court will consider original evidence when all parties consent. 3 An. 115; 28 An. 274.
    Second — The doctrine of acquiescence is not applicable to the decrees or orders of a judge* transferring a cause from a court of general jurisdiction to a tribunal of limited jurisdiction. A judgment can only be acquiesced in when it can be voluntarily executed. And courts of limited jurisdiction depend for the exercise of their functions on the law, and not on the consent of litigants. 22 An. 81, 134; 27 An. 625.
    Third — The necessity of the State and Federal Circuit Courts being certain of their jurisdiction, before proceeding with a cause, is enforced by the nullity that attaches to their actions when they are without jurisdiction. 9 Otto,-80; 29 An. 372; 29 An. 400; 10 Otto, 457; Dillon on Removal of Causes, 3d ed. p. 130.
    Fourth — The rule enforced in Federal Courts, that a party loses none of Ms rights by contesting tbe case in the State Court, after it bas refused the application for a removal, should be equally applicable to the State Courts. 19 Wall. 214; The Removal Cases, 10 Otto, 475; Dillon on Removal of Causes, 3d ed. p. 130.
    Fifth — Tbe cause was jurisdictionally removed into the TJ. S. Circuit Court when the order of removal was signed by the District Judge, and the injunction granted by tbe State Court remained in full force by tbe very terms of tbe statute, until modified or dissolved by the Circuit Court. Act March 3, 1875, §§ 3, 4.
    As soon as a copy of the record from the State Court was filed, the jurisdiction of the Circuit, which was before theoretical, became real. 4 Sawyer, TJ. S. C. C. R. 290, 291; Dillon on Removal of Causes, 3d ed. §§ 78 and 80.
    fciiffch — Defendant did not consent to go into the Federal Court by taking up tbe record, but simply prevented the plaintiff from putting the record into its pocket until the 4th Monday of April, 1881, and in this manner keeping its injunction in force without having it contested.
   Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

Appellee moves to dismiss the present appeal on the ground that appellant has acquiesced in the judgment appealed from. The appeal is taken from a decree, rendered on plaintiff’s petition, ordering the removal of the cause to the United States Circuit Court.

Appellee charges that appellant has acquiesced in the judgment of removal by voluntarily appearing before the Circuit Court, and filing therein, and arguing by counsel, a motion to dissolve an injunction previously rendered in favor of plaintiff by the Civil District Court. To the motion of dismissal are annexed two documents; one, a certificate of the clerk of the Circuit Court, tending to show the appearance of appellant, and the other, a certified copy of the motion filed by appellant in that court, for the dissolution of the injunction, and of other proceedings had in the cause.

These documents come before us as original evidence, which, as an appellate court, we cannot consider. The question as to the power of this Court to pass upon evidence, outside of the transcript, in support of the charge of appellant’s acquiescence in a judgment appealed from, was at one time involved in some doubt.

But the doubt has been completely dispelled by the more recent decisions of this Court, and we consider the negative of that proposition as firmly settled.

The rule is now that the trial of such a question, requiring the investigation of original evidence, must be remanded to the court a qua; see case of Stinson vs. O’Neal, Opinion Book 52, page 390; 29 An. 576; 28 An. 274.

Appellee’s counsel suggests that we must take judicial cognizance of the matters and facts, recited and contained in the documents annexed to his motion, and supports his views by the following quotation from Greenleaf:

“ Courts take notice of courts of general jurisdiction, their judges, their seals, their rules and maxims in the administration of justice and course of proceeding.” Greenlf. on Evid., vol. , J 6. * * * “In fine, courts will generally take notice of whatever ought to be generally known within the limits of their jurisdiction.” (Id.)

We fully recognize the doctrine thus laid down, which has always been practically followed by this Court.

But the doctrine cannot be extended so as to authorize this Court to take judicial cognizance of the appearance, acts and pleadings or motions of litigants in the Federal courts, or even in our own State courts.

The issue presented by the present motion necessitates a finding or decision on a question of fact, of which we cannot assume original jurisdiction.

It is, therefore, ordered that the question whether appellant has acquiesced in the judgment appealed from, be referred to the court a qua for trial according to law; and that its finding and judgment upon that issue be sent up to this Court in due eourse.

On- Application nor Rehearing on the Motion to Dismiss Appeal.

Todd, J.

The motion to di smiss was upon the ground that the appellant had acquiesced in the judgment from which he had appealed. To establish such acquiescence, certain documents were sent up with the transcript and annexed thereto. We declined to consider such original evidence presented for the purpose stated, and with a view to enable the appellee to show that the proceedings, which said documents purported to evidence, and which were relied on to establish the acquiescence charged, had taken place, we remanded the case.

The appellant’s counsel, in his brief for a rehearing, admits, and for the first time, the facts that the proceedings purporting to be shown by the documents did take place, anfi asks us to consider this documentary evidence and pass upon the effect of the same.

This admission supplies the proof, which it was the object of the remanding of the case to procure. Our former decree is, therefore, set aside, and the appeal reinstated as standing on the motion to dismiss, which will be ¡again considered with reference to the admission made as stated, and the effect of the facts admitted, determined.

On Rehearing.

Bermudez, C. J.

Plaintiff and appellee seeks to dismiss this appeal on the ground, that the defendant has acquiesced in the judgment appealed from, by voluntarily executing it.

The facts advanced, as constituting acquiescence, are admitted by the defendant company, which simply denies “ the conclusion sought to be drawn ” from them.

The appearance of defendant, we deem to be, in the nature of an exception of no cause of action.

This action has for its object, the recognition of the plaintiff, as lawful owner of certain railroad franchises represented as about to be invaded by the defendant; an injunction was asked and obtained in limine, the perpetuation of which is prayed for in the petition.

The suit was brought on the 14th of December, 1880. Shortly after, viz: on the 20th, the plaintiff prayed for its removal to the United States Circuit Court for the District of Louisiana, and the order was made. On the 31st of the same month, the transcript was filed in that Court. On the 5th of January following, 1881, the defendant moved there, to dissolve the injunction. The motion was tried on the 7th following, and was dismissed on the ground of prematurity, the return day not having arrived. On the 11th of January, 1881, the defendant appeared in the District Court, moved for and obtained an appeal from the order of removal, returnable to this Court on the 3d Monday of January ult., when the transcript was filed here.

The motion to dismiss should prevail.

The theory upon which the defendant predicates its resistance to the dismissal of the appeal, is radically fallacious. The erroneous assumption underlying it consists in taking for granted that no judgment can be acquiesced in, unless it be one on the merits of a case, susceptible of execution; while the true and sound doctrine is, that any order, decree, judgment, or judicial determination whatever, whether interlocutory, final or definitive, appealable or hot, executory or not, can be acquiesced in, submitted to, or ratified, so as for ever to set at rest the matter adjudicated upon. Innumerable instances could be easily furnished in verification. See 6 M. 723; 10 An. 455; 27 An. 625. Acts of acquiescence or ratification of judgments, in all cases constitute insuperable impediments, prohibitive of all and any further discussion, touching the correctnss of the adjudication acquiesced in or ratified. Litigants are not permitted, for reasons of public order, to play fast and loose, in judicial proceedings, particularly when they are of such solemn character.

It is true that the judgment appealed from is not one on the merits of the case, but it is a judgment which can cause no irreparable injury, and from which a devolutive appeal undoubtedly lies. 2 M. 177; 6 N. S. 712; 5 L. 378; 9 An. 241; 29 An. 372; 21 An. 233; 23 An. 29; 30 An. 474; 2 Woods, 120. Otherwise, why has the defendant asked for an appeal; why was one allowed; why does the defendant resist the motion to dismiss, and does it insist upon our reviewing the order of removal ? It is a decree from which the defendant could have abstained from appealing, — one the correctness of which it could have formally acknowledged. That which it could have done expressly, it could do and has done impliedly.

The decree appealed from is.not now before us for review. We cannot, on a motion to dismiss, inquire into its correctness. All that wa are now called upon to do is to decide whether the acts of the defendant, which consist in taking up the record and moving, iri the United States Circuit Court, for the dissolution of the injunction, are acts of acquiescence in the judgment appealed from, which debar the right of having it revised on appeal. C. P. 567. By thus acting, it is clear that the defendant has virtually acknowledged the correctness of the order of removal, and admitted that the Circuit Court had jurisdiction over the case removed. If this be not so, why did the defendant ask of that court the exercise of its powers to dissolve the injunction ?

In consequence of the acts of the defendant, we have nothing to de presently with the order of removal or with the question of jurisdiction of the United States Circuit Court over the removed controversy. The order complained of may be perfectly incorrect, and the Federal court may have no jurisdiction at all over the case; but, however that may be. the defendant, — by formally admitting the correctness of the decree of removal, which it has itself executed, and the jurisdiction which it has endeavored to set in motion, — has debarred itself from a hearing on its appeal in this Court. •

In the very case of Buntin vs. Johnson, 27 An. 625, quoted by appellant, the doctrine which we advance was clearly intimated. The Court said:

" The acquiescence which prohibits an appeal, or which destroys an appeal, when taken, is the acquiescence in a decree which commands-something to be done or given. If the thing commanded to be done or given, is done or given, the judgment is acquiesced in. It is a confession that the judgment is correct, and one cannot admit that a judgment is correct and then appeal from it.”

In the case before us, the order of the District Court directed the removal of the suit to the U. S.'Circuit Court. It was a decree susceptible of execution. By taking up the record of the suit ordered to be removed to the U. S. Circuit Court, and invoking the powers of that court, the defendant has executed the judgment and has acquiesced in it. It has also admitted the jurisdiction of that court and has no right to be heard here.

The question of jurisdiction does not appear to have been, at all, raised in the Circuit Court. That jurisdiction is statutory. It can be conferred neither by acquiescence nor formal consent. If that court have no jurisdiction, the defendant may still ask it so to declare; but, under the present aspect of things, we have no authority to say whether the case is one that could be removed, whether the Circuit Court has jurisdiction, whether the District Court properly removed the suit. We must pass upon the motion to dismiss.

We, therefore, decide that the defendant has acquiesced in the decree of removal, which is the judgment appealed from, and that, after doing so, it could not appeal from it. 4 R. 85; 18 An. 62; 28 An. 274, 744; 18 An. 264; 4 An. 150; 14 La. 523; 14 An. 328; 23 An. 38; 29 An. 576.

For the purpose of demonstrating consistency in the two rulings previously made in this case on the application before us, we deem it proper to state, that, when the motion to dismiss was first submitted, it raised an issue of fact, which, under the jurisprudence, we referred to the District Court, and that it is only after the decree of reference was made, that it was claimed that we had misconstrued the attitude of the appellant, who, far from disputing, had admitted the facts. Unwilling that any misconception on our part should effect the rights of either party, we recalled our first ruling and reinstated the previous order of things which we have just considered.

While on this subject, we think proper to say, that the jurisprudence of this Court, in matters of this description, is: that, on a motion to dismiss on the ground of acquiescence by the appellant, the issue of fact, if in the least disputed or doubtful, must be referred to the lower court for inquiry and adjudication, subject to review by this Court. The reference is necessary as this Court has no original jurisdiction in such cases. 28 An. 272; 23 An. 37; 29 An. 576; 20 An. 574; 21 An. 666; 22 An. 31; 32 An. 665.

Nevertheless, where the facts averred in the motion are not controverted, but are admitted, and the Court is not called upon to realize them by an examination of documents, it would be a vain thing to refer to the lower court a matter involving a pure question of law affecting the appellate jurisdiction of this Court, which this Court can and should determine, whenever it is legally possible to do so.

While so holding, we keep in view and reiterate the ruling in 32 An. 665, in which we were pressed upon to deal with a mass of original documents, not found in the transcript, but filed in this Court, and submitted to enable us to ascertain whether a corporation was “ going ” or defunct. It was a fact upon which there was no positive admission in the ably guarded statement of facts signed by counsel.

In conclusion, we distinctly announce, that, as a rule, we will not consider issues of fact raised by motions to dismiss, and that we will pass upon th'e merits of such motions only where the facts are clearly averred by the mover and admitted by the appellant, or appear clearly in the transmitted record.

The motion to dismiss is sustained, and the appeal is dismissed at appellant’s costs.


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    No. 8043.
    E. J. Guéringer vs. His Creditors.
    In the additional delay granted the Appellant to file the Transcript, the last two days not being legal days should not be counted, and he is in time if he files the Transcript on the first legal day thereafter.
    This Court will not pass upon objections to the admissibility of evidence, if the Transcript does not show that the Court below ruled upon the objections and the ruling was properly excepted to for review.
    The wife, as individual creditor of her husband, cannot compete with the partnership creditors of an insolvent firm of which he is a partner, in the distribution of the partnership assets. The fact that the other co-partners had retired from the firm and that the husband alone asked for a respite and made a surrender, does not alter the principle.
    The partnership creditors share equally with the individual creditors in the individual assets.
    APPEAL from the Civil District Court for the parish of Orleans. Monroe, J.

      Chas. 8. Bice for Mrs. Guéringer, Opponent and Appellant:
    First — The creditors, having forced a surrender byE. J. Guéringer; having proved their claims as debts of him, personally; having elected a syndic as his syndic; having caused the property to he surrendered as his, and the syndic having sold the same as Ms, and filed an account for. a distribution of his assets, to which the creditors have made no objections, cannot, at tMs stage of the case, claim these proceedings to be the cessto 6o«o-rum of E. J. Gneringer & Co.
    Second — The facts, being as recited in Eb. 1, above, the creditors cannot, at the same time, claim the proceeds and deny the title by which they are brought into court.
    TMrd — The rents and proceeds of the insolvent’s real estate, amounting to §1752.80, are by law devoted to the pro rata payment of all Ms debts.
    Fourth — The opponent ought to share, not only in said rents and revenues, but also in the proceeds of her insolvent husband’s mercantile assets.

      Breaux & Hall for the Syndic, Appellee :
    •“ Partnership assets are a trust fund for partnership creditors, who must he paid before the partners, and so their creditors, can touch anything.” 2 An. 87, 810; 3 An. 189, 319; 5 3ST. S. 629, 568; C. C. 2823 (2794); 12 La. 370; 13 La. 279; 2 E. 453; 11 E. 130.
    Partnership effects are privileged for partnership debts. 3 La. 497; 17 La. 596; 6 An. 771.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J.

The motion to dismiss the appeal is upon two grounds:

1. That there was no order for the appeal.

2. That the transcript was filed too late.

Eirst. We find from our examination of the record, that there was an order of appeal regular in every respect.

Second. On the 16th December, 1880, the appellant applied for and was granted a delay of ten days for filing the transcript. The 9th day, the 25th, was Christmas; the next, the 26th, was Sunday. It was filed on the 27th of December, and was in time, the tWo last days of the delay not being legal days, should not be counted. 24 An. 333.

The motion to dismiss is, therefore, denied.

On the Merits.

In 1875, Ernest J. Gueringer, Jules Gueringer & A. M. Carriere, established a commercial partnership in the City of New Orleans for buying and selling gentlemen’s furnishing goods, under the firm name of E. J. Gueringer & Co. In July, 1877, Jules Gueringer retired from the firm. The business was still conducted under the same name until March, 1879, when Carriere also retired, leaving E. J. Gueringer in possession of the assets of the partnership to carry on the business in his own name. Two weeks after the retirement of Carriere, Gueringer filed a petition for a respite, citing the creditors of Gueringer & Co. and asking a delay of one, two and three years to pay their respective demands.

In his petition he refers to the business "as lately carried on under the name of Gueringer & Co., a commercial firm composed of petitioner and C. A. Carriere; that the said firm was lately dissolved, the said Carriere retiring therefrom, and your petitioner assuming the debts of the concern.”

The application for a respite was opposed by the creditors and a syndic, selected by them, was appointed to administer the property surrendered. This property consisted entirely of the stock of goods, accounts, &c., of the partnership of E. J. Gueringer & Co., except certain city lots described in the schedule, and buildings thereon. All the prop'erty was sold, and the syndic rendered his account and tableau showing proceeds insufficient in amount to settle one-half the debts, which he proposed to pay pro rata.

Mrs. Gueringer, wife of the insolvent, filed her opposition to the account and tableau, in which she claimed to be a creditor of her husband for ten thousand dollars, and asked to share equally in the distribution of the proceeds with the other creditors.

Her application was dismissed and she has appealed. .

Mrs. Gueringer’s claim is opposed by the creditors on two grounds:

1st. Its existence is denied.

2d. If it exists, it is alleged to be due by the insolvent individually, and cannot legally be paid out of the partnership assets, which should be devoted to the payment of the partnership creditors, and it was averred 'that all the effects surrendered belonged to the partnership.

First. Mrs. Gueringer’s claim was based on a donation alleged to have been made to her by her mother on her marriage, in Havana, in 1871, and to have consisted of ten thousand dollars- in money, which, it was further alleged, had been received by her husband and used by him in his business, in New Orleans. She is clearly not a creditor of the partnership. The proof of her claim consists of the depositions of a number of witnesses taken under commission before the United States Consul at Havana.

The interrogatories to these witnesses were objected to by the counsel for the creditors, before crossing, on the ground that they were leading, and suggestive of the answers. When the depositions were offered on the trial, the objections were renewed. We find from the minutes that they were received “subject to the objections.” It does not appear that any ruling was ever had upon the objections — whether in the decision of the case they were sustained and the testimony rejected, or overruled and the testimony received and considered.

The counsel having failed to obtain a ruling on his objections, and to have the ruling placed on record, and to retain his bill to the same if adverse to him, we cannot consider the objections at this stage of the proceedings, in the entire absence of any ruling of the judge a quo to review. Finding the depositions on the note of evidence, as offered and filed in the case, and not rejected,, we shall accept them as proper evidence, and give them the consideration they are entitled to, notwithstanding the formidable character of the objections made to them. To enable us to pass on an objection to the admissibility of evidence, the record must show that it has been ruled on in the lower court, and the ruling complained of properly brought to our attention by a bill of exceptions. This evidence proves that Mrs. Gueringer did receive from her'mother and turn over to her husband the ten thousand dollars given her.

Second. It is clearly shown that all the property surrendered and sold, with the exception of the city lots and rents thereof, belonged to the partnership, of which the insolvent was a member, and that all the creditors, except the opponent, were creditors of that partnership. The debts due them were for goods bought by Carriere as a member of that firm. As such creditors, they were entitled to the proceeds of those goods, and there is nothing in the proceedings which could be held to affect such right. The counsel for Mrs. Gueringer insists that as the proceeding was instituted by Gueringer individually, and was thus conducted throughout, the creditors mentioned must be considered as his individual creditors, and had lost all rights as partnership creditors. We see no force in this proposition. The members of the partnership were bound to the creditors in solido. Gueringer was the only one of them connected with the proceedings. The creditors did not inaugurate these proceedings, and could not control or change them, and took part in them just as they found them. The retiring of the other members of the firm on the eve of the surrender deprived these creditors of no rights against the partnership, or the individual members thereof, or against the goods sold by them to the partnership. Though the member surrendering had assumed to pay for the goods when the other partner retired, yet this assumpsit did not affect the creditors who were no parties to it nor contributing thereto.

Partnership effects are privileged for the partnership debts. C. C. 2823; 3 L. 497; 17 L. 596; 6 An. 771. The whole partnership assets were properly applied to the payment of the partnership creditors. 6 An. 509; 12 An. 698.

Among the effects surrendered in this case we have mentioned certain real estate consisting of city property. We are satisfied that this property belonged to Gueringer individually, and never at any time formed part of the partnership assets. It was not occupied or used for the partnership business, and there is no evidence that the partnership, or the members of the firm, save E. J. Gueringer, ever had any interest in it. This property (described as No. 28 Ghartres street) sold for $1200, and the rents of this property, also surrendered, amounted to $552 80, making together $1752 80. Mrs. Gueringer is, however, not entitled to the whole of this amount, although it is the individual property of the insolvent, and she an individual creditor; for it is well settled that partnership creditors share equally with individual creditors in the individual assets of the partners. O. O. 3185; 8 N. S. 599; 2 L. 113; 17 L. 596; 3 An. 189. This sum must be distributed pro rata between Mrs. Gueringer, as an individual creditor of her husband, and the other credit tors, appellees, and the judgment’appealed from must be amended accordingly.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be amended as follows : that Mrs. Aurora Mascino, wife of Ernest J. Gueringer, be recognized as a creditor of said Gueringer for $10,000, with legal interest from the filing of her opposition, February 11,1880, and that her opposition to the tableau of EL EL Pearson, syndic, be sustained so far as to allow the said opponent to pro rate with the appellees in the proceeds of the sale of the immovable property of said Gueringer and the rents thereof, amounting to $1752 80, and without prejudiee to the right of the said opponent to assert hereafter the unsatisfied balance of her claim, but not against the funds in question; and the judgment, as thus amended, is affirmed, the appellees to pay costs of appeal.

Mr. Justice Fenner recuses himself, having been of counsel.


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    No. 8303.
    S. Hernsheim & Bro. vs. Isidore Levy & Co.
    On Motion to Dismiss.
    Do Appeal lies from an order transferring a case from one to another Bivision of the Civil District Court for the Parish of Orleans, because such order is interlocutory and cannot cause an irreparable injury. Affirming Decision in 31 An, 47.
    APPEAL from the Civil District Court for the parish of Orleans. Houston, J.

      Joseph P. Hornor and Francis W. Baker for Appellees.

      T. Gilmore & Sons for Appellants.
   Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

. Plaintiffs instituted suit and recovered judgment against defendants, and made several fire insurance companies garnishees by process of attachment. The companies filed exceptions, before the trial of which the syndics of the insolvent defendants made appearance, and suggesting the accepted surrender in insolvency of the defendants, and. that said proceedings were pending before Division C of the said Civil District Court, moved the transfer of the canse to that court from Division B, where the original suit had been filed.

From the order or judgment making such transfer, defendants have taken the present appeal.

Among other grounds, appellees urge* that no appeal lies from a decree ordering the transfer of a cause from one State court to another. In their briefs on this motion, counsel for defendants direct their argument to show that the order of transfer was erroneous.

But these arguments, though strong and learned, are not applicable to the only point at issue. It'is whether the judgment complained of, even if erroneous, would cause irreparable injury to the defendants. As the case could and will be reviewed by us on appeal, the alleged error of the judge in ordering the transfer of the cause, will be corrected, and the cause remanded to the proper tribunal. Thus the injury caused to defendants would be remedied, and it follows, therefore, that it is not irreparable. Art. 566 of the Code of Practice, granting the right of appeal from interlocutory judgments, has been frequently interpreted and expounded by this Court, and was the subject of an exhaustive opinion in the case of State ex rel. Fontelieu vs. Judge, 31 An. 47, in which previous opinions of this Court, on the same point, were fully reviewed.

In that case, our immediate predecessors correctly held and ruled that a judgment ordering the transfer of a cause pending in a State court to another State court, could not cause irreparable injury to any of the parties in the case, whose complaints could be investigated and passed upon in the appeal from the final judgment in the cause.

The question is, therefore, no longer an open one, and appellees' motion must prevail. Todd vs. Andrews, 3 N. S. 25; Powell vs. Kellar, 1 An. 25; Pooley vs. Morehouse, 13 An. 300.

It is, therefore, ordered that this appeal be dismissed at appellants' costs.


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    No. 8323.
    The State of Louisiana ex rel. Martha Selles vs. The Judge of the Twenty-first Judicial District Court, Parish of St. Martin.
    A.PPLICATION for Writs of Certiorari and Prohibition.
    This Court will not issue the writs of Certiorari and Prohibition, in exercise of its supervisory power over inferior courts, except in cases of usurpation of jurisdiction or power. Previous Decisions affirmed.

      Fontelieu, Judge, Respondent.

      Edward Simon for the Relatrix.

      C. FT. Mouton and Mouton & Martin for the Respondent.
   The opinion of the Court was delivered by

Todd, J.

The relatrix applies to this Court for writs of certiorari and prohibition against the defendant judge under the following-circumstances:

On the 2d of August, last, Joseph Dessens, husband of relatrix, alleging that his wife had left the matrimonial domicil on a visit to her parents with his consent, taking with her their child, about two years of age,' and had failed to return to his domicil at his request, or to bring back the child, or surrender it to him when demanded, applied for a writ of habeas corpus to the District Judge named above. The writ was granted, commanding the relatrix to bring before him, the said judge, the child mentioned, and show by what right or authority she detáined him. So soon as the order was rendered, the relatrix presented her petition to one of the Justices of this Court, asking for writs of certiorari and prohibition, with a view to prevent the execution of the writ of habeas corpus or any further proceeding under it. The allegations of her petition are substantially: That the writ of habeas corpus issued without warrant of law. It was denied that, in the absence of any suit between the spouses for divorce or separation from bed and board, the writ could legally issue, and that, in no event, could it issue to wrest an infant still at the mother’s breast, as this child was alleged to be, from the care and keeping of the mother. That, in the granting of the writ, the judge exceeded his jurisdiction; that there was no remedy to the relatrix by appeal; and the supervisory powers of this Court were invoked to prevent an irreparable wrong.

Alternative writs were granted as prayed for.

The judge a quo justifies the is’suing of the writ, and asserts his authority in the premises. It is unnecessary to set forth his answer in detail.

In the case of the State ex rel. Follet et al. vs. Rightor, judge, 32 An. 1186, which was a case of an application for a writ of prohibition, this Court held this language: “ It is not a writ of right. 19 L. 167, 174; 27 An. 336; 29 An. 360. It is an extraordinary one, which can only issue where the court, having no jurisdiction, clearly usurps jurisdiction. C. P. 846; 4 An. 11; 16 An. 186; 32 An. 549, 553.” Tested by this rule, it is plain to see that this is not a case that calls for our interposition through the writ in question.

There is not the least doubt that the judge a quo had jurisdiction over the subject-matter of the proceeding, and his action complained of is not arbitrary and shows no usurpation of authority. In granting the alternative writ, he but exercised a legal dr judicial discretion in a matter over which his authority extended. Besides this, the bare apprehension of an injury does not authorize our interference. State ex rel. Hernandez vs. Judge, 33 An. 923. Non constat that the judge, after hearing the parties, may not discharge the writ and permit the relatrix to retain her child, at least during the tender years of infancy, whilst maternal sustenance and care are essential to his growth and health.

However this may be, under our construction of the supervisory power vested in this Court, and under the rules prescribed heretofore for its exercise, we cannot interfere with the regular course of the proceedings under the writ complained of.

For these reasons the preliminary order heretofore made is rescinded, and the application of the relatrix refused at her costs.