author: Marr, J. Poché, J. Fenner, J.

text:
    No. 6662.
    Neuville Bienvenu vs. Factors’ & Traders’ Insurance Company. John A. Morris.
    On Motion to Dismiss.
    A Motion to dismiss for incompleteness of the Transcript or any mere informality, must be made within three judicial days after the filing.
    When an Appeal is dismissed for failure of the Appellant to file the Transcript in time, it shall be considered as abandoned, and he shall not afterwards be allowed to renew it.
    A Curator ad hoc appointed lo represent an absent defendant, has no right to abandon the Appeal taken by him.
    The terms Curator ad hoc, Attorney ad hoc and Advocate, when used with respect to an absent defendant, all equally indicate the person appointed by the Court to defend him, and no real distinction exists between them.
   The opinion of the Court was delivered by

Marr, J.

Appellee moves to dismiss on three grounds:

1st. That the transcript is incomplete.

2d. That a previous appeal taken by the attorney and curator ad hoo representing defendant, appellant, has been dismissed because of the failure to file the transcript in time. See the case reported, 28 An. 901.

3d. That this previous appeal has been adopted by defendant, and made the basis of an injunction sued out by him to arrest the execution of a judgment in suit No. 27,061, of the Superior District Court.

First. A motion to dismiss for incompleteness of the transcript, or any mere informality, must be made within three judicial days after the filing. Murray vs. Bacon, 7 N. S. 271; Temple vs. Marshall, 11 An. 613.

Second. It has been uniformly decided, since the adoption of the Code of Practice, that when an appeal is dismissed for failure of the appellant to file the transcript in time, “it shall be considered as abandoned, and he shall not be aftewards allowed to renew it.” R. C. P. Art. 592; Rost vs. St. Frances Church, 5 N. S. 594; Champomier vs. Washington, 2 An. 723; Ducourneau vs. Levistones, 4 An. 30; Dwight vs. McMillen, 4 An. 350; Tarleton vs. Wofford, 15 An. 592; Succession of Andrews, 16 An. 340; Redmond vs. Mann, 24 An. 149.

These authorities also show that the failure to' file the transcript in time is .not a mere informality; and that the objection may be made at any time.

The counsel for appellant maintains that he was appointed attorney ad hoe, not curator ad hoc, as the law requires; that he appeared for and represented the defendant, and took the first appeal, under the impression that he had been regularly appointed curator ad hoc; and that appellant who has taken this appeal, propria persona, is not bound or precluded by anything that was done with respect to the first appeal.

In the original petition appellant is described as “ domiciled ” in the State of New York, and as being absent; and there is a prayer for the appointment of a curator ad hoc to represent him. A citation was issued to be served on him; and the return was that he could not be found, after diligent search and inquiry, and that the sheriff was credibly informed that he had no domicile in the State, “and now resides in the State of New York.”

There is an extract from the minutes of 6th November, purporting to be “ motion and order to appoint curator .ad hoc to represent Morris.” In drawing up the motion, which follows this caption, and which was made the order of the Court, the terms used are: “ It is ordered that B.. R. Forman, Esq., attorney and counselor at law, be appointed attorney ad hoc, to represent the absent defendant,” etc.

It also appears that there was charged on the Fee Docket “ notice to B. R. Forman, curator ad hoc,” and that this paper has been lost from the record, and cannot be found. The citation was addressed to “ Mr. B. R. Forman, curator ad hoc;” and, together with a copy of the petition, was served on “ B. R. Forman, curator ad hoc, in person,” on the 9th November, 1875. On this service, default was taken against the defendant, which recites that he, through his curator ad hoc, had failed to appear, although duly cited. Three days after, on the 26th November, Mr. Forman appeared, and had the default set aside, on suggesting that defendant“who is a citizen of New York,” will be present in the city ■about the 1st December, “ and that his presence is material and necessary for this mover to properly appear and answer, and represent the rights of the said Morris.”

On the 8th December, a default was again taken against defendant; and on the 10th December, “ on motion of B. R. Forman, appointed by the Court curator ad hoc,” etc., this default was set aside, and he was allowed to answer; and on that day he filed an answer which begins; ■"Now comes B. R. Forman, appointed by the Court curator ad hoc,” etc. 'This answer, which occupies nearly six pages of the transcript, gives the ■details of the claim set up by Morris to the property in question, calls ■•in a new party, and pleads a reconventional demand; and it is signed •“ B. R. Forman, curator ad hoc.”

Mr. Forman appeared as curator ad hoc, and represented defendant ■on the trial; and an extract from the minutes shows that, on the 20th December, when the case was taken under advisement, leave was •granted to “B. R. Forman, attorney and curator ad hoc of John A. Morris, to file a brief.” Judgment was rendered on the 28th January, and on 2d February, Mr. Forman, curator ad hoc, etc., moved for a new trial; and as curator ad hoc he moved for and obtained an order of appeal. In the body of the appeal bond he is described as “Benjamin R. For-man, attorney and curator ad hoc representing John A. Morris;” and the bond purports to be signed by “Benjamin R. 'Forman, attorney and •curator ad hoc representing John A. Morris.”

"We entertain no doubt of the legality and propriety of the appointment of Mr. Forman as curator ad hoc. The prayer of the petition is •that a curator ad hoc be appointed; and if the words “ attorney ad hoc” were a misdescription, it would have been effectually cured by the prayer of the petition, and by the citation addressed to and served on Mr. Forman as curator ad hoc. When he appeared and had the first default set aside, he thereby accepted the appointment as curator ad hoc, he accepted it again when he had the second default set aside; and through all the stages of this proceeding, he appeared and represented defendant.

TheR. C. C. Art. 56 requires the judge to appoint a curator ad hoc to defend the absentee against whom suit is brought, if he is not otherwise represented; and the R. O. P. Art. 116, requires the plaintiff, who intends to institute suit against a person who is absent and not represented, to demand that a curator ad hoc be named to defend the suit. Article 255, of the R. C. P., styles the person appointed to defend the absent defendant in an attachment, “ advócate;” and article 294 calls the person appointed to defend the absent owner of property against which proceeding in rem is taken to enforce a privilege, “ advocate.” Article 737, calls the person appointed to represent the absent mortgageor in a proceeding via executiva, “ attorney;” and the Act of 1857, p. 84, which authorizes clerks of courts to appoint “ curators ad hoc ” and “attorneys ad hoc,” to represent absent defendants, calls them, in thesuceeeding section, without distinction, “ attorneys.”

The words “ advocate ” and “ attorney,” as used in these several articles of the C. P. and the Act of 1857, are translations of the word “avocat,” which was used in the original French text of the C. P.. Laudais defines avocat, “ celui qui fait profession de dófendre des. causes en justice;” and Webster defines advocate, “ one who pleads the cause of another before any tribunal or judicial court.”

In Louisiana, and in most of the States, except where some special quality or function is to be designated, the same person is called, indifferently, attorney, counselor, advocate; and the words “ attorney ad' hoc,” “ curator ad hoc,” and “ advocate,” when used with respect to an absent defendant, indicate the person named and appointed by the Court to defend him in the suit in which the appointment is made.

We think the description of Mr. Forman in the body of the appeal bond, and in his signature to it as “ attorney and curator ad hoc, representing John A. Morris,” was not intended to indicate a change in his relations to Morris; and that he was, throughout the proceeding, acting, under the appointment of the Court, and not as the employed attorney and agent of Morris.

The curator ad hoc, cited and appearing as such under the appointment of the Court, binds the absent defendant, within the sphere and scope of his duty and functions; but he has no power to waive or to abandon any of the rights of the defendant. If Mr. Forman had prosecuted the appeal which he took, Morris would have been bound by the decree rendered on the appeal. The appeal, which was suspensive,, was dismissed because of the failure to file the transcript in time; and if Mr. Forman had been the employed attorney of Morris, his failure in this respect would, under article 594 of the C. P. and the authorities already cited, have been considered as an abandonment, if the appellant had not himself filed the transcript in time; and the appeal could not have been renewed; but as Mr. Forman was not the attorney, in the ordinary sense of the word, but was sim ply attorney ad hoc, or curator ad hoc, as this description is designed to show, the defendant Morris cannot be considered as having abandoned his right of appeal; and although the right to appeal suspensively no longer existed, because of the lapse of time, Morris had the right to appeal devolutively, as he has done, in person.

The motion to dismiss is, therefore, overruled.

A. B. and C. are owners undivideclly of lots of ground 1, 2 and 3.

D. has a mortgage with the pact De non alienando on the one undivided third interest of C. in the three lots.

A. B. and C. partition the three lots among themselves, and lot 3. is assigned to C.

C. puts a mortgage upon said lot 3 of which he has become sole owner. E., the holder of this mortgage, forecloses it and buys in said lot 3 at sheriff’s sale.

D. takes a judgment against G., seizes and sells his one undivided third interest in the three lots and buys it in, ignoring the previous adjudication to E.

D. then brings a partition suit against A. and B., averring their respective one undivided one-third interest in the three lots; and he, in the same suit, has E. cited, and prays 'for judgment against him decreeing he has no title to lot 3.

In answer to the partition suit, A. and B. admit the title of D., as alleged by him.

Meld: that the pact JDe non alienando availed ID. in executing his judgment against C., as well as if he had proceeded to foreclose his mortgage by executory process; that ID. had the' right to cite E., in the partition suit, to defend the title he lay to lot 3; that quoad E., the suit is petitory and he must establish his title j that quoad A. and B. the suit is for a partition and their title is averred by the plaintiff and needs not be established; that the original extrajudicial partition between A. B. and C. did not affect the mortgages upon their respective undivided interests; that when C. gave a mortgage to E. upon lot 3, it only affected his one undivided third interest in said lot, and when E. foreclosed his mortgage and bought in, he only acquired that one undivided third interest, and only got a title defeasible by the pact De non alienando of ID.: that E., therefore, has no title to lot 3.

^PPEAL from the Sixth District Court, parish of Orleans. Saucier,

Chas. F. Claiborne for Plaintiff and Appellee:

Any alienation or encumbrance of property mortgaged with the pact of non-alienation, is void and of no effect, as against the mortgagee.

The third holder of such property is not a third possessor, nor entitled to the rights of one.

"The holder of a mortgage note secured with such a pact may proceed against the property and the mortgageor, without making party to his suit any third owner, either via executiva or via ordinaA'ia, and just as if the property had not changed owners.

A third owner can set up no defenses which the morgageor could not.

'The interpretation of laws are Tested Bights.

Gibson, Hall & Montgomery for the Insurance Company, on .same side:

A mortgage with the pact de non alienando is not affected by the encumbrance or alienation of the property so mortgaged.

'The owner of property acquired with such a mortgage resting on it can set up no defenses that the person who granted the mortgage could not, and he is not a third possessor, nor entitled to his rights.

Holders of notes secured by mortgage with the pact de non alienando, may disregard a third owner, and pursue the property and the person granting the mortgage, via executiva or via ordinaria.

B. B. Forman for John A. Morris, Defendant and Appellant:

First — Plaintiff (B) who alleges he is owner of only one-third of a property, has no legal interest to ask judicially a judgment decreeing that M has no title to the other two-thirds, and that they be given to O and ID. C. P., 15.

On the Merits.

Second — An action of partition against C and D cannot be cumulated with a petitory action* against M. Mayor vs. Armant, 14 A. 181; Theurer vs. Schmidt, 10 A. 293.

Third — A petitory action is not a summary case, and cannot be fixed and tried as such.

Fourth — Plaintiff, in petitory action, can only succeed on the strength, of his* own title and» not by the weakness of that of his adversary. C. P. 44.

DeArmas vs. New Orleans, 5 L. 183;

Bailey vs. Percy, 44 L. 14;

Landreauxvs. Foley, 13 An. 114;

Hiestand vs. Forsyth, 12 An. 372;

Carraby vs. LeBreton, 2 B. 242 ;

Hart vs. Foley, 1 B. 380.

Plaintiff has proved no title to any property:

(a) Because in the judicial record offered in evidence to prove title, there is no answer,, citation, nor return of same;

(b) Because a second fi.fa. could not legally issue while there was a first writ out partially executed and not returned.

(c) Ho proces verbal nor deed of sale is in evidence.

(d) A person in possession as owner, of a real property, cannot be legally divested by a sale under a writ against another person, without citation or notice to the former.

Fifth — There is no evidence in the record of any title whatever in either Marchand or the-Factors’ and Traders’ Ins. Co., and plaintiff’s claim should be rejected.

Sixth — If a material document offered in evidence is not in the record, the case should be-remanded. Meyer vs. Dupree, 25 An. 216; Barrow vs. Landry, 12 An. 83; Lyons vs. Andrews, 5 An. 602; Agricultural Bank vs. Alexander, 1 An. 246; Evans vs. Murphy, lfc B. 477; Porter vs. Dugat. 9 M. 121.

The opinion of the Court was delivered by

Poché, J.

Plaintiff brings this suit for the purpose of effecting a partition of three lots of ground and improvements, situated on Peters street, in this city, designated as lots Nos. 3, 4 and 6, and owned, as he alleges, in indivisión and in equal shares, by himself, the Factors’ and Traders’ Insurance Company and Alfred Marchand.

He alleges that John A. Morris sets up title to lot No. 6 by virtue of an adjudication made to him by the sheriff, but averring the nullity of that sale, he prays that Morris be decreed to have no title to said lot.

For answer, the Insurance Company and Alfred Marchand recognized plaintiff’s title in indivisión with them, as alleged, and joined in the prayer for partition.

The judgment of the.lower court recognized plaintiff, the Insurance Company and Alfred Marchand as the lawful, joint and undivided owners of the three lots of ground, and ordered a partition of the same, as prayed for, allotting them as follows:

Lot No. 3 to A. Marchand; Lot No. 4 to the Factors’ and Traders? Insurance Company; Lot No. 6 to plaintiff, Neuville Bienvenu, and re-, ferred the parties to a notary public to complete the detail^ of the par^ tition.

The judgment also decreed the pretensions of ownership urged bY John A. Morris as unfounded, null and void.

The Insurance Company and Alfred Marchand, being satisfied with that judgment, have not appealed, but John A. Morris, claiming to be-the lawful owner of lot No. 6, has taken the present appeal.

The important facts of this very complicated case are as follows:

Up to April 26th, 1867, the three lots of ground herein sought to be partitioned were owned, in indivisión and in equal shares, by Mrs. DeLassus, Miss Blanque and Louis Lalaurie.

At that date the three joint owners proceeded, by notarial act, to' effect a partition among themselves of the three lots, which were allotted as follows:

Lot No. 3 to Mrs. DeLassus; Lot No. 4 to Miss Blanque; Lot No. & to Louis Lalaurie.

The act of partition contained a recital of the mortgages affecting the lots thus disposed of, in the name of each respective owner, who severally took the engagement to have the mortgages recorded against him cancelled within the shortest possible delay.

From this statement it appeared that the undivided share of Miss Blanque was affected with a mortgage of $4000, dating from the 5th of September, 1865; the share of Mrs. DeLassus, with a mortgage of $1000, dating from the 1st of December, 1863, and another mortgage for $4013, dating from the 18th of September, 1866, and that of Louis Lalaurie, with two mortgages in favor of plaintiff, Bienvenu, one for $1000, dating from March 10,1866, and the other for $2000, dating from the 23d of June, 1866.

In 1875 the mortgage affecting Miss Blanque was foreclosed, under which the Factors’ and Traders’ Insurance Company became the owner of her share of the property in question.

On the 22d of June, 1871, Lalaurie, claiming to own the whole of' lot 6, by effect of the act of partition of April, 1867, mortgaged it for $16,000, in foreclosure of which mortgage, in 1873, said lot No. 6 was-adjudicated to John A. Morris.

In May, 1874, plaintiff, Bienvenu, obtained a judgment against Lalaurie for two thousand dollars, recognizing and enforcing his mortgage-rights under the act of June 23,1866, and, under a fi. fa. issued under his judgment, the share of Lalaurie, in lots 3, 4 and 6, was adjudicated to Mm in June, 1875.

In January, 1873, by private sale, Alfred Marchand purchased lot 3¡ from Mrs. DeLassus.

Thus stood the property when this partition suit was instituted.

.In his answer, John A. Morris complains that this action is a petilory action, and that plaintiff should be held to comply with the rules governing that action.

The answer to this position is that, having purchased property at a sheriff’s sale, under a second mortgage, Morris himself, in vindicating his title in these proceedings, occupies the position of a plaintiff in a petitory action, who must succeed on the strength of his title, and not on the weakness of his adversary’s.

jHe also complains that the Insurance Company and Alfred Marchand have shown no titles to their respective lots.

Their alleged co-owner, Bienvenu, who sues for a partition, is satisfied with their titles.

If Morris can claim any title at all in the premises, as resulting from the foreclosure of the Lalaurie mortgage of June, 1871, he must rest his claim on the legality and binding effect of the act of partition of April, 1867, and in that case he has no concern to investigate or ascertain the ownership of either lot 3 or lot 4.

If the partition of 1867 is null, then Lalaurie did not own lot No. 6, and his mortgage could, at most, affect but one-third of that lot, and, under that state of the case, Morris would have no more authority to look into the ownership of lots Nos. 3 and 4.

He finally urges the want of title of plaintiff himself, by reason of the nullity of his judgment against Lalaurie, and .by further reason of his having proceeded to seize and sell property in the possession of Morris as owner, without process against him.

He urges as nullity of plaintiff’s judgment that there was no answer, citation or return of service. While it is true that the record does not contain the citation or return in the suit, yet it does not appear that there was no citation or return; on the contrary, in ordering a default against Lalaurie, the judge says that the defendant had been duly cited, and in such a case the'rule omnia rite acta, etc., must apply.

Appellant further urges that plaintiff has failed to produce the sheriff’s deed to him. But the record shows that it was offered in evidence by plaintiff’s counsel, and the absence of the document from the transcript, even after the writ of certiorari, cannot be attributed to him. We find in the record the sheriff’s return on the writ of ji.fa., showing his adjudication to plaintiff, and that is sufficient. 29 An. 270. In this connection we must dispose of appellant’s prayer in his brief, asking us to remand the cause, for the reason that several important documents offered in evidence below are now missing. We have already shown that appellant could not be heard to contest the titles of either the Insurance Company or Alfred Marchand to lots 3 and 4; their titles are admitted by plaintiff in suing them for partition, and we can, therefore, treat them as owners without viewing their titles, which appear from the record to have been exhibited in the lower court, and are now missing 'in this most extraordinarily mutilated record.

But as the transcript contains sufficient evidence to enable us to adjudicate upon the issues presented in the case, and to do justice between the parties, and the nature of the missing documents being such •as to give no reasonable hope of recovering them, we fail to perceive the necessity or the wisdom of appellant’s suggestion, and we must, therefore, deny his prayer to that effect. .

In answer to a writ of certiorari, calling for these very documents, the clerk answers that, after diligent search, he has been unable to find them; and we think that nothing could be gained by further delaying a decision of the cause. As we have stated above, if Morris has any .rights to this property, he must derive them from the Lalaurie mortgage of June, 1871, which itself depends upon the effect to be given to the extrajudicial partition of 1867; and upon the rights which Lalaurie may have acquired under that partition to mortgage, dispose of, or otherwise alienate the whole of lot No. 6, of which he previously owned but one undivided third. A proper solution of this problem, upon which the judgment of the lower court is painfully silent, will at once dispel all the difficulties of the case.

Our jurisprudence is so well settled on the following points,-that we shall deal with these propositions as axioms under our laws.

1st. The mortgageor can perform no act which impairs the obligation of his contract.

2d. That the holder of a mortgage cannot be affected by any subsequent alienation or transfer of the property mortgaged to secure his debt, and if his mortgage contains the pact de non alienando, he can enforce his mortgage against the mortgageor without reference tó the vendee of the latter, who has acquired no greater rights than the mortgageor and cannot set up defenses which the latter could not. 2 N. S. 33; 4 An. 324; 13 An. 241; 27 An. 207; 32 An. 808,. and numerous other authorities therein quoted.

3d. That an act of partition among co-owners of undivided property imports acts of alienation.

By reference to the extrajudicial partition which Miss Blanque, Mrs. DeLassus and Lalaurie attempted to operate in the act of April, 1867, it is shown that the undivided shares of all the owners were affected heavily with mortgages of anterior date.

In allotting to Mrs. DeLassus lot No. 3, it could not be transferred free of the mortgages affecting it in the name of Miss Blanque or of Lalaurie, the same holds of each other lot.

It follows, therefore, that the transfer of lot 6 to Lalaurie did not effect the rights of the creditors of Mrs. DeLassus and Miss Blanque.

For the same reason, no effect could follow the transfer of lot 4 to Miss Blanque, as to the creditors of Mrs. DeLassus and Lalaurie, and the same consequence attached to the transfer of lot No. 3 as to the creditors of Lalaurie and Miss Blanque.

It follows, therefore, that quoad these various mortgage creditors, any mortgage right granted by Lalaurie, in the act of June, 1871, was subordinate or second to the rights of s.aid mortgage creditors on said* lot, and, therefore, to all intents and purposes, in so far as it could' affect these mortgage creditors, the extrajudicial partition was inoperative, and by the mortgage of Lalaurie of June, 1871, and under the-sale and adjudication made thereunder, John A. Morris acquired no rights or title to lot No. 6, which could, in the least, affect or impair-the mortgage rights acquired by the pre-existing creditors of all three of the joint and undivided owners.

Hence it follows that in 1875 the seizure of Miss Blanqúe’s undivided share in the three lots by the Factors’ and Traders’ Insurance Company embraced one-third of lot 6, which passed under the sheriff’s adjudication to the Insurance Company, thus destroying at the same time Morris’ right of mortgage under the act of 1871, and his title under the adjudication of 1873 to that third of lot 6.

The same result followed as to lots 3 and 4 by the seizure of Bienvenu under his judgment recognizing his $2000 mortgage. No seizure was made of the rights of Mrs. DeLassus, but under these two seizures-such rights of ownership of lot 3, as she had acquired under the extrajudicial partition, were destroyed, as being secondary to the mortgage rights'of the creditors of Lalaurie and Miss Blanque. If the consideration for which she had transferred her interest or share in lot 4 to Miss Blanque, and in lot 6 to Lalaurie, thus failed, it follows that the transfer was annulled, and she was, by operation of law, restored to her-original position as owner of one undivided third of lots 3, 4 and 6; and' we hold that this was the interest which passed to Alfred Marchand by-the act of January 28,1873.

But appellant contends that Bienvenu having taken a judgment against Lalaurie, and having issued a fi.fa. under his judgment, could not, in law, proceed against appellant’s property without process-against him.

It is not disputed that by proceeding via executiva the holder of a. mortgage containing the pact de non alienando can ignore any subsequent alienation of his mortgageor, and follow the property in any-hands without notice to the subsequent vendee or possessor.

And it therefore appears that we are called upon to recognize a-difference as to the mortgage rights of the plaintiff between the two-modes of proceeding. But such a difference does not exist either in logic, reason or law, and we cannot sanction the doctrine. The holder-of a mortgage importing a confession of judgment is authorized by law-to proceed by executory process against his debtor’s property, and we-cannot see how any of his mortgage rights can be restricted by a judgment of a competent court condemning his debtor personally to pay him the amount of the debt, and recognizing his mortgage rights. We-understand, on the contrary, that by such a judgment the rights of the-mortgagee are enlarged, instead of being curtailed or abridged.

Under his mortgage the creditor is confined in his seizure to the-property mortgaged in his favor. But if his claim has ripened into a. judgment, he can seize, besides the mortgaged property, if it be not sufficient to satisfy his demand, any other property belonging to his-debtor.

We are at a loss, therefore, to perceive any strength in the position that a creditor, proceeding via ordinaria, is debarred from following the-property of his mortgageor in the hands of any vendee, and without, process against such vendee.

It follows, therefore, that the Bienvenu seizure and purchase had’ ■ for effect to destroy the title of Morris to the third of lot No. 6, and that the property was owned, as alleged, in indivisión and in equal shares, by plaintiff, Alfred Marchand, and the Factors’ and Traders’ Insurance Company, and that the judgment of the lower court is correct.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed at appellant’s cosrs.

Justice Levy takes no part in this decision.

On Application for Rehearing.

The opinion of the Court was delivered by

Fenner, J.

After an attentive examination of the grounds assigned for a rehearing in this cause, we think no end of justice could be sub-served by granting the same.

The only substantial controversy in the case is whether plaintiff or-John A. Morris is the owner of the interest in this property which-originally belonged to Louis Lalaurie.

If plaintiff owns the whole interest which belonged to Lalaurie, it. is evident that Morris can own no interest, because he derives nothing-except through Lalaurie.

The case was not affected by the conventional change in the particular property representing Lalaurie’s interest, under the partition of' 1867. That convention was conditioned upon his (Lalaurie’s) and his co-contractor’s removing the encumbrances with which their respective undivided ini erests were burdened.

The judicial enforcement of plaintiff’s mortgage on Lalaurie’s undivided interest in the whole property and the sale thereof, operated a "breach of the condition, which ipso facto destroyed the partition of 1867, and left Lalaurie and his assignees, voluntary or forced, no interest whatever in the property.

As between the plaintiff and Morris the action is petitory in its - •character so far as concerns the one-third interest of lot No. 6 of which plaintiff claims the title against Morris in possession. To this extent plaintiff was necessarily bound to establish his title, and for the reasons stated in the original opinion, we think he has conclusively done so, and that the objections urged against the sufficiency of that proof are not sound. But as plaintiff in a partition suit he had the unquestioned right to summon all claiming to be holders of rights in indivisión with him, and to have the Court determine their respective claims and titles, in order that he might have his partition contradictorily with the proper parties. This did not make the co-defendants of Morris plaintiffs in a petitory action against Morris. It simply required all parties to come forward and set up their respective titles.

The record clearly establishes that Morris has no title whatever.

The remaining undivided interests belong either to Mrs. DeLassus •and Miss Blanque, or to their assignees.

The Insurance Company and Marchand claim to be such assignees— the plaintiff admits them tobe — the Court, upon evidence which, though absent from this record, was before the judge, decides them to be. It is a question in which Morris has no interest. The important evidence missing from the transcript affects this question, and no other.

Morris is not entitled to have the cause remanded on that account, and could derive no benefit thereby.

Rehearing refused.


source: Caselaw Access Project

author: Poche, J.

license: Public Domain

text:
    No. 6812.
    Henry T. Lawler vs. Alexander Levy.
    Plaintiff discloses no cause of action in a suit for damages on account of a malicious prosocution, -when lie does not aver the termination of the prosecution.
    ^PPEAL from the Sixth District Court, parish of Orleans. Mghtor,

      J. O. Nixon, Jr., for Plaintiff and Appellant.
    D. G. & L. L. Labatt for Defendant and Appellee.
   The opinion of, the Court was delivered by

Poche, J.

Plaintiff sues for twenty thousand dollars as damages for ¡an alleged malicious prosecution.

He complains that in a suit entitled Alexander Levy vs. Flash, Lewis & Co. and himself, he was charged by defendant with a conspiracy with said Flash, Lewis & Oo. in illegally depriving defendant of certain letters and a package of gold and certain drafts, consigned to him by one of his debtors, through a common carrier, owned and controlled by-plaintiff.

He has appealed from the judgment of the lower court dismissing; his suit'on an exception of no cause of action.

Defendant urges that plaintiff’s petition is fatally defective, in failing to aver that the alleged malicious prosecution against him had been terminated; and we think that the District Judge correctly sustained those views.

It has been frequently held by the courts that, in a suit for malicious, prosecution, the plaintiff must prove;

•1st. That he has been prosecuted by the defendant, either criminally or in a civil suit, and that the prosecution is at an end.

2d. That it was instituted maliciously and without probable cause.

3d. That he had thereby sustained damages. 12 A. 333; 15 A. 421; 16 A. 1.

It is elementary that, having failed to allege the termination of the alleged malicious prosecution, he could not be allowed to prove it on trial, and that his petition, therefore, lacked an essential averment, in default of which it disclosed no cause of action.

And, besides, the want of probable cause for the prosecution instituted by Levy, is an issue which must be disposed of in the original suit, upon the final disposition of which the right to claim damages by plaintiff in this suit essentially and exclusively depends.

But plaintiff contends that the District Judge should have allowed him to amend his petition, so as to include the missing averment. It does not appear that he offered to amend, or called upon the judge to-exercise his legal discretion in this respect.

Plaintiff next contends that, under the allegation of the publication, in the public journals of the City of New Orleans, of the petition filed against him, at the instance of the defendant, he has presented a clear cause of action.

We answer, that if the petition was not characterized by malice, and ' was based on probable cause, the publication of the same was not malicious, and could give no ground for an action in damages. And, further, that the determination of such act depended upon the final decision of the suit, in anticipation of which no action could be maintained on the ground set forth.

If the suit was justifiable in law, the fact of communicating knowledge thereof to the public, could certainly not be construed as malice on the part of the plaintiff in the suit; the injury which might result to his opponent .being the legitimate consequence of his own acts, and no ■damages could be claimed of him for publishing a petition and pleadings, .■justified by the wrongs inflicted on him, under the evidence.

As all the issues under which plaintiff in this case could alone base his right to damages must first be passed upon and adjudicated in the ■original suit, and as plaintiff fails to inform the Oourt whether or not, or how these issues have been disposed of, his petition is fatally defective, •and defendant’s exception was properly maintained.

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


author: Todd, J.

text:
    No. 8111.
    Wm. C. Harrison et al. vs. City of New Orleans et al.
    An Injunction does not lie to restrain a municipal Corporation from passing an Ordinance. 'The Petition of Plaintiff applying for the Injunction, discloses no cause of action.
    ^PPEAL from the Civil District Court, parish of Orleans. Tissot,

      W. 8. Benedict for Plaintiffs and Appellants.

      Kennard, Howe & Prentiss for the Railway Company, Defendant and Appellee:
    ¿First — It is elementary tliat no action lies to enjoin the mere passage of an ordinance by a municipal corporation. Such an ordinance can do no injury, in a legal sense, much less any irreparable injury.
    ^Second — The petition at bar present a case where the plaintiffs are undertaking illegally to interfere with municipal legislation and administration in a matter peculiarly within the province oí the City Council, under the powers delegated to it by the Legislature of the State. A railway is an improved public highway. ¿Tones on Railroad Securities, sections 99, 159, 227, 228, and cases cited; 30 An. 987; 19 Wall. 666, The law gives the defendant company the right to pass through streets. Acts 1876, p. 31. The question as to methods under this grant, if any further consent be required, rests with the Common Council. The streets are public things, the title being in the public, or in the city for public use. 4 Martin, 97; 1 An. 128; Dillon Munc. Corp., sections 514, 555, 556; 13 La. 326. And the right of the Legislature and the city to prescribe methods of using the streets, whether by floats, timber-wheels, processions, funerals, or oars is undoubted. 26 An. 529 ; Dillon, sections 555, 556, and Dotes; 21 Pa. State, 169.

      O. F. Buck, City Attorney, on same side.
   The opinion of the Court was delivered by

Todd, J.

The plaintiff sued out an injunction against the Mayor and Administrators of the City of New Orleans and Common Council thereof to restrain them from passing or voting upon any ordinance “ concerning the right of way to the New Orleans Pacific Railroad Company, or any ¡company, to lay or erect tracks upon Thalia street, from Claiborne street ■to the levee, or authorizing said tracks to be laid in said streets. ■

The defendants excepted, on the ground that the petition disclosed no cause of action, which exception was sustained, the suit dismissed •and injunction dissolved.

From this judgment the plaintiffs have appealed.

The judgment of the Court a qua is correct.

In a recent case, decided by this Court, Slaughterhouse Co. vs. Police Jury of Jefferson, Opinion Book 53, folio 546,we held, that no injunction would lie to restrain a municipal corporation from passing or voting on any ordinance. In fact, this principle is elementary. Municipal corporations are clothed with legislative power, to be exercised according to their discretion, with reference to all subjects pertaining to their . administrative functions. To allow them to be impeded or restrained .in the exercise of these powers, at the will or caprice of any one who ■may believe that such or such actor ordinance might prove injurious to ■Mm, would interfere seriously with and completely disarrange the administration of the government of a city or other municipal corporation.

Besides, injunctions are designed or intended to prevent actual or impending injuries, and prohibit acts from which such injury, loss or damage must inevitably result.

In this case non constat that the city will ever pass the apprehended ■ordinance. If it is passed, non constat that the railroad company, or •companies, will ever accept its terms, or exercise the privilege or franchise granted.

The mere voting on or passing the ordinance in question cannot per ■se do the plaintiff any possible injury. It will be time enough to complain, if it be a subject for complaint, when steps are taken, or a beginning made, to put the ordinance into actual execution.

The judgment appealed from is affirmed with costs.


author: Levy, J.

text:
    No. 8114.
    State of Louisiana ex rel. John C. Bach vs. Recorder of Conveyances.
    ’ The Register of Conveyances of the Parish of Orleans is "by lawbound to furnish to the Board of Assessors a monthly statement and certificate of all conveyances recorded in his office, ■without requiring stamps or making any charge therefor,
    APPEAL from the Civil District Court, parish of Orleans. Houston, J.

      G. F. Buck and Wynne Rogers for the Relator, Appellee.

      L. Arnaulcl, Register of Conveyances, Respondent and Appellant, propria persona.

   The opinion of the Court was delivered by

Levy, J.

The Board of Assessors of the State of Louisiana and' parish of Orleans applied for and obtained a writ of mandamus, compelling L. Arnauld as Register of Conveyances for the parish of Orleans to furnish relators with a weekly statement and certificate of all conveyances and transfers of property and real rights recorded in the books of his office, or show cause to the contrary.

The defendant, the Recorder of Conveyances, for answer to relator’s petition alleges, “ that, under Art. 146 of the Constitution of 1879 and Act 136 of the General Assembly of 1880, he cannot legally comply with the' demands of relators. That the said constitution and law inhibit him-from issuing any copy or certificate without the required stamps are-affixed thereto and appropriate the funds arising from said stamps to a special purpose which the Legislature or courts cannot divert therefrom.”'

On trial the mandamus was made peremptory, and the judgment of' the court decreed “ that the said L. Arnauld, Register of Conveyances-for the parish of Orleans, be and he is hereby ordered and commanded to furnish relators with a weekly statement and certificate,” etc., without, requiring any stamp or stamps, or making any charge whatsoever.

The defendant has appealed from this judgment.

The objection made by the defendant to that portion of the judgment which requires the Register to furnish the Board of Assessors with a weekly statement and certificate of all conveyances and transfers and real rights recorded in his office, must be maintained. See. 3164 R. S. is as follows : “ It shall also be the duty of the Register of. Conveyances,. every month, to transfer to the Board of Assessors of New Orleans, a list of all conveyances recorded in his office during the month.” We are referred to no law changing this section and requiring weekly lists to be-furnished, nor are we aware of any statutory enactment to that effect.

Defendant contends that the State is simply the trustee of the fund' which’she has created and directed to be set aside as a special fund out of which shall be paid, by preference, the judicial expenses of the-parish of Orleans and the salaries and expenses of the officers designated in Art. 146 of the Constitution of 1879, and the State is inhibited by that article from making any payment to such officers except from such special fund, and from making any appropriation contrary to this provision.

He also contends that the State has fixed the costs and charges of all certificates, etc., which may be given by him, or issued from his office, and that Act 136 of 1880 requires: that the costs of the Register of Conveyances, as fixed by law, “ shall be paid by a stamp or stamps, for the requisite amounts which shall be affixed as hereinafter provided; and no document shall be received, registered or recorded, certificates. or copies issued, or services rendered, unless the proper stamp or stamps have been so affixed.” Also, that by law, “ the City Council shall appropriate not more than $12,500 for the payment of the clerical forces and. contingent expenses of the Board of Assessors,” and he insists that “ contingent expenses comprise also costs for stamps required by the Board.”

It is admitted, in the record, that the Oity of New Orleans has agreed to pay the amount of $12,500, and the payment of the clerical force and expenses of the Board exhausts the amount, and is exclusive of the amount that would be necessary to pay for these certificates to be furnished by the Register, and that after the clerical force and contingent expenses are paid up to the 1st of January, 1881, there will be from $700 to $800 unexpended.of the $12,500.

The Oity Attorney stated that this $800 would in all probability never be collected, and it is improbable that the clerical force would be paid in full.

The liability imposed upon and the appropriation required by the city are distinctly and unmistakably set forth, and nothing beyond the express requirements of the law can be exacted or should be demanded of her. That, payments to the Register for the certificates which the law requires him to furnish are or can be embraced under the head of contingent expenses is wholly inconsistent with the meaning of the term, “contingent expenses.” The definitions of the word contingent by standard lexicographers and by law-writers are: 1st. “Happening by chance; not determined by any certain rule; not definite or fixed; uncertain; accidental; casual. 2d. (Law). Dependent upon an uncertainty, as a contingent legacy. (Blackstone).

The furnishing of the monthly certificates is fixed definite, certain; is specially provided for in an act distinct from and independent of the provision in the Act of 1880, No. 77, which requires that the city “ shall appropriate not more than $12,500 for the payment of the clerical force and contingent expenses of the Board. It seems to us that it wotild be a most latitudinarian construction to include under the head of this appropriation for contingent expenses of the board, and payment of its clerical force, the charges incident to separate and distinct services imposed by different enactments, which services are fixed and certain, although it is true the value or compensation for them, if due at all, may be fluctuating and varying in different months.

These expenses would be by no means contingent if an appropriation to defray them were made in the words: a certain amount “ or so much thereof as may be necessary for that purpose.” If any one is liable for these costs, it is not the city but the State.

Is the State liable ? We think not. These services are imposed by the State upon one of her officers, for whom a stated salary is provided, and this in lieu of fees and. perquisites which had at one time been allowed. No law grants any compensation for the performance of the duties thus imposed. The service is imperatively required by the State itself, and it is but fair and reasonable to infer, in the absence of any provision made by her for the payment of these specific services, that the salary attached to the office of Begister was intended to cover them. It may happen that the fund out of which his salary is to be paid may prove insufficient to satisfy the Begister’s just demand, but while much to be deplored, it is but one of many instances of disappointments experienced by those who hold office, and evokes sympathy and condolence without justifying unauthorized relief.

The reasons given for the judgment rendered by our brother of the District Court, are cogent, conclusive and in full accord with our own views. He says: “ The Court considers it competent for the State to require officers to perform certain services for the State, without any compensation for their services. That such services should be regarded as appertaining to the position that the officer holds and one of the conditions under which he assumes to exercise the functions of his-office, and to receive the emoluments thereof.”

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be so amended as to require the Begister of Conveyances of the parish of Orleans to furnish to the Board of Assessors a monthly instead of weekly statement and certificate of all conveyances and transfers of property and real rights recorded in the books of his office without requiring any stamp or stamps, or making any charge therefor, and in all other respects said judgment be affirmed; and that, the appellee do pay the costs in both courts.


author: Poché, J.

text:
    No. 8096.
    State of Louisiana vs. Fred Hobbs.
    -A.n Indictment for murder is not defective because it does not state tbe time at which, the-deceased died, when it states the day on which the wound was inflicted, which caused, the death of said deceased. The averment is sufficient even if a number of days elapsed between the infliction of the wound and the death.
    APPEAL from the Twenty-Second Judicial District Court, parish of St. James. Cheevérs, J.

      J. C. Egan, Attorney General, for the State, Appellee.

      Sims & Poclw for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

The accused appeals from a verdict of murder without «capital punishment, and assigns as errors the following grounds:

First. That the indictment for murder is detective, because it does not set forth the time at -which deceased died, the coroner’s inquest showing that he died more than forty days after the infliction of the alleged fatal wounds.

We find that the indictment charges that the murder was committed on the 27th of March, 1880; and under such an averment it was competent for the State to prove the time at which the fatal blow or wound was inflcted, and at what time, in consequence of such blow or wound, the deceased died.

The essence of the crime of murder is the infliction of the wound from which death ensues, and an averment that the crime was committed at the date at which the deed was performed, or the blow or wound inflicted, is a proper averment of the time of the murder, even though several or many days may elapse before death ensues from the deed. R. S„ 1063; 31 An. 146.

But even if the indictment had been defective in the respect complained of, the accused could not have urged that error by means of an assignment of errors, as done in this case. The fact that death followed the infliotion of the wounds more than forty days later, is a question of fact elicited during the trial, and could not be considered by us unless embodied in a bill of exception showing that such fact was closely blended with a question of law invalid in the trial of the cause. State vs. Nelson, 32 An. 842.

Second. The accused complains that no counsel was assigned to him for his defense. But the record shows that when arraigned, the accused was asked if he had counsel, to which he answered that he would secure the services of an attorney; and the record shows that he did employ, and that at every stage of his trial he was represented and defended by the zealous counsel who appear in his behalf on this appeal, but who have, however, failed to favor us with a brief in support of their numerous alleged grounds of error.

The accused also urges as additional irregularities, that the record fails to show the following essential requisites to a legal trial; That he was present, when his case was fixed for trial, when the verdict of the jury was returned into court; that his counsel were present when he was sentenced; and, finally, that the record does not show what disposition, if any, was made of a motion for a new trial filed by the accused.

The record shows that since the foregoing assignment of errors was presented and filed in this Court, in answer to a writ of certiorari, issued at the instance of the State, the clerk of the lower court has sent a supplemental transcript showing affirmatively, by extracts from the minutes of the court, that the accused was present at every stage of his trial, and that his counsel were at his side when hewg,s sentenced; and that his motion for. a new trial was argued and overruled by the court, and that, therefore, all these grounds of complaint are not sustained by the record.

There is no error in the judgment of the' lower court, and it is, therefore, affirmed with costs.


text:
    No. 8106.
    State of Louisiana ex rel. J. C. Egan, Attorney General, vs. Hiram Follett.
    What, under the laws of Congress and of this State, constitutes the Port of New Orleans.

      A Branch Pilot of the Port of New Orleans, who has his domicil in the Parish of Orleans, must be sued in said Parish under the “Intrusion Act",* and notin the Parish of Plaquemines, on the ground that such a person has no laud domicil and that his functions are exclusively exercised within the latter Parish.
    APPEAL from the Civil District Court, parish of Orleans. Monroe, J.

      J.- G. Egan, Attorney General, Relator and Appellant:
    First — The office of Branch Pilot of the port of New Orleans is a State office, and has no duties connected with the parochial affairs of any parish.
    Second — The duties of a Branch Pilot of the port of New Orleans are to be performed afloat ; the office is aquatic, of a marine character; its duties are all performed on water, and are not such as to enforce any domicil on land as the situs of performance.
    Third — The law of Louisiana never contemplated a floating domicil, or a home afloat, or a domicil at sea, or “A life on the ocean wave,” as conferring any domicil or determining the jurisdiction, ratione personas, of ils courts and shifting jurisdiction away from the shore domicil of the defendant.
    Fourth — The general rule is, that in all suits in personam the defendant must be sued at tbe parish of his domicil, and the action to provide for the removal of persons unlawfully usurping orintruding into and unlawfully holding office (R. S. see. 2593 efc seq.), is not an exception to the general rule.
    Fifth — Under the provisions of the sections of the Revised Statutes above referred to, a suit to oust a defendant residing in tbe parish of Orleans from the office of Branch Pilot of the port of New Orleans, usurped by him, must be brought in the Court of the parish of Orleans, where he is domiciled.

      E. Howard MeCaleb and Brioe & Pardee for Defendant and Appellee;
    First — The State has no interest in the fees of the office of Branch Pilot of the Port of New Orleans. R. S., Sec. 2703 ; 27 A. 69. Therefore, when the State is sole plaintiff in an “In. trusión into offioe” suit, the Court will efrojficio notice the want of a moneyed interest sufficent to give jurisdiction, and dismiss the appeal.
    Second — A Branch Pilot of the Port of New Orleans is a State officer, appointed and commissioned by the Governor, and required to give bond. R. S. Secs. 1583, 1584, 2686, 2687, 1585, 2688; Act No. 99 of 1880; 14 A. 7. The “port of New Orleans ” embraces several parishes and “all the waters and shores of the Mississippi river.” Eev. Stats, of XT. S. 2568. Hence, the duties of a pilot of the “Port of New Orleans ” need not necessarily be confined to the city limits.
    Third — The boarding stations, passes, bars and months of the river, where Branch Pilots perform their official duties, in piloting vessels over the bars, are all within the territorial limits of the Parish of Plaquemines. E. S. Sects. 2709, 2693, 2695, 2696,- 14 L. 485; 16 A. 360. The Court will judicially notice a geographical fact. .11 A. 432; 2 E. 403. .Although the duties of a Branch Pilot are to be performed on water, the Judge of the District Court of Plaquemines parish has jurisdiction over both land and water within the territorial limits assigned him.
    Eourth — The office of Branch Pilot is conferred for life or during good behavior. The acceptance of such an office operates an immediate transfer of the domicil of the officer to the parish where he is to exercise his functions. E. C. C. Art. 45; 4 L. 69; 12 L. 190; 28 A 243; Phillimore on Domicil, Ch. Vil, CXEII; Duranton 1,11. 3 du Domicile; Merlin Eep. de Juris. Domicil, HI Du Dom. des Pones. Pub.
    Pifth — Suits under “ The Intrusion Act ” must be brought by “the District Attorney of the parish where the case arises.” E. S. Sec. 2404. “The case arises” where the acts of intrusion and usurpation are done, and where the functions of the office are performed. A judge cannot exercise jurisdiction beyond the territory assigned him. C. P. 90. Where the acts of usurpation and intrusion complained of occur beyond the jurisdiction of the court in which the suit is filed, it should be dismissed.
    Sixth — The “Intrusion Act” resembles the ancient writ of quo warranto (Blacksfone, Book HI, *263; High Ex. Eemedies, § 591), and proceedings thereunder are essentially of a criminal nature. 21 A. 655. Usurpations of and intrusions into offices are crimes against the State, and under the statute the venue must be stated in the information, and suit instituted in the parish where the cause of action arises. E. S. Sec. 2599; 30 A. 593. The acts alleged in plaintiff's petition are violations of a criminal statute (Sec. 2 of Act Ho. 63 of 1877), and, like trespass (C. P. 165), such a suit should be brought before the court where the alleged offense was committed.
    Seventh — It matters not where a usurper’s domicil may be, it is the act of usurpation that gives the Court jurisdiction, and a'suit to oust him should be instituted before the tribunal of the locality where the functions of the office are performed. The duties to be performed by a State officer may be confined to particular territory. 32 A. 691.
    Eighth — The cases in 21 A. 258 and 550, involved entirely different questions from those , arising in the cause in hand.
   The opinion of the Court was delivered by

Todd, J.

The petition charges that the defendant, “ before, and on the 10th November, 1880, did unlawfully usurp, intrude into and unlawfully exercise the office, rights and franchise of Branch Pilot of the port of New Orleans, in this State, and still does so unlawfully usurp,intrude into and unlawfully hold and exercise the office and franchise of such pilot of the port of New Orleans.” It is alleged that the emoluments of this office exceed the sum of $2000 per annum, and the petition con^ eludes with a prayer that the defendant be adjudged to have unlawfully intruded into said office, and be ejected therefrom.

The proceeding was intituted before the Civil District Court of the parish of Orleans, and at the domicil of the defendant.

The defendant excepted to the action, on the ground that the court was without jurisdiction ratione materice, because the action must be brought where the case arises, and that under the laws on the subject the functions of the office in question were to be performed exclusively within the jurisdiction of the District Court of the parish of Plaquemines; and for the same reason it was urged that the Attorney General was without authority to institute the proceeding, his authority extending only to such cases as may arise in the parish of Orleans.

The exception was sustained, and the suit dismissed, and from such judgment the State has appealed.

We find from an examination of the laws, Federal and State, bearing on the subject of this controversy, the following leading provisions:

The port of New Orleans includes the parish of Orleans and other parishes, and all the waters of the Mississippi river, and of the rivers which empty into it within the State, with certain declared exceptions.

Not less than fifty pilots are to be appointed for the port of New Orleans, and it is conceded by both parties to this controversy that such • pilots are State officers. It is required that pilots must give bond in the sum of $2000, with two sureties residents of the City of New Orleans, to be approved by the Master and Wardens of the port of New Orleans.

All pilot boats are required to exhibit certain kind of lights, “ and to cruise to the seaward, from the mouth of the Mississippi, five nautical miles.” It is clear from these provisions that the duties to be performed by these officers are on the waters of the rivers and the sea, and are ■designed, as their name implies, for the benefit of the port of New Orleans and the commerce of that port. And their functions extend «everywhere within the limits of the district that pertain to the port of New Orleans, although certain specific acts pertaining to these functions may be more or less confined to certain localities in that district.

It seems to us a palpable perversion of the meaning of the law to argue that the acts and functious of this officer pertain alone to the parish of Plaquemines, because certain duties imposed can be performed alone within the limits of that parish, such for instance as piloting vessels across the bar. The duties required of those officers have no connection whatever with the parish of Plaquemines, either as to her territory or government, or population, no more than with any other parish of the State; but they pertain and belong exclusively to the port of New Orleans, and to the district, water and land, that constitutes that port.

Were this a case to test the right of a clerk, a sheriff, a police juror, or any other officer in the parish of Plaquemines, of course the action would have to be brought before the proper court of that parish, because, in the language of the act, the “ case,” or alleged usurpation, arose there. The act cited means this, and nothing more.

' The law provides that a Branch Pilot for the port- of New Orleans shall be appointed by the Governor.

That the Board of Examiners shall meet in the City of New Orleans twice a year to examine applicants for license.

That the Master and Wardens of the port of New Orleans are required to report cases of non-compliance on the part of pilots with certain requirements of the law to the Governor, who may, in such contingency, withdraw their licenses.

The pilots are required to give bond with two sureties residing in the City of New Orleans, to be approved by the Master and Wardens of the port of New Orleans, and a suit on such bond would have to be brought before the courts of New Orleans.

The defendant in this ease is a resident of the City of New Orleans, and the general rule of practice is that a party must be sued at his domicil, C. P. 162; and this case we do not find to be within any of the exceptions to that rule.

We conclude, therefore, that this proceeding was properly instituted before the Civil District Court of the parish of Orleans, and the ruling of the judge a quo, sustaining the exception and dismissing the suit, was erroneous.

Nor do we see any force in the suggestion made in the brief of defendant’s counsel, that this Court on its own motion should dismiss the suit for want of jurisdiction rañone material. It is alleged that the emoluments of the office in question exceeds $2000, Which are enjoyed by the defendant, and that is sufficient to give jurisdiction, regardless of the interest of the State.

It is, therefore, ordered that the judgment appealed from be annulled, avoided and reversed, and that the* exception be overruled, and the case be remanded to be proceeded with according to law. The costs of the appeal to be paid by the appellees, and the costs of the lower court to await the determination of the suit.


author: Fenner, J.

text:
    No. 8031.
    State of Louisiana vs. George Davenport.
    The failure of the Record to show the presence in court of a prisoner charged with felony, at every important stage of the proceeding, is a fatal defect.
    The fact that the j udge repeated his verbal charge to the jury in the absence of the prisoner’s Counsel, also vitiates the proceedings and entitles the accused to a new trial.
    1 PPEALfrom the Seventh Judicial District Oourt, parish of Franklin. Elam, J.

      J. C. Egan, Attorney General, for the State, Appellee.

      J. G. Hawks and J. W. Willis, Jr., for the Appellant:
    Eirst — A continuance should have been granted by the District Court, the accused having shown that he had not time and opportunity to pi epare for his trial. That, owing to the prejudice existing in the public mind against him, his chances for a fair and impartial trial, at the present term of the Court, would be impaired. That three witnesses, important and necessary for the defense, and within, the process of the Court, were absent, without whose testimony he could not safely go to trial; the accused having made affidavit to all the facts and allegations required by law. Trans., pp. 50, 51, 52, 60 and 61. R., p. 340 ; 8th R., 530; 31st A., 190, Wharton’s American Criminal Law, 2929.
    Second — The District Court erred in overruling the motion of accused for a new trial, on the ground that the Court recharged the jury in the absence of the District Attorney and counsel for the prisoner. T., pp. 62, 63 and 64. Waterman’s C. Digest, p. 626, No. 405; Wharton’s Criminal Pleading and Pratice; 32nd An., State vs. Nelson; 31st An., p. 190, State vs. Chariot; 8th R., p. 529.
    Third — The witness W. PC. Rosendale was not qualified as a medical expert, as he was not a licensed physician, never received a diploma, and never practised medicine. Bill of Ex., T., pp. 72, 73 and 74. Wharton’s Criminal Evidence, 412; Ray, vol. 1, § 47; Wharton & Stille’s Medical Jurisprudence, pp. 540 and 541; 32 An.
    Eourth — The juror Martin was not qualified to sit upon the trial, he having stated on his voir dire that he had formed and expressed an opinion, and that it would take strong circumstantial proof to change it. Bill of Ex., T., pp. 68 and 69; 11 An., 607; 4 Cal., 268; Ohio, 471.
    Eifth — After witnesses for the State had been examined in chief, counsel for accused had a right to call them after opening the defense for the purpose of cross-examining them as to matters testified to in chief. Bill of Ex., T., p, 75; Phillips, vol. 1, p. 210; Greenleaf, vol. 1, p. 212.
    Sixth — The opinion of W. H. Rosendale, as to the cause of the death ot deceased, was legal evidence, it not appearing that witness testified as an expert. Bill of Ex., T., p. 70.
    Seventh — The statements of deceased, made in the presence of Nancy Miller, were inadmissible as dying declarations, it not being satisfactorily proved that deceased, at the time, had an impression of impending dissolution, or that she had given up all hope of recovery. Bi)l of Ex., T., 75 and 76; Phillips, vol. 1, p. 216; Greenleaf, vol. 1, p. 212.
    Eighth — The evidence of W. H. Rosendale was not admissible to prove, as an expert, the probable effects of injuries, which wit-nets had not examined. Bill of Ex., T., p. 71.
   The opinion of the Court was delivered by.

Fenner, J.

This appeal is taken from a conviction of manslaughter.

Assignment is made of the following errors apparent on the face of the record, viz:

First. That the record does not affirmatively show the presence of the accused on several days when the trial of a motion for change of venue was progressing in open court and testimony therein was being taken — on one day when the trial of the cause itself was proceeded with before the jury — when the verdict of the jury was rendered — and when a motion for a new trial was tried and overruled.

It is no longer open to question that the failure of the record to show the presence in court of a prisoner charged with felony, at every important stage of the proceedings, is a fatal defect.

State vs. Revells, 31 An. 387.

State vs. Smith, Id. 406.

State vs. Clark, 32 A. 558.

State vs. Ricks, Id. not yet reported.

Wharton Cr. L. 2991, 2999. Bishop Cr. Proc. § 273.

Several of the proceedings charged to’ have been had in his absence, in the present case, were of importance, and of a character justifying and requiring his presence in court. He was a prisoner, and his presence or absence entirely under control of the court, and, therefore, not within the ruling in State vs. Ricks, above cited. Nor do any of the proceedings fall within the exceptions to general rule recognized in State vs. Clark, 32 An. 558, except perhaps the trial and overruling of motion for new trial. That motion involved questions of law only, and his presence at the argument and decision was probably of no importance. Had the motion been based on grounds of fact, involving the taking of testimony, as in the case of the motion for change of venue, our conclusion might be different.

The record actually presents the defects assigned as errors.

Second. That the record shows that the judge recharged the jury in the absence of the counsel for the accused.

It does so appear from the record; and it seems well settled that such error is fatal.

People vs. Trim, 37 Cal. 274. Martin vs. State, 51 Geo.

Sergeant vs. Roberts, 1 Pic. 237. Wharton Cr. L. §§ 3164, 3309.

No effort seems to have been made to prócure the attendance of counsel, though his absence was observed by the judge.

His absence may have been momentary and necessary. The case is not affected by the fact that, according to the judge’s statement as entered on the minutes, he was only asked by the jury to restate his original charge, and only did so restate it. If the charge had been reduced to writing and had been simply reread to the jury, the absence of counsel might have been of no moment. Such, however, is not shown to have been the fact. No man’s memory can be assumed to be sufficiently perfect to repeat literally verbal statements made by him sometime before;

Statments of law involve so many nice distinctions that slight variations in the words used will often add to, or diminish, the precise meaning conveyed. Even unconsciously, the judge, in attempting merely to repeat his charge, may have altered its substantial effect upon the minds of the jury. It was the prisoner’s right that his counsel should have been present to observe the new language used by the judge, and to protect him from injury resulting therefrom. .

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that the cause be remanded for a new trial according to law.


text:
    No. 6793.
    I. J. Wooldridge, Assignee, vs. F. Rickert & Co. and Eugene Waggaman, Sheriff.
    An application for continuance in the District Court, on the ground that the leading Counsel is a member of the Legislature in session, being refused and no bill of exceptions being taken to the ruling, this Court will consider said application waived and will not notice it.
    Under the Bankrupt law of the United States, a duly certified copy of the Assignment is conclusive evidence of the title of the assignee, and of his authority to sue, without his having to prove the various steps in the bankruptcy proceedings.
    Such assignee has the right to sue in the State Courts.
    The adjudication in bankruptcy dissolves attachments of the bankrupt’s property taken within four months.
    ^PPEAL from the Eourth District Court, parish of Orleans. Houston,

      Breaux & Hall for Plaintiff and Appellee:
    First — An adjudication in bankruptcy dissolves attacbments of the debtor’s property made witbin four months, and vests the property in the assignee. U. S. Bev. Stat. Sec. 5044; Bump, pp. 473, 495, 497,130, 131, 202, 502.
    Second — A copy duly certified of the assignment is conclusive evidence of the assignee’s right to sue. U. S. Bev. Stat. 5049 ; Bump, pp. 537, 538.
    Third — The assignee may sue in the State Courts. Bump, pp. 324, 364, 715 ; 93 U. S. 130.
    Fourth — Bankruptcy, to prevail as a defense, must be pleaded. Bump, pp. 747, 748 $ 26 An. 41; 29 An. 17, 720; 31 An. 583,
    Fifth — Plea cannot he originally urged in the Supreme Court. 29 An. 17.

      James M. Grover for Defendants and Appellants:
    First — Are the acts of a Begister in bankruptcy valid as against non-resident creditors, without being subsequently confirmed by the judge, especially when he assumes judicial functions ?
    Second — The fact of leading counsel, engaged in the Legislature, a good ground of continuance.
    Third — A party claiming the possession of funds, or the return of funds, to the assignee, twelve months after an attachment, where a bond has been given, cannot he condemned to return the same to the active mass of the bankrupt’s estate, especially when the attaching creditor has also gone into bankruptcy, and has procured his discharge, and when the assignee has failed to appearand prove up his claim. Vide case of Wolf vs. Stix, 9 Otto, p. 1; Stewart vs. Platt, 11 Otto, p. 731.
   The opinion of the Court was delivered by

Levy, J.

Plaintiff, appellee herein, brought suit in the Eourth District Court, parish of Orleans, to recover from defendants, appellants, the sum of eleven hundred and twenty-five dollars and sixty cents, being an amount which had been received by defendants from the Teutonia Insurance Company, under process of garnishment in an attachment suit of Rickert & Co. vs. Howard & Patterson, absent and non-residents defendants therein. Howard & Patterson, the defendants in the attachment suit, were adjudged bankrupts by the U. S. District Court of Texas, and the attachment and garnishment thereunder were served within four months of the adjudication in bankruptcy, and the judgment in the attachment suit was rendered two months thereafter, and on ft. fa. issued on said j udgment, this sum of $1125 60 was collected from the garnishee and paid over to the attaching creditor. The plaintiff, assignee in bankruptcy of Howard and Patterson, alleges that all the property, real and personal, of the said bankrupts, was duly conveyed to him as assignee in conformity with the provisions of the bankrupt law; that at the time of the adjudication in bankruptcy, viz, April 19th, 1875, there was due to said Howard & Patterson, by the Teutonia Insurance Company, in New Orleans, the sum of $3000, and that the effect of said adjudication was to vest, instantly, said amount in him as assignee. That prior to said adjudication, but within less than four months before the same, viz., on or about the 19th January, 1875, said Rickert & Co. caused said fund, to the extent of $1125 60, to be attached, and that said sum was held by the defendants herein by virtue of said attachment on the 19th April, 1875, the time of said adjudication; that notwithstanding said adjudication and assignment, Rickert & Co. continued to prosecute their suit in the Sixth District Court to judgment, which was signed on the 16th of June, 1875, and thereafter executed the same in violation of the provisions of an Act of Congress, entitled “ An Act to establish a uniform system of bankruptcy in the United States,” approved March 2d, 1867, and the amendments thereto.

That subsequent to said adjudication, the legal effect of which was to immediately dissolve said attachment and to make the civil sheriff, having the control of the funds seized, the simple bailee of the assignee, the said sheriff illegally, and in violation of the law as above, and of the rights of the creditors of said bankrupts, and without the consent or authorization of the said assignee, paid to said Rickert & Co., who illegally received and retained the said sum of $1125 60, which sum said assignee is entitled to recover. He prayed for judgment in solido against the defendants for said sum, with legal interest from 19th April, 1875.

(Plaintiff in his brief states that he has abandoned this suit as against "Waggaman, sheriff).

The defendants excepted to plaintiff’s action, on the grounds: that the plaintiff had not been regularly appointed assignee of the bankrupts; that the Court is without jurisdiction to entertain this action in behalf of assignee appointed in the courts of any other State, and because the assignee had never been duly authorized in the Court in which said bankruptcy proceedings are pending to institute this action. On trial of this exception a duly certified copy of the order appointing I. J. Wooldridge assignee being filed in evidence, the exception was dismissed. In their answer, the defendants made a general denial, and specially denied the authority of the assignee, and that he had been legally appointed such. Defendants, by counsel, moved for a continuance of the case, when called for trial, on the ground that their leading counsel was a member of the Legislature, and'unable to be present at the trial. This motion was overruled. No evidence was introduced to show that the absent counsel was the leading counsel. They also filed a peremptory exception of no cause of action. There was judgment as prayed for against the defendants Bickert & Co. and the individual members of said firm in solido, as prayed for in the petition, and overruling the exception of no cause of action, and Bickert & Co. appealed.

While the absence of leading counsel is, under the Act of the General Assembly, approved January 29th, 1858, a peremptory cause for continuance where such counsel may be absent in attendance on the session of the Legislature, and although the motion made by defendants for a continuance on these grounds was overruled, and the trial of the case proceeded with, the record contains no bill of exceptions taken to this ruling, and we cannot notice it. The fact appears that other counsel of the defendant being present, the trial by jury, which had been prayed for, was waived, and by consent the trial of the case was proceeded with. While the cause of continuance is peremptory, it may be waived, and in this case the consent to proceed with the trial, without filing a bill of exceptions, was a clear and unambiguous waiver and submission by the defendants.

We think the court a qua was correct in its rulings on the exceptions of defendants.

1st. Section 5049 of the bankrupt law of 1867 declares: “A copy, duly certified by the clerk of the court, under the seal thereof, of the assignment, shall be conclusive evidence of the title of the assignee to take, hold, sue for and recover the property of the bankrupt.”

A copy of an assignment, under the seal of the court, if duly certified, is sufficient to show the assignee’s right to sue, although the original assignment is not signed either by the judge or the register.” Bump on Bankruptcy, p. 487; 4 B. R. 724: 36 Md. 32; 16 Minn. 68.

2d. “ An assignee under the bankrupt law of the United States may sue in his own name in the State courts to enforce the rights of property vested in him by the assignment in bankruptcy, and the Courts of the United States have not exclusive jurisdiction of such actions.” Bump, p. 308; U. S. Bankrupt law, § 4972; 101 Mass. 109; 2 Dillon, 504.

3d. “ In a suit instituted by the assignee it is not necessary to prove all the steps in the proceedings in bankruptcy, for copy of the assignment is conclusive evidence of the assignee’s title.” Bump, 483.

The exception of no cause of action was properly overruled. Section 5044 of the Bankrupt Act of 1867 provides: “ The Register shall, by an instrument under his hand, assign and convey to the assignee all the estate, real and personal, of the bankrupt, with all his deeds, books, and papers relating thereto, and such assignment shall relate back to the commencement of the proceedings in bankruptcy, and by operation of law shall vest the title to all such property, real and personal, in the assignee, although the same is then attached on mesne process as the property of the debtor, and shall dissolve any such attachment made within four months next preceding the commencement of the bankruptcy proceedings.”

“If judgment is entered in the attachment suit, even after the commencement of proceedings in bankruptcy, the subsequent discharge of the defendant will not relieve the receiptor from liability.” Bump, 8th ed„ 499, 807, 824, 502, 469, 824, 823, 828.

The provisions of the law are fully applicable to this case, and the record discloses that the facts herein bring it strictly within the law, and the liability of the defendant's are fixed as claimed by plaintiff.

The judgment of the lower court is affirmed with costs.

Justice Fenner recuses himself in this case, having been of counsel.


text:
    No. 8125.
    State of Louisiana vs. John Somnier.
    ActITo. 44 of 1877, providing that the Clerk of the District Court shall be ex officio member of the jury Commission, does not confer upon him an additional office, in violation of the Constitutional restriction.
    It is no legal ground of complaint for the accused, that the judge, in his discretion, excused some jurors of the regular venire.

    "When the jury of talesmen ordered by the judge is exhausted, he has the authority to order a second or third, or more, if necessary.
    After the legal foundation has been established, verbal evidence is admissible of the dying declarations of the deceased.
    Yerbal evidence is also admissible of the statement of the deceased, that his physician informed him he was going to die.
    . The testimony of the sheriff is admissible to show that the accused, through Counsel, waived his right to be present in court dunug the trial of his Motion for a new trial.
    APPEAL from the Thirteenth Judicial District Court, parish of St. - Landry. Martel, Judge ad hoc.

      J. G. Egan, Attorney General, for the State, Appellee.

      John N. Ogden for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

The defendant having been convicted of murder, without capital punishment, and sentenced to the penitentiary for life, urges, on appeal, the following grounds for relief, which we shall review in the order in which they are presented:

1st. He complains of the refusal of the judge to sustain his motion to quash the array of jurors, on the ground that the clerk of the court had participated in the drawing thereof, as ex officio jury commissioner, which latter office he could not hold, under the constitutional provision prohibiting any one from holding at the same time more than one office of trust or profit, except that of justice of the peace or notary public. Act No. 44, of 1877, provides that the clerk of the District Court shall be ex officio member of the jury commission; and we cannot agree with counsel of the accused in the conclusion that this legislation confers an additional office to the clerk. It only imposes additional duties and functions to the clerk, who cannot be charged for that reason as holding more than one office. The duty of assisting the jury commissioners in the drawing of the jury are made part of his duties as clerk, and he receives no appointment or commission as jury commissioner from any source. The legislation which requires him ex officio to perform the duties of jury commissioner, cannot be construed as clothing him with an additional office, more than the constitutional provision which makes him ex officio parish recorder of conveyances, mortgages, etc. Art. 121 Const. Our conclusion is, therefore, that the act does not violate the Constitution, and that the motion to “ quash the jury ” was properly overruled.

2d. He next complains of having been forced to trial in the absence of eight jurors on the regular venire. We are informed by the judge ad hoc, in the bill of exceptions, that the absent jurors had been excused from further attendance by the judge of the Court, and for causes satisfactory to him.

Such an act was within the legal discretion- of the judge, and the accused cannot complain, especially as it appears that there were twenty-one jurors in attendance — a number more than sufficient to try the case. See State vs. Rountree, 32 An., not yet reported, and authorities there quoted; State vs. Kane, 32 An. 999.

These reasons dispose of the third objection urged by the accused, as to the course of the judge ad hoc in ordering talesmen, without first requiring the attendance of the absent jurors who had been excused by the judge presiding.

4th. The accused also complains of the order of the judge in summoning a second jury of talesmen after the first had been exhausted. The law which authorizes the judge to order a jury of talesmen has for •object to secure a trial, to which the accused is entitled under the Constitution; and if a first summons is exhausted, a second .or a third, or a necessary number, must be resorted to, or otherwise the end of the law would be defeated, and the accused, being thus denied his constitutional right of a speedy trial, could justly complain.

The judge is expected to order a reasonable number of talesmen; and if more jurors are challenged for cause or otherwise than he anticipated, it becomes his imperative duty to continue his summons until a jury is completed.

5th. The judge is charged with error for permitting parol testimony to prove the dying declarations of the deceased, which had been taken down in writing, the latter having been excluded as testimony on the objection of the accused.

The written declaration having been made under oath, was excluded by the judge, who correctly held that it was nothing but the affidavit of the deceased, and, as such, not admissible, whereupon he admitted parol testimony of the dying declarations.

We know of no law which requires the dying declarations of a deceased person to be taken, or to be proved in writing; and, therefore, parol testimony was properly admitted in proof of such declarations after proper foundation had been shown therefor. 8 An. 514; 12 An. 274; State vs. Trivas, 32 An., 1086.

6th. There is no more force in the complaint against the course of the judge in allowing a witness to state that deceased had told him that his physician had said he would die. We are informed by the bill of exceptions that this was narrated by the witness as a part of the dying declaration of the deceased, and as such it was properly admitted. The opinion of his physician, thus expressed, contributed to confirm the belief of the deceased in his approaching death or in his impending dissolution, the condition precedent to the admission as evidence of his declaration touching the crime of which he was a victim.

7th. To the complaint that the judge did not reduce his charge to the jury in writing, the answer is, that nothing in the record shows that he was requested so to do.

8th. The accused also complains of the judge’s ruling in admitting the testimony of Deputy Sheriff 'Hays on the motion in arrest of judgment. The record shows that the testimony was received without objection on the part of the accused, and it was properly admitted to show that the accused, through counsel, had waived his right of being present during the trial of his motion for a new trial. The law requiring the presence of the accused during all the stages of his trial, is intended for his own benefit and advantage, and confers a right which he has full power to waive during an unimportant part of his trial, and it was competent for the State to prove such waiver.

9th. The accused finally urges error, on the ground of his not being present in court when his motion for a new trial was tried and determined. It is shown by the record, as mentioned in the objection last disposed of, that his absence was an act of his own free will and ■choice, during an insignificant proceeding, and he cannot be heard to ■complain.

It appears from the record that the motion for a new trial was made pro forma, involving a simple question of law, requiring the taking of no testimony; and we conclude that no rule of law requires the presence of the accused in court during the trial and determination of such a motion. State vs. Clark, 32 An. 558; State vs. Ricks, O. B. 53, page 341.

We have given a serious consideration to the numerous charges of ■error and irregularities relied.upon by the accused for relief from conviction and sentence on a heinous offense; and, after a careful examination of the record, and a close investigation of all the authorities quoted by counsel on both sides, we reach the conclusion that, with the advantage of an able and zealous defense, the accused has had a fair, legal and impartial trial, and that we are powerless to afford him any relief from the doom that awaits him.

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


author: Bermudez, C. J.

text:
    No. 7826.
    Widow Caroline Tilton vs. Joseph Vignes et al.
    Tli© surety on an Injunction bond, against whom no damages were prayed for, or granted, in the lower court, is not a necessary party in this Court, and absence of citation of appeal to him is no cause of dismissal of the Appeal.
    An Appeal shall not be dismissed when the Transcript is filed after the appeal Term, but within the extension of time granted by this Court.
    Parties claiming the benefit of the Homestead law, must disclose and establish a elear case within its purview.
    APPEAL from the Fourth Judicial District Court, parish of St. Charles. Duffel, J.

      Breaux <& Hall for Plaintiff and Appellee.

      N. St. Martin, J. Ad. Bozier and V. J. Bozier for Defendants and Appellants.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff and appellee moves to dismiss this appeal on two grounds:

First. The surety on the injunction bond was not cited to answer the appeal, which was by petition.

Second. The transcript was filed after the expiration of the term for appeals from the parish of St. Charles.

I. The plaintiff on giving bond arrested a writ of seizure and sale against her property, which she claimed to be exempt, as her homestead.

The seizing creditor, resisting the pretension of the plaintiff, claimed a dissolution of the injunction, with an infliction of damages upon her. He did not ask that the surety on the injunction bond be condemned in damages also.

After trial, the injunction was perpetuated. In his petition of appeal from the judgment rendered to that end, the defendant asked for citation, merely against the plaintiff, and did not include the surety in the prayer.

The judgment was signed more than a year ago, (September, 1879). It has since become definitive, and constitutes res judicata in favor of the surety, and cannot be disturbed by this Court, as to him.

The surety not having been condemned by the judgment, and being now beyond the reach of the appellant, is indifferent as to the result of the litigation, whether the judgment be affirmed or reversed, and has; therefore, no interest at stake in this Court. The appellee could not ask in the lower court that her surety be condemned in damages, and is precluded from forming a similar demand here.

Neither the appellant nor the appellee claim that the judgment which perpetuated the injunction, and which inflicted no penalty on the surety, be amended, so as to mulct him in damages. It cannot, therefore, be altered, as concerns him.

It is no reason, because the surety was not cited to answer, that the appeal should be dismissed, and that the judgment complained of, if erroneous, should thereby remain undisturbed, and so, practically, affirmed. 22 An. 242; 23 An. 260; 25 An. 319; 26 An. 552.

The suit can well be determined here between the plaintiff and the defendant, who are the only real actors, in the absence of the surety on the injunction'bond, who has no concern in it. The judgment will bind them conclusively, but will not affect him,

II. The appeal was returnable to this Court on the third Monday of January, 1880. On a seasonable and satisfactory showing, the appellant obtained an extension of thirty days, within which the transcript was filed. There exists no cause of complaint. The delay allowed may have occasioned some disappointment to the appellee, but the rights of the appellant, to whom no fault was imputable, had to be safeguarded.

The motion is dismissed.

On the Merits.

The questions presented are:

Was the property, claimed as a homestead, occupied as a residence by the debtor, plaintiff ?

Was she in necessitous circumstances so as to assert the immunity ?

Had she a person dependent upon her for support ?

It is not claimed that those circumstances co-existed at the date of the loan and of the mortgage consented to secure reimbursement (March 2d, 1877); but it is insisted that they did when the seizure of the property was effected.

We had occasion twice to consider the spirit and letter of the homestead law relied upon (B. S. Secs. 1691,1692; 32 An. 805, 979), and we recognized that it concedes an exemption in derogation of common right, which should be strictly construed. Parties who claim a dispensation under its protective pale, must disclose and establish a clear case within its purview. 21 An. 686; 32 An. 444.

We find no evidence in the record showing that the property was occupied as a residence by the plaintiff at the date of the seizure.

It appears from the testimony given by the deputy sheriff, charged with the execution of the writ, and who served the preliminary process, as well as from his return, which is of record, that the plaintiff did not reside on the place at the time; that he served the demand of payment on the plaintiff’s daughter, at the place where the plaintiff then lived; that he served the notice of seizure on the plaintiff, who admits having received it. The demand was served on the 15th of January, 1879. T-he record does not contain the notice of seizure and its return; but there is an admission made in open court, that the writ of seizure was executed on the 22d of January, 1879. The sheriff testifies that when he seized the house it was closed, but that he found a colored woman living on the premises.

In his testimony a next neighbor declares that this woman resided on the property at the time of seizure; that the plaintiff did not reside on the place previous to the colored woman moving from the house, which was either on the 27th or 28th of January, as far as he knows.

The surety on the injunction bond, who is somewhat on terms of intimacy with the family, says that the plaintiff lived on the property when the injunction was sued out, i. e., February 20th, 1879; that he cultivated the land for her account, but did not reside on it. He does not say that plaintiff occupied the property previous to the injunction, still less at the time of seizure.

The plaintiff testified. She says that she had leased the house to the colored woman up to January 1st, 1880; that she was anxious to occupy it; that she sent some effects there in December, 1879;. that she then tried to move into it, but could not do so because the tenant would not move out of it; that as soon as the colored woman left the house, she, the plaintiff, moved into it; that this was in the first part of January; that she resided on the place before she got the notice of seizure; that she believes the woman was in her house when the sheriff served the notice.

It is evident that the memory of the plaintiff failed her. It is clearly established that the demand was made on the 15th; that the seizure was executed on the 22d; that the tenant moved out on the 27th or on the 28th of January, 1880; that the plaintiff then moved in and occupied the house; that she was residing on it on the 20th of February following, when the injunction issued. It is contradictory and self-destructive.

It is, therefore, apparent that when the service of the preliminary process was made and when the seizure was effected, the plaintiff resided on the “ Fee place,” close by, but did not occupy as a residence the property now claimed by her as a homestead.

That the plaintiff was in penurious circumstances, and that her unfortunate daughter and. grandchild were also in need and dependent upon her for support, there can be no question; but this cannot enhance her rights. Under the evidence and the law, we think that the plaintiff has not made out a case of exemption, and that the j udgment perpetuating the injunction is erroneous. We do not think this a case for the allowance of damages.

It is, therefore, ordered and decreed that the judgment appealed from be reversed; and proceeding to render such judgment as should have been rendered,

It is ordered, adjudged and decreed that the injunction herein issued be dissolved, without damages, at plaintiffs costs in both courts; and that the execution of the writ of seizure and sale, enjoined, be proceeded with as the law provides.

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