text:
    No. 4988.
    State of Louisiana v. Louis Ranson, Tax Collector, and his securities.
    -Certain blank licenses signed by the State Auditor, which were part oí those delivered by him to the defendant, a tax collector, and for which the collector stood charged in the Auditor’s books, were offered in evidence to show that neither said Ranson nor his sureties could be liable to pay for said licenses. The court a qua properly refused to admit them for the purpose for which they were offerod.. Nothing prevented the defendant from returning the licenses at the time of his settlement with the Auditor and receiving credit for them.
    The prescription of two years pleaded in defense in this case applies to acts of omission and commission, misfeasance, nonfeasance etc., of the sheriff, as detailed in section 2816, Revised Statutes, and for which the sheriff and his sureties on his official bond are liable. The prescription pleaded does not apply to obligations arising ex contractu. The defendant and Ms sureties in this case were sued upon the sheriff’s bond given for the collection of taxes.
    APPEAL from the Fourth Judicial District Court, parish of St. XA Charles. Flagg, 3.

      Morris Maries, District Attorney, for the State, plaintiff and appellee. James J). Augustin, JuKen Michel and W. St. Martin, for defendants and appellants.
   Taliaferro, J.

This is a suit brought in the name of the State against a former sheriff of the parish of St. Charles, and his three sureties, on a bond for the collection of the taxes of that parish for the year 1867. Judgment was rendered against the sheriff for the sum of $8194 with legal interest from judicial demand; against two of the sureties for $3000 each with like interest, and against the other surety for $4000 with like interest from judicial demand.

The sheriff and Lassen, one of the sureties, have appealed. There are three bills of exceptions found in the record. The first relates to the fixing of the case by the district judge with preference on the ■day succeeding the one on which the case had been set for trial, but not reached that day. The judge subjoins to the bill of exceptions that no rule of that court prevented his action in the premises. No injury or inconvenience whatever is shown to have resulted to the defendants from the setting of the case for trial the next day. We think the objection was properly overruled.

The second bill of exceptions was taken to the admission in evidence of a certified copy from the recorder’s office of the tax bond sued upon, it being objected to on the ground that Mallard, one of the sureties, had denied ever having affixed his mark to the bond as shown by the copy offered in evidence. As Mallard has not appealed, and the exception is personal to him, it is not necessary to pass upon this bill. The third bill of exceptions was taken to the refusal of the judge to receive in evidence certain blank licenses signed by the State Auditor, and which were part of those delivered to him by the Auditor, and for which he stood charged on his books. The court properly refused to admit them for the purpose for which they were offered. Nothing: prevented the defendant from returning the licenses at the time of his settlement with the Auditor and receiving credit for them.

The prescription of two years plead in defense in this case applies-to acts of omission and commission, misfeasance, nonfeasance, etc., of the sheriff as detailed in section 2816, Revised Statutes, and for which the sheriff and his sureties on his official bond are liable. The prescription pleaded does not apply to obligations arising ex contractu» Defendant and his sureties in this case were sued upon the sheriff’s bond given for the collection of taxes.

We find no merit in the defense. It is therefore ordered that the-judgment of the district court be affirmed with costs.

Rehearing refused.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    No. 4978.
    Mrs. P. Boe v. E. Filleul, Testamentary Executor.
    Oral evidence was properly admitted to show tlie relationship of two witnesses and of plaintiff to her deceased uncle, whose will she wishes to he declared null and inoperative, and the disappearance of plaintiff’s father and his age.
    Under this proof the presumption arises that plaintiff’s father is alive 5 and there being no proof of his death, the plaintiff can not represent him, nor accept and claim through, him the succession of her deceased uncle. She is therefore without capacity or interest to attack the will of the deceased.
    Appeal from the Parish Court, parish of St. Charles. Durapau, J.

      F. Bermudez, for plaintiff and appellant. Brieugne, for- defendant and appellee. O. F. Claiborne, for absent heirs.
   Howell, J.

The plaintiff seeks to be appointed administratrix of her uncle’s estate. Subsequent to her application a document purporting to be the last will of the deceased, having been probated and ordered to be executed, she asks that it be declared inoperative and null, and that she be appointed administratrix and entitled to one-fourth of the succession, as sole issue and representative of her father, on the grounds:

First — Because the universal legatees died before the testator.

Second — Because the particular legacy of the sum of $-is a nullity.

Third — Because the testamentary dispositions having lapsed, and there being no debts of the deceased, the appointment of an executor becamej inoperative.

The defendant, who is the executor, excepted to plaintiff’s petition-on the ground, among others, that the plaintiff is without capacity and without interest to attack the will. She is neither a legal nor testamentary heir of the deceased, called to his inheritance by th& happening of his death.

On the trial of the exceptions, oral evidence was properly admitted to show the relationship of two witnesses and plaintiff to the deceased and the disappearance of the father of the plaintiff for many years, and his age. . Under this proof the presumption arises that plaintiff’s father is alive, and there being no proof of his death the plaintiff can not represent him nor accept or claim through him the succession of her deceased uncle. R. C. C. 70, 76, 899, 978, 979, 905, 390, 120, 476.

She is therefore without capacity or interest to attack the will of the deceased.

Judgment affirmed.

Rehearing refused.


author: Morgan, J. Morgan, J. Howell, J. Howell, J. Morcan, J.,

text:
    No. 4602.
    State of Louisiana ex rel. E. Merle v. A. Dubuclet, Treasurer, State ex rel. John Chapus v. The Same — Consolidated.
    The objection that this is a suit against the State, for the instituting of which permission has not been obtained from the Legislature, is not well founded. It is a mere application to a court of competent jurisdiction asking for a writ of mandamus against an officer of the State, commanding him to perform one of the duties of his office, to wit: to pay the sums which the Auditor, in conformity to law, has ordered him to pay.
    The warrants held by the relator are sufficiently described. Their number, date, amount, and in whose favor they were issued, are specifically set forth, and the petition alleges that they are judicial warrants. The list containing these details was offered in evidence and received without objection, and there is no charge that they are spurious, and that the signatures thereto are not genuine.
    3So law has been exhibited which requires the Treasurer to give preference of payment to warrants of older date and lowest number, nor has it been shown that such has been the praotice in the Treasurer’s office. On the contrary, it has been the reverse.
    It has been shown to this court that, while its doors remained hermetically closed against certain bona fide creditors of the State, it lay all unlocked to the occasions of others, who had no right of precedence over their competitors. All men are equal before the law, and all men, having equal claims upon the State for the payment of a common debt, have equal rights upon the common treasury.
    A mandamus can properly issue against the Treasurer only when he has money, and illegally withholds it from one entitled to be paid. If he refuses to pay one creditor of the State and gives an illegal preference to another and pays to him all the money in his hands, he may make himself amenable to the law, which fixes his duty and imposes heavy penalties for the dereliction of that duty, but it is not a proper case for a mandamus.
    To order the Treasurer in this proceeding, and under the circumstances of the case, to pay whenever the treasury may be replenished, is equivalent to a judgment on an ordinary proceeding, and would give in effect a preference to the relator, or is tantamount to an order in advance to the Treasurer to do what he has not refused to do, and what it must' be presumed he will do, until the contrary be shown, as the presumptive evidence is in favor of an offioer doing his duty.
    Appeal from the Superior District Court, parish of Orleans. Ramldns, J.

      A. & W. Voorhies, for plaintiffs and appellants. P. Meld, Attorney General, for defendant and appellee.
   Morgan, J.

Petitioner avers that he is the holder of certain judicial warrants, amounting to $12,501 99, issued, by the Auditor of Public Accounts, in payment of salaries of certain district and parish judges and district attorneys; that at various times he has presented these warrants to the State Treasurer for payment out of the general fund, appropriated for that purpose, but that the Treasurer has declined to pay them, averring that there are no funds which lie can dispose of for that purpose, he being restrained from so doing by decrees of court rendered between other parties. He avers that there are funds in the treasury sufficient to pay his warrants, and that if the funds have been otherwise disposed of, they have been illegally and improperly disposed of. He avers that the same combination by which his rights have been baffled will continue to defeat him unless the courts afford him a remedy, and he prays for a mandamus against the Treasurer commanding him to pay his warrants out of any funds in the treasury, appropriated for that purpose.

Henry N. Benjamin intervened in this proceeding, before the treasurer had filed his answer. He avers that he is the holder of warrants amounting to about $45,000, issued by the Auditor in payment of the salaries of constitutional officers. He avers that an injunction issued in suit No. 7847 of the docket of the Eighth District Court, entitled Henry N. Benjamin v. Antoine Dubuclet, Treasurer, whereby the said Treasurer was injoined and prohibited from paying any warrants out of the general fund, until those held by him should be paid and satisfied. He prays that Merle’s demand may be rejected, and that the Treasurer be directed to obey and respect the injunction issued in said suit.

The Treasurer answers that if he has moneys to the credit of the general fund, they have been used in payment of warrants of equal rank with relators, which he was bound to do by reason of the injunction in the case of Benjamin, and that the amount of said injunction has not been paid.

Merle’s rule was fixed for trial on the eleventh October. The Treasurer’s answer was filed on the twenty-third October.

There are other intervenors in the suit, but their rights do not seem to have been passed upon, and they have not complained of the judgment. It is not, therefore, necessary that we should notice them.

On the ninth January, 1873, the Treasurer, through counsel and the Attorney General, filed a supplemental answer, and, in reply to the petition of relator, and for reason why his demands should not be rejected says:

Mrst — That this is a suit against the State, which can not be instituted without permission of the Legislature, and that this permission has not been obtained.

Second — That he can not plead with certainty, because the relator has not described the warrants which he pretends to hold with such certainty as would enable him to plead; that he has not given number, date, amount, to whose order, by whom indorsed, on what fund drawn, nor for what consideration they were drawn; all of which particulars it is necessary should be set forth, to enable him to plead with certainty or with safety.

Third, — That by law, and by the advice of the Attorney General, he is to give precedence to warrants of oldest date and lowest number; that there are large amounts of warrants outstanding of older date and smaller number than any held or claimed to be held by relator, and more than enough to absorb the entire funds of the treasury.

, Fourth — That there are injunctions issued by the Eighth District Court, now forming part of the records of this (Superior) Court, in the suits of A. Bonita v. The State Treasurer, and H. N. Benjamin v. The State Treasurer, injoining him from paying any warrants out of the general fund to any person until the warrants claimed in those suits shall first have been paid; that said injunctions were issued and granted after a due trial, and are, so far as the Treasurer is concerned, final.

First — This is not a suit against the State. It is a mere application to a court of competent jurisdiction, asking for a writ of mandamus against an officer of the State, commanding him to perform one of the duties of his office, i. e., to pay the sums which the Auditor, in conformity with law, has ordered him to pay.

Second — The warrants held by the relator are sufficiently described. Their number, date, amount, and in whose favor they were issued, are specifically set forth, and the petition alleges that they are judicial warrants. The list containing these details was offered in evidence and received without objection, and there is no charge that they are spurious, or that the signatures thereto are not genuine.

Third — We have not been referred to any law which requires the Treasurer to give preference of payment to warrants of oldest date and lowest number, nor do we know of the existence of such a law. Neither has the Treasurer shown that such has been the practice of his office. On the contrary, it has been the reverse. In the list of warrants paid by him, and furnished by him in evidence, in the Benjamin injunction, it is rare that the numbers follow each other, even approximately, and in many instances they are far apart. For example : The lowest number of the warrant he paid on the third October, was No. 2319; the highest, 2772. On the eighth, the lowest number was No. 56; the highest 3734. On the ninth, the lowest number was No. Ill; the highest 3006, and so on.

Fourth — There is no evidence in the record of any injunction against the Treasurer, which would, or could have prevented him from paying the relator’s claim if there was money to pay with. He alleges in his answer that he has been in joined from doing so by process issued, in the cases of Bonita and Benjamin.

So far as the Bonita case is concerned, there is no proof of there being any such proceeding before us.

As to the Benjamin injunction, it appears that one did issue as alleged, in suit No. 7792, but the amount claimed in that suit was $3930, and the judgment in this case is the only one in the record which compels him to pay Benjamin anything, or which gives him any preference. It would appear, however, that there is another suit of the same nature against the treasurer, also instituted by Benjamin, under the No. 7847, in which he claims $45,000, but this record is not in evidence. Admitting it to be what the intervention claims it is, still it can not be successfully opposed to the present relator. The evidence shows that, as audited by the Auditor, $78,348 72 were received by the treasurer, between the twenty-fifth September and the fifteenth October. If, therefore, he had paid the whole amount claimed by Benjamin in both of his suits, there would still have remained some $30,000, out of which the relator’s claim could have been paid. But the testimony shows that all of Benjamin’s warrants, or those referred to in his petition, at least, have not been paid. Auguste, who-collected them, says he had been paid about $40,000; this would have left over $38,000 in the treasury. Neither can the treasurer say that he kept the money in the treasury, for the evidence shows that while he received $78,348 72, he paid out $75,986. He must, therefore, have paid to others besides Benjamin. Benjamin’s injunctions seem to have been used as a shield by the treasurer, to protect him against the payment of Merle’s warrants, but they were no obstacle to his paying others. That he did pay others, while refusing to pay Merle, is apparent. Auguste testifies that he had collected $40,000, leaving $17,000 still to be collected. As Benjamin never claimed more than $50,000, it follows that he must have been collecting for some one else. Indeed, he testifies that he was. He says, On the second October, I made a demand for a settlement for Newman.” Merle said, I have a warrant for $625, that I want to be paid.” “I told him that I collected under the injunction of Benjamin, and had a right to be paid.”

This evidence is more than substantiated by the fact that a comparison of the warrants described in the list attached to the first injunction with the list of those paid by the treasurer, shows that none of the warrants first described appear on the list furnished by the treasurer. We therefore believe that when Auguste testifies that when collecting under the Benjamin injunction, he was collecting Newman’s warrants, he swore to the truth.

The record discloses the fact that the treasurer, although he filed an answer to the suits brought against him by Benjamin, neither appealed from the judgments when they were rendered against him, nor asked for an appeal, nor applied to the Attorney General to take one, nor did any thing to prevent their execution, although, practically, they effectually bolted and barred the treasury against the claims of every citizen who was a creditor of the State, except those in whose favor they were rendered and others who were allowed to profit by them.

An application for an appeal was made, but not by the treasurer. Bonis applied for one, alleging that he was the owner of warrants which the treasurer would not pay on account of these injunctions, but his application was refused by the judge,- who considered that no appeal would lie from an order granting an injunction. But this was not an effort to appeal from an injunction pendente Mte. It was an appeal asked from a judgment perpetuating an injunction, and commanding the payment of money, and from such a judgment it is clear that an appeal does lie.

A thorough and careful examination of the record has reluctantly forced the conclusion upon us that, in so far as relates to the present appearers, the business of the treasury department has been conducted in the interest of certain favored individuals, who, acting upon proceedings having the color of law, have managed it in their own interest ; that while its doors remained hermetically closed against certain l>ona fide creditors of the State, it lay all unlocked to the occasions of others, who had no right of precedence over their competitors. All men are equal before the law, and all men, having equal claims upon the State for the payment of a common debt, have equal rights upon the common treasury.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be reversed; and it is further ordered, adjudged and decreed, that a writ of mandamus issue directed to the State Treasurer, Antoine Dubuclet, commanding him to pay the warrants annexed to the relator’s petition, out of any funds in the treasury appropriated for that purpose, without any reference to any injunctions to the contrary which may have been issued to him.

John Chapus v. Antoine Dubuclet, State Treasurer.

Morgan, J.

This case is similar to the one just decided in the case of Merle v. Dubuclet.

For the reasons therein given, it is ordered, adjudged and decreed that the judgment of the lower court be reversed j and it is further ordered, adjudged and decreed, that a writ of mandamus issue directed to the State Treasurer, Antoine Dubuclet, commanding him to pay the warrants annexed to the relator’s petition, out of any funds in the treasury appropriated for that purpose, without any reference to any injunctions to the contrary which may have been issued to him.

On Behearing.

Howell, J.

A rehearing was granted in this case “for the purpose of explaining the decree,” which is in the following words: “ It is ordered, adjudged and decreed that the judgment appealed from be reversed, and it is further ordered, adjudged and decreed that a writ of mandamus issue, directed to the State Treasurer, Antoine Dubuclet, .commanding him to pay the warrants annexed to the relator’s petition out of any funds in the treasury appropriated for that purpose, without reference to any injunctions to the contrary which may have been isued to him.”

It is contended on behalf of the treasurer that this decree, “compels him to pay the warrants annexed to the petition by preference over all other warrants, when there was no money in the treasury at the time they are presented out of which they could be paid,” which is a contingency in which a mandamus should not be granted, whatever may be the'personal responsibility of the treasurer for his acts. The facts in this connection, as wé find them, are that when the relator presented his warrants there was money in the treasury, but the treasurer paid it out by preference to one Benjamin, or his agent, in obedience, as he asserted, to an injunction from the Eighth District Court for the parish of Orleans. We come to the conclusion, and we are still of the opinion that the said injunction was and is wholly without any legal effect, and did not justify the treasurer in his action in the premises. But we erred in ordering a writ of mandamus to issue when there was no money. Said writ properly issues against the treasurer only when he has money and illegally withholds it from one entitled to be paid. If he refuses to pay one creditor of the State and gives an illegal preference to and pays all the money in his hands to another, he may make himself amenable to the law, which fixes his duty and imposes heavy penalties for dereliction of that duty; but it is not a proper case for a mandamus.

To now order the treasurer in this proceeding to pay, under such circumstances, whenever the treasury may be replenished, is equivalent to a judgment in an ordinary proceeding, and would in effect give a preference to the relator, or to an order in advance to do what he has not refused to do, and what it must be presumed he will do, until the contrary be shown, as the presumption is in favor of an officer • doing his duty. We may very well say, that the injunction invoked ’is no legal protection or excuse, but the claim secured by that injunction can not always exist. Indeed the record shows that it was paid or nearly so at the time of the trial of this case in the lower court.

While our opinion of the acts of the treasurer in this whole matter are unchanged, still we are not ourselves authorized under the facts ■ and the law to make the mandamus peremptory. Instead of simply, explaining, we must reverse our former decree.

It is therefore ordered that our decree herein be set aside, and that ■ the judgment of the lower court be affirmed.

State ex rel. John Chapus v. Antoine Dubuclet, State Treasurer.

Howell, J.

For the reasons just given in the case of the State ex rel. E. Merle v. Antoine Dubuclet, State Treasurer, it is ordered that the decree heretofore rendered by ns be set aside, and that the judgment appealed from be affirmed.

Morcan, J.,

dissenting. The treasurer complains of the judgment pronounced by us in this case, in this, that ‘ it compels the treasurer to pay the warrants annexed to the petition by preference over all other warrants, when there was no money in the treasury at the time they were presented out of which they could be paid.” I do not see how the decree can be so interpreted. Merle, the holder of a number of warrants payable out of a certain fund, was asking for their payment. The treasurer refused payment on the gronnd that he was forced to apply all the money coming into that fund first to the payment of warrants drawn against it, in the hands of one Benjamin, by reason of an injunction to that effect. We simply declared that Benjamin had no greater rights than Merle. The decree is that the treasurer pay the relator’s warrants out of any funds in the treasury appropriated for that purpose, without any reference to any injunction to the contrary which may have been issued to him. The decree, I think, meant that Merle had the same right to be paid out of the fund in question that Benjamin had, and I do not see how it can be tortured into the con- 1 struetion that he should be paid “by preference over all other warrants.”

Neither is the statement in the application for a rehearing that “at the time they were presented there was no money in the treasury out of which they could have been paid,” correct. The contrary is the fact, and it is of this which Merle complains, and it is this whicli we thought he was entitled to complain of. The record shows that while he was being refused payment, upwards of seventy thousand dollars came into the fund upon which his warrants were drawn, while the injunction in favor of Benjamin, which the treasurer pleaded as a reason for not paying him, only held a little more than half of that sum. The record also shows that Newman’s warrants were paid under Benjamin's injunction. These facts forced upon us the conviction, at the time the case was argued, that the treasury was being used in the interest of certain favored parties. I am of that opinion still. We thought then that the treasurer had no right thus to administer the trust reposed in him. I still think so. We thought then that we could force the treasurer to perform his duty, and upon this point my mind remains unchanged. We thought then that he had shown a preference where he should have been impartial. I think so still. We ordered him simply to do his duty, that is, to pay the warrants held by Merle precisely as he paid the warrants held by Benjamin and others having the same right against the same fund, and I think still that he should be held to it.

Neither do I think that the reason urged for a rehearing, that if Merle’s warrants are paid ‘‘ they will have to be paid out of money which has since come into the treasury,” a good one. Of course if the treasurer has paid what money there was belonging to a certain fund, he can not pay the same money over. But he can pay when the fund is replenished, and all he was ordered to do was to pay out such funds as he had to those who were equally entitled to it, and not to give it to favorites, or use for excuse an injunction which did not cover the case.

Entertaining these views, I do not think the decree herein pronounced needs any further explanation.


author: Ludblin©, C. J. Morgan, J. Howell, J.,

text:
    No. 4622.
    The State of Louisiana v. Didio Baptiste and Francis Martini.
    The judge a quo was right when he refused a continuance in order that the prisoners might obtain testimony from Europe to establish the fact that the man alleged to have been murdered was the nephew of one of the accused. The relationship of the parties has nothing to do with the guilt or innocence of the accused..
    The judge did not err when he ordered that the witnesses for the State and the prisoners be separated, except the physicians. Dr. Jackson, being the coroner, was called to testify as such; Dr. Bernias and Dr. Board, being required as medical experts as to the cause of death were permitted to remain to hear the evidence in order that they might form an opinion as to the cause of death.
    The court a qua did not err in permitting "Ward to testify as a witness. The objection was that he had been found guilty of two crimes, and had been sentenced to the penitentiary and to the parish prison; that he had been pardoned after his sentence had been completed; and that his pardon was not sufficiently proved.

      It matters not whether the pardon came before or after the term of confinement had expired. There are disabilities which are the consequences of-conviction, and which remain after incarceration has ceased. The doctrine well recognized on this subject is, that a pardon gives to the person to whom it is granted a new character, and makes of him a new man. "When extended to him in prison, it releases him and removes his disabilities; when given to him after his time of imprisonment has expired, it removes all that is left of the consequences of conviction — his disabilities.
    A communication from the Secretary of the Senate to the Acting Governor, informing him that his recommendation for pardon had been received, and that it had been acted upon favorably, is sufficient evidence of the completeness of the pardon.
    The judge a quo did not err in permitting the physicians, as professional experts, to recapitulate to the jury the evidence they had heard, and which constituted the reason and foundation for their opinions in relation to the mode of death of the deceased.
    The objection that they were physicians in the employ of two insurance offices which had each a policy in the life of the deceased, may go to their credibility, but does not make improper their answers to the questions propounded.
    The jury, after being two days and two nights deliberating on their verdict, came into court, and through their foreman asked the court for further instructions as to the weight to be given to oircumstantial evidence; and the court having briefly charged the jury that they were bound to act on circumstantial evidence as much as on any other evidenoe, and being about to send back the jury to their room for further deliberations, the counsel for defendants asked the court to give the jury a more explicit charge as to the character of the circumstantial evidence which was entitled to consideration by them. The court interrupted the counsel, and absolutely refused to hear what he had to say, or even to permit him to address the court upon the right of asking for additional charges on the particular information wanted by the jury.
    On this point, it is obvious that the judge a quo erred, and that he refused to the prisoners a most importánt, and, in this instance, vital right.
    Appeal from the First District Court, parish of Orleans. Abell, J. Criminal case.

      A. P. Field, Attorney General, for the State. Sambola & Atocha, for defendants and appellants.
   Ludblin©, C. J.

In this case there are several bills of exceptions to the rulings of the judge a quo.

It will be necessary to notice only one of them. The State offered as a witness one Ward, to prove admissions made by the prisoners. Objection was made to permitting the witness to testify, on the ground that he was disqualified by law from testifying, having been convicted of an infamous crime. A pardon of the Acting Governor, P. B. S. Pinchback, was produced. It was granted after the convict had served out the term of his imprisonment, and it is denied that in such a case the Governor had the right to grant a pardon. Such is our opinon. The Governor may pardon a convict while some portion of the penalty after judgment is unsatisfied, but when the judgment has been satisfied there is nothing to pardon. By a rule of evidence one convicted of an infamous crime is disqualified from giving evidence in a court of justice, and we know of no law which authorizes the Governor to remove the disability except by a pardon legally granted. It is from the penalty inflicted by the judgment of the court that the Governor can pardon, and not from the consequences of a civil rule resulting from a former conviction. As well might it be claimed that the Governor could grant indulgences in advance of the commission of crimes.

The judge erred in permitting the witness to testify. It is therefore ordered and adjudged that the verdict of the jury and the judgment of the court be set aside, and that there be judgment remanding the case for a new trial, according to law.

On Rehearing.

Morgan, J.

The defendants, prosecuted for murder, found guilty without capital punishment, and condemned to imprisonment at harct labor for life, have appealed from the sentence pronounced upon them, and present several grounds for a reversal of the decree rendered against them. These errors are assigned in the bills of exceptions, which come up with the record, and which we proceed to.examine in: the order in which we find them stated in their counsel’s brief.

First — It is contended that there was error in the ruling of the district judge, who refused a continuance in order that the prisoners might obtain testimony from Europe, to establish the fact that the man alleged to have been murdered was the nephew of Martini. The judge was right. The relationship of the parties had nothing to do with the guilt or innocence of the accused. Whether the deceased was or was ■ not the nephew of the prisoners, the killing, if unlawful and malicious, was murder.

Seoond — The court ordered that the witnesses for the State and the prisoners be separated, except the physicians. To this exception with regard to the physicians counsel for prisoners objected, and reserved their bill to the ruling of the court. The judge did not err, and the reasons given by him in support of his ruling are satisfactory. “Dr. Jackson,’’ he says, “ being the Coroner, was called to testify as such. Dr. Bemiss and Dr. Beard, being required as medical experts as to the cause of death,'were permitted to remain to hear the evidence, in order that they might form an opinion as to the cause of death.”

Third — The court did not err in permitting Ward, a witness, to testify. He had been convicted of two crimes, and had been sentenced-to the penitentiary and to the parish prison. The first objection to' him as a witness was that he had been pardoned after his sentence had been completed; the second that the pardon which he produced was-not sufficiently proved. With regard to one crime, he was undergoing punishment when the pardon was granted to him. With regard to the other we think it matters not whether the pardon came before or.after his term of confinement had expired. Imprisonment and hard ■ labor are not the only punishments which the law inflicts upon those who violate its commands. Besides these, are disabilities which are'the consequences of conviction, and which remain after incarceration' has. ceased. A pardon is supposed to be granted to one who has been improperly convicted, or who has sufficiently expiated his offense. If it was only efficacious when the party was in duress, its effects would only be a halfway relief. The doctrine, now well recognized upon this-subject, we believe, is that a pardon gives to the person in whose favor it is granted a new character and makes of him a new man. When extended to him in prison, it relieves him and removes his disabilities; when given to him after his term of imprisonment has expired, it removes all that is left of the consequences of conviction — his disabilities.

• We think the evidence of his pardon established. He produced it in court. The prisoners contend that the pardon was only completed by the action of the Senate thereon, and that the action of the Senate has not been properly shown. We think it has. In the record we find a communication from the Secretary of the Senate to the acting Governor, informing him that his recommendation for pardon of the' man Ward, had been received and that it had been acted upon promptly. This we consider sufficient.

Fourth — The prisoners’ counsel say there was error in the ruling of the judge which permitted the following questions to be propounded to one of the leading physicians examined as an expert:

"Doctor, you were present during the trial, at the examination of the witness for the State, in relation to the fact of this young man, the deceased, going to bathe, and to the appearance, marks of violence, and other facts testified by the witnesses. If you could form any correct opinion as to the cause of the death of this young man, state what is your opinion. State the grounds of your opinion as to the cause of death. Were the bruises on the body of the deceased, according to» the representations of the witnesses, inflicted before or after death?” And to the other physician: “ Doctor, you were present at the examina-' tion of the witnesses in this trial to testify in reference to the condition of a man found in the lake, on the morning of the twelfth August last, the description of the marks about his neck and breast, and the appearance of his body when found? What is your opinion as a medi-' cal man as to the cause of death?”

Counsel for the prisoners say, in their brief: “ The two doctor» answered these questions by giving their opinions of the cause of death from the evidence they had heard. They told the jury that if was their opinion from the evidence they had heard, that the deceased had died from violence; and, as the reason and foundation for their-opinion, they recapitulated to the jury the evidence they had heard.” ■ It was for the purpose of giving their opinion as to the cause of the' death of the deceased that these professional men were put upon the stand. The questions were proper ones; and it was their duty to give-to the jury the reasons upon which they rested their opinions. It is ■objected that they were physicians in the employ of two insurance offices who had each a policy on the life of the deceased. This objection went to their credibility, but does not make the questions or their answers improper.

Fifth — It was excepted that the jury were not competent to render a verdict, the reason being that the time for which they had been summoned had expired before the verdict was announced. Juries in the First District Court were by monthly terms, beginning the first Monday of each month. The jury in this case were empanneled in the latter part of December. The trial extended over into January. There is no force in this objection. The question has been expressly decided.

The judge did not err in refusing a new trial on the ground that the trial took place only a short time after the indictment was found. The bill was presented on the thirtieth of November, and the trial commenced on the twenty-seventh of December. This gave them ample time to prepare their defense. Doubtless had the time been too short to enable them to do so, the court would have granted them' a reasonable extension. Neither did he err in refusing a new trial on the ground that after refusing the prisoners a continuance to enable them to send to Europe for testimony to show that the deceased, whom they were charged with the murder of, was the nephew of one of them, permitted the State to introduce evidence to prove that no relationship existed between- them. This evidence seems to have been received without objection — and the motion for a continuance was made before the testimony was offered and received. After the judge had refused . the prisoners a continuance in order to enable them to procure evidence of a relationship between the deceased and one of themselves, he would, no doubt, have prohibited the State from proving the contrary, if objections thereto had been made, or if he had admitted it, notwithstanding their objection, he would, on application, have granted them time to produce testimony to the contrary.

So far the rulings of the district judge were correct. But we find in the record the following bill of exceptions:

“Be it remembered, that on the tenth day of January, 1873, the above entitled and numbered cause having been tried and submitted to the jury, and the jury, after being two days and two nights deliberating on their verdict, came into court and, through their foreman, asked the court for further instructions as to the weight to be given to circumstantial evidence; and the court having briefly charged the jury that they were bound to act on circumstantial evidence as much as any other evidence, and being about to return the jury to their room for further deliberation, the counsel for defendant was about to ask the court to give the jury a more explicit charge of the character of the circumstantial evidence which was entitled to consideration by the jury — when the court interrupted the counsel, and absolutely refused to hear •What he had to say, or even to address the court upon the right ■of asking additional charges on the particular information asked by the jury; and to this action and decision of the court the defendants, by their counsel, duly excepted, and the exception was ordered to be made part of the record of the case.”

In this it is obvious that the judge erred, and that he refused to the prisoners a most important, and, in this instance, vital right. The record shows that their trial commenced on the twenty-seventh December, and that it continued from day to day (Sundays and the first of January excepted) until the seventh January, when it was submitted to the jury. The jury remained out until the tenth. They then came into court and asked for further instructions as to the weight to be given to circumstantial evidence. A short time after they received the charge of the judge upon this subject, they returned with a verdict of guilty. It is therefore evident, that upon the thread of circumstantial evidence their fate depended. In this condition, it was unquestionably their right, after the court had, as is stated, briefly charged the jury, to require that the whole law upon the subject should have been given to them. For it is apparent that the charge of the judge, as far as it went, might have been correct, and yet, by suppressing an important part thereof, have been fatally and illegally injurious to them.

For instance: If the eonrt had charged the jury that they were bound by circumstantial evidence, and had stopped there, the law would have been properly stated. But if the prisoners had requested the judge to add that in an indictment for murder, supported entirely by circumstantial evidence, where there was no fact which, taken alone, amounted to a presumption of guilt, they must find that those circumstances must be such as to be inconsistent with any other rational conclusion than that the prisoners were the guilty persons, before they could find a verdict against them, they would only have asked for instructions which is recognized law. Having refused to even hear their counsel, was an error which he should have corrected on the spot or granted the prisoners a new trial. The reason given by the judge for refusing to hear the counsel, that the granting of the request of counsel would have been tantamount to a rehearing of the case, as the Attorney General would have had the right to ask counter instructions,” is not satisfactory. The Attorney General, as well as the counsel ior the prisoners, had the right to ask the judge, when the jury returned into court, that they be instructed in a particular manner, and either had the right to except to his refusal so to do, as either had the right to except to such charge as he may have made.

Neither do we find his other reason, that the practice of this court for twenty-five years has been to refuse such applications, and I find no precedents in the books to justify granting the same,” conclusive. If it has been the practice in the court over which he presides, for twenty-five years to deny to prisoners on trial before it a right which is accorded to them by law, it is time the practice should be reformed. It ■ is possible that he can “ find no precedent in the books for granting the same,” but we have not been referred to any where the right has been denied, and we know of none.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be reversed, and that the case be remanded for a new trial in conformity with the principles of law herein laid down.

Howell, J.,

dissenting. The bill of exceptions to the refusal of the judge to hear defendant’s counsel in asking for “a more explicit charge of the character of the circumstantial evidence, which was entitled to consideration by the jury,” does not show what the. desired, additional charge was, nor in what the charge given was defective, and, therefore, does not enable us to determine whether the request of defendant’s counsel should have been granted, even conceding that he was entitled to make the request at the time he desired to make it.

The simple fact that the judge refused to listen to him does not prove that what he wanted should have been granted, nor that the charge given was imperfect or wrong.

I think the defendants are not in a position to obtain any aid from ■ this court.


author: Morgan, J.

text:
    No. 5067.
    Parish of East Feliciana ex rel. J. Oscar Howell, Tax Collector, v. John Gurth.
    The defendant’s objection is that tbe law nnder which the parish tax is levied on retail liquor dealers in the parish of East Felioiana, is violative of the one hundred and. eighteenth article of the State Constitution, because the tax is not uniform, inasmuoh as it is regulated by the amount of business which is done; those who sell for more than $15,000 having to pay one sum, and those who sell for less than $15,000 and more than $5000, another sum, and so on. This objection is fatal.
    Appeal from the Parish Court, Parish of East Feliciana, Hughes, J.

      F. J). Brame, District Attorney, pro tem., for plaintiff and appellee. Hernán <& Lyons, for defendant and appellant.
   Morgan, J.

This is a suit to enforce the payment of a parish license tax of twenty-five dollars for keeping a billiard table, and eighty-five dollars license as a retail liquor dealer, and to injoin him from prosecuting these occupations until his taxes are paid.

The defense is that the parish has no right to levy or collect any license tax, and that the tax as levied by the police jury is unequal on all persons who pursue the occupation of retail liquor dealers, and in this regard violates the one hundred and eighteenth article of the Constitution, and is therefore null and void.

The power of police juries “to impose whatever parish tax they may see fit on all keepers of billiard tables and grog shops” is given, in terms, by the two thousand seven hundred and forty-third section of the Revised Statutes of 1870, and it is not contended or shown that the keeper of every billiard table in that parish is not taxed the same sum for carrying on that occupation.

The second objection is that the law under which the tax is levied violates the one hundred and eighteenth article of the Constitution, which declares that taxation shall be uniform throughout the State. The objection is that the sum taxed is regulated by the amount of business which is done, those who sell for more than $15,000 having to pay one sum, and those who sell for less than $15,000 and more than $5000, another sum, and so on. This objection is fatal. • See State v. Endom, 23 An. 663.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court, in so far as it injoins the defendant from keeping a billiard table until he pays the tax of twenty-five dollars, be approved; and it is further ordered, adjudged and decreed that in all other respects the judgment be avoided, annulled and reversed, and the injunction dissolved. Defendant to pay the costs in the court below; plaintiff to pay the costs of appeal.


author: Taliaferro, J.

text:
    No. 3238.
    B. K. Hunter v. M. J. Dunham et al.—T. H. J. Richardson, Intervenor.
    The plaintiff being ostensibly the owner, under Ms purchase at sheriff’s sale, of the property rented to defendants, is entitled to its revenues. If the intervenor is the real owner and as suoh entitled to both the property and its revenues, he must seek his remedy in a different direction.
    Appeal from the Ninth Judicial District Court, parish of Rapides. Orsborn J.

      It. A. Hunter, for plaintiff and appellee. WiUkm A. Seay and J. J?. Smith, for intervenor and appellant.
   Taliaferro, J.

The decree just rendered in the case of Thomas H. J. Richardson v. Levin P. Smith, et al., No. 5044, determines the decision to be rendered in this case. B. K. Hunter, the plaintiff in this case, sues Woodward and Dunham for six hundred dollars, the amount for which he leased to them for the year 1869 the land and plantation he purchased at sheriff’s sale in the suit of R. A. Hunter v. J. H. J. Richardson, and for which the latter sued B. K. Hunter in the suit No. 5044.

In the suit now before us, Richardson intervened, claiming the rent due by Woodward and Dunham, alleging himself to be the owner of the property, and that he himself had rented the premises in question to the lessees, Woodward and Dunham, for the year 1869, at the price of six hundred dollars.

The defendants answered in substance that they had no further interest in the controversy than being secure in paying the amount of their indebtedness to the party legally determined to be entitled to it. There was judgment dismissing the intervention and decreeing the-defendants to pay six hundred dollars, the amount sued for, to the-plaintiff, B. K. Hunter. The intervenor appealed.

We think the judgment correct. Béing ostensibly the owner under his purchase of the property at sheriff’s salé, he was entitled to its-revenues. If as the real owner, and as such.entitled to both the property and its revenues, the intervenor will have to seek his remedy in a different direction.

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


text:
    No. 4968.
    John I. Adams v. Asa Webster.
    Seotion 8 of act No. 47, of 1873, -which disqualifies as a -witness a delinquent taxpayer, published as such for thirty days, is unconstitutional.
    This provision of the act under consideration is a regulation or rule of evidence enacted by the Legislature. The title of the act should then give some indication of it, which it does not. No one upon reading that title would imagine that the act contained any provision upon the rules of evidence or the right to be a witness in a oourt of justice.
    Appeal from the Fifteenth Judicial District Court, parish of Lafourche. Beattie, J.
    Jury trial. Bush & Goode, for plaintiff and appellee. B. B. Jordan, JE. W. BlaJce, John 8. Bilim, for defendant- and appellant.
   Howell, J.

This ease was before us in the January term of 1873,, and was remanded for a new trial. See 25 An. 113.

Upon the trial below the defendant filed the special plea of payment. and offered Ms own testimony to sustain the plea, but it was excluded on the objection of plaintiff, upon the ground that he was disqualified as a witness, under section 8 of act No. 47 of 1873, being a delinquent taxpayer and published as such for thirty days.

It is contended by defendant that this provision of said act is in violation of article 114 of the Constitution, because its object is to establish a rule of evidence, and is not expressed in the title. The title is “An Act to enforce the payment of taxes due the State, providing for the seizure and sale of the property of delinquent taxpayers, and regulating the proceedings against them and against their property and tenants.”

Section 8 directs the Auditor to publish the names of the delinquent taxpayers, with the residence of and the amount due by each,” and such delinquent taxpayer shall, after thirty days, forfeit his right to bring suit or be a witness for or in his own behalf, before any justice, parish, district or State court, etc.”

Plaintiff’s counsel, in his brief, says: “that the Legislature has authority to close the door of the courts to any litigant by inhibiting him from bringing or defending suits, is a proposition too monstrous to be entertained for a moment, but the question of evidence is one exclusively under legislative control. The courts of the country are open to all, whether native born or alien, but no one has a constitutional right to give testimony.”

This virtually admits that the provision of the act under consideration is a regulation or rule of evidence enacted by the Legislature. The title of the act should then give some indication of such object. No one, we presume, upon reading the above title, would imagine that the act contained any provision upon the rules of evidence, or the right to be a witness in a court of justice. We must, consequently, hold such a provision unconstitutional, and give the defendant an opportunity to be heard as a witness.

It is therefore ordered the judgment and verdict herein be set aside, and this cause remanded to be proceeded in according to law, costs of appeal to,be paid by appellee.


author: Wyly, J.

text:
    No. 5081.
    Cora and Louisa Brusle and Husband v. Mrs. Lavinia Jane Hamilton, widow of R. C. Downes; O. P. Hebert, Intervenor.
    Tbe special mortgage given by tbe natural tutrix of tbe plaintiffs in 1858 was strictly in conformity to law, and tbe tacit mortgage sought to be enforced against her or those who bold under her was legally extinguished.
    It is well settled that tbe bolder of property under recorded titles, can give a valid mortgage thereon where tbe mortgagee has acted in good faith, and tbe transaction is a real one, regardless of tbe simulation of tbe morbgageor’s title.
    Appeal from the Fifth Judicial District Court, parish of Iberville. Odie, J.

      JE. JB. Talbot, for plaintiff's and appellants. Barrow & Bope, for defendant and appellee and for intervenor.
   Wyly, J.

The plaintiffs alleging they have a tacit mortgage on the lands which their natural tutrix sold to the defendant, Mrs. Downes, in 1854, and that by a clause in the sale the vendee agreed to pay each heir his virile share, on arriving at the age of majority, out of the price remaining in her hands reserved as protection against their tacit mortgage, sue her to recover the sum of $2021 04, due each of the plaintiffs, and also to enforce the tacit mortgage which they claim on said lands. They also sue to annul, for simulation, the sale of the lands from Dupuy and Greaud by their tutrix in 1858, upon which a special mortgage was given by her in lieu of their tacit mortgage, pursuant to section seven of the act approved fifteenth of March, 1855, and also to have declared null said special mortgage on account of said simulation.

O. P. Hebert, the son of the defendant, Mrs. Downes, intervened, claiming that he is the owner of the lands upon which the plaintiffs seek to enforce their alleged mortgage, having purchased the same at a judicial sale to enforce his tacit mortgage against the defendant, Mrs. Downes, his natural tutrix. He also alleges that the mortgage under which he acquired the property is superior in rank to all others bearing thereon. He also adopts the answer of the defendant, Mrs. Downes, alleging that the plaintiffs’ tacit mortgage was extinguished by the special mortgage on other lands which their natural tutrix gave in 1858, pursuant to the provisions of the act of fifteenth of March, 1855, and further alleging the slave consideration of the debt which the plaintiffs are seeking to enforce in this suit.

The court rejected the demand of the plaintiffs, decreed that the tacit mortgage of the plaintiffs, bearing on the land in question, was extinguished by the special mortgage given by their natural tutrix in 1858, and decreed that the tacit mortgage of the intervenor, O. P. Hebert, was superior in rank to the special mortgage given by Mrs. Downes to Mrs. Brusle, to secure the purchase price of said lands. From this judgment the plaintiffs appeal.

Section seven of the act of fifteenth of March, 1855, “An Act relative to minors,” declares “ that any surviving father or mother who shall hereafter become the tutor of their minor children, may give a special mortgage on immovable property, not including slaves, for the security of the right and property of their said children, and the faithful discharge of their functions as tutor; provided, that a meeting of the family of said minors, duly called according to law, on the petition of said father or mother, shall declare that the property offered to be specially mortgaged is in their opinion of sufficient value to secure the rights of the children in capital and interest. From and after the execution of the special mortgage by the natural tutor, as aforesaid, all the remaining property of the father or mother acquired or to be acquired, shall be completely discharged from the legal mortgage arising from the tutorship.” The special mortgage given by the natural tutrix of the plaintiffs in 1858, was strictly in conformity to the statute referred to, and we are of opinion that the tacit mortgage sought to be enforced, was legally extinguished. The simulation of the title of the natural tutrix, if such were the case, did not injure the plaintiffs nor in any manner impair the security afforded them by the special mortgage; because it is well settled that the holder of property under recorded titles, can give a valid mortgage thereon where the mortgagee has acted in good faith and the transaction is a real one, regardless of the simulation of the mortgageor’s title. Besides, this is not a controversy with the natural tutrix, but between the plaintiffs and third parties.

The intervenor sets up a title to the property, which was acquired under the enforcement of his tacit mortgage against the defendant, Mrs. Downes, and the restoration of the tacit mortgage set up by the plaintiffs would affect his rights to the property.

We think the court did not err in holding the superiority of the mortgage under which the intervenor acquired the property in question. But there was error in rejecting plaintiffs’ demand for a personal judgment against the defendant, Mrs. Downes; because by a clause in the act of sale from Mrs. Brusle to her, she assumed to pay each heir, on coming of age, out of the funds in her hands, his virile share of the sum due the minors by their natural tutrix. As the consideration of the debt out of which said shares were to be paid is mixed, part slaves and part lands and movables, and as we are unable from the record to fix the relative amount of each, we will remand the case in order that the court below may determine the amount of plaintiff’s claim, recoverable in a personal judgment against Mrs. Downes. 21 An. 757, Sandige v. Sanderson.

It is therefore ordered that the judgment herein be affirmed in all respects, except wherein it rejects plaintiffs’ demand for a personal judgment against the defendant, Widow Downes ; and in this respect it is ordered that said judgment be annulled; and it is further ordered that this cause be remanded in order that on a new trial it may be determined what part of the debt sought to be enforced against Mrs. Downes personally, was tor lands and movables, and what part for slaves, with instruction that plaintiffs' demand be reduced so as not to embrace the proportion thereof which was for the price of slaves. It is further ordered that appellees pay costs of appeal.


text:
    No. 4955.
    State ex rel. Semmes & Mott v. The Judge of the Superior District Court, parish of Orleans.
    It is -well settled that this court will not exercise a supervisory control over the district courts, and that the writ of prohibition will not be used except in aid of the appellate jurisdiction of this court. Delators have mistaken their remedy in this instance; it was not a writ of prohibition, but an appeal from the order of the Superior District Court, ordering the transfer of the suit of relators from the Sixth District Court to that court.
    Application for a writ: of prohibition against the Judge of the Superior District Court, parish of Orleans.

      W. W. King, for relators. John Bay, for respondent
   Wyly, J.

It is well settled that this court will not exercise a supervisory control over the district courts, and that the writ of prohibition will not be used except in aid of the appellate jurisdiction of this court.

Therefore, when the relator’s suit for damages ag4inst Charles Clinton was transferred from the Sixth District Court to the Superior District Court by order of the last named court, the relator’s remedy was not a writ of prohibition from this court, because the jurisdiction of this court was not involved; but his remedy was an appeal from the order of the Superior District Court, ordering the transfer of the suit to that court. See the case of the State ex rel. D’Meza et al. v. The Judge of the Fourth District Court, 21 An. 123, and the authorities there cited.

It is therefore ordered that the application for prohibition herein be disallowed, and that the petition be dismissed at the costs of the relators.


author: Ludeling, C. J.

text:
    No. 4966.
    First National Bank of Macon v. B. B. Simmes.
    There is no law which requires authentic proof of the identity or existence of a plaintiff acting mi juris. "Whether the plaintiff be a corporation or a private association of persons is of no consequence, so far as its right to enforce the collection of the note it holds is oonoerned.
    "Where the note is made payable to the order of the maker who indorsed it in blank, and the mortgage is in favor of any holder or holders thereof, and the note is identified and described in the act of mortgage, no other proof than possession is necessary.
    The plea that the defendant’s title to the land purchased and for which the mortgage note was given is not perfect for the whole, can not be sustained. He does not allege that he has been disturbed in his possession; that he has been sued; or that he is threatened with a suit for the property. Besides, the parties interested in that question, who were called in warranty, are not before this court.
    Appeal from the Sixth District Court, parish of Orleans. Saucier, J.

      W. W. King, for plaintiff and appellee. Eckoa/rd Philips, for defendant and appellant.
   Ludeling, C. J.

The executory process in this case was injoined on the following grounds:

Mrst — That there was no authentic evidence of the existence of any such corportion.

Second — That there was no authentic evidence of plaintiff’s title to the note.

Third — That the defendant’s title to the land purchased, and for which the mortgage note was given, was not perfect for the whole.

. First — We do not know of any law which requires authentic proof of the identity or existence of a plaintiff acting sm juris. Whether the plaintiff be a corporation or a private association of persons is of no consequence, so far as its right to enforce the collection of the note it holds is concerned.

Second — The note is made payable to the order of the maker who indorsed it in blank, and the mortgage is in favor of any holder or holders thereof, and the note is identified and described in the act of mortgage; no other proof of ownership than possession was necessary.

Third — The plaintiff in injunction does not allege that he has been disturbed in his possession; that he has been sued; or that he is threatened with a suit for the property. C. C. 2557. Neither are we prepared to say that the objections to the title which he himself urges would be good, if the question was properly before us. But the parties interested in that question, who were called in warranty, are not before us, as no judgment was rendered on the exception filed by them, or on the issues presented by their answer, and they are not before this court.

It is therefore ordered that the judgment of the lower court be affirmed with costs.


author: Wily, J.

text:
    No. 4971.
    A. Hefner v. S. Hesse and H. Vergez.
    It is well settled that want of citation of appeal will he cured where the appellee appears and contests the case on any other ground.
    "Where there is no note of evidence on the subject in the record, the rule is that the judge who condemned the defendants as commercial partners solidarity on their note, did se on proper evidence.
    Appeal from the Fifteenth Judicial District Court, parish of Lafourche. Beattie, J.

      A. F. & Olcmj Knobloek, for defendants and appellants. Goode & Winder, for plaintiff and appellee.
   Wily, J.

It is well settled that want of citation of appeal will be cured where the appellee appears and contests the case on any other ground. Therefore when the plaintiff, appellee herein, moved to dismiss the appeal on the ground that the record does not contain all the evidence adduced on this trial, he set up a defense which amounts to a voluntary appearance in^the case, and it cured his objection that he was not cited as appellee.

The motion to dismiss the appeal for want of proper citation is therefore denied.

On the merits, the appellants contend that there is no proof that they are liable as solidary obligors on the note which is the basis of plaintiff’s action against them.

There is no note of evidence; and the rule is that the judge who condemned the defendants as commercial partners solidarily on their note, did so upon proper evidence. 22 An. 73; 23 An. 39-3, 504; 24 An. 20.

Judgment affirmed.


text:
    No. 5088.
    N. D. Fuqua v. John Chaffe & Bro.
    Where the answer is that the mortgage was executed upon the land in favor of defendants before the plaintiff had acquired a homestead right upon it — that is, that Fuqua, while a resident of the parish of Terrebonne, and before he went to reside on the Oak Point plantation, in the parish of Madison, mortgaged that plantation to the defendants ;
    Held — That the law which conferred the homestead right existing at the time the mortgage was granted, the defendants accepted the mortgage subject to the contingency that might arise in the future, rendering it necessary for the mortgageor to avail himself of the benefit of the homestead law.
    Appeal from the Thirteenth Judicial District Court, parish of Madison. Hough, J.

      F. D. Farrar, for plaintiff and appellee. Wm. B. Spencer, for defendants and appellants.
   Taliaferro, J.

The defendants having a mortgage upon the plantation belonging to the plaintiff, to secure a debt of three thousand dollars, and having a judgment by confession, issued execution and caused the property to be seized and advertised for sale. The plaintiff came in by way of third opposition, and opposed the sale, setting up his right of homestead upon the premises, and prayed that a survey be made for the purpose of laying off the quantity of land embracing the improvements which he is entitled to retain by law.

The answer is that the mortgage was executed upon the land in favor of defendants before the plaintiff had acquired a homestead right upon it; that is, that Euqua while a resident of Terrebonne and before he went to reside on the Oak Point plantation in the parish of Madison, mortgaged that plantation to the defendants. Judgment was rendered in favor of the plaintiff, and the defendants have appealed.

We think the judgment correct. The law confers the right and the law existed at the time the mortgage was granted. The defendants accepted the mortgage, subject to the contingency that might arise in the future, rendering it necessary for the mortgageor to avail himself of the benefit of the homestead law.

The plaintiff has fairly made out his case, entitling Mm to the exemption in his favor.

Judgment affirmed.


text:
    No. 5050.
    Succession of Harriet L. Vaughn, on opposition to a rule to sell property to pay debts.
    In the succession of Harriet I». Vaughn, the proceeding instituted by Mrs. Gilbert for the sale of property of the succession, by virtue of a judgment rendered in the Fifth District Court against said succession, is opposed by the heirs of the deceased on the ground that the judgment is absolutely null and void.
    The district court having acted within its jurisdiction, the judgment rendered in favor of Mrs. Gilbert, whether sufficient proof was administered or not, was not an^absolute nullity. The amount involved in that judgment is beyond the jurisdiction of the parish court, and the correctness of the demand upon which it is based, or the question of the sufficiency or insufficiency of the proof in support thereof^ can not be adjudicated by the parish court for want of jurisdiction. Besides, a parish court can not revise the judgment of a district court.
    Appeal from tile parish. Court, parish of Iberville; Orowell, J.

      Samuel Matthews, for Mrs. Gilbert et als., appellees. A. <& M. B, Talbot, B. N. Sims, for the heirs of Harriet L. Vaughn, appellants.
   Wyly, J.

Widow Marie E. Gilbert, as surviving widow of Wade H. Gilbert and as natural tutrix, instituted proceedings in the parish court against the executor of Harriet L. Vaughn, deceased, under articles 990, 991, 992, C. P., to compel the sale of property sufficient to pay her judgment for $19,923 56 against said succession.

■ The testamentary heirs of George C. Yaughn, one of the heirs of Mrs. Harriet Yaughn, opposed the proceeding instituted by Mrs. Gilbert for the sale of property, on the ground that her judgment rendered in the Fifth District Court against the succession of Mrs. Yaughn for $19,923 56 is absolutely null and void; that it was rendered upon the confession of Paul 0. Hebert, executor of said estate, without proof to establish the claim; that it was for services pretended to have been performed by the hushand of Widow Marie E. Gilbert, as overseer on the plantation of said estate; that if said services were rendered, the executor had no authority to contract for them, as they were in no manner necessary or beneficial to the succession.

This opposition was dismissed on the exception that the parish court was without authority to revise and decree the nullity of a judgment for $19,923 56, rendered by the Fifth District Court of the parish of Iberville, because the amount involved in said judgment was far beyond the jurisdiction of the parish court. The opponents have appealed.

The district court had jurisdiction, and whether sufficient proof was administered or not, the judgment it rendered in favor of Widow Gilbert was not an absolute nullity. The amount involved in that judgment is beyond the jurisdiction of the parish' court, and the correctness of the demand upon which it is based, or the question of the sufficiency or insufficiency of the proof in support thereof, can not be adjudicated by the parish court for want of jurisdiction. Besides, a parish court can not revise a judgment of the district court.

It is therefore ordered that the judgment dismissing the opposition be affirmed with costs.


text:
    No. 5076.
    E. K. Branch v. Police Jury, parish of Pointe Coupee.
    The work, for which payment is claimed in this case, was adjudicated by one of the inspectors of roads and levees, in the parish of Pointe Coupee; but it is not shown that the police jury ever authorized the work, and that they provided funds necessary to pay for the same in the ordinance creating the debt. This objection is fatal. •
    Appeal from the Seventh Judicial District Court, parish of Pointe Coupee. Selves, J.

      T. Yoist, for plaintiff and appellant. L. B» Claiborne, district attorney pro tern, for defendant and appellee.
   Wyly, J.

The plaintiff appeals from the judgment rejecting his demand of $1527 16, against the parish of Pointe Coupee for building a road and levee in said parish in 1861.

The work was adjudicated by one of the inspectors of roads and levees in said parish; but it is not shown that the police jury ever authorized the work, and that they provided funds necessary to pay for the same in the ordinance creating the debt. Revised Statutes of 1870, sec. 2786.

Without this essential requisite, the parish of Pointe Coupee cannot be made liable for a debt like that presented by the plaintiff.

Judgment affirmed.


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    No. 5109.
    State ex. rel. J. O. Howell, Tax Collector, v. Charles McVea.
    The power delegated to police juries hy the Legislature to levy taxes for parochial usest and the special power to levy a uniform per centum on every species of property,, trade or profession on which the State assesses a tax, is not unconstitutional.
    Appeal from the Court of Justice of the Peace, Fifth Ward, parish of East Feliciana. Nelson, J.

      F. JD. Brame, District Attorney, pro tem., for plaintiff and appellee. Neman <& Lyons, L>. J. Wedge, •J. G. Nilbov/rne, for defendant and appellant.
   Taliaferro, J.

The defendant appeals from a judgment rendered by a justice of the peace of the parish of East Feliciana, condemning him to pay twenty dollars, the amount of a parish license tax assessed against him for the year 3 873, as an attorney at law, and twenty percent, special damages and five per cent, interest from judicial demand. He resists the enforcement of this tax on the ground that the police jury of the parish has no legal or constitutional power to levy a license tax upon any occupation, trade or calling whatever; that the Legislature is not vested by the constitution with power to levy any specific license tax on any trade, occupation or calling, but only power to levy an income tax in proportion to the business done; that the constitution did not grant to police juries any power to levy an income or license tax on any occupation, trade or calling, and that the license tax demanded from the defendant is unwarranted by law, illegal, and for which he is not liable.

The relator took out an injunction restraining the defendant from the practice of his profession on the ground of his refusal to pay the tax required. The injunction was dissolved on bond.

The relator asks an amendment of the judgment reinstating the injunction.

We think the ground assumed by the defendant not tenable. He concedes in argument that the Legislature has by the constitution the power to levy a license tax, but contends that the constitution has not granted that power to police juries, nor conferred upon the Legislature the power to delegate it to those bodies. Neither has the constitution expressly conferred upon police juries the power to levy any other tax whatever, nor clothed the Legislature with power to delegate to police juries the power to levy any tax. The defendant holds that “ the constitution and laws have conferred ample power upon police juries to raise a revenue from the property of the people sufficient for the administration of parochial affairs, but have not conferred the power to levy the unjust tax upon occupations. The constitution is entirely silent upon this subject. No such body as a police jury is named or recognized in the constitution. But the laws enacted by the Legislature have conferred this power upon police juries and conferred it by delegation, and yet this power of delegation is not mentioned in the constitution because it was wholly unnecessary that it should be. The constitution established the legislative branch of the government and invested it with ample power to enact laws for the interests and welfare of the State, unrestricted save by the prohibitions expressed in the organic law, State or National. The form of its legislation is within its own diéc'rétiOn. For local interests it may, in its judgment, establish parochial or municipal corporations, and clothe them with the power of local legislation necessary for the purposes of their creation. This is not prohibited by the constitution. This doctrine is-elementary. It springs from the principles lying at 'the foundation of government. If, therefore, the Legislature can delegate to a police jury the power to levy a tax for parochial purposes, it may prescribe more than one form in which that tax may be laid. Accordingly WO find among the enumerated forms granted to police juries, both thé general power to levy taxes for parochial uses, and the special power io levy a uniform per centum on every species of property, trade or profession, on which the State assesses a tax. We conclude therefore that the police jury of the parish of East Feliciana is vested with power tO-levy the tax in question, and that the defendant is liable to-pay it.

The exception taken to the jurisdiction of the court before which the suit was brought and to the form in which it whs brought we think was properly overruled.

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

Judge Howell took no part in this decision.


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    No. 5080.
    John A. Eastin v. Succession of William H. Osborn.
    The plea of res judicata is not tenable, when the decree referred to in support of the plea declares that a judgment of nonsuit is rendered.

      Prima fade, every acceptance affords a presumption of funds of the drawer in the hands of the acceptor, and the evidence in this case supporting the legal presumption resulting from the acceptance of the draft, that the drawers, either had funds in the hands of the acceptors, or, at any rate, had reasonable grounds to expect that their draft would be honored, said drawers were entitled to notice of dishonor, and on failure thereof were discharged from liability.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. B. J• Bowman, Judge ad hoc, in the place of the district judge recused.

      T. 0. Manning, for plaintiff and appellee. B. P. Hunter, for defendant and appellant.
   Ludeling, C. J.

This suit is brought on a draft drawn by J. & W. H. Osborn on Rhorer & Zunts, and accepted by them, dated third of April, 1861, and payable to the order of E. F. Duncan, on the fifth of February, 1862.

■ John Osborn having taken the benefit of the bankrupt act, the succession of his brother, who had been his partner in planting, is sued tor one-half the amount of the said draft.

The defenses set up are, res judicata, prescription, and a discharge from liability on account of the failure of the holder of the draft to protest the same, or to give the drawers notice of the dishonor of the draft. The plea of res judicata is not tenable. The decree referred to, to sustain the plea, in terms declares that a judgment of nonsuit is rendered.

On its face, the draft sued upon is prescribed; but it is urged that prescription was interrupted by the suit in which the before mentioned judgment was rendered. This on the other hand is denied, because it is alleged that there was no citation to W. H. Osborn. There was an acceptance of service of citation and petition by John Osborn, and subsequently an answer was filed for all the defendants. The code declares that the course of prescription is interrupted by a citation. Whether an acceptance of service of petition and citation, without any citation in fact, would meet the requirements of the law is unnecssary to decide, as we have concluded to decide the case on the merits.

The'draft was drawn by planters on their factors, who accented the same.

Prima facie, every acceptance affords a presumption of funds df the drawer in the hands of the acceptor. 1 Pars. Bill and Notes p. 323.

In this case the testimony is somewhat conflicting as to whether J. & W. H. Osborn had funds in the hands of the drawees. Marcus J. Zunts states that “as a firm” they had not. While J. Osborn sWears that they had. But the witness Zunts, in answer to the question, “ had John & W. H. Osborn, or either of them, any reason to suppose or believe, or expect that your firm would pay this draft,” etc., answered “Yes, as acceptor of the draft and to protect the credit of the house, they had every reason to believe that we would raise the money to pay the draft to save our credit as merchants. They speculated on this common rule among commission merchants and held back their produce,” etc. He further testifies that prior to the formation of the planting partnership, both partners individually did business with J. M. Rhorer & Co., of which he, Zunts, was a member, and that each of them had an account upon the books of the firm of Rhorer & Co. for the purpose of making remittances of drafts for collection, and drawing against such collections to suit their convenience.” The drawees and acceptors appear to be the successors of J. M. Rhorer & Co., and J. & W. H. Osborn as a firm, continued their business with them. But John Osborn swears that they had funds in the hands of the drawees, and that they had reasonable grounds to expect their draft to be honored. He further swears that the reason the sugar crop was not shipped, was because Rhorer & Zunts, the drawees, advised them not to ship it, and afterwards the city fell into the hands of the federal army.

We think the evidence supports the legal presumption resulting from the acceptance of the draft by the drawees, that the drawers had funds in the hands of the acceptors; at any rate, it establishes that the •drawers had reasonable grounds to expect that their draft would be honored, and they were entitled to notice of dishonor.

It is therefore ordered and adjudged, that the judgment of the lower court be annulled, and that there be judgment rejecting the plaintiff’s demand with costs of both courts.


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    No. 5048.
    Nathan Lorie v. Bennett Hitchcock, tax collector et al.
    The ordinance of the police jury of the parish of Concordia, which provides for the levying of a special tax to be known as a contingent tax, to be appropriated to the payment of all warrants drawn on the same for the payment of attorney’s fees — any surplus to be held,by the treasurer as a fund for the payment of miscellaneous warrants drawn on said fund, as might be thereafter provided by ordinances of the police jury relative to the same, is violative of the 2745th section of the Revised Statutes.
    In so much as concerns the payment of attorney’s contingent fees, it will be time to levy and collect a tax to pay the same when the contingency which may make them due, shall have arrived. The contingency may never happen, and there would then have been no necessity for collecting the tax.
    Appeal from the Parish Court, parish of Concordia. Meng, J.

      G. Spencer Mayo, for plaintiff and appellee. 0. Mayo, Parish Attorney, and George S. Sawyer, for defendant and appellant.
   Morgan, J.

The police jury of the parish of Concordia, employed counsel in the city of New Orleans to represent the parish in eases pending against it in the Circuit Court of the United States. The terms of the counsel’s employment were, one thousand dollars as a retaining fee, “ and a contingent fee of ten per cent, on the amount recovered by the result of said suits exonerating- the parish from liability to pay said debts, to be paid on his own warrant, indorsed by the president of the board; one thousand dollars, paid as a retainer, to be deducted.” To provide for the payment of this fee, the board ordained that there should be levied and assessed a special tax of one-half per cent, on all the taxable property as borne on the tax roll of 1872, to be collected in United States currency alone, one-half on or before the first day of December, 1873, and one-half on or before the first day of December, 1874, as a special fund, to be known as the contingent fund, to be appropriated: first, to the payment of all warrants drawn On the same for the payment of attorney’s fees as above set forth. Any surplus to be held by the treasurer as a fund for the payment of miscellaneous warrants drawn' on said fund, as might be thereafter provided by ordinances of the police jury relative to the same.

The tax under this ordinance for 1873 was collected. Plaintiff in-joined the tax collector from proceeding against him in the collection of the tax for the year 1874. The injunction was made perpetual.

In so far as the ordinance had for its object the levying of a tax to be held by the treasurer as a fund for the payment of miscellaneous warrants drawn on said fund, we think it violates the 2745th section of the Revised Statutes, which declares that police juries, before they fix and decide on the amount of taxes to be assessed for the current year, shall cause an estimate to be made, exhibiting the various items of expenditure, and shall cause the same to be published in the official newspaper, the requirements of the law not having been complied with.'

As for the payment of the contingent fees, we think it will be time enough to levy and collect the tax to pay them when the contingency which will make them due will have arrived. It is possible that the cases in the Circuit Court may be lost. In this event the fees would not have to be paid, and there would have been no necessity for collecting the tax.

The judgment of the parish court is affirmed.


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    No. 5078.
    John W. Willis v. Lewis L. F. Peet.
    A judgment can not be annulled unless all the parties to it are cited.
    Appeal from the Thirteenth Judicial District Court, parish of Tensas. Hough, J.

      F. JD. Farrar & T. P. Clinton, for plaintiff and appellee. B. Lewis, curator ad hoc, for defendant and appellant.
   Morgan, J.

Plaintiff seeks to annul a judgment rendered in favor of Peet against the succession of Thomas J. Buck.

Peet is a citizen of the State of Mississippi, and is sought to be brought into court through a curator ad hoe. The succession of Buck has not been made a party. This was necessary. We can not annul a judgment unless all the parties to it are cited.

Plaintiff asks also for damages against the defendant for slander of title, but as this demand could only arise in case the judgment attacked should be declared a nullity, and as we have come to the conclusion that the suit to annul the judgment can not be entertained, because of the want of proper parties, we can not consider the mere incidental demand of damages.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be avoided, annulled and reversed, and that this suit be dismissed as in case of nonsuit, plaintiff to pay costs.


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    No. 5033.
    Frank D. Henderson v. Joseph Hoy and Sheriff.
    If the description of property to be sold is insufficient, the owner thereof can not be injured, because there will be no sale. Therefore this is no ground for an injunction by the defendant in execution.
    The plaintiff is not entitled to claim the homestead he pretends to be entitled to, out of the property seized, which is his undivided sixth interest in a tract of land containing some five hundred acres, which he held in common with other heirs. What is seized is not susoeptible of being a homestead; it is only plaintiff’s share in the land; it is an incorporeal thing j and what is incorporeal can not be the object of the operation of the1 homestead law.
    Appeal from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      Manning, for plaintiff and appellant. Hunter, for defendant and appellee.
   Wyly, J.

The plaintiff injoined the sale under execution of the property described in the petition on the grounds:

First — That the description of the property is vague and indefinite.

Second — That said property is exempt from seizure, because it is his homestead.

If the description of the property is insufficient the plaintiff can not be injured, because there will be no sale. Therefore this is no ground for an injunction by the defendant in execution. But the description -of the property on the writ and in the advertisement is sufficient. It proposes to sell the undivided interest of Frank D. Henderson, as one of the heirs of J. H. Henderson, in the succession of Francis and Rosena Henderson, deceased, and the right, title and interest of said Frank D. Henderson, in the succession of his father, J. H. Henderson. If the description be sufficient for the plaintiff to carve out his homestead, it ought to be sufficient for a sale to pay his judgment creditor.

Second — The plaintiff is not entitled to claim the homestead out of the property seized, which is his undivided sixth interest in a tract of land, containing some five hundred acres, which he holds in indivisión with the other heirs of J. H. Henderson.

The property or right seized is the plaintiff’s share in the land which belongs to the six heirs of J. H. Henderson. There is no particular part of the five hundred acres that he can rightfully claim as his own. He only has a share of one-sixth in each and every acre. He may never become the sole owner of any part of it, because it may happen that a partition by licitation may be deemed most advantageous to the owners, and the partition be made in that way.

But a sufficient answer to plaintiff’s pretensions on this point is, that the property seized is not susceptible of being a homestead; it is only his share of the land; it is an incorporeal. And an incorporeal can not be the object of the operation of the homestead act.

It is therefore ordered that the judgment herein in favor of the defendants be affirmed with costs.


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    No. 5103.
    Succession of Esther Poret — Opposition to Application for Administration.
    A party can not, without showing an interest in the matter, b,e permitted to interfere with the final settlement of an estate between the heirs, and to pray that the public administrator of the parish be appointed to administer said estate, and have an appraisement thereof made.
    If the partition entered into between the heirs, and of which the plaintiff complains, is irregular and illegal, it is not to be corrected by taking o.ut an administration.
    Appeal from the Parish Court, parish of East Baton Rouge. Davis, J.

      S. P. Greves, F. W. Bobertson, for applicant and appellee. J. W. Burgess, Fuqua & OaMhan, for opponents and appellants.
   Taliaferro, J.

In this case Pierre Lebret, alleging that he has an interest in the administration and final settlement of the succession of Esther Poret, an interdicted person, who died in the year 1861, prays that the public administrator of the parish of East Baton Bouge be appointed to administer her estate, and that an appraisement thereof be made. Esther Poret left no forced heirs. Her estate fell to her two sisters and a brother. One of the sisters died, leaving two minor children, represented by their father and natural tutor, William Hearsey. The interest which the petitioner declares he has in the proper administration of this succession is, that these minors Hearsey are his presumptive heirs. He alleges that Leopold Poret, the brother of Esther Poret, a resident of Prance, renounced her succession. This application for an administration of the estate of Esther Poret was-vigorously opposed by the heirs, Mrs. Guzman, William Hearsey, the father and tutor to the minors, and Mrs. Zulme Hearsey, claiming to be the transferree of Leopold Poret. The opposition is founded upon the grounds following:

First — That the application shows no ground for the appointment of an administrator, but on the contrary it shows that the estate has been settled, and there is no pretense there are any debts.

Second — That after the death of Esther Poret the heirs took possession of and partitioned the estate among themselves, and if there are any errors in the partition, they can not be corrected by the public administrator, who has no authority to represent the majors or minors, and revise and correct partitions and settlements made between heirs-

Third — That if Leopold Poret ever renounced the succession, his renunciation inured to the benefit of these heirs, who accepted, and gave no right to the public administrator to take charge of the estate-

Fourth — They deny that the estate is or ever was vacant.

Fifth — They peremptorily except to the right of Pierre Lebret to. interfere in any manner in the estate, and especially to his attempt herein made to inquire thus collaterally into the conduct of William. Hearsey, tutor.

Sixth — They peremptorily except that Pierre Lebret has not and does not pretend to be either an heir or a creditor, and that he is. absolutely without right or interest in the succession of Esther Poret.

The judgment of the court a qua was in favor of the plaintiff, Lebret, decreeing that the public administrator be appointed to administer the estate, and that an inventory be made. Prom this judgment the opponents have appealed.

An examination of the record in this case satisfies us that the judgment of the parish court is erroneous. The applicant, Lebret, is-shown to be without any interest whatever in the matter; the minors,, he pretends, are his presumptive heirs, are represented by their father and natural tutor, who opposes his application. He is neither an heir nor a creditor. Neither does he allege there are any debts against the-succession. The partition entered into between the heirs, and of which he complains, if irregular and illegal, is not to be corrected by taking out an administration. We think the opposition should have been sustained, and the application for administration dismissed.

It is therefore ordered that the judgment appealed from be annulled and set aside. It is further ordered that the opposition be sustained, and the suit dismissed at the costs of the applicant.


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    No. 5038.
    John W. Johnston v. Gustavus & Hypolite Labat.
    The objection that the partition among certain heirs is void, on the ground that it was not evidenced by a written act, is unsound, when they went into possession and were permitted to prove by parol the division or partition.
    If it be granted that a partition is virtually a sale of each heir to the others, of his share in indivisión for the sole ownership of the particular part assigned to him, still, like a sale, it can be proved by parol evidence, if it is received, as in this case, without objection.
    Appeal from the Ninth Judicial District' Court, parish of Kapides. Orsborne, J.

      B. A. Hunter, for plaintiff and appellant. William A. 8eay, for defendants and appellees.
   Wyly, J.

Nearly forty years ago Francis Labat and his wife, Ann Labat, died leaving a small succession consisting of four hundred acres of land and-a town lot in the village of Pineville. They left three heirs, the two defendants and their brother Arthur, all of age, and who doubtless accepted the succession unconditionally. Over thirty years ago they divided the land among themselves, and Gustavus (who bought the part belonging to Hypolite) has been in the undisturbed possession of his part thereof ever since said division. But the partition was not evidenced by a written act.

Arthur Labat died shortly after the partition, leaving a surviving widow and children, from whom the plaintiff acquired title to that part of the property or estate belonging to Arthur Labat. This was in 1871.

In 1872, the plaintiff sought, in the parish court, and was permitted to open the succession of Francis and Ann Labat which had been accepted unconditionally by the heirs of age, and which, therefore, ceased to be a succession some thirty years before the said mortuary proceedings were had. After the attempt to settle the said succession in the parish court was thwarted by the decision of this court in May 1873, the plaintiff brought this suit for partition in the district court.

The court below found, and we think correctly, that the only property remaining in indivisión was the town lot in Pineville, and ordered it to be partitioned. The demand for the partition .of the four hundred acres of land was rejected on the ground that it had long' since been divided among the heirs, and the title of the defendants was perfected, if in no other way, by the prescription of thirty years.

There is no doubt that Arthur Labat consented to the division of the land, and agreed that the defendants might hold as owners the part thereof occupied by them. Their possession as owners for thirty years would of itself give the defendants title, regardless of the title they acquired by succession and partition. But it is objected that the partition among the heirs of Francis and Ann Labat was void, because it was not evidenced by a written act. The proposition is unsound, because the defendants went into possession, and they have been permitted to prove by parol the division or partition. G-rant that a partition is virtually a sale of each heir to the others of his share in indivisión for the sole ownership of the particular part assigned to him, still, like a sale, it can be proved by parol evidence, if it is received, as in this case, without objection.

It is useless for the plaintiff to contend that Arthur Labat died before his mother, and therefore could not have accepted her succession. That question is res judicata, having been settled in the decision of this court in May 1873, in a controversy between the present parties.

It is therefore ordered that the judgment herein be affirmed with costs.


author: Howeee, J.

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    No. 5094.
    Myra F. Minor v. James L. Barker, Auctioneer, et als.
    An auctioneer is not the party to retain and pay out succession funds under order of court. He is to return bis sale and its proceeds to tbe court, and tbe representative of tbo succession is to make a distribution in court according to law and tbe rights of all creditor» settled contradictorily.
    Appeal from the Parish Court, parish of Iberville. Orowell, J.

      A. (& 33. 33. Talbot, William A. 33lmore, for plaintiff and appellee. Borrow & Bope, for defendant and appellant.
   Howeee, J.

The plaintiff having a judgment against the succession of James N. Brown, to be paid in due course of administration, instituted this as a third opposition to the payment to Isaac D. Brown, legatee, of the proceeds of the sale of the succession property in preference to her claim, and asking that the auctioneer be ordered to retain in his hands a sum sufficient out of said funds to pay her said claim. The dative testamentary executrix excepted to the form of proceeding on the ground that the proceeds of the sale must go into the hands of the said executrix, and plaintiff’s rights be settled in the account to be filed. This exception should have been maintained. The auctioneer is not the party to retain and pay out succession funds ■under order of court. He is to return his sale and its proceeds to the court, and the representative of the succession is to make a distribution in court according to law and the rights of all creditors settled contradictorily.

It is therefore ordered that the judgment appealed from be reversed, and that the exception herein be maintained, and the third opposition dismissed at cost of plaintiff therein.