text:
    No. 5675.
    N. K. Knox v. Police Jury of East Baton Rouge.
    As tlie police jury of East Baton Kongo has laid out a public road on the land of the plaintiff without allowing the jury of freeholders to assess such damages as he may sustain thereby; it has acted in violation of the law, and the plaintiff has the right to appeal to the court for an injunction restraining the police jury from illegally divesting him of his property.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge.

      Dewing, J. J. O. Fuqua, for plaintiff and appellant. George A. Griffith, for defendant and appellee. A. 8. Herron, for intervenors.
   Wyly, J.

One hundred and ninety-eight citizens of the parish of East Baton Rouge petitioned the police jury to establish a public road connecting the Jones Creek Road with the Clay Gut Road, extending across the land of the plaintiff, N. K. Knox; and on the fifth of August, 1873, the police jury passed the following ordinance :

“Be it resolved by the police jury in and for the parish of East Baton Rouge and State of Louisiana, That the right of way, as prayed for in the petition of one hundred and ninety-eight citizens, be and the same is hereby granted; provided, that the same shall not cause any expense to the parish ; and, provided, further, that said road shall not be opened to the public until after all the crops liable to damage therefrom shall have been harvested.
“Resolved, That the president appoint a committee of six freeholders to lay out said road.”

The president appointed a committee in accordance with the foregoing resolution.

The plaintiff alleges that said committee laid out said road across his land without notifying him of the time when they would make the location, and he fears they have made a report of their action to the police jury, recommending the adoption of said road; and he fears that said report will be adopted at the next meeting of the police jury. Wherefore, he appeals from the decision of said committee, and prays for an injunction, which was granted, restraining the police jury from adopting said report and establishing said road for the following reasons:

First — Because his property can not be taken for a public road without adequate compensation for the damages incurred by him thereby ; and as the police jury expressly authorized the road with the understanding that it shall result in no expense to them, they do not contemplate paying-the damages that plaintiff may incur.

Second — The law requires the committee to be appointed by the police jury; whereas here it is appointed only by the president of the police jury.

Third — Plaintiff avers the members of the committee were not sworn as required by law before proceeding to lay off the road.

Fourth — Petitioner was not notified of the time and place of the meeting of said committee for the purpose of locating said road.

Petitioner further alleges that if said road is established as prayed for it will cause him damages in the sum of one thousand dollars, as he will be compelled to keep up two lines of fence, each about half a mile long, besides the cutting of his land in two parts, thus making its use and cultivation more difficult and expensive.

The answer admits that the road was laid out by the police jury, and avers that everything required by law was done. The defendant prays for the dissolution of the injunction and two hundred dollars damages. The court dissolved the injunction, with seventy-five dollars damages, and the plaintiff appealed.

The police jury has the right to lay out public roads, and under section 3368 of the Revised Statutes it shall be lawful for any individual, through whose land the police jury shall cause a public road to be laid out, to claim a, just compensation therefor.'’'’

Section 3369 provides that “all roads to be hereafter opened and made shall be laid out by a jury of freeholders, consisting of not less than six inhabitants of the parish where said road is to be made, to be appointed for that purpose by the police j ury; it shall be the duty of said jury of freeholders to trace and lay out such road to the greatest advantage of the inhabitants and as little as may be to the prejudice of inclosures, and assess such damages as any person may sustain. They shall take the following oath. * * * All damages assessed by the said jury to an individual, through whose land the road may run, shall be deemed a parish charge, and be paid by the treasurer of said parish.” * * *

Section 3370 provides that “ whenever any individual through whose land a road laid out as aforesaid shall pass may be dissatisfied with the decision of the freeholders laying out the same, either as to the course the same is to take, or to the damages to him assessed, he may have an appeal to the district court for the parish in which said road lies, provided he prosecutes the same at the next session of said court after the laying out of the said road or the assessment of the damages and no appeal shall be set aside for the want of form in bringing the suit before the court. Injunction to stay proceedings may be issued in said case when the case requires the same.”

It is evident that the defendant, the police jury of the parish of East Baton Rouge, can not establish a public road on the land of the plaintiff without complying with the law conferring the power on said corporation to establish roads. It must appoint a jury of six freeholders, who shall take the oath provided by law, and who shall trace and lay out the road to the greatest advantage of the inhabitants and as little as may be to the prejudice of inclosures, and assess such damages as may be sustained by the person through whose land the road may run; and the person dissatisfied with the decision of the freeholders laying out the road, either as to the course the same is to take, or the damages to him assessed, may appeal to the district court of the parish in which the land lies.

As the police jury has laid out a public road on the land of the plaintiff without allowing the jury of freeholders to assess such damages as he may sustain thereby, it has acted in violation of the law, and the plaintiff has the right to appeal to the court for an injunction restraining the police jury from illegally divesting him of his property.

It is therefore ordered that the judgment herein be annulled, and it is decreed that the defendant be perpetually injoined from establishing a road on the land of the plaintiff, unless it does so according to the provisions of sections 3368 and 3369 of the Revised Statutes of 1870.

It is further ordered that the defendant pay costs of both courts.


source: Caselaw Access Project

author: Morgan, J.

license: Public Domain

text:
    No. 5412.
    State of Louisiana v. Joe Guidry.
    Before the jury was impanneled, defendant objected through his counsel to the impanneling of the jury because ho had not been served with a copy of the indictment and a list of jurors who were to pass upon his case, two entire days before his trial. The court a qua erred in overruling the objection and proceeding to trial.
    APPEAL from the Fourteenth Judicial District Court, parish of Richland. Hay, J. Criminal case.

      O. T. JDurm, district attorney, A. P. Field, attorney general, for the State, appellee. Thomas If. OlarJc, for defendant and appellant.
   Morgan, J.

“ This is an appeal from the Fourteenth Judicial District Court for the parish of Richland. The defendant was convicted and sentenced to ten years imprisonment at hard labor in the State penitentiary on a charge of shooting with intent to commit the crime of murder. When the defendant was brought to trial, and before the jury was impanneled, he objected through his counsel to the impanneling of the jury because he had not been served with a copy of the indictment and a list of jurors who were to pass upon his case, two entire days before his trial. The court overruled his objection and proceeded to the trial. The objection was embodied in a bill of exceptions which is the only point in the case. The judge’s ruling was clearly wrong, and the judgment should be reversed. See Bay’s Bevised Statutes, 1870, section 791.”

The foregoing is the brief of the Attorney General called upon to represent the State. We adopt it as the opinion of the court.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that this ease be remanded to be proceeded with according to law.


author: Howell, J. Howell, J.

text:
    No. 5582.
    Charles E. Alter v. Henry Shepherd et als.
    It is a rule of general jurisprudence, as well as a principle of public policy, to construe tbe redemption laws liberally. Tbe object of tbe State is to collect tbe revenues, and not to deprive its citizens of any rights.
    It is not to be deduced ironi tbe act No. 47 of tbe acts of 1873 that it takes away from creditors and all other parties interested, except tbe owner, tbe light of redemption which they bad formerly enjoyed. If a mortgagee is a species of owner or quasi owner, as tbe doctrine is, be is embraced in tbe exception made by tbe express words of tbe statute.
    To adopt a different conclusion it should clearly appear that tbe State, which has declared that tbe property of tbe debtor is tbe common pledge of all bis creditors, intends by the process of collecting tbe contributions of its citizens and inhabitants to defeat absolutely alL tbe rights of creditors upon property subject to those contributions. Tbe right of tbe State to its necessary revenue is paramount, but it is to be exercised with a strict regard • to those other rights which tbe State itself has granted or guaranteed, especially of parties not delinquent, except it expressly declares otherwise for exigencies which make tbe declaration necessary. Therefore tbe right of redemption still exists in tbe owner or quasi owner under the prescribed conditions.
    It being shown that tbe defendant has a residence both in New Orleans and West Virginia, spending a large portion of tbe year in that city, and attending to mercantile and other business, tbe tender to effect redemption by plaintiff was properly made at tbe residence of tbe defendant in New Orleans, as it does not appear that be bad an agent to represent Mm in such matters.
    Tbe object of consignment is to exonerate tbe debtor from further liability and risk, and tbe failure to make it does not defeat tbe legality of a tender. Tbe law says a consignment may be made, but does not make it essential in case tbe creditor refuses.
    Tbe plaintiff should not, under tbe circumstances of tbe case, be concluded by her refusal to pay when tbe purchaser offered to accept. Tbe latter bad sold to a tMrd party, who did not join in tbe proposal, and who might have refused to concur.
    APPEAL from the Fourth Judicial District Court, parish of St. Charles. Flagg, J.

      M. M. Cohen, Ciarle, Bayne & Benshatu, for plaintiff and appellant. Honor & Benedict, for Shepherd, defendant and appellee. Alfred Grima, for Mrs. Legardeur, defendant and appellee. T. W. Baker, for Mrs. Deynoodt, defendant and appellee.
   Howell, J.

The plaintiff, as holder of several notes secured by mortgage, sues to annul a tax sale of the mortgaged property and a subsequent sale thereof by the purchaser, on the grounds of alleged defects and informalities in the tax sale, collusion therein in the second sale, and his right as mortgagee to redeem the land, which he alleges he offered to do according to law within the legal delay. The defense is the general issue, a special denial of the alleged tender, and some special matters, with the prescription or lapse of the right of redemption.

Judgment was rendered in favor of the defendants, and the plaintiff has appealed.

We think the objections to the tax sale on account of alleged defects and irregularities are not sustained by the plaintiff, on whom the burden rested; and the first and most important question to be determined is, has a mortgagee the right to redeem?

It is a rule of general jurisprudence, as well as being a principle of public policy, to construe the redemption laws liberally. 1 R. 424. The object of the State is to collect its revenues, and not to 'deprive its citizens ot any rights. It is well said : In construing the redemption laws the courts hold that the word owner is a generic term, which embraces the different species of interest which may be carved out of a fee simple estate. This construction is the only one which can effectuate the intention of the Legislature and protect the interests of all parties concerned in the land sold for non-payment of taxes. In the same estate there may exist a fee simple or life interest or a household. The estate may have been mortgaged to secure a debt, and judgment creditors may have liens upon it, and the land may be in the adverse possession of a stranger to the title, and whose possession may be ripened into a right. Each is an owner, according to the extent of his interest or claim, and each has a right to protect his interest by a redemption from the tax sale. No one can complain of this; the government collects her tax, and the purchase money is refunded to him who claims under the tax sale. Take the case of the judgment creditor. The debtor, by collusion with the purchaser, might divest himself of title so as to defraud the creditor, unless the latter had the right to redeem, and thus disencumber the land arid subject it to his lien. It may, therefore, be laid down as a general rule, that any right whether in law or equity, whether perfect or inchoate, whether in possession or action, amounts to an ownership in the land, and that a charge or lien upon it constitutes a person claiming it an owner, so far as it is necessary to give him the right to redeem.” Blackwell on Tax Titles, marginal p. 423. This doctrine is drawn by the author from many different authorities.

In the civil law a mortgage is considered to be a species of alienation, though not a sale — a real right upon property — a species of pledge, the thing mortgaged being bound for the payment of the debt, or the fulfillment of the obligation; the right of mortgage follows the property, into whatever hands it may pass, and the mortgageor can do no act to impair this right. E. C. C. 3278, 3279, 3282, 3397 ; 2 An. 168; 11 An. 68; 12 An. 776; 13 An. 2; 11 La. 408.

Counsel for the purchaser do not deny this interpretation of the word “ owner,” and admit that from 1847 to 1873 the laws of this State on this subject permitted any person interested in any land to redeem it when sold for taxes; but they contend that the act of 1873 (No. 47), under which this sale was made, limits the right of redemption to the “owners thereof, or their legally authorized agents;” and by section eleven of said act all laws or parts of laws conflicting with that act are repealed; and they say, “the deduction is inevitable, that the Legislature intended, by this last act, to take away from creditors and all other parties interested, except the owner, the right of redemption which they had formerly enjoyed.” ■

Our deduction does not go so far as counsel seem to go. If a mortgagee is a species of owner, a quasi owner, he is embraced in the exception they make, that is, in the express words of the law. But as redemption laws are to receive a liberal interpretation, and as the act of 1873 does not expressly exclude mortgagees, we do not think their rights, as they existed prior to 1873, are so in conflict with those preserved in said act as to be embraced in the repealing clause. We think it should very clearly appear before we adopt the conclusion, that the State, which has declared that the property of the debtor is the common pledge of all his creditors, intends by the process of collecting the contributions of its citizens and inhabitants to defeat absolutely all the rights of creditors upon property subject to those contributions. The right of the State to its necessary revenue is paramount, but it is to be exercised with a strict regard for those other rights which the State itself has granted or guaranteed, especially the rights of parties not delinquent, unless it expressly declares otherwise, for exigencies which make the declaration necessary. The sole object of the State is to collect its revenues, and not to destroy rights, further than is absolutely necessary to effect such collection; and the right to redeem, we think, still exists in the owner or quasi owner, under the prescribed conditions.

The next question presented is, did the plaintiff assert this right in time and in a manner to secure its enforcement 9 He relies on a tender, which he contends he duly and legally made before the expiration of the six months following the sale. It was formally made through a notary public at the residence of the purchaser, who was, however, absent at the time from the State. The purchaser says this was ineffectual, because he resided at the time and, to the knowledge of the plaintiff, was then in West Virginia; because no consignment of the money was made, and because he subsequently offered to receive the money and annul the sale to him; but the plaintiff refused his offer.

The evidence shows that the purchaser has a residence both in New Orleans and West Virginia, spending a large portion of the year in New Orleans, attending to mercantile and other business. Under the circumstances we think the offer by plaintiff was made properly at the residence here, it not appearing that the purchaser had an agent to represent him in such matters. C. P. 406, 407; R. C. C. 2168, No. 6.

It is said by the purchaser’s counsel that it is unnecessary to determine whether or not the tender at the house of the purchaser was good, as it was not consigned by plaintiff, and when acceptance of it was afterward offered the plaintiff refused to pay.

The object of consignment is to exonerate the debtor from further liability and risk, and the failure to make it does not defeat the legality Of a tender. The law says a consignment may be made, but does not make it essential, in case the creditor refuses. C, P. 412; R. C. C. 2167. The plaintiff should not, under the circumstances, be concluded by his refusal to pay when the purchaser offered to accept. The latter had sold to a tKird party, who did not join in the proposal, and who might have refused to concur, as the time for redemption' had expired, and the purchaser denied the plaintiff’s right to make a tender and redeem the land, as well as the regularity and effect of the tender as made. There was room for doubt upon this matter as a legal question, and plaintiff had already submitted it to a court of justice.

We conclude that the plaintiff as mortgager has the right to redeem, and that upon paying the purchaser the price and interest as prescribed by the act of 1873, the sales will be annulled and the property subjected to the mortgage sought to be enforced.

It is therefore ordered that the judgment appealed from be reversed, and that upon plaintiff paying to defendant, H. Shepherd, the sum of $5860 47, the purchase price, with fifty per centum additional and all costs incurred by said Shepherd as purchaser, the tax sale of third of February, 1874, from M. Morgans, tax collector, to Henry Shepherd, and all subsequent sales of said property, be annulled. ■ And it-is further ordered that the plaintiff have judgment against Mrs. Solidelle Le Gardeur, wife of Joseph Deynoodt, for $33,750, with eight per cent, interest on $16,875 from fourth of January, 1873, and on like sum from fourth January, 1874, with five per cent, on the total of principal and interest for attorney’s fees, costs of copies of notarial acts and costs of protest, with vendor’s privilege and mortgage on the said property described in plaintiff’s petition. The defendants and appellees to pay costs in both courts.

On Amending the Judgment.

Howell, J.

Upon the suggestion of counsel for defendant and the consent of plaintiff, the decree herein is amended to read as follows :

It is therefore ordered that the judgment appealed from be reversed, and that upon plaintiff paying to defendant, H. Shepherd, within ten legal days from this date, thirteenth March, 1875, the sum of $5860 47, the purchase price, with fifty per centum additional, and all costs incurred by said Shepherd as purchaser, the tax sale of third of February, 1874, from* M. Morgans, tax collector, to said Henry Shepherd, and all subsequent sales of said property be annulled. And it is further ordered that the plaintiff have judgment against Mrs. Solidelle Le Gardeur, wife of Joseph Deynoodt, for $33,750, with eight percent, interest on $16,875 from fourth of January, 1873, and on like sum from fourth January, 1874, with five per cent, on the total of principal and interest for attorneys’ fees, costs of copies of notarial acts and costs of protest, with vendor’s privilege and mortgage on the said property described in plaintiff’s petition. The right of plaintiff to enforce his said privilege and mortgage to be conditioned on his making the above payment within the time above prescribed. It.is further ordered that the defendants and appellees pay costs in both courts.


author: Howell, J.

text:
    No. 5552.
    State ex rel. E. J. Gay v. Judge of the Fifth Judicial Disrict Court.
    The relator having applied for a rule on the sheriff to show cause why said sheriff should not retain in his hands a certain piece of property whioh he was going to release, and having, prayed for an injunction in the meantime, the judge a quo refused the rule and injunction; the relator has appealed and applied for a mandamus to compel the judge to grant the appeal. The remedy is not by appeal from such a refusal. There was nothing .done in the lower oourt for this court to revise.
    Application for a mandamus against E. F. Dewing, judge of the Fifth Judicial District Court, parish of Iberville.

      A. and P. JB. Talbot, Barrow & Pope, for relator. P. P. Beiving impropria persona. Mattheios & Wailes, Alfred Shaw, for J. Supple, respondent.
   Howell, J.

On a former application by this relator we refused a writ of mandamus to compel the granting of an appeal from an order of the lower judge setting aside two previous orders and restoring an injunction against a writ of seizure and sale obtained by the relator. We based our refusal on the fact that the property subject to the mortgage being in the possession of the sheriff, the order reinstating the injunction would not work an irreparable injury and an appeal would not lie. See opinion book 44, page 58.

The sheriff, under his construction of our action in connection with that of the district judge anterior thereto, notified counsel that he would release the property, whereupon the relator, Gay, applied for a rule on the sheriff to show cause why he should not retain the same, and asked that in the meantime he be enjoined from releasing the seizure. The district judge refused to issue the rule and injunction, and the relator asked for an appeal from this refusal, which was denied, and he now asks this court for a peremptory mandamus to compel said judge to grant the appeal sought, and ior a perpetual prohibition restraining the sheriff, the judge and the defendant, in the executory proceedings, from changing the possession of said property.

The foregoing statement shows that this is not a case for the writs 'sought. The judge simply refused to entertain or grant a rule and a provisional injunction as a sequence of the issuance of the said rule. The remedy is not by appeal from such refusal. There was nothing done in the lower court for us to revise.

It is therefore ordered that the writs of mandamus and prohibition herein prayed for be refused at the costs of relators.


text:
    No. 5598.
    State ex rel. E. J. Gay v. Judge of the Fifth Judicial District Court and Sheriff of the Parish of Iberville.
    In tliis instance, tlie property was in the hands of the sheriff under a writ of seizure and sale, and as this court does not find that said writ was set aside, it certainly was and is the duty of the sheriff to hold the property under the writ, uutilthe injunction arresting its further execution is disposed of, notwithstanding the irregularities that have occurred. The writ of provisional seizure was expressly set aside and the injunction reversed, or resuscitated, hut the executory process was not annulled, nor ordered to he vacated. If the injunction has any force, it is in arresting the sale under said process. As the sheriff, however, has done what the relator seeks in this proceeding, and has possession of the property under the writ of seizure and. sale, it is unnecessary to render the decree prayed for hy said relator. The rule therefore must he dismissed, hut the sheriff is ordered to hold possession of the property.
    Application for a writ of mandamus against E. P. Durand, sheriff of the parish of Iberville, and a rule to show cause why he should not he punished for contempt of court.

      Barrow <& Bope, for relator. Charles O. Bauve, for E. P. Durand, sheriff.
   Howell, J.

This is a branch of the suit No. 5552 between some of the same parties, and the relator here alleges that after he applied in the lower court for the suspensive appeal, the sheriff of Iberville withdrew the keeper from the possession of the property seized in the suit of Gay v. Supple, thereby delivering to said defendant. After which the other sheriff was succeeded in office by E. P. Durand, upon whom the writs of mandamus and prohibition, just passed on, were served, and whom the relator then requested to comply therewith by taking into his possession the said property, improperly released by his predecessor ; but the said Durand refused to do so, thus violating the writ of prohibition issued by this court, and he asks for a mandamus to compel said sheriff to obey the order of this court by taking possession of all the property seized by his predecessor in the said suit of Gay v. Supple, and that said sheriff be punished for contempt of court.

The sheriff in his answer recites all the proceedings in this matter, and states that upon receipt of the orders or writs from this court above alluded to he did take into his possession all the said property seized by his predecessor under the writ of seizure and sale in said suit of Gay v. Supple, and disclaims any contempt of court.

The difficulty in these somewhat irregular proceedings has grown out of the force and effect given by the district judge to the original injunction and the subsequent orders in relation thereto. There is, doubtless, some confusion and discrepancy as to the date of the seizure against which the injunction was first obtained. Our first opinion treated the seizure as having been made before the issuance of the injunction, and as it appears from the reasons given by the judge for refusing the appeal now sought that the injunction issued under the provisions of article 739 C. P., which, for specific causes, pérmits the arrest of the sale of property seized under the writ, we are justified in the supposition that the sheriff had made the seizure. This would have been the regular course in such cases'. But if it is true as both parties seem to admit, that the sheriff had not taken actual possession of the mortgaged property when served with the injunction, it may well be considered that the judge’s order to revive the injunction which had been set aside under article 307 C. P., was in its effect, under the circumstances, equivalent to the issuing of a new writ of injunction and that the seizure then existing was enjoined. The property was certainly in the hands of the sheriff under a writ of seizure and sale and we do not find that said writ was set aside, and it certainly was and is the duty of the sheriff to hold the property under the suit until the injunction arresting its further execution is disposed of, notwithstanding the irregularities that have occurred. The writ of provisional seizure was expressly set aside and the injunction reissued or reinstated, but the executory process was not annulled or ordered to be vacated. If the injunction has any force, it is in arresting the sale under said process.

As the sheriff', however, has done what the relator seeks in this proceeding and has possession of the property under the writ of seizure and sale, it is unnecessary to render the order prayed for herein. The object of relator’s proceeding is accomplished.

It is therefore ordered that the rule herein be dismissed} but it is ordered that the sheriff hold possession of the property.

Howell, J.

I can not concur in the addition of the last clause of the above decree, made a week after the same was entered in the minutes of the court and had by our rules become final, as I think it irregular and illegal, and materially changing the judgment without a hearing.


author: Howell, J. Taliaferro, J. Morgan, J., Taliaferro, J.

text:
    No. 3433.
    James M. Cass v. New Orleans Times.
    The defendants in this case, by publishing the contents of an affidavit which was false and malicious, in the manner and with the comments they did, in a widely circulating newspaper, gave tbe false charges against the plaintiff an extensive circulation, and imparted to them an air of authenticity which they would not otherwise have had, and which this court may well suppose to have had a strong tendency to injure the character of the plaintiff. It is no justification to the defendants that they believed the affidavit to be true. Their belief in the truth of the charges tended rather to increase the bad effect of them against the plaintiff.
    That defendants have condoned for the publication of the offensive article in which this suit originated, by publishing an exculpatory letter of tbe plaintiff’s attorney, affords no escape from tbe responsibility in damages to the injured party. The reparation of the injury, to the extent that the publication of exculpating and explanatory matter may be supposed to have made reparation, may he considered, and goes only in mitigation of damages. Thousands may have read the libelous matter that never saw its refutation.
    It does not avail to say that the defendants had no malice or ill feeling against the plaintiff. In all oases of this sort, where the charge is false, the law implies malice in the publisher, not malice in the sense of hatred, spite or revengeful feeling toward the party assailed, but as showing an evil disposition, the malus a/nvmus which induced him wantonly, recklessly or negligently, in disregard of the rights of others, to aid the slanderer in his work of defamation by giving to him the powerful influence of the public press — written or printed slander being justly considered more pernicious than that uttered by words only.
    In an action of libel proof of damages from the publication is not necessary to recover. The actual pecuniary damages in such actions can rarely he proved, and is never the sole rule of assessment.
    APPEAL from the Seventh District Court, parish of Orleans. Oolletis, J. Jury trial.

      MeGloin & Kldnpeter, for plaintiff and appellee. W. H. Hunt, G. 8. Lacey, A. W. Wallcer, James Lingan, for defendants and appellants.
   On Motion to Dismiss.

Howell, J.

The motion to dismiss this appeal, which has been •submitted to us during this month, was filed in May, 1871, two years ■since. The grounds of the motion are insufficient in themselves for a ■dismissal, the record appearing to be completed, and containing the ^petition of appeal and a bond in due form, and for a sufficient sum.

Motion refused.

On the Merits.

Taliaferro, J.

The plaintiff sues C. A. Weed, proprietor, and M. IP. Bigney, editor of a newspaper called “The New Orleans Times,” for one hundred thousand dollars as damages alleged to have beeii •caused him by a false and malicious publication that appeared in that paper on the seventh of August, 1869, under the heading of “ Charge •of Embezzlement.” The defendants are sued in soKdo. Weed having gone into bankruptcy, his assignee was made a party.

Weed avers that the publication complained of is contained in an affidavit in the records of the Second Justice’s Court of-New Orleans; that he knew neither party to the proceedings; that in the publication he made no averment of the truth of the same; that it was made without malice; that it is not libelous, and is within the legitimate province of journalism; that an article explanatory of the same was published in “The Sunday Times,” at the instance of the plaintiff, without charge; that the gratuitous publication was demanded and yielded in full satisfaction of any injury plaintiff imagined he had suffered by the previous publication, and condoned any offense, if any had been done him, and that his resort now to a claim for damages is in bad faith, seditious, and calls for condemnation from the court. Bigney avers that he is not interested as a proprietor of the New Orleans Times, and that as employe he can not be held liable in solido witli the proprietor of that paper; he denies the authorship of the article complained of, and says that he is not liable therefor; and for further answer he adopts the answer of Weed. The day following the alleged libelous publication a communication coming from the plaintiff’s counsel was published in the Times, in which the whole matter, according to their views, was properly explained to the public. There does not appear to have been any agreement betweén the parties that this publication was to be. in full reparation of whatever wrong may have been done to the plaintiff; notwithstanding the publication, the defendants’ liability still remained, the explanatory article going only in mitigation of damages. The •charge made by Hickey against the plaintiff was withdrawn. The case was several times tried by a jury. There was judgment for $5000. This amount was thought to be excessive. The third jury gave a verdict for the plaintiff for $1000, and from this verdict the defendants appealed. Plaintiff answered the appeal, and prays that his damages-may be increased to the amount claimed in his petition.

This controversy arose from an affidavit made before a justice of the peace of New Orleans, on the fifteenth of August, 1869, by one Edward Hickey. The affidavit is in these words:

“ State of Louisiana — City of New Orleans. Edward Hickey being duly sworn declares that his residence has, during several years past, been in Texas, but that he is preparing for removal to Louisiana; that his letters have been, during one year past, more or less, by his instructions to his correspondents, addressed to him in the care of J. M. Cass, who resides in the city of New Orleans, and therein does business as a. grocer; that lately, that is to say, in or about the month of J uly, Anno-Domini 1869, said J. M. Cass, and one Albert Cass, his son, who was employed or occupied with his said father in his store, at 75 Poydras street of said city, did receive a packet or envelope with inclosures, addressed to affiant, and marked and superscribed as follows, to wit “Value $100. Mr. Edward Hickey, care J. M. Cass, New Orleans, La. ” that said packet was duly sealed with sealing wax, and stamped with three seals or impressions on said wax, which impressions were in the following words, to wit: “John Holland, manufr. of gold pens, Cincinnati,” and when delivered to said J. M. Cass and Albert Cass contained one hundred dollars in current money, together with a certain blank deed, or deed unsigned, purporting that E. Hickey and-Hickey, his wife, did by such presents convey to said John Holland, his heirs and assigns, certain tracts of land situated in Missouri, for and in consideration of said sum of one hundred dollars. Affiant affirms that such funds belong to and were transmitted, or designed to-be transmitted, to affiant by said Holland, in pursuance of a certain agreement of sale between affiant and him. He further declares that-J. M. Cass, aided, assisted and abetted therein by said Albert Cass, his son aforesaid, did, contrary to the statutes and in violation of the peace and dignity of the State, tear, m utilate and break open such packet, addressed as aforesaid to affiant, and did therefrom extract, take, appropriate, embezzle, steal and carry away said one hundred dollars in lawful money, and that the same have never been received by affiant, owing to such felonious embezzling and stealing thereof by said J. M. Cass and Albert Cass.
Signed, EDWARD HICKEY.”
“ Sworn and subscribed before me, the fifth day of August, 1869.
Signed, A. SHELLEY, Second Justice Peace.”

The declarations made in this affidavit were ushered forth to the-world in the columns of the New Orleans Times, on the seventh of August, 1869, in an editorial article couched in the following language:

“ Charge of Embezzlement. — An affidavit was yesterday made before A. Shelley, Second Justice of the Peace, by Edward Hickey, in which it is related that during the last year his letters, in pursuance of his instructions to his correspondents, had been directed to the care of J. M. Cass, grocer, who does business at 75 Poydras street, and such affiant charges that said J. M. Cass, aided and abetted therein by Albert Cass, his son, “did, in or about the month of July, contrary to the statutes, and in violation of the peace and dignity of the State, tear, mutilate and break open a certain packet addressed as aforesaid to affiant, and did therefrom extract, take, appropriate, embezzle, steal and carry away the sum of one hundred dollars in lawful money therein contained, and that the same have never been received by affiant, owing to such felonious embezzling and stealing thereof by said accused.” It is further related that said envelope contained an unsigned deed of sale importing that for said sum of one hundred dollars said Edward Hickey and his wife conveyed by such presents certain lands situated in Missouri to John Holland, of Cincinnati, whose seal was upon the envelope. According to the return of Officer Hotcht, to whom the writs of arrest in this case were intrusted, it appears that J. M. Cass, one of the accused, had gone on his annual business tour West, and could not be apprehended. The other accused, Albert Cass, was brought into court and gave bonds in the sum of $500, with MeG-loin & Kleinpeter as sureties, for his appearance to answer the charge. We learn that Mr. Hickey was indebted to the house of J. M. Cass, from whom he had long purchased his supplies, for a bill of groceries amounting to $109, got in June last, and that this summary proceeding on the part of the accused was merely a process of collection. We learn, also, that in rfddition to the deed to be signed by Hickey and wife the envelope contained a letter from Mr. Holland advising of the remittance inclosed, and requesting immediate execution of the deed of conveyance likewise transmitted, so that the accused were- sufficiently advised, after having broken open the packet, that the money belonged to a stranger, who could not by any logic, however tortuous, be supposed willing or bound to pay Mr. Hickey’s bill. Thus to arrest and expropriate funds belonging to innocent third parties, in the course of their transit, should have a conspicuous heading in the category of crime. A fortiori, as the lawyers express it, if persons to whose care letters are addressed may with impunity break them open to satisfy either their avarice or curiosity, chaos has come again. We are told that the accused are exempt from penalties of a felonious breaking imposed under the statutory postal regulations of the United States, inasmuch as the packet was received by express and not through the post-office. The sureties upon the bond of Albert Cass, we are informed» are tlie legal advisers of the father. The writ for the arrest of the latter will await in the hands of the constable his return, which will probably be hastened by that circumstance, as Mr. Cassis an old merchant of this city. T. B. Howard, Esq., appears for the prosecution.”

The manner in which the writer of this article expresses himself is well calculated to impress the reader with the belief that he had confidence in the truth of the grave charges which he details as being contained in the affidavit. There is no saving clause or expression in his narrative of the contents of the affidavit even intimating that those charges may not be established. On the contrary, the tone and spirit of the article seem to display an effort to induce the belief that they were true. The inference may fairly be made that the writer himself believed the declarations of the affiant, and the obvious manifestation •of .that belief was well calculated to exert a malign influence against the fair character of the plaintiff. The affidavit itself, as simply a judicial proceeding, or an event happening in the usual course of administrative justice, is not published in its own terms without note or comment. But its contents are detailed conspicuously in an editorial article which would naturally attract to it more attention. Not only are the contents of the affidavit paraded before the public view, but they are treated of .in language condemning in very forcible terms the •conduct charged against the plaintiff; terms which do not leave the reader in doubt as to the writer’s belief in the truth of the charges. Terms and expressions are used that indicate indignant-feelings in the mind of the writer in relation to what he assumed to be the grave •offenses of the plaintiff; offenses which he deemed entitled to “a conspicuous heading in the category of crime, and which, if allowed to pass with impunity,” he thought would show that “chaos is come again.”

The following letter from Hickey to J. M. Cass, in evidence, shows that he authorized the plaintiff to open the very letter that he afterward aimed to get up a criminal prosecution against him for opening:

“ Sweet Home, Brashear City P. O., June 18, 1869.
“ J. M. Cass, New Orleans :
“Dear Friend — Please say to Albert that he has neglected to pack up the yeast powders and mustard. If any letters are for me from Cincinnati, from John Holland, I wish you to see if any of them contain a small draft, and if so, advise me without delay. Send balance ■of letters on hand by mail to me, at Brashear City.
“ Ever your friend,
Signed, “E. HICKEY.”

Albert Cass, a son, and at the time a clerk of the plaintiff, testifies that Hickey gave him verbal instructions to open any valuable packages that he might think contáined money or drafts. The plaintiff swears that when this package was received and opened, he inclosed the letter that was from Holland to Hickey; that he informed him that the money was placed to his credit and was subject to his order; that afterward, when Hickey came to the city, he told him all the circura.stanees connected with the matter, and that he made no objections to the money being credited on the account of $109 he owed the plaintiff, and promised to pay the balance.

The affidavit was false and malicious. The defendants, by publishing its contents in the manner and with the comments they did, in a widely circulating newspaper, gave the false charges against the plaintiff an extensive circulation and imparted to them an air of authenticity which they would not otherwise have had, and which we may well suppose had a strong tendency to injure the character of the plaintiff. It is no justification to the defendants that they believed the affidavit to be true. Their belief in the truth of the charges tended rather to increase the bad effect of them against the plaintiff. That they have condoned for the publication of the offensive article by publishing the letter of the plaintiff’s attorney, affords no escape from the responsibility in damages to the injured party. The reparation of the injury to the extent that the publication of exculpatory and explanatory matter may be supposed to have made reparation, may be considered, and go only in mitigation of damages. Thousands may have read the libelous matter that never saw its refutation. Neither does it avail to say that the defendants had no malice or ill feeling against the plaintiff. In all cases of this sort, where the charge is false, the law implies malice in the publisher, not malice in the sense of hatred, spite or revengeful feeling toward the party assailed, but as showing an evil disposition, the malm animus which induced him wantonly, recklessly or negligently, in disregard of the rights of others, to aid the slanderer in his work of defamation by giving to him the powerful influence of the public press — written or printed slander being justly considered more pernicious than that uttered by words only.

In an action of libel proof of damages from the publication is not necessary to recover. The actual pecuniary damages in such actions can rarely be proved, and is never the sole rule of assessment. 3 An. <39; 11 An. 206; see also case of Perrett v. The New Orleans Times, 25 An. 174, and various cases there cited. We think the decree of the lower court should remain unchanged.

Judgment affirmed.

Morgan, J.,

¿assenting. The following article appeared in the issue of the New Orleans Times of the seventh August, 1869:

Charge of Embezzlement. — An affidavit was yesterday made before A. Shelley, Second Justice of the Peace, by Edward Hickey, in which it is related that during the last year his letters, in pursuance of his instructions to his correspondents, had been directed to the care of J. M. Cass, grocer, who does business at 75 Poydras street, and such affidavit charges that said J. M. Cass, aided and abetted therein by Albert Cass, his son, ‘did, in or about the month of July, contrary to the statutes, and in violation of the peace and dignity of the State, tear, mutilate and break open a certain packet addressed as aforesaid to. affiant, and did therefrom extract, take and appropriate, embezzle, steal and carry away the sum of $100 in lawful money, therein contained, and that the same have never been received by affiant, owing to such felonious embezzling and stealing thereof by said accused.’
“ It is further related that said envelope contained an unsigned deed of sale importing that for said sum of $100 said Edward Hickey and his wife conveyed by such presents certain lands situated in Missouri to John Holland, of Cincinnati, .whose seal was upon the envelope.
“ According to the return of Officer Hotcht, to whom the writs of arrest in this case were intrusted, it appears that J. M. Cass, one of the accused, had gone on his annual business tour West, and could not be apprehended. The other accused, Albert Cass, was brought into court and gave bonds in the sum of $500, with McGrloin & Kleinpeter as sureties, for his appearance to answer the charge.
“We learn that Mr. Hickey was indebted to the house of J. M. Cass, from whom he had long purchased his supplies, for a bill of groceries amounting to $109, got in June last, and that this summary proceeding on the part of the accused, was merely a process of collection. We learn, also, that in addition to the deed to be signed by Hickey and wife, the envelope contained a letter from Mr. Holland, advising of the remittance inclosed, and requesting immediate execution of the deed of conveyance likewise transmitted, so that the accused were sufficiently advised, after having broken open the packet, that the money belonged to a stranger who could not, by any logic, however tortuous, be supposed willing or bound to pay Mr. Hickey’s bill. Thus to arrest and appropriate funds belonging to innocent third parties in the course of their transit, should have a conspicuous heading in the category of crime. A fortiori, as the lawyers express it, if persons to whose care letters are addressed may with impunity break them open, to satisfy either their avarice or their curiosity, chaos has come again.
“ We are told that the accused are exempt from penalties of a felonious breaking imposed under the statutory postal regulations of the United States, inasmuch as the packet was received by express, and not through the postoffice.
“The sureties upon the hond of Albert Cass, we are informed, are the legal advisers of his father. The writ for the arrest of the latter will await in the hands of the constable his return, which will probably be hastened by that circumstance, as Mr. Cass is an old merchant of this city. T. B. Howard, Esq., appeared for the prosecution.”

Plaintiff alleging that the whole of the above statement is false, malicious and libelous, institutes this suit against C. A. Weed, the proprietor of the newspaper, and M. P. Bigney, the editor thereof, for one hundred thousand dollars damages.

The case was several times tried by a jury. There was judgment for the plaintiff for $5000. This amount was considered excessive, and a new trial was granted. The second attempt resulted in a mistrial. The third jury gave'a verdict for the plaintiff for $1000, and from this verdict the defendants appealed. Plaintiff answers the appeal, and prays that his damages may be increased to the amount claimed in his petition. Weed has gone into bankruptcy, and his assignee has been made a party to the suit.

Weed avers that the publication complained of is contained in an affidavit in the record of the Second Justice’s Court of New Orleans; that he knew neither party to the proceedings; that in the publication he made no averment as to the truth of the same; that it was made without malice; that it is not libelous, and is within the legitimate province of journalism; that an article explanatory of the same was published in the Sunday’s Times, at the instance of plaintiff, without charge; that this gratuitous publication was demanded and yielded in full satisfaction of any injury plaintiff imagined he had suffered by the previous publication, and condoned any offense, if any had been done Mm, and that his resort now to a claim for damages is in bad faith, seditious, and calls for condemnation from the court.

Bigney avers that he is not interested as proprietor of the New Orleans Times, and that, as employe, he can not be held liable in solido with the proprietor of that paper; he denies the authorship of the article complained of, and says that he can not be held liable therefor. Further answering, he adopts the answer of Weed.

The absence of Weed from the city, and the fact that the article was published during the time he was away, and the fact that Bigney was an employe of Mr. Weed’s, the article having been inserted under Ms instructions, he having control of the columns of the paper.during Weed’s absence, although he never read it, does not release the one or the other, provided the article in question be libelous and improperly published.

The day following the alleged libelous publication, a communication coming from plaintiff’s counsel was published in the Times, in which the whole matter was, according to their views, properly explained to-the public.

There does not seem to have been any agreement between the parties that this publication was to be in full reparation of whatever wrong' may have been done to the plaintiff, and, notwithstanding the publication, defendants’ liability still remained; the communication going to the effect of mitigation of damages.

The charge made by Hickey against the plaintiff was withdrawn.

The question remains, was the publication justified by the facts? The affidavit, which was made before a competent judge, and under which a warrant issued against the plaintiff, reads as follows:

“Edward Hickey being duly sworn, declares that his residence during several years past has been in Texas, but that he is preparing for removal to Louisiana; that his letters have been during one year past, more or less, by his instructions to his correspondents, addressed to him in the care of J. M. Cass, who resides in the city of New Orleans, and therein does business as a grocer; that lately, that is to say, on or about the month of July, 1869, said J. M. Cass, and one Albert Cass, his son, who was employed or occupied with his said father in his store, at 75 Poydras street of said city, did receive a packet or envelope, with inclosures addressed to affiant, and marked and superscribed as follows, to wit: ‘Value $100. Mr. Edward Hickey, care oí J. M. Cass, New Orleans, La.;’ that said packet was duly sealed with sealing wax, and stamped with three seals or impressions on said wax, which impressions were in the following words, to wit: ‘John Holland, manufacturer of gold pens, Cincinnati,’ and were delivered to said J. M. Cass and Albert Cass, containing one hundred dollars in current money, together with a certain blank deed unsigned, purporting that E. Hickey and-Hickey, his wife, did, by such presents, convey to said John Holland, his heirs or assigns, certain tracts of land situated in Missouri for and in consideration of said sum of one hundred dollars. Affiant affirms that such funds belong to and were transmitted, or designed to be transmitted, to affiant by said Holland, in pursuance of a certain agreement of sale between affiant and him. He further declares that J. M. Cass, aided, assisted and abetted by said Albert Cass, his son aforesaid, did, contrary to the statutes, and in violation of the peace and dignity of the State, tear, mutilate and break open such packet, addressed as aforesaid to affiant, and did therefrom extract, take, appropriate, embezzle, steal and carry away said one hundred dollars, in lawful money, and that the same have never been received by affiant, owing to such felonious embezzling and stealing thereof by said J. M. Cass and Albert Cass,
Signed, “EDWARD HICKEY.”
“ Sworn to and subscribed before me, the eleventh day of August, 1869.
“ A. SHELLEY, Second Justice of the Peace.”

Now, this was a document filed in a judicial proceeding, and this document, I do not see any reason why the journal in question, as forming a part of the current of such proceedings in the courts of the day, could not publish. If it had been printed as written, it seems to me that no question of the journal’s responsibility could have arisen. But the affidavit as sworn to, word for word, was not published. The facts are mentioned, but coupled with them are commentaries which, it is contended, constitutes the libel. But this is an error. It is not what may be said of a man’s conduct in a stated case which damages him; it is the conduct of which he is charged. Now, the charges that the plaintiff had opened a letter; had taken therefrom money, had embezzled and stolen it, can not be aggravated by the commentary that “ thus to arrest and appropriate funds belonging to innocent third parties, in the course of their transit, should have a conspicuous heading in the category of crime.” And this, the affidavit out of the way, is the only matter approaching libel which I can find in the publication. It was not a libel to say that they had learned that Hickey was indebted to Cass for goods purchased some months before, and that this was merely a process of collection; nor to say that Mr. Holland’s money had been taken to pay Hickey’s debt, for such was the fact, unless Hickey had made the money his own by signing the deed which the money had been sent to pay, for the land which it conveyed, Nor that the sureties on Albert Cass’s bond were the present plaintiff’s counsel; nor that the return of J. M. Cass to the city, who is said in the article complained of, to be an old merchant of this city.

The eases of Fresca v. Madox, 11 An. 206, and Perrett v. Times, 25 An. 175, do not support the plaintiff’s claim. In the former case the plaintiff was charged in the article with being a pirate, a nursling of crime, with being flushed with booty and bold through previous immunity, as a land and water rat, and a pet of criminal justice during many a day; as a brawny, thick-set, low-browed bandit, and to all appearances

“As mild a mannered man As e’er scuttled ship or cut a throat;”

going far beyond the affidavit, assuming his guilt, and vilifying his character before the public. In the second case a magistrate was accused of the crime of highway robbery, and the relation thereof was published at the instance of entirely irresponsible parties.

In the case at bar the plaintiff was not accused, by the article complained of, of having committed any crime. It was simply related of him that a warrant had issued for his arrest upon an affidavit made before a tribunal of competent jurisdiction, and no expression of belief in his guilt was uttered.

There is, I think, a wide difference between the liberty of the press and the license ot the press. The one should be guaranteed as fully as the other should be watched. Society would be in a truly pitiable state if an editor of a newspaper were allowed to assert that a man was a pirate, or a highway robber, without any provocation, and shield himself from responsibility by asserting that he was not actuated by malice. On the other band, it would be a very bad state of affairs if the public journals of the country were deterred from reporting the fact that a warrant had issued for the arrest of a man charged by affidavit, before a competent court, with embezzlement and theft, and be made to pay a large sum of money because it happened to be said that if the charge was true he who committed it was a criminal.

While I do not think that a newspaper has any right to publish, broad cast, libels against unoffending citizens, I do not think that its editors should be forced to write with manacles upon their hands. I see nothing in the article which the editor had not the right to publish, or any comment thereon which is libelous, and I therefore dissent from the opinion of the court just pronounced.

Justice Wyly concurs in this opinion.

On Rehearing.

Taliaferro, J.

An examination of this case on rehearing does not induce us to think there should be any change in the judgment first rendered by ns. It is therefore ordered that the original decree of this court remain unaltered.


text:
    No. 5661.
    Police Jury of the Parish of Pointe Coupee v. A. L. Mahoudeau et als.
    If the description of th© instruments sued on was materially defective, the plaintiffs should have been allowed, under the circumstances of the case, an opportunity to amend before their suitwas dismissed. But although the petition is loosely constructed, the documents being made a part thereof supply a deficiency therein in relation to their nature and contents, and the only consequence oí a failure to file them at the time of filing the petition, is that the defendant may reiuse to answer until he has oyer of them.
    APPEAL from the Seventh Judicial District Court, parish of Pointe Coupóe. Hewes, J.

      Farrar & Montgomery, Charles Parlange and L. B. Claiborne, for plaintiffs and appellants. A. B. Mahoudeau and O. F. Schmidt, for defendants and appellees.
   Howell, J.

The plaintiffs have appealed from a judgment dismissing their suit for insufficiency of description of the instruments sued on. If the description were materially defective, the plaintiffs should have been allowed, under the circumstances, an opportunity to amend before their suit was dismissed. But we are inclined to think that, although the petition is loosely constructed, the documents being made a part thereof supply any deficiency therein in relation to their nature and contents, and that the only consequence of a failure to file them at the time of filing the petition is that the defendant may refuse to answer until he has oyer of them.” 2 La. 133; C. P. 175.

The acts of mortgage and the notes on which the action is based are sufficiently described to fix their identity and purport, and being a part of the petition, they, with it, contain a full statement of the cause of action, including an accurate description of the property affected by the mortgage.

It is therefore ordered that the judgment herein be reversed and the ■cause remanded to be proceeded in according to law, the appellees to pay costs of appeal.


text:
    No. 5703.
    State ex rel. O. Provosty, District Attorney v. Judge of the Seventh Judicial District Court.
    Section 1067 of tlie Revised Statutes does not repeal acticle 338 of the Code of Practice in regard to the recusation of judges.
    Application for a writ of mandamus against T. H. Hewes, judge of the Seventh Judicial District, parish of West Feliciana.

      O. Provo sly, District Attorney, relator, in propria persona. Oharles Parlange, for respondent.
   Morgan, J.

In the summer of 1872 several persons were arrested in the parish of West Feliciana, charged with the murder of one Haile. Thomas H. Hewes was employed by the accused as their attorney. In that capacity he appeared at their preliminary examination, which resulted in their being admitted to bail. Having furnished the required bond, they were released from custody.

At the March term of the district court indictments were found against them.

In the meanwhile Hewes was made judge of the district. He recused himself. The district attorney, on the part of the State, moves that he be ordered to proceed with the trial. He contends that as section 1067 of the Revised Statutes declares that “ any judge may be recused or may recuse himself in criminal cases, if said judge be connected by blood or marriage with any person charged with any offense against the laws of the State,” and inasmuch as the judge is in no way related to the accused, he can not recuse himself.

The section in question does not, in our opinion, repeal the article 338 of the Code of Practice, the second paragraph of which says that the judge being related to one of the parties to the suit within the fourth degree, and the third paragraph of which declares that his haying been employed or consulted as an advocate in the cause is a good ground for his recusation.

The section 1067 of the Revised Statutes simply changes the degree of relationship which gives rise to the right and duty of a judge recusing himself. In civil matters he may be recused when related to either party within the fourth degree. In criminal matters he may be recused or may recuse himself, if he be connected by blood or marriage with the accused in any degree.

Our brother was right to recuse himself. One can not be counsel and. judge in the same case.

The rule is dismissed.


author: Taliaferro, J.

text:
    No. 5631.
    Christian Baden v. J. B. Reeves, Executor, and Sheriff.
    The property for which exemption from seizure is claimed by plaintiff, under the homestead law, seems under the circumstances of the case to partake more of the character of rural than urban property. The humane provisions of the homestead law reserving to the unfortunate debtor a home, and soil to cultivate, must be interpreted in the same spirit in which they were framed.
    APPEAL from the Ninth Judicial District Court, parish of Rapides, Or shorn, J.

      Daigre (& Gazabat, for plaintiff and appellee. Hi. A. Hunter, for defendant and appellant.
   Taliaferro, J.

The plaintiff enjoined the sale of property seized under execution issued on a judgment obtained by the defendant against the plaintiff, on the ground that having no other property than that seized he is entitled to retain it as exempted by law from seizure under the homestead law. The defendant contested the right set up by the plaintiff, and the judgment of the lower court was in favor of the plaintiff, perpetuating the injunction. The defendant has appealed.

The property seized is a small parcel of ground containing about four arpen ts, situated on the outskirts of the town of Pineville, lying on the Red river, opposite to Alexandria, in Rapides parish.

It is shown that the plaintiff is a cooper by trade; that he resides upon this place with his family; that he has a cooper’s shop there, but does not follow the business of coopering regularly; that he has a garden, from the produce of which he has a surplus for market over and above the needs of his family; that he has peach trees and bee hives on the place, and raises upon it a little corn. This small establishment is the only property the plaintiff owns.

The evidence seems to establish that the means of sustenance of the plaintiff and his family, consisting of a wife and several children, is to a large extent derived from the products of his four arpents of land. We can hardly regard this property as belonging to the class called urban property, and we think under all the circumstances shown that it partakes more of the character of rural property. The humane provisions of the homestead law reserving to the unfortunate debtor a home, and soil to cultivate, may well apply to this case. The character of the property is different from that claimed as homestead in the ease quoted by defendant’s counsel, 25 An. p. 219. In that case a house and lot in the town of Jackson was sought to be be exempted.

Judgment affirmed.


text:
    No. 5590.
    State of Louisiana v. Chapman Epps.
    There can. no judgment be passed, -when there was no arraignment. The arraignment is the issue made, and when there is no issue, there oau be no trial. This absolute requirement of the law is not cured by the fact that the accused was brought into court and tried without objeotion.
    APPEAL from the Fourth Judicial District Court, parish of St. James. Flagg, J. Criminal case.
    iff. Maries, District Attorney, for the State, appellee. Winchester é Pugh, for defendant and appellant.
   Morgan, J.

The record in this case does not show that the defendant was arraigned.

The arraignment was necessary. It is then that the prisoner is called on to plead to the indictment; it is then that the issue between him and the State is made up. Without this there is no issue; without an issue there can be no judgment. This absolute requirement of the law is not cured by the fact that he is brought into court and is tried without objection. Without his having been arraigned, there was nothing to try.

It is therefore ordered, adjudged, and decreed that the judgment of the District Court be avoided, annulled, and reversed, and that the case be remanded to be proceeded with according to law.


author: Wyly, J.

text:
    No. 5658.
    Sarah S. Tilsen v. Catherine Haine.
    The only objection urged by plaintiff to the sale in this case is that the price was paid in Confederate money.
    There are three grounds fatal to the objection:
    ■.First — The contract by which the defendant acquired the property in 1864 was an executed judicial sale, which is protected by article 149 of the constitution of 1868.

      Second — The plaintiff, by receiving $350 of the proceeds in national currency, being the estimated value of the Confederate notes received as the price, ratified the sale.

      Third — The plaintiff can not keep the price or any part thereof, and claim the thing sold.
    APPEAL from the Fifth Judicial District Court, parish of East Feli ciana. Dewing, J.

      Gross & Piplm,, for plaintiff and appellant. Kernam, & Lyons, for defendant and appellee.
   Wyly, J.

C. P. Jarret died in 1862, leaving an estate consisting of a house and lot in the town of Clinton, and personal property, all held -in community with his surviving wife. He left one minor child. W. D. G-ayle qualified as administrator of the estate. On the eighth of February, 1864, she applied for an order of sale to effect a partition. On the same day a decree was signed, ordering the- sale, fixing the terms as to her interest, and ordering a family meeting to fix the terms for the minor’s interest. The family meeting assembled and advised the sale of the property for cash, provided it brought its appraisement; otherwise on terms of credit. The property was sold by virtue of this decree, and the defendant became the purchaser, for $3500 cash, which She paid, and the administrator received, in Confederate money. In 1866, she gave her receipt to said administrator for $350, the estimated value of the Confederate money. She has brought this suit in the alternative to recover the property or to compel compliance with the bid in currency.

The court rejected the demand, and plaintiff appeals.

The only objection urged to the sale is, the price was paid in Confederate currency.

There are three grounds fatal to plaintiff’s pretensions in this case:

First — The contract by which the defendant acquired the property in 1864 was an executed judicial sale, which is protected by article 149 of the constitution of 1868, and the jurisprudence on this point is settled. See 23 An. 610, 614 j 21 An. 514, 540.

Second, — The plaintiff, by receiving $350 of the proceeds, or that sum in national currency, being the estimated value of the Confederate notes received as the price, ratified the sale.

Third — She can not keep the price, or any part thereof, and claim the thing sold.

Judgment affirmed.


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    No. 5578.
    Perkins & Billiu v. Charles Morgan.
    The defendant objected, to the jurisdiction of the court below on the ground that he was, as alleged in the petition, a citizen of the State of New York. A citizen of that State can ■ he sued in the courts of this State. He may cause the case to he removed to the United States courts by following the statutes upon this subject. But if sued, cited and served with copy of the petition, he can not plead his domicile, for the reason that, iu 30 far as this State is concerned, he has no domicile.
    APPEAL from the Fifteenth Judicial District Court, parish of Lafourche. Beattie, J. Jury trial.

      J. S. Billiu, for plaintiffs and. appellees. Leovy <& Monroe; Goode, Winder & J. S. Goode, for defendant and appellant.
   Morgan, J.

Defendant is sued as owner of what was once the New Orleans, Opelousas and Great Western Railroad, for the value of several mules, alleged to have been run over and killed or injured, and the cart to which they were attached destroyed, by the carelessness of one of his employes.

Service of the petition was accepted aDd citation acknowledged by Charles A. Whitney & Co. It is not disputed that Whitney & Co. are defendant’s agents, or that they had authority to represent him.

Subsequently, he appeared by counsel and excepted to the jurisdiction of the court upon the ground that he was, as alleged in the petition, a citizen of the State of New York.

A citizen of the State of New York can be sued in the courts of this State. He may cause the case to be removed to the United States courts by following the statutes upon this subject. But if sued, cited and served with copy of the petition, he can not plead his domicile, for the reason that, in so far as this State is concerned, he has no domicile. The exception was, we think, properly overruled.

The defendant’s railroad runs through the plaintiffs’ plantation. Crossing the track there is a plantation road, which is also used by the neighborhood. Near the crossing there is a warehouse. A cart drawn by three mules, belonging to the plaintiffs, was being driven along the road in question. The road runs through a cane-field, and, at the time of the accident, the cane was high.

We think the evidence establishes that the mules were on the track when the train was discovered by the driver of the cart. He tried to stop them, but failed. Frightened, he jumped irom the cart. The mules turned a little to the left, and one of .them was struck by the arm of the engine, and the team was thrown into a ditch. One of the mules was killed outright, one died soon after, and the third was so injured that, to end his sufferings, his life was taken.

No hell was rung, no whistle was blown, no signal was given by the train to notify persons who might be using the road that a locomotive was approaching.

On the other hand, it is in evidence that the mules were being driven up the road at a full trot. It is contended that the driver, if he had observed properly, could have seen the smoke-stack of the locomotive and heard the noise of the train. Probably, the furious gait at which hie was driving made his cart so noisy that he could hear nothing but its rattling. Certain it is that he was warned of his danger by a young girl, who shouted to him as he drove by the house near the track, where she lived. If he heard, he did not heed her. Nothing could be ■more careless and reckless than the conduct of this driver, and the calamity which befell the plaintiffs is to be attributed to the want of prudence of their servant. Under these circumstances they can not recover.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that there bo judgment in favor of the defendant, with costs in both.courts.


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    No. 5607.
    C. K. David v. the Parish of East Baton Rouge.
    A judgment acquiesced in and partially executed can not "be appealed from.
    The plea that acquiescence in a judgment can not be given by a police jury so as to prohibit a parish from appealing from a judgment rendered against it, is not tenable. There is no reason why a parish should not be bound by the acts of its agent as an individual would be.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. Oole, J.

      A. S. Herron and G. W. Buchner, for plaintiff and appellee. G. A. Griffith, parish attorney, and B. T. Posey, for defendant and appellant.
   Morgan, J.

This suit is instituted by the holder of certain parish warrants, who asks judgment against the parish, and that a tax be assessed and collected to pay the same.

The action is instituted under the 2629th and 2630th sections of the Revised Statutes. The parish appeals from a judgment rendered in conformity with the prayer of the petition.

A motion is made to dismiss the appeal on the grounds:

First — That the judgment was rendered by consent.

Second — That it has been acquiesced in.

Passing over the question as to whether or not the judgment was a consent judgment, it was certainly acquiesced in.

The judgment was rendered on the sixth February, 1873. By the proceedings of the police jury, January 6, 1874, it appears that the. payment of judgments against the parish was provided for by a tax to be laid. It is admitted that the present judgment was embraced in the action of the police jury, and that a portion of the tax thus levied was collected and paid thereon.

The present appeal was taken in December, 1874.

It is contended, however, that acquiescence can not be given by a police jury so as to prohibit a parish from appealing from a judgment rendered against it. It seems to us, however, that this position is not tenable. We see no reason why a parish should not be bound by the .acts of its agent as an individual would be. A judgment acquiesced in and partially executed can not be appealed from.

The appeal is dismissed.


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    No. 5672.
    State ex rel. Mrs. Charles Pecot et als. v. Parish Judge of the Parish of St. Mary.
    Until the judgment appealed from he disposed of hy this court, which has granted relators a suspensive appeal, the property of the succession being in the custody of the executor and under the control of the parish court, and no moneyed judgment having been rendered against said relators, who do not seek to suspend the execution of any such judgment, it follows, under this statement of facts, that a bond for costs is all that they should be held to give.
    Application for a writ of mandamus against E. B. Mentz, parish judge of the parish of St. Mary.

      D. Gaffery and F. L. Richardson, for relators. F. B. Mente, in propria persona. Randolph, Singleton & Browne, for respondent.
   Morgan, J.

In a former proceeding we directed the defendant to grant to relators a suspensive appeal upon their giving bond according to law.

The property belonging to the succession is in the custody of the executor and under the control of the parish court. It is claimed by the relators. Judgment was rendered against them. From this judgment we have granted them a suspensive appeal. Until the judgment appealed from is disposed of by us, the property will remain where it is. No moneyed judgment has been rendered against the relators. They are not seeking to suspend the execution of any judgment given against them. The suspensive appeal which has been granted to them ■ simply keeps the property in the hands of the executor. Under this state of facts, a bond for costs is all that they should be held to give.

It is therefore ordered, adjudged and decreed that the rule herein granted be made absolute, and that the parish judge of the parish of St. Mary be ordered to grant to the relators a suspensive appeal from the judgment by them complained of upon their furnishing bond in the sum of one hundred dollars.


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    No. 5651.
    W. Bodein Keene v. George Guier and Sheriff.
    The property of a cotutor is not subjected to the legal mortgage of the minor. But, by the-term cotutor, must be understood the person who becomes so by the fulfillment of the requirements of law.
    “Where the mother, being the natural tutrix of her minor children, contracts a second marriage, she is required, previous to the marriage, to cause a family meeting to be convened for the purpose of determining whether she shall remain tutrix after the marriage. If she fails in this duty-she loses the tutorship ipso facto. In such a case, the children of a previous marriage have a legal mortgage on the property of the new husband for the acts of the tutorship thus unlawfully kept by the mother, reckoning from the day on which the new marriage took place.
    APPEAL from Thirteenth. Judicial District Court, parish of Carroll. Hough, J.
    J. W. Montgomery and F. F. Montgomery, for plaintiff and appellee. Leonard <& Kennedy, for defendant and appellant.
   Taliaferro, J.

This is an injunction suit. The defendant, in injunction, George Guier, a judgment creditor of Horace B. Tibbetts for a large amount, caused a fieri facias to issue and seized a plantation, called “ Hollybrook,” which was advertised for sale by the sheriff. The plaintiff enjoined the sale of the property, alleging herself to be-the owner of the plantation seized, and in possession thereof under good and lawful title.

The facts, as we learn them from the record, seem to be that the plaintiff and his brothers and sisters inherited a large estate in the parish of Carroll, from the succession of their father, J. Wallace Keene,, who died in the year 1853; and, subsequently, as legatees under the will of their grandfather, W. B. Keene, who died in 1857, the petitioner and his coheirs received a large and valuable amount of property, that the petitioner and his coheirs were at that period minors and their mother was their duly appointed tutrix, who took control and management of their entire property; that their mother and tutrix, in the month of December, 1857, intermarried with Horace B. Tibbetts,, without the calling of a family meeting to consider the propriety of the mother being retained in the tutorship and authorizing her to retain it-after her second marriage; that the administration of the minors’ property was carried on by Mrs. Tibbetts and husband after their marriage, and they executed a bond for the faithful discharge of their duties as tutrix and cotutor; that some eighteen months after their marriage they were duly appointed by legal'authority tutrix and co-tutor to the minors.

It appears further that in January, 1860, Horace B. Tibbetts bought the Hollybrook plantation; that on the tenth of October, 1866, George Guier recovered a judgment in his favor against the said Tibbetts for $21,000, and caused it to be recorded on December 22 following.

In 1866 the undertutor to the minors filed a petition in the proper court, calling upon the tutrix and cotutor to file an account of the tutorship ; an account was filed by them in 1868 ,• opposition to this account was filed by the petitioner, Bodein Keene, R. Subman Keene and Mary Keene, who had then attained the age of majority.

Upon an examination of the account and hearing the oppositions the court rendered judgment, fixing a balance due the heirs by the tutrix and cotutor of $150,000, and recognized a legal mortgage against the property of the tutrix, to date and take effect from the first of January, 1854, and against the property of the cotutor, to have effect from the first of January, 1858. This legal mortgage recognized by the judgment has been kept in force by duly recording it in conformity with law.

An execution was issued on the judgment so obtained, and the Hollybrook plantation, as the property of the tutrix and cotutor, containing eleven hundred acres, was seized and sold in February, 1870, and. purchased by Bodein Keene, the plaintiff in this case, at the price of $5514, and went into possession of it and so remained in undisturbed possession until April, 1873, when George Guier issued execution on his judgment, and caused the said plantation to be seized and advertised, and to restrain the sale of which the plaintiff obtained the injunction aforesaid.

On the trial of the case in the lower court, judgment was rendered perpetuating the injunction, and a judgment of nonsuit against the plaintiff on his claim for damages.

From this judgment the defendant, Guier, has appealed.

The principal question for solution is: Had the minors Keene a legal mortgage against the Hollybrook plantation, arising from their judgment against their tutrix and cotutor? It was determined by this court in the case of Emily Hatcher v. Jackson, 21 An. 737, that the property of a cotutor is not subjected to the legal mortgage of the minor. By the term cotutor, however, we understand the person who becomes so by the fulfillment of the requirements of law. Where the mother, being the natural tutrix of her minor children, contracts a second marriage, she is required, previous to the marriage, to cause a family meeting to be convened for the purpose of determining whether she shall remain tutrix after the marriage. If she fails in this duty she loses the tutorship ipso facto. In such a case the children of a previous marriage have a legal mortgage on the property of the new husband, for the acts of the tutorship thus unlawfully kept by the mother, reckoning from the day on which the new marriage took place. Civil Code» article 3316. The article preceding it, 3315, has the same force and bearing. There is a legal mortgage on the property of persons who,. without having been appointed tutors to minors or curators of interdicted or absent persons, interfere in the administration of their property, reckoning from the day in which the first act of interference was done.

Recurring to the facts of the case before us, we see that for about seventeen months succeeding the time of the marriage, embracing too, an important period of their administration of the minors’ property, Mrs. Keene, the mother, and her “ new husband,” were unauthorized to exercise the functions of tutorship, and that it was unlawfully kept by the mother at least during that period, and, consequently, that the penalty prescribed by article 3316 of the Civil Code was incurred, viz : that of subjecting the property of the husband to the legal mortgage of the minors. But, in order to fix the amount of the liability incurred during the period the tutorship was illegally held by the mother, we must remand this case to the court a qua for that purpose. The record of the case presented to this court is extremely meager, and contains no data by which such liability may be ascertained by this court. .

It is therefore ordered that the judgment of the lower court be annulled and that this case be remanded to the court of the first instance, to the end that the indebtedness and liability, if any, incurred by the mother to the minors during the time that intervened between the date of the marriage and that of the appointment of the mother and her husband to the offices of tutrix and cotutor be definitely ascertained and fixed.


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    No. 5708.
    State ex rel. John Coleman v. Judge of the Sixth District Court, Parish of Orleans.
    The indorser of a note having obtained a suspensive appeal from a judgment against bim as such, and having given as surety on the appeal bond the maker oí the note, against whom, a separate judgment was rendered in the same suit, and the parties having severed in their defense;
    Held — That in cases previously decided, the sufficiency of such a surety was maintained, the surety and principal not being coappellants, and the former having all the requisites prescribed by the law.
    Application for a writ of mandamus and prohibition against Saucier, Judge of the Sixth District Court, parish of Orleans.

      J. D. Ooleman, for relator. Respondent in propria personal.

   Howell, J.

The relator obtained a suspensive appeal from a judgment against him as indorser of a note, and gave as surety on the appeal bond the maker of the note, against whom a separate judgment had been rendered in the same suit, the parties having severed in their defense. The plaintiff in the suit moved to set aside said appeal on the ground that the surety was not good, and such as the law requires. This rule was made absolute, and the relator asks for writs of mandamus and prohibition against the district judge to secure the benefit of the suspensive appeal and prevent the issuance of an execution. The judge answers that, in his opinion, the appeal bond furnished by the appellant afforded to the appellee no additional protection against the judgment debtors, as the surety and principal in the appeal bond are both condemned to pay the same debt, although in different decrees, and the property of each is bound for said debt under the said judgments, and further, that he has grave doubts about the solvency of the surety, because there are three executions against him now in the hands of the sheriff unexecuted and unsatisfied.

•We think the doctrine in State ex rel. Wilson «.Judge of the Seventh District Court, 22 An. 262, and Greiner v. Pendergrast, 2 R. 235,. must control this case.

. In those cases the sufficiency of such a surety was maintained, the surety and principal not being coappellants, and the former having all the'requisites prescribed by the law.

It is therefore ordered that the writ of prohibition herein be perpetuated.


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    No. 5630.
    Peter Boreland v. Henry Leckie. Miss M. M. A. Calhoun, Intervenor.
    In this court the intervenor has hied an affidavit in which she charges that the person who represented her in the court helow, had no authority to do so. This is a matter which this court can not discuss originally.
    APPEAL from the Ninth Judicial District Court, parish of Grant. Osborn, J. Jury trial.

      W. O. MeGinsy and A. Lewie, for plaintiff and appellee. Ii. A. Hunter, for Henry Leckie, defendant and appellant. George W. Lane, for M. M. A. Calhoun, intervenor and appellant.
   Morgan, J.

Plaintiff confessed judgment in favor of defendant for $4700. Execution issued thereon. The judgment was rendered in January 1874. Execution issued in February following.

Plaintiff has injoined the sale of the property seized upon the ground that the judgment was obtained through fraud, misrepresentations and ill practices on the part of the defendant, through his attorney. He avers that he confessed judgment upon the condition that he was to have a stay of execution, and to be furnished with supplies sufficient to enable him to make a crop. He alleges further that no notice of seizure was served on the judgment debtor, as required by law.

M. M. A. Calhoun intervened and claimed the property seized. She also injoined the sale thereof by the sheriff.

Judgment was given in favor of the plaintiff, with $1000 damages, against the defendant. Calhoun’s intervention was dismissed.

Defendant and intervenor appeal. Defendant prays that the injunction be dissolved with damages.

There was no stay of execution stipulated in the judgment, and the only evidence of any conditions having been attached thereto, is the testimony of the plaintiff. Even if such testimony would avail in such a case, the plaintiff is flatly contradicted by the defendant’s witness. We must therefore take the judgment to be an unconditional one.

The claim of the intervenor is not substantiated by the evidence. In this court she has filed an affidavit in which she charges that the person who represented her in the court below, had no authority to do so. This is a matter which we can not discuss originally.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that there be judgment in favor of the defendants dissolving the injunction, with costs in both courts.


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    No. 5591.
    The State of Louisiana v. Matilda Brown, Martha Brown and Chapman Epps.
    In this case no sentence having been pronounced, and no fine imposed in the court a qua, the plea to the jurisdiction of this court, founded on article 74 of the constitution, must prevail.
    APPEAL from the Fourth Judicial District Court, parish of Ascension. Flagg, J. Criminal case.

      M. Maries, District Attorney, for the State, appellant. Nichols, Pugh dé Winchester, for Chapman Epps, defendant and appellee.
   Morgan, J.

Chapman Epps was indicted, with Matilda and Martha Brown, for murder. On the trial they severed. Epps was tried, and a verdict of manslaughter was rendered against him. He applied for a new trial, which was granted, and a change of venue was ordered. The proceedings were transferred to the parish of Ascension. In Ascension he pleaded autrefois acquit. .The plea was sustained.

The State appeals.

In this court the defendant urges that we are without jurisdiction to investigate the case. He says that under the seventy-fourth article of the constitution, no appeal will lie in criminal cases unless the punishment of death or imprisonment at hard labor, or a fine exceeding three hundred dollars is actually imposed. This is the language of the constitution.

In the case of the State v. Redding, 21 An. 188, it was held that this court has jurisdiction of criminal cases on questions of law only, whenever the punishment of death, or imprisonment at hard labor, or a fine exceeding three hundred dollars, is actually imposed.

In the case of the State v. Gay, 22 An. 460, the accused appealed from an order granting to the State a rehearing of a motion to discharge. He was never sentenced. We said : “ No appeal lies to this court, in a criminal case, unless a sentence of a certain magnitude has been imposed.” The appeal was dismissed.

In the case of the State v. Welsh and Fagan, 23 An. 142, the defendants were indicted for murder and found guilty of manslaughter. A motion for a new trial was made on their behalf, which was granted. Erom the order granting the new trial and continuing the case the State appealed. The appeal was dismissed upon the ground, no appeal lies to this court in criminal cases except when a sentence of a certain severity has been actually imposed.

In the case now before us no sentence was pronounced, and no fine was imposed. Under the authorities quoted the plea to our jurisdiction must prevail.

Appeal dismissed.


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    No. 3440.
    John Anderson v. J. I. Arnette and Wheless & Pratt.
    Where the court, opening at ten o’clock, the defendant’s counsel came into court at twenty minutes past ten and found his case had been submitted, the judge a quo did not err in refusing to reinstate it. The testimony shows that the case was not taken up out of its regular order, and defendant’s counsel gave'no good reason why he was not present. If he chose to take the risk of his case not being reached during his absence, he must take the result of his risk.
    During the existence of a commercial partnership, service on one of the members is good against all, but, after ii$ dissolution, any member intended to be sued, must be served with a separate citation.
    The supplemental answer of Wheless, in which he claims, in reconvention, judgment against Anderson for an amount alleged by him to be due to the firm of Wheless & Pratt, of which firm he asserts himself to be the liquidating partner, does not authorize a judgment on Anderson’s original demand against Pratt, who was not cited.
    APPEAL from the Seventh District Court, parish of Orleans. Oollens, J.

      Budd & Grover, for plaintiff and appellee. Breaux, Fenner & Ball, for defendants and appellants;
   Morgan, J.

This case had been several times continued in the lower court. After being partially tried it was continued to a certain day. Under the law as it then stood, cases in that condition were placed at the foot of the trial list of the cases regularly fixed for that day. The court opens at ten o’clock. At twenty minutes past ten defendants’ counsel came into court, and found that his case had been submitted. The testimony shows that the case was not taken up out of its regular order.

Defendants moved to reinstate the case, but the judge refused to do so, and we can not say that he erred, as the counsel who represented the defendants gave no good reason why he was not present. He knew that the court met at ten o’clock in the morning. He does not show any cause which prevented him from being present when the court was opened. If he chose to take the risk of his case not being reached during his absence, he must take the result of his risk.

It is claimed that the judgment against Pratt is null and void because no service was.made upon him. Wheless & Pratt had been commercial partners. The partnership had been dissolved. Wheless was the liquidator thereof. He alone was cited. Pratt could not be found. Wheless answered. Subsequently, he filed a supplemental answer, and, as liquidating partner of Wheless & Pratt, reconvened against Anderson, the plaintiff, alleging an indebtedness by him to the firm of Wheless & Pratt.

We are to determine whether the service on Wheless was, in law, a service on Pratt, and, if not, whether the supplemental answer of Wheless, in which he alleges that he is the liquidating partner of Wheless & Pratt, brings him into court.

We think not. During the existence of a commercial partnership, service on one of the members is good against all; but after its dissolution every member intended to be sued, must be served with a separate citation. C. P. 198; Gaiennie v. Akin, 17 La. 42; Kearney v. Fenner, 14 An. 870.

The supplemental answer of Wheless, in which he claims judgment against Anderson for an amount alleged by him to be due to the firm of Wheless & Pratt, of which firm he asserts himself to be the liquidating partner, does not authorize a judgment on Anderson’s original demand against him.

It is therefore ordered, adjudged and decreed that the judgment of the district court, as regards the defendant Pratt, be avoided, annulled and reversed, and that as against the defendant Wheless, it be affirmed, the costs as regards Pratt to be borne by the appellee; those against Wheless to be paid by him.