text:
    Nos. 12,484 and 12,520.
    Succession of George Grover.
    1. This court can not pass finally upon the issues not decided in the court below, because of dismissal of the pleading raising the same.
    2. There is legal authority for the order entered by the court below requiring one who opposes the probate of a later will, in favor of an earlier will, and sues, in the alternative, to be recognized as forced heir, to give security for costs. See. 4 of Act 136 of 1880.

      3. The failure to furnish this security for costs within the time fixed hy the order justifies the dismissal of the proceedings as incase of non-suit.
    4. Act of the Legislature authorizing the retirement of security for costs not in conflict with Art. 11 of the Constitution.
    APPEAL from the Oivil District Court for the Parish of Orleans. Monroe, J.

      Benjamin Riee Forman for Henry Grover, Plaintiff, Appellant.

      Dinkelspiel & Hart for Mrs. Louise Grover, Defendant, Appellee.
    Argued and submitted May 13, 1897.
    Opinion handed down June 14, 1897.
   The opinion of the court was delivered by

Blanchard, J.

George Grover died in the city of New Orleans on November 5, 1896.

Four days later Henry Grover, or, as he calls himself, Henry Bowman, and claiming to be the son of George Grover, filed a petition in the District Court for the probate of a nuncupative will under private signature, dated August 14, 1896.

This will bequeathed certain property to Henry Bowman, who was, as the will states, christened Henry Grover.

It bequeathed certain other property to the children of Mrs. Harriet Valentine, born Grover, residing in New York.

And, lastly, it bequeathed a third piece of real property to Mrs. Rosa Clifford.

On tne same day — a half hour later — Mrs. Louise Grover, widow by second marriage of George Grover, presented a petition to the same court for the probate of a second and later will of the said George Grover. This will was dated August 21, 1896, and was in the nuncupative form by public act.

It recited that the testator left neither ascendants nor descendants, revoked all former wills, and instituted the wife, Louise Grover, universal legatee, naming her executrix with seizin.

Immediately on the presentation of this second will Henry Bowman filed a petition opposing its registry and execution, on the ground that it was void, because at the date of its execution the testator had become so enfeebled by disease as not to be of sound mind and memory. It further opposed its execution and registry because not dictated to the notary by the testator, nor written by the notary as dictated, “ all at one time and without turning aside to other acts.” The prayer of this petition was that the will be annulled and that the other will of August 14 be decreed to be the last will and testament of the deceased.

Should this be denied, it prayed, in the alternative, that the petitioner (Henry Bowman) be recognized as the son and forced heir of George Grover, that the bequest made to Mrs. Louise Grover be reduced to the disposable portion, and that he (Henry Bowman) be put in possession of the part of the estate coming to him as forced heir.

An inventory was taken showing the estate to be of the estimated value of sixteen thousand seven hundred and eighty-three dollars and seventy-five cents.

There was a bank box on deposit in the vault of one of the city banks in the name of Mrs. Louisa Grover. Its contents were not included in the inventory. Whereupon Henry Bowman took a rule upon the widow to show cause why this box should not be opened and its contents inventoried, and secured an order restraining the bank from delivering the box to her.

On the same day the widow took a rule on Bowman to show cause why he should not furnish security in the sum of one hundred dollars to cover his costs in the proceedings. On the trial of this rule Bowman was ordered to furnish within two days bond or other security to cover costs, and, in default thereof, that his opposition be dismissed as in case of non-suit.

In obedience to this order, on December 10, he filed a bond for costs in the sum of one hundred dollars.

Five days later Mrs. Grover took a second rule on him to show cause why his proceedings should not be dismissed on the ground that he had not furnished bond for costs with good and solvent security. This rule was fixed for hearing on December 21, but was continued, and came up for trial January 11, 1897. When tried the surety on his bond for costs was found insufficient, and Bowman was given one week in which to furnish further security. He did ‘not furnish the additional security, and the minutes of the court show that the time was extended and the matter continued over from week to week until March 8, 1897, on which day it came up for trial, and Bowman having failed to give a sufficient bond for costs, all his proceedings taken in the cause were dismissed as in case of non-suit. And the minutes of the court of the next day, March 9, show that the case non-suited was ordered stricken from the docket. This judgment, rendered on March 8, was formally signed March 12, 1897.

Besides dismissing as of non-suit the petition and opposition of Henry Bowman, asking nullity of the will of August 21, and, in the alternative, asking to be recognized as the son, and forced heir of George Grover, it dismissed, also, his rule for inventory of contents of bank box deposited in name of the widow, and rescinded the order of the court restraining the bank from delivering the box to her.

We find in the record a second judgment, or order, dated March 12, 1896, directing the will of August 21 to be approved, recorded and executed, and recognizing the widow as executrix.

We find no formal judgment dismissing Bowman’s petition to probate the will of August 14, though in his petition for appeal he asserts there is, and takes an order of appeal from it. The practical effect, however, of the recognition and approval of the will of August 21, in favor of the widow, was to reject the will of the earlier date and to dismiss the proceedings for probate thereof.

After Bowman had been eliminated from the, case as above, the widow presented a petition setting forth that the will under which she claimed had been probated, and announcing her willingness to accept the bequest made in her behalf. Alleging that there were no debts, no descendants or ascendants, and that no administration was necessary, she prayed to be recognized as universal legatee under the will, and sent into possession of the property of the estate. On March 16, 1897, judgment in accordance with the prayer of this petition was rendered and signed.

From the three judgments rendered as above Henry Bowman appeals.

We are met at the threshold by the inquiry: Was theré legal sanction for the order of the judge below requiring Bowman to give bond with security for costs under penalty of the dismissal of his proceedings as in case of non-suit should he fail to do so within the time fixed?

If we find there is legal sanction for this order, and that it was properly entered, then, obviously, the judgments appealed from must be affirmed, leaving to Bowman the right, under the non-suit, on payment of the costs of his first proceeding, to recommence his attack on the will of August 21, 1896, under which the widow claims; to renew his demand, in the alternative, for recognition as the son and forced heir of George Grover, deceased, with the right to have taken a full inventory of the property and effects of the succession, or to sue to establish, have recognized and probated the will of August 14, 1896, under which he claims.

The judgment of dismissal, as in ease of non-suit, entered up against him, cuts him off finally from none of these demands.

If we find there is no legal sanction for the order requiring him to give security for costs and dismissing his proceedings because it was not given, then, obviously, all that can be done would be to reverse the judgments appealed from and remand the case for trial anew in the court below.

Certainly, this court could not, as insisted upon by appellant’s counsel, pass finally upon issues not decided in the court below because of dismissal of the pleadings raising the same.

We find there was legal authority for the order requiring Bowman to give security for costs, and for the judgment dismissing his proceedings as in the case of non-suit on his failure to do so within the time fixed. Sec. 4 of Act No. 136 of 1880.

Bowman was plaintiff in a proceeding opposing not only the registry and execution of the will under which the widow claimed, but seeking its annulment. The prayer of his petition was that the will of August 21 be annulled and that the will of August 14 be decreed the last will and testament of the deceased. In the same petition he sued for recognition as son and forced heir and entitled to his share of the estate, should the will of August 21 be sustained. How then can it be claimed he was only a defendant opposing the prayer of the widow for registry and execution of the will under which she claimed? '

This contention, made for the first time by his counsel in this court, must be considered as made only for the purpose of avoiding the express terms of Sec. 4 of Act 136 of 1880. It can not be sustained. Being plaintiff in. the proceeding filed by him, Bowman was properly ruled to give security for costs, and failing to give such security he was properly dismissed.

Besides Ifc is too late now for him to object to the order requiring security for costs. He does not appear to have objected in the court below. There is no protest, no bill of exceptions. On the contrary, he acquiesced in the order by executing, or attempting to ■execute it. He filed a bond for costs in obedience to the order, which was rejected for insufficiency of the surety. Time was given him to furnish another surety, and extended from time to time for weeks, and still he defaulted.

One who acquiesces m, can not appeal from, an order or judgment.

Nor will it do for him to urge in this court his inability to give this bond for costs in the court below in the sum of one hundred dollars, when there appear in the two transcripts filed in this case two appeal bonds, one in the sum of two hundred and fifty dollars, the other in the sum of fifty dollars — each with good and solvent sureties.

If he could give sufficient security for three hundred dollars to cover .costs of appeal, it would seem he might have found solvent sureties for a bond for one hundred dollars to cover costs in the court below. The courts are not to be trifled with in this way.

The fact that, pending the time allowed Bowman to furnish a good bond for costs and before the rule was made absolute dismissing him because it was not so furnished, the case was proceeded with, evidence adduced and a time fixed for the argument, does not operate as a waiver of the order requiring him to give the bond and security. There has been no submission of the ease; the trial was not yet ended; the argument was yet to be had, and it was at the instance of counsel for Bowman that it was continued to a later day for'argument. Before that day was reached, the rule to dismiss for want of bond for costs came on for trial as per previous assignment, was tried and the order of dismissal entered.

Thereafter, when the day fixed for the argument came around, there could be no argument, for the opposition was no longer before the court.

Counsel for Bowman urges that Sec. 4 of Act 138 of 1880, authorizing the requirement of bond and security for cost, is in conflict with Art. 11 of the Constitution, which declares that the courts shall he open to every person for redress of the injury done him in his rights, lands, goods, person or reputation, etc. There is no force in this contention. The requirement of security for costs is not an unreasonable one and is prohibited by neither the letter or spirit of that article.

The judgments appealed from must be affirmed and that decree is hereby entered.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 12,535.
    State ex rel. Noel H. Boyet vs. J. T. Watkins, Judge of Second District Court, Webster Parish, Louisiana.
    This court will not, on an application lor certiorari, review the decision of a question of fact, on which the jurisdiction depends, at least, when the error alleged is not made clearly to appear.
    N APPLICATION for Writs of Certiorari and Prohibition.

      L. W. Stewart for Relator.
    Respondent in propria persona.

      L. K. Watkins for J. D. McIntyre, Third Opponent in proceedings before court of first instance.
    Submitted on briefs May 22, 1897.
    Opinion handed down June 14, 1897.
   On Application por a Writ of Certiorari.

The opinion of the court was delivered by

Miller, J.

Thei’elator made a seizure in the justice’s court under his judgment, and a third opposition was filed, asserting a superior privilege of the opponent on the proceeds of sale. The judgment of the justice was in favor of the opponent on his claim against the defendant, but rejecting the asserted privilege on the proceeds, and the opponent appealed to the District Court. The plaintiff in the original suit, the relator here, moved to dismiss the appeal, or rather plead to the jurisdiction of the District Court, on the ground that the proceeds of the constable’s sale, costs deducted, were Dot sufficient in amount to give the District Court jurisdiction. The plea to the jurisdiction was overruled, judgment rendered in favor of appellant, and relator now seeks by this writ to prohibit the District Judge from proceeding any further in the suit brought from the justice court by appeal.

The answer of the District Judge is that the plea to the jurisdiction was not filed until the testimony on the trial was closed. Testimony as to the amount of the costs incurred in the lower court was offered, the relator insisting that the proof reduced the amount that in any event could accrue to the opponent below the appellate juris - diction of the District Court. Constitution, Art. 111. The judge, in his return, states that the proof was not sufficient to exclude the jurisdiction of the appeal, that the opponents claim exceeded ten dollars, and the proceeds were in excess of that amount.

We are asked in effect to pass on a question of fact to reach the conclusion the District Court had no jurisdiction. That question was passed on by the lower court, and its conclusion was it had the jurisdiction to render the judgment of which the relator complains. If this court has the power on this application to pass on the disputed question of fact on which the jurisdiction of the lower court depends, at least, the defect of jurisdiction must be clear. We do not find that basis for the writ in this case. The scope of the certiorari is to correct proceedings in an unappealable case, absolutely void as the Code expresses it. C. P., Arts. 857, 864. We find no such error on the face of the record. The error alleged is the erroneous determination by the lower court of a question of fact in maintaining its jurisdiction. We do not think we can review that decision on the writ of certiorari, especially as the ground to hold the lower court had no jurisdiction is by no means clear. State ex rel. Gooch vs. Robinson, 38 An. 968; State ex rel. Wintz vs. Judge, 32 An. 1222; State ex rel. Broussard vs. Judge, 39 An. 776.

It is therefore ordered that our preliminary order on this application be set aside, and it is now ordered and adjudged that this application be denied.


author: Breaux, J.

text:
    No. 12,548.
    State of Louisiana vs. Joseph Vogel.
    1. Mere impressions and hastily formed opinion -which -will, the juror swears, yield to the testimony to he offered are no objection to a juror.
    2. The jurors are the judges of the weight of the testimony. It was manifest that evidence relating to the corpus delicti was admitted. It was found by the jury sufficient to convict.

      Ordinarily that question of fact, when decided by the jury, is not subject to review.
    Nevertheless the court examined the testimony of record and found that the statement of the trial judge regarding the corpus delicti as proven was sustained by the facts. ‘
    APPEAL from the Criminal District Court for the Parish of Orleans. Moise, J.

      M. J. Cunningham, Attorney General, and B. H. Mart, District Attorney, John J. Finney, Assistant District Attorney, for Plaintiff, Appellee.
    P. C. Lassalle for Defendant, Appellant.
    Submitted on briefs June 5, 1897.
    Opinion handed down June 14, 1897.
   The opinion of the court was delivered by

Breaux, J.

The defendant was indicted for murder. He was found guilty of manslaughter and sentenced to imprisonment at hard labor for the term of twenty years.

His grounds of appeal are before us as set forth in two bills of exceptions. The first bill was taken to the ruling of the court refusing to exclude from the jury a juror who was incompetent, it was alleged.

The second bill was taken to the ruling of the court refusing to sustain defendant’s ground based upon the alleged lack of proof to establish the corpus delicti.

Recurring to the grounds stated in the first bill of exceptions, it appears that the accused had exhausted his peremptory challenges when the juror was presented by the State.

It appears of record that the juror had heard some of the particulars of the death of a man who had been stabbed, and who died a few hours after the wound had been inflicted. The juror was informed by the prosecuting officer that the man was shot, and that he lived some two or three days after the shooting. The witness was in some doubt, it appears, whether he had heard of the ease or not. He had read in the newspapers the evidence as published of the witnesses as taken down before the coroner’s inquest about two .years prior to the trial. He was under the impression that it was the same case as that before the court when he was examined as a juror; if it was, he had formed an opinion at the time. The juror said that this opinion would have no weight, and that he would try 1;he case upon the evidence and the law as given, disregarding any impression or opinion and give the accused a fair trial.

The juror declared that he was free from all bias or prejudice. The ■opinion formed after reading newspaper accounts and reports of preliminary evidence are not sufficient ground for excluding a juror who swears that he can disregard the opinion and that he will be governed by the evidence upon the trial and the law as applying. State vs. Coleman, 27 An. 691; State vs. De Rance, 34 An. 186; State vs. Ford, 37 An. 443.

This is a stronger case for the State. The juror was not absolutely ■certain that the case was the same as the case, the report of which he had read; he was not fixed in his opinion, while in the cited cases the jurors had formed a deliberate opinion, which they, however, admitted would not influence them on the trial.

The juror in the ease before us makes a similar avowal in terms equally as emphatic.

The grounds we have just reviewed not being cause to annul the verdict, we are brought to a consideration of the second bill of exception taken to the court’s refusal to grant defendant’s motion for a new trial, made on the ground that the State had not established the corpus delicti.

Aliter, the court certifies that the corpus delicti was established.

The trial judge in his charge stated the essentials in a trial for murder, the first being: the death must be distinctly proved and the cause of death shown.

After having heard the witnesses, and after the charge, to which no objection was made, had been given, the jury found a verdict which could not have been correctly found, without proof of death and of the cause of death. The verdict returned; the charge of the court and the statement of the judge made part of the bill of exception render it impossible to conclude the State had failed to estab-lis the corpus delicti.

The evidence showed that a homicide had been committed and that the defendant had fired upon the deceased. He was, after he had been wounded, taken to the Charity Hospital, where he died a few days after he had been shot. The trial judge said to the jury in his charge that the corpus delicti must be established to find a verdict of guilty, and in his statement in the bill of exception he certifies that, in his opinion, the corpus delicti was established beyond a reasonable doubt.

In support of this statement he refers to the proximity of the prisoner to the deceased at the time the fatal shot was fired, the wounding in a vital part and the acts of the deceased at the time, the viewing of the wound in the stomach by witnesses, his immediate conveyance to the Charity Hospital after the wounding and his death there within the third day after the shooting. He states further that no suggestion was made, nor the slightest “ suspicion created that he had died from any other cause, and that had this been a fact it could have, been easily established by physicians at the Charity Hospital that no attempt whatever was made to controvert the natural inference from these facts, but on the contrary, the defence was ‘ self-defence,’ which admits the killing.”

In reading the testimony we found that to the question propounded: “ Did you see anything of the trouble which resulted in the killing of a man named Anthony Atzenhoffer on the 8th of November, 1895, at the car station on Tulane avenue?”

Witness answered affirmatively and gave a succinct account of the shooting.

In our judgment the narrative of the trial judge in the bill of exception is sustained by the evidence.

If the question of fact be considered as one blended with law, and as such subject to review, the ground is not, in our view, sufficient to grant a new trial.

We have considered the points urged in the light most favorabfe to the accused and have found no ground upon which he can be relieved.

It is therefore ordered and adjudged that the judgment appealed from is affirmed.


author: Watkins, J. Breaux, J.

text:
    No. 12,478.
    State ex rel. P. St. Amand vs. Bank of Commerce.
    On proof of any act of insolvency on the part of a banking company organized under the banking laws of this State, or of non-compliance with any of the conditions of those laws, it shall forfeit its corporate rights; and the court, at the instance of any creditor and on due proof of the alleged facts, shall decree a forfeiture, and appoint commissioners to effect the liquidation of the affairs of the corporation.
    In the absence of any amount of compensation haying been fixed by the statute governing the subject, it is the duty of the judge of the eourt before whom the proceedings are taken, to’fix same according to his best judgment and discretion, and his finding in the premises will not be reversed unless it clearly appears that his award is excessive or erroneous.

      On Application for Rehearing. — The bank had not been notified that the check had been drawn, üniess the check is accepted or the bank is notified, no action lies against the drawee. 10 wall. 162; 94 U. S. 343; 166 U. S. 650; 43 Ah. 57.
    PPEAL from the Civil District Court for the Parish of Orleans. King, J.

      'Glegg & Quintero and Charles J. Théard for Liquidators, their Attorneys, and W. C. Dufour, Notary, Appellants; Albert Voorhies for J. M. Beauxis, Opponent, Appellant, and Jos. T. Bordes, Opponent, Appellee; Chas. F. Claiborne for New Orleans Butchers’ Hide and Tallow Company, Limited, Appellant; John St. Paul for B. Rouen, Appellee; E. A. O'Sullivan for Peter Munholland, Opponent, Appellant; Buck, Walshe & Buck for George J. Pinkard et als., Opponents, Appellees; A. H. Wilson, Frank MoGloin and James J. MeLoughlin for Women’s Christian Temperance Union Lunch House Company et als., Opponents, Appellees.
    Argued and submitted April 28, 1897.
    Opinion handed down May 10, 1897.
    Decree amended and rehearing refused May 31, 1897.
   The opinion of the court was delivered by

Watkins, J.

The present litigation grows out of the liquidation of the Bank of Commerce and comes to this court by an appeal from a judgment of the District Court sustaining an opposition of depositors to a provisional account of the liquidating commissioners, reducing certain charges and fees in favor of the commissioners, notary and attorneys.

The account shows the following receipts which the liquidating commissioners propose for distribution amongst the various depositors, pra rata, viz.:

Received of officers of the bank from paying teller. $8,529 48
Received of officers of the bank amounts deposited in Louisiana National Bank. 6,126 6*2
Collections on demand loans. 65,268 70
On loans and discounts. 61.222 29
From sundry banks and bankers . 2,851 76
On individual deposits. 42,117 89
Interest . 1,056 44
From Fourth National Bank of St. Louis. 888 80
From Chase National Bank, New York.1. 294 25
From salé of a State bond . 100 50
From Firemen’s National Bank, Boston. 64 04
From cashier Chase National Bank. 1,236 04
Total.$189,746 81

And from that sum the accountants propose to make the following disbursements; and to these allowances various depositors of - the bank make oppositions.

For the purpose of being accurate, we have made the following extract from the brief of appellant’s counsel, viz.:

“ Among the liabilities appeared the following charges:
“ E. H. Reynes and R. G-. Bush, liquidators, their commission to date, five per cent, on $189,746.31 . $9,487 31
“ Clegg and Quintero and Chas J. Theard, attorneys of the liquidators, to date. 12,500 00
“W. C. Dufour, notary, for inventory and all services. 750 00

“ Various ordinary creditors opposed the first two items. Some opposed also the notary’s fees, bub subsequently withdrew their opposition.

“The lower court rendered judgment, allowing the liquidators only two thousand dollars (one thousand dollars each); the attorneys five thousand dollars, and the notary one hundred and twenty-one dollars and sixty-five cents.”

The opponents’ counsel have made no answer to the appeal, and have requested no amendment to the judgment, consequently the only question to be determined is whether the allowances made should be increased or maintained in statu quo.

The question principally discussed at the bar and in the briefs of counsel is whether the provisions of Revised Statutes, Sec. 294, or those of Sec. 284, should control our decision — those of the former limiting the salary of bank liquidators to a sum not in excess of two thousand five hundred dollars, whilst those of the latter make no special provision on the subject of salary or fees, thus making the amount to be awarded in each case to depend upon the facts of the case, and to rest upon the judge’s discretion.

Section 294, R. S., seems to have direct reference to proceedings taken for the liquidation of banks which fail to redeem their circulating notes issued by authority of the State, and countersigned by the auditor. The proceedings contemplated are those which are to be set on foot by the Attorney General; and if liquidation follow, it is made the duty of the court to appoint not less than three liquidators.

Counsel for the liquidating commissioners have reproduced in their brief the 284th section of the Statutes and the corresponding article of the Civil Code, under the authority of which the proceedings were undertaken for the liquidation of the bank, and for the purpose of accuracy we have quoted them as followss:

“ Section 284 of the Revised Statutes is as follows:
“ ‘ Every banking company established under this act shall, on proof of an act of insolvency or non-compliance with any of the conditions of this act, forfeit its corporate rights, and it shall be the duty of the District Court of the district in which such corporation is situated, at the instance of any creditor, or of the Auditor of Public Accounts, and on proof of the alleged facts, to decree such forfeiture, and to appoint thereupon commissioners to effect the liquidation of the affairs of the corporation; to convert into cash, as speedily as may be, under the direction of the court, all the assets of the corporation, including the sum that may have remained unpaid by stockholders upon their respective shares of the capital stock, and, after providing for any unpaid balance which may be due to the bill holders, to distribute the same as now provided by law in case of insolvencies of individuals.’ ”

Then follows Art. 447 of the Civil Code, as a law in pari materia, viz.:

“A corporation legally established may be dissolved. By the forfeiture of its charter, when the corporation abuses its privileges, or refuses to accomplish the conditions on which such privileges were granted, in which case the corporation becomes extinct by the effect of the violation of the conditions of the act of incorporation.”

Our learned brother seems to have accepted the counsel’s theory, and placed a like interpretation upon the foregoing, provisions of the statutes, and in this opinion we concur.

With regard to the amounts which the commissioners have placed upon their account, counsel point to the fact that the liquidation was commenced at a time of great public excitement, which had been superinduced by several bank suspensions in the city of New Orleans; and that an investigation of the books and affairs of the Bank of Commerce revealed its condition to be not less deplorable than that of the public mind — everything being in confusion and disorder only a little short of chaos. Hence, the contention is that the task set before the commissioners and their attorneys was an uncommonly difficult one.

But, while conceding at once the correctness of this statement, we have the.response from the other side, that the account tendered is only a provisional one, embracing only three months’ services; and that in the hopelessly insolvent condition of the bank, the loss of the depositors should, as far as practicable, be minimized.

Our learned brother of the District Court prepared an elaborate statement of his reasons for judgment, and reduced same to writing and filed it with the record. An examination of them discloses that he gave the subject serious and careful study, and brought to bear upon its analysis great labor and research.

On the part of the opponents perfect satisfaction therewith is expressed, and it is reproduced as a part of their brief; andón the part of the appellants no error of law or fact is pointed out — their counsel seeming to content themselves with the suggestion that the allowances made in the judgment are too small.

A careful examination and study of the record and an attentive consideration of the arguments of counsel have brought our minds to the same conclusion at which the judge a quo arrived.

In our opinion, he made a full and very liberal allowance to commissioners and lawyers for the work performed, under the circumstances stated, and more than we should allow if the allowance was open to review. Consequently we reproduce in its entirety the opinion of the District Judge and make it a part of the opinion of this court, viz.:

REASONS FOR JUDGMENT.
“The liquidating commissioners, Mr. Emile H. Reynes and Mr. Reuben G. Bush, have filed their first account of their administration of the insolvent Bank of Commerce. Every item of expense upon the account is opposed by various depositors who are recognized creditors.
“They particularly oppose the commissions of the liquidators, nine thousand eight hundred and forty-seven dollars and thirty-one cents; the fees of their attorneys, the firm of Messrs. Clegg & Quintero and Mr. Charles J. Théard, to date, twelve thousand five hundred dollars; the fee of Mr. John St. Paul, attorney for the absent creditors, to date, one thousand dollars; the fee of Mr. W. 0. Dufour, notary public, for making an inventory and all services, seven hundred and fifty dollars, and the fees of Mr. Dreifus and Mr. Molloy, the appraisers, five hundred dollars.
“The depositors oppose on the ground that the above charges are excessive and illegal, and exhibit a most expensive administration of the affairs of the insolvent bank, which the court should not allow.

To decide the issues presented it is necessary to state the case.

“ The Bank of Commerce was organized under the laws of the State with a capital of one hundred thousand dollars. It was intended to be and became a bank for small depositors, and it occupied a position .in the business community, between the savings banks and the large banking corporations. It transacted a banking business for several years, with a force consisting of a president, cashier, paying teller, receiving teller, two book-keepers, a runner, three clerks and a porter, at a total annual expense of twelve thousand two hundred and twenty dollars.

“ The bank suspended payment on the 11th day of September, 1896, owing to its two thousand one hundred and forty-three depositors four hundred and seventy thousand four hundred and seven dollars and four cents.

“On the day of its suspension Mr. P. St. Amand, a depositor, individually filed a petition in the Civil District Court, alleging that his check upon his deposit account in the bank had been protested for non-payment, and praying that its charter be forfeited; that its affairs be liquidated by three commissioners appointed by the court; that an inventory and appraisement of the property be made, and that an attorney to represent the absent creditors and stockholders be appointed.

“ At the same time the bank, through its attorneys, Messrs. Carroll & Carroll and Clegg & Quintero, filed an answer, in which it admitted it had suspended payment, and submitted the case on the evidence presented by the plaintiff. The court at once rendered judgment forfeiting the charter and appointing two commissioners.

“ The commissioners gave bond in the sum of ten thousand dollars each, received their letters as liquidating commissioners, andón the 14th day of September, 1896, commenced to discharge their duties.

“ On September 14 the commissioners appeared in court through their attorneys, the firm of Olegg & Quintero, and Mr., Ohaiies J. Théard, and petitioned the court for the appointment of a notary and appraisers, and the appointments were made.

On the 21st day of December they petitioned the court for authority to employ an expert accountant. The court authorized them' to do so, limiting the.expenses to $100 per month. The commissioners, on their petition, were further authorized to employ three clerks and a boy, at fixed salaries, to assist them with the books and in the clerical work of the liquidation. The commissioner employed, Henry Daspit, an expert accountant, Mr. Bourgeois, Mr. Moss, Mr. Reynes, Jr., clerks, a boy to run errands and a porter.

“ When the commissioners took charge of the bank they found its books and papers in great confusion. It was impossible to ascertain from the books its debtors and creditors. Some of the books had not been balanced for four or five years. Mr. Daspit, assisted by two clerks, balanced the books of the bank, checked up and balanced each account and the bank books of the depositors, and made, under the directions and with the assistance of Mr. Reynes, a book called the portfolio or discount credit book showing the notes and other obligations held by the bank.

“ This work was completed within six weeks from the date of Mr. Daspit’s appointment, and the commissioners ascertained the exact condition of the bank, and experienced thereafter no difficulty when referring to the books for information. Besides doing all the clerical work from the time of their appointment, the expert and the clerks prepared a complete list of the depositors, with the amount due, divided among them the declared dividend of fifteen per cent, and drew the checks, which the commissioners signed, for the amount due to each depositor. This work was completed on the 30th day of December, 1896. Before or about that time all the employees except Daspit, a boy to run errands and a porter, were discharged. To these employees, for all the services they rendered, from the date of their employment to the filing of the account herein, the commissioners have paid seven hundred and fifteen dollars.

“ When the commissioners took charge of the bank they received from its officers fourteen thousand sis hundred and fifty-six dollars. The assets consisted principally of overdrafts by depositors, demand loans, notes and bills discounted, and cash on deposit in banks in other States.

“ One of the commissioners, Mr. Reynes, devoted his time exclusively to the collection of these assets and to the general liquidation. He was at the bank all the time during business hours, and often at night. The course adopted to make collections was for him or Mr. Daspit to write letters to the debtors of the bank demanding payment. When the debtors called Mr. Reynes would receive payment in full, or on account, and grant time. If the debtors did not call, sometimes he would go to them personally, and when they did not, after these demands, pay, he referred the claim to his attorneys.

“The other commissioner, Mr. Bush, consulted and advised with Mr. Reynes as to the liquidation of the bank daily. ¡ Also with the attorneys in reference to a claim against the president of the bank, and against the Esperanza and Ohoupique plantations. Nothing has yet been realized directly from the claim, or the plantations, and neither figures upon this account. The money collected by the commissioners was at first deposited in the Louisiana National Bank.

“ It appears that a few days before the Bank of Commerce failed it borrowed from the New Orleans Clearing House sixty thousand dollars, and for its payment the bank pledged notes as collateral security received and held by it, given by customers who had borrowed money or were otherwise indebted. The pledges thus given exceeded the amount borrowed.

“ After the failure, the Clearing House constituted the Louisiana National Bank its agent for the collection of this debt, and for that purpose placed the collaterals in its possession. The Louisiana National Bank collected on account of this debt twenty-six. thousand dollars, and the commissioners, having collected a sufficient amount, paid to the bank the balance due, thirty-four thousand dollars, extinguished the debt and received into their possession the balance of the collaterals.

“ As the commissioners never held the notes and other obligations given by the Bank of Commerce to the Clearing House as security for its loan, and as they were held by the Louisiana National Bank, and when they fell due were paid by the debtor at and to the Louisiana National Bank, the amount thus received, twenty-six thousand dollars, is not money collected by the commissioners, although it was so paid with their knowledge and consent. Nor did the Louisiana National Bank, from the fact that the commissioners had a deposit account with them and the payments on the loan made were with their knowledge and consent, become their agents, and as their agents collected said amount.

“The commissioners also paid debts due to the New Orleans branch of the Comptoir National d’Escompte de Paris for eleven thousand nine hundred and ninety dollars and seventy cents, and Bobet Bros, for fifteen thousand dollars, both secured by collaterals in excess of said amounts, and obtained possession of the collaterals so pledged.

“Excluding the amount of money found in the bank when they took charge, fourteen thousand sixhundred and fifty-six dollars, and the twenty-six thousand dollars collected by the Louisiana National Bank, the commissioners have collected the sum of one hundred and forty-nine thousand andninety dollars and thirty-one cents. The commissioners have correctly placed upon the credit side of their account the money collected by the Louisiana National Bank and the money received by them from the officers of the Bank of Commerce, which, together with their collections, amount to one hundred and eighty-nine thousand seven hundred and forty-six dollars and thirty-one cents. They have also placed on the debit side of the account the debt due the Clearing House Association, sixty thousand dollars, which, together with the other debts and charges on the debit side, including the expenses of their administration, amount to one hundred and fourteen thousand seven hundred and twenty-nine dollars and ninety-one cents. The difference between these amounts is the balance on the account for the distribution among the depositors, and is seventy-five thousand and eighteen dollars and forty cents.

“ The attorneys advised the commissioners from the time of their appointment as to the manner of liquidating the bank on all legal questions arising in the liquidation, attended to all legal business referred to them, and to all the litigation in court. They were daily at the bank, often at night, consulting with the liquidators and . directing the liquidation. They obtained all necessary information of its condition, and did all that was necessary out of court to secure the claims of the bank. To that end they obtained from two debtors, Mr. W. P. Nicholls and Mr. Frank L. Gordon, confessions of judgments and promptly recorded the judgments thus obtained in the parishes where their real estate was situated. They made demands, in writing or in person, upon debtors of the bank, on claims referred to them by the commissioners. They endeavored by judicious advice to assist the commissioners in collecting the assets as fast as possible, without resorting to'the courts.

“They appeared in court and successfully defended the following rules against the commissioners, filed in this court:

“ Teutonia Savings Bank, to recover two checks, one for one hundred and forty-six dollars and thirty cents and one for two dollars and seventy cents, deposited before the failure of the bank and not collected, and the sum of four hundred and fourteen dollars and fifty-two cents deposited on the last day before the failure and alleged to have been kept separate from the other funds of the bank.
“ Gideon Townsend & Oo., to recover four hundred dollars in cash, and four checks, one for four hundred and ninety dollars, one for three hundred dollars, one for two hundred and twentydollars, and one for fifty-one dollars and twenty-eight cents, deposited before the failure and alleged to have been kept separate from the other funds of and not belonging to the bank.
“ The Fink Asylum, to recover, on the same grounds, a cheek for one thousand dollars, deposited before the failure of the bank.
“The rule of W. C. Williams & Brother, to pay with their deposit a note held by the bank for seventy-five dollars, signed by W. O. Williams, and secured by a pledge of one share of homestead stock.
“ To these rules, aggregating the sum of three thousand one hundred dollars and ten cents, answers were filed, and they were tried and argued together by the attorneys for the commissioners and the attorneys for the absent creditors.
“ The attorneys have also filed the following suits allotted to other divisions of the court:
“Liquidators of the Bank of Oommerce vs. Marks Goodman. A suit to recover two hundred and thirty-nine dollars and twenty-nine cents, the amount of defendant’s overdraft of his deposit account.
“Liquidators vs. W. P. Nicholls. A suit for one hundred and twelve thousand four hundred dollars, and for said amount the defendant, upon the day the suit was filed, confessed judgment, and a judgment was rendered accordingly.
“Liquidators vs. Frank McGloin et al. A suit upon a promissory note, signed by defendant and endorsed by George W. Young, for four hundred and fifty dollars. An answer was filed to this suit, in which the defendant, Judge Frank MeGloin, pleaded in compensation so much of a deposit of seven hundred and forty-five dollars and fifty-five cents, in his name as agent, but alleged to be his money, as would pay said note. The case was tried and argued by the attorney for the liquidators, and a judgment rendered in favor of the plaintiffs, as prayed for, against both defendants. From this judgment the defendants have appealed.
“Liquidators vs. E. L. Simonds and the Gordon Cooperage Company, Limited. A suit on a promissory note for one thousand two hundred dollars. No answer was filed, and a judgment was rendered, as prayed for, by default. The defendants havesince paid the amount due.
“Liquidators vs. New Orleans Cotton Seed Oil and Manufacturing Company. A suit on a. promissory note for seven thousand four hundred dollars.
“Liquidators vs. Lawler & Chaery. A suit on a promissory note for two thousand three hundred and thirty-seven dollars and fifty cents.
“Liquidators vs. Frank L. Gordon. A suit on promissory notes for thirty-seven thousand five hundred dollars, secured by a pledge of collaterals. The defendant confessed judgment as prayed for, and judgment was rendered accordingly.
“Liquidators vs. New Orleans Stave and Heading Company. A suit on a promissory note for five thousand one hundred and seven dollars.
“Liquidators vs. William G. Brothers. A suit for a balance of one thousand dollars due on a promissory note secured by a pledge of collaterals.
“Liquidators vs. P. M. Mayer. A suit on a bill of exchange for one hundred and twenty-five dollars.
“ Liquidators vs. Robert J. B. Osborn. A suit on a promissory note for three hundred and eighty-five dollars. No answer was filed, and a judgment was rendered as prayed for by default.
“Liquidators vs. Hy. Marx et al. A suit on a promissory note for one hundred and sixty-four dollars and twenty cents.
“Liquidators vs. Albert Donnaud and James A. Brennan. A suit on a promissory note for two hundred and fifty dollars.
“Liquidators vs. S. H. Burns et al. A suit on a promissory note for one thousand five hundred dollars.
“ The attorneys filed an intervention in the case of Taylor vs. Almada, claiming the dissolution of an attachment and that the money attached to the extent of four hundred and twenty-five dollars be applied to the payment of a promissory note for that amount held by the bank.
“ They appeared in a rule, taken by the attorney for the absent creditors, to deposit the funds collected, in the judicial'depository, obtained a few orders necessary for the administration, filed the account of the liquidators, and obtained a judgment approving the same in so far as not opposed.
“ For all the services rendered, three members of the bar testified that the fee charge was reasonable.
“The evidence is conclusive, and it is conceded that the commissioners and their attorneys have conducted the liquidation of the bank.to the best interests of the creditors.
“The attorney for the absent creditors represented about one hundred and twenty-three absent creditors, aggregating about thirty thousand dollars, not eight, aggregating two thousand three hundred and seventeen dollars and fifty-nine cents, as stated in the exhibit annexed to the account. He also represented the unknown owners of certified checks and certificates of deposit for a large amount outstanding at the time the bank failed. He attended the taking of the inventory, signed it, called at the bank every day in the interest of creditors-to see how the liquidation was conducted. He also filed several rules and appeared with the attorneys for the commissioners in the contested rules before the court. His services were necessary for the proper liquidation of the bank, and consequently of service to its creditors.
“ There is no statute in this State fixing the fees of liquidating commissioners of insolvent banks when they are’ appointed by the court on the petition of a creditor.
“ The section of the Revised Statutes, 284, which confers the right upon the creditor to sue a bank for a forfeiture of its charter for non-compliance with any of its provisions, and upon proof of the fact, authorizes the judge to decree the forfeiture and to appoint commissioners to effect the liquidation, the section under which the proceedings of this suit were instituted, does not mention the fees to be allowed to the commissioner.
“ The section of the Revised Statutes, 294, relied upon by some of the opponents as fixing the compensation, confers the right upon the Attorney General of the State, whenever a note has been protested, in his discretion to apply to the court by petition for a writ of sequestration against all the property of the bank and for judgment of forfeiture, and makes it the duty of the judge, upon proof of the fact,to forfeit the charter and to appoint three liquidators, who, says the statute, ‘ shall receive such compensation as the court may determine, which shall not exceed a salary at the rate of two thousand five hundred dollars per annum.’
“The protested note referred to in this section refers to bank notes circulating as paper money. The section is taken from an act passed in 1858, at a time when the State authorized the banks, upon depositing with the Auditor of the State certain specified securities, to issue bank notes, countersigned by him, as money.
“ The State banks, under the existing laws, do not now issue their notes as money, nor does the Auditor countersign them. The Attorney General has no occasion, on the protest of a note, to apply for the forfeiture of a bank’s charter and the appointment of liquidators. The section is evidently obsolete; If, however, in force and applicable to this case, it does not fix the fees of the liquidators. It places that responsibility upon the court, and at the same time prohibits the court from allowing a sum as compensation for services exceeding a salary at the rate of two thousand five hundred dollars per annum.
“ There being no law upon the subject, the duty is placed upon the court, in the exercise of a legal discretion, to award to the commissioners a reasonable compensation for their services. In this Sbate there is no rule to guide the court in determining what is a reasonable compensation. In the United States Court, where the national banks are liquidated, the compensation is fixed by the Comptroller of the Treasury, generally at a salary of three hundred dollars per month, subject to modification. In New York the compensation, provided in no case it exceeds ten thousand dollars, is fixed by statute at five per cent, on receipts and disbursements. The rule in other States varies. Where the compensation is not fixed by statute in most of the States, in cases of corporations, the courts are not inclined to allow a percentage on the receipts and disbursements, but prefer, at the end of the liquidation on a final account, to award a specific amount.
“ In some States, in ordinary cases, if the local laws provide a compensation for administrators or executors, the courts will be inclined to grant an allowance on the basis provided by such laws.
“ In one State the rule is what the receiver or some other person possessing equal qualifications could have been employed by private contract to perform the services rendered.
“In Massachusetts the courts do not determine the compensation of receivers upon the basis of a fixed commission upon the amount of money passing through their hands, but allow them such an amount as would be reasonable for the services required of and rendered by a person of ordinary ability, and competent for such duties and services.
“ In Pennsylvania the considerations that are controlling with the court and determine the compensation are ‘ the time and labor needed, not necessarily the time and labor expended, in the proper performance of the duties imposed: the fair value of such time and labor measured by the common business standards; the degree of activity, integrity and dispatch with which the work of the receivership is conducted.’ Gluck and Becker on Receivers, pp. 535-539.
“In awarding a reasonable compensation the court will be guided by the rules adopted by the courts in Massachusetts and Pennsylvania, as they are, in the opinion of the court, in accord with equity and reason.
“ The court can not follow the rule basing the compensation upon the percentage allowed to syndics in individual insolvencies, because the creditors of an insolvent have the right, under the insolvent laws, to select their own syndics, and, if they desire, fix their compensation.
“In this ease, the liquidation of an insolvent bank corporation, the creditor under the law had no voice in the selection of commissioners, and no opportunity to fix their compensation by agreement.
“ The commissioners were engaged three months and one day in a partial liquidation of the bank.
“The clerical work was almost entirely performed by an expert and clerks. The commissioners thus far have been directed in the way to effect the liquidation by able attotneys, and have acted under their advice. The duties performed by Mr. Bush have been heretofore stated, and, with the exception of giving bond, appearing in court through his attorneys and being responsible, with his co-commissioner, for the .cash and other assets received, were principally advisory, and are similar to those performed by a director in any of the banking institutions in this city. The duties actually performed by Mr. Reynes have also been heretofore stated, and with the same exceptions are similar to those performed by either the president, cashier, receiving teller or discount clerk of the bank before its failure.
“ The president received for his services two thousand eight hundred dollars, and the cashier two thousand one hundred dollars a year, or respectively two hundred and thirty-three dollars and thirty-three and one-third cents and one hundred and seventy-five dollars a month, as stated in argument and not denied.
“ The value of the services of the officers of the bank, and of other banks of the same size, for a year service, together with additional compensation for the further service stated, and for the degree of activity, integrity and dispatch with which their work so far has been conducted, is a common business standard by which the services of the commissioners in this case for a part of the year should be measured.
“ Considering these elements, the law and the evidence, the court is of the opinion that the sum of two thousand dollars is a reasonable compensation for the services of the commissioners herein for the limited time stated.
“ The oppositions are maintained in so far as to reduce the compensation of the commissioners from nine thousand four hundred and eighty seven dollars and thirty-one cents to two thousand dollars.
It is conceded, and it is the law, that the responsibility rests upon the court to fix the fees of the attorneys in this case. The responsibility can not be shared with the members of the bar.
“ Judge Martin, in Dorsey vs. His Creditors, 5 N. S., p. 401, and Judge Eustis, in the Succession of McCarthy, 3 A. R., p. 518, have decided, ‘ as the services to be thus compensated are rendered under the eye of the court, the taxation ought to be made on its own responsibility, which ought not to be shifted from the bench on the bar, as appears to have been done in this case, in which the decision is made on the opinion of the attorneys, that the charge is moderate, and but reasonable.’
" And says Judge Eustis, in the same case: ‘The responsibility of determining the amount of fees for professional services is a matter of great delicacy, and under the rules on which our predecessors and the profession have acted for years, a court in fixing them must be guided by a conscientious estimate of their value.’
“ The courts presided over by Judge Martin and Judge Eustis adopted the following rules: * The measure of the reward of professional services is the exercise of legal knowledge, the responsibility incurred and the labor bestowed.’ The courts which have followed have added to the rule ‘ the professional standing of the attorney.’
‘‘The services rendered by the attorney have been heretofore stated.
“The services rendered in court in obtaining orders from the court were matters of routine, requiring only ordinary professional skill and no great labor. 3 A. R., p. 518.
“ The trial of the rules against the liquidators, the filing of suits on overdrafts and promissory notes, the obtaining of judgments by confession and by default, and in the litigated cases mentioned, required the exertion of ordinary legal knowledge, imposed upon counsel an ordinary amount of labor and responsibility.
“The serious and responsible services performed by counsel were rendered in advising and conducting the liquidation, services rendered out of court. These services required the exertion of a high degree of professional skill, considerable time and labor and imposed upon counsel serious responsibility. They have performed their duty in a most satisfactory manner, and in this respect they are entitled to and have received the highest praise from their opponents at the bar.
“In litigated cases contested in the District and Supreme Courts, where the amount involved depended, in a great measure, upon the legal exertions of counsel, large fees have very properly been allowed, but this is not a case of that character.
“ The judges of the Supreme Court, who perform greater labor and assume heavier responsibilities than the counsel for the liquidators in this case, receive for their professional skill and labor five thousand dollars. The District Judges in this city, and those of the Court of Appeals, four thousand dollars a year. The Attorney General of the State three thousand dollars a year. The City Attorney of New Orleans three thousand five hundred dollars a year. The attorneys of the large banks of this city, to the knowledge of the court, for advice, rarely received over one thousand dollars a year.
“ Considering fully every act performed by counsel in this ease, in and out of the courts, and the law and evidence, the court considers five thousand dollars a reasonable fee for their services to date.
The oppositions are maintained in so far as to reduce the fees of the attorneys from twelve thousand five hundred dollars to five thousand dollars.
“ The section 1817 of the Revised Statutes, as counsel for the opponents contend, reads: ‘ The fees of the counsellor who shall be appointed to represent the absent creditors shall in no case be paid by the mass of the creditors, but shall be levied on the amount Which shall be recorded for the account of the absent creditors, at the rate of five percent.; provided, that in no case shall the fee exceed the sum of two hundred and fifty dollars.’
“ In the Succession of Auld, 45 A. R., p. 248, the Supreme Court decided that where services of the attorney for absent heirs inured to the benefit of the estate, he was entitled to a larger fee than the two hundred and fifty dollars fixed by statute, and allowed him seven hundred dollars. Ihe court considers under that decision, which it is bound to follow, the attorney for absent creditors in this case is entitled to seven hundred dollars.
“ The oppositions are maintained in so far as to reduce the fee of the attorney for absent creditors from one thousand dollars to seven hundred dollars.
The fee of the notary for taking the inventory is fixed by statute. The Act 101 of 1870, Sec. 10, provides ‘That notaries shall be entitled to demand and receive at the time the service may be performed the following fees and no more * * * for making inventories of successions or other property out of office, fifty cents per hour, provided not more than twelve hours per day shall be charged, together with twenty cents per hundred words for the pro-ces verbal of the inventory * * * and twenty-five cents for the certificate and seal thereon.’
“ The inventory is in the record. It was commenced on the 16th day of September, 1896, and was finished on the 2d day of October, 1896. The notary was occupied sixteen days. Twelve hours a day at fifty cents an hour is six dollars a day, and sixteen days at six dollars a day makes ninety-six dollars. There are fifty-eight pages in the inventory, containing twelve thousand six hundred and three words. Adding ninety-seven words to cover any possible error in the count, the number of words are twelve thousand seven hundred, which, at twenty cents per hundred, amounts to twenty-five dollars and forty cents. The charge for the certificate and seal is twenty-five cents. There is r.o evidence in the record of any other service' upon which the court can fix a charge. The right is reserved to the notary to establish hereafter and charge for whatever servipes he has rendered other than taking the inventory herein.
“ The oppositions are maintained in so far as to reduce the fees of the notary from seven hundred and fifty dollars to one hundred and twenty-one dollars and sixty-five cents.
“The appraisers left their compensation to be fixed by the commissioners and their attorneys. The syndics have placed them upon the account for two hundred and fifty dollars each, five hundred dollars. Their fee under the law is fixed by the court, not by statute, as in the case of successions. 39 A. R., p. 397.
“ Considering the evidence the court is of the opinion that the appraisers are entitled to fifty dollars each, one hundred dollars.
“ The oppositions are maintained in so far as to reduce the fees of the appraisers from five hundred dollars to one hundred dollars.” '

For the foregoing reasons the judgment appealed from is affirmed.

The Chief Justice recuses himself in this case.

ON Application por a Rehearing.

The opinion of the court was delivered by

Breaux, J.

J. T. Bordes, the holder of a cheek for a small amount, claims to be paid in full and by preference out of the dividend declared by the liquidators in favor of,the drawer.

The check was dated 1st day of September, 1896, was made to the order of Antoine as payee, and by him it was endorsed over to Bordes.

The bank failed on the 11th day of September, and no demand of payment had been made prior to its failure.

J. M. Beauxis, the holder of another check, also for a small amount, claims to be paid oud of the dividends placed on the tableau of distribution to the credit of the drawer of his check. The check was dated the 2d day of September, 1896, and was endorsed over by the original payee to Lee & Co. of St. Louis, to whom it was forwarded; the latter endorsed it for collection to the Merchants Laclede National Bank. That bank sent it to the Whitney National Bank for collection. The drawer failed on the day the Whitney National Bank received the check.

These checks not having been presented previous to failure, the issue is whether an action can be maintained by the respective holders against the bank?

The weight of authority, in our judgment, sustains the view that a check is not sufficient foundation for an action, by the holder against the bank.

There may have been an equitable assignment between the drawer and payee. Upon this point the authorities are divided, but as between the bank and the payee it is difficult to conceive how there could have been an assignment as to the former without the least notice.

In applying the rule which should govern it should be borne in mind that in this case the check had not been accepted by the bank; the amount could not be and was not charged to the drawer; no settlement of any kind had been made covering the check; it did not contain words of transfer or assignment, either oral or written.

Upon this state of facts we do not think there was an assignment as' to the bank, so that the holder could sue the liquidators of the insolvency for refusal to pay upon the presentation of the check.

We quote, upon that subject, from a case recently decided by the Supreme Court of the United States: “As between a check holder and the bank upon which such a check is drawn, it is settled that unless the check be accepted by the bank an action can not be maintained by the holder against the bank.” Citing as authority Bank of the Republic vs. Millard, 10 Wall. 152; First National Bank vs. Whitman, 94 U. S. 343; Fourth Street Bank vs. Yardley, 165 U. S. 650.

If a check operates an assignment as between the' bank and the holder, then there would be an assignment without the acceptance by the bank of the draft, and even without notice.

The bank, until acceptance or notice, was unquestionably a third person.

In Bernard, Administrator, vs. Bank, 43 An. 57, this court passed upon a similar question, and decided that the relation betwen the drawee and drawer is not changed prior to acceptance or notice.

We adhere to the principles, in so far as they apply, announced in that case, supported as they are upon the point here involved by a number of cited decisions.

The District Court therefore properly dismissed the opposition of J. M. Beauxis, and the judgment was erroneous in maintaining the claim of T. J. Bordes on his check.

It is therefore ordered, adjudged and decreed that our decree be amended by striking therefrom and excluding the claim of T. J. Bordes for thirteen dollars and seventy cents allowed by the District Court, and dismissing his claim. In all other respects our judgment remains unchanged.


author: Watkins, J.

text:
    No. 12,473.
    Erazie Derouen vs. F. Jules Hebert et als.
    The maker and payee of a note, secured by mortgage, consenting and agreeing to the surrender of the one and the cancellation of the other, and the execution of a new note and mortgage in their place, can not be affected by the seizure of the old note in the hands of a pledgee or depository thereof as the property of such payee and mortgagor, such seizure having taken place long subsequent to said transaction, and said pledgee having asserted no right of his own thereto.
    APPEAL from fcbe Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J.

      Weeks & Weeks and Walter J. Burke for Plaintiff, Appellee.

      Thorpe & Miller and T. H. Thorpe for Defendants, Appellants.
    Argued and submitted April 14, 1897.
    Opinion handed down April 26, 1897.
    Rehearing refused May 31, 1897.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Watkins, J.

The grounds of the motion are, that no legal and sufficient appeal bond was furnished by the appellant in that the conditions of the one furnished are such as would defeat recovery against the person signing as surety.

The conditions of the bond “ are such, that if the said above bounden shall prosecute this appeal with effect, or shall pay or cause same to be paid or satisfied any judgment that may be rendered against him, or that the same shall be satisfied by the proceeds of the sale of his estate real or personal, if he be cast in his appeal, otherwise that the surety be liable in his place, in said Supreme Court, then this obligation to be null and void, otherwise to remain in full force and virtue in law.”

Comparing the foregoing phraseology with that of C. P. 579, we find the bond contains all the essential requirements of that article— the words in said Supreme Court” having been added ex industria.

The addition of those words do not in any manner affect or impair the binding force and efficacy of the conditions of the bond.

It was held in LeBlanc vs. Succession of Massieu, 27 An 324, that unauthorized stipulations in an appeal bond will not vitiate it; and in Cooper vs. Rhodes, 30 An. 533, if was held that the surety’s liability is measured by the judgment rendered on appeal, and not by that rendered in the court below.

And that is the purport of the opinion expressed by the court in Diamond vs. Petit, 3 An. 37, and in Holmes vs. Steamer Belle Air, 5 An. 523.

It is a familiar rule, one that has been adhered to, customarily, by this court, that judicial bonds must be construed with reference to the law under which they are made; and any clause which is super-added must be rejected, and that which is omitted must be supplied.

To that effect are the following cases, viz.: Guion vs. Succession of Guin, 19 An. 81; Mason vs. Fuller, 12 An. 69; Bryne vs. Riddle, 4 An. 3; Short vs. Trustees, 11 An. 174; LeBlanc vs. Succession of Massieu, 27 An. 326.

The addition of the phrase complained of is not contrary to, but in keeping with the liability of the surety.

The motion is denied.

ON THE MERITS.

This is an injunction against an executory proceeding in.the foreclosure of a special mortgage, on the averment that the mortgage note on which foreclosure proceedings were taken is not the evidence of any indebtedness of the plaintiff as mortgagor — said note being for the sum of six thousand dollars and bearing date April 18, 1889.

The aforesaid note was seized by the defendant Hebert, under a writ of fi. fa. against Tiburce Norres on a small judgment, in the hands of Zenon Deeuir; and he advertised same for sale, and caused it to be adjudicated to himself, against the protest of the plaintiff.

This note was secured by mortgage upon the lands now under seizure and the sale of which is enjoined.

Originally, the note and mortgage were executed by the plaintiff in favor of Tiburce Norres, her son; and he had placed them in the hands of Deeuir.

The averments of plaintiff are, substantially, that on the 17th of December, 1895, “ she paid and settled same by agreement with Tiburce Norres, the then holder of said note, executing her promissory notes secured by mortgage on the aforesaid property to represent her indebtedness to the said Norres, which indebtedness-, though prescribed, constituted a natural obligation and made it the consideration of the new note and mortgage,” etc.

“ She further alleges that if this latter note and agreement be not considered the payment of the debt, that same operated the novation of the indebtedness, as well as of the said note and mortgage, which were finally extinguished and settled thereby.”

She further shows that by said agreement between her and the said Norres, owner of the note, the mortgage first executed to secure the same was to be canceled and erased from the mortgage records of the parish, and that same was canceled and erased accordingly. .

She represents that the note upon which the seizure and sale is based is barred and extinguished by prescription of five years, and that any pretended waiver which may appear thereon was never signed by her, nor is the pretended signature thereon genuine. ,

She finally avers that, by the said agreement the note and morb-t gage given by her to Tiburce Norres on December 17, 1895, became the sole evidence of any and all debts which was due by her to said Tiburce Norres, both at the time and since, and that the note sued on evidences no debt due by petitioner, but belongs to her, and that she is entitled to possession thereof.”

■ The prayer of her petition conforms to her allegations.

The seizing creditor admits having seized the old note on 9th of June, 1896 — six months after the execution and delivery of the new note and mortgage to Tiburce Horres — in the hands of Zenon Decuir, an alleged pledgee thereof, and subject to such rights as he may have had thereon.

He alleges in his answer that the prescription of the note had been formally renounced and waived, and that the renunciation and waiver are evidenced by her signature upon the back of the note.

He denies that the inscription of the mortgage securing said first note had ever been "validly or legally canceled; and avers that any pretended cancellation which may appear upon said inscription, ■has been made in fraud of the law and the holder of said note.”

Upon the trial there was judgment in favor of the plaintiff, perpetuating the injunction, and the defendant prosecutes this appeal.

- The proof shows that the first note for six thousand dollars was executed by the plaintiff and secured by a conventional mortgage, and delivered to her son, Tiburce Horres; and that he deposited it ■with Zenon Decuir, at some date in 1893 which does not particularly appear.

That in December, 1895, she executed another exactly similar note and mortgage, in renewal of the mortgage and note first described.

That, in the act of mortgage, given to secure this last note, both Mrs. Derouen, as mortgagor, and Horres, as mortgagee, recognizing the extinction of the mortgage securing the first note, directed its cancellation by the recorder of mortgages; and this was accordingly done on the 15th of January, 1896, and Zenon Decuir, the ostensible pledgee, was duly notified thereof, and demand was made upon him for the surrender of the old note, which he refused and declined to do.

That on the 22d of May, 1896, the defendant, Hebert, obtained a judgment against Tiburce Horres, and seized thereunder, on the 9th of June following, said note in the hands of Decuir; and subsequently advertised and sold it at sheriff’s sale and bought it in.

That, notwithstanding the mortgage had been canceled for several months prior to bis seizure of the note, and consequently long prior to the time oí procuring the order of seizure and sale, yet he proceeded in disregard of same, assuming that the cancellation was illegal and void, as having been made in fraud of the law and of the holder of the note.

That the note being, at the time of the seizure, in the hands of Decuir as pledgee, and not of Horres, it was not affected by the alleged payment, or novation, by the substitution of the new note.

That the plaintiff, Mrs. Derouen, had no transactions, mercantile or otherwise, with Zenon Decuir; and that she received no supplies or other value from him at any time.

That Zenon Decuir is not a party to this suit and was not to the executory proceedings; nor does he appear for the purpose of complaining of the cancellation of the mortgage securing the note he held in pledge.

From the foregoing facts it seems clear, that there was, in December, 1895, no legal obstacie to the transaction between the mortgagor and the mortgagee, for the surrender of the old note and the cancellation of its accompanying mortgage, upon the substitution of a new note and mortgage in its place and stead — subject, of course, to such rights as Zenon Decuir may have had as pledgee.

It is a sufficient answer to all that the seizing creditor has to say upon the subject, to reply, that this transaction occurred before he had acquired any rights under his seizure against Horres, and several months prior to the date he obtained a judgment against him; and that he is without interest.

And in any event, it is impossible to conceive of any benefit he could have derived by virtue of the fact that the old note was still in the hands of the pledgee at the time of seizure.

He did not seize any right of Zenon Decuir in the note and mortgage as pledgee; but' he claims to have seized the rights of Horres, subject to the pledge to Decuir. The pledgee must champion his own rights, if he has any.

It is useless to enter upon any discussion of the rights of third persons, as there are none asserted as having had an existence at the time the transaction took place. And for a like reason we deem it unnecessary to draw any refined distinctions between novation and payment, as under the foregoing statement they are moot questions, and any expression of opinion thereon would be an obiter dictum,.

In the decree of the judge a quo no mention is made of attorney’s fees or damages; and there is no answer to the appeal or prayer for the amendment of the judgment appealed from.

We agree with the views he has expressed.

Judgment affirmed.


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    No. 12,521.
    State ex rel. Mutual National Bank vs. Judges of the Court of Appeals, First Circuit.
    The Supreme Court is without power, in tile exercise of its supervisory jurisdic tlon, to coerce the Circuit Court of Appeals by mandamus to reinstate a case it lias dismissed for want of appellate jurisdiction, and to try and decide tile case on its merits.
    QN APPLICATION for Writs of Certiorari and Mandamus.

      J. A. W. Lowry for Relator.
    Respondents in propria persona.

    Submitted on briefs May 13, 1897.
    Opinion handed down May 31, 1897.
   The opinion of the court was delivered by

Watkins, J.

Relators seek by mandamus to compel the respondents to entertain jurisdiction of a certain cause depending in their court, in which they are defendants and appellants, bearing the title, The Martin Lumber Company, Limited, vs. A. R. Thompson, Sheriff, et als., involving the ownership of property which had been seized under execution.

The relief sought by certiorari is ancillary to that by mandamus, and was accomplished when the record of that suit was brought up to this court.

It may be observed, preliminarily, that the suit aforesaid was appealed from the District Court to that of the respondents; and that they, in the exercise of the power vested in them by law, entertained a motion by the plaintiff and appellee to dismiss the appeal, and, upon due consideration o£ same, dismissed it — said motion being grounded upon the want of appellate jurisdiction in the Circuit Court, because the amount involved exceeded two thousand dollars.

Hence, the exercise of the supervisory jurisdiction of this court by mandamus necessarily involves an examination of the judicial proceedings and judgment of the District Court, as well as of those of the court of. the respondents.

The record shows that in the first instance Sheriff Thompson, holding two writs of fi. fa. against The Martin Lumber Company, running in favor of the Mutual National Bank and Witherspoon as judgment creditors, seized about seventy-five thousand feet of lumber valued at about seventeen hundred dollars; and that said seizure was enjoined by the Martin Lumber Company, Limited, alleging itself to be a third person entirely distinct from the seized debtor, The Martin Lumber Company, and that it was the owner of the property seized —claiming about twenty-three hundred dollars damages.

That, on the trial in the District Court, the plaintiff administered proof of its ownership of the property seized; but the defendants! counsel urged objection to proof being administered of its demand for damages, on the ground that the allegations of the petition were too vague and general to admit of same, and this objection having been sustained by the judge, and all evidences thereof rejected, plaintiffs’ counsel retained a bill of exceptions to his ruling.

That, thereupon, the District Judge pronounced judgment in favor of plaintiff in respect to its claim of ownership of the property seized, and to that extent perpetuated its injunction; but with respect to its claim for damages he entered a non-suit, coupled with a full reservation of its right to demand same in some other proceeding.

From that judgment the defendants prosecuted an appeal to the respondents’court; and that appeal was by the respondents dismissed on the motion of the plaintiff and appellee.

It is of the action of the respondents in sustaining that motion and in dismissing their appeal that the relators complain, and, by our writ of mandamus, seek redress; their insistence being that their court possessed jurisdiction, and that they should be constrained to take cognizance of the appeal, and try and decide the issues on their merits.

The position assumed by the counsel for the relator is that the plaintiff and appellee had acquiesced in the judgment appealed from (1) by failing to appeal therefrom, and (2) by failing to answer the appeal; whilst, on the other hand, that assumed by the respondents is that the plaintiff was at liberty to avail itself of the defendants’ appeal, for the purpose of either demanding an increase of the amount of the judgment appealed from, or of moving to dismiss the appeal, without being deemed to have acquiesced in the same.

Prom the foregoing statement we may make the following synopsis of the case as it stood in the respondents’ court, viz.:

The suit and judgment entitled The Martin Lumber Company, Limited, vs. A. R. Thompson, Sheriff, et als., was appealed to the respondents’ court by the defendants, and therein the plaintiff and appellee filed a motion to dismiss the appeal on the ground that the amount involved in the suit was in excess of two thousand dollars, and beyond the jurisdiction of the court, and, entertaining that opinion, the respondent judges dismissed the appeal.

That, in so deciding, they entertained the opinion that the plaintiff and appellee having retaiued a bill of exceptions to the ruling of the District Judge in excluding all its evidence in support of its demand for, damages, it had the right to be heard on that question in the proper appellate court, and to have the appellate tribunal pass upon such ruling; and that, believing that the respondents’ court was not constitutionally endowed with jurisdictiou of a suit wherein claim had been made for property alleged to be worth- seventeen hundred dollars, and for damages aggregating twenty-three hundred dollars for its wrongful seizure, they decided plaintiff had no other alternative than to file a motion to dismiss the appeal, and by this means compel the defendants to take the cause to an appellate court vested with jurisdiction, and in which an answer could be filed and the ruling of the District Court corrected if found erroneous.

That, upon that hypothesis, the respondents held that had the plaintiff and appellee filed an. answer to the appeal, and assigned as error of the District Judge his ruling and rejection of its evidence in support of its demand for damages of twenty-three hundred dollars, same would have presented an issue which they had no jurisdiction to determine; and had the plaintiff and appellee pursued that course it would have been an abandonment of its right to file a motion to dismiss, and a deprivation of its right to recourse to another tribunal.

The foregoing is the substance and purport of the return of our learned brothers of the Circuit Court; and, in our opinion, the view they entertained is correct and in conformity with the jurisprudence and practice of this court.

It must be observed that it is nowhere suggested in the record that the plaintiffs’ demand for damages for a wrongful seizure was fictitious and inflated for the purpose of conferring, ultimately, appellate jurisdiction on this court; on the contrary, it shows that plaintiff sought to introduce proof of this demand on the trial, and was met with the objection that its allegations were too vague and general to admit of its introduction. It was that objection that the court sustained. It must, therefore, be considered and treated as a serious demand, and, consequently, a jurisdictional one.

Under this view of the question it seems quite clear to our minds that relators have not stated a case entitling them to relief.

The record as well as the return shows that the respondent judges acted considerately, advisedly and within the scope of their power in entertaining and deciding the motion to dismiss the appeal. Indeed, that after having examined and decided the motion and dismissed the appeal, they granted a rehearing thereof, and upon second consideration they adhered to their previous ruling — having prepared and filed a written opinion in extenso upon each hearing.

In State ex rel. Liggins vs. The Judges of the First Circuit Court of Appeals, 47 An. 1516, identically the same question was decided as the one here presented; and we held, upon the authority of several adjudged cases therein collated, that this court could not in the exercise of its supervisory jurisdiction coerce the Circuit Court of Appeals by mandamus, to reinstate a case it had dismissed for want of appellate jurisdiction, and try and decide the case on its merits.

In State ex rel. Beaucoudray vs. Judges, 41 An. 1013, this court held that “ the judges of the Court of Appeals having exercised a legal discretion, can not be compelled by mandamus to try the case differently from what they have.” State ex rel. Board of Administrators vs. Judge, 39 An. 665; State ex rel. Berthoud vs. Judge, 34 An. 782; State ex rel. Cupples vs. Judges, 34 An. 1016; State ex rel Insurance Co. vs. Judges, 36 An. 316; State ex rel. Duperier vs. Judges, 35 An. 736; State ex rel. Halphen vs. Judges, 38 An. 97; State ex rel. Goodwin vs. Judges, 38 An. 270.

For the foregoing reasons the relators are not entitled to relief.

It is therefore ordered and decreed that the preliminary order granting provisional writs of mandamus and certiorari be set aside; and it is further ordered and decreed that relator’s demands be rejected at their cost.


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    No. 12,479.
    A. Baldwin & Co. vs. A. M. Bordelon, Clerk, et als.
    Therule tor the cancellation of a prior and ranking mortgage on the ground that the inscription thereof has ceased to have effect'for want of proper or timely reinseription isa familiar proceeding; but in case the question upon which a duly inscribed prior mortgage depends is simulation or fraud in the cause or consideration of the obligation secured thereby, the creditor is necessarily put to his revocatory or other action for relief.
    PPBAL from the Ninth Judicial District Court for the Parish of Avoyelles. Gullom, J.

      Couvillon & Son for Plaintiffs, Appellants.

      A. J. Laf argue (A. V. Coeo of Counsel) for Defendants, Appellees.
    Argued and submitted May 11, 1897.
    Opinion handed down May 31, 1897.
   The opinion of the court was delivered by

Watkins, J.

This is a proceeding by rule for the cancellation of a mortgage, previous in date and rank to that of the plaintiff in rule, upon the following allegations, substantially, viz.:

That on the 4th of March, 1885, plaintiff obtained a judgment against one Joseph Cappel, in the parish of Avoyelles, and that same was duly revived by a judgment rendered on the 12th of May, 1893; and that said judgment was duly inscribed in the book of mortgages on the 2d of April, 1885, and subsequently reiuscribed on the 6th of June, 1893.

That there appears on the aforesaid book of mortgages a special mortgage executed by said Joseph Cappel for the sum of seven thousand dollars bearing date September 13, 1884, to secure the payment of four promissory notes made payable to his own order and by him endorsed to William G. Oappel, and payable respectively at twelve, thirteen, fourteen and fifteen months after date — the first three being for the sum of two thousand dollars each, and the last one for one thousand dollars.

That said mortgage was duly inscribed therein and subsequently reinscribed on the 81st of March, 1890; and that executory proceedings were obtained upon two of the two thousand dollar notes first; maturing, but same were subsequently discontinued voluntarily.

That on the 19th of January, 1887, William G. Oappel made an assignment of the two notes which figured in the said executory proceedings, together with all rights, titles and interest resulting from said proceedings, unto J. Clifton Oappel,” etc.

Then follows this specific averment, viz.:

“ That Joseph Oappel never was indebted unto William G. Oappel for the amount of the mortgage and notes above described; that said transaction is a pure simulation, and that if not a simulation it has ceased to have any legal effect — said notes having been extinguished by confusion, settlement, or otherwise, and the mortgage securing same destroyed.
“ That the transfer by William G. Oappel to J. Olifton Oappel of the aforesaid notes is a pure simulation, the same having been made without any consideration; that if it is not a simulation no mortgage right was transferred, the said William G. Oappel having none to assign, as it was extinguished and destroyed before the pretended transfer aforesaid.’!

All the parties in interest were made parties to the rule and judgment was prayed for directing the cancellation and erasure of the said prior and conflicting mortgage, and which operated as a cloud upon the title of their mortgage debtor.

To this proceeding by rule the defendant excepted on the following grounds, viz.:

1. Want of proper proceedings.
2. Prematurity of proceeding.
8. No right of action.
4. No cause of action.

These exceptions having been sustained and the plaintiff’s rule dismissed it has prosecuted this appeal.

On the part of the appellant the contention is, that the ranking and interfering mortgage is and was in its incipiency a mere simulation, and altogether without consideration, and, therefore, operated as a cloud upon the title of its debtor which could be canceled and erased in a proceeding by rule, summary in its nature; while that on the part of the appellee is, that the averments of the petition clearly indicate that, in purport and effect, it is an action in declaration of simulation, or a revocatory-action pure and simple, and should have been brought in the form of an ordinary suit and preceded by citation.

That, as a rule, the proceeding is premature, because there was no execution or hypothecary proceeding seeking the foreclosure of the plaintiff’s mortgage in progress, to which it was ancillary.

After having examined the authorities cited with care, our opinion is that the plaintiff should have resorted to an hypothecary action or issued execution and caused the property to be first seized, before resorting to a rule — conceding a proceeding by rule to have been the proper mode in this instance.

But plaintiff’s allegations serve to place this case in the category of Willis vs. Wasey, 41 An. 697, which seemed to have put the court in doubt as to the ground on which relief was demanded, and consequently plaintiff’s demand was rejected.

The decision of this court in Denègre vs. Mushet, 46 An. 97, is quite applicable, and we make the following extract therefrom, viz.:

“It is only 'a conflict of privilege ’ between creditors that this statute contemplates, on which authority is thereby conferred upon -courts to classify same, according to their rank,’ in the summary manner pointed out; it does not purport to give the courts jurisdiction to summarily adjudge the validity of debts which are secured by privileges or mortgages, and by that means to displace one and advance the rank of another. It does not purport to authorize viere strangers to the principal litigation to be thus summarily coerced into court and compelled to submit their claims to investigation and judgment on simple rule without their having resorted to any judicial proceedings looking to the assertion of any claim on the proceeds of sale in the possession of the court.”

The purport of that opinion is, that the validity of debts must be contradictorily ascertained.

The rule for the cancellation of a prior mortgage, on the ground that the inscription thereof has ceased to have effect for want of proper and timely reinscription, is a familiar proceeding; but in case the question upon which a duly reinscribed prior mortgage depends is simulation or fraud in the cause or consideration of the obligation secured thereby, the creditor is necessarily put to his revocatory or other appropriate action.

We extract the following from appellee’s brief, viz.:

“We admit, it would have been more regular to have caused the property to be seized and advertised for sale before instituting these proceedings; but we submit that the course adopted is permissible, as it can not impair the rights of the mortgagees, if any they have, or increase the advantages of the judgment creditors, if any they have. At any rate the severest punishment that could be visited on plaintiffs for instituting this rule before seizing would be a judgment on non-suit, and not such a judgment as was rendered by the District Court, rejecting plaintiffs’ demand, shutting them from ever making an attempt to realize on their judgment. This is the only judgment that can be rendered. The exception being dilatory, the penalty is only a non-suit.”

Counsel is in error in making this statement, doubtless, through inadvertence.

The judgment concludes thus, viz.:

“It is ordered, adjudged and decreed that said exception be sustained, and that the suit be dismisssd at plaintiffs’ cost.”

That is not a final judgment. It dismisses plaintiffs’ proceedings by rule, but leaves its recourse to an ordinary action unimpaired.

This right being reserved, we think the judge a quo made a proper -disposition of the case.

Judgment affirmed.


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    No. 12,502.
    State of Louisiana vs. Ernest D’Aquin.
    In case tlie record discloses no motion or order ol appeal made in the lower court this court is not authorized to take jurisdiction oí an appeal, and same will be accordingly dismissed.
    APPEAL from the Criminal District Court for the Parish of Orleans. Baker, J.

      M. J. Cunningham, Attorney General, and B. II. Marr, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      Simeon Belden for Defendant, Appellant.
    Submitted on briefs May 1, 1897.
    Opinion handed down May 10, 1897.
   The opinion of the court was delivered by

Watkins, J.

The defendant appeals from a verdict convicting him of the crime of embezzlement, and a sentence to imprisonment in the State penitentiary for a term of one year; and in this court his counsel has for error assigned, that the indictment fails to allege any value for the promissory note with the embezzlement of which he is charged.

In this court the Attorney General has filed a motion to dismiss the appeal, on the ground that the record fails to disclose any motion or order of appeal, bill of exceptions or assigment of errors.

While it is true that this court has undertaken the examination and decision of cases, without any formal bill of exceptions having been filed, or any assignment of errors having been made, in case there was any radical defect in the indictment pointed out, we know of no case in which this court has taken jurisdiction of an appeal which had been brought up, as this case has been, without either motion or order of appeal.

Appeal dismissed.