text:
    No. 9704.
    The State of Louisiana vs. Louis Crittenden.
    Although, the court may have refused to permit the prosecuting officer to introduce other evidence after the case has been closed, yet when the jury requests to be permitted to have the prosecuting witness brought before them for the purpose of examining the nature and locality of his wounds and of questioning him in relation thereto, it lies in the discretion of the judge to grant the request and such permission is not error.
    When the defense oifeis to question the Stace’s witness with a view to ascertain whether or not he has been a penitentiary convict, for the purpose of establishing his incompetency, and the question is ruled out on the ground that the record is the best evidence, and when no objection is made at any time to his competency, and the record, though claimed to be in the trial court, has never been produced on the trial or on motion for new trial, we must presume that there was no foundation for such objection, and that even if the court committed error, it was immaterial and no ground for reversal.
    Where the connsel on either side puts to his own witness a question grossly leading and seeking to elicit evidence in itself inadmissible, the judge has the right to interfere and prevent such proceeding, even in absence of objection by opposing counsel; and such action furnishes no ground for reversal, if the ruling was otherwise correct.
    A witness in a criminal case has the privilege of declining to answer a question which tend» to criminate himself; and when he claims this privilege the judge is right in declining to compel him to answer.
    In an indictment for shooting with a dangerous weapon with intent to murder, under Sec. 791, E. S,, although it is not necessary expressly to charge an assault, yet as an assault is necessarily implied in the charge, the setting of it out is innocent surplusage, and the larger crime being otherwise properly charged, a conviction thereof will be sustained.
    The indictment containing in its caption and commencement a full description of the State, parish and judicial district, the charge that the crime was committed in the “State, • parish and'district aforesaid,” is a sufficient laying of-bhe place.

      PPEAL from the First District Court, Parish of Caddo. Hides, J.

      M. J. Ounninghmi, Attorney General, for the State, Appellee.

      J. B. Slattery for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The errors charged are presented on four bills of exception and a motion in arrest of judgment.

1. The first bill was taken to the ruling of the court in permitting the jury, at their own request, to have the prosecuting witness recalled after the evidence was closed, and to strip and exhibit the location and nature of his wound, and to be questioned by the jury concerning the same.

The objection was based on the ground that the judge had previously refused permission to the State to introduce the same evidence, after closing its case, and that the jury could not thereafter call for it. The judge states that his ruling against the State was on the technical ground that the evidence was not in rebuttal, and that such technical rule did not apply to the request of the jury, who were entitled to information on points which they considered essential to the understanding of the facts of the case. Irrespective of the correctness of the first ruling of the judge, he committed no error in the ruling complained of. This Court has heretofore held that “it was a matter to be left to the sound discretion of the judge, whether he would, after the State announced that it had closed, and before argument began, allow further evidence.” State vs. Colbert, 29 Ann. 715.

Mr. Bishop affirms the same principle thus: “ It is the general rule that, after the prosecuting officer has announced the evidence closed on his side, other evidence, not rebutting, cannot be introduced against the defendant; but, in various circumstances, the court, in its discretion, will allow a departure from this rule.” Bish. on Cr. Proc. § 966.

The evidence being intrinsically proper, there could not be a better ground for the exercise of this discretion than the request of the jury. See also, Wharton Cr. Pl. and Prac. § 707.

There was no necessity for re-swearing the witness, who remained under the oath originally taken.

2. The next bill recites that the prosecuting witness, Collins, after testifying that he had been in the penitentiary and had been sent from Caddo parish, was asked by the defense, to enable them to find the judgment of conviction, as there was no index to the criminal docket, ‘how long it was since lie had left the penitentiary,’ to which question the district atlorney objected, and the objection was sustained.”

The judge states that the witness had said “he had been in the penitentiary right here — not convicted and sentenced to the penitentiary.’ Considering that the object of the question, as stated in the bill, was simply to lay foundation for objection to the competency of the witness; that no objection was ever made to his competency; that the record of his conviction was not thereafter produced either during the trial or even on motion for new trial, it is fair to presume that there was no foundation for such objection, and that the ruling of the court, even if erroneous, worked no injury.

3. The next bill was taken to the action of the judge in interrupting a witness of the defense and preventing him from answering a question propounded by defendant’s counsel and not objected to by the prosecuting attorney.

The question was as follows: “From your knowledge of the character of both parties and the action of the prosecuting witness during the difficulty, did you think the life of the defendant was in danger, and was the defendant justified in believing his life was in danger1?”

The judge states that lie- considered the question as objectionable, both because it was clearly leading and because it elicited a mere opinion of the witness; that the witness was unscrupulous and showed a desire to exculpate the defendant regardless of truth ; and that, notwithstanding the neglect of the district attorney, he felt it his duty to interfere in the prevention of such leading questions and the exclusion of such illegal testimony. He further intimates that it was not the first instance of the kind, saying that “ the trial was becoming a farce,” and that “his object was to call to the mind of counsel that the court was not the place to act farces in.”

The question was grossly leading, to which the affirmative answer would respond as a mere echo of the words and ideas embodied in the question.

Moreover, the testimony itself sought to be elicited was improper, as not stating actual facts from which the jury might form its own opinions, but expressing merely the opinion of the witness based on facts not disclosed. State vs. Parce, 37 Ann. 268; State vs. Coleman, 27 Ann. 691; Wharton Cr. Ev. § 457; State vs. Rhoads, 29 Ohio St. 171; Haynie vs. Baylor, 18 Tex. 498.

The gravamen of the complaint, however, seems to be that, in absence of objection by the district attorney, it was improper for the judge to interfere. We dissent entirely from this view. A trial is not a mere hiite between counsel, in which the judge sits merely as an umpire to decide disputes which may arise between them. It is his duty to see that the trial is conducted lawfully and fairly, to contribute to the eliciting of the truth and, as we recently said, “to take care that neither party shall suffer unlawfully.” State vs. Green, 36 Ann. 186; State vs. McGee, Id. 206.

Thus, he may supplement the deficiencies of counsel on either side, by putting questions to witnesses which they have omitted, and, it is said, by recalling witnesses, who have been dismissed, for further question, and, in England at least, even by calling and examining a witness whom neither side has called. Wharton Cr. Ev. § 452.

We think, therefore, he has equal right, of his own motion, to require counsel on either side to put their questions in legal form, and to prevent the introduction of improper evidence, whether objected to by opposing counsel or not.

A trial is not intended as a mere lest of the capacity of counsel, but has the higher objects of eliciting truth and securing justice. The rules of evidence have been framed with the view of advancing these objects, and, when they are violated, it is the privilege and duty of the judge to enforce them.

4. The next bill was to the refusal of the judge to compel a witness to answer the question: “From whom did the defendant obtain the pistol with which he did the shooting?”

A former witness had testified that the pistol was obtained from this witness, and the question was objected to as tending to criminate him. The judge having explained his privilege to the witness, the latter declined to answer the question on the ground that the answer would criminate him. The objection of tlie district attorney was perhaps in itself untenable, as the witness might have waived his privilege; but as he claimed the privilege, the judge did not err in refusing to compel him to answer. State vs. Cook, 20 Ann. 145; Greenleaf Ev. § 451; Constitution 1879, art. 6.

5. The motion in arrest is based on two grounds: 1st. That the indictment does not charge any crime greater than an assault, while he was convicted of shooting with intent to murder; 2d. It does not allege the time and place where the shooting took place.

Both grounds' are uutenable. The indictment charges that accused “did make an assault with a dangerous weapon commonly ealled a pistol, and did shoot said Collins with intent then and there, him, the said Collins, wilfully, feloniously and of his own malice aforethought, to kill and murder.”

The charge contains all the elements of shooting with intent to murder, as described m Section 793, Revised Statutes; and, though it was unnecessary expressly to charge the assault, yet as an assault was necessarily implied in such a charge, the setting of it out was innocent surplusage.

As to the time, it is very clearly laid as on the second day of January, 1886; and as to place, the indictment, containing in its caption and commencement the words, “State of Louisiana, Parish of Caddo, First Judicial District,” charged the crime to have been committed “in the State, parish and district aforesaid.” This is sufficient.

Judgment affirmed.

Todd, J. takes no part.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 9735.
    The State ex rel. F. L. Gates vs. Taylor Beattie, Judge.
    1. It is the duty of a judge recusing himself upon grounds other than personal interest in the suit, to appoint a lawyer, having the qualifications of a judge, of the district in which the recused case is pending; and if no lawyer can he obtained at the term of the court at which the recusation is declared, the judge shall immediately appoint some judge of an adjoining district to try the case.
    2. In the event tlie recused cause shall not have been tried within nine months from the date of the recusation, it shall be the duty of the district judge to order the transfer of tlie case to the district court of the nearest parish in the adjoining district, the judge of which is competent to try the case.
    3. In case of such transfer of the suit, the judge of the court to which the transfer is made has as full and complete authority and jurisdiction over the same as if it had originated in that jurisdiction.
    ^PPLICATION for Prohibition.

      J). Caffrey, Foster <& Southon and A. G. Allen for the Relator.

      Breaux & Sail and IS. Simon for the Respondent.
   The opinion of the Court was delivered by

Watkins, J.

This is an application for a writ of prohibition to restrain the respondent judge from any further proceeding with the trial of the suit of Theodore Fontelieu vs. F. L. Gates, the relator, which is a suit contesting defendant’s right to the office of judge of the Twenty-first Judicial District.

Relator avers that plaintiff Fontelieu entered his recusation in that suit — he being at that time judge of that district — on the ground of personal interest, and referred the case to the judge of the Twenty-fifth Judicial District; that he in turn transferred said suit to Nineteenth Judicial District, in which Judge E. S. Goode presided; that the Governor appointed B. E. Winchester to fill the vacancy occasioned by the death of Judge Goode, and he recused himself on the ground that he had been consulted as counsel, and appointed the respondent Judge of the Twentieth Judicial District to try the case, and he has undertaken the trial thereof.

Relator avers “that Judge Taylor Beattie is entirely without authority to try said cause, and that Judge B. P. Winchester was entirely without authority to appoint him to try it.

“ Your petitioner says that when the said Judge Winchester ordered the appointment of Judge Beattie to try said cause, he, through counsel, excepted to the order on the ground of want of authority of Judge Beattie, and the further ground of there being in the district four lawyers having the necessary qualifications to act as judge pro hoe,n and that respondent judge is incompetent to try the cause, and that the recused Judge Winchester should have selected and appointed one of the attorneys of the Nineteenth Judicial District, having the necessary qualifications to try the same.

Respondent judge for answer returns “ that in his opinion the recusation of Judge Winchester and the appointment of your respondent were in strict accordance with law,” and he proceeded thereunder.

The defendant’s bill of exceptions taken in the case of Pontelieu vs. Gates shows that, after recusing himself, Judge Winchester tendered the appointment of judge pro hae vice “ to A. C. Allen, Esq., an attorney-at-law having the necessary qualifications of a judge of the district court, for the parish, to try the case, and that said A. C. Allen thereupon declined to accept the appointment;” and the judge tendered the appointment “to P. H. Mentz, Esq., an attorney having the necessary qualifications, rvho likewise declined; whereupon his honor entered an order appointing Judge Taylor Beattie of the Twentieth Judicial District Court to try the case.”

This order was excepted to by the relator, as defendant in the suit of Pontelieu vs.'Gates, “on the ground that, in the Nineteenth Judicial District four lawyers having the necessary qualifications to try the case, to-wit: Geo. B. Shepherd, Septime Lanaux, Lucius Southon, Tobias Gusham, and Emile Burgh, could be called, or one out of their number could be appointed to try the case; and on the further ground that the Statute requires and orders the judge to appoint a lawyer, whenever he is recused, except for causes of interest,” and that the judge recused had no discretion in the matter. The recused judge assigns as his reason for appointing the respondent that “the court appointed every qualified laioyer at the bar of St. Mary, except Mr. S. Lauaux, who resided in Morgan City, and who was not present, before appointing Judge Be'attie of the adjoining district.” This bill of exceptions is annexed to and filed with the respondent’s answer.

To us, the recusation of Judge B. F. Winchester and his selection and appointment of respondent were in strict conformity with the provisions of Sec. 2 of Act 40 of 1880, which reads as follows, viz: “ That in cases in which a district judge, shall be recused, except for cause of interest, he shall, for the trial thereof, appoint a lawyer having the qualifications of a judge of the district court, in which the recused case is pending, and if no lawyer having the necessary qualifications can be obtained at the term of court at which the recusation is declared, the judge (recused) shall immediately appoint some district judge of an adjoining district to try the case, who shall bo notified of his appointment, etc.and he shall, as early as practicable, go to the court at which the recused case, for the trial of which he shall have been appointed, is so pending and there try and determine the cause.

The relator’s counsel, with great earnestness and ingenuity, argue Judge Winchester’s “entire want of authority to appoint” Judge Taylor Beattie, and the latter’s want of authority to act under said appointment and try said cause, for the reason that, Judge Winchester was himself a j udge ad hoc, and the legislature had not given him such power; and that this case presents a casus omissus, not provided for by Act 40 of 1880, or any other law of this State ; and insists “that the judge ad hoc appointed under section 5 of that act has not the same power as the judge appointed under sections 2 and 8; nor does he proceed to try the case in the same manner.” He further contends that, when Judge G-oode died and his successor, Judge Winchester, recused himself, there was an end of the legislative grant of jurisdiction, and the case is at a standstill, until the legislature affords relief.

Counsel for the relator places strong reliance upon Jarnau vs. Chopin, 6 La. 180, in which he claims, Judge Martin, as the court’s organ, announced a similar principle as controling a similar case.

In that case the sole question presented for solution was, whether the court below erred in refusing an order of reference of the cause to the judge of an adjoining district, it appearing that both the district judge before whom the case was pending, and the judge of the parish in which the court was sitting, had been employed and consulted in the case. The motion was grounded on the first section of an act passed in 1822, but which the court held to have been repealed by a statute enacted in 1824, which ordered reference of such cases to the parish judge.

The court ruled that the judge before whom the cause originated, and that one whom the law calls in his stead, being both incapacitated from acting, the appellant is precisely in 'tho same situation, in which he would have been, under the act of 1822, if the judge of his own and of the two neighboring districts had been incapacitated. His, then, would be a casus omissus in the law, and remediable by the legislature only.

The act of March 23, 1880, is much more ample than was that of 1822. Section 5 of the former statute does not, in our opinion, provide for the selection or appointment of a judge ad hoc as relator’s counsel contend. It is in these words:

“That when any recused case, for the trial of which a district judge has been appointed, as provided in sections 2 and 3 of this act, has not been tried in nine months from the date of the recusation, it shall be the duty of the district judge to malee transfer of such cause to the district eourt of the nearest parish of an adjoining district, the judge of which was competent to try the case, etc.”

An examination of State ex rel. Fontelieu and others vs. Conrad DeBaillon, Judge, 37 Ann. 393, will show that the defendant judge, to whom the cause had been originally transferred, failed to try the same during the prescribed period of nine months and said cause was thereafter transferred to the Nineteenth Judicial District Court for tne parish of St. Mary, and where it now resides.

The suit having been regularly transferred to the Nineteenth Judicial District Court for the parish of St. Mary, under the provisions of the Act of 1880, it is quite as much under the control and jurisdiction of that court as any suit originally instituted within that territorial jurisdiction.

Judge Goode having died, Judge Winchester was appointed and took his place and stood in his place, and was and is fully vested with all the jurisdiction and authority that his predecessor, Judge Goode, possessed.

Having a recusable interest in the case of Fontelieu vs. Gates, as an employed attorney-at-law, he made and entered an order of recusation and appointed the respondent judge to come into his eourt. and try the cause. In this we think he was correct.

On the other branch of the case we deem it sufficient to add that sec. 2 of act of 1830, make» it the duty of district judges who are thus recused “to appoint a lawyer having the qualifications of a judge of the district court in which the recused case is pending, and if no lawyer, having the necessary qualifications can be obtained at the term of the court at which the recusation is declared, the judge (recused) shall immediately appoint some district judge, etc.”

The statute does not say a lawyer of the judicial district, hut a lawyer having the necessary qualifications of a judge of the district court in lohieh the recused ease is pending. In case such a lawyer cannot he “ obtained at the term of the court at which the recusation is cleclcvred the judge (recused) shall immediately appoint some judge.

This statute was intended to facilitate and speed the trial of causes in which the trial judge may have a recusable interest. It certainly does not contemplate the recused judge delaying the trial until he had first tendered the appointment to every competent lawyer of the judicial district, before he should apipoint a judge of an adjoining district.

It is, therefore, ordered and decreed, that the restraining order granted he rescinded and set aside, and that a perpetual prohibition .be refused.


author: Bermudez, C. J.

text:
    No. 9571.
    Bridget Tague vs. Royal Insurance Company of Liverpool and London et al.
    lío appeal lies to this Court in a case in •which plaintiff claims less than $2,000, on distinct contracts, from each of several defendants, not hound jointly or severally, though five in number, and the claim against each nears $1,000, aggregating together some $5,000. Consent cannot confer jurisdiction rations materia\

    PPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      J. Timony for Plaintiff and Appellant.

      Breaux <& Ball for Defendants and Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.

We have no jurisdiction ratione materia) over this controversy.

The plaintiff sues on five different insurance policies, to recover from each of the five defendant companies a sum less than one thousand dollars.

The companies, if bound, are liable neither jointly nor severally for the same amount.

The insurance was effected ¡separately on property valued at $5,000, oue-fiftli in each company.

It has been held, in similar cases, that jurisdiction did not attach. 4R. 319; 5 N. S. 87.

In the earlier case, the Court said: “ The attempt made by this mode of proceeding to obtain a review of these judgments and to have their nullity established, is an attempt to have that done indirectly which the law will not permit to be done directly.”

In the last ease, the Court said: “ The appellants contend that, as the plaintiff has joined them in the same suit, he lias himself made a case, which authorizes them to appeal. We are of a different opinion. If a separate suit had been instituted against each appellant, * * * it is very clear no one. of them would have been entitled to an appeal, and we do not see that the joining of them in one suit makes any difference as to their rights. If they thought their rights endangered by being all joined in the same suit, the appellants ought to have objected in the lower court and not have reserved their objections for this tribunal.”

This doctrine has since been uniformly recognized and applied. 5 R. 120; 10 Ann. 78; 28 Ann. 172; 30 Ann. 609; 33 Ann. 806.

It is a principle too firmly settled to be questioned, that, however formal or disguised,.consent cannot confer jurisdiction rations materias.

In the instant controversy, the plaintiff does not ask a judgment for a sum “exceeding two thousand dollarsbut for $970 only, against each company named.

This Court can therefore in no possible aspect render a judgment exceeding the lower limit of its jurisdiction against either or all the companies, between whom there exists no privity and who are bound, if liable, neither jointly nor severally. Const. Art. 81.

It is therefore ordered and decreed that the appeal to this Court he dismissed with costs.


author: Poché, J.

text:
    No. 9708.
    The State of Louisiana vs. Willie Samuels.
    An information under Section 792 oí the Revised Statutes, which charges that the accused wilfully, feloniously and .of liis malice aforethought ■* * shot into and among a crowd with intent to kill and murder some person or persons, is not had for duplicity.
    The description of the a/nimns of the, shooting is sufficient to qualify the intent to commit murder.
    The information is not deficient for using the words into and among instead of the word at used in the Statute. It is not deficient because it does not in terms charge an assault, when it appears that other words used contain the necessary ingredients of an assault.

      APPEAL from the First District Court, Parish of Caddo. Hides, J.

      M. J. Cunningham, Attorney General, for the State, Appellee.

      H. H. Bandotyh and J. W. Jones for Defendant and Appellant.
   The opinion of the Court was delivered hv

Poché, J.

Defendant seeks relief from a conviction under charge that “ with force and arms, into a crowd of persons assembled together at a circus * * * * with a certain dangerous weapon commonly called a pistol, wilfully, feloniously and of his malice aforethought, (he) did shoot among and into, with intent to kill and murder some person or persons unknown. * * *

The first point submitted is a motion to quash the information on the ground that it charges no crime under the laws of this State, and further, if there is such offence, it is bad for duplicity.

A complaint that no offence is charged, and that two offences are charged in the same information, is manifestly more hypercritical than definite or consistent. Hence on appeal a more logical course has been adopted by counsel, and the first ground of the motion is abandoned.

On the alleged defect of duplicity, we find that the information is brought under section 792, Revised Statutes, which provides that, “whoever shall assault another by wilfully sliootiug at him, or with intent to commit murder, rape or robbery, shall be,” etc.

It is plain that the Statute contemplates several distinct offences, which are disjunctively enumerated, and our jurisprudence has long since and uniformly sanctioned pleadings under which one or more of the offences denounced by that very Statute can be cumulated in the same count of the indictment or information, when it appears that they are connected with the same transaction and constitute but one act, as shown by the information in this case. State vs. Faut, 2 Ann. 837; State vs. Markham, 15 Ann. 498; State vs. Richards, 33 Ann. 1294, and authorities cited in the last case.

The motion to quash is therefore devoid of all merit.

In-a motion in arrest, the defendant urges three other objections to the information under which he was convicted.

1. That the information fails to specifically allege an assault, and that under section 792 an assault is of the essence of the crime therein denounced.

It is true that the information does not contain the word assault, but it is equally true that the language used in the information contains the necessary ingredients of an -assault, and no rule of law requires that criminal pleadings should contain the identical words of the Statute, provided the true meaning thereof he unequivocally found in the hill or information.

2. He nest contends that the information contains no averment of a felonious intent to murder.

The manner of the shooting, which is the, substantial charge in the information, is described to he felonious, wilful and of Ms malice aforethought, and that description covers and sufficiently qualifies the alleged intent to commit murder. State vs. Bradford, 33 Ann. 921; State vs. Murphy, 35 Ann. 622.

3. He also complains that the charge is of shooting into and among a crowd, instead of following the language of the Statute, which uses the words shooting at.

We can hardly conceive the purport of this objection, for it appears to us that shooting among and into a crowd, conveys the idea of a more dangerous or offensive shooting than would be conveyed by the words shooting at. There is no force in the contention.

If for no other purpose but to avoid idle discussion, a more vigorous compliance with the terms of the statute, by prosecuting officers, would be advisable, and would doubtless enhance a speedy administration of justice.

Although the author of the information in this case managed t.o convey with sufficient legal precision the idea of the charge which he intended to prefer, yet the style of the instrument is so loose and clumsy that it suggested some reasonable doubts of its real meaning, and it has necessitated labor which might have been easily avoided

Other means of defense have been resorted to in the district court, but they are not insisted on before this Conrt; counsel having restricted their efforts to sustain their motions to quash and in arrest.

Judgment affirmed.


author: Todd, J.

text:
    No. 9610.
    The State of Louisiana vs. Gabriel Gonsoulin.
    In order to set aside the venire, accused must poiut out and establish some material ille* gality in the drawing and show some material injury to himself.
    A man living near the line between two parishes is a lawful juror in that parish in which he is a registered voter and claims his residence, when the line has not been legally and definitely settled, and it is not positive which side it would place him on when so established.

      The jury is i>resumed to be legally composed, and he who asserts the contrary assumes the burden of proof.
    Applications for a change of venue are largely within the discretion of the trial judge. Ilis action may be reviewed by this‘Court, but his conclusion relating thereto will not be disturbed unless it clearly appeal’s that he has misapplied the law or the facts.
    To entitle accused to a change of venue, the prejudice against him must be so general throughout the parish as to render it impracticable for him to get a fail’ and impartial trial.
    The fact that a justice of the peace hears rumors of an offense in the neighborhood does not show that such offense was “made known ” to him, so that prescription will begin to run in favor of the offender. To have that effect, it must be made known by affidavit before him. K. S. 986, 2058.
    After the evidence is closed on the trial of a motion in which the evidence is taken down, the trial judge may allow a witness to correct his statement as taken down, without reopening the evidence so as to be compelled to hear other and further evidence.
    The declarations of accused made, not at the time of the commission of the. offense, hut subsequently in reply to the charge against him, are not part of the res gestee; they are self-serving and inadmissible.
    The fact that unexpected evidence was adduced furnishes no legal ground for a new trial. "Wh. Or. PI. and Pr. § 884.
    Accused is not entitled to a new trial because he or his counsel made a mistake in not adducing his entire evidence at the proper time. Wh. Cr. PI. and Pr. §§ 876. 877.
    Courts have always the right to correct their minutes so as to conform to the facts, especially when such facts are within the personal knowledge and recollection of the court.
    It is not essential that accused should be present at the filing and trial of motions and pleas not involving the question of guilt or innocence on the merits. It is sufficient if the minutes show his presence at the arraignment, trial, verdict and sentence. 32 Ann 560; 34 Ann. 121; 35 Ann. 9.
    APPEAL from the Twenty-first District Court, Parish of Iberia. Gates, J.

      M. J. Gmvnmgham, Attorney General, and G. H. Mouton, District Attorney, for the State, Appellee.

      JBrecmx dé JBenoudet and A. Fontelieu for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant having been convicted of larceny was sentenced to eighteen months imprisonment at hard labor, and appeals.

To support his appeal, he cites numerous alleged erroneous rulings of the trial judge, as set forth in several billss of exception.

1st. The first is to the overruling a motion to quash the venire, on account of alleged irregularities in the manner of drawing the same.

We have closely examined the irregularities pointed out, but we do not find them of sufficient gravity to vitiate the proceeding. Above all, we do not find that any of the acts complained of were perpetra, ted in fraud of the rights of the accused and calculated to work au irreparable wrong upon him, and uniess they are of such character the court is without authority to set them aside and annul the subsequent proceedings of the prosecution. We are not compelled to accept as conclusive the oath of the accused that the irregularities charged were either fraudulent or intended or calculated to inflict an irreparable injury.

The motion was therefore properly overruled. Section 10 of Act 44 ■of 1877; 33 Ann. 1362-1415.

2d. The next complaint, seasonably made in the lower court, was that the grand jury that found the bill was illegally constituted, because one of the members thereof was not a resident of the parish in which the prosecution was instituted.

The member in question lived near the dividing line between the parishes of Iberia and St. Martin, that is near where such line should run, for in point of fact no such line had ever been established or surveyed. The evidence left it in doubt in which parish the party had his residence. He was a registered voter in the parish of Iberia, where he sat as a grand juror.' To have registered he must have taken the registration oath and sworn that he was a resident of that parish, and the judge was therefore justified in his ruling. There was no error on this point. It was incumbent on the defendant to make good his complaint and he failed to do so by conclusive evidence.

3. There was a motion for a change of venue, which was denied. It was largely addressed to the discretion of the judge, and we are satisfied that his discretion was soundly exercised in this instance, since a review^ of the testimony fails lo satisfy us that the accused could not have obtained a fair and impartial trial in the parish where the prosecution was pending.

4. The indictment was found more than one year after the alleged offense purports to have been committed, and prescription was pleaded in bar of the prosecution under it. It was alleged in the indictment that the offense had never been made known at any time before the finding of the bill to any officer having the power to prosecute the offense.

The accused in rebuttal averred that it had been made known to an officer that could have inaugurated the -prosecution — that is, it was known to one or more justices of the peace of the parish where the offense purports to have been committed.

Admitting that a justice of the peace was one of the officers embraced in the proviso of the statutes, it certainly cannot be held that the offense liad come to the knowledge of such officer, within the intent of the statute, unless by affidavit justifying him to issue his warrant for the arrest of the accused. It was not enough that the justice had heard of the offense committed as a rumor and have had any possible effect, tlie information must have come to him in his official capacity and in the method prescribed by law — by affidavit. The judge properly overruled the plea.

5. The accused complains that a witness, after he had testified on the trial of a motion and the evidence closed, was granted leave to return and correct a part of his testimony which had been taken down, and that he, the accused, was not permitted to reopen the evidence upon the subject of inquiry.

A witness, who has testified, may be permitted to correct his testimony. This right could not be denied him, but such correction could not be considered as reopening the evidence, and the defendant was not authorized thereby to offer further evidence upon the matter then in hand: his claim to do so was properly denied.

6. After the testimony in chief for the State and the defense had been taken and a witness for the State had testified in rebuttal, the defendant offered witnesses in rebuttal, and they were not allowed to testify on objection of the State’s counsel. The court refused to permit them to testify for the reason stated that the evidence was closed. This was so, and the defendant had no legal right to offer witnesses to rebut the testimony given in rebuttal by the State; unless in an exceptional case rarely to occur. It was a matter lying in the discretion, of the judge. It was a mere privilege asked, not a legal right, and the court could legitimately refuse to grant it.

7. The defendant had produced a witness, who swore that he, defendant, had bought the animal charged to have been stolen, from a person named. This person was called in rebuttal and was asked if he had sold the animal to the accused. The counsel for the defense objected to the question as.leading, and complains of the judge’s ruling permitting it to be answered. There was no force in the objection and it was a manner of questioning that was unobjectionable addressed to a witness offered in rebuttal. Wh. Cr. Ev., sec. 454.

8. Statements of the accused touching his ownership of the animal, the subject of the larceny, were offered and rejected.

The statements in question were not made at the time of the alleged taking, nor when the animal was found in possession of the accused, they formed, therefore, no part of the res gestee, and were evidently to be regarded as self-serving declarations and were clearly inadmissible.

9. The defendant complains that, in his absence from the courtroom, the judge allowed a correction of the minutes to be made supplying an omission in the record, as it then stood, touching the presentation of the bill in open court by the grand jury. The motion for correction was made by the district attorney, the defendant’s counsel being present, and the correction need not have been made in the presence of the accused. The judge can, of his motion, make any necessary correction in the minutes, especially, as in this case, the facts relating to the omission supplied and correction made were within his personal knowledge. It was the right and duty of the judge to make the correction.

In the assignment of errors filed, in which all the above matters appear, it is also charged that the record does not show that the accused was arraigned or had pleaded, nor his presence in court at all stages of the prosecution.

The arraignment and plea is shown by the record. The part of the record in which it appears, was supplied through a certiorari. He was present at the trial and when sentence was passed. It is only necessary that he be present at the important stages of the trial, and is not required at the trial of motions not directly bearing on the question of his guilt or innocence — the only issue to be determined by the jury.

10. We find another bill taken to the refusal of the judge to give certain special charges relating to circumstantial evidence.

The reason of the refusal as stated by the judge was, that all the instructions on this subject demanded by the facts of the case or in any way applicable thereto, were embodied in his charge. It was a matter that came within the discretion of the judge, and we are bound to give weight to the reasons assigned by him for his refusal to so charge and his action in the premises is not properly subject to review by this Court. We cannot conclude from the lights furnished by the record that the judge’s refusal in the premises could have had any effect on the verdict.

11. After the case was closed and the jury had retired, a request was made by them for permission to ask further questions of one of the witnesses who had testified on the trial. The request was refused. The trial had closed, the request was irregular and the refusal deprived the defendant of no legal right.

This completes the review of the proceedings, and we find no ground upon which the accused can be relieved.

Judgment affirmed.


text:
    No. 9706.
    The State of Louisiana vs. Joseph Francis.
    An appeal taken in a criminal cas© and mad© returnable witbin ten days after the order of appeal is granted, will be dismissed if the transcript of appeal is not filed on the return day, or within three judicial days thereafter. Sec. 4, act 30 of 1878; State vs. Butler, 35 Ann. 392.
    A PPEAL from the Twenty-first District Court, Parish of Iberia. Gates, J.
    if. J. Ounnmgham, Attorney General, for tbo State, Appellee.

      A. Fonteliew, L. 0. Haeher and O. O. Helahoussaige for Defendant and Appellant.
   The opinion of tbe Court was delivered by

Watkins, J.

Upon information tbe accused was charged with an assault by wilfully shooting at one Robert Lee; and from a verdict of “guilty,” rendered on the 22d of January, 1886, he prosecutes this appeal.

On Motion to Dismiss.

In this Court a motion is made to dismiss the appeal upon the ground that same was granted on the 30th day of January, 1886, returnable in ten days, and tbe transcript was not filed until tbe 26th of February, 1886.

It is required by tlie terms of section 4 of act 30 of 1878, that appeals in criminal oases shall be made returnable to this Court within ten days after granting the order of appeal, wherever the same may be in session.

Tbe indorsement of tlie cleric of this Court shows tbe transcript of appeal was only filed February 26, 1886; and, therefore, not within tbe delay provided by law.

In State vs. Butler, 35 Ann. 392, this Court said: “ By not filing tbe transcript on tbe return day, or within three judicial days following it, and by not seasonably applying for an extension within which- to file it, and not filing it in time, tbe defendant must be considered juris el de jure as having- abandoned it.”

The minutes of the court appertaining to the appeal are as follows : vix: “ Motion filed and granted, for a suspensive appeal from the above, sentence, and judgment made returnable before the Supreme Court bolding sessions in New Orleans, within ten days, according to law.”

The fault is imputable to tbe appellant. His case does not come within the provisions of act 531 of 1839, now section 36 of Revised Statutes.

It is, therefore, ordered, adjudged and decreed, that the appeal herein taken be dismissed.


author: Fenner, J.

text:
    No. 9603.
    The State of Louisiana vs. The Hibernia Insurance Company.
    Under Act No. 4 of 1882, the license is imposed on the business pursued by an insurance company in the State of Louisiana, and not on business done through branches or agencies established in other States, subject to their laws and to the taxation imposed thereby.
    Section 7 of the act applies the same rule of graduation to home companies and to foreign companies transacting business here through branches or agencies; and it might, with equal force, be contended that foreign companies were to be taxed according to their premiums earned at home as well as here, as that home companies should be taxed according to their premiums earned through like agencies in other States.
    “ Rebates ” being a deduction from, stipulated premiums allowed in pursuance of antecedent contract, the difference constitutes the only premium actually earned by the company, and in estimating the gross amount of premiums the rebates are properly deducted.
    Inasmuch as the basis of graduation is restricted to premiums received for business done in the State, it is self-evident that the deductions allowed should suffer the same restriction, i. e. the only return and unearned premiums and rebates deducted should be those arising from and connected with the business done in the Slate.
    It seems probable that, in this respect, the defendant has not complied with the law. but as the evidence is not sufficient to fix the license according to this view, non-suit must be given.
    PPEAL from tbe Civil District Court for the Parish of Orleans. Lazarus, J.

      John MeLnery and W. JB. Somerville for Plaintiff and Appellee:
    1 “ Gross premium,” in the license act, includes all premiums, from whatever source.
    2. Exemptions from taxation are to be strictly oonstrued, and as “ rebates ” are not mentioned among the items to be deducted from the “gross premium,” they cannot be allowed. Act No. 4, 2d Ex. Sess. 1881, p. 70.
    3. A license is a personal privilege to pursue a certain vocation, and the amount fixed, to be paid by the license payer, cannot he construed as a tax on income or otherwise, and made subject to the laws governing property taxes.
    4. A State may levy a tax on gross earnings of a corporation, regardless of whether they are earned within or outside of its boundaries. 15 "Wall. 284; 14 Otto, 595; 18 "Wall. 206,

      J. O. Gilmore for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

This case involves the*construction and constitutionality of the sections of Act No. 4,of 1882, regulating.the .license'taxation of insurance companies.

The pertinent provisions are the following:

Section 1 of the License Act, page 52, provides: “That there is hereby levied an annual license tax for the year 1882, and for each subsequent year, upon each * * * corporation pursuing any * * * business in the State of Louisia/na, etc.

“ Sec. 2. That on the 2d day of January, 1882, and each subsequent year, each tax collector throughout the State shall begin to collect, and shall collect as fast as possible from each of the * * * corporations 'pwrsuMig within his district or pm'ish any '* * * business a license tax as hereinafter graduated.”

“ Sec. 7, p. 68. That for every business conducted by an insurance company * 3 * or ñrm doing an insurance business of any kind 3' * * in this State, whether located here or operating through a branch department * * * the license shall be based on the gross annual amount of premium, etc.

“Provided, that the gross amount of annual premiums shall not include unearned and return premiums and reinsurances.” Act No. 4, 2d Ex. Sess. 1881, pp. 68 and 70.

.. .The defendant company not only transacts business in this State, but lias also established offices in various other States where it conducts the business of insurance on property located in such States, in accordance with their laws and subject io such license taxes as are there imposed.

.In formulating the published statements required by Section 1784 of the Revised Statutes, the company set forth the entire amount of premiums received by it on all insurance, whether in. this State or elsewhere; but in estimating the annual amount of premiums according to which its'license tax was to be graduated, it deducted those received .on account of its business done in other States, and it also deducted as “unearned and return premiums.and reinsurances” the rebate allowed tó-insurors.

Upon the amount thus fixed the company has paid the proper tax to the tax collector. ' :

The State now claims, in this suit, that said deductions were improper and unlawful, and demands the additional.tax'which would be1, due if said deductions had not been made.

The defendant resists on the double grounds, viz:

ISt. Tliat it has paid all that is due under a proper’construction of the law. " ." . :

2d. That if the law could be construed as taxing its business done in other States, it would be violative of the Constitution of the State and of the United States.

Wo find no necessity for considering the constitutional questions presented. The terms of the law would have to be very clear and unambiguous, to command our assent to a construction of it, which .would sanction a legislative intent to impose a license tax upon business pursued by the corporation in a different State, or even to refer to the receipts of such business as a basis for the graduation of a license tax.

Ear from being unambiguous in the expression of such intent, the terms of the statute convey very clearly to our minds the contrary purpose.

The license is upon the business. It is levied on corporations “pursuing business in the State of I/ouisicma.” Sec. 1.

Section 2 directs the tax collectors to collect from “corporations pursuing, within his district or parish, any business,” etc.

Section 7 applies to all insurance companies doing business “in this State, whether located here or operating through a branch department.” etc., and fixes as the basis for graduation “the gross annual amount of premiums.” This basis applies equally to home companies and to foreign companies transacting business here. It might as well be contended that foreign companies were to be taxed according to the amount of their premiums earned at home as well as in this State, as that home companies should be taxed according to their premiums earned on business transacted through branches in other States as well as on business transacted in this State.

The statute applies precisely the same rule to home and foreign companies, and we consider it perfectly clear that the premiums referred to are premiums derived from business transacted in this State.

It only remains to be considered whether the “rebates” are to be deducted in estimating the “ gross annual amount of premiums.” The law authorizes the deduction of “unearned and return premiums,” and hence it is contended that it excludes deduction of “rebates.” But we think it very clear that in using the term “gross amount of premiums,” the law refers to premiums actually received or earned; and as, by the terms of their contracts, the companies allowing such rebates 'only receive the difference between the premium stipulated and the rebate, it seems clear that such difference, only, constitutes the gross premiums earned. .The contracts are made with the full knowledge and understanding that such rebates are to be allowed, and it is a mistake for the State to say that they are mere voluntary returns by the company. ... ...

Having thus expressed oui views as to tlie construction of the law, we would add that as the basis of graduation is restricted to the business done in the State, the deduction allowed should suffer a like restriction — that is to say, the only return premiums, unearned premiums and rebates which should be deducted are those arising from and connected with the business done in this State. This is self-evident. The record is barren of evidence necessary to determine the amount of license on this basis, and as the State is the actor in the proceeding, we sliali dismiss the rule as in case of non-suit.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed; and it is now ordered and decreed, that the rule taken by the State be dismissed as in non-suit, the State paying costs in both courts.


text:
    No. 9722.
    The State of Louisiana vs. Hilaire Hanks et als.
    1. State vs. Alexander Balize affirmed.
    2. Proof administered of tke previous prosecution of another ‘ person " accused of same "offense” is not proof of knowledge by tke prosecuting officer tliat the accused had committed tlie offense, and he cannot thereby sustain his plea of prescription.
    A PPEAL from the Twenty-fifth District Court, Parish of Lafayette. jlA. DeBaillon, J.

      M. J. Guwnmglicim, Attorney General, and liobt. G. Smecles, District Attorney, for the State, Appellee.

      Olías. JD. Caffery for Defendants and Apellants.
   The opinion of the Court was delivered by

Watkins, J.

The accused were charged, upon information of the District Attorney, with stealing a horse, the property of Sevigné Dull on, on or about the 15th of May, 1881, and the information recites that said offense has not been made known to the officer having authority to direct the investigation thereof within the time necessary to take the same, out of the saving clause of the Statute of Limitation.” To this information, two exceptions are urged, viz:

1st. Prescription of one year.

2d. The property stolen, is insufficiently described to put the defendants on their guard.

From a judgment oí the court a qua sustaining the plea of prescription, the State has appealed.

Motion to Dismiss.

In this Court the counsel for the accused seeks to dismiss the appeal, on the ground that the record contains no bill of exception, nor assignment of error; and supports his motion by reference to various authorities.

In State vs. Alexander Balize, recently decided, and not yet reported, we held: “When the record enables the court to decide on the merits, either party may, at any time, refer the court to any error apparent on its face, without making a formal assignment thereof; ” and, upon examination of the authorities cited for accused, we find in accord therewith the following, viz: 20 Ann. 389, State vs. Behan; 20 Ann. 402, State vs. Morel; 20 Ann. 402, State vs. Krepple.

The only mode of bringing the facts of a criminal case before this Court is by a bill of exceptions. 32 Ann. 819, State vs. Green Red; 25 Ann. 417, State vs. Socha; 32 Ann. 842, State vs. Nelson; 35 Ann. 543, State vs. Sherard; 36 Ann. 158, State vs. Miller; 36 Ann. 185, State vs. Wm. Green.

Motion to dismiss overruled.

On the Merits.

The proof adduced, tó traverse the averment of the information, found in the record, consists of a similar information of date October, 1884, charging one Thomas Smith with the commission of same offense; and that he was arraigned, and a jury empanneled to try the cause; but same was withdrawn and a nolle prosequi entered after the testimony had been adduced and the accused discharged.

It is also admitted that the “offense had been examined by the grand jury, at one time, the date of which is not given, except as last year, I'think.”

Revised Statutes of 1870, section 986, provides: “No person shall 'be prosecuted or punished for any offense, wilful murder * * * * excepted, unless the indictment or presentment for the same shall be found or exhibited within one year next after the offense shall have been made known to a public officer, having the power to direct the investigation or prosecution.”

Stripped of unnecessary verbiage and we have : No person shall be prosecuted for an offense unless indicted within a year after it was denounced to a public officer.

It is clear that the indictment of Thomas Smith previously, did not exonerate defendants, who are indicted for the same offense now.

There is neither mutuality or identity of parties. Even in a civil suit the previous citation of A, would not interrupt prescription as to B, and the converse is equally true.

We decline to accept such an interpretation of the Statute of Limitation of prosecutions.

ft is, therefore, ordered, adjudged and decreed, that the judgment appealed from be avoided, annulled and reversed; and, it is further ordered, adjudged and decreed, that this cause he remanded to the court a qua and the information reinstated, in order that such further proceedings he taken as justice may require; a.nd that the accused parties pay cost of both courts.


author: Bermudez, O. J. Fenner, J.

text:
    No. 9568.
    John Pasley vs. Ann McConnell et al.
    Appellants have a right to join in one motion and in one bond, when the suit is a unit and one judgment only is rendered in it.
    A bond conditioned for an amount ample enough to cover costs, and which is that fixed by the court in the order granting the appeal, is sufficient, to support a suspensive appeal taken from a judgment in a petitoiy action, where the property in dispute it? under sequestiation in the custody of the sheriff, and no money claim is allowed h.v the court.
    A bond of appeal need not ho signed by appellants, or by any one for them.
    In an action by a judgment debtor to annul a sheriff’s sale of his property seized under a judgment against him, the adjudicated cannot question his original title, because that would destroy the sole foundation of his own.
    When property has been sold in execution of a judgment during the pendency of a devolutive appeal, the subsequent reduction of the amount of the judgment by the appellate court has no effect upon the validity of the title acquired at the sale, even if the pur chaser he the judgment creditor. The latter is only hound to restore the excess of the price which may have been applied to her original j.udgment.
    The non-payment of accrued taxes does not destroy the validity of the adjudication.
    The rule of Art. 684, O. P. prohibiting sale unless the price bid exceed prior mortgages and privileges, applies exclusively to special or conventional mortgages.
    The mortgage certificate in this case showed no conventional mortgages or privileges exceeding the hid.
    The registry of seizure of immovable property in New Orleans, under Act 180 of 1857, oper-* ates merely as a substitute for actual seizure and possession by the sheriff, and has nothing to do with the establishment or notice of a privilege. The privilege resulting from such seizure arises not from its registry, hut from its actual continuance as a subsisting seizure.
    When a prior special mortgage has been cancelled and erased from the records prior to the sale, in pursuance of a final judgment to that effect by a court of competent jurisdiction, and does not appear on the mortgage certificate read at the sale, the judgment debtor cannot, long afterwards, claim the nullity of the sale on the ground that the price bid did not exceed the amount of such cancelled mortgage-

      APPEAL from tlie Civil District Court for the Parish of Orleans. . Tissot, J.

      W. 8. Benedict for Plaintiff and Appellee.

      ,T. Magioni and J. Timony for Defendants and Appellants :
    I.
    Where appellants were not condemned to pay any sum of money, or deliver any property, the bond need only be to cover costs. 30 Ann. 801.
    Where an appeal is taken from a judgment, and the property is in tlie bands of the officer of the court, under an orderissued on the petition of plaintiff and appellee, a bond fixed by the judge for an amount to cover costs is suspensive. 7 IN. S. 352; 10 Ann. 345; 27 Ann. 231, 685.
    Bat where tlie appellant has complied with the judge’s order and given bond in the sum fixed, if the bond is insufficient for a suspensive appeal, still it is good for a devolutive appeal. 15 Ann 333.
    Where the certificate of the clerk is in the usual and proper form, and the appellee finds that the evidence, wliicb is necessary to him, is not in the record, he should have suggested a diminution of the record and called for a certiorari. 27 Ann. 444.
    Where the ground is that the appeal bond is not conditioned as law directs, without setting forth the particular defects contemplated by appellee, that is not sufficient. 17 Ann. 78.
    II.
    A judicial declaration made by a party, that certain property did not belong to Mm, will be estopped from claiming ifc, when it is afterwards decreed that the property did belong to Mm, and that be was only screening it from Ms creditors by means of simulated sales. 32 Ann. 979.
    Where a party shows a judgment, execution and deed of sale, or proces verbal of sale, it is grima facie evidence of a valid alienation, and the party attacking the sale must show ' the forms of law have not fieen fulfilled. 19 L. 307.
    When a party appoints an appraiser at a sheriff’s sale, be cannot afterwards be beard to controvert the proceeding to which he had given his assent. 3 Ann. 453; 27 Ann. 314.
    Where a party has directed the shoriff to sell the property in block, that is more than the appointment of an appraiser; it gives to the execution sale the force and effect of a voluntary sale. GL."
    A sale of property under execution, on a judgment from which no suspensive appeal has been taken, will divest the title of the owner, though the judgment he afterwards reversed. 5 IN'. S, 214; 1 B. 94; 2 Ann. 221; 15 Ann. 99; 25 Ann. 515.
    The validity of a sheriff’s sale is not affected by tlie fact that the accrued taxes on tlie property conveyed by the deed bad not beeu paid. 29 Ann. 211.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, O. J.

Tlie appellee claims that the appeal should be dismissed, because:

1. The defendants have joined in one motion and given one bond only;

2. The bond is not properly conditioned;

3. The bond is insufficient in amount;

4. The bond is not signed by tlie appellants, or either of them, or by attorney. ....

i.

The suit is for the recovery of certain real estate and the revenue thereof.

The property in dispute was sequestered and is still in the sheriff’s custody.

The recovery is asked contradictorily with the several defendants against whom, without any discrimination, judgment was rendered in plaintiff’s favor, without passing on his money demand, which was reserved.

There is but one petition and one prayer, one substantial defense although there be several answers, one judgment only was rendered.

It is not perceived why all the defendants, who are alike dissatisfied with the finding against them, should not, by one and the same motion, appeal from it and, in pursuance of the order of court allowing the appeal, furnish but one bond, for the amount prescribed.

The law does not provide that this shall not be done and the court is impotent to establish prohibitions where none has been imposed.

The bond is in terms sufficient to recover in case of affirmance of the judgment appealed from as well against the appellants as against their surety. Succession of Clark, 30 Ann. 801.

II and III.

It cannot be required that the bond be given under the provisions of art. 577, C. P., although the judgment appealed from decree the delivery of real estate. The reason is obvious : that the property is not in the possession of the defendants, but in the custody of the law. The sheriff holds it and collects its revenues for account of the party or parties who may be ultimately adjudged entitled thereto.

In such instances, it has been repeatedly held, that a bond for costs is sufficient. This is the more so, where the order allowing the appeal fixes the amount of the bond, the law being silent as to it, and the bond is furnished exactly in accordance with the terms of the order. 30 Ann. 801.

IV.

It is unnecessary that an appeal bond be signed by the appellant. The bond in this case ivas, however, signed for the appellants, whose names are written at foot thereof, by one of their counsel, who so attests expressly.

The motion to dismiss is overruled.

On toe Merits;

Fenner, J.

Mrs. McConnell, in May, 1882, recovered a judgment against Pasley in the Civil District Court for $14,660.59, from which Pasley took a devolutive appeal.

During the pendency of said appeal, Mrs. McConnell caused & fi. fa. to issue on her judgment, under which various pieces of real estate belonging to Pasley were seized and advertised for sale.

Pasley made no opposition to the proceeding, but, on the contrary, appointed an appraiser and gave his consent that the property should be sold in block.

The property was appraised at $13,900, and was adjudicated to Mrs. McConnell at the price of $9,500 cash. •

There being unpaid taxes due on the property the sheriff withheld his deed, but, these taxes having been subsequently paid, the sheriff gave to Mrs. McConnell the groces verbal of the adjudication, which was duly registered in the conveyance office in January, 1883. No sheriff’s deed has ever been passed, for what reason the record does not advise us.

It is shown that the price has never been paid in money, and it does not appear how it was imputed — whether as a credit upon the writ or retained bv the purchaser for satisfaction of anterior mortgages ; but the purchaser received delivery of the property in January, 1883, after payment of the taxes.

On November 17, 1883, she made a elation en paiement of the property to her three sons, John, William and Robert Ermon.

In January, 1884, upon the devolutive appeal of Pasley, this Court rendered its decree reducing the judgment of Mrs. McConnell from $14,660.59 to $2,980.

Thereafter, on January 28, 1884, Pasley brought the present action against Mrs. McConnell and the Ermons, her transferrees, in which he alleges the nullity of their titles on various grounds, and prays to be decreed the owner of the property, to recover possession thereof and to have an accounting of the revenues.

I.

The pleas of estoppel filed by defendant, based on certain judicial allegations of Pasley denying ownership of the property made in other suits m support of transfers made by himself which were set aside as fraudulent simulations, have no merit.

Defendants have no title to this property, except the title of Pasley, and they cannot dispute his ownership of the property at the date of sale without thereby destroying their own title.

II.

The reduction of the judgment of Mrs. McConnell by this Court has no effect upon her title as purchaser at the judicial sale pending the devolutive appeal.

She liad the right, under the law, to execute her judgment and to become the purchaser at the sale. Baillio vs. Williams, 5 N. S. 214; Williams vs. Gallien, 3 Rob. 94; Farrar vs. Stacy, 2 Ann. 210; Graham vs. Eagan, 15 Ann. 99; Waters vs. Smith, 25 Ann. 515.

We are not called upon to discuss what would have been plaintiff’s rights, had Mrs. McConnell’s judgment been entirely reversed.

In Graham vs. Eagen, above quoted, it was held that, in such case, where plaintiff in execution is purchaser of property sold in execution of a judgment subsequently reversed on a devolutive appeal, he is obliged to restore the property itself and place defendant in the same condition he would have occupied if no such judgment had been obtained against nim. But this decision is in direct conflict with that in Farrar vs. Stacy, 2 Ann. 210, which is not referred to ; and, moreover, the Court expressly held that, where the judgment was only partially reversed, leaving a just ground for the sale, the obligation of the purchaser would only be to restore the excess of the price.

Under all the authorities above quoted, and especially the strikingly similar case of Waters vs. Smith, 25 Ann. 515, such is the extent of Mrs. McConnell’s obligation, if the adjudication to her was otherwise valid.

III.

The lack of the sheriff’s deed has no significance whatever.

' The Code of Practice explicitly provides that the adjudication of itself alone,” consummates the sale and passes the title and, at least unless its effect is destroyed by the failure of the purchaser to comply with the terms of his bid, it is all-sufficient and the sheriff’s deed merely supplies additional evidence of the title. (C. P. 690; H. D. Execution V (d) 12) 2.

IV.

The grounds of nullity of the sale urged are two, viz:

1st. The non-payment of the taxes due on the property.

The record shows that the taxes have been paid. Besides, Section 69 of Act 96 of 1882, relied on by plaintiff, is only a repetition of former laws on the subject, under which it has been held by this Court that the validity of the adjudication is not affected by non-payment of the accrued taxes. Jouett vs. Mortimer, 29 Ann. 206.

2d. That the price of adjudication did not exceed the amount of privileges and mortgages recorded against the property.

Nothing is better settled than that the rule of Art. 684, C. P., that there can be no sale unless the price exceed the prior privileges and mortgage, applies exclusively to special or conventional'mortgages and" not to judicial or general mortgages. 1 Ann. 32, 426; 2 Ann. 617; 5 Ann. 574, 736; 7 Ann. 614.

Referring to the certificate of the recorder of mortgages, of even date with the sale and then read, we find it exhibits no special mortgage except one in favor of E. Lacioix for $262 50, and no privilege anterior to that of Mrs. McConnell except such as may result from íegisfry, a writ issued in execution of a judgment of Mrs. LeBlane, which was recorded in June, 1875.

Under the Act of 1857, No. 189, the only purport and effect of such a registry was to operate as a substitute for actual seizure and possession by the sheriff and to dispense with the appointment of a keeper, and it had nothing to do with the establishment or notice of a privilege. If the writ was still in force and in the sheriff’s hands, his duties under the law were plain, but considering the length of time which had elapsed and the absence of all reference to it in the sheriff’s proceedings, we are bound to assume that it had lapsed. Its operation as a privilege arises not from the registry, but from its actual continuance as a subsisting seizure, which is not established.

Plaintiff, however, claims that there existed another special mortgage for $10,000, of superior rank to Mrs. McConnell, which had been duly recorded.

This mortgage had been decreed null and void and erased from the records, in pursuance of a final judgment to that effect rendered by the civil district court in a direct action brought by Mrs. McConnell against the mortgagee named in the act, to wit, one Cousins. He was a non-resident and was brought into court by the appointment of a curator acl hoc. Considering the object of the action, viz: the removal of an apparent incumbrance from immovable property situated in this State, which stood in the way of another incumbrance thereon, we think the action partook of the nature of a proceeding in rem to an extent sufficient to take it out of the rule of Pennoyer vs. Neff, 95 U. S., p. 714, and Ice Co. vs. Laughlin, 35 Ann. 1184, and that the service on the curator ad hoc was sufficient “ process of law” as against Cousins.

To the argument that the mortgage notes were negotiable and may, therefore, be in the hands of third persons, it is sufficient answer to say that the claims of such third persons will be considered when they are presented by them.

The evidence in this case shows that at least $8000 of the notes were in possession of Pasley long after the mortgage and up to the last tidings of them, and there is no evidence that they have been parted with.

At all events, the sheriff was bound to respect the decree of the Civil District Court and to adjudicate the property, without reference to the mortgage so cancelled and erased.

V.

So far as the non-payment of the price is concerned, under the condition of affairs existing at the date of adjudication there was no payment to be made. Mrs. McConnell’s writ alone called for a larger sum than the amount bid, if it was applicable thereto; and so far as the prior general mortgages were concerned, their remedy was against the proceeds by third opposition or against the property by the hypothecary action. Alford vs. Montejo, 28 Ann. 593.

In conclusion, we would say that Mrs. McConnell is bound to pay the price of adjudication to whomsoever is entitled to it. Upon removing the apparent anterior encumbrances, plaintiff will be entitled to recover the excess of the price over the amount of her final judgment. As this action presents no feature of a claim for the price or of the resolutory action for its non-payment, but seeks solely the nullity of the adjudication, we have no occasion to discuss such questions now or the rights of Mrs. McConnell’s transferrees.

We simply determine that the present action cannot be maintained.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and that there be now judgment in favor of defendants, dismissing plaintiff’s suit at his cost in both courts.


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    No. 9701.
    The State of Louisiana vs. Nathan Mason and William Richardson.
    1. An objection urged, after verdict, that the accused was not served with the list of the jury, comes too late. 23 Ann. 620, 621.
    2. An accomplice joined in the same indictment with the prisoner to he tried, may testify, provided ho bo not put on trial at the same time. 23 Ann. 78; 25 Ann. 522; 7 Ann. 379.
    3 While the jury may convict on the testimony of an accomplice alone, the judge should caution them, in prudence, not to return a verdict of guilty unless such evidence is corroborated — hut this Court will not control him as to the language be shall employ in giving them such instructions.
    APPEAL from the Seventh District Court, Parish of Franklin. Mlis, J.

      M. J. Cunningham, Attorney General, and L, A. Thompson, District Attorney, for the State, Appellee:
    The action of tho trial judge in overruling a motion in arrest will not be reviewed on appeal unless a bill of exception is taken thereto.

      Compelling accused to go to trial without a copy of the venire, furnishes no legal ground for a motion in arrest. Such complaint must be presented by bill of exceptions to thus being forced into trial prematurely, over his objections made at the proper time, as shown by the minutes, and to the ruling objected to a bill of exceptions must be taken: otherwise, it cannot be reviewed.
    The circumstance that a witness maybe an accomplice, can only affect bis credibility, of which the jury is tbo exclusive judge; and a conviction based upon his uncorroborated evidence is legal. 25 Ann. 522; 35 Ann, 135.

      J. W. Willis for Defendants and Appellants:
    The testimony of an accomplice is insufficient to secure a conviction, unless ho is corroborated by other evidence connecting the accused wilh tho offense committed, and such corroboration is not sufficient if it merely shows the commission of the offense. Bisli. on Or. Procedure, 1 vol. 1169, 1150 and 1170; "Whar. Or. Ev. § 441; "Whar. Cr. Law, § 789 ; Greenleaf on Ev. 1 vol. § 380; Phillips on Ev. 1 vol- pp- 37 and 41; Hales P. 0.1 vol. § 305; 23 Aim. 79; 68 Mo. 52; 64 Mo. 394; 52 Ga. 57; Hawley’s American Or. Reports, 1 vol. p. 194; 3 vol. p. 326 ; 55 Miss. 455 ; 34 Iowa, 453; 50 Cal. 480; 39 Cal. 403 ; 1 Tex. 301; 43 Tex. 170; 34 Tex. 133; XT. S. vs.Troax, 3 McLean, 224; XT. S. vs. Harris, 2 Bond, 317.
   The opinion of the Court was delivered by

Watkins, J.

William Richardson, one of the accused, charged with entering in the night-time a certain store-house of one T. A. Scott, and that same lie did wilfully, feloniously and burglariously, break and enter, with the intent to steal, take and carry away certain goods, mon'ey, etc., was duly convicted, and sentenced to three years imprisonment in the penitentiary, and from the verdict of guilty, and the judgment of the court, he prosecutes this appeal.

His counsel rests his case on two grounds, viz:

1st. The refusal of the trial judge to charge the jury as he had requested.

2d. The accused having been ordered to trial without being previously served with a copy of the venire.

I.

To the former objection, it is sufficient answer to say that the indorsement of the sheriff on the information shows that the accused was served on the 8th of February, 1886, and the minutes of the court show that the trial occurred on the 12th of same month — hence, “two entire days” intervened between the day of service and the day of trial; and the law was fully complied wirh. R. S. sec. 992.

Besides, the objection being made, after verdict, that the accused was not served with a correct list of the jury comes too late. 23 Ann. 620, State vs. Vester; 23 Ann. 621, State vs. Axiom.

H.

The refusal of the trial judge to give the jury a requested cha.rge is made the subject of a zealous and earnest argument by the.counsel for the accused.

It is ipsisimis verbis: u Gentlemen of the Jury: If you believe from the evidence that the witness, Tom Smith, was present and aided and assisted, and encouraged the burglary charged to have been committed with a criminal intent, you must acquit the accused, Wm. Richardson, unless you find that the testimony of the said witness, Tom Smith, is corroborated by other evidence connecting the accused, Wm. Richardson, with the offense charged to have been committed; and the corroboration is insufficient if it merely shows the commission of the offense.”

’ It has been held by this Court’s predecessors that an accomplice, joined in the same indictment with the prisoner to be tried, may testify; provided he be not put on trial at the same time. 23 Ann. 78, State vs. Boyone and Abrieil; 25 Ann. 522, State vs. Prudehomme; 7 Ann. 379, State vs. Conner; 4 Ann. 435, State vs. McClaire

The diligent counsel has collected quite a number of common law authorities, as well as decisions of the courts of other States, to the general effect that it is the duty of judges, “while explaining to the jury their right to convict on it” — (the testimony of an accomplice)— “alone, to caution them concerning it, advising them m prudence, not to return a verdict of guilty unless in their opinion it is confirmed by evidence from a purer source.” Bishop on Crim. Procedure, 1 vol. secs. 1169, 1150, 1170, et sequiter; Wharton’s Crim. Evidence, sec. 441; Wharton’s Crim. Law, sec. 789.

Conceding, arguendo, the correctness of the rule mentioned as prevailing elsewhere, this record does not disclose that the witness in question was not corroborated by other witnesses.

While, under the given state of facts indicated in opinions of the learned authors quoted, the rule may be correct, yet the record under consideration should disclose their applicability in order to render the requested charge a proper one.

In the record appears an extract from a distinct and different charge, given by the judge a quo in lieu of the one demanded for the accused, and in which he says to the jury: “ 1 will simply say that in weighing the testimony of one who has turned State’s evidence, you should take this circumstance, into consideration, as you would any other circumstance, which might affect the testimony of a witness who testifies— and if you are satisfied that this circumstance, or any other, has been of sufficient weight to induce him to speak falsely, and that he had done so, it would be your duty to reject such testimony.”

• This charge we think responds to the just demands of the accused, and that he has no reasonable ground of complaint.

Judgment affirmed.


text:
    No. 9692.
    The State of Louisiana vs. T. M. Smith.
    A verdict (on an information containing two counts) in these words, “ Guilty — with intent to murder,” being responsive to the first count, is not defective for not containing the words : with a damgerous weapon, which are necessarily implied.
    PPEAL from the Criminal District Court, Parish of Orleans. Balcer, J.

      M. J. Oumvingham, Attorney General, and Lionel Adams, District Attorney for the State, Appellee.

      Jas. O. Walher for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant was prosecuted on two counts:

1. Shooting with intent to murder.

2. Inflicting a wound less than mayhem.

The jury returned a verdict in the following words :

Guilty — shooting with intent to murder.”

On that verdict the defendant was sentenced to three years at hard .labor. He appeals.

He contends here that the verdict is special, and to cover' the first count of the information should express: either that the accused was guilty of shooting and wounding with a dangerous weapon with intent to murder, or that the accused was guilty of shooting Louis Smith with a dangerous weapon with intent to murder.

The complaint is therefore simply : That the verdict is defective for not containing the words : with a, damgerous iveafou, which are necessary to complete it.

This Court has hold, that an information for assault by willfully shooting need not allege that the shooting was done with a dangerous weapon,” saying: “ The common sense of prosecuting officers, judges and juries may be relied on to protect persons from imprisonment in the penitentiary for shooting with pop-guns, or like innocent playthings.” State vs. Coguovitch. 34 Ann. 529.

If the words be not essential in an information, a fortiori, need they not be included in a verdict of Guilty — shooting with intent to murder;” where the information specifically sets forth that the accused, with a certain dangerous weapon, to wit: a pistol, feloniously ■did shoot one Louis Smith, with intent then and thereby, feloniously, ■'wilfully and of his malice'aforethought, to kill and murder the said Louis Smith. ••"■'■'■ ' '

As the information contains two counts it was necessary for the jury, as they found the accused not guilty on the second, to have, in their verdict of guilty,” added the words: shooting with intent to murder,” in order to show that they found Mm guilty, as charged under the first count. 1 Bishop on Cr. Proc., §1005, a.

The Court, m this case, could pass sentence without supplying by intendment or strained implication that the shooting was done with a dangerous weapon.

Judgment affirmed.


author: Poci-ié, J.

text:
    No. 9696.
    The State of Louisiana vs. Wyatt Creech.
    The requirements of the jury law of this State contemplate the trial of causes by the jurors on the regular venire as long as any of them can be secured or obtained, and they consider talesmen simply in the light of substitutes for the jurors of the regular venire, who are to be called or used only when regular jurors are not to be had.
    Hence, in a case in which a list of talesmen has been summoned under the orders of the court, because the regular venire had been exhausted, and it appears that while proceeding with the list of talesmen, a jury previously engaged on a case, reports and is discharged, it then becomes the duty of the trial judge to resume the call under the regular venire, until that be exhausted, before continuing to form a jury from talesmen.
    The ruling of a trial judge in rejecting a juror under a challenge for cause by the State, affords of itself no legal ground of complaint to the accused. The right of peremptory challenge is a right to reject but not to select.
    APPEAL iron the Tenth District Court, Parish of De Soto. Sail, J.

      M. J. Cunningham, Attorney General, I). C. Scarborough, District Attorney, and JE. W. Sutherlin, for the State, Appellee.

      Q. J$. Sead, J. B. Lee and J. F. Smith, for Defendant and Appellant.
   The opinion of the Court was delivered by

Poci-ié, J.

Convicted of manslaughter under a charge of murder, the defendant seeks relief by two bills of exception.

I.

The first bill involves the formation of the jury. After exhausting the list of jurors of the regular venire who had answered, the court ordered twenty-five tales jurors, and had therefrom selected two jurors, and had drawn from the box five additional names thereof, when a jury composed mainly of jurors of the regular venire, engaged up to that time on another case, appeared, reported and were discharged. Whereupon the court ordered, on motion of the district attorney,'that the sheriff should cease to draw from the list of talesmen, and to resume the calling of jurors of the regular venire. Counsel for the accused objected to the execution of that order and insisted on his right to continue the calling of talesmen jurors.

They strenuously contend here that the course pursued by the trial judge was irregular, illegal, and grievously injurious to the accused. But they had made no attempt to show wherein their client was injured by the ruling complained of.

Our system of jury laws does not contemplate the use of talesmen in the trial of criminal causes when jurors of the regular venire are present and within the reach of the court. The very nature and essense of talesmen are that they are legal substitutes for the regular venire, when the latter is exhausted by challenges, by the absence of members thereof, or when a portion of- the same is empannelled and actually engaged on another case.

But from the moment that a jury thus engaged is relieved from that work the jurors who composed it are then before the court, and from that moment the reason for the call or use of substitutes ceases to exist, and the plain duty of the court is thence to proceed with the regular venire.

Any other course would he vicious and in clear violation of law. That was the course pursued by the trial judge in Atkinson’s case, 29 Ann. 543, and for that precise reason his ruling was reversed, the sentence appealed from set aside and the case remanded.

II.

In their second bill counsel charge error in the ruling of the judge in passing on the qualification of a juror.

The challenge for cause by the State was sustained over the objection of defendant’s counsel, who urged then, as they do now, that the cause of alleged disqualification was not sufficient.

It is not suggested that at that stage of the proceedings, or even during the whole trial, the accused had exhausted his peremptory challenges, and that in consequence of the judge’s ruling he had been compelled to accept an obnoxious juror. His counsel conformed the right of challenge, which is granted as a means of rejecting jurors with the exercise of that right, as a means of selecting- jurors.

It is no longer an open question iu criminal jurisprudence that the rejecting of a juror by the trial judge, even if erroneous, affords of itself no legal ground of complaint to the accused.

The point was submitted to this Court in the case of the State vs. Shields, 33 Ann. 1410, and we therein said:

“Exception is taken to the action of the court in excusing a juryman, fora cause which the defendant contends was not sufficient under the law. Admitting the cause was not sufficient, the judge exercised his discretion in determining the question, and his error in such matter would afford no ground for relief. 1 Bishop Cr. Pr. §926; State vs. Ostrander, 13 Iowa 435.” See also Wliarton Crim. Pl. and Pr. §620; State vs. Barnes, 34 Ann. 395; State vs. Eloi, ib. 1195; State vs. Farrer, 35 Ann. 315.

We therefore conclude that the accused has had a fair and impartial trial.

Judgment affirmed.


text:
    No. 9552.
    D. C. McCan & Son vs. Alfred Bradley—Terry, Intervenor.
    The unpaid price of sale of movable property, unless it be specially provided to the contrary, is secured by vendor’s lien.
    A sale and counter-letter of movable property, recorded in the conveyance office in which transfers and contracts relative to real estate alone are required to be registered, are not notice to third persons equivalent to knowledge.
    A contract, evidenced by an act of sale and a counter-letter, which together show that the sale, made part cash and part, on time, although not designed by the parties to be absolutely final and conclusive, but intended to enable the vendor to use the notes in his business, the title to be put back in the vendor’s name as soon as the notes issued are retired and returned to the purchaser and drawer, does not establish asimulation, but a real transaction, by which the title passed.
    Purchasers of such notes, for a valid consideration and before maturity, are entitléd to recover the amount thereof, with lien on the property sold.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      A. J. Murphy for Plaintiffs and Appellants.

      JS. JS. Moise and W. JJ. Boyers for Intervenor and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action on a promissory note, said to he secured, by vendor’s privilege on what is known as the Clipper sawmill.

The defense is want of consideration; that the note represents part of the purchase price of said mill; that the sale was a simulation; that the plaintiffs never looked to defendant as purchaser, but to Terry, the vendor; that they acquired the note with full knowledge of the simulation, and that Terry is the only party liable for the note.

Terry intervened, joining the defendant, averring a respite obtained from his creditors, claiming title to the mill.

On Terry’s going into bankruptcy, his syndic prosecuted the intervention.

There was judgment in favor of plaintiffs against Bradley for the amount sued for, with costs; rejecting the demand in other respects.

From this judgment the plaintiffs appeal.

The evidence shows that Terry sold to Bradley the Clipper saw-mill for $20,000, part cash, part on credit for which notes were issued,-one of which is that sued on; that by the act of sale it is expressly stipulated that to secure the payment of the notes, vendor’s lien was retained on the mill, which it appears had been erected upon leased property, and continued in Terry’s possession.

It also establishes that a counter-letter was issued by Bradley to Terry, establishing that the transaction was a simulation, and that it was a mere method to enable Terry to raise money to tide over difficulties, the title to be put back in Terry’s -name on delivery to Bradley of the notes raised by him.

This counter-letter was registered in the* conveyance office some short time before the application of Terry to his creditors for a respite.

Tt is after the registry of tne counter-letter and the filing of the respite proceedings, but before the maturity of the note sued on, that the plaintiffs acquired it.

It is not disputed that plaintiffs acquired it for a valid consideration. ' •

The only ground upon which their demand is resisted is that they were aware of the simulation of the sale of the mill by Terry to Bradley.

No evidence has been adduced connecting them, as parties or privies, to the transaction; but it is strenuously urged that they are presumed to have had full knowledge of that fact, by reason of the registry of the counter-letter and of the respite proceedings which occurred prior to their acquisition of the note, and that the circumstance of the purchase before maturity is utterly insignificant.

While denying that the sale was a simulation and that they had any knowledge of it, the plaintiffs press that Bradley and Terry are estopped from setting up that simulation, in exoneration of liability, and that they acquired the note in good faith in the ordinary course of business, for a valuable consideration, before maturity and without notice of any equities between the parties.

It is proper to remaik that neither the defendant nor Terry’s syndic has prayed for any amendment of the judgment. So that the only question -which this Court is called upon to determine is, simply, whether or not the plaintiffs are entitled to the vendor’s lien on the mill, which was the object of the transaction, and which Terry placed on his Rilan as part of Ms assets.

Pretermitting the question whether Terry and Bradley are or are not absolutely estopped from setting up the simulation as a shieM, and conceding arguendo that the knowledge of it might impair the right to recover, the fact of such knowledge was not actually established and is riot inferrible.

The transaction was » real one. It was a sale, with a pact of redemption. The title passed to the purchaser, who was to retain it and to transfer it, but only after his notes would have been retired and handed back to him duly cancelled. The intention of the parties was the issue of notes, secured by vendor’s lien, to be used by the vendor in his business in raising money, and the retirement of the notes and the return of them to the purchaser. The whole was for the protection of third parties and of the latter, who has continued to own the mill, as his notes have not been handed back pursuant to the agreement.

The registry of the act and of the counter-letter previous to the purchase of the note by plaintiffs did not convey knowledge of any simulation: the less so, as the transaction was a reality in form and substance.

One of the plaintiffs distinctly swears that he did not know of the simulation and of the counter-letter, and after inquiry from the notary before whom the sale was passed, being satisfied he took the note.

The tiling sold was not real estate. The sale of it and the counter-letter were not required to be recorded in the conveyance office, where transfers of real estate and contracts of alienation relative thereto alone are to be part of the record. Such being the case, the plaintiffs were under no obligation to consult the records of that office, and registry therefore is not equivalent to notice and knowledge.

The idea that the plaintiffs are concluded from the fact that they voted at the meeting of creditors in the respite proceedings, can hardly be serious. It suffices to observe, if anything need be said, that they were their creditors for a paltry sum and had not yet .acquired the note sued on.

The interveuor labors strenuously to show that the mill is not immovable propert5', and therefore not liable to be mortgaged. There can be no doiibt that such is the law, but the plaintiffs do not claim a mortgage and it does not at all follow that the mill could not be affected or encumbered with a vendor’s lien. R. C. C. 3227.

It is perfectly true that this lieu is not created by consent, but springs by operation of law only. It is also incontestable that when once thus created, it continues to exist and attach, either to the movable or immovable property sold, unless it has been expressly abandoned.

The lieu in this case, far from having been given up or relinquished, was, by tbe act of sale, explicitly declared to be retained to secure tbe payment of tbe note sued on and others which had been issued and have been retired.

There is therefore no reason why tbe plaintiffs should not be recognized as entitled to tbe vendor’s lien, which they claim.

It is therefore ordered and decreed that the judgment appealed, as far as it allows plaintiffs the amount of the note sued on, with interest, cost and charges, be affirmed; that it be amended so as to allow the plaintiffs, further, vendor’s lien and privilege on the “Clipper Saw-mMl,” to secure the payment of said amount; that in all other respects it be reversed and that the intervention be rejected, tlie costs in both courts to be paid by the appellees.