text:
    No. 4088.
    State of Louisiana ex rel. Attorney General and al. v. Timothy Doherty.
    The grant of power to the Executive to remove an officer for a certain cause implies authority to judge of the existence of that cause. The power vested exclusively in Executive discretion can not be controlled in its exercise by any other branch of the government.
    'The statute of 1871, creating additional remedy for embezzlement, breach of trust or fraud, on the part of collectors of taxes, in no manner conflicts with section 1593 of the Revised. .Statutes of 1870, and the latter is not therefore repealed by the former.
    APPEAL from the Eighth District Court, parish of Orleans. Dibble, J. Trial by jury.

      Sor nor & Benedict and W. W. Soioe, S. Bel- • den, Attorney General, and A. A. Atocha, for plaiutiff and relator.

      S^ays <& New and T. & J. Bilis, for defendant and appellee.
    •Justices concurring: Ludeliug, Wyly and Morgan.
   Wyly, J.

Tlie Attorney General, on the information of Joseph L. 'Tharp, brings this suit in the name of the State, under the intrusion act, against the defendant for the office of tax collector of the Sixth District of the cily of New Orleans, praying that said Tharp be decreed entitled thereto, and that the defendant be restrained by injunction from administering said office, and that he be condemned .to deliver to the relator certain books and other property belonging to .the State and appertaining to said office.

The defendant pleaded the general issue, and averred that he is the .-sole and lawful tax collector for said district, having been duly commissioned, qualified and inducted into said office according to law.

The case was tried by a jury and the result was a judgment on their werdict in favor of the defendant; The plaintiffs appeal.

It appears that the defendant was appointed tax collector for the Sixth District of the city of New Orleans on the fifth of March, 1872; and the relator was appointed to said office on the eighth June, 1872, the commission of the latter reciting that he was appointed “ vice T. Doherty removed.”

The question is, had the Governor authority to remove the defendant and appoint the relator ¶

Section 1593 of the Revised Statutes of 1870 declares that “ any assessor or member of the board of assessors, or tax collector of the city of New Orleans, or any State collector, refusing or failing to da his duty, as prescribed by this act, shall be liable to dismissal from office by the Governor.”

When the Governor removed the defendant and appointed the relator he decided that the defendant had failed or refused to do his duty, because it was in this contingency only that he had the right to remove him. However erroneous the decision of the Governor as to that question may be, we do not think it can, under our system of government, be examined by the courts.

The Legislature created the office; and the law provided that the Governor might make the appointment, and for a certain cause remove the officer appointed by him.

Here the law invested the Governor with a discretionary power, which could alone be employed by him. The decision of all the courts of the State could not compel him to make the removal.

The removal of the defendant for neglect of duty was the exercise of Executive discretion. The grant of power to the Executive to remove an officer for a certain cause implies authority to judge of the existence of that cause.

The power vested exclusively in Executive discretion can not be controlled in its exercise by any other branch of the government.

“The powers of the three departments are not merely equal, they are exclusive in respect to the duties assigned to each.” Wright v. Defrees, 8 Iud. 302.

“The policy of our constitution and laws has assigned to the different departments of the State government distinct and different duties, in the performance of which it is intended that they shall be entirely independent of each other, so that whatever power or duty is expressly given to or imposed upon the Executive department is altogether free from the other brandies of the government.” Attorney General v. Brown, 1 Wisconsin 522.

To institute the inquiry as to the correctness oí the cause for which the Governor removed the defendant would be a direct attack upon the independence of the Executive, “ and a usurpation of power subversive of the constitution.” See Cooley’s Constitutional Limitations,. 187, and authorities there cited.

The defendant contends, however, that the Governor had no authority to remove him under section 1593 of the Revised Statutes of 1870 ; because by section 92 of act No. 42 of the statutes of 1871 the Auditor - of Public Accounts, upon evidence of embezzlement, breach of trust or fraud, is required to “cause the arrest of such collector,” whose official functions shall thereupon be suspended, and “ the Governor immediately on such arrest, shall proceed to appoint some competent and trustworthy person.” * *****

The repealing clause of this statute only repeals all laws “contrary to or inconsistent” therewith.

The statute of 1871, creating the additional remedy for embezzlement, breach of trust or fraud on the part of the collector, in no manner conflicts with section 1593 of the Revised Statutes of 1870, and the latter is not therefore repealed by the former.

The case of Downes v. Towne, 21 An. 490, cited by the defendant, is no authority in his behalf; because Downes held a constitutional office,, of which he could 'not be deprived according to the constitution,, except by address or impeachment.

It is therefore ordered that the judgment appealed from be annulled; and it is decreed that there be judgment for the plaintiff, condemning the defendant to restore to the relator all the books and other property appertaining to the office of tax collector of the Sixth District of the city of New Orleans, and also restraining him from exercising or attempting to exercise the duties of said office, and decreeing that the relator is entitled to administer said office. It is-further ordered that the defendant pay costs of both courts.

Rehearing refused.


source: Caselaw Access Project

author: Morgan, J.

license: Public Domain

text:
    No. 2765.
    Eureka Insurance Company v. J. W. Tobin and George A. Williams.
    Where the suit was on promissory notes given as premiums on policies of insurance to a company, and the plea in defense a want of consideration, on the ground that the policies, if issued, wore not in accordance with the instructions from the party intending to he insured to the agents of said company, and did not cover the risks stipulated in the application; and where the issue was that the policies never were issued and delivered to the applicant, the proofs, wnioh should he in the possession of the plaintiff, not being found in the record, there will he a judgment of nonsuit.
    APPEAL from the Fourth District Court, parish of Orleans. Théard, J.

      William Grant, for plaiutiff and appellant. It. R. Marr, for defendants and appellants.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly and Morgan.
   Morgan, J.

Tobin, one of the defendants, is, or was on the twentieth February, 1868, owner of the Frank Pargoud. Williams, the other-defendant, was his clerk.

Tyler & Co., residing at Louisville, Ky., are, or were at tlie time above designated, iusuranoe agents for some Pittsburg companies.

Tobin, being about to leave Louisville with his sleamer, made application to Tyler & Co. to effect insurance on his boat for $100,000. Tobin sailed from Louisville on his steamer, bound for New Orleans, before the insurance was effected and pending negotiations therefor. When at Memphis he received a letter from Tyler & Co., sayiug that the insurance could be had, and requesting him to forward his notes for the premium agreed upon, which he did. The notes are all dated Pittsburg, Pa., February 20, 1868, although they were sent either from Memphis or New Orleans, payable to the order of Geo. A. Williams, the -other defendant herein, at the office of James Tyler & Co., Louisville.

The object of this suit is to recover on some of these notes.

It is in proof that the notes sued on were given in payment of premiums on the policies which were to have been obtained by Tyler •& Co. Some of them appear to have been given by Tyler & Co. directly to the Eureka company, while others of them were given to the Citizens’ Insurance Company and the Boatmen’s Fire Insurance Company. They are all sued upon, however, as being owned by the Eureka company, and their title is not specially denied.

Tobin’s defense is want of consideration iu this: that Tyler & Co. ■did not comply with the instructions he had given them with refereuce to the risks which he desired to be insured against. That at the time he applied to Tyler & Co. to effect the insurance on his boat they exhibited to him certain policies issued by the Eureka company, containing certain terms and stipulations to which he was not willing to assent, and to which he never did assent, and that they promised to obtain a policy which would accord with his wishes, which they never ■did. And he denies that he ever received the policies which should .have been issued to him.

Williams says that he was merely the clerk of Tobin, and that he is -without interest in the suit. Further he adopts Tobin’s answer.

Tyler & Co. were the agents of the insurance companies in effecting the insurance on the Pargoud; they were their agents in contracting Tor the insurance; in receiving the policies and in receiving the ■premiums — the notes given therefor being payable at Tyler & Co.’s •office. It was to the Pittsburg offices that Tyler & Co. looked for their brokerage, and it was to them, through his associate, Madeira, that it .seems to have been paid. Unless, therefore, the policies were issued in accordance with Tobin’s instructions and to cover the risks which .he desired to be insured against, he is not bound. The issue that the ■policies were never issued and delivered to him, was expressly tendered by the answer, and the proof, which should be in the possession of the plaintiff, is not to be found in the record.

The secretary of plaintiffs’ company swears that the policies were issued to Tyler & Co., through Madeira, his associate, at Pittsburg! and Tyler & Co. acknowledge the receipt of a letter from Madeira ■“conveying policies steamer FrankPargoud as stated,” but from what ■ companies these policies issued, or what risks they covered, he does not say. Neither have the plaintiffs produced a copy of the policies issued upon the faith of the premiums. These copies must certainly have been in their possession or under their control.

•E. D. Tyler, who seems to have conducted the negotiation for Tyler & Co., swears that he sent the policies to Tobin from Louisville by mail or perhaps by express,” and that his recollection is that Tobin acknowledged their receipt, but the letter of acknowledgment, which should have been in his possession, is not produced.

Now Tobin swears that in the letter which he received at Memphis, and which has already been referred to, Tyler & Co. wrote him that part of the policies had been received; that they were not in accordance with the understanding between Tyler & Co. and himself, and that they had been returned to the office to be changed; that some time after he receive d a package from Tyler & Co. containing policies of insurance; that the package was given to Williams, clerk of the boat, and put away in an iron safe ; that the package containing the policies remained in the safe for some months before he examined them ; that lie then went carefully over them with Williams, and found that the policies from the three offices to which the notes sued on in this ■case were given were not in the package, and had never been in his possession; and that Williams, who did all his correspondence, wrote to Tyler informing him of the fact, and that he received no answer. Williams swears to the same facts.

This evidence is entirely uncontradicted.

It was in the power of plaintiff to show the instructions under ■which Tyler & Co. were authorized to obtain Tobin’s insurance; it was 'in their power to show not only that the policies had issued, but that fhey covered the risks the defendant wished to insure against, and they should have shown, if the fact existed, that Tyler & Co., who were their agents, not only received the policies, but that they forwarded them to the defendant, and that he acknowledged the receipt thereof, or have proved that they came into his possession. In our •opinion the plaintiffs have not made out their case.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that there be judgment in favor of the defendants, as in case of nonsuit, plaintiffs and appellees to pay the costs.

Rehearing 1 efused.


author: Wyly, J.

text:
    No. 2870.
    Leonie Lepretre v. Alexander Barthet.
    The objection that, when the release bond in this case was signed on tlie first of July, 1868,. there was no law authorizing the release on bond of property provisionally seized, is not well taken. 'It was authorized by the act of the sixth July, 1867. See Revised Statutes of 1870, section 1914.
    As a general rule the judicial surety, a solidary obligor, can not be proceeded against, until the necessary step í are taken to enforce judgment against the principal debtor. R. C. 3066. But when a change happens in the debtor’s estate, so that execution can not be issued against it, the judgment creditor may proceed at once against the surety.
    Where the condition of the bond to release property provisionally seized is, “that the debtor shall pay such judgment as maybe rendered against him,” the fact that the property thus seized remaias in the hands of the debtor after the release bond was given, does not discharge the bond, or release the surety.
    APPEAL from the Seventh District Court, parish of Orleans. Oollens, J.

      Alfred Grima, for plaintiff and appellee. G. Schmidt, for defendant and appellant.
    Justices concur.ing: Ludeling, Taliaferro, I-Iowull, Wyly and Morgan.
   Wyly, J.

The plaintiff had judgment iu the Thiid District Court,

on second of July, 1868, against Louise Nicholas, for $438 50, recognizing his lessor’s privilege on the movables provisionally seized. Before said judgment was signed, however, the said Louise died. The suit was transferred to the Second District Court, and there the judgment was signed contradictorily with curator of the deceased.

The plain.iff then brought this suit against the defendant, the surety-on the bond to release the property provisionally seized in said suit. After a general denial, the answer admits the signiug of the hond, but denies the indebtedness of the party whose property was provisionally seized; and avers that on the death of the said Louise Nicholas all the furniture which had been provisionally seized remained in her possession, was duly inventoried and delivered to the curator of her succession, and by virtue thereof “ the aforesaid bond by him given was discharged and annulled.”

The court gave judgment for plaintiff for $438 50, and the defendant appealed. The objection set up in the brief that when the release bond was signed on first July, 1868, there Was no law to authorize the release on hond of property provisionally seized, is uot well taken. It was authorized by the act of sixth July, 1867. See Revised Statutes of 1870, section 1914.

As a geueral rule the judicial surety, a solidary obligor, can not be proceeded against, until the necessary stexis are taken to enforce payment against the principal debtor. R. C. 3066.

■ But when a change hapx>ens in the debtor’s estate, so that execution can not he issued against it, the judgment creditor may proceed at once against the surety. Alley v. Hawthorn, 1 An... 122; Trimble v. Birchta, 11 An. 271; Murison v. Butler,, 20 An. 513.

The plaintiff, therefore, not being able to issue execution against the succession of Louise Nicholas, had the right to proceed against the defendant, her judicial surety, to make him liable on the bond given for the release of the furniture provisionally seized.

The condition of the bond was, “that if the said defendant shall satisfy such judgment as may be rendered against her, in the suit pending as above mentioned, then this obligation to be void, or else to remain in full force.”

Now, after the release bond was given, the plaintiff prosecuted his suit to final judgment against the said Louise Nicholas for $438 50, and it has not been paid. There may have been irregularities in the proceeding in which said judgment was rendered; but on the merits the judgment is sustained by the proof.

The fact that the property provisionally seized remained in the hands of the debtor after the release bond was given, did not discharge the bond or release the surety. That was not the condition of the bond. It was that the debtor shall pay “such judgment as may be rendered against her.”

That Louise Nicholas died after judgment, but before it was signed, :and that it was transferred to the Second District Court and there' signed contradictorily with the cuiator of the deceased, shows nothing to invalidate the judgment. It was the proper mode to pursue. We see no error in the judgment appealed from.

Judgment affirmed.


text:
    No. 4533.
    Succession of Meraday Neal—Opposition to final account by the Heirs of Franklin.
    Where the creditors oi‘ a succession opposed the final account of the administratrix of said succession on the ground that a district court judgment for several thousand dollars in their iavor was not placed on said account and paid;
    Hold — That the administratrix could not, in the parish court, dispute the final judgment against her in "behalf of the opponents; first, "because a judgment not absolutely void can not be attached coilaterally; second, because the parish court can not revise a judgment of the district court, and also because the parish court can 1 ot determine a controversy when the matter in dispute exceeds $500, for want of jurisdiction ratione materiai.

    The administratrix should not have omitted to place the claim of the opponents on her final account and to provide for its payment, because the process of garnishment had been resorted to against one ot the opponents by a third party.
    APPEAL from the Parish Court, of the parish of Rapides. Daigre, J.

      T. G. Manning, for administratrix. Wm. A. Seay, for opponents.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan.
   Wyly, J.

The heirs of Franklin, judgment creditors of the succession, of Meraday Neal, opposed the final account of the administratrix of said succession because their claim for several thousand dollars was not placed on said account and paid. They opposed every item of said account, and prayed that it be not homologated until their claim be placed in the account and paid according to law. They also prayed for a rule requiring the administratrix to sell property and pay their judgment.

The answer states:

First — That the balance due on the judgment in favor of the opponents is only $2600, as will appear from a receipt on the judgment itself..

Second — A considerable part of the balance has been garnisheed in respondent’s hands by a creditor of one of the opponents.

Third — That the original judgment was on a note signed by her as administratrix, and she was unable to bind the estate thereby.

Further answering, she alleges that the debt or claim held by the-opponents was partly prescribed when she gave the note upon which they obtained judgment subsequently. The court maintained the opposition and made the rule absolute.

It appears that the balance due the opponents on their judgment is only $2800, with eight per cent, per annum interest thereon from the first of January, 1870, and it was so stated in the reasons for judgment; but the judge, doubtless through inadvertence, made the rule absolute for the full amount of the judgment. This error must be-corrected.

The administratrix can not in the parish court attack collaterally the-final judgment of the district court against her in behalf of the opponents, for two reasons:

First — Because a judgment not absolutely void can not be attacked collaterally.

Second — Because the parish court can not revise a judgment of the district court. Also, because the parish court can not determine á controversy when the matter in dispute exceeds $500, for want of jurisdiction ratíone materias.

The administratrix should not omit to place the claim of the opponents on the account and to provide for its payment, because the process of garnishment has been resorted to against one of the opponents by a third party.

We think the court did not err in declining to homologate the final account and discharge the administratrix until the amount due on the judgment of the o¡ ponents be paid.

It is therefore ordered that the judgment herein be amended by limiting the amount due the opponents to twenty-eight hundred dollars, with eight per cent, per annum interest thereon from first day of January, 1870, and as thus amended let the judgment be affirmed.. It. is further ordered that appellees pay costs of appeal.

Rehearing refused.


author: Taliaferro, J. Wyi.y, J.,

text:
    No. 4510.
    M. W. Hughes v. L. M. Pipkin.
    Tbe fifty-fourth section of the act of 1870, No. 100, relating to elections, repeals section 143 0' of the Revised Statutes, being section No. 53 of the act of March 15,1855, prescribing tli mode of contesting elections, and the party commissioned under the provisions of said act of 1870 is prima facie entitled to the office he claims.
    from the Fifth District Court, parish of East Feliciana. Posey, J.

      Wielcliffe & Adams, for plaintiff and appellant. McVea, Kernan, Lyons & Wedge, for defendant and appellee.
    Justices concurring: Ludeling, Taliaferro, Howell and Morgan.
   Taliaferro, J.

The facts ot the case seem to be that Hughes and Kilbourne were opposing candidates for the office of Parish Judge of East Feliciana, at the general election held in November, 1872.. Hughes being returned as elected, Kilbourne on the twelfth day of November brought an action in the district court under the act of 1855,. claiming that he was legally elected, and contested the election as between himself and his competitor, setting up various grounds of illegality and irregularity in the manner ot conducting the election.. Pending this contestation, Hughes filed a rule in the same court on< the twentieth of January, 1873, on the defendant, Pipkin, to compel/ him to vacate the office and give possession of it to the claimant who was commissioned on the seventeentli of December, 1872, by P. B. S.. Pinehback, then acting Governor of the State. Pipkin answered, setting up various exceptions to the plaintiff’s pretensions, and averring that he was holding over until the installment of his successor and that he was not' otherwise interested than in discharge of Ms duty to-hold the office until the party legally declared entitled to the office-presented himself. He plead in defense of his possession all the defenses set up by Kilbourne in his petition of intervention which was rejected by the court. All the issues between the plaintiff and Kilbourne are presented in this ease between the plaintiff and the defendant. It is unnecessary to determine all the exceptions presented by the bills found in the record. That which relates to the plaintiff’s commission, on the ground that it was issued in less than fifty davs from the general election in pursuance of which it was issued, and on the ground that tbe commission was issued by an incompetent person who is only a private citizen, and without authority as Governor of the State, was properly overruled by the court.

The rule taken by the plaintiff was discharged. The plaintiff thereupon took this appeal.

Tbe only question presented is, does the fifty-fourth section of the act of 1870, No. 100, relating to elections repeal section 1430 of the Revised Statutes? The section 1430 of the Revised Statutes, being-section No. 53 of the act of March 15, 1855, prescribing the mode of -contesting elections, provides: “That the Governor shall not issue a •commission until forty days after the day of the election for the parishes within one hundred and fifty miles from the seat of government, •and filty days for those parishes over one hundred and fifty miles from the seat of government. The distance to be computed by the usually ■traveled route.”

The last clause of the fiity-fourth section of the act of ,1870, provides that, “the Governor shall within thirty days thereafter issue ■commissions to all officers thus declared elected, who are required by .law to be commissioned.” By the act of 1870, as well as by the act of .1872, the Governor is required to issue the commissions within thirty days from the publishing in the official journal the returns of the elecition. By the act of 1855 the Legislature prohibits the Governor from ássuing commissions sooner than forty days, iu one case, and fifty days in another case. These two acts clearly conflict in one particular on the same subject matter, and that is, in regard to the time to be observed by the Governor in the issuing of commissions. Here is a point of direct collision. We can not give effect to both enactments. We are, however, relieved from the dilemma by the last section of the act of 1870, which provides that all laws or parts of laws contrary to ■the provisions of this act, and all laws relating to the same subject imatter are hereby repealed, and that this act take effect from and ■alter its passage.”

The plaintiff was duly commissioned under the provisions of the .last act, and prima facie is entitled to the office in controversy.

It is therefore ordered, adjudged and decreed, that the judgment of ■the district court be annulled and reversed. It is ordered that the rule be made absolute; and that the defendant, L. M. Pipkin, vacate the •office of Parish Judge of the parish of East Feliciana, and cease ■to discharge the duties thereof, and that he deliver the said office with .all the papers, records and archives appertaining thereto to the plaintiff, the defendant and appellant paying costs in both courts. This ■decree is in no manner to prejudice the rights of the contestant, Kilbourne, in any proceedings he may have instituted, or may hereafter •institute according to law in support of any claim or right he may have to the said office.

Wyi.y, J.,

dissenting. This being a proceeding by rule, under act .approved fifteenth January, 1873, to obtain possession of the office of parish judge of the parish of East Eeliciana, I think the action should fail, because said statute is unconstitutional and void.' My reasons for ■this conclusion I had. occasion to express in the case of Morgan v. Kennard, lately decided, and I now refer to my dissenting opinion in that •case in support of the position I take in this case.

But leaving- out of view the objection to the form of the proceeding, I think on the merits the case is with the defendant.

The defendant contends that the commission issued to tire plaintiff and upon which, as prima facie proof, he seeks to get possession of the •office occupied by him, is utteily null and void, and was not contemplated by the statute under which the rule herein was taken, because said commission was issued contrary to'a prohibitory law.

Kilbourne and Hughes were opponents at the election held on the fourth day of November, 1872, for the office of parish judge; and pursuant to the provisions of the Revised Statutes of 1870 on the subject of •contested elections, Kilbourne instituted a regular contested election suit against Hughes, and notified the Governor thereof, that no commission might issue pending the controversy. Notwithstanding which and notwithstanding the. prohibition of section 1430 of said Revised •Statutes, the Governor issued a commission to the said Hughes.

The defendant, the incumbent, holding over under article 122 of the constitution, has the right to resist the pretensions of the plaintiff, if the commission, which he presents as his prima faoie right to the office, was issued contrary to a prohibitory law, because what is done in •contravention of a prohibitory law is an absolute nullity.

The law on the subject of “ contested elections,” section 1421 Revised •Statutes, provides that: “Within ten days after the election, the party contesting shall present to the court, and which shall be filed, a petition, signed by at least twenty of the voters of the parish, * * * praying the court to examine the facts and decide thereon.”

Section 1422: “ After ten days from the date of service of the petition of the contestant, ■ * * * the adverse party shall be bound to •answer, and the issue thus formed shall be proceeded with summarily before the court and jury. Tne trial shall be conducted.and submitted to the jury according to the laws by which other jury trials are .governed. * * * The jury shall have power to determine by their verdict which of the parties is entitled to the office, or to refer the ■same again to the people. The court shall have no power to grant a new trial as in other cases, aud no appeal shall be allowed.”

Section 1423 provides that: “The judgment rendered upon the first •finding of the jury shall be final; and on certifying the same to the Governor a commission shall be issued by him in favor of the person .in whose favor the verdict may be.”

Section 1424 declares that: “If the finding of the jury be in favor of a new election, the sheriff or coroner may proceed to hold an election, etc., etc.”

Section 1430 provides that: “The Governor shall not issue a commission until forty days after the day of election, for the parishes -within one hundred and fifty miles from the seat of government, and fifty days for those parishes over one hundred and fifty miles from the seat of government. The distance to be computed by the usual! traveled route. On the successful candidate furnishing to the Governor a copy of the judgment of the court in his favor, duly certified' by the clerk, dated after the last day of the term, the Governor shall immediately issue a commission to such successful party. The certificate of the clerk showing either that the contest has been abandoned or the right to prosecute is lost by non-compliance with the provisions of law, the Governor shall issue his commission in favor of the person in whose favor the certificate of election has been granted. In either case the Governor shall only issue the commission upon the party complying with the other requirements of law.”

By the express terms of the law the Governor, who was notified that Hughes’ election was contested, had not the right, indeed he-was prohibited from issuing a commission until the controversy was settled.

The commission, therefore, obtained by Hughes in contravention, of a prohibitory law being an absolute nullity, furnishes not even prima faeie proof of titlo to the office in dispute; and for that reason he must fail in his demand on the merits. But the plaintiff contends,, and the majority of the court decides, that that part of the law on the subject of “contested elections” forbidding the Governor to issue commissions in contested election cases, pending such controversies, was repealed by the statute approved sixteenth of March, 1870, being act No. 100 of the acts of 1870. And section eighty-five is referred to to establish the position. It declares: “ That all laws or parts of laws contrary to the provisions of this act, and all laws relating to the same subject matter are hereby repealed, and that this act shall take effect from and after its passage.”

In order to determine the subject matter of the act let us look to its title. It is “An Act to regulate the conduct and to maintain the freedom and purity of elections; to prescribe the mode of making and designating the officers who shall make the returns thereof; to prevent fraud, violence, intimidation, riot, tumult, bribery, or corruption at elections, or at registration or revision of registration; to limit the powers and duties of the sheriffs of the parishes of Orleans and Jefferson ; to prescribe the powers and duties of the board and officers of the Metropolitan Police in reference to elections; to prescribe the mode of entering on the rolls of the Senate and House of Representatives the names of members; to empower the Governor to preserve-peace and order; to enforce the laws; to limit the powers and duties-of the mayors of the-cities of New Orleans and Jefferson with regard to elections; to prohibit district or parish judges from issuing certain, writs to commissioners of election; to make an appropriation for the-expenses of the next revision of the registration and of the next election, and to enforce article one hundred and three of the constitution.”

It was not the object of the act to repeal the sections of the Revised Statutes of 1870, on the subject of “contested elections,” to which I have referred, because this is not mentioned in the title of the act No. 100 of the acts of 1870, as one of its objects. And if the repealing clause be considered sufficiently comprehensive to embrace those sections of the Revised Statutes, that part of the repealing clause would contravene article 114 of the constitution and be void, because such an object is not expressed in the title of the act.

But the repealing clause only repeals all laws upon the same subject matter.” There is nothing in the statute upon the subject matter of “ contested elections.”

The only law upon the subject matter of “contested elections ” is to be found under that title or heading in the Revised Statutes, approved fourteenth day of March, 1870.

Now, can it be seriously contended that on the sixteenth March, only two days after the approval of the Revised Statutes, the lawgiver intended to repeal the enactment on the subject of “ contested elections,” when h'e passed the act No. 100 entitled “ an act to regulate the conduct and maintain the freedom of elections,” etc.; in which act there is not one word on the subject of contested elections and there is no such object expressed in the title.

Is the will of the lawgiver in regard to contested elections to be considered revoked because, two days after giving it, he sees fit to prescribe a general rule to regulate the conduct of elections 1 I think not. The two laws have separate and distinct objects. One to regulate the manner of holding' an election and the other to remedy an evil that may arise out of that election. But it is contended that the repealing clause of act No. 100 of the acts of 1870 only repeals that part of the law forbidding the issuing of the commission by the Governor pending a contested election case.

To this the reply is. that if it repeals any part of the contested election law it repeals the whole, because in order to give effect to the clause repealing “ all laws on the same subject matter,” it must be held that the sections of the Revised Statutes on the subject of contested elections are “ on the same subject matter.”

Now, can it be presumed that the lawgiver intended to repeal the law upon the subject of contested elections, and leave no remedy for the evil said law was intended to correct1? Surely not. Such an intention can not fairly be deduced from the language of the law, and it is not in express terms declared.

But it is contended that if act No. 100 does not, in express terms, repeal the law upon the subject of contested elections, it does, by implication, repeal that part of it forbidding the issuing of the commission pending a contested election suit. And in support of this position, that portion of the law is cited wherein the Governor is authorized to issue commissions within thirty days after the promulgation of the returns of the election, “ to all officers thus declared elected, who are required to be commissioned.”

The repeal of laws by implication is not favored; and where two statutes, having different objects in view, conflict in some of their provisions, it is a sound rule of construction to interpret the two laws so as to give effect, if possible, to both.

Here the law is, that the Governor shall issue commissions to all officers returned as elected within thirty days after said return. This is the general rule; and it has no application to cases of contested election; because there is nothing in the law showing that such was the intention of its authors, and because the time when, and the conditions upon which commissions might issue in contested election cases, were expressly provided for in a previous law, to wit: the Revised Statutes approved two days before, March 14, 1870. It is there provided that, “the judgment rendered upon the first finding of the jury shall be final, and on certifying the same to the Governor, a commission shall be issued in favor of the person in whose favor a verdict may be.” “ On the successful candidate furnishing to the Governor a copy of the judgment of the court in his favor, the Governor shall immediately issue a commission to such successful candidate.”

Here, Hughes in advance of the trial of the contested election suit, procures'from the Governor a commission for the office of parish judge, and upon this he claims possession of the office. Suppose he is successful in the contested election suit, will the Governor be required to issue to him another commission on being furnished with a copy of the judgment in his favor? Suppose his opponent gets judgment that he was the successful candidate, of course the Governor must issue to him a commission immediately on receipt of a copy of the judgment. Then there will be two commissions, two titles, issued for the same office, Hughes being in possession. Will his opponent be compelled to resort to a suit under the intrusion act to get the possession ? Can a party, pending a controversy for the title and possession of au office, be compelled to resort to another action to obtain the possession which his adversary gained or took pending'the action? Suppose the jury should find that there was no legal election of either of the contestants and “refer the same again to the people,” will Hughes, who was never elected, be permitted to administer the office of parish judge? In my- opinion all these difficulties wall be obviated by simply giving effect and meaning to both laws, to wit: by holding that act No. 100 refers to elections not pending in a contested election suit. In such cases tile Governor shall issue commissions within thirty days after the returns. This is the general rule. The exception is where the Governor is notified that there is a contested election suit pending. In such case it is neither the express nor implied intention of the law to give either of the contestants the title or the possession of the office till the controversy is judicially determined.

For the reasons stated I deem it my duty to dissent in this case.


author: Ludeling, C. J. Wyly, J., Howell, J.

text:
    No. 2753.
    H. Peychaud, Liquidator, v. Arnold Weber.
    On a motion to dismiss an appeal on the ground that the matter in dispute does not exceed five hundred dollars, the amount of defendant’s liabilities on a stock note as stockholder in a company will determine the jurisdiction of the court and not the percentage claimed thereon. It must be first ascertained if he is liable on the stock note itself, as alleged in the petition.
    "When the object of a suit is to provide the means of paying the debts of a company, it is unnecessary to decide on an exception to the jurisdiction, whether the State courts can settle the affairs of an insolvent corporation.
    A. stockholder can not, when sued, call into question the name borne by a company and mentioned in his stock note at the time it was given, and it rests with him to show that the contribution called for is not needed.
    APPEAL from tlie Fourth District Court, parish of Orleans. IMard,J.

      A. & P. Robert, for plaintiff and appellee. M. Grivot, for defendant and appellant.
    On Motion to Dismiss the Appeal.
    Justices concurring : Ludeling, Taliaferro, Howe.
   Ludeling, C. J.

The appellee has moved to dismiss this appeal on the ground that the matter in dispute does not exceed five hundred dollars.

The plaintiff sued defendant to make him contribute twenty per centum on his stock note, which plaintiff avers defendant executed in favor of the Great Southern and Western Life Accident Marine and Fire Insurance Company for $800.

The defendant denied any indebtedness to the plaintiff. It seems . clear that before decreeing the defendant to pay the twenty per oentum demanded now, it must be ascertained whether he is liable as a stockholder to the extent of $800, as alleged in the petition. The matter in dispute then exceeds five hundred dollars. 2 An. 909, Williams v. Vance; .15 An. 521, N. S; and T. R. R. Co. v. Hamilton. Article 74 Constitution.

It is therefore ordered that the motion to dismiss be overruled.

Wyly, J.,

dissenting. The plaintiff, the liquidator of an insolvent insurance company, alleges that when he to ok charge of the corporation there were no funds to pay its debts, which amounted to some forty thousand dollars; “that your petitioner in his official capacity demanded from each of the stockholders of said compary payment into his hands of a sum equal to twenty per cent, on the amount due on their stock notes, with which demand said stockholders have refused and neglected to comply. That Arnold Weber of this city is a subscriber to said corporation for ten shares of its stock and has furnished, given and delivered to said corporation his stock note for the sum of eight hundied dollars, dated eighteenth April, 1867, and payable on demand. “ That said Arnold Weber is therefore indebted to said company, according to the call made by your petitioner, in the sum of one hundred and sixty dollars, being twenty per cent, on the amount of his said note, and being his proportion towards the payment of the debts of said company.

Wherefore petitioner prays, the premises being considered, that the said Arnold Weber be cited herein, and that after due proceedings had he be condemned to pay your petitioner, in his official capacity, the sum of one hundred and sixty dollars with legal interest from judicial demand and costs of suit.”

The answer is a general denial, and a special denial that the defendant is a stockholder and in any manner responsible for the debts of the corporation as charged; “and if further-answer be necessary, this respondent denies that plaintiff has aDy cause of action against him, and even were he a stockholder in said insurance company, he could not be held responsible as charged, as the plaintiff has not filed a tableau or statement of the claims against said association, whether real or pretended, so as to enable the stockholders to ascertain what proportion each stockholder would have to contribute towards the payment or liquidation of said indebtedness, and it is only by that means that a necessity of a contribution can be shown as against the stockholders and the amount to be paid. Wherefore he prays to be dismissed hence with costs ”

From the pleadings it will be observed that the suit is for a money judgment. The matter in dispute is the sum demanded of the defendant. That sum the plaintiff alleges is one hundred and sixty dollars, and for which he prays judgment.

There is no reconventional demand set up, the prayer of the answer being simply that the defendant “ be dismissed hence with costs.”

The contest is, not to determine whether or not the defendant subscribed for ten shares of stock and executed the note; that might be, and yet plaintiff would have no cause of action, as in case the company had assets sufficient to pay its debts, or in the event its creditors should permit their claims against the corporation to become prescribed, voluntarily remitted, or otherwise extinguished.

The prayer of the petition is, not for a decree that the defendant is a stockholder and has executed a certain note, but that the defendant be condemned to pay your petitioner one hundred and sixty dollars ■with legal interest from judicial demand and costs of suit.”

The prayer of the petition determines the character o.f the action. ■In it we also ascertain the sum in controversy.

It matters not out oí what contract the sum demanded arose; whether it is part of a large or a small contract; whether the note in a suit is one of a series executed in a large contract of sale or not, it is the sum demanded in the suit; it is the amount of the note, if that be -the basis of the action, regardless of the dimensions of the contract of sale out of which it sprung, that constitutes the amount in controversy, ■and the amount in controversy and not the dimensions of the contract •out of which it arose, must alone be considered in ascertaining the jurisdiction of this court. Very often in large contracts, small sums are required to be paid in installments; yet in a suit to enforce the payment of one installment, I apprehend the amount of that installment, and not the amount of the contract out of which it proceeded, would be considered in order to ascertain the jurisdiction of the court.

In the case before us the plaintiff has no action for the amount of the note of $800. He has no right to collect that. The cause of action is not the note, it is the obligation of each stockholder to contribute his share to pay the debts of the insolvent corporation. This is the •obligation sought to be enforced, and which the defendant contends should not be enforced, that forms the basis of the present action.

As a stockholder the defendant had the right to participate in the profits of the company in proportion to the amount of the stock subscribed by him, so likewise he incurred the legal obligation to contribute his share to relieve the company of its losses or debts.

This legal obligation to contribute amounts to one hundred and sixty dollars as alleged by the plaintiff.' It is the amount in dispute which being less than five hundred dollars is below the jurisdiction of •this court.

I believe the appeal should be dismissed for want of jurisdiction, -and therefore dissent from the opinion of the majority of the court.

On the Merits.

Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan.

Howell, J.

The plaintiff, as commissioner of the Great Southern itnd Western Life, Accident, Marine and Fire Insurance Company, sues the defendant to make him contribute twenty per centum on his stock note, given to the Great Southern and Western Insurance Company.

The defendant excepts to the authority of Peychaud to represent the plaintiff company or sue on the note given to one company to pay the debts of another, denying that any proceedings have been had1 against the Great Southern and Western Life and Accident Company to forfeit its charter and appoint a liquidator. He also excepts to the jurisdiction of the court a qua over the proceedings for the forfeiture oi the charter and appointment of a commissioner, because the said proceedings showed the said company to be insolvent, and the United States District Court alone had jurisdiction thereof.

The answer to the first branch of the exceptions is that the record shows the Great Southern & Western Life, Accident, Marine and Eire Insurance Company and the Great Southern and Western Insurance Company are one and the same corporation, the names and kinds of business having been changed by notarial acts duly recorded; and that the appointment of Peychaud as commissioner embraces the affairs under each modification of the charter.

If there be any force in the second exception it comes too late. But the very object of this suit is to provide the means of paying the debts of the company, and it is unnecessary to decide whether the State-courts can settle the affairs of an insolvent corporation.

Upon the merits the case is made out against the defendant. He gave his stock note to the company at the time it bore the name mentioned in the note, and it rested with him to show that the contribution called for is not needed.

Judgment affirmed.


text:
    No. 2822.
    E. J. Hart & Co. v. John Nixon & Co.
    Where a judgment by default was entered before the delay required by law had expired, it will not be maintained as valid on the ground that it was not made final until after the-usual delays and that the defendant, having thereby suffered no injury, can not complain.
    The words ordinary course of practice” mean that the course which is positively commanded by the law shall be pursued!
    There is no difference between entering a default a day too soon and confirming a default a day too soon. One delay is as imperative as the other.
    There is no issue joined when the judgment by default has been improperly entered, and the judgment in confirmation has nothing to rest upon.
    APPEAL from the Fourth District Court, parish of Orleans. Tliéard, J.

      H. J. Leovy and F. A. Monroe, for plaintiffs and appellees. Hays & New, for defendants and appellants.
    Justices concurring: Ludeling, Taliaferro, Morgan and Wyly.
   Morgan, J.

Plaintiffs sue the firm of John Nixon & Co., composed of John Nixon, Jr., and William S. Parham, for $13,989 13, for goods sold and delivered.

Before the institution of this suit the firm of Nixon & Co. was dissolved. Nixon alone was personally cited.

The petition was filed on the first of June, 1869; citation issued on-the same day; service was made on the same day. On the eleventh of June default was entered against John Nixon and John Nixon & Co., and on the sixteenth of June the default was confirmed. On the fourth of April, 1870, Jennie C. Nixon, “administratrix of the succession of John Nixon, deceased,” applied for and obtained an appeal from the judgment rendered, as above set forth.

A defendant is allowed ten days alter service of petition and citation in which to answer the demand which is made against him. “ In counting the ten days, neither the day when the citation has been served, nor ¿he day when the delay expires are included.” C. P. 180. Plaintiff was not entitled to a default until the twelfth of June. Fowler v. Smith. 1 Rob. 448.

“ A judgment by default taken on the fifth day after service of citation on the defendants and afterwards confirmed, is illegal and null.” Arthur and another v. Cochran, Tutor, 12 R. 43.

“A judgment by default, made final in eight days after service of' citation, must be reversed.” Williams v. Dunn, 2 An. 806.

The appellees admit that in the ordinary course of practice the judgment by default could only have been rendered on the twelfth of June, but they contend that inasmuch as this judgment by default was not confirmed until the sixteenth of the month, the appellant has suffered nothing and can not, therefore, complain. They also contend that there is a difference between entering a default a day to soon and confirming a default a day before it is due.

But it seems to us that “the ordinary course of practice” means-that course which it is positively commanded by the law shall be pursued, and that when the law says that a default may be entered against a person who has been i egularly cited and who has made no answer ten days after citation, it not only does not allow but will not permit a default to be taken nine days after citation, any more than .it would one day thereafter. Neither do we see any difference between entering a default a day too soon and confirming a default a day too soon. One delay is as imperative as the other. The default can not be entered until after the full expiration of the tenth day after citation;, the default can not be confirmed until after the full expiration of two-days after the default has been entered; one follows the other, and both are regulated by the same law as to time.

The default having been improperly entered there was no issue-joined when the judgment was rendered. There was nothing, therefore, for the judgment to'rest upon.

It is therefore ordered, adjudged and decreed that the judgment of the court below be avoided, annulled and set aside, and that the case be remanded to be proceeded in according to law. Appellees to pay costs of appeal.


text:
    No. 4467.
    State of Louisiana ex rel. Daniel B. Gorham v. F. F. Montgomery.
    Police juries are not prohibited from appointing a district attorney pro tempore after tlie lapse of the thirty days mentioned in the statute creating that office. But in that event, the statute confers the same power on the parish judges, and the party that first exercises the power exhausts it. The purpose of the law is to guard against the yrobability of a vacancy.
    A police jury is not a legislative body, and its members are not legislators who become fwncti officio with the expiration of the terms for which they were elected or appointed, but can lawfully administer the powers confided to them till their successors are elected and qualified. Revised Statutes of 1870, sec 2608.
    'The term of office of the District Attorney is four years, and the District Attorney pro tem. holds office for the same period. Revised Statutes of 1870, sec. 3178.
    A police juryman is not an officer in the intendment of that clause of the constitution prohibiting a person from holding more than one office, except that of justice of the peace.
    'That clause of the constitution applies only to constitutional offices, and does not prevent a constitutional officer from holding a municipal office.
    APPEAL from the Thirteenth District Court, parish of Carroll. Hough, J.

      Hiram B. Steele, District Attorney, for relator and. appellee. W. B. Spencer, for defendant and appellant.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Kennard.
   Wyly, J.

The District Attorney, on the information of D. B. Gor'ham brings this suit in the name of the State under the intrusion act, ••to have the defendant declared an intruder into the office of district •attorney pro tem. and to have said Gorham decreed to be entitled to •■said office and inducted therein. The demand was rejected by the •court below and the plaintiffs have appealed.

It appears that Gorham was appointed in December, 1870, to fill the vacancy occasioned by the resignation of H. W. Drake, and that he continued to administer the office of district attorney pro tem. till the twenty-fifth November, 1872, when the defendant was appointed to «aid office by the police jury of the parish of Carroll and took charge thereof, after qualifying, according to law.

The relator contends—

First — That his term of office had not expired on twenty-fifth day of November, 1872, the day when the defendant was appointed by the police jury.

Second — That the police jury had no right to make the appointment 'because under the law the appointing power was alone with the parish judge.

Third — That if the police jury had power to appoint, it could not ■exercise it on the day of the appointment of the defendant, twenty-•fifth November, 1872, because that body being a legislative body was ■then functus officio, the terms of its members having expired before ■twenty-fifth November, 1872.

The law authorizing the appointment of district attorneys pro tem. ■declares that:

“ Within thirty days after the date of the promulgation of this act «there shall be appointed a district attorney pro tempore in each parish fin this State, except the parish of Orleans, by the police jury of the parish. Aud in the evént of the failure of the police jury to make ■such appointment, and in the event of the death, resignation or other ■disability of such district attorney pro tempore to attend to the duties "required of him in this act, the parish judge shall fill the vacancy by appointment, to continue for the tijne for which the district attorney for the district was appointed or elected. The district attorneys pro tempore authorized to be appointed by section 1178 of this act shall hold their offices for and during the same period the district attorney for the judicial district was elected or appointed, * * *” Bevised

Statutes of 1170, sections 1178 and 1879.

The term of office of the district attorney is four years ending on the first Monday of November (Constitution articles 92 and 158), and the district attorney pro tern, holds office for the same period. Consequently on the twenty-fifth of November, 1872, the term of D. B. Gorham as district attorney pro tern, for the parish of Carroll, had expired. That the police jury may appoint a district attorney pro tempore after the lapse of the thirty days mentioned in the act, was expressly decided in the State ex rel. Rills v. Lynch, 23 An. 786.

In that cas.e the court held that: “The statute does not prohibit the police juries from making the appointments after the thirty days, but in that event the statute confers the same power on the parish judges. The purpose of the law was to guard against the possibility of a vacancy in the office, and after the expiration of thirty days either the police jury or the parish judge can appoint a district attorney pro tempore, and the party which first exercised the power exhausted it.” See also 3 An. 195 ; 14 An. 207; Cooley’s Constitutional Limitations, 77. This disposes of the first and second grounds set up by the relator.

The third ground is equally untenable. The police jury is not a legislative body whose members become functus officio at the expiration of their terms of office, and who do not hold over till their successors are chosen and inducted into office. Police jurymen are the officers of a political corporation, and they continue in office after the expiration of their terms till their successors are inducted into office.

“ All officers, whether appointed or elected, shall hold their offices and discharge the duties thereof until their successors are elected or appointed, as the case may be, and duly qualified.” Bevised Statutes of 1870, section 2603.

The relator, however, argues that police jurors are legislators, and not officers ; because it was decided in the case of Voorhies v. Fournet, 15 An. 598, that Fournet, the clerk of the district court of the parish of St. Martin, could hold the office of police juror of said parish on the ground that “a police juryman is not an officer’’ in the intendment of that clause of the constitution prohibiting a person from, holding more than one office, except that of justice of the peace. That decision merely shows that the inhibition of the constitution referred to only applied to constitutional officers. It did not prevent a constitutional officer from holding a municipal office, and this was only affirming the doctriue laid down in Dorsey v. Vaughan, 5 An. 155, and in State v. Blanchard, 6 An. 516. Because the office of a police juror is not a constitutional office, it by no means follows that it is no office at all. There are many offices that were not created by the const! .ution ; and the General Assembly had undoubted authority to create them. Now if the officers of the various political corporations of the State had no other warrant for holding over till their successors were inducted into office, except article 122 of the constitution conferring this-right, perhaps they would not be authorized to hold over on the theory that article 122 referred to the incumbents of State offices and not to-those of a political corporation. And this would be the analogy from the decisions cited by the relator. But the statutes of the State provide that All officers whether elected or appointed shall hold their offices and discharge the duties thereof until their successors are elected or appointed, as the case may be, and duly qualified.” So, therefore, whether article 122 of the constitution applies or not to-officers of a political corporation is of no consequence. Because the clause of the statute quoted applies to every officer of the State, whether he holds a State, parish or municipal office, or the office of any political corporation. In the constitution is found ample authority for the General Assembly to create political corporations and to create offices by which they may be administered; but that instrument will be searched in vain to find authority to create a legislative department. It declares, article 15, that: The legislative power of the State shall be vested in two distinct branches, the one to be styled the-house of representatives, the other the senate, and both the general assembly of the State of Louisiana.”

It is therefore evident that the police jury is not a legislative department, and that its members are not legislators who became/wícítis officio with the expiration of the termsfor which they were elected or appointed.

The police jurors of the parish of Carroll had therefore authority to-continue in office after the first Monday of November, 1872, and could lawfully administer the powers confided to them till their successors were elected and qualified. At the time of the appointment of the defendant, twenty-fifth November, 1872, their successors were not elected and qualified. Our conclusion is that there is no error in the judgment of the court a qua rejecting the demand of the plaintiff.

Judgment affirmed.


text:
    No. 4541.
    Carroll, Hoy & Co. v. Eliza Seip and Peter Anderson.
    here it was contended that two judgments were not properly revived, only one petition for revival thereof being filed, and in one judgment the-revival of said judgments being decreed;
    Held — That the prescription of the judgments was properly interrupted, because citation was served personally within ten years. "Whether the application was made in one petition or in two is immaterial. The decree of revival for both judgments was rendered contradictorily with the defendant, who was personally cited within ton years. There is no law requiring this decree arresting prescription to be registered.
    A judicial mortgage, like any other, must be reinscribed within ten years from the first inscription in order to preserve the rank acquired by said inscription.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. Orsbom, J.

      B. A. Hunter and B. J. Bowman, for plaintiffs and appellants. Manning, for defendants and appellees.
   Wyly, J.

On April 4, 1.857, A. and J. Dennistoun & Co. obtained two judgments for large amounts against the defendant, Eliza Seip, and they were duly recorded on the ninth of the same month. The records of the parish being destroyed, these judgments were again put on record in December 1865. A. and J. Dennistoun & Co. filed their petition to revive their judgments, and citation was served personally on the thirteenth March, 1867, within ten years from the rendition of said judgments.

On twenty-ninth May judgment of revival was rendered, and it was recorded two days thererafter. On this judgment execution issued, ■and the defendant, Peter Anderson, fjor $8000 purchased the property now sought to be subjected to the conventional mortgage granted by Mrs. Seip to the plaintiffs on the second March, 1861.

Tiie plaintiffs allege that their mortgage is superior in rank to the ■one under which Peter Anderson purchased :

First — Because the judgments of A. and J. Dennistoun & Co. were not properly revived, only one petition lor revival thereof beiiig filed, and in one judgment the revival of said judgments being decreed.

Second — Because the judicial mortgages which arose from the inscription of the two judgments rendered in 1857, were separate and distinct mortgages, and the pretended judgment of revival was not a •continuance thereof.

Third — Because the judgment of revival, if valid, was not rendered and recorded within ten years from the rendition of said judgments.

Fourth — Because after ten years from the date of said judgments, to wit, April 4, 1857, their inscription unaccompanied by the inscription of the judgments of revival was no longer evidence of their exist■ence, and consequently no notice.

In answer to the first proposition we will remark that the prescription of the judgments was properly interrupted, because citation was served, personally witliin ten years. This meets the requirements of' the law.

Whethet the application was made in one petition or in two is immaterial. The application was distinctly made for the revival of both, judgments, and the decree to that effect was rendered contradictorily with the defendant who was personally cited within ten years.

In reply to the second and third points we will say: The decree off revival interrupted the prescription of the judgments, and we know of no law requiring the decree arresting prescription to be registered..

In answer to the fourth point we will remark that a judicial mortgage, like any other, must be reinscribed within ten years from the first inscription, in order to preserve the rank acquired by said inscription. It appears that A. and J. Dennistoun & Co. registered their judgments on ninth April, 1857, and also in December 1865. The-judicial mortgages of A. and J. Dennistoun & Co. had not perempted when the sale occurred, and the sale to Peter .Anderson was valid-because made under judgments superior in rank to the mortgage set up by the plaintiffs. As the proceeds were insufficient to pay A. and J. Dennistoun & Co., the prior mortgage in favor of the plaintiffs-ceased to exist on the property from the day of the sale.

There are other questions, but as the question of superiority of-mortgage is the only one in which the plaintiffs have an interest, they will not be noticed.

Judgment affirmed.

Behearing refused.


text:
    No. 4569.
    Harriet A. Mills v. Sheriff of East Feliciana and als.
    Whoro it was contended that a mortgage was not recorded until after the passage of tireliomestoad law, and tliat it was therefore governed by it 5
    Held — That this is an error. The right was created before the passage of the Law,, and existed when itwas enacted. Subsequent legislation could not destroy it. The mortgage existed independent of its registry. Registry is intended to protect third parties, not. parties to the contract.
    APPEAL from the Fifth Judicial District Court. Posey, J. Jury-
    trial.

      McVea <& Kilbourne, for plaintiff and appellee. K. A. Cross and B. B. Forman, for defendants and appellants.
    Justices concurring: Ludeling, Howell, Morgan.
   Morgan, J.

The ground upon which the plaintiff obtained her injunction in this case is that the sheriff of the parish of East Feliciana, has seized and is about to sell a certain piece of property belonging to her, by virtue of a fi. fa., and an order of seizure and sale directed to him from the Fourth District Court of New Orleans, which property,. she alleges, is her homestead, and is protected from seizure by the-homestead law of 1865.

There was a verdict and judgment in her favor and the defendants have appealed.

The property, the sale of which was injoined by plaintiff, was mortgaged to Beard, plaintiff in execution and seizure and sale, on the-eighth October, 1865. The homestead law was not passed until the-twenty-second ol December of that year. Consequently it does not control Beard’s right. Rousse v. Caradine, 20 An. p. 244.

It is contended that the mortgage was not recorded until after the passage of the homestead law, and that it is therefore governed by it. In this there is error. The right was created before the passage of the law, and existed when it was enacted. Subsequent legislation could, not destroy it. The mortgage existed independent of its registry. Registry is intended to protect third parties — -not parties to the contract.

It is therefore ordered, adjudged and decreed that the judgment of' the district court be avoided, reversed and annulled, and that the injunction herein issued be dissolved, appellees to pay the costs.

Reheariug refused.


author: Wyi.y, J.

text:
    No. 4542.
    John W. Johnson v. Gustave and Hypolite Labatt.—E. J. Barrett, Intervenor.
    The parish court charged with the duty of settling successions has nothing to do with the-partition of property held in indivisión where the matter in dispute exceeds five hundred dollars.
    APPEAL from the Parish Court, parish of Rapides. JDaigre, J.

      B. A. Hunter and G. L. Hall, for plaintiff and appellant. Wm. A-

      Seay, for defendants and appellees. M. Byan, for intervenor.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan.
   Wyi.y, J.

The plaintiff, who purchased the interest of one of the' heirs of Erancis and Ann Labatt sues the defendants, the other two heirs, for partition of the estate. The court dismissed the suit for want of jurisdiction ratione materice, the petition alleging that the matter in dispute exceeds one thousand dollars. The plaintiff appeals.

The appellant contends that the parish court had jurisdiction; because, although the heirs have held and possessed the succession for over thirty years and there has been no administration, the succession of their ancestors has never been opened and settled according to law,, and the parish court having jurisdiction to open and settle all successions, has jurisdiction to partition the property in this case regardless, of the amount or value thereof.

We find that the heirs have possessed the property since the death • of their parents, a period of nearly forty years, and if there were debts they have paid them. It is well settled that where the heirs take possession of the property, in a case like this, the succession ceases to exist. The parish court charged with the duty of settling successions, has nothing to do with the partition of property held in indivisión, where the matter in dispute exceeds five hundred dollars.

Judgment affirmed.

Rehearing refused.


text:
    No. 4535.
    J. D. Blair & Co. v. Daniel Taylor and Jacob Irving.—Bernard McFeely, Third Opponent.
    'There is no statutory provision of law requiring direct action against the sheriff to compel him to comply with what the plaintiff considers his adjudication, and to fix the respective rights of persons holding mortgages on the property sold under execution. The practice has always been to proceed by rule, and this practice has been expressly recognized by the decisions of this court.
    ' The mere recital of an act of mortgage in a subsequent act acknowledging the obligations contained in the first act, does not, as to third parties at least, operate the roinscription of the first act. The subsequent acknowledgment may be sufficient to interrupt pre. scription as to the debt, but does not reinscribe the mortgage which secured it.
    "Where the plaintiff’s mortgage was in existence at the time of the sheriff’s sale, and the mortgaged property was adjudicated to him, he had the right to retain the purchase money up to the amount of his debt, and the title to the property should have been made to him.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. Or shorn, J.

      T. O. Manning, for plaintiffs and appellants. R. A. Hunter and Gt. L. Hall, for third opponent and appellee.
    Justices concurring: Ludeling, Taliaferro, Howell, Morgan.
   Morgan, J.

Plaintiffs obtained an order of seizure and sale against a certain piece of proi erty situated in the town of Alexandria, upon a mortgage given to them on the third July, 1867, by one Nelson Taylor, to secure the payment of a promissory note payable on the fifteenth November, 1867, for eleven hundred and sixty-seven and twenty one-hundredth dollars, with interest at eight per cent, after maturity.

Nelson Taylor, the mortgngeor, surrendered the property mortgaged to his assignee in bankruptcy, who, by order of court, sold the same, subject to all the mortgages, liens and incumbrances resting thereon. It was in the possession of Daniel Taylor, holding for himself or Jacob Irving (the defendants) when seized by the sheriff.

Prior to the day upon which it was advertised to be sold, Bernard McPeeley, filed his third opposition, in which he alleges that Nelson Taylor owes him seven hundred and fifty dollars, with five per cent, interest from the twenty-first December, 1859, to secure the payment •of which he claims to hold a special mortgage, with vendor’s lien and privilege on the property then to be sold by the sheriff, which mortgage, lien and privilege, he contends, was only recorded in the office ■of the recorder of mortgages where the property mortgaged was situated.

He alleges further that he obtained a release of the property from the assignee in bankruptcy upon the payment of about ñve hundred and fifty dollars; that this release was necessary in order to protect it from being absorbed; that it was as much in the interest of plaintiffs as his own that this release was effected, and that they are bound to ■colate and refund to him a pro rata portion of the money expended by .him in the protection and preservation of the property in question.

He claims that he is entitled to be paid out of the proceeds of the sale which was to take place by preference and privilege over all others, the amount of his alleged mortgage claim, and the costs incurred by him for the preservation of the property.

Blair & Co. deny McFeeley’s mortgage; that if it ever existed it was lost for want of reinscription. ' They allege that the pretended mortgage given in 1866 is not a re-establishment of the mortgage of 1859, under the act of the Legislature, and that it is not a valid original mortgage for want of essential features prescribed for such in.struments by the laws.

The sheriff returns that, after due advertisement, he offered the property for sale, on the second July, 1870, upon which day the third ■opposition of McFeeley was served on him, commanding him to retain in his hands five hundred and fifty dollars of the proceeds of the sale,

if so much remained in excess of the special mortgage and vendor’s lien in favor of McFeeley; that after declaring the conditions of the sale, and the amount of the third opposition, he cried the property at public auction, when Blair & Co., through their counsel, bid the sum ■of $1025, and that being the highest bid, the property was adjudicated ■to them. That he then called on their counsel to comply with the terms of the sale, and the demands of the third opposition, which he efused to do. That he then notified the counsel that he would offer ■the property again immediately at his risk, which he did on the same •day, when the last and highest bid of $1200 having- been made by Bernard McFeeley, the same was adjudicated to him.

Before, however, the second adjudication was made, Blair & Co. ■took a rule upon the sheriff to show cause why he should not make title to them of the property seized under their execution and pur-chased by them, alleging that he refuses to make title unless they will pay into his hands the whole amount of their bid, because McFeeley had filed a third opposition, claiming that he has a mortgage upon the property sold for $1144, or thereabouts, which he alleges is prior to ■theirs. They allege that no such mortgage exists or is upon the records of the recorder’s office, for that or any other sum in favor of McFeeley, and that if he ever had such mortgage it has been and is-extinguished.

First — Because the notes which McFeeley holds, and which he claims-are obligations of Nelson Taylor, are prescribed as to said Taylor.

Second — Because the mortgage which McFeeley claims upon the-property sold is perempted for want of reinscription in ten years, the same purporting to have been given on the twenty-first December,, 1859, and that it has not been reinscribed ; and

Third — Because the loss of the public records of his mortgage (if such be alleged) has not been supplied as by law provided and permitted.

The second sale and adjudication was made in spite of this rule, and the title was transferred to McFeeley.

Before answering to the merits of the rule, McFeeley excepted to the proceeding, upon the ground that plaintiffs could not proceed by rule to test his right of mortgage, or his title to the property which he. holds under the conveyance made to him by the sheriff, but that he should have been proceeded against by the direct revocatory action-The exception was referred to the merits and overruled.

It is urged in this court that this judgment was erroneous, and that the exception should have been maintained.

We are not of the opinion that the authorities cited by McFeeley’s counsel show an error in this ruling of the court. The decision in the-, case of Weeks v. Flower and als., 9 La. 379, is that where a purchaser is in possession under a conveyance, the question of fraud can not be inquired into collaterally, in a case commencing with a seizure; that the party complaining must bring a direct action.

In Kirkland against the Gas Company, 1 An. 299, it was held that where the purchaser of an immovable is in possession under a conveyance not void upon its face, in order to annul the sale for fraud, recourse must be had to a direct action.

In Weld v. Peters, 1 An. 432, the court say that a judgment creditor can not treat a sale of a slave made bona fide by his debtor and accompanied by possession, as null, and seize the slave in the hands of the purchaser.

In Nimmo v. Allen, 2 An. 451, it was held that where the creditors of a vendor wish to annul a sale on the ground of fraud, they must resort to a direct action. But we know of no statutory provision of law which compels a plaintiff in execution to bring a direct action against the sheriff to compel him to comply with what the plaintiff considers his adjudication, and to fix the respective rights of persons holding mortgages on the property sold under execution. The practice has, we believe, always been to proceed by rule, and this practice has-been expressly recognized by the adjudications of this court. In Lartbet v. Hogan and al. 1 An. 330, it was held that where the property of one against whom judgment has been rendered appears to be subject to privileges or mortgages, entitled to a preference over the judgment creditor, the latter may, by a rule to show cause, as incidental to the proceedings had for the purpose of selling the property, call upon those claiming such privileges or mortgages, to show cause why they should not be erased. The seizing creditor can not be required to resort to a direct action against persons holding such privileges or mortgages. And this decision was recognized as the law of the case in Merrick v. McCausland, 24 An. 256.

We therefore think that the exception was properly overruled.

On the merits, we think that the claim for $550, alleged by McEeeley to have been paid by him to the assignee in bankruptcy, admitting it to be valid if it existed, which we do not pass upon, has not been proved. Indeed we have searched the record in vain for any testimony to establish that it was ever paid.

As to his claim on account of the purchase price of the property sold, we think it is barred by prescription. The original act of sale was passed on the twenty-first December, 1859, and the notes given in payment therefor were payable in one and two years from that date. The last note was, therefore, due on twenty-first December, 1861. His claim never seems to have been advanced until he filed this opposition on the thirtieth June, 1870. The last note was prescribed on the twenty-first December, 1866.

He contends that prescription has been interrupted, and the debt acknowledged in time to save him. But we do not think he has been successful.

It is true that on the second March, 1866, John Clark, Nelson Taylor and McFeeley, went before the recorder of the parish of Rapides and declared that, whereas, on the twenty-first January, 1860, John Clark transferred to Taylor the property sold under Blair’s execution in this case; and that the said Taylor, in full payment for said property, assumed the payment of and bound himself to take up the one-half of the following described notes, to wit: The three following notes, executed by John Clark to and in favor of Bernard McEeeley, dated December 21, 1859, (describing the notes), the three said obligations being mortgage notes, with vendor’s privilege on the property sold by McEeeley to Clark, by act executed before Kilpatrick, recorder, on the twenty-first December, 1859, the one-half of which was on the date first herein above mentioned, sold to said Taylor by Clark, at which time McFeeley promised to accept Taylor for the payment of the one-half of said notes, said one-half of the same amounting to $1000, all of which was passed before the said recorder and duly recorded in his office, the records of which were destroyed by fire on the fourteenth May, 1864. Now, therefore, appeared before the recorder, John Clark, who declared that the sale then passed to Taylor and herein before described was valid, and that he did then and there make a title to said Taylor, guaranteeing him in the same, and that the said Taylor assumed to take up one-half of the amount due by him to McPeeley as hereinbefore stipulated, the first note of which has been taken up and paid, viz., $500, and that this instrument is executed and signed in lieu of the one passed and destroyed, on the fourteenth May,. 1864.

But it was the act of 1859 which put the mortgage on the property, and we do not find that this act has ever been reinscribed. It is true it is referred to in the act of 1860, and in the act of 1866, but we do not think that the mere recital of an act of mortgage in a subsequent act, acknowledging the obligations contained in the first act, as to third parties at least, operates the reinscription of the first act. The subsequent acknowledgment maybe sufficient to interrupt prescription as to the. debt, but it does not reinscribe the mortgage which secured it, and it is the question of the peremption of the mortgage — not the debt — which is in controversy here. We think the opponent’s mortgage, created in 1859, expired in 1869, and that plaintiffs’ mortgage having been in existence at the time of the sheriff’s sale, he had a right to retain the purchase money up to the amount of his debt, and that the title to the property should have been made to him.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be avoided, annulled and reversed, and it is further ordered, adjudged and decreed that the sheiriff of the parish of Rapides do make title to the property herein sold by him to the plaintiffs upon their complying with the terms of their bid, over and above the sum due to them on account of their mortgage, and that the mortgage claimed by Bernard McPeeley be declared extinguished as regards Blair & Co., and of no effect.

Rehearing refused.


author:
Howell, J.
      Wyly, J.,

text:
    No. 4620.
    State ex rel. E. G. Pintado v. Judge of the Fifteenth Judicial District.
    Under sections 2595, 2605, R. S., relative to contested elections and the whole tenor of the intrusion law, defendant in the court below, and relator here on application for a mandamus, could waive the delay for answering and have a day designated for trial without waiting until issue was joined by said answer. ‘Whether the nature of the defense developed in the answer when filed would have authorized a continuance on behalf of the plaintiff is not a question in this case. If the plaintiff is debarred from asking for a jury to be summoned and for a continuance to that effect, it is by his own fault. There was no legal and valid reason for continuing the case as was done, and the plaintiff had no right to a trial by jury-as was accorded to him, inasmuch as he did not ask for one in his petition and procured the discharge of a jury that was present, to whose sufficiency and competency as jurors no objection was made, and by whom the defendant in the court below and relator here expressed a willingness to have his case tried immediately. Plaintiffs subsequent application for a jury was obviously for delay. The law makes this class of cases summary in form of proceeding. For these reasons the mandamus prayed for is made peremptory and the judge a quo is ordered to set down relator’s case ' for trial by preference over all other cases and without a jury on the second day of the regular term of his court, April 8,1873, and to have notice thereof immediately given to the parties.
    for a Mandamus against the Judge of the Fifteenth Judicial District, parish of Assumption.

      James Augustin, for relator. Judge Beattie, in propria persona.

    Justices concurring: Ludeling, Taliaferro, Howell, Morgan.
   Howell, J.

The relator alleges that on the fifth of February, 1873, in the suit of the State represented by the district attorney pro tempore V. E. S. Pintado, No. 1893 of the docket of the district court for the parish of Assumption, he was injoined from acting as the clerk of the court oí said parish, for which he held a commission, or 'interfering with E. L. Hebert as such clerk, in whose behalf the said suit was instituted under the intrusion law, and who signed the said writ of injunction; that on the fifteenth of said month, while his answer was in course of preparation, being anxious to have his title to said office adjudicated upon immediately, he petitioned the judge of the district court, under section 2605 R. S., to designate a day for the hearing of said cause at chambers; that the judge thereupon called a special term of the court on the third of March, 1873, and, upon his own motion, ordered a special jury to be drawn for said special term, in accordance with sections 1426, 1427 and 1428 R. S., relating to contested elections; that on said day, being ready for trial and having filed his answer, he was met by an exception to a trial on the part of the district attorney pro tempore, on the ground that the order of the fifteenth of February, “directing a special term of the court tobe holden on the third March, 1873, and ordering a jury to be impanneled for said special term was improvidently granted, the same having been rendered ex parte and ex offieio, before either or any of the parties to the proceeding had prayed lor a jury trial herein, and before the cause was at issue in any manner, and before any legal notice was given to any of the parties intrusted herein, nor has any legal notice been given to the parties intrusted since said order was granted. Wherefore exceptor; alleging that the cause is not yet at issue, prays that the said order of the fifteenth of February, 1873, be rescinded and .set aside, and now exceptor, plaintiff herein, prays for a trial by jury in this case, and that this court do now order the holding of a special term of this court for a trial of this cause on legal notice being given to the parties interested, and that a special jury be now summoned according to law to try the same, and for all and general relief; ” that in reply to said exception relator urged a trial on that or the next, or any early day, being willing to try the case either before the court or a jury, as a jury was present, although irregularly ordered, and although plaintiff’s prayer for a jury was too late, not having been made in the original petition as is necessary in these summary cases ; that the district judge refused to try the case, rescinded the order of the fifteenth February, discharged the jury in attendance and ordered the case to stand until the next regular term of the court, beginning on the first Monday, the seventh day of April, 1873; that he has cause to apprehend a mistrial or another continuance at the April term from the fact, among others, that the said district attorney pro tempore has instituted suit, under the intrusion law, against the sheriff of said parish and his competitor, thereby making the sheriff as well as the clerk interested parties, and he prays for a mandamus to compel the district judge to fix the said case for trial at chambers without a jury and upon ten days notice, or if plaintiff be entitled to a jury under the circumstances, then that the casu be fixed for trial at chambers before a special jury for the purpose, within ten days.

The judge says that the facts stated by the relator are correct so far as he knows, but under his interpretation of the ruling in the case of the State v. Head, 22 An. 54, no jury could be ordered except when prayed for, and that when prayed for, a special term under section 1932 R. S- must be called ; that the answer was only filed on the third March, and the case could not be fixed for trial until the answer was iu, and until the case was fixed for trial all parties had a right to trial by jury; that he refused to call a special term because there was not the necessary time to give the notices required by law before the regular session, which begins on the first Monday in April, and that he can not state whether or not a jury, which he granted can be had at the said April term.

The first and principal question necessary for decision in this proceeding is, did the relator, defendant in the suit below, have the right to have the case set down for trial before he filed his answer; and, secondly, did such action debar the plaintiff therein from asking for a jury to be summoned, and a continuance for the purpose ?

Both questions, we think, should be answered in the affirm :tive. Section 2595 R. S. declares that such cases are “to be tried with preference over all other cases, without being fixed for trial after issue joined;” and section 2605 provides that they “may be tried before the district judge in chambers, or at a special term called by said judge on legal notice being given the parties interested; and if required by either party, the judge may order a special jury, to be summoned according to law, to try such case.”

There can be no doubt that, if the defendant in said case, the relator here, had filed his answer when he asked the judge to designate a day for the trial of the case, the plaintiff’s right to demand a jury on the day so fixed for trial would have lapsed under the general rules relating to jury trials in civil cases. And we think it clear from the foregoing provisions and the whole tenor of the intrusion law that the said defendant could waive the delay for answering and have a day designated for the trial without waiting until issue was joined. Whether the nature of the defense developed in his answer when filed would have authorized a continuance on behalf of the plaintiff is not a question in this case. The plaintiff had the opportunity and the right to ask for a jury in his original petition. And whether the judge had the right of his own motion to order a jury it is unnecessary now to decide. There was a jury in attendance to whose sufficiency and competency as jurors no objection was made, and the defendant expressed a willingness to have the case tried immediately before them, and it may be that the judge could have ordered the trial to proceed before the said jury if lie believed a jury trial right and important. Be that as it may, we are clear in the opinion that there was no valid, legal reason for continuing the case as was done, and that the plaintiff therein has no right to a trial by jury, as was accorded to him, inasmuch as he did not ask for one in his petition, and he procured the discharge of the jury that was present. His subsequent application as made was obviously for delay. The law makes this class of cases summary in form of proceeding. It is unnecessary to pass on any other questions presented by the judge, or as to how or where a jui’y is to be summoned, as the case will come on in the regular term, it must be tried under section 2595 R. S.

It is therefore ordered that the mandamus herein be made peremptory, and that the district judge set down the case of the State ex rel. Walter Guion, district attorney pro tempore, v. E. G. Pintado, No. 1893 of the docket of the district court for the parish of Assumption, for trial with preference over all other cases and -without a jury, on Tuesday the eighth of April 1873, being the second day of the next regular term of said court, and that notice thereof be immediately given to the parties.

Wyly, J.,

dissenting. In my opinion this court has no authority to-fix this case for trial in the district court on Tuesday, eighth April, 1873, because there is no law authorizing this court to fix cases for trial in the district court, and there is' no law giving this court a supervisory control over the action of that court. Besides, according to the letter of the intrusion act no fixing is necessary by any court.

As the writ of mandamus can only be used in aid of the appellate jurisdiction of this court, that jurisdiction can be maintained if the case is tried on any day of the term as well as on Tuesday, the eighth April, 1873.

The law does not require the district judge to fix a particular day for the trial-of this case, and this court ought not by mandamus to command him to do what the law does not require.

The law does not declare that the State, the prominent litigant in intrusion suits, shall forfeit the right of jury trial if not asked for in the petition ; and this court ought not to enforce a forfeiture not prescribed by law.

Any ordinary litigant has the right, at least before issue joined, to-amend his pleadings and pray for a jury or anything else. Why may not the State 1

Because the law officer of the State, the district attorney jpro tem.r neglected or failed to pray for everything he wanted in the petition, is the State to be barred from the common right of every suitor. The right to amend his pleadings before issue joiued'? I think not.

But it is contended that as the judge of his own motion ordered a jury, the State should have accepted it, and having refused it. the State had no right to pray for a special term and for a jury — that this shows that the object of the prayer was purely for delay. The jury called at chambers by the judge without the prayer of either of the litigants and before issue joined, was a jury not convened according to-law and it was not obligatory on either of the litigants to accept it. Therefore no right was lost by refusing it. The charge that the sworn officer of the State, the district attorney pro tem., is merely maneuvering for delay in demanding what is believed to be a legal right is, in-my opinion, gratuitous.

The answer of the judge is that he designated the third March for trial at chambers. No special term was called or held. Therefore there was no fixing of the case at a term of the court.

The question is, had the State the right, before issue joined, to call for a special term and for a jury 1

This was the question presented in the case of Head, 22 An. 54, and this court said : “ The defendant in his answer prayed for a trial by jury, but the judge a quo refused to allow the same. In this we think there was error. The act of 1868, No. 156, under which this action was instituted no where deprives the defendant of the general right to-a jury. It is provided by the thirteenth section that ‘ all the cases coming under the provisions of this law may be tried by a judge of the district in chambers, or at a special term called by said judge, on legal notice being given to all parties interested ; and if required by either party the judge may order a special jury to be summoned according to law, to try such case.’ We apprehend the meaning of this section to be that the cause may be tried in chambers if neither party asks for a jury, but if a jury be prayed for it will be necessary when a speedy trial is desired and a regular term is not in session, to appoint a special term and to summon a jury therefor under the power conferred by the last clause of the section.”

In that case the defendant on the day designated for trial at chambers-filed his answer and prayed for a jury. In this case on the day designated for trial in chambers the plaintiff before issue joined, prayed for a special term and a jury. In that case this court considered that the judge erred in not continuing the case and calling a special term. Here the court holds that tlie judge erred in permitting the trial at-chambers to be delayed on account of the application for a special term and a jury.

In the light of the statute as interpreted by this court in the Head case, I do not think the district judge erred in delaying the trial at chambers in consequence of the application for jury, because this-court expressly decided the meaning of the law to be that the cause-may be tried in chambers if neither party asks for a jury, but if a jury be prayed for, it will be necessary when a speedy trial is desired and a regular term is not in session, to appoint a special term and summon a jury.”

I believe the court in the Head case properly interpreted the law, and that either party when the case is set for trial at chambers may have-a continuance and require a special term and a jury. The statute provides that the jury “. be summoned according to law.” I understand this to mean that the jury must be convened according to law — that is, the jury must be convened at the general term or a special term of the court; because there is law providing for a jury at such terms, and there is no law providing for a jury at chambers. Therefore a jury summoned at chambers would not be summoned or convened according to law.

I think the district judge committed no error; that under the ruling: in the Head case he properly deferred the trial at chambers, in consequence of the prayer for jury; and finding that the regular term of his-court would arrive before a special term could be convened he did not err in delaying the case for trial at the regular term beginning April 7, 1873. Whether or not there will be a failure of a jury at that session remains to be determined when the court opens. If there should be a failure of a jury at said term, however, it will be the duty of the judge to call a special term. Until he fails to do so, the writ of mandamus should not be used against him.

I therefore dissent in this case. •