author: Bermudez;, C. J.

text:
    No. 8442.
    The State of Louisiana ex rel. A. H. Isaacson et al. vs. Judge of Civil District Court, Parish of Orleans.
    Oppositions to applications mad© to the G-overnor for the cancellation of bonds of public officers, áte required to be referred to a competent court. When so referred, they must-be tried without any new pleadings. The form of the proceedings is authorized by law. Issues are thus presented. A mandamus lies to compel the District Judge to proceed with the trial of such oppositions.
    Application for Writ of Mandamus.

      Francis A. Monroe, Judge, Respondent.

      F!. Howard McCaleh, for the Relators:
    1. Act Ho. 15, approved Eebruary 24th, 1877, relating to the cancellation of official bonds, does not require any new pleadings to he filed after the Governor has referred the parties • to a competent court to decide upon their respective rights. The record is made up in the Secretary of State’s office before the reference.

      % The public notices given by the Governor under this Act resemble a monition. > The oppositions are answers, and the burden of proof rests upon the parties opposing, to estab- ' lish their averments. Replications are not permitted in our system of pleadings. H. D. 1 Pleading Y. <c) 2.
    3. The effect of cancelling the officer’s bond is to release the sureties as.well as the mortgage. .( 22 A, 29.
    4. The writ of mandamus is the proper remedy to compel a District Judge to decide a cause at issue before him. 4 R. 227; 13 A. 481 and 483. In such case it tabes the place of the • writ of “procedendo>ad judicium,” which issued out of tlie Chancery Court in England. Blacbstone, Bb. III. [*109J; High’s Extraordinary Regal Remedies. §§ 147. 148,149, 150, 151,152, 250, 251;-Moses on Mandamus, Chap. III.

      Geo. Ij. Bright, fpr tlie Respondent.
   Tlie opinion of tlie Court was delivered by

Bermudez;, C. J.

This is an application for a manclamns to compel the District Jndge to hear, try and determine a certain matter alleged tobe pending before the court over which he presides, and which was assigned to him, and which lie refuses to entertain and decide.

■"-'The Relators aver substantially:

That under the. provisions of Act No-. 15 of 1877, they applied to the Executive for the cancellation of their official bonds, each for $25,000,-as Administrators of the City of New Orleans; that the required publication was given of their application in the form and' during the time prescribed by law; that three oppositions were formed thereto; that, after the expiration of the delay for opposition, the Governor referred the parties to the Civil District Court for the Parish of Orleans; that the matter was allotted to the defendant Judge; that the cause was regularly fixed and posted for trial; that when it was called up for trial, the counsel of one of the opponents objected to its being gone into; that the Judge sustained the objection and ruled that Relators must file in said Court respectively petitions and issue citations directed to those persons who had made oppositions in the office of the Secretary of State, calling upon them anew, to show cause why Relators’ official bonds, respectively, should not be cancelled, and praying for the cancellation ; that said Judge ordered said cause to be continued indefinitely until said pleadings be filed and said proceedings had; that the action of said Judge is illegal and wrongful; that unreasonable delay will occur, working irreparable" injury ; that they have no relief by the ordinary means ; that the slowness of ordinary forms will produce delay amounting to a denial of justice; that justice and reason require that some mode should exist for redressing the wrong complained of. They pray for a mcmda/inm accordingly.

- In the return presented in his name, by the counsel of the objecting opponent, the District Judge pleads :

That mandamus is not the proper remedy; that he objected to going into trial, on the grounds that there was nothing pending before the court, no petition had been filed, nobody cited to answer, no issue formed, and no notice of the pendency of the proceedings in his court had been given to Ms opponents, and that Iris ruling is correct.

The reference made by the Governor, under Ms hand and the seal of the State, is, in as many words, addressed to the District Court for the Parish of Orleans, and is accompanied by an authentic copy of all the proceedings had under the applications for the cancellation of the bonds. It is before ns in the original and bears the endorsements put upon it, to number, docket, and file the same, by the Clerk of the District Court.

. The facts alleged by the Relators and by the Judge, are not controverted.

The questions presented are:

1. Whether, under the showing made, the Relators have sought the proper mode of relief.

2. Whether, if they have, the mandemms asked should issue.

i.

It. is impossible to determine tbe question of form without somewhat trenching upon the second inquiry. To avoid a premature and irregular determination, we will do so hypothetically only.

If it be true that the matter which the District Court was asked to hear, try and determine, was in proper form to be tried and passed upon, and that the Judge refused to try it, without sufficient cause, and continued it indefinitely, thereby causing unnecessary, unreasonable and hurtful delay, there can be no doubt that a mandamus is the proper remedy.

The order in such a case could only be one to set the machinery of the court in'motion, one in the nature of the ancient writ of procedendo ad judicium, without, however, specifying what particular judgment should be rendered, for that would be usurping the functions of the Judge and doing violence to his judicial discretion. High on Ex. R. 147, ct seq.; Moses on Mand. III.; Blackstone III., 109.

It is true, as a general proposition of law, that continuances are within the discretion of the court, and not re viewable by the Appellate Court, but the rule does not apply to cases in which that discretion was'not legally and soundly exercised, and in which the propriety of dn indefinite postponement, susceptible of occasioning great wrong and injury to the litigants, who complain thereof, is raised on an application for a mamdmnus to compel trial on its merits, and it is shown that injustice will be done. 9 Pet. 574; 39 Cal. 411; 6. Fla.-279 ; 28-Mo. 259;' 13 A. 481, 483; 15 A. 113; 2 R. 48.

A distinction is recognized between cases where it is sought by mamlamus to control the decision of the inferior court upon the merits of a canse, and cases where it has refused to go into the merits of the action, upon an erroneous construction of some question of law, or of practice, preliminary to the whole case. * * * While the decision of'such court upon the merits of the controversy will not be controlled by mandamus', yet if it has erroneously decided some question of law, or of practice, presented as a preliminary objection, and upon such erroneous' construction has refused to go into the merits of the case, mandanvus will lie to compel it to proceed.” 3 Ad. and E. N. S. 810; 28 Mo. 259; High on Ex. Rem. § 151, vo. Mand.

■ Where, in'statutory proceedings to test the election of an officer, the court quashed them, because the contestant had not given the notice required by the statute, if the court erred in the question of notice, it was held that the writ would lie to compel it to reinstate the case and proceed to a hearing, regardless of whether the party aggrieved had or not another adequate remedy for the grievance sustained. 28 Mo. 259 ; 1 Mich; 359 ; 2 Green. (N. J.) 467.

Mandamus lies to compel inferior courts to proceed with the trial of causes which they have delayed without sufficient reason, the plaintiff in a cause having an absolute right to the determination of his action. 43 Cal. 225.

“ The rule,” says High, on Ex. Remed. p, 190, § 251, “ may now be regarded as well established, that -mandamus lies' in all cases to compel an inferior court to proceed to the trial of a cause and to set it in motion, where it has unreasonably delayed the proceedings, or where its refusal to proceed is a denial of justice.” The object in the writ in this class of cases, is not to compel a particular decision, but merely to set the court in motion, and to require it to exercise its undoubted jurisdiction, and when this is done, its full purpose is accomplished. 4 R. 227; 5 Ohio, 542 ; 21 Cal. 419; 10 Ark. 243; 43 Cal. 225.

II.

Having ruled that, in a proper case of illegal, and wrongful continuance, amounting to a denial of justice, a mandamus is the proper remedy to compel a trial, we are next, under the exceptional complexion of this case, necessarily driven to inquire whether the District Judge should or not have tried and determined the matter presented before him and in the form in which it was offered to b,e done. Either the matter was in proper form, or it was not.

If it was, and a valid reason was shown, the court could have continued it, but it would have been no valid reason to continue it to permit parties to file petitions and issue citations, which are the fundamental and indispensable proceedings usually required in ordinary cases. That would have been, in the same breath, admitting that the case was not and should be, in proper original form. The Judge viewed the matter before him otherwise than as a suit, for he says, he found in the papers no petition, no citation, no issue joined, no notice of trial.

If the matter was not in .the form of a suit, as it is contended it was not, then, there being no action before the court, there was nothing to continue, no corpus upon which to base any ruling of preservation, and the only order that could be made was to dismiss it, as improperly brought before the Court," without any semblance of legal form. .

In either eventuality, the matter, whatever it was, should not have been continued for the motive assigned, as in the mind of the Judge it was not pending before his court.

After reading attentively the Statute of 1877, No. 15, which governs this case, and considering the record before us, we are satisfied that there was a petition, a citation, an issue joined, in the matter presented to the District Judge, and that it was his duty, at the instance of the Kelátors, to have imoceeded to hear, try and determine the questions involved in the controversy.

• The forms in which the differences of parties may have to be presented for judicial determination, fluctuate with the legislative will, as has been often said. The legislature ha» a light to legislate on all subjects and in all manners, except so far as its action may be restricted by the organic law.

In this State, although the rule of practice be, in cases before District Coarts-and Superior Courts, to proceed by petition and personal eitation, there exist many exceptions, in winch the proceeding is not in that form.

The law permits and even directs, that delinquent tax payers shall be cited by advertisement in a newspaper; that parties concerned in the settlement of estates and of insolvencies and in the title of property transferred by judicial agency, be cited in like manner, to oppose the appointment of administrators, the homologation of accounts and tableaux of distribution and of sales under applications for a monition.

In all such cases, the process is predicated upon a petition, but. there are other cases, in which the law provides that the summary proceedings shall be by motion or. rule. Thus the right of office of a Judge can be tested by a rule; a defaulting Tax Collector and bis sureties can be proceeded against by rule; funds proceeding from a judicial sale can be distributed in a concurso by rule j tbe erasure of. mortgage inscriptions can, in some instances, be obtained by rule.

In those instances, no petition, no citation is required, no written answer is necessary to join issue, although it is safer for parties tq defend themselves in writing.

■As' a rule, in the cases referred to, the law makes the clerk of the court the officer who is to receive and file the proceedings, and designates Ms office as the place where they are to be received and kept 5, but there exists no constitutional inhibition, preventing tbe legislature from conferring upon another .officer the power of receiving and preserving proceedings in which matters may eventually have to be submitted for adjudication to a competent judicial tribunal, and from designating another place for tbe reception, registering and deposit of papers in such proceedings; neither is there any prohibition to prevent, tbe legislature from authorizing the institution of actions, otherwise than by petition or rule. Therefore it is, that the'courts have ruled as they have, touching the constitutionality of the proceedings in the forms which we have stated.

All that litigants are entitled to demand, under the constitutional guarantee which secures to them due process of law, is that their differenees be adjusted by judicial authority, in the manner and form prescribed by law and after hearing, or opportunity given to be heard.

In the instant 'case, we find a proceeding- entirely mi generis, but which presents a demand, a citation, and answers or appearances, by which issues have been formed, susceptible of amendments, when in advancement of the ends of justice and. not forbidden by law.

It is true the case was called and fixed under the rules of the court; that the parties filing oppositions in the office of the Secretary of State, may be viewed as having filed them in the clerk’s office of the court, and thus may be held, perhaps, to have known that their case had been called and fixed; but, we think that' there is left to the District Judge a certain latitude, in such cases, which were not in contemplation, (as iione had probably previously occurred) when the rules for the government of the court were adopted, and that he has the discretion to require a special reasonable fiotice to be served to the parties, before the trial of the controversy can bé gone into.

Had this question of notice been the only one before us in this proceeding, a different question would'have been presented, and a'different ruling might have been made. We deal with the case as it is submitted.

The memorial addressed by tile1 Governor to the District- Court, seis forth all the averments proper and necessary to fully apprise that tribunal of what-it is called upon to determine. It avers that applications were made to the Executive for the cancellation of certain official bonds; that the publication required by law liad been duly given and that ©impositions have been formed to the cancellations and discharges asked. The document is accompanied by a copy of the Record of all the proceedings had in consequence of, and under said applications, in the office of the Secretary of State. The instrument concludes , by referring to the oppositions and- 'submitting the subject-matter of controversy to the court for decision, according'to law. ' We find that it is iu perfect accord with the law, which is an Act of 1877, No. 15, p. 19, and that it was the duty of the Judge of the District Court, to have treated the case as' one. brought in the form prescribed by the statutes, and to have proceeded to the trial thereof, after proper notice, and to have determined the same on its merits, in the mode directed bylaw.

To require a petition, a citation, and á formal joining of issue by-answer, would be to interpolate in the law additional formalities which the statutes does not prescribe.

.. Considering, therefore,, that the matter should not have been continued, until a petition had been filed, a citation had issued, and issue bad been joined, and that it is the duty of the District Judge, .after due notice given of the fixing' of the case, to proceed to hear, try and determine the same in the manner pointed out by law :

It is ordered and decreed, that the application for a mandamus herein he made peremptory, at the cost of the opponent, defendant herein.


source: Caselaw Access Project

author: Levy, J.

license: Public Domain

text:
    No. 8046.
    Ludwig Funke, Jr. vs. Joseph Dreyfus & Co. Same vs. Jacob Gottschalk.
    Suit based on infringements of a trade-mark.
    Tbe evidence establishes the proprietary interest of plaintiff in his trade-mark; also, the medicinal properties of his bitters, and that he is not guilty of fraud in using the word “imported ” on his labels.
    The unauthorized use by other parties, of plaintiff’s trade-mark, is no justification of defendant’s acts of infringement; but, on the contrary, such circumstance is, under the authorities, one of aggravation.
    APPEAL from the Fifth District Court for the Parish of Orleans» Rogers, J.

      Leovy & Kruttschnitt, for Plaintiff and Appellee:
    i.
    The manufacturer or merchant who has produced or brought into market an article of me or consumption that has found favor with the public, who, by fixing to it some name, device or symbol, or his autograph or facsimile of autograph, which serves to distinguish it as his, shall receive the reward of his skill or enterprise, and shall not be prejudiced by infringement or imitation of his trade-mark by others. Courts will restrain the wrongdoer. Wolfe vs. Barnett, 24 An. p. 97; Insurance Oil Co. vs. Scott, 33 An. p. 948; 13 Wall. 322 ; 6 Otto, 245; 100 IT. S. S. C. p. 617; 1st Cooley on Torts, 359; Upton on TradeMarks, p. 57; Coddingfcon’s Digest, Sec. 589, et seq.; Browne on Trade-Marks, Sec. 207; Cox’s Dig. p. 73.
    II,
    Owners of trade-marks will not be deprived of remedy against piracy of their marks because of any alleged misrepresentations, by them, unintentionally made, especially when, in a reasonable sense, the statements are substantially true. Equitable remedy is refused only where there is a fraudulent design in a material matter. Thus, the use of the word “patent,” where goods were originally patented; or the word “imported,” where they were originally imported, or where the main ingredients are imported, will not vitiate a trade-mark or prevent infringement, especially where the wrong-doer, himself, uses the same words. Ins. Oil. Co. vs. Scott, 33 An. 948; High on Injunctions, 674. See also, the cases reported in Cox’s new Digest of Trade-Mark Cases, pp. 58, 67. 81.102, 1C8,118,152, 215, 273, 338. Conrad vs. Brewing Co., St. Louis Court of Appeals, October Term, 1879; Coddipgton’s Digest Trade-Mark Cases, Secs. 561, 565, 570, 571"; American Trade-Mark Cases, pp. 282, 589; 39 Conn. 459 ; 35 Conn. 402.
    III.
    Long, unlawful use, by others, of the trade-mark of plaintiff, can vest no right in them or others, to such use. Knowledge and acquiescence of the owner must he proved. It is1 never presumed. 24 An. 97; Cox’s Digest Trade-Mark Cases, Kos. 638, 642,228; Coddingtou’s Digest Trade-Mark Cases, Secs. 57, 58, 62, 64; American Trade-Mark Cases, pp. 101, 536, and Browne on Trade-Marks. Sec. 685.
    And, even where there has been consent, without consideration, it may at any time be withdrawn. Coddington’s Digest, Secs. 59, 63, 64; Cox’s Digest, Kbs. 100, 137.'
    IV.
    "While punitory or exemplary damages are not given in Trade-Mark Cases, enough is allowed to cover all losses caused by the wrongful acts of the defendant — loss by injury to the reputation of the article imitated, caused by sale of inferior goods; loss from depreciation in price, caused by competition; and defendant is compelled to account for all profits realized from the illicit trade. Even where no specific damages are proved, plaintiff may recover. He is entitled to all the profits made by defendant, and his remedy is not limited to the profits. Browne on Trade-Marks, Secs. 503, 505 ; 4 McLean, 520 ;'7 Cushing, 322; Coddington’s Digest Trade-Mark Cases, Secs. 246 and 1051-2; Cox’s Digest TradeMark Cases, Kos. Ill, 347, 354.
    V,
    The prescription of one year is not applicable to claim for profits against an infringer of trade-marks; the proscription is ten years Such infiinger is, by the lex mercatoria-, a trustee — a negotiorum gestor.

    1. By both the commercial law aud civil law, he who uses the name and trade-mark of another, is an agent or a negotiorwm gestor, and, as such, is bound to account for the profits. Browne on Trade-Marks, Sec. 187; Kerr on Injunctions, Sec. 381; Amer. Law Review, K, S., June, 1880; 6 Wait’s Action, p. 36; Coddington Dig. (French Decisions), Sec. 1052; Cox’s Dig., T. M. Cases, Ho. 347; C. C. 2301,2311; C.H. 1376; Bouvier’s Diet., “ Negotiorum Gestor,” and authorities there cited. Eor English decisions, see 2 Daniels’ Chancery Practice, Sec. 1649 (Hoto) ; 33 Beavan, 578; 31 Beavan, 595 ; 11 Jurist, N. s. 408; 14 Weekly Reporter, 166.
    2. The uniform commercial law of other States is the law of Louisiana, unless positive injunctions of La. Statutes forbid. Hennen's Digest, 795 ; 2 M. 304; 7 M. 460; 12 M. 498 ; 5 La. 403 ; 2 R. R. 124; 4 An. 210, 206 ; 6 An. 781, 611.
    3. Prescription for a teim less than ten years cannot be pleaded by a trustee, agent or 7u>go1iontm gestor. Louque’s Digest, p. 571; 15 An. 143; 19 An. 142; 12 An. 632; 17 An. 246 ; 20 An. 381; 21 An. 406; 22 An. 151; 27 An. 132.

      Olías. 8. Hice, for Defendants and Appellants :
    1. Under the pleadings, plaintiff was bound to establish his title to the alleged trade-mark; to prove the medicinal and valuable — intrinsically—qualities of his “ preparation; ’' and to show the truthfulness of the representations in his alleged trade-mark and the advertisements accompanying it.
    2. There is no legal evidence of title in the record.
    3. There is no evidence in the record of any medicinal or intrinsically valuable qualities in plaintiff’s “preparation.”
    The traverse in the answer of the allegation in the petition of its possession of these qualities, and the failure of plaintiff to make such proof, supported by the refusal of plaintiff to disclose the materials of which and the manner in which' his “ preparation is'compounded, are conclusive of the truth of the traverse. 14 An. 81.
    4. The plaintiff’s “preparation ” is a quack “ preparation,” and is not entitled to protection. Am. Trade-Mark Cases, 180, 68 to 71, 644, 226 et seq , 154, 311; Coddington’s Digest, Secs. 567, 661 to 663, 664.
    5. By the use of the word “Imported” as part of the alleged trade-mark, as well as the representation of a croum thereon; and the advertisement accompanying each package, representing plaintiff as “ sole agent for the proprietors,” the plaintiff was and is guilty of misrepresentation and fraud on the public; the “ preparatiou ” being compounded in the United States, and not in a foreign country; and plaintiff is not entitled to the protection of a court of equity. Am. Trade-Mark Cases, 290, 527, 640; Browne on Trade Marks, Sec. 491; and cases referred to in "body of "brief, recently decided in San Erancisco, 36 Law Journal, Cliap. 328.
    6.. The open and notorious use of tlie alleged trade-mark for, at least, twenty years last past, and the inferences a/nd proofs that such use. was and must have been known to the plaintiff, and his acquiescence in such use, estop him from relief by injunction, and, at all events, from any recovery of damages. Browne on Trade-Marks, Secs. 497, 510-512; Coddington’s Dig., verb. “Acquiescence/’p. Vt etscq.

    7. By whatever rule the plaintiff is entitled to measure any recovery, the amount of his recovery is damages — his claim for which is prescribed by lapse of one year. C. C. 2315; Browne on Trade-Marks, Secs. 502, 503 and 504; CoddingtonV Dig., verb. Damages, Secs. 235 etseq.¡ Upton on Tra&e-Miarks, pp. 244 to 246; Graham vs. State, 40 Col. 593; s. c. Sedgwick’s Leading Cases on tbe Measure of Damages, 716; Sedgwick on the Measure of Damages, 5 Ed. 675, note.
   Tlie opinion of tlie Court was delivered by

Levy, J.

Similar judgments, based on tlie same evidence in botb these cases, have been rendered, and they are consolidated for trial before this Court. The defendants are the appellants.

Plaintiff alleges infringements of his trade-mark of a preparation known as Boker’s Bitters,” by defendants, and in Ms suits prayed for and obtained injunctions, and sought damages on account of said infringements. There were judgments in the lower court, perpetuating the injunctions and awarding to plaintiff, in each of the suits, damages to the extent of ñve hundred dollars.

■In his petition, plaintiff alleges that, since February, 1860, be has manufactured a medicinal preparation, or bitters, of great value, which has been successfully used as a specific in certain diseases; that this preparation has always been made of the best Cologne or French spirits, mixed with other ingredients of good quality and valuable curative properties, and to this preparation the name of “ Boker’s Stomach Bitters” was given many years since, and is the peculiar name by which it has always been known in the markets of this and other countries; that it lias "been officially recognized by tlie United States Commissioner of Internal Eevenue, who has decided it to he a medicinal preparation which, if properly stamped, may be sold by druggists and apothecaries, without rendering them liable to pay a special tax as liquor dealers; that these Bitters ” were first manufactured in 1828, by John G-. Boker; from 1828 to January, 1853, tlieir manufacture and sale was conducted by said John G. Boker, in conjunction with his brother, E. Boker, in tlie name of John G. and E. Boker j E. Boker died in 1853, and the business was then conducted under tlie style of John G. and bis son, J. Boker, the former continuing as sole owner of tlie trade-marks, and receipts and manufacture. On the 29th of February, 1860, Jolm G-. Boker sold tlie business, tbe good will, the trade-marks, receipts, and everything pertaining to the mannfacture and sale of the Bitters” to plaintiff, who was the son-in-law of said John G. Bolter; that since said sale, plaintiff has been the sole and undisputed owner of said business, receipts and trade-niarlts, labels, and rights to use the same, and signatures of the old firms, and has had the exclusive right to, manufacture and sell said Bitters, and has manufactured and sold them in largo quantities, made of the best, and finest materials; that, in 1853, the manufacturers adopted as a name and trade-mark, the words: “ Boker’s Stomach Bitters;” that from that date, they branded on the boxes or packages containing this preparation these words, and on the top of the boxes : J. G. & J. B. Boker,” and since, after notice to that effect, there has been an additional label with a fao simile of the signature of said firm ; that at the same time and ever since, the manufacturers, for the further purpose of distinguishing the said Bitters, have affixed to every bottle thereof, a red label with the words : “ Stomach Bitters, imported by J. G. & J. B. Boker, New York,” printed thereon, and elaborated ornamentally, which they made part of their trade-mark for labels, and to avoid counterfeiting they put up their bitters in bottles of peculiar shape, easily distinguished from bottles generally used for other bitters; that his assignor invented the name Boker’s Stomach Bitters” and he was first to use the same, and the symbols, bottles and insignia described as his trade-mark; that his said business has involved great expenditure of money and labor; that said trade-mark has become very valuable to him, etc.; that the defendants have for several years illegally manufactured and sold, and are still manufacturing and selling an inferior quality of bitters, which they represent to be the bitters manufactured and sold by plaintiff, and with the intention to deceive the public, and fraudulently derive advantage thereby, they have used the same form of bottles, adopted by plaintiff, and have affixed thereto a notice similar to plaintiff’s and a counterfeit of the signatures of John G. and J. Boker, and a counterfeit and close imitation of the red label of plaintiff and the words thereon, and the symbols and insignia surrounding said words, and with same intent, have imitated and counterfeited on the boxes used by them the labels and words selected and used by plaintiff and his assignor, as set forth above. He also alleges that the sale of inferior bitters by the defendants, as the genuine Boker’s Stomach Bitters” has greatly injured the reputation of plaintiff’s preparation, and this has materiallyinjured plaintiff in his business.

Defendant filed an exception of no cause of action and also answered, denying that the words used by plaintiff constitute a trade-mark, and alleging that, even if they do, plaintiff has no right or ownership therein entitling him to the exclusive use and appropriation óf the saíne; that for more than twenty-five years the pretended trade-mark lias been and is now in common public use, and this has not been objected to, bnt lias been acquiesced in by plaintiff and his assignor, and that no exclusive right, to the same can be maintained. Further, they aver that the representation on the labels that the said compound is imported, is false and fraudulent and intended as a fraud upon the public, and, therefore, plaintiff is not entitled to the exclusive use or the protection demanded by him. He avers also that plaintiff holds out to the public, not that he is the owner, hut that he is the agent of the proprietors, whose names are not discovered; that, if he is agent, he is without right to stand in judgment; that if such representation is not true, then he is guilty of fraud and deceit upon the public, which estops him from demanding file interposition of this Court. They also deny that the preparation is possessed of medical and curative qualities, and aver that such representations are a fraud and estop plaintiff’s demand.

Thé defenses setup in the answer may he thus summarized, and will he considered in their order :

1. That plaintiff has not proved by legal evidence Ms proprietary interest, in tlie trade-marks and labels.

The testimony of many witnesses in the record proves satisfactorily that plaintiff and bis vendors for a great number of years liave been in tlie ownership of the trade-mark and labels, and this testimony was not objected to. The objection to the admissibility of tlie copy of tlie act of sale to plaintiff, as evidence, was not ruled upon, and no bill of exceptions was taken to its admission. We tliink the ownership is fully proved. 1 Dillon’s U. S. C. C. R. 329 ; 9 La. 424.

2. Thatplaintiff lias failed to prove that these hitters have medicinal properties.

The testimony and, indeed, the universal opinion on the subject makes it clear to our mind, that hitters are.regarded as tonics and are useful in the correction of many disorders of the stomach; that these, particular bitters liave been in general use, as such, for a very long time ; that they are pure and made of good materials; that the United States Internal Revenue Department recognized them as valuable and exemi>ted them from the special liquor tax, which exemption is only made in cases of liquors which are regarded as forming part of medicinal preparations. 100 U. S. R. 617; 6 Wait’s Actions 27; 24 A. 97.

3. That plaintiff is guilty of fraud in representing on his labels that the hitter is imported ” and is tlms disentitled to equitable remedy.

The evidence satisfies us that the use of this word on the label was not made for the purpose of deceiving the public or with fraudulent intent.

In the case of Wolfe vs. Barnett & Lion, 24 A. 97, this Court held -. “ hut if the trade-mark consists of something else, as the plaintiff’s own name combined with a sonorous appellation, well calculated to express origin and ownership, as well as to attract the attention and impress the memory of buyers, it is only necessary that he should manufacture, without exclusive right, or represent a manufacturer.” And we think the true rule, as applicable to this case, is correctly stated in the following passage, (from Upton, on Trade-Marks, page 97) to be this:

“ That the honest,• skillful and industrious manufacturer or enterprising merchant, who has produced or brought into the market an article of use or consumption that, has found favor with the public, and who, by' affixing to it some name, mark, device or symbol, which serves to distinguish it as his, aud to distinguish it from all others, has furnished his individual guaranty' and assurance of the quality and integrity'’ of the- manufacturer, shall receive, the first reward of his honesty, skill, industry or enterprise; and shall in no manner and to no extent be deprived of the same by another, who, to that end, appropriates and applies to his iiroduetions the same or a colorable imitation, of the some name, marie, device or symbol, so that the public are, or may be, deceived or misled into the purchase of the productions of the one, supposing them to be those of the other. 17 Barbour, 608 ; 3 Sanford, 725; 25 Barb. 416.”

In the case of Insurance Oil Tank Co. vs. Scott, recently decided by us and reported in 33 A. 946, this Court considered and passed upon a question much like this; in the last named case, the word patented being used upon the labels or plates, when it was contended that the article liad not been really patented. We there held: Defendant urges that the use of the abbreviation ‘Pat.,’ meaning patented, in the trade-mark, is a fraud on the public and a violation of law, which deprives plaintiff of the right of redress. It is undoubtedly true that the affixing of the word ‘patent’ to an unpatonted article, ‘for the purpose of deceiving the public, is prohibited, under penalties, by the laws of the United States ; U. S. R. S. § 4901; and that a representation in a trade-mark that an unpatented article is protected by a patent, prima facie amounts to a misrepresentation of an important fact, which would disentitle the owner of the mark to relief in a court of equity, as against a pirate. Browne on Trade Marks, § 572; Coddington’s Digest Tr. M. Cases § 548; 39 Conn. 450. But to-have such effect, the use of the word ‘ patented7 must be ‘ with the purpose of deceiving the public,’ and if such fraudulent intention does not exist, and the use of the word may be explained in any reasonable sense consistent with truth and honesty, the party' will not be prejudiced. High on Injunct.ions, §674; Ooddington’s Dig. §§570, 571.” Also: “It may be, as contended by defendant, tlmt the oil sold by him under plaintiff's trademark is equal, in all respects, to the oil of plaintiff. But, if defendant may use this mark, other less conscientious dealers may employ it for inferior and dangerous oils; and the public would thereby bo deprived of the security now enjoyed in the purchase of oil so marked, and the business of plaintiff would be destroyed.” Ibid. “ Defendant has no right, in justice or in law, to trade upon the reputation and business sagacity and enterprise of plaintiff, which are represented by and embodied in its trade-mark.” Ibid. See also Coddington’s Dig. §§ 546, 543, 558, 561, 565, 570, 571 ; Cox on TradeMarks, 117, 195, 591, 106, 180.

The use of the words “ sole agent,” by plaintiff, which is dwelt upon by the defense, lias been satisfactorily explained and falls under the the above reasoning, because they were not used for the purpose of deceiving the public or with fraudulent intent.

4th. Defendants contend that, from long rise by others, they were justified in imitating the trade-mark, and they supposed acquiescence on the part of the owner.

The doctrine of acquiescence is ably and elaborately discussed in Browne on Trade-Marks, § 685. That author says: “ Story, J., once spoke thus: Again it has been said that other persons have imitated the same spools and labels of the plaintiffs, and sold the manufacture. But this aggravates rather than excuses the misconduct, unless done with the consent or acquiescence of the plaintiffs, which there is not the slightest evidence to establish; or that the plaintiffs ever intended to surrender their rights to the public at large or to the invaders in particular.” 3 Story, 458. In another case, Woodbury, J. said: “I am not aware of any principle by which a usage in this or a foreign country is competent evidence in defense of a wrong.” “ But I am not aware that a neglect to prosecute, because oue believed he had no rights, or from mere procrastination, is' any defense at law, whatever it may be in equity.” “ There is something very abhorrent, in allowing such a defense to a wrong, which consists in counterfeiting others’ marks or stamps, defrauding others of what liad been gained by their industry and skill, and robbing them of the fmits of their good name,’ merely because they have shown forbearance and kindness.” “ It is rather an aggravation to the plaintiff that many others have injured them.” 2 Wood and M. 1; 44 Mo. 173.

5th. Defendant invokes the prescription of one year. We do not think it tenable. We concur with counsel for the plaintiff and the authorities cited by him, that the “ infringer who illegally appropriates an invention to his own use, making profit thereby, may be treated as Ms trustee in respect of suck profits and compelled to account therefor in eqMty.” Browne on Trade-Marks, § 507 $ Louque’s Dig. p. 571; 19 A. 492, etc.

Under all tke circumstances of tliis case, however, we are not disposed to increase the damages allowed by the lower court.

The judgments appealed from are, therefore, affirmed at costs of the appellants.

Rehearing refused.


author: Fenner, J.

text:
    No. 8356.
    The State of Louisiana vs. Charles Williams.
    The defense, that Section 788 of the Revised Statutes, providing for the punishment of the enme against nature, with which the accused is charged, does not define the offense or describe any crime known to the Common Law, is without foundation.
    APPEAL from the Criminal District Court for tlie Parish of Orleans. Homan, J.

      J. 0. Egan, Attorney General, for tlie State, Appellee:
    3. “Crime against nature” is a common law offense; also an offense against the law of Louisiana. Sec. 788, It. S. of La.; 4 Blackstone, 214; Bouvier’s Law Dictionary; Bishop on Criminal Law, Yol. 1, Seo. 503.
    2. “ Every objection to any indictment for any formal defect apparent on the face thereof, shall be taken by demurrer or motion to quash such indictment before the jury shall be sworn, and not afterwards.” Seo. 1064, li. S.
    3. The forms of indictments (divested of unnecessary prolixity) shall be according to the common law, unless otherwise provided. Sec. 976, R. S.

      Jas. G. WaUcer, Ám/ieus Gurice, for Defendant and Appellant;
    1. Section 788, R. S., does not define tlie crime which it denounces as “the detestable and abominable crime against nature,” and weave therefore referred to the common law by Sec. 97C to ascertain what crime is indicated; but the common law recognizes no such crime co nomine as “the detestable and abominable crime against nature;” sodomy was, felony by the ancient common law, and buggery was felony without benefit of clergy, according to 25 Henry YHI. C. 6, and there are many crimes against nature which cannot be included within the definition of either one or the other of these terms.
    2. The material allegations of time and place should precede every issuable fact in an indictment for sodomy; otherwise the indictment is vitiated and sentence must he arrested.

      Tecatum illud horHbile J J J

    The Attorney General has submitted this case on the ground “that the record contains no hills of exceptions, assignments of erroi s, or brief on behalf of appellant, and the proceedings appear to have been regular.” The prosecution against the accused was by information filed by the District Attorney for the Parish of Orleans, and the appeal is from a sentence of imprisonment at hard labor for life. Something more is required besides the fact that the proceedings “appear to be regular,” to convince your Honors that “ the judgment and sentence should be affhnud,” in view of the magnitude of the punishment imposed by the court below; therefore,

      As amicus curia*, appointed by ibis Court to urge sucb defenses in behalf of the appellant as appear to be suggested by the record, the following observations are respectfully-submitted.
   The opinion of the Court was delivered hy

Fenner, J.

The learned counsel appointed hy the Court to represent the prisoner has discharged his gratuitous task with zeal and ability, justly meriting our commendation.

It is contended that the Section 788, R. S., providing for the punishment of the “ abominable and detestable crime against nature, committed with mankind or beast,” does not define the crime, and that it does not describe any crime known to the common law.

The books satisfy us that the crime referred to by the statute is known in the common law by the convertible and equivalent names of “crime against nature," “sodomy,” and “buggery.” Bishop Cr. L. §503; 4 Blackstone Com. pp. 214; Bouvier’s and Abbott’s Law Dictionaries, verbis, crime against nature, sodomy, buggery; Ausmen vs. Veal, 10 Ind. 365.

The statutes of Massachusetts and New York are similar to onrs in the terms of description used, and prosecutions thereunder have been maintained. Com. vs. Snow, 111 Mass. 411.

A case arising under the same statute has been before this Court, and though it passed off on other grounds, no such objections as this was made. State vs. Gruso, 28 A. 952.

The authorities from Texas, quoted by counsel seem to rest on a statute peculiar to that State, providing that no person shall bo punished for any crime unless the same shall be “ expressly' defined ” in the statute punishing the same. These cases, therefore, do not affect the general principle here in controversy.

The requirements of the common law indictment, in describing the offense, including its additional qualification as “ buggery,” are fully complied with.

The euphemism by which the law describes pccatmn ilhtd horribile, does not, in our opinion, leave its meaning doubtful or obscure.

We therefore think the objection untenable.

We find no uncertainty or insufficiency in the laying of the venue of the offense in the information.

The proceedings are regular and legal in all respects.

Judgment affirmed.


author: Eenner, J.

text:
    No. 8001.
    J. B. Williams for use of, etc. vs. N. Theodore.
    1. Granting time to the maker of negotiable paper does not discharge the endorser, although‘by private arrangement between him and the maker, to which the holder is not a party, he would, on paying, be entitled to recover from the maker.
    2. Refusal to allow the acceptor of a draft to take it up at maturity, may furnish ground for an action in damages, but does not extinguish the acceptor’s obligation to pay the draft.
    APPEAL from the Sixth District Court for the Parish of Orleans. Ilightor, J.

      H. D. Ogden, for Plaintiff and Appellee.

      W. S. Benedict and Jos. B. Hornor, for Defendant and Appellant.
   The opinion of the Court was delivered by

Eenner, J.


author: Pociié, J.

text:
    No. 8466.
    The State of Louisiana ex rel. Keiffer Bros. vs. Judge of Civil District Court for Parish of Orleans.
    Application for Writ of Prohibition.
    An injunction should not be granted to forbid the execution of a judgment rendered by another court, under which judgment no writ of execution has been issued or applied for. Such an injunction practically amounts to an action in nullity of the judgment rendered, which could only be entertained by the court which rendered the judgment. C. P. Art. 108; 29 An. 108, 375.
    Injunctions are only designed to prevent an actual or impending injury, which does not exist in this case. 33 An. 222 ; 29 An. 271.

      Francis A. Monroe, Judge, Respondent.

      Breaux & Hall, for the Relators.

      O. F. Schmidt, Oontra.

   The opinion of the Court was delivered by

Pociié, J.


author: Bermudez, C. J.

text:
    No. 8441.
    The State of Louisiana ex rel. James Gill vs. A. L. Tissot, Judge, et al.
    "Where the cast defendant in an ejectment suit fails‘to perfect a suspensive appeal and seeks to suspend the order directing the execution of the judgment, offering a mere bond for costs, neither will a prohibition, issue to prevent the execution of the judgment of ejectment, nor a mandamus to compel the granting of an appeal. The District Judge had the power to pass upon both the character and sufficiency of the bond. In case of error, the law provides a remedy.
    -ApPLICATION for Prohibition and Mandamus.

      A. L, Tissot, Judge, Respondent.

      S. S. Carlisle, for the Relator.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a prohibition and for a mandamus.

The Relator complains that the District Judge has ordered the execution of a judgment of ejectment against him, in a case now pending before this Court, on a suspensive appeal; that, in so doing, he has exceeded the hounds of his jurisdiction.

He further complains that the District Judge refuses to grant him a suspensive appeal from this order of execution, on his giving a bond for costs, and exacts from him, as a condition for such an appeal, a bond which is not for costs; that this is a denial of justice.

He avers that, if the decree for execution he carried out, ho will sustain an irreparable injury; and he prays for a prohibition to prevent the District Judge from executing the ejectment judgment and for a mandamus to compel him to grant a suspensive appeal from the order of execution, on a bond for costs only.

In their answers, the District Judge and the party plaintiff claim that the order of execution is one which the court had the power to make and that, in rendering it, it has exercised a jurisdiction with which it was vested : that the Relator is not entitled to a suspensive appeal from said decree of execution, unless upon a bond to cover the damages which the appellee might suffer.

We find the following to he the facts, as presented by the Record:

A suit for the. expulsion or ejectment from certain leased premises, on account of non-payment of rent, was instituted against the Relator, by his lessor. The defendant therein laid claim to a lease, setting up special defenses and making affidavit to verify the truth of the averments of his answer.

After trial, the court rendered a judgment in favor of the plaintiff, ejecting the defendant, who, within ten days, applied for a suspensive appeal, which was allowed, on his executing bond according to law,” in the sum of $1000.

Within the same delay, the appellant furnished a bond, conditioned that the defendant shall prosecute said appeal and shall satisfy such judgment as may be rendered against him, or that the same shall be satisfied by the proceeds of the sale of his estate, real or personal, if bebe east in the appeal, otherwise that said sureties (A. and B.) shall be liable in his place.”

The appellee subsequently took a rale on the appellant, to show-cause why the judgment should not be executed, for the two-fold reason that the bond is not such as is required in cases of ejectment of tenants, and is insufficient in amount, and that the sureties are not good and solvent.

After hearing, the court made the rule absolute and ordered the judgment to receive execution.

Feeling aggrieved by this decree, the defendant applied for a suspensive appeal, on giving a bond for costs; but the court granted the appeal, on his furnishing a bond, according to law, for the sum of $2500.

The questions presented by the parties are:

1. Had the District Judge the right to pass irpon the rule to execute the judgment of expulsion.

2. If he had, was he bound, was it his duty to have granted a suspensive appeal from the order of execution, on a bond for costs only ¶

I.

The jurisprudence appears to be now firmly settled, that it is only after a suspensive appeal has been obtained and perfected, that the lower court ceases to have further jurisdiction over the case. 16 A. 192; 21 A. 114 ; 2 R. 551 ; 22 A. 591; 27 A. 700; 28 A. 871; 32 A. -814; 33 A. 928.

The door has always been wisely left open for the determination by such court, whether the judgment suspensively appealed from shall or not be executed, either because the case is not appealable, or because no bond has been furnished, or because that furnished is insufficient, or because the surety or sureties do not possess the required qualifications.

Where such a bond is insufficient, an appellee has two remedies, either to move for a dismissal of the appeal in the appellate court, or, for the execution of the judgment appealed from, in the court of first instance.

Where he resorts to the first remedy, the matter becomes finally adjudicated upon by the superior tribunal. Where he employs the second remedy, the action of the inferior court is revisable either on appeal, or on application for remedial process.

In the present instance, the aqipellee lias invoked the powers of the court which rendered the judgment, and has obtained an' order or decree, which impliedly affirms and reiterates that judgment, and formally directs that it be executed without -delay.

With the correctness of that order or decree we now have nothing to do. Neither have we to deal with the correctness of the ruling of the Judge requiring a bond for $2500. It may well be that the District Judge has correctly or incorrectly decided the questions presented.

The issues submitted on those subjects axe entirely premature. If we were to revise that order or decree, for execution we would be determining in anticipation, the question raised by the Relator on the appeal which he has sought, the object of which is precisely to test the legality of the ruling. The appellee’s rights are in no way jeoparded, though they be suspended, for, obviously, either the question will be determined if the appeal be prosecuted, or the decree appealed from will be executed if the appeal be abandoned.

The Relator has moved for a suspensive appeal from the decree for execution. He has elected his remedy. After doing so, he cannot seek in this Court the remedial process of prohibition, and must wait until the question raised by himself in a different form shall come up on appeal for determination.

In relation to the demand of a bond for $2500 by the Judge, it is . enough to say that his right to require a bond for that sum is not before ns, as the Relator charges that the only bond that can be exacted is one for costs.

When the Relator will have tendered a bond other than for costs, and it is refused, it will be time to determine whether it was or not properly declined by the District Judge.

We are first called upon merely to decide whether the District Court, in entertaining the rule for execution, and in passing on its merits, has or not exceeded the bounds of its jurisdiction.

We think that court had authority to ascertain and determine whether the conditions precedent upon which it granted the suspensive appeal from the ejectment judgment, had or not been fulfilled. The authorities referred to support that position.

1. Those conditions were: the furnishing of the bond required by law in the amount stipulated by the Judge; and, 2, the giving of a surety or of sureties good and solvent.

The first question could be tried on the face of the bond; the second determined on evidence touching the qualifications of the surety or sureties.

For the trial of the question of compliance with the first requirement, the appellee was not bound to wait until after the filing of the transcript of appeal in this Court; for the determination of the other questions, he was alway in time in the lower court.

If the lower court had not such a jurisdiction, it would follow, that a cast defendant could, after obtaining a suspensive appeal, merely file any paper which he would term a bond, although it would not have the least appearance of one, and thereby stay execution of the judgment against him, for however largo an amount, or however otherwise important, until the arrival of the return day, or even until after a motion to dismiss in the appellate court, be finally disposed of. The law never contemplated such a condition of things.

The Judge who passed on the merits of the case, who allowed the appeal, ex necessitate has the right to decide whether the conditions upon which, under the law he granted the appeal, and which were to be fulfilled before the judgment could be suspended, had been or not complied with. Those conditions were a bond in due form, and a surety or sureties having the required qualifications. If he find both, then the appeal is perfected, the judgment is suspended, and he is stripped of further jurisdiction over the case. If he find that no bondhas been furnished, or that the bond given is not the bond demanded by law, and is no bond at all, and the sureties are not good and solvent, or that either of those exigencies is wanting, he is empowered so to decide and decree that the judgment shall receive an immediate execution.

' In such a case, the remedy of the appellant would be either a prohibition or a suspensive appeal from the order for execution.

II.

No one disputes the right of the Relator to a suspensive appeal. The contention relates to the character of the bond.

The rule was not for the execution of a money judgment, but for the enforcement of one directing the expulsion of a tenant and delivery of the premises to the plaintiff in the case.

Had the original judgment been one for a sum of money, a suspensive appeal from a decree on a rule for its execution, could not have been granted, unless on a bond sufficient to arrest the enforcement of that judgment, whether the party cast would not be entitled to a different remedy, it is unnecessary to say, for it may well be that he might be unwilling to apply for a suspensive appeal from the order for execution.

Were it otherwise-, á party cast by a money judgment, could, after furnishing an insufficient bond, or worthless securities, obtain a suspensive appeal from the order for execution on a mere bond for costs, and, in that mode, suspend the original judgment.

The order for execution reiterates virtually the judgment on the merits and expressly commands that it be executed at once. It is, in reality, more peremptory than the first judgment, the execution of which was hypothetical, namely, contingent upon either the absence of a susi>ensive appeal or the dismissal of such appeal, or the affirmance on appeal. To suspend the decree for execution is to suspend the judgment on the merits. That which the law demands, in order to stay the first judgment, it likewise exacts to arrest the decree of execution. To sanction a different doctrine would be to permit the suspension of a money judgment, indirectly, on furnishing an insignificant bond for a trifling amount, which could not produce that effect on a direct appeal of that character.

It is true that the judgment in this case is not one for money, but for the delivery of property. The principles underlying the rights of of parties cast to a suspensive appeal are identical, and must be applied uniformly to all judgments susceptible of being suspensively appealed from. Ubi eadem ratio, eaclem est lex.

If the bond furnished by the Relator for a suspensive appeal from the judgment of expulsion be not in form and substance such as the law demands, and if the bond for the suspensive appeal from the order for execution must be one for costs only, the irresistible consequence would fatally be, that a defendant ordered to be expelled or ejected from certain premises and who is to furnish a bond to respond for all the damages, which the appellee may sustain in the amount fixed by the Judge, and who fails to furnish the bond required by law, could keep the original motion in suspense and maintain himself in possession on a bond for costs only.

The bond for a suspensive appeal from the decree for the execution of the judgment of expulsion, should not, therefore, be one for costs only, blit of the same character as that required by law for the suspension of the ejectment judgment.

Under the showing made, we are not able to say that the District Judge has properly refused to grant the suspensive appeal from the order of execution, on a bond for costs only.

It is therefore ordered and decreed, that the preliminary order herein made be rescinded, and that the application for relief in this case for a prohibition and a mandamus be refused, at the cost of Relator.


author: Poci-ié, J.. Levy, J.

text:
    No. 8363.
    The State ex rel. Josiah Fisk vs. The Police Jury of Jefferson, Left Bank.
    Plaiutiff’s judgments against tlie municipal corporation {for the payment of which he seeks the levy of a tax,) exceeding, with the interest, the sum of $1,000, this Court has jurisdiction of the matter in dispute.
    The law under which the levy of taxes, to satisfy plaintiff’s judgments, is claimed, having been repealed, and there being no evidence in the Record, that said judgments were based upon a contract with the municipal corporation, which such repeal would impair, plaintiff is not entitled to the levy.
    APPEAL from tlie Twenty-sixth Judicial District Court, Parish of Jefferson. Halm, J.

      Olías. Jjovque, for Plaintiff and Appellee.

      Wm. Mithoff and Olías. F. Olaiborne, for Defendants and Appellants.
   Motion to Dismiss.

The opinion of the Court ivas delivered by

Poci-ié, J..

For the reasons given in the case above referred to, we must maintain this appeal.

The motion to dismiss is therefore denied, at appellee’s cost.

On the Merits.

The opinion of the Court was delivered by

Levy, J.

The plaintiff, Josiah Fisk, had obtained certain judgments against the. Police Jury of the Parish of Jefferson, left bank, for the following sums, viz: In suit No. 1292, $358.23, with legal interest from the 1st of March, 1875, and in suit No. 1291, $482.10, with interest at eight per cent: per annum, from April 30th, 1875, date of judgment, and for costs of both suits. In these judgments it was ordered as follows: in suit No. 1292, “that the proper officer to assess taxes, .do assess a parish tax at a sufficient rate per cent, on the assessment rolls of the current year (1875) to pay and satisfy this judgment, interest and costs.” In 1291, it is further agreed, that the Police Jury, Parish of Jefferson, left "bank, whose duty it is to assess taxes, do assess forthwith, a Parish tax at a sufficient rate per cent, on the assessment roll of the current year (1875) to pay and satisfy this judgment, interest and costs.”

In March, 1881, the plaintiff took a rule against the sheriff, ex-officio tax collector, and the Police Jury of the Parish of Jefferson, left bank,1 to show cause “ why a mandate should not issue, ordering said sheriff to collect a tax sufficient to pay said judgments, in accordance with the terms thereof.”

Subsequently, the rule was extended to embrace the assessor, who was required, also, to show cause why he should not assess a tax at a sufficient rate per cent, to pay said judgments.

There was judgment, signed on the 22d of April, 1881, making the rule- absolute, and ordering and decreeing that the State Assessor, assess a parish tax at a sufficient rate per cent, upon the assessment roll of the current year (1881), of all assessed property within said parish, to pay the judgments and costs; and further, that the sheriff, ex-officio tax collector, be ordered to collect the same immediately and to pay the proceeds thereof to relator as soon as collected. From this judgment the defendants in rule have appealed.

One view of this case, which we take, dispenses us from the necessity of considering the other points raised and discussed by counsel in their oral arguments and briefs. The judgment orders the assessor to assess a parish tax to an amount sufficient to satisfy plaintiff’s judgments. No such authority as that imposed upon the assessor, i. e., the levying of a tax, is authorized by the law. Taxes for parochial purposes, or to settle parochial indebtedness, can only be levied under the conditions established by legislative will by the Police Jury. This levy must first be made by the proper authorities, without which, the assessor and the sheriff are powerless to extend on the roll the amount of the tax or to collect the same.

As we have before said, in order to entitle a party to enforce the law (since repealed) which was in existence at the time the debt was contracted and the judgment rendered, it must be shown that the repeal of the law was inoperative, because impairing the obligation of a contract, and that the judgment was based on a contract. No such evidence is afforded by the record herein.

The judgment appealed from is therefore annulled^ avoided and reversed, and plaintiff’s demand is rejected, at the costs o’f the appellee, in both Courts.


text:
    No. 7450.
    In the Matter of the Board of Administrators, praying for a Recognition of Mortgage, and Recovery of Assessments in the Fourth Drainage District.
    Da the matter of the Board of Assessors, etc., judgments obtained for drainage taxes, under the provisions of Acts jSTo. 165 of 1858, and JSTo, 30 of 1871, against property in the Fourth Drainage District, are nullities, having been obtained by proceedings unauthorized bylaw. Ruling in Succession of Patrick Irwin, 33 An. 63, affirmed.
    APPEAL from Third District Court, transferred from Superior District Court for Parish of Orleans. Hawkins, J.

      Geó. 8. Lacey, for the Board of Administrators, Appellees.

      Alfred Grima, for A. Delavigne, Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The question presented in this controversy involves the validity, to a certain extent, of a judgment for a Drainage Tax, obtained under the provisions of Acts No. 165 of 1858, and No. 30 of 1871.

The appellant, Alfred Delavigne, in the rights of the Beaujeu Brick Manufacturing Company, claims that he is aggrieved by a certain judgment, rendered on March 15th, 1873, homologating certain assessment rolls, embracing property then owned by said Company, and now belonging to him; that such judgment is erroneous and should be reversed and annulled, for the reason that it was procured, without due process, under a statute which is violative of the organic law.

The only objection really urged by the appellees to this prayer is, that the defense of unconstitutionality, not having been raised in the pleadings in this suit, appellant is precluded from urging it now, with a view to obtain a reversal of the judgment appealed from.

It is conceded that such questions as the Company might have presented upon appeal, may be raised by the appellant, Delavigne, but not a stop further can he be permitted to go.

We do not understand that the appellant claims any greater right. The case, then, must be determined as though brought up for review by the Company itself.

The judgment assailed was rendered against the property described and the owners named in the assessment roll, exceptas to the proqierty owned by certain parties who had opposed the tableau, among whom the Beaujeu Brick Manufacturing Company is not to be found.

Tlie judgment was, therefore, one rendered by default against the property of that Company itself. It does not appear that the judgment was over notified to the Company.

In the matter of the Succession of Patrick Irwin, 33 A. 63, it was decided by this Court, that the Section of Act 30 of 1871, relied upon in justification of the i>roceedings herein, under the provisions of Act L65 of 1858, was unconstitutional and void, and consequently, that the judgment therein sought to be enforced against the estate of Irwin was a nullity and of no effect.

We find no occasion to question the correctness of that judgment, and consider, for the reasons given in the .opinion in that case, that the judgment rendered against the Beaujeu Brick Manufacturing Company is likewise a nullity.

It therefore follows, that the Beaujeu Brick Manufacturing Company never was legally cited to answer the demand formed against it. The record does not show that it appeared in the lower court and presented any issue.

How then can it be claimed that the question of unconstitutionality, raised on appeal, not having been presented in the pleadings, cannot be set up and urged before this Court.'

We view the Company in the light of a defendant appealing from a judgment rendered without any previous legal citation, actual or constructive, without issue joined or appearance, and asking its reversal.

The answer of the judgment representative is, that the judgment is valid, because rendered under the provisions of valid laws. The reply of the Company is, that the law relied on is unconstitutional.

Conceding, for argument’s sake, the proposition of law advanced by the appellees to be well founded, it surely cannot be invoked to apply to cases in which parties defendant have not been legally cited and have not joined issue.

Lex nenvinem cogit ad impossibilia.

The appellant complains of the judgment in so far as it affects the property assessed in the name of the Beaujeu Brick Manufacturing Company, now his property. He has no interest to attack the judgment in any other respect.

The appellees ask that all their legal rights, if any they have, under the judgment of January 29th, 1873, and the personal judgment of March 15th, 1873,” be expressly reserved to them.

Our decree is not intended to affect such rights.

It is therefore ordered, adjudged and decreed, that the judgment of March 15th, 1873, and signed on March 20th, following, in so far as it affects tlie property assessed in the name of the Beaujen Brick Company and appealed from, be annulled, avoided and reversed; and proceeding to render such judgment as should have been rendered by the lower court.

It is ordered, adjudged and decreed, that the application herein made on the 7th of February, 1873, for the homologation of the assessment roll of the fourth drainage district be, and the same is hereby dismissed, as far as concerns the property therein assessed in the name of the Beaujen Brick Company, without prejudice to the rights which the appellees may have, if any, under the judgment of January 29th, 1873, and the so termed personal judgment of March 15th, of the same year, against said Company.

It is further ordered that the appellees pay costs of this appeal.


text:
    No. 8480.
    Ernest Gravais et al. vs. Felix Falgoust et al.
    1. An Injunction once granted cannot be rescinded on ex parte application and at chambers, without notice to plaintiff. 29 An. 362; 31 An. 171.
    2. Order dissolving on bond an injunction similar to the one involved in Torres vs. Falgoust, 32 An. 560, reversed and that case reaffirmed.
    APPEAL from the Twenty-sixth Judicial District Court for the Parish of St. James.

      JR. G. JDugué, for Plaintiffs and Appellants.
    Defendants and Appellees unrepresented.
   The opinion of the Court was delivered by

Fenner, J.


text:
    No. 8438.
    The State of Louisiana ex rel. Harman vs. Wm. Voorhies, City Judge.
    A City Court Judge has jurisdiction to annul, not only the judgments rendered by him, but also those rendered by the justice of the peace whom he has replaced. 32 An. 1222 ; 33 An. 15,146.

      JR. Stewart Dennee, for the Relators.
   The opinion of the Court was delivered by

Bermudez, C. J.


author: Tox>x>, J.

text:
    No. 8419.
    The State of Louisiana vs. F. M. Horn.
    Under the circumstances of this case, and tho showing' mad© “by the defendant, a continuance should have been granted by the court a qua. Its refusal entitles appellant to a new
    Appeal from tlio Twelfth Judicial District Court. Barbin, J.

      J. 0. Egan, Attorney General, for the State, Appellee.

      H. L. Daigre, for Defendant and Appellant.
   The opinion of tho Court was delivered by

Tox>x>, J.

The defendant is appellant from a sentence of nine months’ imprisonment at hard labor in the penitentiary. He was indicted for an assault with a dangerous weapon, with intent to kill and murder, and convicted.

The only question involved in this appeal, relates to the ruling of the Judge who presided at the trial, in refusing to grant the defendant a continuance. The following are substantially the facts bearing on this point:

The indictment against the defendant was returned into Court, and filed on the 21st of October, 1881; the accused being at the time confined in the parish jail.

On the 25th of the same month, he was arraigned and pleaded not guilty, and declaring himself unable to employ counsel, an attorney was appointed to defend him, who declined the appointment.

On the 1st of November, the same attorney, Judge Blackman, filed in court a written statement, declining to defend the accused under the appointment referred to, and gave, under oath, his reasons therefor. Among them was, that the accused had informed him that he was able to employ counsel if time were allowed him to correspond with his friends in another State, who would assist him, and that he, the accused, owned property there, and that he, Blackman, believed this information to be true.

Thereupon, the accused asked for a continuance, which was refused, and though, on that day, the accused was without counsel, no other-attorney was appointed to defend him.

On the next day, 2d November, the ease was called for trial, and just before going into the trial, another attorney was appointed to defend the accused, with whom the accused was allowed one hour to confer. At the expiration of the hour, or before, the accused made another application for a continuance. His affidavit, in support of the motion, set forth in substance, that he liad a good defense to the charge preferred against him, if opportunity were allowed him to establish it; that he was an entire stranger in the community, his residence being in another State, and did not even know the names of his witnesses, and that he had had no counsel to give him the information and to assist him in preparing his defense, and had been in close confinement since his arrest under the charge; that he possessed property in Alabama, and had friends there who would willingly assist him, and that he was thus able to employ and pay counsel of his choice, if time were allowed him to procure the means to do so; that the attorney who had just been assigned him, had informed him that it was impossible for him, the attorney, to make a proper defense without time being allowed to make preparation therefore, and that it was impossible for him, the accused, to have a fair trial at that session of court, which would be held only three days longer, and that the application was not made for delay, but to obtain substantial justice, etc. This application was refused, the trial was gone into without further delay, and the accused convicted.

We have no hesitation is saying, that under the circumstances stated, and inasmuch as the sworn statements of accused and the counsel were not traversed, or their correctness in any manner impugned, and we must accept them ás true, that the ruling of the Judge was clearly erroneous. Indeed, the boasted constitutional guarantees given to insure a fair and impartial trial to an accused, would be the veriest mockery, were the ruling complained of to be maintained, and all relief denied the defendant. The Judge seems, in this instance, to have reversed the legal maxim, that all men are presumed innocent until proved guilty, and acted on the presumption that he was guilty, and that the proceedings must be shaped to establish his guilt, and secure his speedy punishment. There may have been excellent reasons for this in the mind of the Judge, but the record is entirely silent as to the same. We cannot perceive what possible chance an innocent man would have had, under the circumstances shown, to establish his innocence or escape conviction. The sentence must be set aside, and the accused afforded an opportunity to obtain the substantial justice he has thus far claimed in vain.

It is therefore ordered, adjudged and decreed, that the verdict and sentence .appealed from be annulled, avoided and reversed, and the case remanded to the lower court to be proceeded with according- to law.


text:
    No. 8406.
    Mrs. Astasie DeBouchel, Wife of W. S. Kowalski vs. Her Husband.
    Where an appeal is made returnable to this Court on a particular day, and the Transcript is not filed nor time obtained for the registry of it, before the expiration of the delay allowed, the appeal will be dismissed. That the District ¿Fudge rescinded the order of appeal previous to the return day, and on a rule to re-instate it, made a decree after the return day has gone by, will be no excuse or justification for the omission to apply seasonably for relief to this Court.
    APPEAL from the Civil District Court for the Parish of Orleans. High,tor, J.

      Sambola c& Hueros, for Plaintiff and Appellee :
    1. The non-filing of the record of appeal on the return day thereof, or within ílm e judicial days thereafter, is a presumption juris et de jure of the abandonment of the appeal, subject to be rebutted only by proof that within said delay an extension of this return day has been obtained in the appellate court. C. C. 2285, 2287; C. 3?. 574, 587, 588, 882. 883 and 884; 3 D. 251; 31 A. 858; 1 Zachariie, pp. 78 and 79; 5 Zacharúe, p. 594; 5 Marcado, pp. 201, 202 and 203, Hos. II and III.; 4 Larotnbiere, pp. 368 and' 36?, Ho. V.
    2. The lower court has no jurisdictional power, under any circumstances whatever, to prolong the return day of an appeal, after it has once legally fixed the same; and an order so granted is an absolute nullity. C. 3?. 574, 883; 22 A. 450; 21 A. 154; 9 A. 728; 10 L. 482 ? 11 A. 728.
    3. After the expiration of three judicial days from the return day, the appellate court is without legal authority to allow an appellant time to bring up the record of appeal; and a decree so rendered is a nullity of public order, for want of jurisdiction ratíone materias. 1 Solon on Hullity, p. 225, Ho. 349; 23 A. 374; C. 3?. 92, 589, 881; 1 Troplong on Prese. Ho. 51, pp. 54 et seq.; Marcadé on Preser. pp. 27 et seq., Ho. IV.

      G. Huplantier, for Defendant and Appellant.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The iilaintiff moves to dismiss this appeal because the transcript was not seasonably filed; because the lower court had no power to change and enlarge the original return day; because the extensions allowed in this Court were sought and obtained after the expiration of the original return day, and because the transcript is defective and incomplete.

From a judgment rendered against him, signed on June 28th, 1881, the defendant took an appeal on the 9th of July following, returnable to this Court on the first Monday of November following.

On the 23d of the last named month, the counsel of appellant procured in this Court a delay of thirty days, to bring up the transcript of appeal.

On the 22d of December, following, he provoked another order ■enlarging the delay to tlie first Monday of January of the present year, when the transcript was actually filed.

It appears from the minutes of this Court, of which we take judicial notice, that four judicial days have elapsed between the expiration of the last day on which the transcript should have been filed here, under the order of the lower court, viz.: the 10th of November and the ■day on which an order was first obtained here, allowing thirty days for the filing of the transcript, viz.: the 23d of November.

The appellant claims that, notwithstanding this failure to observe the law, his appeal should not be disturbed, for the reason that it was impossible for him to have filed the transcript on the original return day, or within the three judicial days following it.

In justification, he says, that on the 5th of September, the District Judge had made an ex parte order, illegally dismissing his appeal, and directing the execution of the judgment; that, on discovering the fact, he took a rule to reinstate the appeal, which rule was made returnable on the 29th of October, when it was tried and submitted 5 that it is not until the 6th of November, that this rule was made absolute, and that the appeal previously granted, was made returnable to this Court on the first Monday of January of the present year.

The appellant was in fault, and he must bear the consequences.

Whatever has been the action of the District Court, it was the duty of the appellant to have procured the transcript required by law, if possible, and to have seasonably filed it in this Court; or, he should, at least before the expiration of the delajy within which he should have filed the transcript, have made a proper showing here, for an extension of time to bring tip the transcript. He has done neither.

That which he did in this Court on the 23d of November, he should and could have done between the 7th and 10th of the same month. He then would have been in time.

There is but one order of appeal in this case.

The jurisdiction of the Appellate Court attaches as soon as the order of appeal is made and its terms are complied with.

The lower court then has no longer authority to take any steps but such as may be necessary to transmit the record to the Supreme Court, by provisional and conservatory orders, to secure the ultimate execution of the appellate judgment. 6 N. S. 464 ; 4 L. 205; 7 L. 446 ; 9 L. 49; 10 L. 483 5 H. D. viii. (a) 3.

The Judge a quo cannot, by a second order, extend the return day originally and properly fixed by him. 7 L. 447.

The return day can only be prolonged by the Appellate Court, and never by the District Court, which if it could do it once, could do it again and indefinitely so, and thus defeat the rights of the appellees and tlie jurisdiction of tlie Appellate Court. 10 L. 482; 11 L. 109 ; 12 L. 480; 10 R. 419; 11 A. 728.

The order made by the District Judge is the more inoperative, as it does not purport to grant an appeal, and was rendered after the expiration of the delay within which, under the original return day, the transcript should have been filed in this Court.

The extensions sought in this Court were granted the appellant at his risk and peril, and without prejudice to the rights of the appellee, a» all such orders necessarily must be and are. They entitle him, in this case, to no relief.

The appellant having failed to establish to this Court, within the proper time, the circumstances of an event not under his control, which prevented him from then invoking proper relief, the law and jurisprudence are clearly condemnatory and punitory of his dereliction. 10 L. 486; 8 N. S. 597; 4 L. 205 ; 7 L. 448; 3 A. 226 ; 5 A. 42; 9 A. 21, 65, 538; 11 A. 728; 21 A. 152; 22 A. 449 ; 23 A. 374; 29 A. 862.

This view of the case renders it unnecessary to consider the last ground urged for a dismissal touching the incompleteness of the transcript.

It is therefore ordered, that the appeal herein be dismissed, at appellant’s costs.

Justice Todd takes no part.


text:
    No. 8452.
    The State of Louisiana vs. Joe Beaird et al.
    Evidence is admissible to show that, after the time of the commission of the crime, the accused had in his possession similar coin to that which he is charged with having stolen. The objection to such evidence is to its effect, not to its admissibility.
    This Court will not disturb the action of the Judge a quo in refusing, in the exercise of his sound discretion, a new trial, applied for on the ground of newly discovered evidence. Affirming previous decisions.
    It is only in ease of gross and unambiguous error, that this Court will sustain objections to the written charge of the Judge to the jury, when such objections ar.e not presented in hills of exceptions.
    Ruling of this Court on the qualifications of jury commissioners, in 33 An. 122!); 32 An. 193, re-affirmed.
    APPEAL from tlie Tenth Judicial District Court, Parish of Red River. Logan, J.

      J. O. Egan, Attorney G-eneral, for the State, Appellee.

      •7. E. Pierson and L. B. Watlcins, for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Defendant, Beaird, was indicted jointly with one Paul Pringle, for the crime of breaking and entering a storehouse in the night time with intent to steal and with so stealing, taking and carrying away certain money in United States coin. The qirosecution against Pringle was virtually terminated by his subsequent conviction of a capital offense and sentence to death. The present defendant was, therefore, tried alone, and from conviction and sentence, takes this appeal.

The following errors are urged:

1. A bill of exceptions was taken to the ruling of the Judge, admitting proof by witnesses of certain acts of the alleged associate in crime, Pringle, done after the crime was charged to have been committed.

It appears from the bill that the evidence objected to was to the effect that Pringle had, shortly after the breaking and stealing charged, exhibited and spent at a neighboring store, certain coins of the denomination charged to have been stolen. The Judge states that it had been previously proven or sworn to by witnesses, that the storehouse had been broken and entered by some one, and that coins of a certain denomination had been taken; that, at about the time of the entering and taking, Beaird and Pringle had been seen together, in close consultation, near the house; that Beaird had been seen, at the time and place charged, standing at the window of the house receiving in his hat from the hands of Pringle, something which rattled like coin.

Under these circumstances, no one would dispute that proof of subsequent possession by Pringle of the identical coins stolen, would be a powerful and independent act or circumstance tending to connect the joint acts of both him and defendant, previously proved, directly with the crime charged, and, as such, we think clearly admissible. While proof of his possession of similar coins might be entitled to very little weight as evidence, we think the objection went rather to its effect than to its admissiblity, and the judge’s ruling was not faulty. ■

2. Exception was taken to the refusal of the Judge to grant a new trial on the ground of newly discovered evidence. The Judge refused, for reasons given by himself, to the effect that he did not believe the affidavits; considered the circumstances under which they were obtained suspicious; questioned the due diligence of defendant, and that this was the second trial of the case.

It is settled, that the exercise of the discretion vested in inferior Judges in such matters and on such grounds, will not be disturbed by this Court. State vs. Hunt, 4 A. 438 ; State vs. Long, Ib. 441.

3. Error is assigned in tlie refusal of defendant’s motion in arrest of judgment, on the ground, amongst others, of an erroneous statement of the law in the Judge’s charge to the jury.

Although in waiting, the Judge’s charge was not excepted to : we held in State vs. Ricks, 32 A. 1098, that where the charge was in writing and embodied in the record, wo would notice errors, under proper assignment thereof, although not presented by bill of exceptions. While not now overruling this opinion, which, however, is contrary to prior authority, (10 A. 450) and, therefore, to be strictly construed, we deem it proper to say that it is in every way preferable that charges should be excepted to when given, in order that the Judge may have an opportunity of explaining or correcting his charge at the time; otherwise the defendant would be at liberty to take his chances of acquittal on the charge as delivered, and, if convicted, to urge his objection in subsequent proceedings. Only in case of gross and unambiguous error will we sustain objections to the charge not made and presented by bill of exceptions at-time of delivery.

In the present case, the portion of the charge objected to is as follows: An alibi, to be good and complete in law, should cover, beyond all reasonable doubt, the time during which the act or crime, as charged, was perfected or performed. If it does this, it is considered a good defense in law. If not, it is of little or no value.”

If this charge clearly meant, as contended by defendant, that an alibi must be proved beyond reasonable doubt, it would perhaps be erroneous. But the Judge, in overruling the motion in arrest on this ground, says he did not intend to, and did not in fact, charge any such proposition, making it evident that, had. timely objection been made, he would have explained it and removed the ambiguity to which defendant now objects. The charge is susceptible of a construction different from that placed on it by defendant, and applying the terms "beyond reasonable doubt,” to the proposition of law and not to the evidence. Taken in connection with the rest of the charge, emphasizing the duty of the jury to acquit if they have a reasonable doubt of defendant’s guilt, we think the defendant could not have been prejudiced by the ambiguous statement referred to; and, under the circumstances of this case, we will not disturb the proceedings.

4. The objections to the qualifications of the jury commissioners are disposed of by the following authorities. 33 A. 1229 ; 32 A. 193; 29 A. 824.

The right of the clerk to act ex-offwio as jury commissioner has been repeatedly determined. 30 A. 1028 ; 31 A. 387, 398 ; 32 A. 402, 879.

Judgment affirmed.


text:
    No. 8481.
    Neuville LeBlanc vs. Mrs. G. G. Blodgett, Testamentary Executrix.
    A tax sale will be annulled where the pioperty was not assessed in the name of the real owner, but in that of another party, and where no notice of seizure was given to the owner.
    APPEAL from the Twentieth Judicial District Court, Parish of Lafourche. Knobloeh, J.

      Clay Knobloeh, for Plaintiff and Appellee:
    1. Act 43 of 1873, p. 98, § 1, requires 10 full days’ publication in tax sales — object is to give notice to owner. There must be 10 full days intervening between first and last publications. 31 An 661; 32 An. 228.
    2. Tax sale of property assessed in the name of one not the owner, preceded by notices given to party assessed and not to true owner, is absolutely null and void. 32 An.912; ib. 924; 33 An. 520.
    3. Plaintiff was not bound to tender to defendant, as a condition precedent to recovery of property in present action. 32 An. 924; 33 An. 520 ; 32 An. 1290.
    4. Plea of prescription cannot avail defendant 32 An. 228; ib. 912; 15 An. 15.
    5. Defendant, as possessor in bad faith, is not entitled to value of cabins put up by her lessees and made of lumber cut on the land iu dispute. 32 An. 195; 12 An. 545; 24 An. 253; 4 S. 260; C. C. 508, 3452.

      A. J3. Philips, for Defendant:
    1. The law has been complied with by three insertions within ten (10) days. Act 47 of 1873, p. 101, Sec. 8.
    2. Plaintiff was bound to tender to defendant the price paid. 30 A. pp. 175, 310 and 1232.
    3. Plea of prescription three (3) and five (5) years. Art. of Constitution of 1868; Act BTo. 105 of Legislature of 1874; 24 A. p. 24.
    4. Defendant in good faith is entitled to improvements and taxes. 32 A. 926, 927 and 1290.
   The opinion of the Court was delivered by '

Bermudez, C. J.

This is a suit for the nullity of a tax sale. The plaintiff complains that on the 21st of February, 1880, he became the adjiidicatee of the land, under a foreclosure of the mortgage granted to him on the 26th of February, 1874, hy E. E. Lauve, the owner; ‘ that the title set up thereto by the defendant as the universal legatee and testamentary executrix and widow of Geo. G. Blodgett, hy virtue of a tax adjudication made for $42.88, whereof $33.88, paid by her said husband on the 14th of February, 1874, with other lands, is a nullity; because the property was assessed iu the name of C. J. Florian, who did not own it; because no notice of seizure was served on said Lauve, whose title was of record in the proper book; because no legal notice or advertisement of tlie sale was given or published; because, no taxes were due. ' ■■

The defense set up consist in the tax adjudication assailed, and. eventually in a claim for improvements.

Prom a judgment iu favor of plaintiff, the defendant has appealed.

The assessment of the land in the name of C. J. B. Florian, who had ceased to he the owner since 1812, was in- flagrant violation of law. The property liad successively passed to several parties and was Anally acquired by E. E. Lauve, in 1861, when his act of purchase was put on the public record, in conveyance hook 8, No. 6, on September 17th, 1861.

It is well established, on principle and by authorities, that a tax sale of property assessed iu the name of one who is not the owner, without service of any notice of seizure ou the real owner, is an absolute nullity and passes no title. Cooley on Tax, 259, 307; Burroughs 210, 222 ; 32 A. 912, 924; 32 A. 520; 19 A. 185.

This material irregularity suffices to vitiate the sale. We are therefore dispensed from considering the other grounds of nullity urged.

It does not appear that the cabins put up on the land were erected by the defendant at her expense. -It rather seems that they wore constructed by tenants, or occupants under her, and with materials taken from the spot.

She can, therefore, recover neither in her own right, nor in those of said parties. 32 A. 135. But her right, if any she has, to demand a reimbursement of taxes, legally due and paid on the property, should he and are reserved.

Judgment affirmed with costs.