author: Pochm, J. Fenner, J.

text:
    No. 8877.
    State of Louisiana vs. Waldemar Bille.
    ■When the ruling of the trial court striking from the record a plea of autrefois convict has been held to have been erroneous, we cannot consider the merits of the plea which have never been passed on below, but are compelled to reverse the judgment and remand the case to be proceeded with under the reinstated plea.
    APPEAL from the Criminal District Court for the Parish of Orleans. Luzeiiberg, J.

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

      W. E. Whitaker for Defendant and Appellant.
   The opinion of the Court was delivered by

Pochm, J.

Having been convicted of publishing as true a forged promissory note, under a charge of forging, uttering and publishing as true, etc., the defendant appeals from a sentence of ten years’ hard labor, and seeks relief under alleged errors of the District Judge in illegally disposing of his plea of autrefois acquit and autrefois convict, and of his refusal of a new trial.

1. The plea was predicated upon the following facts and incidents : Under a similar charge the accused had been previously tried in Section “A” of the Criminal District Court, where he had been found guilty under the second count of the information.

After his conviction and before sentence the court, on its own motion, ordered an arrest of judgment to be entered, and discharged the accused without day. Ten days later the minutes of the court were amended so as to show that the arrest of judgment had been ordered for the reason that the cause had not been allotted to Section “ A,” in which the trial had taken place. On the day that the accused was discharged in that Secfciou, an information* was presented against him for the same offense and was allotted to Section “ B,” where he was tried, convicted and sentenced.

. His plea of autrefois acquit and autrefois convict urged that, on his trial for the identical offense in Section “ A,” he had been acquitted of the offense charged in the first count of the information, and that he had been lawfully convicted of the offense charged in the second count. The plea was met by the State with a motion to strike it from the record, for the reasons that it did not set forth in full the former information and conviction, that it was a double plea, that it was not sworn to, that it did not show the identity of the prisoner, or show that the court which tried the ease had jurisdiction of the same.

‘ This motion prevailed and the plea was stricken out. That ruling is erroneous.

No law requires that the plea should be supported by an oath; it is clear that the identity of the accused could have been proven under the averment.

The allegation that he had been lawfully convicted was broad enough to admit proof of the jurisdiction of the court by which he had been tried. '

Section 1065 of the Revised Statutes provides that: In every plea of autrefois convict or autrefois acquit, it shall be sufficient for any defendant to state that he has been lawfully convicted or acquitted (as the case may be) of the said offense charged in the indictment.”

No other formalities are prescribed by our law; none should have been required. As the accused claimed to have been acquitted of the offense charge in the first count and convicted of the offence charged in the second, his plea was not defective because .lie alleged both autrefois acquit and autrefois convict.

Hence, we conclude that the motion to strike out should have been overruled, and that the plea should have been considered. But, in our opinion, the plea should have been overruled on its merits, and the accused has therefore received no practical injury through the erroneous ruling of the court. Defendant’s counsel earnestly contends that the trial in Section “A” was regular, legal and final, and that it was, in every respect, sufficient in law to sustain his plea. He contends that the jurisdiction of the first trial court is shown by an entry in its minutes in these words: Apportioned by lot to Section ¿ A’ of this Court,” and he argues that, under such showing, the order in arrest of judgment, and discharging the accused, had operated a final disposition of the cause, without any showing of record that the case had not been regularly alloted to that court.

But, in thus reasoning, counsel entirely loses sight of the well established right of the court to amend its minutes, in any case, at any time, even after an appeal has been completed and is pending before this Court, so as to make them conform with the truth as it occurred. This doctrine, consecrated through a mass of recent decisions, is now a conspicuous rule of our criminal jurisprudence.

The amended minutes of the court are unmistakable proof that the case had not been allotted to that court, and that therefore it had no jurisdiction to try the. case. Had the court pursued a different course, and passed sentence on the convict, its judgment would have been reversed on appeal, the verdict would have been set aside, and the cause would have been remanded for further proceedings according to law. State vs. Adotto, 34 An. 1.

Had the want of jurisdiction of the court boon brought to the attention of the Judge by the accused, through a motion in arrest, his plain duty would have been to sustain the motion, and it is conceded by defendant’s counsel that, under such a showing, his plea would have no force. But he contends that the case is different when the arrest of judgment is ordered by the court, on its own motion, and he relies on Article 5 of the Constitution, which provides as follows :

“ Nor shall any person be twice put in jeopardy of life or liberty for the same offense, except on his application for a new trial, or where there is a mistrial, or a motion in arrest of judgment is sustained.”

We must confess that the difference of the effect between an arrest of judgment ordered by the court, on its own motion, and an arrest sustained on the motion of the accused, is not easily discerned, and is too subtle for our comprehension. We understand the following rule to be not only supported by reason and law, but as firmly sanctioned in criminal jurisprudence:

To sustain the plea of autrefois acquit or autrefois convict, the trial invoked as the basis of the plea must have been legal, regular and final, and before a court of competent jurisdiction. State vs. Hornsby, 8 R. 583; State vs. Ritchie, 3 An. 715; State vs. Walters, 16 An. 401; State vs. Taylor, 34 An. 780.

“ If the court had no jurisdiction, * * the conviction will be treated as a nullity ; ” and “the person convicted may be lawfully tried precisely as if no such proceeding had ever taken place." Waterman’s Digest, p. 227, Secs. 45, 46.

Hence, we conclude that the defendant is entitled to no relief under his plea of autrefois acquit and autrefois convict.

2. His motion for a new trial urged the following errors:

First, because there, was no evidence adduced upon the trial showing that the paper alleged to have been forged and altered, was in fact a promissory note; that it was necessary to establish by proof the allegation that said paper was a promissory note, to entitle the State, on proof of uttering, to a verdict against the defendant; that it was not shown that said paper contained any statement of value received, or any statement amounting in substance to that, and that without some proof of the existence of such statement in the body of the paper, it could not be regarded by the jury as a promissory note and the subject of the offense charged.

Second, because in this particular, the verdict was contrary to the charge of the court, the court having instructed the jury that to entitle the State to a verdict, it was necessary that it should have been proven that a forged promissory note was uttered’ by the defendant.

“ Third, because there was no evidence before the jury, allowing that the paper alleged to have been forged and uttered was in the slightest degree calculated by its appearance, in the matter of handwriting or otherwise, to deceive any one as the writing of Duncan Sinclair, forgery of whose signature was made the basis of b oth counts of the indictment here, and without such proof a verdict of guilty could not be justified.

“ Fourth, because in these respects, and generally, the verdict herein upon the second count was contrary to law and the evidence in the case.”

The mere reading of these alleged errors shows that they involve questions of fact exclusively, and hence we have neither the power nor the means of examining them.

The defendant had taken another bill of exceptions, which he does not now mention in his brief, and which presents no substantial matters of, defense.

Judgment affirmed.

On Rehearing.

Fenner, J.

We are compelled to admit our error in proceeding to pass upon the merits of the plea of autrefois convict, after reversing the ruling of the lower court striking the plea from the record.

The grounds of the motion to strike out were exclusively formal, and did not, in any manner, involve the merits of the plea, which had never been passed on by the lower court.

Upon the overruling of the motion to strike out, which we hold should have been done, the State would be bound to demur, if admitting the facts the plea would be insufficient in law, or to put the plea at issue. The issues thus made should be passed on by the trial court before they can become proper subjects of our appellate cognizance. The demurrer, of course, would be passed on by the Judge; but if the plea went to trial on issue to the merits, such issue, being one of mixed fact and law, would be triable by jury.

We cannot assume original jurisdiction of these questions, but must abide tlie action thereon of the trial court, whose rulings, when made, will be reviewable on appeal.

Had not the counsel for defendant, in his original brief, devoted much of his argument to showing that his plea had merit and that he had been, therefore, damaged by the failure to consider it, we should not have been led into this error; but, nevertheless, the interests of sound jurisprudence require its correction.

It is, therefore, ordered that our former decree herein be annulled and set aside, and it is now ordered that the judgment and sentence appealed from be reversed, and the case be remanded to the lower court, to be there proceeded with according to law.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 1095.
    Pompey Jackson vs. Jos. Lemle et al.
    Where a sale is made with the right of redemption, and the term expires, within which the price is to be returned, it is not required that the purchaser should have the failure to redeem judicially declared before he can become or be regarded as the absolute owner of the property. jSTo divestiture of the right of redemption results unconditionally from the default of the seller.
    Leasing the property by the vendor after the time for redeeming has passed, in the absence of error or fraud, concludes him from asserting title thereto. When after the sale the vendor continues to occupy and cultivate the land, and the purchaser to furnish supplies, payments made by the former to the latter, with or without agreement to that effect, must he imputed to the privilege for such supplies.
    Where parties have the legal capacity to oontract,.mere ignorance on the part of one of them, and inability from such cause to understand the contract after it is read to him, is not sufficient ground to avoid the same.
    APPEAL from the Fifth. District Court, Parish of Ouachita. Iliohardson, J.

      J. IT. Diiikgrave and Bolt. Bay for Plaintiff and Appellant.

      Stubbs & Bussell for Defendants and Appellees :
    1. After the delay granted in a vente a remere has elapsed, whether the act be considered as such or a common law mortgage, unless fraud or want of consideration or novation be shown, the vendee’s title is unassailable. Hearnan vs. Glades, 2D An.; W. R. Longue, 638.
    2. A contract by which a plantation is sold for a sum which the vendor agrees to advance in yearly instalments to the vendee for the cultivation of the property sold, with a stipulation that the vendee promises to reconvey the plantation to the vendor on reimbursement of the money and interest, is not one of hypothecary or pigqorative security, but it is a regular sale, with the right of redemption, the title of which is only defeasible by the exercise of the right of redemption. Levy vs. Ward, Admx., 32 An. 784.
    3. When one debt is secured by mortgage, and the other, if for supplies and cash furnished the farmer to make a crop, in the latter case the law provides a special privilege, and the proceeds of crop must first bo Imputed to the debt of the furnisher .of supplies. Richard* son vs. Dinkgrave, 26 An. 667.
    4. The lessee cannot contest the title of his lessor, a fortiori that of his lessor’s vendee. Pothier Oblig. No. 20 of Contract of Lease, 133; 10 La. 360; 8 R. 213 ¡ 23 An. 585 $ 26 An. 189 ; 29 An. 206.
    5. A lease of land, unless recorded like a sale, cannot affect the lessor’s véndée. 3 An. 198.
   The opinion of the Court was delivered by

Todd, J.

The plaintiff, alleging himself the owner of the land described in his petition, that he had once transferred it to Lemle, one of the defendants, as security for a debt which he, plaintiff, had after-wards paid, alleging also his possession of the land, and that Lemle was attempting to sell it to Mrs. Seal, the other defendant, asked for and obtained an injunction restraining Lemle from putting Mrs. Seal in possession of the land, and the latter from taking possession of it, and asked to he decreed the owner of the property, etc.

Lemle, after the general issue, for answer alleged, that he had bought the land of the plaintiff, granting in the act of sale the right to redeem it within a -stated time, by repayment of the price ; that no part of the price has been returned, and that after the time to redeem had expired he had leased the property to the plaintiff, and subsequently sold it to his co-defendant, Mrs. Seal.

Mrs. Seal answering, asserted her ownership of the land under her purchase from Lemle. From a judgment rejecting his demand, the plaintiff has appealed.

The evidence establishes that the plaintiff sold the land in question to Lemle, in 1879, by public act. The act declaring that the price was $480, cash in hand paid ; and in consideration of the same, that Jackson bargains, sells, transfers and delivers the property. Then follows the following stipulations:

“It is agreed and understood by and between the'parties to this-act, that the said Pompey Jackson is to have and herein retain the right to redeem said property hereinbefore described as sold by-him to said Lemle, by repaying to him, the said Lemle, the price stated herein-, provided he exercises his said right of redemption by 1st day of March, 1881 j and provided further, the said Pompey Jackson, at ■the same time and as a condition precedent to his right of redemption, shall fully reimburse the said Lemle for all money he shall have paid or liability incurred on account of taxes, and for the preservation of ■the property and for all improvements he may place thereon, with the consent and approval of his-vendor, during the time within which said right of redemption may he exercised. The parties declaring, emphatically, the true intent and meaning hereof to be, that if Pompey Jackson shall, within the time stated, repay the price herein stated to said Joshua Lemle, together with the outlay he may make for taxes and the preservation and improvement of the property, then the said Lemle shall reconvey said property to Pompey Jackson ; and further, if the said right of redemption is not exercised in the time stated, and the said Lemle reimbursed, as above provided, then his ownership of the property shall be absolute and unconditional.”

It is further shown, that after the date mentioned for the redemption of the land, the plaintiff leased the same from Lemle, and continued to occupy and cultivate it up to the time of the institution-of this suit.

The act under which Lemle claims the land is undoubtedly a sale with the equity of redemption. The sale was by public act, and without the stipulation of delivery expressed in the act, in legal contem.plation, possession followed the title, and the possession of Jackson, after the act, was the possession of Lemle. Apart from the conditions respecting the right to redeem, a sale with the equity of redemption does not differ, as far as relates to the possession of the property as affected by the passing of the act, from ordinary sales. From the moment of the execution of the act the vendee becomes the master of the property, his title subject to be divested only by the exercise of the right to redeem, and unless that right is exercised within the term stipulated, he remains absolute owner of the property. Nor is it incumbent on the vendee, after the failure to redeem, to have such failure judicially declared, as contended by plaintiff’s counsel, in order to confirm his title to the property, or to be recognized and to become ite absolute owner. This is a legal sequence of the failure of the vendee to redeem within the prescribed time, and no action on the part of the vendee is required to establish it.

On the contrary, it is incumbent on tire vendor in such a sale, who asserts that he has repaid the price, as the plaintiff has done in the instant case, to prove it.

The evidence entirely fails to satisfy us that plaintiff has ever paid back to Lemle the price he acknowledged to have received for the land. This is an indispensable condition to his recovery, and he must establish it to a certainty. He pretends to have paid it by cotton, delivered from year to year, and which, it is claimed, should be imputed to its payment, but the proof is positive that the cotton was applied, according to the understanding of the parties, to the payment of the privilege debts for supplies. And, without such understanding, it would be proper thus to impute it. Richardson vs. Dinkgrave, 26 An. 657. In fact, in the absence of fraud or error, the leasing of the property by Jackson would be conclusive of itself of bis forfeiture of tbe right to redeem, and an irrevocable admission of Lemle’s title to, and ownership of, the land. Fraud is charged, but it must be proved, like any other fact, and this proof is here wanting.

The bargain may have been, a hard one, and one to which the plaintiff was driven by pressing necessities; but the plaintiff cannot be relieved of contracts of this kind by the plea of ignorance and illiteracy. That ignorance may suffer in its sharp conflicts with superior sagacity, greed and cunning, is one of the penalties of citizenship, for which no immunity can be judicially recognized, simply out of regard for “race, color or previous condition.” Where a contract is mado between those having the capacity to contract, that contract becomes the law to the parties, from the consequences of which courts are powerless to relieve them, when that contract has been fully understood, or when a fair and full opportunity has been afforded for a complete understanding of it.

That the plaintiff understood the terms and meaning of the several acts signed by him we do not know; that he had an opportunity to understand, and was fully informed respecting the same, the evidence leaves little room to doubt. If he did not understand, it was certainly his misfortune.

With every disposition to relieve the plaintiff from the effect of his unfortunate contract, we find ourselves powerless, under the evidence, to do so. The judgment of the lower court is therefore affirmed, with costs.


author: PoCHls, J.

text:
    No. 1084.
    Succession of W. L. Richmond. On Oppositions to Provisional Account of Administratrix.
    The administrator of a succession is responsible for the difference of the appraised valuó of movable effects and the price which they brought at a sale on a seoond offering made on the same day on which the first offering was made, when such sale was made for what the property would bring, witliont reference to appraisement.
    No law in this State compels the administrator of a succession to lease its property at auction.
    A party who receives funds for minors, without having been appointed and qualified as tutor, assumes the responsibilities of an intermeddler or negotiorwri gestor, and will owe interest on such funds from the day that they were received by him. ‘
    The olaim for the recovery of such funds is subject to the prescription of ten years, to bo computed from the age of the majority of the minors.
    An administrator who acknowledges in writing a claim against a succession, and places snch a claim on his first tableau, will be estopped from afterwards contesting such claim, unless he pleads and clearly proves that he had acted through error, caused by the fraud of the creditor.
    APPEAL from tbe Sixth District Court, Parish of Morehouse. Brigham, J.

      N. H. Naff and Todd <& Todd for Opponents and Appellees :
    An unliquidated claim may be urged by way of opposition to administrator’s account. 10 L. 358 ; 10 An. 224 ; 29 An. 493.
    Compensation can only be plead when defendant’s claim is as equally liquidated as plaintiff’s. 1 Hennen, p. 254, § 5.
    Oral evidence is admissible to prove that deceased admitted that he owed a debt; this evidence, when admitted, cannot have the effect to interrupt prescription, it only proves the indebtedness.
    “When an administrator allows an account, prescription is interrupted. 30 An. 853, 1071.
    One who falsely represents himself as tutor of minors and collects money due them, is a nego> tiorwm gestor, and he can only plead the prescription of ten years against an action by the minor to recover the money collected by him. C. C. 3544; 15 An. 143 j 10 An. 395; ID An. 491; 11 Ii. 565; 24 An. 565.
    “Prescription does nob run against minors. C. C. 3521; 23 An. 447.
    After an administratrix allows a claim, and places it on her tableaux of debts, she is es-topped from denying and opposing it. 11 An. 710; 23 An. 764.
    ■ Newton & Nall and Ellis & Sugar for Opponents and Appellants:
    The claim of a minor, against his tutor, before a liquidation by settlement and account between them, or the legal representative of the latter, cannot be enforced against the succession of the tutor. 29 An. 526; 32 An. 457.
    The administrator of a succession, having allowed a claim in error of fact, and through the fraudulent representation of the claimant, has a light to correct the error, and to strike the claim from his account. C. C. 2291; 13 An. 369, 370.
    The claim of a minor against his tutor, arising out of the tutorship, is prescribed in four years, to date from his majority. C. C. 356; 10 R. 173: 6 An. 327; 10 An. 658; 20 An. 509.
    The same responsibilities attach to one who assumes to act as tutor for a minor, and who has control of his person, as attach to the legally appointed tutor. 26 An. 442-3.
    The testimony of one witness, without corroborating circumstances, is insufficient to prove a claim of over §500. C. C. 2277; 15 An. 639.
    Parol evidence is inadmissible to prove any acknowledgment or promise of a party deceased to pay any debt or liability in order to take such debt or liability out of prescription, or to revive the same after prescription has run. O. C. 2270; 24 An. 496.
    Ko person is entitled, at law, to more than what he claims.
    The administratrix is liable for the rents of property which she has failed to lease according to law, and which she occupies and uses for her individual benefit.

      John A. Bichardson for Opponent and Appellee.

      N. J. Scott and E. N. MeGlendon for the Administratrix and Appellant.
   The opinion of the Court was delivered by

PoCHls, J.

The provisional account filed in this succession on the 5th of May, 1881, was met by numerous oppositions from creditors, some of whom complained of being omitted from the account, and others averred that the administratrix had failed to charge herself with rent for a plantation belonging to the succession, and with other items of credit accruing to the estate, to he hereinafter enumerated.

The most serious complaint was directed against the allowance of two items, $950 and $200 and interest, to T. W. and Gr. A. Scott, for moneys alleged to have been collected for them by the deceased, their maternal uncle, when they were minors.

On November 23d, 1882, the administratrix filed au amended account the principal feature of which consisted in ignoring the claim of T. W. and G-. A. Scott, who thereupon filed an opposition, in which they urged the correctness and legality of their claim, and they also filed a plea of estoppel against the right of the administratrix to repudiate a claim whicli she had judicially recognized.

'The trial on these issues resulted in a judgment which recognized the Scott claim, as well as the claims of nearly all the opposing creditors, and amended the account in increasing the amount to be charged to the debit of the 'administratrix. This appeal, taken by her and by Newton & Hall, opponents, presents the following points of contention:

1. The liability of the administratrix for the difference between the appraised value of certain movable effects and the price for which they sold at auction, on a second offering made on the same day that the first offering- was made, for what they would bring irrespective of appraisement, which difference amounts to thirty-five 5-100 dollars.

2. Her liability for $180, for ronts collected on house and lot in Bastrop, and not-accounted for.

' 3. Her liability for rent of the Home Plantation, at the rate of $640 per annum, for the years 1882 and 1883.

4. The correctness of a claim of $77, allowed to A. H. Lindsay.

5. The liability of the succession to T. W. and G-, A. Scott for their claim of $1150 and interest.

I.

We find no error in that part of the judgment which holds the administratrix responsible for the sum of $35.05, as the difference between the appraised value of movable effects and the amount which they brought at the sale, which was made for what it would bring, without reference to appraisement, and which was therefore made in direct violation of the law governing such sales. C. P. Art. 990. The argument that a new advertisement would have cost as much as the amount of such difference, though plausible and perhaps true in point of fact, cannot overcome the strength of a strict provision of law.

The administratrix undertook the risk, and she must bear the consequences, especially as those particular effects were bought in by herself.

II.

In her amended account the administratrix charges herself with $142, amount collected by her for rent on the town property; the evidence fails to show that such rent was worth more, or that she collected a larger amount; hence, in our opinion, the District Judge erred in charging her with $180, for rent of the same property during the same space of time. This item must therefore be stricken out.

in.

Opponents contend that the administratrix having failed to lease the Home Plantation, on which she resided since the death of her husband, at public auction for 1882 and 1883, should be held for such rent at its market value, alleged to be $640 per annum.

The record shows that the administratrix charges herself for such rent for the year 1879 at $200, and for the years 1880, 1881 and 1882 at the rate of $50 per annum, and that the rate for 1880. and 1881 was fixed by auction.

We know of no law and we have been referred to none, which compels the administrator of a succession to lease its property at auction. Hence, the administratrix violated no law in omitting this formality for the year 1882, and she had the right to continue her occupation of the property for that year, and is responsible for the value of said rents, as shown by the previous rents which had been made by public offering.

The record shows that, owing to certain litigation which had been pending against the succession, and which was to have been 'disposed of during the year. 1882, after which it was contemplated that the plantation would have been sold, the administratrix would not have been justifiable to offer, in the beginning of the year, an annual, lease of such plantation. She should not, therefore, be charged more than fifty dollars for that year’s rent, which we conclude was a fair rental, considering the risk of being evicted before the expiration of the year from the result of the pending litigation, and which risk she took.

The same reasoning would dispose’ of the rent for the year 1883, if the year had terminated and if we were certain of her occupation of the place during the whole year. Hence, in our opinion, this question is premature, and must be relegated for final decision to the next or final account to be presented by the administratrix.

IY.

■ The administratrix. complains, that of the account , of A. H. Lindsay, amounting to $110, the sum of $77 was for goods furnished to one of the Scott boys, erroneously charged to Richmond, and she states that she approved Lindsay’s account through error of fact.

■ But the evidence satisfies us that the goods were furnished to Scott; who was then a laborer of Richmond’s, under the latter’s order, and that he had bound himself to pay for the same; hence, his succession was properly chargeable therewith, and the administratrix had committed no error in recognizing the claim, which she cannot otherwise dispute.

V.

The claim of T. W. and G. A. Scott is resisted on the grounds:

1. That it was never due.

2. That it is barred by the prescription of three, four and ten years.

3. That in recognizing the claim by a written acknowledgment, the administratrix had been led into error by fraud and deception practised on her by T. W. Scott.

4. That it is extingushed by compensation.

1. The Scott claim is alleged, to arise out of the following facts and transactions:

The Scott boys, having lost their parents at an early age, were residing with and being cared for by their uncle, the deceased, when the succession of their maternal grandfather was settled in the Parish of Morehouse, and the sum of $950 accruing to them from said succession was paid by the administrator thereof into the hands of the deceased W. L. Richmond, who had represented himself to be their tutor and guardian. This occurred in the year 1867. The additional sum of $200 is alleged to have been received for them, in part payment of some property accruing to them from the estate of their father, who died in the State of Mississippi in 1867, and sold by Richmond. This occurred in 1873. They proceeded to make out their claim through their own testimony and that of other persons conversant with the facts, and the administratrix objected to the introduction of any and all parol testimony, on the ground that such testimony was inadmissible to prove the acknowledgment of a party deceased to pay any debt, in order to take such debt out of prescription. For such purpose the evidence was clearly inadmissible, but for the purpose of proving the origin andpast existence of the alleged debt, the evidence was doubtless admissible, and hence, the Judge did not err in allowing its introduction. Under the restriction above indicated, we have considered and weighed the testimony on that point, and it has satisfied us that the sums charged were received, as alleged by Richmond, by whose succession such sums are yet due, unless the claim has been extinguished by some legal mode.

2. The administratrix invokes that of prescription. It is conceded in argument that the plea of prescription of three years is not applicable. As the record utterly fails to show that Richmond had ever been appointed as tutor of the Scott minors in this State, or as their guardian in the State of Mississippi, it is equally clear that the prescription of four years cannot avail in the case of a party who receives or collects funds for minors as an intermeddler or negotíorum, gestor, as is shown to have been the case with Richmond in this record.

His only shield must be found in the prescription of ten years. C. C. 3540, 3544; Garland vs. Scott, 15 An. 143; Harrison vs. Adger, 24 An. 565; Succession of Raphael Romero, 29 An. 494.

Now, it is an elementary provision of our law that prescription does not run against minors, except in certain cases not herein presented. C. C. 3522.

Hence, the ten years must be computed from the time at which these opponents respectively reached their majority. The record shows that T. W. Scott became of age in the year 1871, and G. A. Scott reached the same age in May, 1875. As this opposition was filed in March, 1883, the solution of the plea as to him suffers no difficulty whatever.

In the case of T. W. Scott, the plea is defeated by the written acknowledgment of Ids claim, together withhis brother’s, by the administratrix in October, 1879, two years before prescription would have acquired.

It is now settled in our jurisprudence, that the aeknowlegment of a debt by the administrator of a succession operates a legal interruption of prescription, which is thereby suspended as long as the property of the succession remains in the hands of the administrator for administration. Twendle vs. Debouchel, 32 An. 753; Succession of J. C. Patrick, 30 An. 1071; Renshaw vs. Stafford, 30 An. 853.

3. But the administratrix contends that her acknowledgment of this claim is stripped of legal effect, because it was made in error of fact, through the misrepresentations of T. W. Scott, who stated to her, on presenting his account for her approval, that she was advised by her attorney to acknowledge the same, and that she discovered the deception later. Having acknowledged this account in October, 1879, having placed it as a debt of the succession on her tableau in May, 1881, she cannot be allowed to escape the legal effect of such acts which amount almost to a confession of judgment, without proving clearly the alleged error under which her good faith was deceived, and the burden of proof is exclusively on her. Succession of Mulhern, 33 An. 1047. The evidence utterly fails to establish the ^Be^ed deception, and even absolutely negatives the obnoxious ch®|§|{''" Her silence from October, 1879, to November, 1882, when she filed her amended tableau, and her failure to sooner denounce such a bare deception, im volving a heavy claim against her husband, who, to her avowed knowledge, owed money to these opponents, who liad been raised, and had lived for several years under her roof, speaks louder than words in refutation of this chai’ge, which is manifestly an afterthought, and the offspring of an imagination more fertile in resources than hers.

We, therefore, hold her written acknowledgment as a legal and complete interruption of prescription.

The exception filed to the opposition of the Scotts, that their actiou should have been one for an account of tutorship, has no force, and is

■ disposed of by that part of our opinion which settles the status of Richmond towards his minor nephews. The objection that, in their opposition, the Scotts asked judgment for only $950, and that the judgment erroneously allows them more than they prayed for, is met by their plea of estoppel filed later, in which they assert their right to recover the full amount of their claim as allowed in the provisional or first account presented by the administratrix. This allegation, coupled with the previous judicial admission of the administratrix, that their entire claim was correct, was sufficient aspleading, to justify the admission of proof, and to sustain a judgment in their favor on proof of the claim.

- We note also the fact that no objection based on that ground was made to the introduction of their evidence.

■ 4. •• The plea of compensation is not sustained by the record which shows, on the contrary, that these minors amply compensated by their labor in the field the support which they received from their uncle, including their board, clothing and a little schooling which he provided for.

The Judge allowed interest at five per cent, per annum on the sum of $950 from November 1867, and at the same rate on the sum of two hundred dollars from November, 1879. We see no error to the detriment of the succession in that-ruling.

Opponents were entitled to interest from the date at which their claims ' were due. R. S. Sec. 1883; Gonsoulin vs. Migues, 5 An. 565; Fuselier vs. Babineau, 14 An. 764; Conrad vs. Burbank, 24 An. 18.

The judgment appealed from is therefore amended, in so far as it • allows a credit of $960 against the administratrix for rent of the plantation for the years 1882 and 1883, and it is ordered that she be charged rent for 1882 at fifty dollars, and that there be judgment of non-suit for the rent of 1883; the judgment is further amended by rejecting the demand of $180 for rents of the town property for the years 1879, 1880 and 1881.

It is now ordered that said judgment, as thus amended, be affirmed in all other respects, and that costs of appeal be paid in equal proportions by opponents, Newton & Hall, and T. W. and G. A. Scott. .


author: Bermudez, C. J.

text:
    No. 1089.
    Thompson Wood et al. vs. J. S. Roane.
    In the execution of nuncupative wills under private signature, the law authorises the testa* tor to cause his will to be written out of his presence and of that of the instrumentary witnesses.
    The person who has acted as the amamtensis of the testator for that purpose is not disqual*. ified, on that account, from officiating as one of the witnesses to the will, and can bo counted as one of the ñve witnesses required by law»
    Presentation of a nuncupative will, under private signature, by a testator, admits, supplies, or dispenses with a formal dictation.
    Where the Will of the husband and that of the wife, or any two persons, are written out by the same party, on the same day, in favor of the same beneficiary, and are presented by the testators separately to the required number of competent witnesses, with the proper statement, at different times though on the same day, they constitute two disconnected, distinct, and independent acts, and ar© not amenable to the prohibitions contained in Article 15†2 of the R. O. 0.
    The burden of proving insanity rests on the party alleging it.
    APPEAL from tlie Third District Court, Parish of Lincoln. S. X>. Pearce, Judge ad hoe.

      P. G. Gobb aud G. M. Pilis for Plaintiffs and Appellants.

      G. L. Gaskins, IT. Feasel and A. Barksdale for Defendant and-Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action to annul the testament of Willis Wood and the decree ordering its execution.

From an adverse judgment the plaintiffs appeal.

Of the numerous grounds set forth in the petition, three only will be noticed. They are:

1.That the will was not executed in compliance with the formalities required by law in making nuncupative wills under private signature.

2.That the will was made in violation of the law whichforbids two or more persons from making a testatment by the same act, for the benefit of a third person.

3.That the testator was mentally incapacitated at the time of making the will.

I.

The testimony shows that the testator sent for his legal adviser, who responded to the call; that the latter inquired of him touching the dispositions which he wished his will to contain. Wood stated how his property stood, and said that he desired to will all of it to John S. Roane. The -legal adviser, Judge E. M. Graham, then went into ' another room and there wrote the will. Having drawn it up, he returned to the room occupied by the testator and read it over to him, the testator saying that it was all right. After the reading, the witness folded the will and handed it to the testator, instructing him as to the manner of presenting it to the witnesses. Judge Graham then walked out on the gallery, where the witnesses requested for the occasion were assembled, and asked them to come in and witness the will. They all then entered the room in which the testator was lying in bed and arranged themselves around the same. The «testator holding the will in his hand presented it, saying to the witnesses : This is my last will. I want you to witness the signing of it. Judge Graham was standing on the right hand side of the bed and the remaining witnesses at the foot of the same. Judge Graham then took the will handed by the testator, and read it over to him in a distinct voice, in the presence of the other witnesses.

The testator, after being elevated in bed and propped up with pillows, signed the will and after him the witnesses, in the order in which their names appear on it. For some reason not apparent, Judge Graham read the will a second time and called the names of the witnesses. He then folded the paper and presented it to the testator, who asked if it ought not to be recorded. On being answered that there was no objection to such a course, the testator asked his adviser to carry it to the recorder’s office and have it recorded, which was done.

The defects of form charged against the validity of the will are: that it was not dictated by the testator; that it was written by one of the witnesses, out of the presence of the testator and of the other witnesses; that it was not presented to five but to four competent witnesses.

Articles 1581 and 1582, R. C. C., contain the whole law by which the validity of the will is to be tested. The first Article provides, that a nuncupative testament, under private signature, must be written by the testator himself, or by any other person from his dictation, or even by one of the witnesses, in presence of five witnesses residing in the place where the will is received, etc.

Or, it will suffice if, in the presence of the same number' of witnesses, the testator presents the paper on which he has written his testament, or caused it to be written out of their presence, declaring to them that the paper contains his last will.”

The following Article provides, that “in either case, the testament must be read by the testator to the witnesses, or by one of the witnesses to the rest in presence of the testator; it must be signed by the testator, if he knows how or is able to sign, and by the witnesses, or at least by two of them, in case the others know not how to sign, and those of the witnesses who do not know how to sign must affix their mark.

This testament is subject to no other formality than those prescribed by this and the preceding Article.”

The contention in the case before us is, that the will was not presented and not read to, and not signed hyfive witnesses; that it was received by four witnesses only, the person who officiated as the fifth witness (Judge Graham) being incompetent as such, for the reason that he wrote the will.

The proposition is manifestly unsound and cannot receive our sanction.

If it were true that a witness who drmos up an instrument is incompetent because of that agency, there would be no reason why the witness who reads the will to the others should not be likewise incompetent, and why, if all the witnesses were to read the will, they and each of them would not be also disqualified; nay, why the witnesses who signed the will should not also be treated in the same way. It would rather seem, on the contrary, that, precisely because the witness drew up the writing, he should be competent and, in the end, the preferred one.

The law does attach particular and significant importance to the writing of the will by one subscribing it, to attest its correctness. In the confection of authentic wills, the law requires that the will be written by the notary, who is certainly a witness, and a most indispensable one, so much so, that if the will be not thus drawn up by him, and if it cannot validate in some other form, it will be treated and declared a nullity.

The objection is implausible. It cannot stand the slightest scrutiny, and must, therefore, fall.

We deem it unnecessary to inquire and determine whether the will written by Judge Graham was or not dictated by Willis Wood, however much it was declared by this witness so to have been. That- feature is here immaterial.

Under the circumstances it was unnecessary that it should have been. It is sufficient that it does appear unmistakably that it was caused to be written by the testator, and that it was drawn up by his direction, to put its validity in that respect beyond discussion or doubt. R. C. C. 1648, 1649.

Under Articles 1581, 1582, the testator must either dictate, or, in the absence of dictation, present the instrument which he has caused to be written, and declare that it contains his last intentions. Such presentation and. declaration admit, supply or dispense with a formal dictation.

The. decision in the Bordelon case, 11 An. 676, invoked by the plaintiffs, was subsequently overruled, both in the Prendergast and Marigny cases, found in 16 An. 219 and 267.

In the last case, the undisputed facts were : “There were present in the room the testatrix, the notary, and four persons officiating as witnesses. The testatrix drew from her pocket a paper, which she handed to one of the witnesses, stating that it contained her last intentions, drawn up by her order. At the request of the notary the paper was handed to him. Whereupon, the testatrix requested him to read the paper. This was complied with, in the presence of the witnesses. She then requested the notary to copy the contents of the paper as her will. He did so, and at the close of each paragraph, read the same to the testatrix, paragraph by paragraph, inquiring of her whether that washer meaning. She answered each time that it was, causing the notary to read over one of the paragraphs which she had not well understood. Then, the whole, as copied from the paper, was read to her, in the presence, of the witnesses, and she again declared that this was her will. The instrument was thereupon signed by the testatrix, the notary and the witnesses.”

The will of Mrs. Marigny was authentic, and had been attacked because it had not been dictated.

The Court deemed ilj unnecessary to pass upon that issue, but considering that there had been a literal and strict compliance with the second paragraph of the then Article 1574 (now 1581) of the Code, they held that it was a valid nuncupative testament by private act, and so decreed.

It is somewhat singular that, while one of the learned counsel for the defense has mercilessly, without discrimination, assailed the correctness of all the opinions collected in the report in which the Prendergast and Marigny cases are to be read, and which were rendered by a Court as respectable for learning and integrity as any, be does not hesitate to commend to our careful attention for application, a decision of the same tribunal, which is found in the same volume, hut which, he thinks, fortifies his position beyond all fears of capture.

The case was familiar to us. We have, however, again considered it. While we find that the Court took unusual pains in transcribing at length the testimony of the witnesses, we are satisfied that, under the evidence, the conclusions reached are in perfect consonance with the law, such as we understand its spirit and letter, and we fail to discover in what respect or degree the ruling can possibly benefit the plaintiffs in the instant case.

After analyzing that testimony, the learned Court said that it was evident that the will of Archibald Douglass was neither dictated, nor presented by the testator to the witnesses, thus discriminating between a dictation and a, presentation.

We feel no hesitation, in the present case, in declaring that we find that the will of Willis Wood was presented, read to and subscribed by the required number of competent instrumentary witnesses, and that all the forms of the law having been rigidly and scrupulously observed, it must be executed.

We reach this conclusion with exceptional satisfaction, as no fraud or ill-practice is either alleged or proved in the making of the will, and we are at a loss to see how any could have been perpetrated. The mere possibility in the absence of any proof of the actuality of the commission of ill-doings, in the procurement or confection of wills, is entirely inadmissible as a ground for the inexecution of the last intentions of the departed ones, otherwise, even testaments by public acts, which are framed with unusual caution and solemnity, would themselves remain as the barren repositaries of sacred liberty.

II.

The second ground of attack cannot be maintained.

The evidence shows that, after the will had been completed, Judge Graham had already retired, when he was called back and requested to make that of Mrs. Wood; that, retracing his steps, he also acted as her amanuensis on the occasion, and prepared for her a will by which she instituted the same Roane her universal legatee.

The charge to invalidate the first will is, that, with the second will, it forms one and the same act, by which Wood and his wife have conjointly instituted the same person their universal legatee, in direct violation of Art. 1572, R. C. C. (C. N, 968).

The two wills, although executed through the same agency, that is, written by the same person and consecrated before the same witnesses, are clearly the separate deeds of two different persons, and are unmistakably two distinct and independent acts, which are not amenable to the charge of conjunction, or unity of confection.

It is only where two or more persons, by one and the same act or instrument, which is a unit, or entirety, from its beginning to its end, conjointly dispose of their property in favor of the same party or beneficiary, that the condemnatory provisions of the law can be applied. C. N. 968; Marcadé IY, liv. I, Donations and Testaments, p. 3, on Art. 968 C. N.; Toullier 5, p. 380, Nos. 345, 347; Pothier, Test. ch. 1, Art. 1; Merlin Rept. 17, Test. Conj. No. 1, p. 812; Duranton 9, No. 8.

The authority in 12 An. 880, Oreline vs. Haggerty, far from support•ing the proposition advanced, demolishes it most effectually.

The act was one in the authentic form. The preamble states, that at the instance of Haggerty and of his wife, the Recorder had repaired to their residence to receive their last wills in presence of named witnesses expressed, called upon by the testator and the testatrix for the very purpose.

After this preface, .the act continues: And then and there personally appeared the said J. Haggerty, who has dictated his will to the Recorder, who has written it such as it was dictated and as it follows.

Next comes a formal conclusion and the. sign atures of the testator and the witnesses ; and the Recorder immediately below, and in continuation, wrote a protocole similar to that heading the husband’s will, using the name of the wife, after which follow aformal conclusion and the signatures of Mrs. Haggerty, the witnesses and the Recorder, ex officio notary.

It is evident that the instrument was in reality a connected act and not two distinct and independent acts. It bears the signature of the notary but once, and that at the conclusion of the second recital. The first will was incomplete for want of the Recorder’s signature. The second . will formed part of it, and both were amenable to the charge levelled against them of being one and the same act, by which two persons had willed their property to a third person. They were blended together so completely, that it could not but be said, as in truth it was the fact, that they constituted one and the same continuous act. Nullity was the unavoidable consequence of the infraction of the prohibitory law.

III.

The charge of mental incapacity is not at all supported by any evidence. Among the parties who acted as witnesses at the making of the will is to be found the attending physician of the testator. Our attention is merely called to the evidence without any effort to show what it is. We deem it unnecessary to even state what was the evidence of sanity adduced. Sanity being presumed, the burden was upon plaintiffs to disprove or rebut it, and in this they have utterly failed.

The evidence received to probate the will justified the conclusion of correctness reached by the Judge in the proces verbal of the proceedings. C. P. 933 to 943.

There being no error in the judgment appealed from, rejecting plaintiffs’ demand for the nullity of the will of Willis Wood, and the probate thereof, it is affirmed with costs.


text:
    No. 1077.
    The State of Louisiana vs. Shad Johnson.
    Before a witness oan bo discredited on the ground of having made a contradictory statement to that made on the trial, such mode of discrediting cannot be resorted to, unless the proper foundation is first laid by ashing the witness whether he had made suoh state* jnont, giving the particulars of the time, place or ciroumstanoea under which it was made, ■Where this cannot be done, beoause the witness sought to be discredited is dead, the proof of suoh contradictory statement will not be admitted.
    APPEAL from the Sixteenth District Court, Parish of East Feliciana, Klenan, J.

      Chas. JE. Lea, District Attorney, for the State, Appellee.

      F. J. Kernan and T. B. Lyons for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant was convicted of larceny, and appeals from a sentence of fifteen months’ imprisonment at hard labor in the penitentiary. His sole complaint before this Court is to the ruling of the trial Judge, excluding certain testimony, to which a bill of exceptions was taken, appearing in the record. The bill shows:

That there were two trials in the District Court; that on the first trial one S. B. Kent testified, as a witness for the State, touching the identity of the property eharged to have been stolen. This witness, Kent, died before the second trial, and at this second trial testimony was admitted to prove what Kent had sworn to on the previous one. A witness, Robin's, was called by the defense, and testified in rebuttal of the testimony of Kent, the deceased witness. After so testifying, Robins was asked what Kent had told him, immediately before and after the former trial, in regard to the identity of the property, and the connection of the accused with said charge.” This was objected to as hearsay, the objection sustained, and the testimony excluded.

The ruling was correct. It does not appear from the bill that the rejected testimony was offered to impeach the credibility of Kent. Such purpose is not stated in the bill. If such was not the purpose, the testimony was elearly inadmissible, on the ground of being hearsay, If offered to discredit the deceased witness, it was equally inadmissible, for the reason that a witness cannot be discredited in this manner unless the alleged contradictory statement has first been called to bis attention, as to time, place and circumstance, or otherwise designated with sufficient certainty \ and this foundation must first be laid before such mode of discrediting can be resorted to, Greenleaf, Evidence, Vol. 1, p. 636.

Nor does the impossibility of laying such a foundation, on account of the death of the witness sought to be discredited, dispense with the application of the rule, or rather, affect the principle involved in it j for this rule is intended not only for the protection of the witness, but for the elucidation of the truth. G-reenleaf says ¡ “ that common justice requires that, by first calling the witness’ attention to the subject, he should have an opportunity to recollect the facts and, if necessary, to correct the statement already given, as well, as by a re-examination, to explain the nature, circumstances, meaning and design of what he is proved elsewhere to have said.” Vol. I, p. 689. And in a note on same page we find this language : “ The utility of this practice is illustrated by a case mentioned by Mr. Justice Cowen, in his notes to Phillips on Evidence, in which a highly respectable witness, sought to be impeached through an out-of-door conversation by another witness, who seemed very willing to bring him into contradiction, upon both being placed on the stand, furnished such a distinction to the latter as corrected his memory and led him, in half minute, to acknowledge he was wrong.”

If this wise and salutary rule is varied or departed from, with respect to the testimony of a dead witness, because of the impossibility of its application, we can readily perceive what facility it would afford to the impairment or destruction of testimony of the very highest character and entitled to the most implicit confidence. For these reasons we are confirmed in the correctness of the ruling complained of.

The judgment and sentence appealed from are, therefore, affirmed with costs.


author: Fenner, J.

text:
    No. 1100.
    Emma C. Bates, Wife, vs. William F. Behen, Husband.
    Article 138 Civil Code, relative to separation from bed and board, is not repealed ; affirming 32 An. 1174.
    The conclusions of the Judge a quo on questions of fact involved are concurred in.
    ApPEAL from the Third District Court, Parish of Union. Graham, J.

      Young & Holbert for Plaintiff and Appellee.

      McOlendon & Barlcsdale for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.


author: • Bermudez, C. J.

text:
    No. 1102.
    The State ex rel. Wentz vs. The Judge of the Fifth District Court, Parish of Ouachita.
    A mandamus does not lie to compel a Judge to render judgment, or to sign one which is ten* dered him by counsel, in accordance with the verdict of a jury, when there is a motion, for a new trial pending and undecided, and where the Judge proprio motu has quashed the verdict and reinstated the case to be tried anew.
    PPLICATION for Writs of Mandamus and Prohibition.

      T. O. Benton for the Relator.
   The opinion of the Court was delivered by

• Bermudez, C. J.

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

The relator complains that the District Judge has refused to sign a judgment which his counselhadprepared and tendered to him, approving and carrying out a verdict in his favor, and that said Judge has subsequently not only entertained amotion for a new trial, offered by the counsel of tlie party cast, but has gone so far, proprio motu, as to quash the verdict and reinstate the case to be tried de novo.

The District Judge returns justifying his conduct.

The verdict of a jury is not conclusive upon the presiding Judge. He may approve or disapprove it. In the first instance he must render judgment, and if no motion for a new trial has been made, and if the legal delay has elapsed, it is his duty to sign it. In the last case he may, in the exercise of the discretion vested by law in him, set the verdict aside on rendition, or take time to consider of its correctness. It is only after being satisfied with such correctness of the verdict, that it becomes his duty to render judgment upon it, and in due course to affix his signature to the judgment. When, however, he has not reached such conclusion, the law forbids him from rendering and still less signing a judgment in furtherance of the verdict.

In the present instance, the Judge declined to sign the judgment tendered to him, not so much because it was prematurely offered, but chiefly because he entertained grave doubts as to the correctness of the verdief. While he was thus in doubt, a motion for a new trial was made, which was not brought up by either party to his attention for review before the adjournment of the court. He was not hound to notice it of his own accord. It was incumbent upon one of the parties in interest to have called it up, and requested the action of the court upon it. Then only is it that the law could make it the duty of the court to pass upon it and, if overruled, to render judgment on the verdict. C. P. 546.

The court had adjourned without any action on the motion for a new trial. Whether the motion did or not abate, or was or not still pending, when, at the opening of the next term, the Judge was again asked to sign the judgment, he was still justified in refusing to sign.

The Judge had no authority to sign the judgment without first disposing of the motion, which could not be done unless contradictorily.

He would in doing so have committed a wrong. 12 An. 562; 6 An. 252; 32 An. 208.

But it so happened that the Judge, not only declined thus irregularly to render and sign the judgment prepared by counsel, but also (his views having ripened, and the amount allowed by verdict of the jury being considered.by him as excessive and outrageous) deemed proper, in the exercise of the discretion which the law vests in him, more specially in instances of this description, to quash the verdict and order a new trial. C. P. 538, 539, 547; 10 La. 209; 8 An. 92; 10 An. 776; 33 An. 883.

With the exercise of such discretion, this Court has no authority presently to interfere.

We, therefore, conclude that it wasnot the duty of the District Judge to sign the judgment presented, and that he had full legal power to annul the verdict and reinstate the case to be tried anew.

Hence, the application must be dismissed at the cost of the relator.


author: Pocná, J.

text:
    No. 1098.
    Frank E. Trimble vs. B. F. Pleasant, Sheriff, et al.
    An allegation that a certain property is worth not less than a stipulated sum, is sufficient to admit evidence to show that the property is worth more than the stipulated amount.
    Motion to dismiss overruled.
    Courts can allow no relief which is not prayed for in the pleadings.
    APPEAL from the Third District Court, Parish of Union. G-ralurni, J.
    J. 23. Trimble for Plaintiff and Appellant.

      A. Barksdale for Defendants and Appellees.
   The opinion of the Court was delivered by

Pocná, J.


text:
    No. 1092.
    R. P. Glen vs. A. G. Breard et al.
    The enumeration of the various works of public utility and advantage, for which corporations were authorized in Section 683, Revised Statutes, was exemplary and not exhaustive, and all similar and analogous enterprises were covered by the concluding words, “and generally all works of public utility and advantage.”
    The business of establishing a wharfboat and a steam elevator at the river bank of the port of Monroe, for the convenience of liver carriers and of all shippers and receivers of freight, and of carrying on, through such instrumentalities, a receiving, forwarding and storage business, falls within the purview of the law.
    The members of such a corporation are not liable to be sued, as individuals, for the corporate debts.
    APPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J.

      Robert Ray and R. G. Morgan for Plaintiff and Appellant:
    1. Corporations, unauthorized by law, have no standing in court except in the individual names of all the members who compose it. C. C. 446; 33 An. 635.
    2. v Dealing with a corporation unauthorized by law does not estop the party from denying its corporate existence. 29 An. 371; 16 An. 153.
    3. "When an exception is pleaded, that all the members of the firm are not made parties, the party making the exception must set out all the members who compose it. 4 L. 106.

      Franklin Garrett and Boatner & Boatner for Defendants and Appellees:
    1. “The rule of law is, that during the existence of the partnership suit must he brought against the firm and not against individual partners.” Key vs. Box, 14 An. 497.
    2. ' ‘Suits against chartered companies must he brought against them und er their legal titles. ’' C. P. 119.
    3. Plaintiff having contracted with a corporation, as such, in a suit on the contract, both parties are estopped to deny the existence or the legal validity of such corporation. 101 U. S. (xi 0.) 392-7 ; 94 U. S. (iv O.) 22, 680; 33 An. 1448-9.
    4. A corporation can he legally formed in Louisiana: to effect insurance to construct, own, or lease, and maintain docks, wharves, wharfboats, steam elevators, drays, floats, and other vehicles for the transportation of freight. . R. S. 683; Charter “Monroe W. and B. Co.” Art. 2.
   The opinion of the Court was delivered by

Fenner, J.

The “ Monroe Wharfboat & Elevator Co.” was regularly incorporated under Sections 683 et seg. of the Eevised Statutes. Its act of incorporation was duly recorded. It elected officers, as provided in the act, and conducted its business in its corporate name and through its said officers.

It bought a wharfboat from plaintiff, partly for cash and partly for notes, the latter being signed by the president of the corporation and sealed with its seal.

Three of these notes not having been paid at maturity,-the plaintiff, selecting the six stockholders who signed the original act of incorporation, brings this suit against them individually as commercial partners, alleging, in substance, that the corporation had no legal existence, because unauthorized by law, and was therefore a mere private trading company engaged in mercantile business, the members of which were liable individually and in solido.

To the petition defendants interposed the following exceptions, among others : 1st, that the Monroe Wharfboat & Elevator Co.” is a legally constituted corporation and can only be sued through its designated officers; and 2d, that having contracted with the corporation as such, plaintiff is estopped from denying its corporate existence.

The exceptions were sustained and the plaintiff appeals.

Much reflection upon the objections urged by the learned counsel of plaintiff to the corporate capacity of the contracting company fails to convince us of their soundness.

The Act of 1855, reproduced in Sections 688 et seq. Rev. Statutes, was entitled An Act for the organization of corporations for works of public improvement and utility.” The law authorized the constitution of corporations for various enumerated purposes, and concludes with the words: and generally all works of public utility and advantage.”

Clearly the enumeration was not intended to be exhaustive, but merely to indicate, by various examples, what the law-maker considered to be “ works of public utility and advantage.” All similar or analogous works or enterprises were manifestly covered by the concluding general expression.

Amongst other examples enumerated in the Act we find the following : “ for the construction and maintenance of railroads, bridges, ferries, and other works of public improvement; to effect insurance; to construct and maintain dry-docks or floating docks for the building or repairing of ships or other vessels; to construct and carry on works to compress cotton; to construct and maintain docks, steamships and other vehicles for the transportation of freight and passengers.”

It thus appears that enterprises having for their purpose the improvement of the convenience and facilities of intercourse and of handling, transferring and transporting commodities, figure conspicuously among the “ works of public utility and advantage ” contemplated by the legislator.

Turning now to the charter of this company, in order to ascertain the purposes of its organization, we find them declared therein as follows: to do a general receiving, storage, transfer and forwarding business, and for the accomplishment of these objects, to own or lease and maintain one or more wharfboats on either bank of the Ouachita River, at Monroe, for the use and convenience of steamboats and other watercraft landing for the discharge or lading of cargoes, * * to store freight or other lading for watercraft, * * and to take insurance risks on such freights or other landing ; to construct docks or wharves on the Ouachita River front * * ; to construct and own or lease and maintain a steam elevator or elevators on either bank; to purchase or lease suitable grounds * * and to erect thereon warehouses for the reception and storage of every description of produce or goods that enters into commerce, etc.”

We cannot agree with plaintiff’s counsel that the purpose of this incorporation is merely to do a receiving, forwarding and warehouse business in a general sense. The whole article is to be taken together, and it clearly discloses the purpose to be the establishment and.maintenance of a wharf boat and a steam elevator and warehouses and other appliances and accessories mentioned, with the object of facilitating the transfer of freight, and promoting the convenience of river carriers and of all shippers and receivers of freights at the port of Monroe. This is certainly as much a “ work of public utility and advantage ” as the maintenance of bridges, ferries, docks, vehicles for the transportation of freight and passengers, cotton presses, and other examples enumerated in the law.

The very name of the company indicates it object, and the evidence establishes that, for the carrying out thereof, it did maintain a wharf-boat and did build a steam elevator with a railway from the top of the river bank to low water line, by means of which its business was carried on. It was after the destruction of its first wharfboat by fire that, in order to replace the same, the company purchased the boat of plaintiff, for a part of the price of which this suit is brought.

The argument against the policy of allowing corporations for such purposes, as encroaching on the domain of private enterprise, addresses the legislative, not the judicial ear. Our function is to recognize and enforce the policy actually adopted by the legislature, and we are satisfied that this corporation was organized in perfect consonance therewith.

The evidence does not establish that the company has engaged in the mercantile business of buying and selling goods forbidden by the statute. But if it were true that it had so abused its privileges, and contravened the prohibition of the law, this might furnish ground for forfeiture on proper proceedings, but could not avail plaintiff in the present action.

This relieves us from considering the question of estoppel as to which existing jurisprudence seems to be in a confused and contradictory condition. See Workingmen’s vs. Converse, 29 An. 369; Citizens’ vs. Latiolas, 33 An. 1448.

Plaintiff’s demand is surely wanting in equity, because he seeks to impose upon defendants a liability which they certainly never intended to incur, and which, from the circumstances of his contract, it is apparent he did not expect or believe to exist.

Judgment affirmed.


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    No. 1085.
    S. Meyer vs. Fletcher, Wesenberg & Co. and Squair.
    The bond which intervenors are authorized to furnish under the provisions of Act No. 51 of 1876, to be restored to the possession of property attached, sequestered or provisionally seized in their bands, is a forthcoming bond, designed merely to secure the return of the property at the final determination of the suit, and under which no personal liability for the judgment to he rendered attaches.
    Where the condition of the bond has been fulfilled, namely, the property baa been surrendered in the condition in which it was received, the intervenors and their surety are entitled to he discharged.
    APPEAL from the Fifth District Court, Parish of Ouachita. Rich* ardson, J.

      Richardson & Liddell for Plaintiff and Appellant:
    On Motion to Dissolve.
    1.Property of a non-resident debtor is not exempt from attachment because he has a place of business or a commercial domicile in this State. 10 An. 727.
    2.When the defendants have, in various litigations with plaintiffs, alleged themselves and their firm to be non-residents, they will not he permitted to deny the truth of their allegations, which have been acted on by plaintiffs, in order to dissolve an attachment They are estopped from contradicting their judicial allegations. 30 An. 53; 8 An. 141; 3B. 243; 26 An. 705; 10 An. 94; 34 A.n. 912, 913; No. 10, Bigelow on Estoppel, 473-9 and 561.
    3.In a suit against an intervenor (who is an absentee) on his bond given to release property attached, the action being for a specific amount and based on a contract, authorizes the writ of attachment. 1 N. S. 369 ; 2 N. S. 323 ; 6 N. S. 564; 2 An. 154; 12 An. 110; 15 An. 1; 29 An. 88.
    4.The attorney-at-law empowered by his client to collect a debt, having the authority to make affidavit to obtain the writ, may sign the attachment bond for his client who is ab; sent. C. P. 245 and 237; 10 An. 35; 6 An. 706 and 4; Craig vs. York, Court of Appeals, for East CarroU; C. C. 3000; Bouvier, verbo agent.
    5.The authority of an attorney-at-law to sign his client’s name to an attachment bond cannot be impugned on suggestion. The presumption is in his favor, and the burden of proof on the party alleging the want of authority. Hennen, Yol. 1, page 150, on presumption, proof and denial of attorney's authority. 4 R. 23; 10 An. 350,
    6. The writ of attachment as against absentees and non-resident defendants is a means of citation used for the purpose of giving the Court jurisdiction, and when the absentee reconvenes for damages he waives all formalities in attachment proceedings. 34 An. 963; 11 R. 326; 4 R. 193; 12 An. 282.

      *7. A motion to dissolve an attachment for informalities is waived, if coupled with a reconventional demand for damages, which is a matter for the merits.
    On the Mekits.
    1. Act 51, 1876, authorizes the intervenor in attachments, sequestrations and provisional seizures, to bond property of which they were in possession, upon giving bond within the same delay, with same manner and amount and effect as is now allowed the defendants in such suits.
    2. The defendants in attachment suits, to relieve property attached, must give bond in an amount exceeding by one-half the value of the property attached; conditioned to satisfy such judgment to the value of the property attached as maybe rendered. C. P. 259.
    3. Such bond is a personal obligation which cannot be discharged by the sureties by tendering back the property or pointing out other property for discussion. 18 La. 58; IP. 278; 10 La. 108; 16 An. 25.
    4. Previous to Act 51,1876, the court had allowed the intervenor to bond under the theory that he was the agent of the true owner, and intervenors were always held to give bond to satisfy such judgment as may be rendered against the defendant to the value of the property attached, eto. 16 An. 25 and 125; 14 An. 53; 17 An. 314.
    5. When an intervenor has filed his petition, under oath, and obtained the order to he allowed to bond property attached, and afterwards presents a bond along with the order of the court and obtains the property, he will he bound on the bond to the extent of the property released, whether he signed or not. 15 An. 465; 11 An. 505.
    6. If the conditions of the bond are wantiDg or informal, the law will reform it. 32 An. 38; McClosky vs. Wingfield, and authorities there cited.
    7. The law authorizing a judicial bond'forms part of the contract in such bonds. 12 An. 177 and 720 ; 20 An. 179.
    8. It is the duty of intervenors to word their bond in conformity to law. 14 An. 53; 15 An. 465.
    9. It is the business of the surety to see that his principals sign the bond. 11 An. 504.
    10. No intervention will be allowed after the property attached has been bonded. The bond is a substitute for the property only as to the plaintiff. 16 An. 35; 28 An. 792; 22 An. 751.
    11. The lien on the property attached results from the seizure, and not thelaw; so when the seizure is set aside by bond tbe lien no longer exists, and all rights are transferred to the bond. Drake on Attachments, Section 277; 18 L. 57; 2 An. 244; 10 An. 49.
    12. When the property attached or its proceeds are in the hands of the Sheriff, the seizing creditors will he paid in the order of their seizure; hut when it has been bonded, creditor will be entitled to recover on his bond. 16 An. 25; White et al. vs. Hawkins et al., Wright intervenor.
    13. The liability of an intervenor on his bond given to release property attached, is fixed by the judgment in favor of plaintiff. 16 An. 25 and 125.
    14. The condition of a suspensive appeal bond and a bond given to release property attached, differ only in this, the former bond is to satisfy the judgment in fall, while the latter is to satisfy the judgment to the value of the property attached. In appeal bonds the law binds the principal independently of the bond, which is executed for the purpose of binding the surety on the appeal bond. There is no material distinction. 6 An. 706.
    15. The property is released upon the contract of the intervenors to satisfy such judgment as may be rendered against the defendant to the value of the property released. t

    16. When property has been seized under attachment by different creditors, in different parishes, and in each, instance is bonded by the same intervenor, though with, different sureties and on distinct days, after judgment in favor of plaintiff in one parish, the intervenor, whose liability is thereby fixed, cannot extinguish it by returning the property bonded to the Sheriff of the other parish.
    17. The law does not accord to the absentee defendant the right to reconvene for damages against the resident plaintiff in attachment, unless the demand In reconvention ianeces" sarily connected with or grows out of plaintiff's cause of action. 9 R. 418; 13 An. 507; 24 An. 208 j C. P. 375-6.

      Stubbs & Bussell and Potts & Hudson for Defendants and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action, coupled with an attachment, to recover from the defendants, who are non-residents, the value of movable property of which they obtained possession, as intervenors, in a suit in which the same had been attached. The claim rests upon a bond which the defendants are said to have furnished in the last mentioned case.

The defendants took a rule to dissolve the attachment issued in the present suit, pleaded to the merits and recon vened against the plaintiff.

Exceptions to the right of reconvention were filed and sustained.

The rule to dissolve was made absolute, and judgment was rendered in favor of plaintiff for the amount of liis claim, less that of a prior seizing creditor, with interest and costs.

Both parties have appealed from this judgment. The ruling touching the exceptions is not before us for review. It has not even been referred to by the defendants, either in the oral or printed argument.

The defense to the action is, substantially, that the alleged bond is not the factum or deed of the defendants ; that if it be, it is a forthcoming bond, uttered under the provisions of Act 51 of 1876, p. 92,' the sole condition of which was the delivery of the property attached at the determination of the suit, and that, at the end of the litigation, the property was actually surrendered to the sheriff, as the legal agent of the plaintiff, and that this surrender operated the release of the intervenors from all responsibility or liability for the possession and keeping of the property pendente lite.

We deem it unnecessary to determine whether the bond alleged in the petition was or not signed by the defendants, as principals, or whether they are or not estopped from denying that it is their factum.

Conceding arguendo that the bond is their deed, the question arising for solution is, whether, under its terms and stipulations, they are liable for the value of the property which was released from seizure, on its being furnished.

It is remarkable that, while the plaintiff makes that bond the basis of his action and annexes it to his petition, he contends that it is illegal in form and substance and should be reformed, so as to make it contain conditions which were not actually incorporated into it. In this, however, he merely repeats the charges which he had preferred against tlie same instrument, when he took a vule, afterwards discontinued, on tlie sheriff, .who had accepted it and delivered the property attached, in order to hold him responsible.

Both the plaintiff and the defendants agree that the form of the bond is regulated by the provisions of Act 51 of 1876.

The plaintiff contends that, under the terms of that law which forms part of the bond, it should be read as containing the conditions exacted by the Code of Practice from the defendant in an attachment suit, which are, “that he will satisfy such judgment, to the value of the property attached, as may be rendered against him in the suit pending.” Art. 259.

The defendants, on the other hand, insist that under the requirements of the same law, the bond is to be merely a forthcoming bond, the object of which is to have the property attached restored to the intervenor, until the final determination of the suit, when the possession must cease, in the event of an adverse judgment.

The object of the Act in question was to give to intervenors the right, which- they did not previously enjoy by law, of bonding property attached or sequestered, and to prescribe the character of the bond to be given.

The first Section of the Act is to the effect, that in all suits in which property thus seized, is in the possession of one not a party to the suit, such third person may, on intervening and on a prima fade showing of some title to said property, have the same restored to him, until the final determination of the suit, on executing a forthcoming bond in the same manner and amount, within the same delay, and with the same effect as if he were a defendant.

It is clear that the legislature in passing such an Act had some object in view, which was: either to create a right which did not previously exist, or to regulate one, the exercise of which necessitated some legislation, either by enlargement or restriction; in other words, to confer some advantage or to remedy some mischief.

The fact is, that prior to 1876, intervenors had no legal right to release by bonding, property attached or sequestered, although they possessed that privilege in cases of provisional seizure.

It was only by judicial sanction, that they were permitted to do so. 18 L. 57; 1 R. 278; 10 L. 108; 14 An. 53; 16 An. 126, 25.

Such rights ceased to be recognized by the Court organized under the Constitution of 1868, which held: that the defendant and the plaintiff alone had a right to bond; that no law authorized an intervenor to bond, and that his bond thus taken was not a judicial bond. 20 An. 29; 22 An. 535; 28 An. 244.

It was under that condition of things, in the month of March, when the last decision appears to have been rendered, that the legislature adopted Act 51, which took effect from and after its passage.

The object of that Act was, as stated, to give to intervenors the right to bond and to prescribe the character of tire bond.

It is characteristic of that Act, that it terms'the bond tobe furnished & forthcoming bond, the purpose of which was to have restored to the intervenor the property seized, until the final determination of the suit.”

Prior to that Act, an intervenor, in cases of provisional seizure, had a right to bond, where the defendant had not done so, and to obtain the release of the property, which was to be left in his possession, with .the condition that he would satisfy such judgment as may be rendered against him or return the property, whatever it was: C. P. Art. 289, $ 4. The lessee was likewise recognized the right to release on furnishing a forthcoming bond, for an amount equal to the value of the property to be left in his possession, or for the amount of the claim.

The obvious purpose contemplated was to place intervenors, in cases of attachment and sequestration, on a footing of equality with intervenors in eases of provisional seizure, and in no way in duriori casu. The Act includes the latter. Indeed, if an intervenor in a case of provisional seizure could release the property on & forthcoming bond, without making himself responsible in the least for the judgment to be rendered against the defendant, and have himself discharged on surrendering the property entrusted to him, there was no good reason why an intervenor, in a case of attachment or of sequestration, should not be equally benefitted. The intervenor in possession is a plaintiff, and not a defendant. Hence it is, that the Act uses the words, that the third party intervening may have the property seized “ restored to him, until the final determination of the suit, on executing a forthcoming bond.” The term forthcoming characterizes the obligation as being one for the delivery, at a certain time, of the property restored to him and which is to remain conditionally in his possession until the final determination of the suit.

The bond on which the plaintiff sues contains the formal stipulation that if F. W. & Co. and S., or. their said security, do not send away the said property, etc., and do faithfully present the same after definitive judgment, in case they should be decreed to restore the same to the plaintiff, then this bond to be null and void, otherwise, etc.

It is evident that the tenor of the.bond is that of a forthcoming bond.

If the plaintiff, who knew of the form in which it was drawn up, was not satisfied with it, he should have prosecuted, and not discontinued, his rule against the sheriff, or should have stayed the execution of the order, or reinstated the attachment seizure, or taken some step of conservation, which he failed completely to do.

But it is claimed that the condition of the bond, authorized by the Act 51 of 1876, is to be the same as is to be embodied in that which a defendant, in the cases provided for, is required to give when he seeks to release the property. C. P. 259.

The Act does not say so. It merely provides that the intervenor. shall execute a forthcoming bond, in the same manner and amount, within the same delay and with the same effect as a defendant. It does not say with the same condition. Those words the court cannot interpolate in the law.

There exists no valid reason in law or equity to justify such a construction. Why, indeed, should an intervenor, who seeks the release from seizure of property attached or sequestered in his possession and to which he claims some title, be made liable for the amount of the judgment, if any, to be rendered in the case ? Is there any justice in making such intervenor responsible in that manner and to that extent merely because he retains possession of the property seized, to which he claims some title? We can see none. His obligation should be and is, at worst, solely to surrender the property at the determination of the suit and put things in statu quo.

But even if the construction claimed was to be put, the question would still remain : whether the intervenor, furnishing such a bond, with such conditions as are required from a defendant, can be bound to satisfy a judgment to the value of the property, unless such judgment has been actually rendered against Mm.

In such a contingency the defendants could not be held, as no money judgment was rendered in the case against them. Their intervention in the previous case was simply rejected, and the' property attached and restored to them was declared to belong to the defendant Hall.

We therefore conclude, that the bond required by Section l of the Act of 1876, is a forthcoming bond, conditioned solely for the delivery of the property restored at the determination of the suit; that the bond in question annexed to plaintiffs’ petition is a bond of that character, and that the defendants cannot be held responsible under it, unless its condition has not been fulfilled.

On that subject, the evidence satisfactorily establishes (and it does not seem to be disputed) that the property delivered to the defendants on January 31, was returned by them shortly afterwards, viz: on February 25, following, to the same sheriff who had seized it, at the same place, it never having been removed, and in the same condition, the articles consumed having been replaced by others equal in quantity and quality.

The record shows that the plaintiff was aware of the surrender, that he not only refused to allow the seizure of the property thus turned over, but had it released. It also establishes that a fieri facias, issued in his name, having been levied on that property, he directed the seizure to be raised and he returned the writ.

It is apparent that, if the plaintiff suffer, he has no one to blame but himself in the premises.

This view of the case renders it unnecessary to test the sufficiency of the particular reasons for which it is claimed that the rule to dissolve the attachment in the present suit was made absolute. As the plaintiff has not shown a case in which he is entitled to recover from the defendants, the dissolution of the attachment for that reason, at least, must remain.

For the same reason, we are relieved from the necessity of passing upon the correctness of the judgment, in so far as it awards a priority to another party as a privileged creditor of the defendants.

It is, therefore, ordered and decreed that the judgment appealed from be affirmed, so far only as it dissolves the attachment in this case, and that it be annulled and reversed in other respects.

It is now ordered, adjudged and decreed that the demand of plaintiff be rejected, with judgment in favor of the defendants, with costs in both Courts.


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    No. 1103.
    M. L. Mathon, Tutrix, vs. Mrs. Berry, Administratrix.
    This Court will not grant an extension of time for the filing of a transcript, where it does not appear that the bond required to perfect the appeal was furnished.
    On Motion for Extension of time to file Transcript.
   The opinion of the Court was delivered by

Bermudez, C. J.


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    No. 1101.
    Henry Haas vs. R. & E. Haas et al.
    A fraudulent and injurious conveyance under cover of judicial proceedings will be revoked, where it is the result of collusive machinations between creditor and debtor, designed to give to the former an undue preference to the injury of other creditors, and the property which is their common pledge is sacrificed.
    Transactions which the law mercilessly reprobates and brands will not be permitted to be successfully shielded under the deceptive garb of apparently regular and sanctified judicial proceedings.
    A money judgment in favor of such creditor will not be annulled, where the claim is a real one, but in so far as it maintains the attachment, it will be altered by disallowing, the same and privileges thereby obtained.
    A. PPE AL from the Third District Court, Parish of Union. Graham, J.
    J. A. Ramsey for Plaintiff and Appellee.

      Young & Holbert, Jf. Feazel and A. Barksdale for Defendants and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.


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    No. 1073.
    John C. Stansel vs. Clay Roberts.
    The appellate court will not review a judgment sustaining exceptions, whereby part of the demand is stricken out, where the appeal is taken by the defendant merely from the judgment on the merits, and the plaintiff and appellee, answering the appeal, simply prays for the affirmance of the judgment.
    Where a lessee binds himself, for the consideration of rent, to give to the landlord a certain quantity of cotton, and fails to do so, the landlord can be allowed the value of the cotton instead of the product itself.
    APPEAL from the Fifth District Court, Parish of Richland. Richardson, J.

      T. 0. Benton and F. 0. Montgomery for Plaintiff and Appellee.

      Wells & Williams for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.


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    No. 1093.
    John M. Defee vs. C. D. Covington.
    ■When, in a ease unappealable to this Court on the main demand, but appealable on the recon* ventional demand, the verdict of the jury is for a “balance,” and the judgment upon it ie in accordance, this Court cannot review the merits of the controversy between the litigants without unavoidably considering the main case. It can neither affirm nor reverse the judgment for correction or incorrectness.
    There should have been two findings, and if correct, the judgment should have been in consonance.
    The District Judge found the verdict erroneous, and should have granted a new trial.
    ApPEAL from the Third District Court, Parish of Union Graham, J.

      John Young and A. Barlcsdale for Plaintiff and Appellant.
    <?. El. EUis and Rutland é Killgore for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff sued for less than one thousand dollars. The defendant reconvened, claiming more than twice that sum. The case was tried by a jury, who returned a verdict for less than one thousand dollars ($524), upon which judgment for defendant was rendered, from which he appeals.

The verdict is for “a balance.” It is evident that, in arriving at the conclusion which they reached, the jury deducted from the amount which they found that the defendant should recover, the sum to which, in their mind, the plaintiff was entitled, but which they did not specify.

There should have been two findings in the case, one on the main, another on the reconventional demand.

The judgment in the main case was appealable to the Circuit Court; that on the reconventional demand to this Court.

In the condition in which the matter is brought up, we cannot determine whether the verdict and judgment upon it are or not correct. We can neither affirm nor reverse the same, after inquiry into the merits, without inevitably considering the main demand which, by the action of both jury and Judge, was blended with the reconventional demand.

The District Judge says that the verdict is erroneous, that the case should have been tried de novo, but that, as twice before, the verdict of the jury had been set aside, he thought it was better that the matter such as it stood should be brought up to this Court for final determination.

The only action which we can take in this matter is to set aside the verdict, annul the judgment, and,remand the case for trial according to law.

It is therefore ordered and decreed that the verdict herein be set aside, that the judgment thereon he annulled, and that this case he remanded for a new trial according to the views herein expressed, and according to law, at cost of appellant.


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    No. 1072.
    The State ex rel. Fanny Roos vs. A. Currie, Mayor of Shreveport.
    Mandamus will issue to compel the granting of a suspensive appeal in a ease where the constitutionality or legality of a fine, forfeiture or penalty imposed by a municipal corporation is involved, although the pleading before the municipal authority may not have set forth the particular law or constitutional provision violated. The sufficiency of the defense will be adjudged on the appeal.
    ApPLICATION for Writs of Prohibition and Mandamus.
   The opinion of the Court was delivered by

Fenner, J.

Relator was cited to appear before the defendant Mayor, and answer to a charge of violating certain ordinances of the City of Shreveport, relative to houses of ill-fame, etc. She appeared and filed answer denying her guilt, and further alleging that “the ordinance or ordinances upon which this proceeding is founded, and the fine, forfeiture and penalty imposed by the same, are unconstitutional and illegal.” After trial, defendant rendered a written decree, adjudging her guilty as charged, condemning her to pay a fine of fifty dollars, and enforcing other penalties.

Relator then applied for a suspensive appeal from this judgment, which was refused. She now asks relief at our hands by mandamus, to direct the granting of her appeal, and by prohibition, to prevent proceedings in execution of the judgment. She is entitled to the relief asked.

The case is manifestly one “ in which the constitutionality or legality * * of fine, forfeiture or penalty, imposed by a municipal corporation, is in contestation,” and is therefore subject to direct appeal to this Court. Const. Art. 81.

The only excuse urged in the answer of respondent for refusing the appeal is to the effect that the answer is too vague, and does not set forth in what respect the fine, etc., is unconstitutional, or what particular law or constitutional provision is violated.

Questions of this kind, as to the sufficiency of the pleadings, and of the defense generally, can only be considered by us on the appeal. To authorize the appeal, it is only necessary that the constitutionality or legality of the fine, etc., should be contested.

Such is clearly the case here. We notice the request of respondent to fix the return day of appeal at an early day, but discover no authority in ourselves to interfere with the return day fixed by law, in absence of consent of parties.

It is, therefore, ordered, adjudged and decreed that the alternative writ of mandamus, issued herein, be now made peremptory at respondent’s cost.