author: Watkins, J.

text:
    No. 9724.
    The State ex rel. John Hepting et al. vs. N. H. Rightor, Judge Civil District Court for the Parish of Orleans.
    1. A judgment of this Court, the execution of which is made to depend upon a protestativocondition, and dependent on an event which it is in the power of one of the parties to bring about, or to hinder, cannot he executed until it is first determined whether the condition or eventhas transpired within the time fixed and limited in the decree.

      2. The ascertainment of the fact whether tho condition on which the execution of said. judgment is made to depend, is a judicial one, and cannot he ascertained or determined in a mandamus proceeding.
    3. One having resorted to a judicial proceeding by rule to show cause taken on the interested party, who joined issue hy answer, and the introduction of proof with regard to-* the performance of said condition, cannot, after an adverse judgment thereon, withdraw therefrom and resort to a mandamus to obtain his desired relief.
    REPLICATION for Mandamus.

      J\ 8. & J. T. Whitaker for the Relators:
    The duties of inferior courts in executing the decrees of the Supreme Court are simply ministerial. They cannot prerent tho clerk from issuing process deemed necessary by tho party who has prevailed or by his attorney. Their sole power is to order to be entered upon tho minutes of the Court such mandates and to declare them executory. Acts of 1855, p. 51; Revised Statutes of 1870, sec. 464; State ex rel. Bovee vs. Herron, 24 Ann. 619: Cox vs. Thomas, 11 La. 369; Lovelace vs. Taylor, 6 Rob. 92.
    Inferior courts aro without power to change tlio terms of the decrees of the Supreme Court, and where no ambiguity exists in said decrees to stay their execution. Milliken vs. Rawley, 3 Rob. 253; Rightor vs. Winter, 14 La. 548; Morrison vs. Winberly, 14 Ann 713 ; Avery vs. Polico Jury, 15 Ann. 223.
    The taking of a rule [when so ordeied by tbo court) 1o set aside an ex parte order illegally issued is not a compliance with the same, or an acquiescence in said order.
    There can bo no appeal taken from final decision of tbo Supreme Court. Lovelace vs. Tay. lor, 6 Rob., p. 92; Cox vs. Tbomas, 11 La p. 369; State of Louisiana ex rol. Villavas vs. Judge, 20 Ann. 521.
    Tho supervisory power of this Court is enlarged and extended by Article 90 of the presen» Constitution. State ox rel. Murray vs. Lazarus, Judge, 36 Ann. 578.

      Kennard, Heme & Prentiss for the Bespondent:
    1. The questions submitted by the mle of May 6,1885, the answer thereto and the evidence-» were judicial in their character, and the action of the respondent in discharging the» mle was judicial. His duty was not ministerial. Ho mandamus can lie to review or reverse his judgment. 36 Ann. 112; 34 Ann. 1016,1114; 32 Ann. 977; 33 Ann. 208.
    2. The remedy of relators, if any, is by appeal. 7 Rob. 442; 19 Ann 4.
    3. Reasons for judgment ioim no part of tbe judgment. It is the judgment which shows-as matter of recoid what was decided, and this rule applies “even where tho judgment • is not a logical sequence of tho opinion.” 12 Ann. 737; vide 19 La. 324; 14 Ann. 446; 18 La. 14; 14Ann.767. But apait from this, the reasons of the judge show that the rule was properly discharged.

      4. Even if the relators’ constiuction of the reasons could be admitted, yet the judge, if he found that tho decree had been complied with, though in a dilatory manner, could discharge tbe rule at the defendants’ costs. He would not he hound to remove a track merely that it might he put down again.in the same place.
    5. If any mandamus could issue herein, which is denied, it should only issue lo compel the respondent to take up and decide tho mle on the evidence, de oiovo^ to the end that the-* railway company might he heard before respondent, and take such other steps as might-b e justified by the rules of practice.
   The opinion of the Court was delivered by

Watkins, J.

In John Hepting et al. vs. New Orleans Pacific Railway Company, 36 Ann. 898, the following decree was rendered, viz: “and it is now ordered, adjudged and decreed, that the defendant, the New Orleans Pacific Railway Company, be and it is hereby required to •reconstruct the track of its road through Third street in the villages of Gretna and Mechnnicshnm, in the parish of Jefferson, in such manner that the line of the track shall be parallel ryith the buildings fronting on said street, and as near the centre of said street as practicable, .and on a level with said street, or at so slight an elevation above the same as to admit at all places .the easy and convenient crossing of the track of the road by vehicles.

“It is further ordered and decreed, that such reconstruction of the •track of said road through said street, in the manner above set forth, shall be completed or the track entirely removed therefrom within three months following the rendition of this judgment, and that in default of ■such reconstruction or removal, the defendant company bo prohibited from using said track; reserving to the plaintiffs, in the event of a noncompliance with this judgment, to have the track removed by the lower court through the sheriff, at the expense of the defendant,.’’

It is conceded that the three months delay, within which defendant company was required to reconstruct its track, expired on the I7th of February,’1885.

On the I8th of same month, counsel for the railway company filed in the Civil District Court and in said cause .a certificate of the deputy surveyor to the effect that lie had “assisted in, examined and inspected ■the work done by the defendant company in the reconstruction of the track * * * in pursuance of said decree, and that said decree has 'been fully and fairly complied with by said work.”

On the same date, respondent judge entered the following order, viz: “ On motion of Kennard, Howe and Prentiss, attorneys for defendant, and suggesting that the decree of the Supreme Court rendered herein — and which became final on the 17th of November, 1884— has been duly executed and satisfied by the payment of the costs, and the performance, of the work required by the said decree within the time specified therein, as by annexed receipt, certificates and affidavits will appear; said certificate being signed by some of the plaintiffs herein, and by other citizens of Gretna and Mechanicsliam, it is ordered that •this motion, suggestion and documents be filed herein and put of record; and that no further process issue herein against defendant except ■on notice to and rule on said defendant.”

On the 5th of Majq 1885, W. H. Staub, deputy clerk of the Civil District Court issued an informal writ addressed to the sheriff in the suit of Hepting et al vs. New Orleans Pacific Railway Company, in which occurs the following recital, viz: “Now, inasmuch as we are advisedly plaintiff, that defendant has not complied with said judgment, either as to the reconstruction or removal of said track, we therefore command you to execute the above decree, prohibiting said defendants from the use of said track, and we require you to remove the same at the cost of said defendants,” etc.

This writ is not preceded by an order of “the court,” and it bears no endorsement showing it to have been received by the sheriff, and it has no seal affixed.

On the following day plaintiffs in that suit obtained from the respondent judge an Order directing defendant to show cause on the 15th of May inst. at 11 o’clock a. m., why the sheriff of the parish of Jefferson should not forthwith execute the decree of this Court and remove said track, “ on the issuance to said sheriff of the usual process, in such case made and provided.”

Respondent returns that, to this rule to show cause, defendant’s counsel filed an answer “denying non-compliance with the decree and averring compliance; ” and upon the issue joined testimony was taken for both parties, the oral testimony alone amounting to over eight hundred pages, and whereby “it was established by the railway company that it had, betwreen November 17, 1884, and February 17, 1885, reconstructed its track.”

He further returns that he “heard this mass of testimony with attention, and after an argument, which consumed about three days, took the matter under advisement,” and becoming satisfied that the decree of this Court had been complied with by defendant company within the delay specified therein, and had reconstructed its track, he discharged the rule.

At this stage of the proceedings, relators — who are plaintiffs in the original suit — alleging the expiration of the delay, the default of the defendant company, and respondent’s want of authority to interpret the decree of this Court “as he has done,” and averring that his duties were ministerial only, said that he “could not render any judgment that would authorize or make an appeal necessary; and * *■ * they have no relief nor remedy by order, or process of law; nor have they any right of appeal in the premises, and that a writ of mandamus is necessary in order to prevent a denial of justice;” and they pray accordingly that a writ of mandamus issue to the respondent judge commanding him to issue an order to the sheriff of the parish of Jefferson to prohibit defendant from using its railway track, and to remove the same.

Respondent subrfiits that the questions thus necessarily decided by him are judicial, and that his duties in the premises are not ministerial, and that the decision which he made cannot be reviewed in a proceeding by mandamus.

In this view of the question decided by him, we think respondent is correct; and that the relief sought by relators cannot be granted them.

Their jmoceeding by rule on the N. O. Pacific Railway Company to show cause; their participation in the trial thereof; and their introduction of testimony upon the issues joined thereon, necessarily subject them to the rule entered by the respondent judge on the 18th of February, 1885, and to his discharge of the same on the 8th of March, 1886.

Neither can be revised by a mandamus. Such'is not the province of this Court.

In State ex rel. E. K. Bryant et al. vs. N. H. Rightor, judge, 36 Ann. 112, this Court said of this writ: “The writ issues to proceed, not to recede; to do, not to undo.” 33 Ann. 268; 35 Ann. 765.

In State ex rel. Wise vs. Taylor, 32 Ann. 977, this Court held: “ The judge of a district court cannot be compelled by mardamus to issue an order of seizure and sale.”

This Court has refused to compel a judge of an inferior court, by mandamus, to grant a writ of injunction and of sequestration. 28 Ann. 905, State ex rel. Beebe vs. Judge; 31 Ann. 794, State ex rel. Prados vs. Judge; 32 Ann. 549, State ex rel. City vs. Judge.

The peremptory mandamus prayed for is refused.


source: Caselaw Access Project

author: Bermudez, C. J.-

license: Public Domain

text:
    No. 9702.
    The State of Louisiana vs. William A. Strado.
    The issue by the t<rial judge of a bench warrant on the motion of the proseouting attorney for the arrest and detention of a witness who had just testified before the jury on the charge of perjury, is not an act prohibited by the Statute, which forbids tbe judge “in his charge to tbe jury to state or repeat the testimony of any witnesss, or to give any opinion as to what facts have been proved or disproved,” particularly when there is no allegation that he alluded to or commented upon the testimony of such witness.
    APPEAL from the Criminal District Court for the Parish of Orleans. Boman, J.

      M. J. Cunningham, Attorney General, and TAonel Adams, District Attorney, for the State, Appellee.

      D. C. Moise for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.-

The accused appeals from a sentence of five years at hard labor, on a verdict of guilty of stabbing with intent to murder.

He complains that, during the trial, after a witness had testified in his favor and was about to leave the room, application was made of a capias directing his detention and granted.

No bill of exception was taken at the time of the occurrence; but the alleged grievance was made the ground for a motion for a new trial which was refused. To this overruling, a bill was reserved to which no testimony is attached and in which no recital of facts is set forth, though the motion for a new trial is annexed.

The court, however, declares that the detention of the witness was only proposed, but not acted upon.

It is claimed that sec. 1963, R. S., was transgressed in its prohibitions. It reads:

“In his charge to the jury, the judge shall not state or repeat the testimony of any witness, nor shall he give any opinion to what facts have been proved or disproved.”

This injunction has frequently been subjected to judicial scrutiny and in several instances as rigidly enforced; but no precedent has been referred to in which an act similar to that complained of, was pronounced as coming within the prohibition of the statute.

In the present case, there is no averment either in the motion for a new trial or in the bill of exception, or even in the brief for the defense that the trial judge expressed any opinion with reference to the testimony of the witness, or in his charge stated or repeated the same, or gave any ojdnion as to what facts had been proved or disproved.

It cannot be inferred in the least that, by not refusing the order moved for by the prosecuting attorney, the judge has indicated and implied unequivocally or otherwise in the hearing and presence of the jury, that the testimony was indeed wilfully and corruptly false and untrue.

It was the right and probably the duty of the trial judge, under the circumstances, to have issued the order for the caption and detention of a witness charged almost flagrante delicto with the offense of perjury.

He surely can no more be considered as having trenched on the facts in that circumstance than he can be for presiding over the trial of the accused at the bar.

Judgment affirmed.


author: Poché, J.

text:
    No. 9715.
    The State of Louisiana vs. Andy Mansfiedd.
    The appeal taken by a party frum a conviction and sentence for a crime, and who escapes . from custody during the pendency of the appeal, cannot be prosecuted by counsel, and hence must be dismissed. State vs. Edwards, 36 Ann. 863, affirmed.

      APPEAL from the Third District Court, Parish of Lincoln. Young, J.

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

      G. Tj. Gaskins for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

The motion of the Attorney General to dismiss this appeal must prevail.

He has shown by proper evidence that during the pendency of this appeal the defendant has broken jail and'is now a fugitive from justice.

The defendant doubtless considered that as the safest mode of avoiding the penalty of the crime for which he stood convicted. Reason, law and justice require that he should abide the result of his option in tlio xn'emises.

The identical question was presented to us in the case of Edwards, 36 Ann. 863, and we therein said: “A prisoner under conviction and sentence, who lias escaped from custody during the pendency of his appeal, cannot by counsel prosecute his appeal.

It is therefore ordered that this appeal be dismissed.


author: Fenner, J.

text:
    No. 9721.
    The State of Louisiana vs. Ernest J. Schlessinger.
    In an indictment for perjury it is not essential that the authority and jurisdiction of the court administering the oath should, be expressly avoired, if they sufficiently.appear from the facts set out.
    When the prosecution for perjury is in the same court in which the peijury was committed, it may take judicial cognizance of its own jurisdiction, if the indictmont sufficiently sets forth the facts.
    Although the materiality of the matter sworn to be not expressly averred, yet if the indictment sets forth the facts from which the materiality appears, that is sufficient.
    APPEAL from the Criminal District Court for the Parish of Orleans. Homan, J.

      M. ,T. Cunningham, Attorney General, and Lionel Adams, District Attorney, for the State, Appellee: '
    I.
    The question of the jurisdiction of the court is merely a matter of inducement, and according to the universal rule of criminal pleading it will be sufficient either to charge in words that the officer bad jurisdiction, or to aver facts from which the jurisdiction would in law appear, both not being required. 2 Bish Or.’Proc. §§ 910, 904.
    The general rule as to jurisdiction is Chat nothing shall bo intended to be out of tho jurisdiction of a superior court bub that which, specially appears to be ao. Archb. Or. Pr, and PI., 1721. Pomeroy’s notes. And if it appear prima facie that the court had jurisdiction of the matter, the burden of proving the contrary devolves upon the prisoner. 3 G-reenl. on Ev., 185.
    Even where the court is an inferior one, if it derives its jurisdiction from a public statute, it is sufficient to describe the proceeding so as to biing it within the statute; for the court which tries the perjury must take judicial notice of the jurisdiction. 3 Arch 594.
    The Criminal District Court is a superior court vested with general criminal jurisdiction. An indictment which sets out that issue was joined between the State and certain defendants on a charge of murder brought against them before the Criminal District Court in a prosecution duly and regularly apportioned by lot to section B thereof, is a sufficient aveiment of facts to authorize judicial notice to be taken of its jurisdiction in the case.
    It is no longer necessary in an indictment of perjury fo set out “ bill, answer, information, indictment, declaration or any part of any record or proceeding;” nor is it necessary to set out “ the commission or authotity of a court or person before whom the perjury was committed. B. S. 858.”
    II.
    Materiality may he pleaded in one of two ways. It may either bo averred on the face of the indictment that the matter alleged to he false was material, or the pleader may set out the facts from which its materiality will appear; and the latter is sufficient even where the bare averment of materiality is defective. 2Bish. Cr. Proc., § 931; 3 Whar. Or. Law, § 1304.
    The materiality of the matter sworn to must depend upon the state of the cause and the nature of the question in issue. Bose. Cr. Ev. 758. If the materiality evidently appears upon the record, as where the falsehood affects the very circumstance of innocence or guilt, express allegations of materiality may be omitted. 2 Bussel on Climes, 038; 2Chit. Cr. Law, 307; Hawk. P. C. b. 1. C. 69. S. 8.
    Where, npon a trial for murder, a witness deposes that he was present when the deceased and the accused met. and saw the deceased fir© two shots at one of the accused before the fire was returned by any of the persons present; and that the first two shots were fired by the deceased, — the materiality of the evidence appears from the facts and need not be averred in the indictment.

      Jas. 0. Walker for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The defendant appeals from a verdict and sentence for perjury committed by false swearing as a witness under oath in a certain case of State of Louisiana vs. T. J. Ford et al., then pending in the Criminal District Court for the Parish of Orleans.

A motion in arrest of judgment was filed on the grounds:

1st. It does not appear by the indictment herein, and it is not alleged, that the Criminal District Court for the Parish of Orleans was vested with jurisdiction to hear and determine the case of the State of Louisiana vs. T. J. Ford et al.

2d. The said indictment does not cliaige that the facts which the defendant is therein accused of having falsely sworn to were material.

..I-

Our Section 858 R. S. is a substantial copy of the first section of the English Statute, 23 Geo. 2. See 2d Bishop Cr. Proc. § 901.

The words “ averring such court or person to have competent authority to administer the same,” have been eliminated from the English law by statute, 14th and 15th Victoria, and under this latter such averment is no longer essential. 2d Bishop Cr. Proc. §§ 901, 902, 914, and notes.

But even under the former statute the courts have held it sufficient, even in absence of express averment, that the jurisdiction and authority should appear, from the facts set out. Id. § 914, and authorities.

Now, in the indictment here, it is averred that the cause of the State vs. T. J. Ford et al., which is described to be a trial for a certain murder, etc., was pending before Section B of the Criminal District Court for the Parish of Orleans, to which it had been regularly and duly apportioned by lot, etc. The contention of defendant is that these averments do not establish that the murder charged was committed in the parish of Orleans, and, therefore, omits an essential fact required to vest the court with jurisdiction. But when we consider that the prosecution for perjury was before the same court in which the perjury was committed, and that the cause referred to was in the same court, we think the court is authorized to take judicial cognizance of its own jurisdiction in said cause.

Thus we read in Archbold, that “where an inferior court derives its jurisdiction from a public statute, it is sufficient to describe the proceeding so as to bring it within the statute; for the court, which tries the perjury, will take judicial notice of the jurisdiction.” 3 Archbold, 594.

If the court may take judicial notice of anything, surely it may do so of-its own jurisdiction in a case which was pending before itself.

The facts charged are ample to enable the court to determine from the face of the record “whether they are sufficient to support a conviction of the particular crime and to warrant judgment;” and this accomplishes the full object of the requirement. 1 Starkie Cr. Pl. 73; Wharton Cr. Pl. and Pr. § 166; 2 Bishop Cr. Pr. § 904. See on this point: State vs. Newton, 1 Iowa, 160; Com. vs. Knight, 12 Mass. 274; Hallock vs. State, 11 Ohio, 400; People vs. Phelps, 5 Wend. 9.

Tn criminal matters technicalities are not to be disregarded; but they must be subjected to reasonable restraints and cannot be allowed to reduce the law to a mere “rhapsody of words.”

II.

Although the materiality of the matter sworn to be not expressly averred, yet if the indictment sets forth the facts from which the materiality appears, that is sufficient. 2 Bishop Cr. Proc. § 931; 2 Wharton Cr. L. § 1304; 2 Russell on Cr. 638; 2 Chitty Cr. L. 307.

This disposes of th.e point; for it is perfectly clear from the recitals of the indictment that the matter sworn to was material to the issues in the case. It is only by the most strained suppositions that the testimony might have referred to a different encounter between the same parties, that, the ingenious counsel of defendant seeks to impugn their materiality.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 9734.
    The State of Louisiana vs. George Grover.
    In an indictment for perjury, it is not essential to charge e.\pressly that the court in winch the perjury was committed was of competent jurisdiction, or that Hie matter sworn to was material, if facts are set forth which justify the inference that the court had jurisdiction and that tlie matter was mat&i'ial.

    Neither is it essential to state in such an indictment, that the judicial proceeding which was a prosecution for murder and in which the perjury was committed, and which is described specifically, was pending on an indictment found by a grand jury.
    A PPE AL from the Criminal District Court for the Parish of Orleans. JllA. Roman, J.
    iff J. Gimningham, Attorney General, and Lionel Adams, District Attorney, for the State, Appellee:
    The action of the ttial judge in overruling a motion for new trial, on the ground that the verdict is contrary to the law and the evidence, is not subject to review on appeal. This Court has no jurisdiction in criminal cases, except upon unmixed questions of law.
    Any particular fact or circumstance sworn to by a witness to show that an accused on trial had nothing to do with or was not present at the commission of the offense for which he was being tried, was material to that issue, and if untrue forms a legal basis for prosecution for perjury.
    An indictment for perjury need not set out the indictment or information upon which the trial was had in which the perjury is claimed to have been committed, nor set out in detail all the proceedings in that case. It is sufficient to charge that upon the trial of tho case named and designated the perjury was committed.
    It is sufficient to aver that the court in which the case was pending had jurisdiction, or to aver facts from which the jurisdiction would in law appear, both not being required. 2 Bish. Or. Pr. §§ 904, 910.
    A statement that the cause was pending in a particular Section of the Criminal Court of the parish of Orleans, to which it had been duly and rogulariy apportioned by lot, is a sufficient averment of facts from which its jurisdiction does in law appear.
    It is sufficient either to allege that the false evidence was material or to aver facts from, which its materiality is evident,

      When a party is on trial for murder, the evidence of a witness that, at the time of the homicide, the accused was at another place, is material on its face; and its materiality need not be specially averred in an indictment for perjury in which the evidonco is set out
    J. G. Walker and W. L. 28v<ms for Defendant and Appellant:
    An indictment for perjury should expressly aver that the court had jurisdiction to hear and determine the cause wherein it is alleged that tb© accused swore falsely; or it should appear conclusively from the nature of the proceedings that such jurisdiction was vested in the court, in order to enable the appellate court to tali© judicial notice of the fact.
    An indictment for perjury should expressly aver that the matter sworn to and upon which the perjury is assigned was material, or it should appear conclusively on the face of the facts set forth in the indictment that the matter sworn to was material.
    Where perjury is charged as having been committed by a witness in the course of a trial for murder, it should appear affirmatively that the proceedings* in the murder case were by indictment found by a grand jury. Const. Art. 5.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant appeals from the verdict and judgment thereon sentencing him on a charge of perjury to three years at hard labor.

He relies on a motion in arrest, a bill of exception and an assignment of errors which together are based on three grounds :

1. That the indictment does not expressly aver that the court had jurisdiction to hear and determine the cause wherein it is alleged the accused swore falsely, or that from the nature of the proceedings, such jurisdiction was vested in the court, to enable the appellate court to take judicial notice of the fact.

2. That the indictment does not aver that the matter sworn to and upon which the perjury was committed was material, or does not show on its face facts showing that the matter sworn to was material.

8. That the indictment does not affirmatively charge that the judicial proceeding charging the defendant with murder, and in which it is averred that the perjury was committed, was by indictment found by a grand jury.

I and II.

The first and second grounds are kindred to those urged for a similar offense in the case State vs. Schlessinger, recently decided, in which it was held, that in an indictment for perjury, it is not essential that the authority and jurisdiction of the court administering the oath, should he expressly averred, if they sufficiently appear from the facts set out; that when the presentation for perjury is in the same court in which the perjury was committed, it may take judicial cognizance of its own jurisdiction, if the indictment sufficiently sets forth facts and that, though the materiality of the matter sworn to be not expressly averred, yet if the indictment sets forth the facts from which the materiality appears, that it is sufficient.

For the reasons given in that case, the two grounds stated are untenable.

III.

The indictment against the accused, is full and explicit, that he appeared and was produced as witness in the case of State vs. Thos. J. Ford and others named — “being then and there charged with wilful murder.”

The Constitution of this State, art. 5, provides that prosecutions for capital crimes, such as murder, shall be by indictment, or presentment of a grand jury.

No charge for willful murder could be pending in the district court against Thos. J. Ford et als. unless preferred by indictment found by a grand jury.

These words, if essential, are necessarily, forcibly implied in the word “charged" which the indictment contains.

It is worth notice, that the indictment in the present case, distinctly alleges “to which charge said Thos. J. Ford and others, and each one pleaded not guilty" — issue being thereby formed.

There is no reason to disturb the judgment appealed from, which is affirmed with costs.


text:
    No. 9710.
    The State ex rel. C. E. Girardey vs. O. B. Steele et al.
    An application for a prohibition will not be considered, unless a plea to the jurisdiction has been first filed and overruled in the lower court.
    REPLICATION for Prohibition.

      B. 11. Forman for the Relator.

      Cunningham & Moise for the Respondents.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a prohibition, to prevent the trial of an injunction proceeding over which, it is claimed, that the Third Judicial District Court has no jurisdiction.

Iu the suit of the present relator vs. Steele, Auditor, reported in 37 Ann. 317, which involved the right of the Auditor to cancel an auctioneer’s license, this Court held that he had no such power, under the circumstances of the case, and decreed “that relator recover his costs in both courts.”

The mandate was duly filed in the lower court and ordered to be executed.

A writ of fi. fa. having issued against O- B. Steele for an amount claimed by relator as his costs in that case, the defendant in writ, contending that the judgment of this Court, not having condemned him to pay individually, but officially, the costs, applied to the Third Judicial District Court having jurisdiction of his domicile, for an injunction, which was allowed by the cleric, arresting the execution for costs.

Thereupon, the relator presented to this Court his application for a prohibition to stay and annul the injunction proceedings, on the main ground that the said district court has no jurisdiction “to entertain a suit to annul or restrain an execution of a judgment of this Court.”

The Code allows relief to the party who complains that the court wishes to transcend its jurisdiction. Hence, precedents establish that this Court will not entertain the application, unless it appears that an exception has been filed and was overruled to the jurisdiction, and it clearly appears that the lower court has usurped a competency which it does not possess. C. P. 847; 10 R. 169; 29 Ann. 806; 37 Ann. 845; see also, C. P. 846, 849.

It does not appear that the relator has excepted to the jurisdiction of the district court. It is necessary he should do so.

It may well be that the district court may decide that the writ properly issued against Steele, just as it may well happen that it may rule otherwise.

It is perfectly clear that it is not until after such exception has been filed and overruled, that the relator can have a hearing in this Court for a prohibition against the district court, to prevent the trial of the injunction suit on its merits.

At this stage, the present proceeding is surely premature and cannot be entertained.

It is therefore ordered that the restraining order herein made in lim - me be remanded, and that the application for a prohibition be dismissed with costs..


text:
    No. 9683.
    Shakspeare, Smith & Co. vs. James A. and John M. Ware.
    In civil actions tlie verdict of the jury, like a judgment, forms tlie authority of the thing ‘ 'adjudged upon all matters and demands set up in the pleadings; and it is not required that the verdict should contain a statement of all the considerations which led the jury to find a general verdict,*

      Thus, the jury in finding a verdict in favor of plaintiff in full of his demand against parties who are sued as partners, need not say that they found the existence of the partnership, although the same may be specially denied as a means of defense.
    The silence of the jury on a reconventional demand, when thoy return a general verdict in favor of plaintiff, will be construed as a rejection of said demand.
    The same construction will be applied to a privilege prayed for by plaintiff.
    The furnisher of machinery and materials for a vacuum pan apparatus in a sugar-house, which are removable, acquires no privilege for the price thereof on the sugar-house, all the machinery therein and on the one acre of land on which it is situated; the law restricts his privilege to the machinery and other things which he has sold to the owner of the sugar-house. The desision in Scannell & Lafaye vs. Beauvais, 38 Ann., affirmed.
    APPEAL from the Twenty-third District Court, Parish of Iberville. Talbot, J.

      Samuel Matthews for Plaintiffs and Appellees.

      David £T. Barrow for'Deft-ndants and Appellants:
    The joint ownership of real estate does not create a partnership between the owners A special contract in writing is necessary for that purpose. C. (J. 2807; Benton vs. Roberts, 4 Ann. 216; 14 Ann. 11.
    So where the joint ownership is severed by sale duly recorded in conveyance book, every one is bound to take notice of same; and articles furnished the plantation after said sale, cannot he recovered of the party selling out before they were furnished.
    To preserve a privilege against a sugar house and one acre of land on which same is situated, for machinery, etc., erected on same, the account must be sworn to and there must, be a description of the property on which the privilege is claimed. C. C. 3348. And to effect prior mortgages it must he recorded in accordance with requirements of Art. C. C. 3274 and Act. 1877, No. 45, p. 59.
    The fact that defendants bad made payments on a contract for erecting machinery, etc., in a sugar house, does not prevent them fi om disputing the hill for the balance unpaid, nor from setting up damages in reconvention. 25 Ann. 518, G-ordy vs. Veazie; Levy vs. Schwartz & Bro., 34 Ann. 214.
    One is concluded by the first bill rendered, items subsequently added or charged, in which he cannot recover without showing error. Nicholson vs. Pelarme, 14 Ann. 508.
    A verdict should respond to the issues and always pronounce in cases of reconvention on each party’s rights. 4 La. 334; 17 La. 184 : 9 R. 520.
    "Where a verdict finds ‘‘in favor of plaintiffs for the amont called for in their petition, with interest and costs,” tne judgment cannot recognize a privilege and decree the sale of property to pay same — the judgment must follow the verdict.
   The opinion of the Court was delivered by

Poché, J.

The plaintiffs sue for a judgment against the defendants in the sum of $4,319.62, as a balance on machinery sold to defendants and put up in their sugar-house in the parish of Iberville, under a contract in writing and on an open or running account for machinery furnished outside of the contract but connected therewith; and they claim a privilege on the sugar-house and machinery therein, and on the one acre of land on which said sugar-house is situated; under the provisions of Article 3249 of the Civil Code.

The defense is of a two-fold nature.

Both defendants claim larger credits than allowed by plaintiffs, and aver that the machinery furnished was so defective that it caused them damages far in excess of the amount claimed as a balance by plaintiffs; James A. Ware claims in reconvention the sum of $57,300, and John M. Ware claims his entire release from the whole demand on the ground of the dissolution of the partnership, while the works were being put up, and the assumption of liabilities by his vendee.

The case was tried by a jury, who returned a verdict in the following words:

“Verdict in favor of Shakspeare, Smith & Co. for the amount called for in their petition, with interest and costs.”

By a motion for a new trial, defendants urged numerous errors to the verdict of the jury; among others that it allows more than plaintiffs were entitled to under the face of the pleadings. That error was immediately but only partially corrected by plaintiffs entering a remittitur of the sum of $394.18, under which the judgment was rendered for the reduced sum of $3,925.44, with recognition of the privilege claimed by plaintiffs in their petition. The additional error will be considered hereinafter.

Defendants both appeal, and they press consideration of other errors in the verdict of the jury.

1st. That it is not responsive to the issues.

The grounds are that the jury did not specifically refer to what amount of credits were allowed to defendants. In finding in favor of plaintiffs for the amount of their claim as stated in their petition, the jury must have considered the credits allowed by plaintiffs as well as those claimed by the defendants, the amount sued for being a balance of account. The law requires no more details in a verdict. The same consideration applies to the complaint that the verdict was silent on the question of partnership vel non. The verdict clearly indicates that the jury found that the defendants were liable as partners. And we approve of their finding both on the law and on the facts of the case. The defendants signed the contract as partners, and they are now estopped from denying its existence. The sale by John M. to James A. Ware of the former’s interest in the plantation, and the dissolution of the partnership in October, 1880, after the contract had been in a great measure executed, and when a great portion of the machinery furnished outside of the contract had already been delivered and adapted to the main apparatus, cannot affect the former’s liability under the contract. That circumstance may vest him with certain equities against his vendee, but with that plaintiffs have no concern.

2d. It is argued that the verdict did not pass on the recon ventional demand, and that it did not specify what amount was found under the contract and what under the account. In rendering an absolute verdict in favor of plaintiffs, the jury must be held to have passed on and rejected the reconventional demand. The rule is that the verdict of a jury, like a judgment, forms the authority of the thing adjudged upon all matters and demands set up in the pleadings. Edwin’s Heirs vs. Bissel, 19 La. 222; Theriot vs. Henderson, 6 Ann. 222; Villars vs. Faivre, 36 Ann. 398.

As to the omission of the jury to specifically divide their finding between the two claims, that defect, if it be one, would not justify us to remand the cause. The whole case is before us under the same evidence which had been submitted to the jury and the verdict may be corrected on this appeal if found erroneous in that or in any other particular. Vredenberg vs. Behan, 33 Ann. 642.

We have carefully weighed the evidence in support of the reconventional demand, and we conclude that the plea is not sustained.

Some items of the machinery were on first trial found defective, but on complaint the matter was punctually and invariably remedied by plaintiffs. The machinery was put up in October and November, 1880; it was used during the entire grinding season of that year, and of the years 1881, 1882, 1883 and 1884; the account for the same was frequently submitted to James A. Ware, several part-payments were made thereon at different times, and no claim for damages was ever urged by the defendants before the institution of this suit; the demand in reconvention having been filed on April 25, 1885.

These circumstances must be held as indicating that defendants did not consider that they had been seriously damaged by the alleged defects in the machinery. Delambre vs. Williams, 36 Ann. 330.

Thus far our investigation has led to conclusions which are favorable to plaintiffs, but there are two errors in the judgment which it now becomes our duty to point out.

The amount of the judgment must be further reduced. In.their petition plaintiffs allege that by part-payments down to a certain date, their claim fin tlje aggregate had been reduced to $6075.25, and that they subsequently received a íemittance amounting to $2950, by which their claim was reduced to $3325.25, for which judgment should be rendered, instead of the amount determined by the jury and the district judge.

The judgment is also erroneous in allowing the privilege claimed by plaintiffs. The silence of the verdict on that part of the demand must be construed as a rejection of the same. This is the legitimate result of the rule which we applied hereinabove on the question of the re-conventional demand.

But as a question of law, plaintiffs are not entitled to the privilege which they claim on the sugar-house and on the acre of land on which it is situated.

On that point, the provision of the Code, paragraph 3, art. 3249, reads as follows: “Those who have supplied the owner or other person employed by the owner or his agent, or sub-contractor, with materials of airy kind for the construction or repairs of an edifice or other work which has been used in the erection or repairs of such houses or other work.”

Now, under the veiy terms of the contract sued upon in this case, it does not appear that plaintiffs were employed or furnished materials to either construct or repair the defendant’s sugar-house.

Their contract was to supply the defendants with an apparatus to boil the cane juice, to granulate the latter and to dry the sugar by the process of centrifugals, and to furnish all the pumps, the tanks and other appliances necessary thereto.

All the materials and machinery which they furnished under the contract, could be detached and removed from the building without changing or impairing the nature and the use of the sugar-house.

Under the law plaintiffs were entitled to a privilege on the materials which they had sold and delivered to the defendants, but they are not eutitled to the sweeping privilege which they are now seeking to enforce.

This question came up in the recent ca.se of Scannell & Lafaye vs. E. Beauvais, not yet reported, in which we announced the same conclusions. Plaintiffs in this case did precisely what the third opponents had done in that case. “They ignored and abandoned the privilege they had, and set up and attempted to enforce a privilege they had not.”

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be amended as follows:

1. By reducing it from $3,925.44 to $3,325.25.

2. By rejecting the privilege which had therein been recognized in favor of plaintiffs, without prejudice to their right of claiming such privilege as they may have in law.

And it is now ordered that, as thus amended, said judgment be affirmed at the costs of plaintiffs and appellees on appeal.

Mr. Justice Watkins takes no part in this case, which had been submitted before bis appointment.


text:
    No. 9573.
    Claycomb & McNeely vs. O. W. Bisbee et als.
    A sold machinery to B with obligation, and guarantee to erect same, and that it should possess a specified working capacity. After having made advances to A, B refused to accept the mill because not complying with conditions of sale, and claimed from A reimbursement of advances. Thereupon, A, B and 0 made a contract by which C agreed to be substituted as purchaser in place of B, and A agreed to accept him as such, substitute ana to release B, and C, with the guarantee of A, agreed to repay to B the amount of his advances to A. Held, that B was not the vendor of the machinery lo C, and was not entitled to vendor’s privilege for the sum agreed to be paid to him.
    In a case of doubt, where the circumstances are suspicious, this Court will not reverse the conclusion decreeing the simulation of a sale of the judge a quo, who saw and heard the witnesses.
    A PPEAL from the Civil District Court for the Parish of Orleans. Righior, J.

      JBlane & Butler for Plaintiffs and Appellees:
    1. Plaintiffs, as vendors, entitled to a judgment for the price, to-wit: $1287 02, with legal interest from judicial demand and costs; and to a further decree maintaining the sequestration and recognizing their vendors' lien upon the property sequestered. C. P. Art. 275, par. 7; C. C Art, 3227; 1 Ann, 82; 4 Ann. 453.
    2'. As lessors to a judgment for the accrued rent of the land on which the mill and machinery were erected; and to a further decree maintaining the provisional seizure and recognizing their lessors’ privilege on the property provisionally seized. C. P. Art. 285, par. 2.
    3. To a further judgment against O. W. Bisbee for $151 50 and interest, for wood sold and money loaned him, as per exhibit P.
    4. To a further decree annulling the pretended transfer of the mill and machinery in controversy by defendant, O. W. Bisbee, to defendant, E. B. Benton, of date July 25,1883, as fraudulent and simulated, and condemning said defendants in solido for the full amount of plaintiffs’ claim and costs. C. C. Arts. 1970 to 1985 inclusive, and Art. 2404; C Ann. 552 ; 29 Ann. 4; 30 Ann. 513; 36 Ann. 084.

      W. S Benedict and II. G. Gage for Defendants and Appellants:
    1. The sale of a thing belonging to another person is null. C. C. 2450.
    2. Things of which the buyer reserves to himself the view and trial, although the price he agreed on, are not sold until the buyer bo satisfied with tbe trial, which is aldnd of suspensive condition of the sale. C. C. 2460.
    3. A vendee who has not received the thing nor paid the price, can transfer only his right to require delivery on payment of the price. 3 34. 331 ; 5 M\ 592.

      4. Privilege can he claimed only for those debts to which it is expressly granted in this Code. C. O. 3185, 3312.
    5. Privilegia- sunt strictissmiae mterpretationis. They cannot bo extended by implication or analogy; they are never allowed hut when expressly granted, and then only by virtue of an exact compliance with the legal requisites to their creation and existence. O. 0. 3185, 3312; 2 L. 93; 11 L. 28; 18 L. 70; 2 K. 154; 11 14 . 78, 279 ; 2 Ann. 549, 774, 961 ; 4 Ann. 310; 6 Ann. 112, 276 ; 10 Ann 431; 16 Ann. 107.
    6. The vendor’s privilege on movables can only be enforced while the goods are in possession of the vendee. 20 Ann. 545-557.
   Tlie opinion of tlie Court was delivered by

Fenner, J.

In September, 1882, Clayeomb & McNeeley, who carried on a wood-yard and were engaged in sawing and splitting wood for sale, entered into an agreement with L. W. Miller & Co., a machinery firm of this city, whereby Miller & Co. agreed, in consideration of the price and sum of $1,269.40, to sell, erect and place in working order, machinery for a saw-mill, to he completed within thirty days and to have a guaranteed capacity to handle fifty cords of wood per day — the price to he paid according to stipulated terms and the property to remain in the ownership of the sellers until payment.

Under this contract, Miller & Co. (or rather Miller, who was the sole person composing the pretended firm) went to work in erecting the mill, and Clayeomb & McNeely advanced him $250 cash, and furnished him materials and labor to the further value of $1,087.

Although these advances thus appear to exceed the entire price to be paid, yet, Miller having failed to comply with his obligations in regard to the capacity of the mill, Clayeomb & McNeely refused to accept the same and held Miller responsible for the $1,287 which had been advanced by them. Litigation had ensued between them, the exact nature of which the record does not disclose.

Under these circumstances, a mode of settlement was proposed by Miller which resulted in a contract which is the basis of the present action.

Tlie parties thereto are Claycomb & MeNeely, Miller, and O. W. Bisbee.

The contract is very long. After reciting the contract between, plaintiffs and Miller for the purchase of the machinery, and the fact that they had advanced to Miller the said sum of $1,287, it proceeds:

“Whereas, 0. W. Bisbee desires, with the approval of Miller, to be substituted in the place and stead of 0. & iff. as the purchaser of said machinery, and to acquire their right, title and interest in and to said machinery and the materials used in the erection of the same, for the price and upon the terms and conditions hereinafter mentioned.

“Now, therefore, it is agreed that C. & M. hereby assign, set over- and convey, without warranty, to Bisbee,” their aforesaid right, title and interest.

Then follow various other stipulations of C. & M. with reference to leasing to Bisbee the land on -which the mill stood, and to furnish hinn with wood to saw and split and the price to be paid for work, etc.

Bisbee, on his part, accepts the transfer of the right, title and interest as made; binds himself to improve the mill to a capacity of thirty-cords per day; to handle, by preference, wood supplied by C. & M., at prices fixed, and to allow the latter ten per cent of all gross earnings of the mill on wood handled either for them or for other parties, until the said allowances should have repaid to them the entire amount of the advances which had been made by them to Miller, viz: $1,287.

Miller agreed to relinquish all claims against C. & M. as purchasers, and to dismiss a certain suit which he had brought against them on that account; and “to accept 0. W■ Bisbee as the purchaser of the machinery m lieu and place of Glaycomb & HoBeely.”

He further bound himself to furnish Bisbee the additional machinery-required to give the mill the stipulated capacity; and also guaranteed! the complete performance of all the obligations assumed by Bisbee.

Bisbee took possession of the mill and Miller furnished him new' machinery to the amount of $1500, for which he took notes with vendor’s-privilege.

Bisbee failed utterly' to comply with his obligations under the contract, and subsequently' made a sale or pretended sale of the property to one E. B. Benton. Thereupon plaintiffs brought the present suit against Bisbee, Miller and Benton, in which he claims judgment fertile amount agreed to be paid by Bisbee and for an amount due for-rent, with vendor’s and lessor’s privileges accordingly on the property which he caused to be seized under writs of sequestration and provisional seizure; and also for judgment annulling the sale to Benton..

' The court a qua gave judgment against Bisbee for $1,456.52, maintained tiie sequestration and provisional seizure, recognized the vendor’s privilege for $1,287.02, and the lessor’s privilege for $28.50, and annulled the sale to Benton as.fraudulent and simulated.

In so far as the moneyed judgment against Bisbee is concerned, it is fully sustained by the evidence.

There can be no question as to the correctness of the recognition of "the lessor’s privilege for rent and the maintenance of the writ of provisional seizure based thereon.

" But from the statement of facts heretofore made, it appears clear to •Our minds that Clayeomb and McNeely were not the vendors of the mill and machinery to Bisbee and, therefore, have no vendor’s privilege for the debt due by Miller to them and assumed by Bisbee.

' Miller was the original vendor to Clayeomb & McNeely by a contract óf sale which was never completed because the latter refused to accept the thing sold, and claimed reimbursement of payment and advances which had been made.

In this condition of affairs it was agreed between the three parties that Bisbee should be substituted as purchaser in place of Clayeomb & McNeely; that Miller should accept him as such purchaser in place of C. & M.; and that Bisbee should assume payment of the claim of C. & M., with the guaranty of Miller. We have studied the terms of the contract carefully, and it admits of no other interpretation.

Hence, the judgment erred in recognizing the vendor’s privilege and in maintaining the sequestration.

We have carefully weighed the circumstances attending the sale from 'Bisbee to Benton and all the evidence on the subject. They are of the most suspicious character, and excite in our minds such grave doubts of the reality of the transaction, that we do not feel authorized to reverse the conclusion of the district judge, who saw and heard the witnesses.

It is therefore ordered that judgment appealed from be amended by rejecting plaintiff’s claim to a vendor’s privilege; by dissolving the writ of sequestration issued; by reducing the amount of plaintiff’s privilege from $1,315.52 to 528.50; and by subjecting the order directing the sale of the property seized to the condition that, upon paying the said amount of rent due, the said order shall be vacated; and that, in other respects and as thus amended, the said judgment be now .affirmed.


text:
    No. 9707.
    The State of Louisiana vs. William Whitney.
    <Oral testimony is admissible to prove the contents of an indictment and other important documents which were lost or mislaid, and of which there existed no copy or record.
    .Identity of a party at the bar with the convicted accused, is a matter of fact which the district court can determine at the time of passing sentence and with which this Court cannot interfere, where the question is not presented so as to enable it to decide whether the trial judge was right or wrong.
    APPEAL from the Seventh District Court, Parish of Eranlclin. Moore, Judge ad hoe.

      M. J. Cunningham, Attorney General, for the State, Appellee:
    -1. A transcript of appeal pui porting to bo a transcript of certain parts of the trial, and not a complete record of all the judicial proceedings necessary. t<? the determination of appellant’s case, is not a complete transcript, and the appeal should be dismissed. C. P. 587 ; State vs. Johnson, 37 Aim.
    ”2. "When the record shows a bill of information was filed and a trial regularly proceeded with, and after the conviction and before sentence the prisoner escaped and was a fugi« tive from justice for more than two years, that after having been recaptured and before sentence was pronounced upon him it was shown the bill of information was lost and there was no copy in existence, and the contents of the information was proven by parol evidence reduced to writing, and such evidence was made part of a bill of exception, and was afterwaids abstracted from the clerk’s office, tho defendant cannot complain that the record does not disclose the nature of the charge against him for the reason that he is estopped from claiming any benefit or advantage from irregularities, madd possible by his wrongful act of escaping from legal custody.
    ^3. Parol evidence is admissiblo to prove the contents of an information lost and no copy of same being in existence. Wharton Cr. Ev, § 204 et seq.

      •4. Identity is a question of fact and cannot bo inquired into by the Supreme Court.
    ‘5. A convicted felon cannot defeat the just execution'of the law by qrgingthe loss of records occurring long after his conviction, and of which it is placed in his power to take advantage by moans of his unlawful escape.

      ■&. The status of a criminal prosecution should not be impaired by the culprit’s escape. When he is recaptured, matters ought to be considered as in the same condition as at the time of his flight. The criminal should not be permitted to profit by his own wrong.

      J. W. Willis for Defendant and Appellant:
    IParol evidence is inadmissible to show the existence, loss or contents of an indictment or information; and where an indictment or information is lost, destroyed or abstracted from the clerk’s office, no further proceedings in such case can he had, except from a duly certified copy of the record in such case, taken from the record book kept for the recording of such documents, after positive proof of the loss, destruction or abstraction of the same. Whar. Cr. Ev. § 153, and cases cited in note 8; Wright vs. State, 50 Miss ► 191. This case also reported in Hawley’s Arner. Cr. Rep. 1 vol., p. 191 j 1 vol.Bish. Cr. Pro. §§ 1178-79-80-81, and 319; Act Ho. 17 of the State of La., 1878, p. 42.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant claims that the sentence passed on ■him should be reversed and the case remanded for a new trial.

The transcript, which he has filed in this Court, is certified by the clerk as complete, as far as relates to the trial and conviction of the-defendant. The clerk further certifies that ail the other papers in the case have been lost, mislaid or abstracted from his office.

The record, however incomplete, contains the two bills of exception on which the defendant relies for a reversal of the sentence.

The first bill relates to the overruling of an objection made by his counsel to the admission of oral testimony “to prove the contents of' the indictment, bond and all the papers belonging to the case which were mislaid or lost, and no record having been made thereof as required by law.”

The second bill is to a kindred ruling permitting similar testimony and to the passing of sentence in the absence of the missing important documents themselves, or of others of almost equal dignity.

The bills could not stand strict legal criticism.

It may, however, be gathered from them that the objections urged,, were made to rest on the following grounds:

That no foundation had been laid to justify the admission of oral-testimony ; that the missing information could be supplied only by an exact copy of the same from the records; that the minutes did not show any particular charge of which the defendant was convicted;, that tlie court was without authority to sentence the defendant for a. crime not shown by the record, and that the accused at bar had not been identified as the party convicted.

In answer, it suffices to say that the first bill distinctly shows that-the information and other papers were mislaid or lost, and that no record of them existed.

Under such circumstances, the law allows the admission of proof of inferior dignity to supply the deficiency.

Oral testimony was then received and it is only after it had been heard that the judge, made aware of the material facts which the documentary proof would have established, had it been produced, proceeded to pass sentence.

The question of identity was one of fact on which the lower court could and did pass. It is not presented in any form to enable this Court to determine whether the lower court was right or wrong.

It appears that the appellant, after conviction, broke jail, remaining-at large some two years, and that it is after his capture, that these proceedings were had.

Under the circumstances, we feel no authority to disturb the condition of things.

Judgment affirmed.


author: Poci-iá, J.

text:
    No. 9744.
    The State of Louisiana vs. Ed. Deas.
    The Supreme Court will nob consider evidence submitted by the accused in a criminal case, in support of a motion for a new trial, unless said evidence,be embodied in, or otherwise made part of, a hill of exceptions reserved by the defendant to the refusal of a new trial by the judge. •
    This Court cannot consider a complaint of alleged misconduct of an officer in charge of jury, not previously submitted to the trial judge and suggested for tho first timo on appeal^ and by brief or argument.
    APPEAL from tlie Seventeentli'District Court, Parish of East Baton Eouge. Burgess, J.

      M. J. Cunningham, Attorney General, and L. D. Beale, District Attorney, for the State, Appellee:
    The ruling of the tiial judge upon the competency of a juror who did not serve upon tho jury in a case in which the peremptory challenges were not exhausted, will be reviewed on appeal.
    A juror is competent who swears on his i)oir dire that,’notwithstanding his previous impressions, “his opinion would readily yield to the evidence if different from what he had heard, and that lie could give the accused a fair and impartial trial.”
    When accused is on trial for peijury conmiittod in a former case, evidence of thieats and intimidation on his part to influence or prevent evidenco contrary to his own, is admissible in tho instant case as tendiug to show that the perjury in the former case was willful and con upt.
    'The action of tho trial judge in overruling a motion for new tiial will not he reviewed unless a regular and former bill of exceptions thereto is taken. The statement appended to the motion and signed by the judge, that counsel excepted and tendéis his hill, will not suffice.
    .Evidence taken on the trial of a motion for now trial will not ho noticed unless embodied in a regular formal hill of exceptions, actually or by reference as part thereof, although it may he in tho record.
    ,A juror will not be beard as a witness to impeach the finding of the jury of which ho was a member, by showing misconduct on part of himself or fellows, or the unusual means by which they agreed to a verdict.

      .A juror has tho right to influence the action of his fellows by all fair arguments and reasoning, and give them the benefit during their deliberations of all the information he may have hearing upon the case.
    It is not a “separation,” or misconduct, such as to vitiate a verdict, for the foreman to advance to tho stand and ask the judge a question in open court, although it is more regular to ask all instructions from the box — particularly when the explanation of tho judge slious that the question and answer were not unfavorable to the interest of tho accused. 4 L’. 27; 23 Ann. 148; 8 It. 590; Thompson & Merriam on Juries, § 362, No. 2, p. 429, § 355, p. 423

      JE. W. Robertson and K. A. Gross for Defendant and Appellant:
    Any private communication whatever between tho judgo and any member of the'jurv, after the jury had retiied to consider their verdict, vitiates the finding. Thompson & Mer* iiam on Juries, sec. 355, and cases cited. A judge is not authorized to give jurors separate and private instructions out of the hearing and without the knowledge of counsel on both sides. State vs. Ifrisby, 10 Aim. 144; Thompson and Meriiam, sec. 357.

      The mere presenco of an oificer of court at deliberations of tbe jury, and conversation about-the case, invalidates the veidict. Thompson and Merriara,-seo. 362.
   The opinion of tlie Court was delivered by

Poci-iá, J.

The record contains numerous grounds of'complaint by tbe - defendant, who was convicted of perjury, but two questions only are discussed by bis counsel on appeal.

The others are very trivial and are therefore abandoned.

In a motion for a new trial, tbe accused urges two grounds of misconduct of the jury, one of which is not pressed on appeal.

Tbe ground which bis counsel discuss is that tlio district judge, allowed the foreman of the jury to step out of the ranks of his fellows up to the judge’s seat, and that he then asked and obtained in private-an instruction touching the case in hand.

The record contains a considerable mass of testimonjr which was taken on that point. But it is not embodied in, legally connected with, or even referred to, a hill of exceptions to the ruling of the district judge refusing the new trial prayed for. Hence, it cannot he considered.

The only attempt made by defendant’s counsel toward drafting a bill, of exceptions from tbe judge’s refusal of the new trial prayed for, is in the following words:

“ To the judgment of the court overruling this motion for a new trial-accused excepted, and tenders his hill for signature and approval.”

The reasons of the judge on his refusal of1 the motion, which were-given at length and in writing, are not even embodied in, attached or referred to, the purported hill. We can but express our surprise at tbe apparent hope of counsel that we could sanction sucli glaringly deficient proceedings, '

Repeated adjudications of this Court should have taught them the-proper and only course to pursue in the premises. In Nelson’s case, 32 Ann. 842, we culled from our jurisprudence and we formulated the-rule that “This Court cannot take cognizance of the evidence upon which a motion for a new trial was refused by the- court a qua, unless that evidence is embodied in a hill of exceptions.”

The doctrine was immediately thereafter applied in the ease of Given, 32 Ann. 782, in which we took occasion to say:

“Evidence to show the alleged misconduct of the jury was introduced and taken down in writing, and is in the record, hut it is- not embodied in, or attached to, a bill of exceptions,” and under the authority of the Nelson case we declined to consider the evidence.''

Tlio same rule received similar application in the following cases: State vs. Williams, 36 Ann. 742; State vs. Jackson, 36 Ann. 769; State vs. Belden, 36 Ann. 824.

We are therefore stripped of all power to consider or jiass npon the alleged misconduct of the jury.

On appeal, and for the first time, defendant’s counsel make the point that one of the deputy sheriffs in charge of the jury committed the grievous wrong of conversing with some of the jurors about the merits of the case on which they were then deliberating.

But tbe simple statement that the point was made only on appeal is sufficient to dispose of the matter. To pass on a point which lias not been submitted to the trial judge, would be assuming original jurisdiction. This wo have not tho power and much less the disposition to do.

The defendant has had a fair trial.

Judgment affirmed.


author: Watkins, J. Bermudez, C. J.

text:
    No. 9679.
    Heirs of Allen Castle vs. Mrs. E. S. Floyd et als.
    1. An heir, or tho transferee of an heir, acquires the right the decedent possessed, to euo for the resolution of a sale for the non-payment of tho purchase pricej but same is necessarily restricted to the interest of such heir or transferree.
    2. A right to sue for the enforcement of a vendor’s lien, is different from' that to sue for tbe resolution of a sale ,* and the former is not an auxiliary of the latter. This right does not pass to tho purchaser of the vendor’s notes, unless there bo a special contract to that effect. M
    3. neither the heirs of a deceased person nor the transferree, can sue for tbe resolution of a sale until previous tender has been made of the outstanding purchase notes, and such part of the price as may have beeu paid by the purchaser.
    Such a tender is a condition precedent to the institution of the suit.
    APPEAL from the Sixteenth District Court, Parish of St. Helena* Eernan, J.
    Chas. E. Lea for Plaintiffs and Appellants:
    Actions to resolve the sale for non-payment of price prescribe only in ten years. And this term of prescription bogins from maturity of first instalment, -when the piice is to be paid, in instalments. 14 Ann. 340 ; 23 Ann. 355.
    Minors cannot bo prescribed against, except in cases provided by law. C. C. 3522; 33 Ann. 769.
    In actions of resolution it is not necessary to put defendant in default. 28 Ann, 582, 740,
    Tho vendor returns the portion of the price paid, and the vendee returps the thing with it» ' revenues.. 14 Ann. 340 ; 28 Ann. 584, 741.
    Prescription against tbe heirs was suspended during their minority and commenced to run from the date of their respective majorities. C. C. 3522.
    The resolutory condition creates h right not personal but heritable and transferable. ' C. C* 491, 2449.

      The right to resolve the sale for non-payment of price, is a distinct and independent right from that of enforcing payment. 24 Ann. 5.17; 12 Ann. 701.
    A party will not be permitted to shift liis position to a contradictory one in order to defeat the action of tho law. 3 Ann. 18 ; 2 Ann. 209 ; 18 Ann. 141; 28 Ann. 460.

      Marr & Kemp ou the same side:
    1. If tlio buyer does not pay tho price of sale, the seller may sue for a dissolution of tho sale. It. C. C. 2591.
    2. In public sales the adjudication is the completion of tho sale, the purchaser becomes tbo owner of the article adjudged and the contract is from that time subjected to tho same rules which govern the ordinary contract of sale. Li. C. C. 2608.
    3. Where a purchaser at a judicial salo of property of minors fails to pay the price, the minois may sue for a dissolution of tho sale; Jones vs. Crocker, 1 Ann. 440.
    4. Tho vendor of a tract of land may enforce the resolutory condition against a third purchaser from his vendee. L. Bourgeois vs. L. Bourgeois, 23 Ann. 757; B. C. C. 3301. Stevenson vs. Brown, 32 Ann. 461.
    .5. Non-payment of the price constitutes a resolutory condition in the centi act of sale and its effect is in no manner affected by tho fact that the vendor has failed to preserve his privilege or mortgage by registry. 32 Ann, 461, Stevenson vs. Brown; 12 Ann. 694, Johnson vs. Bloodworth.
    .6. The action in resolution of a sale is one in revendication of the tiling. Tho accomplish meut of tho condition giving rise to tho action has retroactive effect to the day of sale things are,put in tho same condition as though the sale had not been made. B. C. C. 2041; Stevenson vs. Brown, 32 Ann. 461; Johnson vs. Bloodworth, 12 Ami. 699; 11 Ann. G54, George vs. Lewis ; Thompson vs. Kilcroyse, 14 Ann. 340.

      'l. In actions on tho resolutory condition no putting in default is necessary; they are not actions for damages for violation of a contract. Aymor vs. Delman, 28 Ann. 582.
    8. The resolutory condition must not be confounded with the vendor’s privilege. Tho former is not an appendage of the latter. Johnson vs. Bloodworth, 12 Ann. 699 ; George vs. Lewis, 11 Ann. 654.
    9. Tho prescription against the action of resolution of contracts is ten years, commencing from tho maturity of the price in case of contracts of sale. Jones vs. Crocker, 1 Ann. 440: It. C. C, 3544; George vs. Lewis, 11 Ann. 654.
    10. Minors and persons under interdiction cannot be prescribed against except in the cases prescribed by law. Hooper vs Purse, 13 Ann. 340 ; 6 Ann. 109 ; B. C. C. 3522.
    . dl. Proscription not completed at the ancestor’s death is suspended not interrupted. Bowls ‘ vs. Bowls, 6 Ann. 695; Smith vs. Gibbons, 6 Ann. 684.
    12. The right to exercise the resolutory action in cases of sale is transferable, and would pass by a sale of the vendor's right to the property by him previously sold and to which the resolutory condition was attached, this right is not personal to tho vendor. II. C, C. 2449, 491, 2642; Torregano vs. Segura, 2 N. S. 159.

      M. A. Striclcland, T» C. W. JEIllis and J. Wilson for Defendants and Appellees:
    1. The right to dissolve a sale for the non-payment of the purchase price is strictly personal to the seller and cannot be transferred or alienated. Swan vs. Gayle, 24 Ann. 502-; Chamblais vs. Miller, 15 Ann. 713.
    2* The resolutory actiou is a personal action and prescribed by ten years from the first default in the payment of the parchase price. C. C. 3544, 11 Ann. 654, and cases cited,

      Z. The prescription of personal actions is not suspended by minority, 24 Ann. 211, and if it is, this suspension is personal to tho minor, 6 Ann. 684, and does not pass to his transferrees and cannot be pleaded by them.

      4. This action grows out of proceedings in tho matter of the minority and tutorship of plaintiffs, and is prescribed by four years O. 0. 302; 6L. 161; 19 Ann.149. This prescription against one of the plaintiffs runs from the date of her emancipation. C. 0. 385 12 Aim. 155; Proctor vs. Hebert, 36 Ann. 250. In computing prescription against tho rights of the deceased sister, the prescription which accrued against her must be added to tho prescription which was run against plaintiffs. Smith vs. G-ibbon, 6 Ann. 684. Tho defendant has the right to plead these prescriptions. O. C. 3466; 8 Ann. 504; 19 Ann. 149
    -5. Good faith is always presumed. C. 0. 3481, and when once commenced continues, O. C. 3482, recitals in a title will not destroy it. 7 Ann. 3. Defendant purchased from, those not only whom he believed to be the true owners, but who, in point of fact, were so. He is a purchaser in good faith, G. C. 503, 3451, and can owe no rent prior to suit, O. C. 508, 3453; 16 Ann. 290, and is entitled to his improvements. 27 Ann. 398.
    ►6. Minors’ property and rights may be alienated or changed by the advice and consent of a family meeting, C. C. 229, 339, and where the formalities of law have been complied with, they are the same as persons of age. G. G. 1868, 2231; 1 Ann. 236 ; 9 Ann. 428; 15 Ann. 148; 28 Ann. 299; 32 Ann. 956.
    7. Where one parts with his property upon the faith of judicial proceedings in matters of minority, he is protected by said proceedings. 1 H. 924, Ho. 13; 16L.120; 32Ann.954. Equity will regard as done what should have been done. 6 Ann. 91,117; 28 Ann. 100.
    ■8. Where notes, which are owing by the tutor to his ward, become due and exigible during the term of tho tutorship, they are considered in law as paid, as so much cash in tho hands of the tutor for which he is responsible as tutor, and which is secured by th© legal mortgages resulting from tutorship. Succession of Triehe, 34 Ann. 1148; Succession of Hebert, 27 Ann. 300 35 Ann. 546.
   The opinion of the Court was delivered by

Watkins, J.

Allen Castle died in the parish óf St. Helena in the ;year 1861, leaving a surviving widow and three children, viz: Florida, ■John Benjamin, and Nettie — all minors.

The widow qualified as their natural tutrix, and in that capacity administered the succession of ber deceased husband. During the minority of the children she intermarried with W. D. Floyd, without first •obtaining the consent thereto of a family meeting. Thereafter pro■ceedings were inaugurated for the partition of certain real estate of Allen Castle’s 'succession by lieitation. and public sale. W. D. Floyd became the purchaser upon the terms fixed by the order of court, viz: upon terms of credit, one, two and three years; and he executed his notes accordingly, with mortgage retained.

This partition sale occurred on the 8th of August, 1867.

The sundry notes were divided or partitioned between Mrs. Floyd .and her three children according to their respective interests, and in the proportion of one half to Mrs. Floyd, and to. each of the children •one third of one half.

Plaintiffs claim that these notes were never paid.

In 1871, Floyd sold the land to K. K. Thompson, who is now in pos•session.

In 1875, Florida Castle died intestate and without issue, and her mother, Mrs. Floyd, inherited one fourth of her estate, and her brother, John B., and Nettie, each one half of three fourths.

John B. Castle became of full age in 1881. In 1882, Nettie Castle married W. II. McClendon. In 1884, John B. Castle conveyed to Mc-Clendon all of his right, title, interest, claim and pretension in and to-the successions of his deceased father, Allen Castle, and his deceased, sister, Florida Castle.

In 1885, this suit was brought by John B. Castle and Nettie Castle, wife of W. II. McClendon, for the resolution of the partition sale, for-the non-payment of the purchase price by W. D. Floyd; and Mrs. E. S. Floyd individually and as tutrix for the minor children of herself and W. D. Floyd, now deceased, were made defendants; and also KK. Thompson,

Thompson excepted that John B. Castle had no interest in the suit,, having transferred his interest in the successions of his father and sister to W. II. McClendon; and further, that the plaintiffs’ petition discloses no cause of action.

Thereupon IVIcClendon offered to make himself a party, in lieu of John B. Castle, and by order of the judge a quo he was substituted in his place and stead, and annexed his title thereto, hearing date 29th of December, 1884. To this ruling the defendants reserved a bill of exceptions, on the ground that John B. Castle was now legally and rightfully a party to this suit — he having transferred all of his rights- and interests to McClendon antecedent to the institution of the suit— and, he never having been himself a party, no one could be substituted-’ in his place.

In our opinion the ruling of the judge a quo was erroneous.

This Court had recent occasion to decide same question just the-other way, in Barron vs. Jacobs, not yet reported.

John B. Castle had conveyed his interest to W. H. McClendon— Nettie Castle’s husband — antecedent to institution of this suit, and no-one could be called to take his place.

Nettie Castle was then the only plaintiff in tho suit when it whs. brought, and the question presented is whether the partition discloses-a cause of action for the resolution of the partition sale.

We entertain no doubt of the plaintiffs’ right to sue for the resolution of the partition sale, quite as well as of a salo under private signature. 1 Ann. 440, Jones vs. Crocker.

. There-is no question of the fact that the heirs of Allen Castle, at his-death, acquired his succession in the same state it was when he died-

The heirs of a deceased person are seized of his succession at the-very instant of his death, and the right of possession that the deceased? had, continued in them, with all of its defects and advantages-; the-change in the proprietor producing no change in the nature of his possession.

An interest in a succession may be disposed of at public or private# sale, and the purchaser takes the place of the heir whose interest is thereby conveyed.

In either case an heir, or the transferee of an heir, would acquire the right of deceased pro tanto only, to sue for the resolution of a sale his-ancestor had made, or of one made of his estate for the non-payment of the price.

That right would pass as any other asset of the deceased.

But we do not concede that it can be fairly deduced from that fact-that the simple indorsee of a note evidencing a part of the purchase-price would thereby acquire the seller's right to sue for the resolution#, of the sale.

We have been cited by plaintiffs’ counsel only to one case in which-it has been so decided, viz: Torregano vs. Segura, 2 N. S. 159. In that-case it was the security who was himself pex-sonally hound for the pay- • ment of the debt, who discharged it, and by virtue of his legal subrogation to all of the creditors’ rights, claimed the property by the resolutory action. Suffice it to say that he was not an indorser for valúe..

In our opinion the two remedies of the vendor — one for the enforcer ment of the contract and the other for the resolution of it — are diametrically opposed, in the very nature of things.

A suit to enforce the vendor’s lien is a.n affirmance of the contract £ while a suit for the .resolution of it must be preceded by the restitution of the purchase notes and-such part of'.the .price as shall have been paid to the vendee, and same is a condition precedent to'.-institution of the suit. 23 Ann. 354, George vs. Knox; 24 Ann. 537, Templeton vs. Pegues; 15 La. 76, Canal Bank vs. Copeland.

In 9 Ann. 84, Augusta Insurance Company vs. Packwood, it was said that “ to effect a rescission of the sale, so as to replace the parties in the same position as if a sale had never been made, the parties to the sale and rescission should be the same.”

In 7 Ann. 67, Leflore vs. Carson, the Court said: “If the sale from McDonald to Messrs. Payne is to be rescinded, this cannot be done without restoring the vendor and the vendees to their ox-igihal condition-The dissolving condition, says the Code, is that which, when accomplished, operates the revocation of the obligation, placing matters in the same state as though the obligation had not existed. * 'l' * IIow is Butler to replace matters in statu quo ? He is the mere holder of one of the notes. He is not the vendor, nor anything more than one holding partial rights of the vendor.”

R. C. C. 2561: “If the buyer does not pay the price, the seller may sue to rescind the sale.”

C. N. 1654: “If the purchaser does not pay the price, the seller may •demand the annulment of the contract.”

C. N. 1692: “The sale or cession of a credit comprises the accessories ■ of the credit, such as security, privilege, and mortgage.”

The “sale of a credit” — one of the purchase notes — passes all of the securities and means of its enforcement; but the right to resolve the • sale for the non-payment of the price — “credit”—is necessarily inherent in the seller, or his heirs.

In 12 Ann. 699, Johnson vs. Bludworth, the Court said: “But it is impossible to confound the resolutory condition with the vendor’s privilege. The former is not a mere appendage of the latter.”

In Swan vs. Gayle, 24 Ann, 503, the Court said: “ The action for the resolution of the sale implies and presupposes tlie renunciation of the right to demand the payment of tlie price.”

Again: “ Now, a right which cannot be exercised, so long as another light exists, cannot be the accessory of the latter.”

Again: “ He did not by buying the notes.take tlie place of Eilhiol in the contract of sale, else the purchaser of a negotiable note, given for the price of the property, would become the warrantor of the title to the property. A proposition which leads to such a conclusion ought not to be sustained by a court of justice.”

These conclusions appear to our minds almost irresistible.

We are of the opinion that the foregoing decisions are consistent with tlie object to be attained by the resolution of the contract, the restitutio ad integrum — the replacing of parties in the same situation they occupied before it was made.

While it is true this action descended to us from the Roman law, yet under that system of jurisprudence the resolution of a sale for the non-payment of the price could not bo demanded, unless there was an express stipulation in the contract to that effect; and when it was thus stipulated, the contract was void ab initio, if not fulfilled by the payment of the price.

Under our law the resolutory condition is implied in every commutative contract, and the failure of the vendee to pay the price only renders tlie contract voidable. 6 Ann 4, Chretien vs. Richardson; 15 La. 76, Canal Bank vs. Richardson; R. C. C. 2046.

We are inclined to the opinion that the right of resolution inheres in the seller, and feel satisfied that it does not pass to the simple indorsee of purchase notes, like security, mortgage and privilege, which are auxiliaries, for the enforcement not the resolution of the contract.

Even conceding the right of McClendon to have himself substituted for John B. Castle, as a party plaintiff, the plaintiffs’ petition discloses no cause of action for the resolution of the partition sale of the 8th of August, 1867, because the plaintiffs, when thus joined, only ask foi the resolution of the sale as to one undivided half interest. '

This is impracticable and cannot be done. Iiow can the plaintiffs restore the statu quo or bring about the restitutio ad integrum †

We think they cannot.

Suppose this Court should grant plaintiffs the relief prayed for and resolve the partition sale with respect to an undivided one-half interest, would not their one-half interest thus restored t.o them, as the heirs of Allen Castle, become at once subjected to the vendor’s lien, and mortgage securing the remaining purchase notes held by the defendant, Mrs. Floyd, the surviving wife of Allen Castle?

This Court so decided expressly in 23 Ann. 411, Stuart Hyde & Co. vs. Madame Suzette Buard, and we think correctly.

We prefer to follow the doctrine announced in 24 Ann. 503, Swan vs. Gayle. In our opinion, it finds support in other decisions we have cited ; though in that case the question was tioated as res nova. In so far as there may be any expression in the opinion of the court, in 1 Ann. 440, Jones vs. Crocker, indicating a contrary view, the same is overruled.

The opinion herein expressed on other questions, dispenses us from the necessity of considering the plea of prescription urged.

It is, therefore, ordered, adjudged and decreed, that the judgment of the court a quo be amended and that the demands of plaintiff for the rescission of the partition sale be rejected, and that all costs be taxed against the plaintiffs and appellants.

Concurring in Part.

Bermudez, C. J.

This is an action for the resolution of sales, on account of the non-payment of the price.

It is brought by one of the heirs of Allen Castle and by a transferree - of the interest of the other.

■ The averments are that two tracts .of .land belonging to the succession having been sold to effect a. partition, the notes furnished were «divided among the heirs and the widow, the property passing from -the adjudica tee to Thompson & Freeman, who are made defendants; that the failure on their part to pay the purchase price justifies a resolution of the sales. The widow is not a party plaintiff.

The defense is a denial of the pretensions of plaintiffs; specially that, by his purchase of the interest of one of the heirs in the price of sale, the transferree, in the absence of an express stipulation, did not • acquire the right to ask the resolution on the ground of non-payment •of the price of sale; that even then, the right of action is barred by-prescription.

; The right to. enforce the resolutory action in a contract of sale is -peculiar .to the civil law and has been so rarely exercised in this State, by others than the vendor, that only two cases directly present the -interesting question : whether the right is transferred to the purchaser ■ of the claim without an express assignment of it.

In Torregano vs. Segura, 2 M. N. S. 158, the plaintiff was the en'.dorser of a note given for the piico of slaves and having paid it, -claimed as subrogee to the rights of the vendor, the dissolution of the sale and delivery of the property to himself. The Court say: “The subrogation is of the right of the creditor, not against the debtor only but also against the securities, and like a transfer of the debt it in-eludes everything that is accessory thereto as securityship, privileges, -mortgages. The rescission of the sale is a means of securing the pay-ment which the vendor, the creditor of the price, has. This right is .an accessory of the claim and would pass by the sale or transfer of it. The subrogation has the same effect.”

Swan vs. Gayle, 24 Ann. 498, was an action by the endorsee of notes «representing the unpaid price of property and the Court at first held that the action was maintainable on the authority of the Torregano case supplemented by George vs. Lewis, 11 Ann. 654, where it was said the resolutory action is a concurrent remedy with a suit to enforce the vendor’s lien. But on rehearing, the ruling was reversed, and it was held by a divided court (two dissentients) that the right to dissolve ' the sale is not an accessory of the notes for the unpaid price, and does not pass to a third party by the transfer of them. And in this last «opinion was cited Citizens’ Bank v. Cuny, 12 Rob. 279, where the Court said, the vendor’s privilege gives the seller a right to the rescission of -the sale on the non-payment of the price, and he by transferring the ■ notes parted with the accessory rights which vested in the plaintiffs as the holders of the notes. This was cited only to observe that it, as well as the passage quoted already from the Torregano case, was said •only arguendo and was not authoritative.

The expressions in both cases are pertinent and necessary to the •decisions, with such contrariety of opinion it is obvious that the question cannot be considered as settled by our own jurisprudence. As art. 2645 of our Kevised Civil Code is identical with art. 1692 of the ’Code Napoleon, it is natural to turn to the French commentators for light and guidance.

They are found differing as much as this Court.

Duranton holds that the resolutory action is not comprehended in a general cession, but only passes, by a special cession of it and cites "Sirey, Delvincourt and Dalloz. Code Civil Annoté, art. 1692, p. 749. However Dalloz does not support that dictum. On the contrary ho ¡affirms that, if the cession is general, without any restriction, it will comprehend the action in resolution unless it appears that the intention of the parties is to exclude it. This is his language; — “ Si le ■vendeur a cédé en termes généraux tons ses droits et actions contre Tacquéreur sans rien specifier mais sans faire non plus aucunc restriction, la cession comprend les actions en nullitó et en rescisión ou Tésolution, á moins qu’il n’apparaisse, d’aprés les circonstances, que l’intention commune des contractants a été d’exclure ces actions de la • cession. Paris Ed. 1874. Com. art. 1692 C. H.

Marcade argues with his usual dogmatic energy that the right to •dissolve the sale for non-payment is not even an accessory of the right to demand payment of the price and of course does not pass by a transfer of the notes that represent the price. Laurent opens his discussion with the statement that the question is very much controverted and there is some doubt about the true solution of it, but he adopts the •opinion that the right to dissolve the sale is not comprised in the ■cession of the obligation for the price. Authors are divided, he says, -as well as jurisprudence and the question is not settled. Droit Civil, to. 24, p. 529 § 535.

On the other band, Toullier says when the terms of the cession are -general and absolute it is impossible to admit any exception and all ■rights are transmitted to the cessionary, and as an example he adds that the right of a seller to demand the resolution of the sale on default of the payment of the price is ceded to him to whom he sells the •credit. Droit Civil Francois, to. 2 § 222, pp. 274-5.

So also Kogron concludes with reason that a cession of .the credit •that represents the unpaid price of an immovable includes the right to demand the resolution, of the sale. Com. art. 1692 C. N., and Solonis of the same opinion. Sur la nullité, to. 1. $ 450, p. 311. Gilbert in his Codes Annotés, p. 809, art. 1692 C. N. says a- general cession comprehends the rescinding and rescissory actions, and besides Solon, cites-as sustaining that opinion Dnvergier, Troplong, and Persil.

If the French commentators are equal in authority on both sides- and resort is liad to independent reasoning, it is not perceptible why the right to dissolve the sale for non-payment of the price should not pass to the buyer of the credit, as well as the right to enforce the payment of the price, throng'll the vendor’s lien, for why should the one he deemed to pass by a general transfer of the credit and not the other? Both are means of compelling the buyer to perform bisobligation. The buyer’s obligation is to pay the price or restore the property. The action to enforce the vendor’s lien compels the payment of the price, or failing that, the sale of the property, in order that the price may be realized. The action to dissolve the sale for -non-payment of the price compels the restitution of the property without the intervention or medium of a forced sale of it. If the one is. transferred by the transfer of the credit that represents the price- (and all authorities agree that it is) what reason in logic or in law can there be for holding that the right to dissolve the sale must be specially transferred or it will not pass by the transfer of the credit that represents the price. The French commentators, so acute in discerning refined distinctions and sometimes pushing them to the verge of metaphysical subtlety, divide on the question as each holds the right to he an accessory or not of the principal obligation, but where the vendor lias two remedies or rights, it appears inconsistent and technical to require a special transfer of one while the other passes by a general transfer..

It may be said that the right to dissolve the sale for non-payment of the price ought to be exercised by the seller and by no one else, for if he sells the credit that represents the price he has received the price of his property in the sum he gets for the credit. But this is an argument for the non-transferribility of the resolutory action. Now all the writers hold that the action is transferrible. The difference between them is that some hold the transfer must be special and others that it need not be.

Again, if tbe transferrer of the claim for the price does not transfer the right of resolution of the sale because of non-payment of it among his other vendor’s rights, the buyer of the property might he exposed to two actions by two parties — one by the transferree for the price, the other by the seller for the dissolution of the sale for non-payment and thus two suits might go on pari passu. Must judgment be rendered in each, or will one exclude the other? And will in the latter case the transferree or the seller be compelled to give way ?

While I consider that the right to sue for the resolution of the sale passes without special mention, I believe that it does not pass, where the entire claim for the price is not transferred and that it cannot be exercised, unless by the person or persons who represent the whole slaim.

As the entire claim is not represented in this suit, I think that plaintiffs’ demand must be dismissed.