text:
    No. 4456.
    Jesse R. Powell vs. Factors’ and Traders’ Insurance Company.
    This is an action on an open river policy. It was proved that the corn lost on the Lizzie Gill in January, 1870, was worth the amount claimed by plaintiff. The defense is that the insurance did not attach to this consignment, because plaintiff failed to make returns of certain produce received by him previously, as required by the condition of the contract annexed to the policy.
    It seems that, without the knowledge of plaintiff, his clerk, whose duty was to make returns to defendants of all shipments covered by the policy, neglected to report certain consignments of produce which were made to plaintiff in August and December, 1869. Defendants were aware of this, but continued to do business with plaintiff until the sixteenth of March, 1870, when the policy was canceled, receiving in the meantime premiums amounting in the aggregate to $3999 27.
    Prom this statement of facts there flow two propositions which seem to be inevitably correct:
    First — If the breach of contract now complained of ipso facto avoided it, respondents should return to plaintiff the premiums received subsequent to said avoidance.
    ■Second — If the contract of insurance was voidable on account of- the delinquencies of plaintiff in August and December, 1869, and respondents, with full knowledge thereof, delayed canceling the policy until the sixteenth of March, 1870, receiving thereunder a large amount of premiums in the meantime, respbndents should be hold liable for the losses which occurred during the same period.
    Defendants ought not to be heard assorting the nullity of the contract of insurance, while accepting the premiums — the fruits thereof — with full knowledge of the failure of plaintiff to make returns of produce for August and December, 1869.
    Defendants fail in the attempt to draw a distinction between what they call a cotton contract and a produce contract, alleging that f orfeiture attached to the latter and not to the former, because plaintiff always made proper returns for the cotton shipped to them, and therefore the large premiums received on the cotton can be retained, because that contract remained valid, while the produce contract be-eamo void by plaintiff’s failuro to make returns of produce for August and December, 1869. But if the produce contract was forfeited at that time, hów is it that in January, February, and March, 1870, defendants continued to receive from plaintiff returns of corn consigned to him ?
    Rut, in fact, it is not found in the record that there were two distinct contracts, one for cotton and one for produce. On the contrary, there was but one contract annexed to the open policy of insurance, and it is known as “cotton and produce contract No. 8, under open river policy No. 32.”
    Defendants cannot accept the fruits of a contract and allege its invalidity for a breach thereof known at the time of such acceptance of the fruits. If it was valid to earn premiums, it remained valid to bind the insurer for losses incurring in the meantime.
    Rut plaintiff is not suing to recover the insurance on the shipments of January and December, 1869, in which cases he failed to make proper returns and payments of premiums. He sues on the loss incurred on the consignment of the Lizzie Gill, for which he is not in default on account of not having made the proper return. He is therefore entitled to the amount insured thereon.
    APPEAL from the Fourth District Court,parish of Orleans. Theard, J.

      Lacey & Butler and W. W. Edwards, for plaintiff and appellant.

      •Gibson & G-ibson, for defendants and appellees.
   Wyly, J.

This is an action on an open river policy for $3463 97, the-insurance on a lot of corn consigned to plaintiff which was lost on the Lizzie Gill in January, 1870.

In case it should be held that said policy was forfeited by plaintiff’s failure to make return of produce received in August, 1869, pursuant to a clause of the contract annexed to said policy, plaintiff prays that the defendant be condemned to make restitution to him of the premiums paid subsequent to that time, which amount in the aggregate to $3999 27.

Defendant admits the execution of the open river policy No. 32, and the cotton and produce contract annexed thereto, but alleges that in consequence of plaintiff’s failure to make returns of produce, as required by a clause of the contract annexed to the policy, the insurance of produce under said open policy was rightfully and lawfully declared void by the insurer at the time plaintiff proposed making a return of the 1648 sacks of corn shipped on the Lizzie Gill.

Defendant further alleges that as plaintiff made due returns of the cotton received by him the insurance thereof was valid, and the premiums thereon having been duly earned, respondent should not be required to refund them to plaintiff.

It is proved that the corn lost on the Lizzie Gill was worth the amount claimed. The defense is that the insurance did not attach to this consignment, because plaintiff failed to make returns of certain produce received by him previously, to wit: in August and December, 1869, as required by the following condition of the contract annexed to the policy:

“ And it is a condition of this insurance that the assured shall make returns of all produce and merchandise by each boat on which the risk terminated, and monthly returns of all cotton on which the risk may have terminated, according to the printed form furnished the assured by this company, and the premium that shall have accrued thereon shall be paid in cash at the beginning of every month; and in case the assured should neglect or refuse to pay the premiums in cash that may have accrued at the beginning of every month, this insurance may be declared void and of no effect by the insurer.”

It seems that, without the knowledge of plaintiff, his clerk, whose duty it was to make returns to defendant of all shipments covered by the policy, neglected to report certain consignments of produce which were made to plaintiff in August and December, 1869. Defendant was aware of this, but continued to do business with plaintiff until the sixteenth of March, 1870, when the policy was canceled, receiving in the meantime premiums amounting in the aggregate to $3999 27. There are two propositions which seem to be inevitably correct:

First — If the breach of contract now complained of 'ipso facto avoided it, respondent should restore to plaintiff the premiums received subsequent to said avoidance.

Second — If the contract of insurance was voidable on account of the ■delinquencies of plaintiff in August and December, 1869, and respondent, with full knowledge thereof, delayed canceling the policy until the six-téenth of March, 1870, receiving thereunder a large amount of premiums :in the meantime, respondent should be held liable for the losses which occurred during the same period. In other words, if the contract was valid for the earning of premiums during this period, it was valid to cover losses which occurred during that time. .

Besides, defendant ought not to be heard asserting the nullity of the contract of insurance while accepting the premiums, the fruits thereof, with full knowledge of the failure of plaintiff to make returns of produce for August and December, 1869.

Defendant, however, attempts to draw a distinction between what it calls the cotton contract and the produce contract, alleging that forfeiture attached to the latter and not to the former, because plaintiff always made proper returns for the cotton shipped to him. And, therefore, the large premiums received on the cotton can be retained, because that con■tract remained valid, while the produce contract became void by plain■tiff’s failure to make returns of produce for August and December, 1869. It is proved that subsequent to the eighteenth of January, 1870, the time ■the loss in question occurred, and during the months of January, February, and March, 1870, there were several consignments of corn received by the house of J. B. Powell, and returns of the same were made to and received by defendant. If the produce contract was forfeited, how is it that in January, February, and March, 1870, defendant continued to receive from plaintiff returns for corn consigned to him ?

But we do not find in the record two contracts, one for cotton and one for produce. There was but one contract annexed to the open policy of insru’anee. And it is known as “cotton and produce contract No. 8, under open river policy No. 32.”

In that contract is found the condition quoted, requiring the returns of produce, merchandise, and cotton, and the payment of premiums as therein stated, and stipulating, as a penalty, that for neglect to pay the .accrued premiums at the beginning of every month “ this insurance may he declared void and of no effect by the insurer.”

Now, whether the breach of this stipulation by plaintiff in August and .December, 1869, resulted in the avoidance or the ávoidability of the con■tract of insrirance, it is important to decide, because, in either case, plain-' "tiff will be entitled1 to relief.

If it avoided the policy, defendant, as before remarked;'must return •the premiums subsequently received, which are more than the amount of the insurance demanded. If it made the contract of insurance voidable,, the nullity thereof was without effect until the contract was canceled on. the,sixteenth of March, 1870, which was nearly two months after the loss-in, question occurred. But this we do decide, that defendant will not be-heard tp allege the invalidity of the contract of insurance by reason of' the breach thereof by plaintiff in August and December, 1869, in order to escape the loss which occurred on the eighteenth of January, 1870, on. the consignment of. corn on the Lizzie Gill; because, with full knowledge-of the breach aforesaid, defendant continued to recognize the contract of insurance and to accept premiums from plaintiff thereunder until sixteenth March, 1870. Defendant cannot accept the fruits of a contract, and allege its invalidity for a defect, or breach thereof known at the time of such acceptance of the fruits. If it was valid to earn premiums, it remained valid to bind the insurer for losses occurring in the meantime.

The learned counsel for defendant, however, argue in their brief that,, under the contract, the neglect to inahe. returns or to pay the premiums, at the beginning of every month will not avoid the policy, but that in every case of neglect on the part of the insured to make proper returns, and payments “ this insurance may be declared void and of no effect by the insurer,” meaning the insurance on the shipment the plaintiff has neglected properly to return and pay the premium on. In reply to this position, it is only necessary to state that plaintiff is not suing to recover the insurance on the shipments of January and December, 1869, in which cases he failed to make proper returns and payments of premiums. No losses occurred, and no responsibility is sought to be enforced against, defendant on account of said consignments. And it was in regard to these alone that there was any breach of contract on the part of the insured.

He is not in default or chargeable with neglect to make returns for the-consignment on the Lizzie Gill the loss of which is now the subject of controversy.

Defendant’s counsel cites the case of Dorrville vs. the Sun Insurance Company, 12 An. 259, where, by “ the terms of the policy, the party desiring to be insured upon any particular shipment of merchandise was bound to present to the insurance company, an invoice of the goods and pay or secure the premium to the company. When this was done, and, the amount of the invoice was indorsed on the policy, the contract of insurance was complete.” As plaintiff in the case cited failed to comply, with the requirement stated he was not permitted to recover.

In the case at bar, however, there was no such stipulation in the policy-Here the stipulation was that “ the assured,shall make returns of all produce and merchandise by each boat .on which the risk terminated, and. monthly returns of all cotton on which the risk may have terminated, * * * and the premiums that shall have accrued thereon shall be paid-in cash at the beginning of every month.”

Here the insurance took effect from the date of shipment, but the 'assured was bound to make returns at a certain time and pay the premiums. If he failed to do so, the consequence was “ this insurance inay be declared void and of no effect by the insurer.”

Defendant’s counsel also cites Rafel vs. the Nashville Marine and Fire Insurance Company, 7 An. 244, where the policy contained a condition that “goods held in trust or on commission are to be declared and insured as such, otherwise the policy will not cover such property.”

In the case at bar there is no such condition in the policy, and the case cited has no application.

In Shearer vs. Louisiana Mutual Insurance Company, 14 An. 797, also cited by defendant, there was a controversy arising under a clause of the' policy which does not arise in this case, and that decision has ho important bearing on this case. The other authorities cited by defendant also appear to be inapplicable.

It is therefore ordered that the judgment herein be annulled, and that plaintiff recover of defendant $3453 97 (less three-fourths of one per' cent, the amount of premium,) with five per cent interest from first of’ March, 1870, and costs of both courts.

Rehearing refused.


source: Caselaw Access Project

author: Morgan, J.

license: Public Domain

text:
    No. 5963.
    Succession of T. B. Lee—On Rule to vacate Proceedings and Orders.
    One Perault, claimin'? to be a creditor ol the deceased, took a rule in the Second District Court of New Orleans upon the executrix to show cause why the mortuary-proceedings, and all subsequent proceedings in the succession, should not be transferred to the Second Judicial District Court for the parish of Plaquemines, upon various grounds.
    The executrix, in limine, excepted to this mode of proceeding, upon the ground that the object thereof is to annul judgments already rendered. The exception was well taken; this can only be done by a direct action.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      T. Wharton Collens, for Perault, plaintiff and appellee.

      James-H. Grover, for defendant and appellant.
   Morgan, J.

T. B. Lee died in this city on the first of January, 1875. He left a will which was duly probated and ordered to be executed by the Second District Court for the parish of Orleans. Under the will the executrix has administered upon the estate.

His succession was also opened by the public administrator for the parish of Plaquemines, but subsequent to its having been opened in New Orleans. Inventories were taken in the parish of Orleans, where he owned a considerable amount of real estate, as well as in the parish of Plaquemines, where he owned a plantation, under orders of the Judge of the Second District Court.

. One Perault, claiming to bo a creditor of the deceased, took a rule in the Second District Court of New Orleans upon the executrix to show cause why the mortuary proceedings and all subsequent proceedings in the succession should not be transferred to the Second Judicial District Court for the parish of Plaquemines, upon various grounds.

The executrix, in limine, excepted to the mode of proceeding, upon the ground that the object thereof is to annul Judgments already rendered.

The exception was well taken. The result of the plaintiff’s action would be to annul the Judgment of the court appointing her executrix, and would annul all the orders and doings had in the succession subsequent to her confirmation as executrix.

This can only be done by a direct action.

It-is therefore ordered, adjudged, and decreed that the Judgment of the District Court be avoided, annulled, and reversed, and that the rule herein taken be dismissed at plaintiff’s costs.

Rehearing- refused.


author: Mokgan, J.

text:
    No. 5999.
    The State of Louisiana vs. Milton Carodine.
    Sections eight and twelve oi the statute No. 124 oí the acts of 1874 did not in terms, or by necessary implication, repeal the law then in force in regard to larceny. The crime oí larceny, as it then existed, was merely divided into grand and potty larceny, and the Legislature simply defined what should ho considered grand ' and potty larceny, and fixed the punishment to each. But it did not repeal the ■ law under which the prisoner was indicted; it only limited the amount of punishment.
    APPEAL from the Seventeenth Judicial District Court, parish of Red River. Chaplin, J.

      W.J. Cunningham, District Attorney, and A. P. Field, Attorney General, for plaintiff and appellee.

      Scales & Bullock and J. F. Pierson, for defendant and appellant.
   Mokgan, J.

The prisoner was indicted on the sixth of September, 1873,. for larceny. The indictment was found under section 812, R. S., which declares that “ whoever shall be guilty of larceny shall be imprisoned at hard labor, or otherwise, not exceeding ten years.” He was arraigned on the thirteenth of September, 1875, and pleaded not guilty.

The crime charged against him was the larceny of a hat valued at one dollar. He. was convicted, and was sentenced to eighteen months imprisonment at hard labor in the State Penitentiary.

Before sentence he moved for an arrest of judgment. His grounds •are:

First — “ That the law under which the said indictment was found and preferred is repealed by act No. 124, session of 1874 of the General Assembly, under and by virtue and effect of which this defendant is released from the penalty of the law under which the verdict of the jury was rendered in this case and,
Second — “ Because there is no crime known to the law of the said State charged against this defendant.”

He claims that the law under which he was indicted was repealed by sections eight and twelve of statute No. 124 of the acts of 1874.

The eighth section of the act in question declares that “ the crime of larceny in the State of Louisiana shall be divided into grand and petty larceny. The larceny of any property or money or object or objects of the value of one hundred dollars or more shall constitute grand larceny, and be punishable with imprisonment in any parish prison, or at hard labor in the Penitentiary, at the discretion of the court, for not more than ten years. The larceny of any property or money or object or objects under the value of one hundred dollars shall constitute the crime 'of petty larceny, and be punishable with imprisonment in any parish prison, or in the Penitentiary, at the discretion of the court, for not more than two years, and all statutory provisions in force relative to larceny not inconsistent herewith or on matters provided for herein are hereby made •applicable to the crime of larceny as herein established.”

The only portion of the twelfth section which can possibly affect the prisoner’s case is that which provides that the act “ shall take effect from •and after its promulgation.” ' ' "

The cases relied upon by the appellant as authority for claiming-a reversal of the judgment against him are : State vs. Johnson, 12 L. 547; State vs. Clay, 12 An. 431; State vs. King, 12 An. 593; State vs. Morgan, 12 An. 712; State vs. O’Connor, 13 An. 486; State vs. Brewer, 22 An. 273.

These cases do not help him. In all of them, except O’Connor’s case, the court held that the law under which the prisoners were indicted had been repealed. In O’Connor’s case the question was whether the third section of the act of 1855, relative to crimes and offenses, was on the first of April, 1870, repealed by the act of the Legislature No. 96 of the laws of 1870, which went into effect on the day last named. The court held that it was not.

Sections eight and twelve of the statute No. 124 of the acts of 1874 ■did not in terms or by necessary implication repeal the law then in force in regard to larceny. The crime of larceny, as it then, existed, was merely divided into grand and petty larceny, and the Legislature simply defined what should be considered grand and what petty larceny, and fixed the punishment to each. But it did not repeal the law under which the prisoner was indicted. ' It only limited the amount of punishment.

Judgment affirmed.


author: Howell, J.

text:
    No. 5874.
    Charles L. Frantz vs. E. Waggaman, Sheriff, et al.
    A judgment not signed cannot be appealed from, and tho appeal must be dismissed.
    APPEAL from the Fifth District Court, parish of Orleans. Cullom, J.

      Sambola & Ducros and G. Schmidt, for plaintiff and appellant.

      Max Dinlcelspiel for defendants and appellees.
   Howell, J.

The judgment appealed from in this case is not signed, and according to the well-settled jurisprudence of this court no appeal lies therefrom.

It is therefore ordered that the appeal herein be dismissed with costs.


author: MoRG-an, J.

text:
    No. 5870.
    State of Louisiana vs. John L. Laresche.
    This is a suit by the Attorney General in the name of the State, and in which joined one John B. Henry, to suspend defendant from the office of notary public. If Henry was improperly made a party to tho proceeding, the State, by merely permitting an improper or unnecessary party to join in the action, would not be dismiss id for it. This case is appealed from on exceptions.
    Section 2520, Revised Statutes, says that recorders, notaries public, or other persons; violating the provisions of tho preceding section (2510) shall, upon conviction thereof, be liable to fines therein mentioned.
    The section (2520) provides one penalty, but does not do away with section 2505,. which declares that a notary may be suspended for any just cause. He may be fined under one section and suspended under tho other. The question therefore is, whether in this case there is any just cause.
    Defendant bases an exception upon the allegation that the penalties sought to be inflicted upon him relate to notaries exorcising their functions and regard the transfer of property in the parish of Orleans, defendant averring that the property transferred is in the parish of Jefferson. The petition, however, recites; that the property was in the parish of Orleans and Jefferson; if it be, in whole or in part, in tho parish of Orleans the exception would not be well taken,
    But section 2505, Revised Statutes, applies to all notaries throughout the State, and notaries in New Orleans are not exempt from its provisions. Therefore defendant’s exception, based on the ground that notaries in New Orleans are not liable-to suspension, is not founded in law.
    On the whole, it seems that tho exceptions are in reality answers to the suit, and they should be regularly tried upon evidence to be adduced. If tho evidence should establish the allegations, this court is not prepared to say the action is not well founded, wherefore tho case must be remanded for further proceedings.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      A. P. Field, Attorney General, and Hornor & Benedict, for plaintiff and appellant.

      John Bay and E. Sabourin, for defendant and. appellee.
   MoRG-an, J.

The State, through the Attorney General, joined by John. B. Henry, brings suit against the defendant to suspend him from hia office of notary public on the grounds that he signed, in his official capacity, what purported to be an act of sale, in which he violated section 2528 of the Bevised Statutes, which provides that it shall be the duty of every notary public, before passing any act of sale, to demand, a certificate from the register of conveyances, showing that the vendor had not alienated in any other way the property about to be sold by Mm, averring that had he obtained such a certificate it would have appeared that the vendor had no title to the property conveyed in the act, complained of.

Because he violated section 2524 of the Bevised Statutes in not registering in the office of the register of conveyances, within forty-eight, hours of the passage of the act aforesaid, the said act, and that he has. not registered the said act at any other time since.

Because he violated section 2519 of the Bevised Statutes in this, that, he executed the said act without paying or causing to be paid the State,, parish, and municipal taxes imposed upon the property sold.

Because he violated article 3370 of the Civil Code in this, that he did. not record in the mortgage office of the parish where the property so-sold by the act aforesaid was situated the act of mortgage, as is required by said article.

The defendant excepted to the petition on the grounds:

First — That the suit is penal in its character and one in which the-State alone is interested, and that the joinder therein of J. B. Henry is. illegal and unauthorized.

Second — That the District Attorney is the sole and proper party,, under section 2550 of the Bevised Statutes, to prosecute the defendant, for a violation of the section 2519 of the Statutes, and that under said, article the penalty is not a suspension from office, but a fine, and therefore that the allegations are improperly made and should be stricken from the petition.

Third — Because a violation of sections 2524 and 2528 of the Bevised Statutes and article 3370 of the Civil Code would, if proved, simply authorize an action for a fine as imposed by law and not a suit for removal from office. The exceptions were sustained and the suit dismissed.

Plaintiff appeals.

The action rests on section 2505 of the Bevised Statutes, which provides that “ all notaries shall renew their bonds every five years, and may be suspended by any judge of the Supreme Court or District Courts of the State for failure to pay over any money intrusted to them in their-. professional character, for failure to satisfy any final judgment rendered •against them in such capacity, or for other just cause.”

First — As to the first exception. If Henry was improperly made a party to the proceeding, the State, by merely joining with it an improper or unnecessary party, would not therefore be dismissed.

■ Second — Section 2519 of the Revised Statutes provides that “neither recorders, sheriffs, notaries throughout the State, nor other persons authorized to convey real estate by public act, shall pass or execute any ■act for the sale, transfer, or exchange of any real estate, unless the •State, parish, and municipal taxes due on the same be first paid,' to be •shown by the tax collector’s receipt or certificate to that purpose.” Section 2520 provides that “the recorders, sheriffs, notaries public, or other persons violating the provisions of the preceding section, shall, upon conviction thereof, be’ fined in a sum not exceeding fifty nor more than "two hundred dollars for each violation, to be recovered by the District Attorney, for the use of the free schools, before any competent tribunal.”

This last section provides one penalty, but it does not do away with ¡section 2505, which declares that a notary may be suspended for any just cause. He may be fined under the one section and suspended under the other, and the question presented in tiffs issue is, is there just cause to suspend him ?

• Third — This exception is based upon the allegation that the penalties ■sought to be inflicted upon him relate to notaries exercising their fune--tions and regarding the transfers of property in the -parish of Orleans, defendant averring that the property transferred is situated in the parish of Jefferson. But the petition recites that the property transferred was in the parish of Orleans and Jefferson. If it be, in whole or in part, in the parish of Orleans, the exception would not be well taken.

If the property be in the parish of Orleans, then the defendant contends that he is to be governed by the sections in the Revised Statutes ■which fix the penalties for the alleged misconduct, to wit: a fine. But the section 2505 applies to all notaries throughout the State, and notaries in New Orleans are not exempted from its provisions. The argument of - the defendant would, if admitted, make notaries in New' •Orleans not liable to suspension. This, we think, is not the law.

On the whole, it seems to us that the exceptions are, in reality, answers to the suit, and that they should be regularly tried upon evidence to be .¡adduced. . ,

If the evidence establishes the allegations, we are not prepared to say that the action is not well founded.

It is therefore ordered that the judgment of the District Court be •avoided, annulled, and reversed, and that the case be remanded to be proceeded with according to law, defendant to pay the costs of this áppeáb ’ • ■ ■


author: Taliaferro, 'J.

text:
    No. 5905.
    Urban Theurer vs. McGibbon, Allyn & Dubois et al.
    It has often been decided by this court that a ju figment creditor is not allowed by law to disregard an actual, although a fraudulent sale, and seize property hold under-sueli a title, but must resort to the revocatory action to have the sale set aside by-judicial decree,
    It is only in purely simulated acts, where, through deeds of transfer p urely fictitious, having only the semblance of title, parties seek to screen property from seizure,, under the pretense of sales, that creditors may seize directly, disregarding mere paper titles utterly void.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier* J.

      C. E. Schmidt, for plaintiff and appellee.

      Charles Louque, for defendants and appellants.
   Taliaferro, 'J.

The defendants, being judgment creditors of Miss. Emma Lesparre, issued an execution and caused to be seized and offered, for sale as the property of their debtor a lot of ground, with the buildings thereon, situated on Burgundy street, in New Orleans. The plaintiff enjoined the sale of the property, which he alleges he is the owner of by purchase of it from Miss Lesparre, the former owner of it. The defendants, in their answer to the petition for injunction, aver the sale alleged by the plaintiff is fraudulent and simulated; that no fixed and certain price was agreed upon, and that the vendor remained in possession of the property after the pretended sale and was in possession of the same at the time the seizure was made.

On the trial of the case in the court below judgment was rendered in. favor of the plaintiff in injunction, making the injunction perpetual* without damages, as prayed for by the plaintiff, the defendants to pay-costs.

The defendants have appealed.

The sale is one with right of redemption. Miss Lesparre being embarrassed by two mortgages resting upon her property and needing-'money to pay the taxes against it, effected an arrangement with the plaintiff by which she obtained money from him for these purposes. An authentic act was entered into by them, showing their contract to have been that of a sale with the right of redemption after a fixed time, if the money furnished her is not repaid. Under this arrangement Miss Les-parre was to retain possession during the time in which she had the privilege of redeeming, a certain sum being claimed by the vendee as-rent.

We concur in opinion with the judge a quo' that the parties entered, into an actual contract, and that the sale was not simulated. The notary before whom the act was passed swears that, as .the agent of the parties holding the mortgages on the property, he received from Theurer,- the-purchaser, in cash, the sum of twenty-two hundred dollars, with which those mortgages were paid off, and that the taxes were paid out of the .proceeds of the sale, which it appears was for twenty-eight hundred ■dollars. The testimony of Theurer, that of his book-keeper, the evidence also of Miss Lesparre and of her sister, are all clear in showing that the sale was .a real one, while there is nothing shown on the other ¡side that authorizes the conclusion that it was a simulation.

It has often been decided by this court that a judgment creditor is not •allowed by law to disregard an actual though a fraudulent sale and ¡seize property held under such a title, but must resort to the revocatory action to have the sale set aside by judicial decree. It is only in purely •simulated acts where, through deeds of transfer purely' fictitious, having only the semblance of title, parties seek to screen property from ¡seizure under the pretense of sales, that creditors may seise directly, disregarding mere paper titles utterly void.

It is ordered that the judgment appealed from be affirmed with costs.


text:
    No. 5777.
    State of Louisiana ex rel. N. Burton vs. D. Jackson.
    A clerk oí Iho District and Parish Courts lias no sufficient interest to appeal from a mandamus compelling him to deliver to the sheriff oí the parish all processes of said courts for service as required by law. The appeal must bo dismissed.
    APPEAL from the Thirteenth Judicial District Court, parish of Car-rol. Hough, J.

      Montgomery & Delony, for relator and appellee.

      Xeonard & Kennedy, for respondent and appellant.
   Howell, J.

A motion is made to dismiss this appeal on the ground, •among others, that the appellant has no appraisable interest.

The proceeding is by mandamus to compel the clerk of the District and Parish Courts to deliver to the relator as sheriff of the parish all processes of said courts, for service as required by law. The mandamus was made peremptory, and the defendant appealed.

It is difficult to understand what interest the clerk of a court can have of an appraisable nature, in the question, or what injury he can ¡sustain, officially or otherwise, by the judgment. It must be indifferent to him what person shall fill the office of sheriff. He has only to give the writs and processes from his office to the person having the color of authority as sheriff and recognized' by the court

It is therefore ordered that the appeal herein be dismissed with costs.


author: Lodeling, C. J.

text:
    No. 4357.
    J. A. Fernandez vs. Bernard Soulie.
    This suit is brought "to recover from defendant $40,282 damages resulting irom the alleged inexecution oí a contract to give, within sixty days, a good title to a certain plantation sold, or promised to be sold, to plaintiff, and for property and improvements placed on said plantation. Defendant denies that he has failed to comply with his agreement. Ha alleges that a title was tendered to plaintiff in due time, but that objections were made to the title offered, and the plantation was abandoned by the plaintiff, who had been in possession for some time, wherefore defendant set up a claim in reconvontion for rent, for the value of certain agricultural implements, for mules, etc.
    It appears that plaintiff was a lessee of the plantation before he became a purchaser thereof.
    The evidence, shows that the plaintiff had a right to object to the title offered him, and that he gave up the plantation, which was received by the defendant.
    Practically, the only object in determining whether the instrument executed by defendant in favor of plaintiff be a sale or a promise to sell, is to ascertain whether the lease of the plantation held by plaintiff ceased to exist on the twenty-fourth of October, 1870, (the date of said instrument) or continued till the end of the year for which it had been made.
    It is evident that the parties contemplated the execution of a formal act of sale, such as is usual in the transfer of a plantation. But the contemplated sale was not carried into execution. The effect of the cancellation of the agreement between the parties was to place matters as they were before the agreement. The plaintiff, therefore, continued to be a tenant under the lease, and he owed rents during that period. The evidence, even, shows that this was the understanding of the parties.
    Notwithstanding the defendant had not furnished the plaintiff with such title as he had a right to require, said plaintiff remained in possession of the plantation. He had planted a crop and made valuable improvements on the plantation. The reciprocal claims of plaintiff and defendant, resulting from those relations of lessor and lessee, are settled, in the judgment of this court, according to the merits of each claim, as supported by the evidence.
    Certain losses for which plaintiff claims damages arc not attributable to the fault of defendant, but to a crevasse, for which the defendant is in no manner responsible, and to the act of the plaintiff himself.
    APPEAL from the Seventh District Court, parish of Orleans. Collens, J.

      Semmes & Mott and Sambola & Ducros, for plaintiff and appel-lee.

      William II. Hunt, for defendant and appellant.
   Lodeling, C. J.

On the twenty-fourth of October, 1870, the defendant ¡signed and delivered to the plaintiff the following instrument:

“ I hereby agree to sell and promise to give el good and sufficient title within sixty days and do sell unto Mr. Joseph A. Fernandez the plantation known as Monsecours, situated at Poverty Point, in. the parish of Plaquemines, with all its appurtenances, stocks, etc., for the price of thirty-four thousand dollars, of which one-fourth cash, balance one, two, and three years, with eight per cent interest.”

This act was recorded in the parish of Plaquemines on the twenty-third of January, 1871.

This suit is brought to recover $40,262 damages, resulting from the alleged non-execution of this contract and for property and improve-meats placed on the plantation. The defendant denies that he has failed, to comply with his agreement. He alleges that a title was tendered to the. plaintiff in due time, hut that on the twenty-fifth of March, 1875, objections were urged to the title offered, and the plantation was abandoned, by the plaintiff, who had been in possession for some time. He alleges, that the objections were frivolous. And defendant claimed in reconvention 18333 33 for rents, 1800, the value of agricultural implements which belonged to the place, and 8830 for mules and other movables taken from the place.

There was judgment in favor of the plaintiff for 819,818 13, with legal interest from the date of the judgment, and costs, and dissolving the agreement to sell.

From this judgment the defendant appealed, and the plaintiff has. asked to have the judgment amended in his favor.

From the record the following facts appear: Monsecours plantation originally belonged to Alexander Lesseps and August Lesseps. In February, 1867, they leased the plantation to Leon Cusaohs till January, 1870, with the right to renew the lease for one year moro. The plaintiff is a witness to this contract. He was interested in the lease and took charge of the plantation. He subsequently became the sole lessee under said contract, assuming and paying the notes executed by Cu-sachs for three years; for the last year (1870) a verbal lease was agreed upon between plaintiff and defendant.

Alexander Lesseps died in October, 1867. Bernard Soulie was appointed his executor. In this capacity he controlled the Monsecours. plantation.

In May, 1859, Alexander Lesseps, as owner of two-thirds, and August Lesseps, as owner of one-third of said plantation and of an adjoining tract of land, had mortgaged both tracts to secure the payment of their .joint and several notes, amounting to 8105,000, in favor of one Shift Norbert Soulie, through his agent, Bernard Soulie, became the owner of several of these notes, amounting to 858,000. At the time of the death of Alexander Lesseps there remained outstanding of these notes 861,252 22, 846,028 15 whereof belonged to the succession of Norbert Soulie and 815,224 04 to Shift

On the twenty-fourth of April, 1868, upon the application of the executor of Alexander Lesseps, Bernard Soulie, the probate court granted an order to sell the property mortgaged as aforesaid. August Lesseps. consented that his share of the property might be sold, and that the sheriff should make a title thereto to the adjudicatee. Monsecours was adjudicated to Norbert Soulie for 818,000, less. than the appraisement. The executor of Alexander Lesseps filed his account and tableau and distributed the price between the concurrent creditors under the first, mortgage, in accordance with the decree of this court. See Shiff vs. Succession of Lesseps, 22 An. 185. Other steps were taken to perfect the title then acquired, but it is not necessary to notice them further than to state that the sale made under the judgment obtained in the parish of Orleans was an absolute nullity, as the defendant resided in Plaquemines, and that the judgment homologating the sale on monition, by the probate court, only could cure defects or illegalities in regard to the public sale of the property of the succession; it did not affect the rights of the mortgage creditors of August Lesseps, who was alive. It did not affect •the rights of those who asserted rights dehors the title of Alexander Lesseps. It is true, as contended by plaintiff, that the interest of August Lesseps in the land could not be sold under an order of the probate court in the succession of Alexander Lesseps, and that the consent of August Lesseps that it should be thus sold could have no greatér effect than a private sale made by himself, as far as creditors having mortgages on his property were concerned. And though the first mortgage creditors, who took all the fruits of said sale, are estopped from attacking that sale, the subsequent judicial mortgage creditors of August Lesseps were not affected by those proceedings, and these mortgages, amounting to several thousand dollars, appear to rest upon the property. The plaintiff, therefore, had a right to object .to the title offered him. The objection that the title offered was from the heirs of Norbert Soulie and not from B. Soulie himself is not well'founded. We think the facts already stated show that'the plaintiff knew the capacity in which B. Soulie controlled the property, and that his engagement was to procure a title to Monsecours fox the plaintiff.

We have seen that late in March the plaintiff refused to accept- the title offered and gave up the property, which was received by the defendant. Practically, therefore, the only object in determining whether the instrument aforesaid, executed by Bernard Soulie in favor of Mr.' J, A. Fernandez, be a sale or a promise to sell, is to ascertain whether .the lease of Monsecours ceased to exist on the twenty-fourth Of October, 1870 (the date of said instrument) or continued' till the end of the' year for which it had'been made. ■

It is evident that the parties contemplated the execution of a formal act of sale, such as is usual in the transfer of a. plantation. ■ We canhdt presume the vendor intended toj sell on a credit without taking notes for the price, or that he intended to abandon the j>rivilege conferred by ■law, or the conventional mortgage usual in such transactions. . And it is well settled that.when parties agree to have their contract reduced to writing, the contract is not complete until the deed has' been signed by both parties. 3 M. 348, 527; 5 M. 677; 1 N. S. 422; 24 An. 433.

“La redaction d’un acto est'une .'condition suspensive du contrát.7 • 5 Boileux C. N., page 562. . / . .

In Macdonald vs. Aubert tliis court said: “We understand article 2437 to mean that a promise to sell, when the thing to be sold and the price of it are agreed upon, is so íar a sale that it gives to either party a right to claim, recta via, the delivery oí the thing or payment of the price, but such a promise does not place the thing at the risk oí the promisee, nor does it transfer to him the ownership or dominion of it. If,;by consent of both parties, a promise to sell is canceled, such an agreement could not be received as a retrocession of the property, and third persons, having a general mortgage recorded against the prom-isee, would have acquired no right or lien on the same, because it never belonged to their debtor.” 17 La. 451.

The effect of the cancellation of the agreement between the parties was to place matters as they were before the agreement. The plaintiff, therefore, continued to be a tenant under the lease till the thirty-first of January, 1871, and he owed rents during that period,

The correspondence between the parties subsequent to the date of the agreement fully sustains this view of the case. On the fourteenth of December, 1870, Mr. Soulié wrote to the plaintiff, demanding the payment of the rents duo up to the, thirty-first of January, 1871, and informing him that he was then prepared to transfer the plantation on the terms agreed upon. On the thirtieth of December Mr. Fernandez wrote to Mr. Soulie, acknowledging the receipt of his account accompanying the above letter. He says: “J’ai regu votre compte m’indiquant le montant que je vous dois au premier Janvier, 1871, soit $5493 87, pour balance ele loyer de l’habitation de Monsecours, plus les intéréts jusqu’a ■oette d&te. Dans ce compte j’ai relevé une légére erreur a mon prejudice dans le calcul des intéréts sur deux millo piastres du vingt-huit Fev-rier, 1870, au premier Janvier, 1871 - * ce qui fait une difference de $26 66 dans les intéréts. 'Yotre compte se trouvc réduit a $5917 21, chiffre, qui je l’espére, sera trouvé correct par vous.”

Notwithstanding the defendant had not furnished the plaintiff such a title as he had a right to require, the plaintiff remained in possession of the plantation. He planted a crop and made valuable improvements on the plantation. In consequence of a crevasse on an adjoining plantation Monsecours was inundated, and Mr. Fernandez abandoned the place. He claims to be reimbursed among others the following sums: Three thousand dollars to pay laborers from the first of January to the first of May; $4000 to pay overseer for the year 1871, employed by himself; $540 to pay Ms boiler for 1871; $360 for assistant engineer, and $6700 -for seed cane, which he used in planting in 1871. These losses were not attributable to the fault of Mr. Soulié, but to a crevasse for which Mr. Soulié was in no manner responsible, and to the act of the plaintiff himself. The charge fox $500 for repairs is also disallowed, as under the lease it had to be borne by the lessee.

But the value of the draining machine, $9500, of the draining canal, $2000, and of the lands cleared, $1000, must be paid by the defendant. They were ameliorations added to the property, which the owner has kept. No one should enrich himself at the expense of another. C. C. article 508; 16 La. 414; 3 Rob. 317; 6 Rob. 211; 12 R. 44 and 255; 2 An. 348; Beard vs. Morancy.

The evidence sustains the claim of the defendant for $5943 87, acknowledged by Fernandez in the letter already alluded to, and also the ■claim for $800, which is admitted to be just in the plaintiff’s brief.

It is therefore ordered and adjudged that there be judgment in favor of the plaintiff against the defendant for the sum of $12,500, subject to a credit of $6743 87, with five per cent interest thereon from the fourteenth of June, 1871, and costs of the lower court. It is ordered that the costs of this appeal be paid by the plaintiff and appellee.


author: Moroan, J.

text:
    No. 5378.
    State of Louisiana vs. John Harper and Peter Linn.
    The law having declared that crimes such as the defendants were charged with should be tried by the Superior Criminal Court, it matters not how the case came to that court from the First District Court. It is sufficient to know that the case was in the court, and the only court having jurisdiction over the defendants. The route by which it got there is not of any consequence. It is not seen how any of their rights were invaded, or how they were deprived of any safeguard guaranteed to them by the law to make good their defense.
    It is not necessary that any plea or issue should have been joined with them in the Superior Criminal Court. The issue was joined when they pleaded to the information filed in the First District Court.
    The crime with which defendants stood charged was improperly designated in the motion to docket and fix the case for trial, but it is not seen how this injured them. They were only tried as to the charge on which they were arraigned, and this was all they could ask.
    Defendants are certainly not in the custody of the First District Court, and the jurisdiction of the Superior Criminal Court attached not from the transfer of the cause, but from the act which took them out of the jurisdiction of the First .District Court and vested jurisdiction in the Superior Criminal Court.
    This court cannot see in what the proceedings, or any one of them had before the Superior Criminal Court, after the transfer of the ease thereto, were erroneous, illegal, or void.
    APPEAL from the Superior Criminal Court, parish of Orleans. Atocha, J. Criminal case.

      John McPhelm, District Attorney, and A. P. Field, Attorney General, for plaintiff and appellee.

      W. W Howe, appointed by the court, for defendants and appellants.
   Moroan, J.

The defendants were proceeded against by information •filed in the First District Court of New Orleans, charged with breaking and,, entering a shop in the night time with intent to steal. They were arraigned before that court and pleaded not guilty. The information was filed on the eighth oí April, 1874. They pleaded to it on the ninth of the same month.

On the fifteenth of April, in the Superior Criminal Court, the following-motion was made:

“ On motion of A. P. Field, Esq., Attorney General of the State of Louisiana, it is ordered that the following ease he entered, docketed, and filed in the Superior Criminal Court for the parish of Orleans: No. 49. The State of Louisiana vs. John Harper and Peter Linn, charged with the crime of murder.”

Notice of trial was served upon them. They were also served with a copy of the information which had been filed against them and with the jury list.

They were tried and found guilty on both counts. Before sentence a nolle pros, was entered on the second count (larceny), and they were sentenced to seven years imprisonment at hard labor.

They appeal.

Their counsel assign as error apparent on the face of the record:

First — That the Superior Criminal Court tried and rendered judgment against them, although no indictment had ever been found or transferred to that court, nor had any information charging them with the offense of breaking and entering a shop been filed in, or transferred to said court against them, nor any plea or issue made or joined with them in that court, or transferred thereto.

The act No. 124 of the session of 1874, creating a Superior Criminal Court, provides (section four) that “on motion of the Attorney General or District Attorney, or attorney acting for either of them, the record in all cases now pending or untried in the First District Court, over which said Superior Criminal Court shall have exclusive jurisdiction, shall be transferred to said Superior Criminal Court, and the Superior Criminal Court shall have power to command the clerk of the First District Court to do such acts as may be required in furtherance of this act.”

The law having declared that crimes, such as the defendants were charged with, should be tried by the Superior Criminal Court, how the case came to that court from the First District Court, whether it was on motion of the Attorney General in the First District Court, or whether the clerk of that court had been commanded to send up the information by the judge of the Superior Criminal Court, or whether the papers were presented by the Attorney General, matters not. It is sufficient for us to know that the case, was in the court, and the only court having jurisdiction over them. The route by which it got there we are indifferent about. Neither do we see how any of their rights were invaded by the mode of proceeding which -was adopted, or how they wore deprived of any safeguard guaranteed to them by the law to-make good their defense. And this we think necessary to entitle them to our protection. Nor was it necessary that any plea or issue should have been joined with them in the Superior Criminal Court. The issue was joined when they pleaded to the information filed in the First District Court.

Second — They complain that the motion of the attorney, which we have quoted, “is not an order to transfer any cause to the Superior Criminal Court, much less is it an order to transfer thereto the issue formed in the First District Court for the parish of Orleans by the information and the plea of not guilty as found in the record, which issue was formed and is pending in the First District Court.”

There is no case pending against them in the First District Court. The proceedings instituted against them there were, by the law, transferred to the Superior Criminal Court, which court, after the passage of that law, was the only court which could try them. The issue was already made up before the case was placed on the docket of the Superior Criminal Court, and there was none other to make. As regards the question of transfer, we have disposed of that in what we said upon the first error assigned.

Third — That “ the order to ‘ docket, enter, and file’ in the Superior Criminal Court an ‘ information ’ or a ‘charge of murder ’ ágainst John Harper and Peter Linn, whether by said names were intended these appellants, or some other persons of the same name, could lay no legal foundation for trying, convicting, and sentencing the appellants upon a charge of 1 breaking and entering a shop in the night time, with intent to steal.’ ”

The crime with which the defendants stood charged was improperly designated in the motion to docket and fix the case for trial, but we do not see how this injured them. They were only tried on the charge upon which they were arraigned, and this was all they could ask.

Fourth — That “if the Superior Criminal Court have jurisdiction of the crime for which appellants have been sentenced, it never acquired jurisdiction of the cause or issue respecting said crime, to wit: the issue made by the plea of not guilty in the First District Court, nor did it ever acquire jurisdiction of the parties defendant in said issue, who are still, in contemplation of law, held by the order of the First District Court remanding them to custody after said plea of not guilty was made.”

They are certainly not in the custody of the First District Court, and ■the jurisdiction of the Superior Criminal Court' attached not from the transfer of the cause, but from the act which took them out of the .jurisdiction of the First District Court and vested' jurisdiction in the ¡Superior Criminal Court.

Fifth — That “ the proceedings set forth in the record as occurring in the Superior Criminal Court after the fifteenth of April, 1874, (when the order to docket and fix their case for trial was made), whether they are considered with reference to the ‘information’ or charge of ‘murder’

‘ filed ’ ‘ on that day,’ or with reference to the issue formed by the plea of not guilty made by defendants in the First District Court, are equally erroneous, illegal, and void.”

The “ proceedings ” after the date stated consist in a notice of trial, served upon them; of a copy of the list of jurors impaneled to serve before the Superior Criminal Court during the April term thereof; the-appointment of counsel to represent them upon their stating that they had n.o means to employ counsel, and the continuance of the ease in order to give them time to prepare for trial; the service on them of a-copy of the list of jurors impaneled to serve before the Superior Criminal Court during the May term thereof; their being brought into court - for trial; the impaneling of the jury; the verdict against them, and their sentence.

-We cannot see in what these proceedings or any of them are erroneous, illegal, or void.

We have thus examined all the grounds assigned as error by the defendants, and our conclusion is that they are not sufficient to authorize-us to reverse the action of the district court.

.Judgment affirmed.


text:
    No. 5710.
    State of Louisiana vs. J. J. Daniel.
    The title oí Act No. 71 oí the Legislature, approved March 23, 1871, sufficiently covers the act so far as it annexes the city oí Carrollton to and makes it a part of the city of New Orleans and parish of Orleans. The annexing of the territory of the city of Carrollton to the parish of Orleans and the city oí New Orleans necessarily effected the change oí the limits of the respective parishes, and such change was constitutionally effective by the terms used in the body of • the act which make the upper line of Carrollton the upper boundary line of the parish of Orleans.
    "While the constitution directs and rectuires that the object or objects oí a statute shall be expressed in the title, it does not require that all the details and provisions of the statute should be expressed or referred to in the title. If the object - or objects of the act are expressed in the title, it is sufficient.
    APPEAL from the Second Judicial District Court, parish of Jefferson. Pardee, J. Criminal case.

      A. P. Meld, Attorney General, and A. G. Brice and JET. C. Castellanos, for plaintiff and appellee.

      B. King Cutler, for defendant and appellant.
   Howell, J.

The defendant appeals from a judgment sentencing hint to imprisonment at hard labor for life in the State Penitentiary. He was indicted by the grand jury of the parish of Jefferson on the sixteenth, of June, 1874, for the crime of murder, committed, as charged, in said parish on the twenty-first of December, 1873, on Joseph L. Coke, and was tried and convicted of said offense, without capital punishment, before the district court for said parish, on the fourteenth of January, 1875. On the first day of the trial, to wit: January 11,1875, he moved to quash the indictment on the grounds, among others, that the grand jury who found the indictment was not a legal body, because some of the members thereof resided in the parish of Orleans; that the said grand jury could not legally hold sessions and act as they did in the city of Car-rollton, which was, by Act No. 71 of the Legislature, approved March 23,1874, annexed to the city of New Orleans, and constitutes the Seventh District of said city, and, substantially, that the offense being- laid in the parish of Jefferson, the indictment should have been found by a grand jury composed solely of citizens of said parish and sitting therein. He also moved for a continuance of the trial, on the ground that the court before which he was arraigned was illegally sitting in the Seventh District of New Orleans, and the above act provided and required that the sessions of said court for said parish of Jefferson should be held at a place to be selected by the police jury thereof, and that said place and a court-house had been accordingly selected. He further excepted to the petty jury upon .the same grounds that he urged against the grand jury.

The district judge, being of the opinion that the said Act No. 71 was unconstitutional, overruled the motion and exception. The objection to the said act, in this respect, is that the title does not embrace the provisions which changed the limits of the two parishes and removed the parish seat of the parish of Jefferson. The title reads: “An act to annex the city of Carrollton to the city of New Orleans; to prori.de for the transfer of certain transcripts from the office of the recorder; the transfer of books, papers, documents, and property of the city of Car-rollton, and also the public schools, to the city of New Orleans; to provide for the debt of Carrollton; creating the Seventh District of the city of New Orleans and a municipal court, a sanitary district, and repealing the act incorporating the city of Carrollton.”

In our opinion this title sufficiently covers the act, so far as it annexes the city of Carrollton to and makes it a part of the city and parish of New Orleans. The annexing of the territory of the city of Carrollton to the parish of Orleans and city of New Orleans necessarily effected the change of the limits of the respective parishes, and such change was constitutionally effective by the terms used in the body of the act, which make the upper line of Carrollton the upper boundary lino of the parish oí Orleans. While the constitution directs and requires that the object or objects of a statute shall be expressed in the title, it does not require that all the details and provisions of the statute shall be expressed or referred to in the title. If the object or objects of the act are expressed in the title, it is sufficient.

It is therefore ordered that the judgment and verdict appealed from be set aside, and that this cause be remanded to be proceeded in according to law.

Rehearing refused.


text:
    No. 6033.
    State of Louisiana vs. Henry Cason.
    ¡Section O81S of the Revised Statutes does not protect the defendant in his plea of prescription of one year in harto the prosecution instituted against him for a criminal offense alleged to have been committed on the thirty-first of July, 1874. upon the indictment, which had been found within the limited time, a nolle prosequi was entered, and on the eighth of November, 1875, defendant was proceeded against by information. Thus the information which followed the indictment cannot be considered as the first charge made against him. The law was complied with when the indictment was found.
    If the prosecuting offi so.* finis that the indictment is defective, he can enter a nolle prosequi and proceed regularly, although more than a year has elapsed from the finding of the indictment to the filing of the information.
    The judge a quo erred in not permitting the counsel for the accused, on the trial of the case, to make, an argument to the jury on the subject of tho proscription of the crime, on the ground that it was not their province to decide whether the ease was prescribed or not.
    whether or not the crime charged was prescribed, was a matter of fact as well as law, and upon both the fact and the law the jury had the power to pass, and upon both the fact and the law the prisoner had a right, through his counsel, to bo heard.
    If, as the judge a, quo alleges, the hill of exceptions, as presented, does not present the Question fairly, he should not have signed it, and should have seen that the bill stated the facts as they occurrod.
    APPEAL from the Fourteenth Judicial District Court, parish of Rich-land. liny, J. Criminal case.

      C. T. Bunn, District Attorney, and j. P. Field, Attorney General, for plaintiff and appellee.

      II. P. Wells, for defendant and appellant.
   Mokgan, J.

Indictment was found against the prisoner, charging him with having, on the thirty-first of July, 1874, feloniously attempted, by threats and intimidation, to prevent one Solomon Blum from testifying in a criminal prosecution, in the case of the State vs. William Nichols. Upon this indictment a nolle pros, was entered, and on the eighth of November, 1875, he was proceeded against by information. He was convicted and sentenced to two years imprisonment at hard labor in the Penitentiary.

He pleads the prescription oí one year. Section 986 of the Revised Statutes, upon which he rests his plea, provides that “ no person shall be prosecuted, tried, or punished for any offense, willful murder, arson, robbery, forgery, and counterfeiting excepted, unless the indictment or presentment for the same be found or exhibited within one year next after the offense shall have been made known to a public officer having the power to direct the investigation or prosecution.” The limitation,however, does not apply to any person absconding or fleeing from justice.

We do not think the statute protects him. The indictment was found within the time limited by law. The information followed the indictment, and cannot be considered as the first charge made against him. The law was complied with when the indictment was found, and, as we read the law, all that is necessary in such cases is that the indictment -shall be found within one year after the offense shall have been made known to a public officer- having the power to direct the investigation •or prosecution. If the prosecuting officer finds that the indictment is defective, he can, in our opinion, enter a nolle pros, and proceed regularly; although more than a year has elapsed from the finding of the indictment, to the filing of the information. In the eases reported in 7 An. 256; 17 An. 69; 19 An. 76, 90, relied upon by the appellant, no pro•ceedings had been commenced until more than a year had elapsed from the time the crime charged against the prisoners had been committed.

It is urged that the motion in arrest of judgment should have been sustained, because it appears on the face of the information that the-offense charged is barred by the statute. If the information stood alone, the position would, probably, be correct. But we take the record as we find it, and in it we find the admission that an indictment had been found before the information was filed. The indictment, we think, took the case out of the statute of limitations. The same remarks apply to the case in 23 An. page 433.

On the trial, and when the counsel for the prisoner was addressing the jury, and while he was reading section 986 of the Revised Statutes, he was stopped by the judge and was informed that he would not be permitted to make an argument to the jury on the subject of the prescription of the crime, as it was not their province to decide whether the case was prescribed or not. At least this is what is stated in the bill of exceptions which we find in the record. The judge, it is true, says that he does not think the bill as presented states the question fairly. If so, he should not have signed it. He should have seen that the bill stated the facts as they occurred; but we are satisfied, from his •own statement, that the fact is substantially as stated.

In this particular he erred. ' Whether or no the crime charged was prescribed was a matter of fact as well as of law, and upon both, the facts and the law the jury had the power to pass, and upon both the facts and the law the prisoner had a right, through his counsel, to be heard.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be avoided, annulled, and reversed, and that the case be remanded to be proceeded in according to law and according to' the views herein expressed.


author: ■ Ludeúinu, C. J.

text:
    No. 5969.
    Succession of Simon Teaulet.
    It is unquestionable that by act No. 71 oí the acts oí 1871 a portion of the parish of Jefferson was annexed to the parish of Orleans, and that said act is not unconstitutional in that respect.
    when a law is clear and free from ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.
    A PPEAL from the Second District Court, parish of Orleans. Tissot, J-

      MoPhelin & Healey, for plaintiff in rule and appellant.

      J. A. Seghers, for defendant in rule and appellee.
   ■ Ludeúinu, C. J.

Simon TSaulst died in July, 1874, in Carrollton, where he resided and where his property is situated.

His succession was opened in the Second District Court for the parish of Orleans. To effect a settlement of the succession the property was sold by virtue of an order of the Second District Court of New Orleans; and Jean Duchein, having purchased a portion of the property, refused to comply with his bid. A rule was taken against him to show cause why he should not comply. To this he answered that the succession could transfer to him no valid title to the property sold, as all the proceedings therein were absolute nullities, the court being without jurisdiction in the premises, for this, that the deceased was a resident of the parish of Jefferson, where he died and where is situated all his property. The judgment was in favor of the defendant, dismissing the rule for want of jurisdiction.

The defense and the judgment of the court a qua are based upon the hypothesis that the territorial limits of the parishes of Orleans and Jefferson were not changed by act No. 71 of 1874. In the case of the State vs. Daniel we held that the act No. 71 aforesaid was constitutional. Therefore the only question is whether or not the act No. 71 annexed any portion of the parish of Jefferson to the parish of Orleans-We are at a loss to imagine why there should be a doubt on the subject,, for section one of the act declares in unambiguous words that “ all that portion oí the parish of Jefferson being and lying below the centre of Upperline street of the city of Carrollton, commencing at the Mississippi river and extending northwardly along the centre of said street, to its terminus, and thence along the centre of the line of the New Orleans and Carrollton Railroad to Lake Pontchartrain, shall be and constitute the upper boundary line of the parish of Orleans and the city of' New Orleans, and all that portion of the city of Carrollton thus detached from the parish of Jefferson and added to the city of New Orleans and parish of Orleans shall be governed,” etc.

When a law is clear and free from ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 0. 0.13.

It is therefore ordered and adjudged that the judgment appealed from be set aside, and that the éxception to the jurisdiction be overruled, and that the case be remanded to be proceeded with according to. law.


author: Ludeling, O. J.

text:
    No. 5885.
    State of Louisiana vs. Jules Pons, alias E. Mairaire.
    Prior to the act oí 185S it was the rule that the indictment must contain an exact copy or recital of the instrument forged, when the prosecuting officer undertakes to set it out by its tenor. But since the act aforesaid the rule has been different in this State. The statute provides that “in any indictment for forgery, stealing,, embezzling, uttering, destroying, or eonceling, or for obtaining by false pretenses any instrument, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by the purport, thereof, without setting out any copy or fac simile thereof, or otherwise describing the same, or the value thereof.” li. S. see. 1019.
    A PPEAL from the Superior Criminal Court, parish of Orleans. Atocha, J.

      John McPhelin, District Attorney, and A. P. Field, Attorney General,'for plaintiff and appellee.

      J. H. Ferguson, for defendant, and appellant.
   Ludeling, O. J.

The defendant has appealed from a judgment of the-Superior Criminal Court of New Orleans condemning him to imprisonment in the Penitentiary for four years.

He assigns as error the refusal of the judge a quo to arrest the judgment on his motion, which alleged that “ the information herein filed is. defective in substance, and is such that the defendant would be unable to plead autrefois acquit or autrefois convict to a subsequent information or indictment filed for the same offense, the description of the instrument, alleged to have been forged and published as true not being such as is. required by law.” . ,

The information contained two counts. The first charged that “ one. Jules Pons, alias E. Mairaire, late, etc., feloniously did falsely make., forge, and counterfeit, and cause and procure to be made, forged, and counterfeited, a certain note for the payment of money, with intent to injure one Joseph Le Blanc and divers other persons,” etc.

The second count charged that “ after the commission of the felony in the manner and form aforesaid, the said Jules Pons, alias E. Mairaire, having in his possession a certain false, forged, and counterfeited order for the payment of money, feloniously did publish as true the said false, forged, and counterfeited order for the payment of money, he, the said ■Jules Pons, alias E. Mairaire, then and there well knowing that said ■order for the payment of money was false, forged, and counterfeited, with intent to injure and defraud the said Joseph Le Blanc,” etc.

Prior to the act of 1855 it was the rule that the indictment must contain an exact copy or recital of the instrument forged,'when the prosecuting officer undertakes to set it out by its tenor. But even then, the ■Court of Errors and Appeals of this State said: “ "While we admit the law, with its reasons, to be as stated, we have not the least desire to ■strengthen the rule by an unlimited application of it.” 8 R. 542.

Since the act of 1855 the rule has been different in this State. The statute provides that “ in any indictment for forging, uttering, stealing, ■embezzling, destroying, or canceling, or for obtaining by false pretenses ■any instrument, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by the purport thereof, without setting out any copy or fac simile thereof, ■or otherwise describing the same or the value thereof.” R. S. sec. 1049.

The motion in arrest of judgment was therefore properly overruled.

It is ordered that the judgment of the district court be affirmed.


text:
    No. 6010.
    Mrs. J. C. de St. Romes vs. Carondelet Canal and Navigation Company.
    'There is a want of diligence on the part of the plaintiff and appellant, and the failure to file a complete and duly-eertifled transcript of appeal within a proper time is imputable,to her-, The record in its present impox-foet condition was not returned to this court until several weeks after the return day of the certiorari, and no effort seems to have been made to obtain an extension of time for its return.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Fellows & Mills, for plaintiff and appellant.

      II I). & G. Ogden, for defendants and appellees.
   Howell, J.

A motion is made to dismiss this appeal, on the grounds that a fragment of a transcript was marked filed in this court on the day when the last extension for bringing up the appeal expired, and was immediately withdrawn and taken to the lower court to be completed and certified, and was not returned to this court at the date this motion was filed; that Hie record did not contain the testimony and evidence adduced on the tiial, nor the certificate of the clerk; that there was ample time to prepare and file the transcript, and the failure to do so is attributable to the apppellant.

The appeal was granted on the fourth of May, 1875, returnable ón the first Monday of the following month, June. On the second of November, 1875, an extension to the fifteenth of said month was granted by this court. On that date a further extension of five days was allowed. On the nineteenth (within the delay) a partial record (consisting of only a few loose unbound sheets, and without the clerk’s certificate,) was filed in the clerk’s office of this court, and immediately withdrawn and taken to the lower court to be completed. On the twenty-ninth of November a writ of certiorari was obtained to complete and certify the record, returnable on the first Monday of December, 1875. The certificate of the clerk to the record now before us is dated on the fourth of January, 1876, and shows that testimony is wanting, and the record does not contain several documents offered by the respective parties. The certificates of the clerk, on which the extensions and the certiorari were-issued, state the record was not completed because of the absence of testimony, and a reference to the record shows that most of this evidence was offered by the appellant.

All this shows a want of diligence on the part of the appellant, ancl the failure to file a complete and duly-certified transcript of appeal within proper time to be imputable to her. The record in its present imperfect condition was not returned to this court until several weeks after the return day of the certiorari, and no effort seems to have been made to obtain an extension of time for its return.

It is therefore ordered that the appeal herein be dismissed with costs.

Rehearing refused.


text:
    No. 5939.
    Mrs. Ann Maria Heller vs. Lochte & Cordes et al.
    whore an appeal was made returnable on the first Monday of May, 1875, and on motion of the appellant in this court the return day was extended to the first Monday of June, it was too late to filo the transcript on the first of November-following.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      S. Belclen, for plaintiff and appellant.

      JS. W. Whittemore, for defendants and appellees.
   Howell, J.

A motion is made to dismiss this appeal on the ground, among others, 'that the record was filed long after the delay for bringing the appeal expired.

The appeal was made returnable on the first Monday of May, 1875, and ■on motion of the appellant in this court the return day was extended to the first Monday of June, but the transcript was not filed until the first of November following. This was too late.

It is therefore ordered that the appeal herein be dismissed at costs of appellant..


author: Lüdeling, C. J.

text:
    No. 5937.
    State of Louisiana vs. J. D. Nelson.
    It not appearing that proper diligence had been made to get the testimony of the witnesses required, the judge a quo exercised his discretion properly in refusing a continuance.
    The exception that the first and third counts of the indictment do not set forth the alleged forged document according to its tenor was correctly overruled in view of section 1051 of the Revised Statutes.
    Section 1052, Revised Statutes, does away with the cxeepti on that the second and fourth counts of the indictment do not charge that the defendant intended to defraud any person or corporate body.
    APPEAL from the Sup erior OriminalCourt, parish of Orleans. Brauglm, J. Criminal case.

      John MoPhelin, District Attorney, and A. P. Field, Attorney General, for plaintiff and appellee.

      Alex. Dalsh ebner, for defendant and appellant.
   Lüdeling, C. J.

The defendant has appealed from a judgment sentencing him to hard labor in the Penitentiary for two years for forgery.

Attachments were asked for against three witnesses for defendant after one continuance had been granted to procure their attendance, and the ■court refused to continue the case for that purpose. Prom the affidavit filed it appears that one of the witnesses resides in the State of Mississippi, and it does not appear where the other two live. Proper diligence to get the testimony of the witnesses does not appear to have been used. "We think the judge a quo exercised his discretion properly in refusing the continuance.

The second bill of exceptions complains that the first and third counts of the indictment do not set forth the alleged forged document according to its tenor, and that the second and fourth counts do not charge that the defendant intended to defraud any person or corporate body.

These objections were properly overruled. Section 1051 of the Revised Statutes provides that “ whenever it shall be necessary to make any averments in an indictment as to any instrument, whether the same consists wholly or in part of writing, print, or figures,'it shall be sufficient to describe Bitch-instrument by any name or designation by which the same may be usually known, or by the purport thereof,” etc. Section 1052 declares it shall be sufficient to allege that the defendant did the adt with intent to defraud, without alleging the intent of the defendant to defraud any particular person.”

It is therefore ordered that the judgment of the lower court be affirmed with costs.


author: Litdeling, C. J. MobgaN, J.

text:
    No. 5910.
    State of Louisiana ex rel. Elza B. Mentz vs. Charles Clinton, Auditor.
    This is an application for a mandamus to compel the Auditor of the State to issue a warrant on the State Treasurer in favor of relator. An exception was taken to the introduction in evidence of the record of suit No. 26,440 before the Superior District Court, on the ground that it was res inter alios acta.

    The relator was not a party to the suit the record of which was offered in evidence, and whether it be regarded as in evidence or not, the injunction therein granted against the Auditor can have no legal effect against one not a party to it. If any valid reason existed why relator’s claim should not be audited and warranted for, it should have been made the defense to this action.
    There is no force in the plea of the Auditor that he has no legal authority to draw warrants on the treasury when there is no money in it to pay the warrant. He is not the custodian of the moneys of the State, nor is it his duty, to pay out the moneys of the State. His duty is “to draw all warrants on the treasury for money” for valid claims for which appropriations have been made.
    APPEAL from tbe Superior District Court, parish of Orleans. Hawkins, J.

      John Bay, for relator and appellant.

      Charles 8. Bice, 2or defendant and appellee.
   Litdeling, C. J.

This is an application for a mandamus to compel the Auditor of the State to issue a warrant on the State Treasurer in favor of relator for §625, the amount due him as parish judge of the parish of St. Mary for the quarter ending thirtieth June, 1875.

The answer of the Auditor to this application is—

First — That he has been enjoined from paying §60,000 of the §132,000 appropriated by the General Assembly for salaries of parish judges; that the amount of the appropriation not enjoined is §72,000, being at the rate of §1200 for each parish judge; that he had already issued one warrant to relator for §625, being for the quarter ending thirty-first March, 1875, and that this amount covers what is coming to relator out of the amount not enjoined for the quarters ending thirty-first March and thirtieth June.

'Second — That there is no money in the treasury against which said warrant could be drawn, and that he had no legal authority to draw warrants on the treasury when there is no money in the treasury to pay the same.

It is admitted that the facts in the petition are true. It is further admitted that the relator has received a warrant for the first quarter of his salary.

Record of suit No. 26,440 of the Superior District Court was offered in evidence and was objected to on the ground that it was res inter alios, acta. The objection was overruled, and the evidence was received; and a bill of exceptions was taken to the ruling. The relator was not a. party to the suit the record of which was offered in evidence. Whether it be regarded as in evidence or not, the injunction therein granted against the Auditor can have no legal effect against one not a party to it. If any valid reason existed why the claim should not be audited and warranted for, it should have been made the defense to this action.

The second reason assigned for not issuing the warrant is unfounded. The Auditor is not the custodian of the moneys of the State; nor is it his duty to pay out the moneys of the State. His duty is “to draw all warrants on the treasury for money” for valid claims for which appropriations have been made. Sections 2 and 3 of \ 174 of Revised Statutes.

This precise question was recently decided in the case of the Republican Printing Company vs. The Auditor.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of the relator against the Auditor, making the mandamus peremptory.

MobgaN, J.

There is no allegation in the answer of the Auditor that the sum claimed by the relator is not due; that no appropriation has been made to meet it; that the appropriation has been exhausted; or that it is in excess of the revenue.

I therefore concur in the decree.


author: Wvly, I.

text:
    No. 5545.
    Pierre Aurianne vs. George T. Eschbacher et al.
    .In this suit on a promissory note against the maker and two indorsers, it is proved that notice of dishonor was served on one the indorsers by delivering it to his book-keeper in his office, and on the other by delivering it to his wife in his store, he not being in. This was sufficient.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J,

      Jerome Meunier, for plaintiff and appellee.

      Kornor & Benedict and JS. Sabourin, for defendants and appellants.
   Wvly, I.

This is a suit on a promissory note against the maker and two indorsers, and from a judgment against them the indorsers, George Mertz and Ed. Erliard, haye appealed. -The objection is that notice of dishonor was not properly served. Notice was served, as appears by the certificate of the notary attached to the protest, on Mertz, by delivering it “ to his book-keeper in his office,” and on Erhar.d by delivering it “ to his wife in his store, he not being in.” We think the service of notice of dishonor was sufficient. 2 R. 119; 14 L. 494; 15 L. 113; 4 An. 483; 8 An. 136.

Judgment affirmed.


text:
    No. 5942.
    State of Louisiana vs. J. W. Callum.
    under tin' provisions of the constitution, article seventy-four, an appeal in criminal eases lies only when tho punishment of d w.th. or imprisonment at hard labor, or a line exceeding throe hundred dolla-s, is actually imposed. Ho penalty haying been imposed in this ease, the appeal must be dismissed.
    APPEAL from the Twelfth Judicial District Court, parish of Winn. Taliaferro, J. Criminal case.

      Daniel B. Gorham, District Attorney, and A. P. Field, Attorney General, tor plaintiff and appellant.

      8. M. Briján and George Wear, for defendant and appellee.
   Howell, J.

A motion is made to dismiss this appeal on tho ground that this court has no jurisdiction of the ease, the State having appealed from a judgment quashing the indictment found against the defendant.

Under the provisions of the constitution (article 74) an appeal in criminal cases lies only when tho punishment of death or imprisonment at hard labor, or a fine exceeding three hundred dollars, is actually imposed. No penalty was imposed in this case.

It is therefore ordered that the appeal herein be dismissed.


author: Wyly, I.

text:
    No. 6076.
    State of Louisiana ex rel. Attorney General and F. E. Dumas vs. Thomas Carey.
    After issue joined, and after tlio ease had been set down for trial on the summary docket, and on tho day fixed for trial, the eourtgranted a special jury to plaintiffs, and the defendant feeling aggrieved, because illegally delayed in the vindication of his legal right, took a bill of exceptions. The exception was well taken. At that stage of the ease tho supplemental petition of plaintiffs calling for a special jury should not have been entertained, and the order should not have'been granted.
    The authority of the Governor to remove a tax collector and appoint a successor is no longer an open auestion.
    APPEAL from the District parish of Orleans. Haw-khte,J.

      'Charlee S. Bice and, William B. Whitaker, for-relator and appellant.

      John B. Cotton and Alfred Slum), for respondent and ap-pellee.
   Wyly, I.

In this controversy under the intrusion act for the office of tax collector of the Third District, parish of Orleans, Francis E. Dumas, joined as plaintiff with the State, appeals from the judgment in favor of defendant deciding the latter is entitled to said office.

After joinder of issue, and after the case was fixed for trial', plaintiffs filed a supplemental petition praying for a special jury. ' Tire court granted the order, and continued for three days the case, to enable such jury to be drawn pursuant to an order to that effect directed to the commissioners for drawing juries in the parish of Orleans.

The sheriff’s return on the order to the commissioners to draw the jury stated that he had not been able to find and serve the commissioners within the delay allowed by the court for the drawing and summoning of the special jury. Thereupon plaintiffs moved for another order and further delay to obtain a special jury. The court having refused it, and ordered the trial to proceed, plaintiffs took a bill of exceptions.

In the meantime the defendant had taken a bill of exceptions to the ruling of the court granting a special jury while the case was standing on th'e summary docket for trial on that day, pursuant to a previous fixing.

Both of these bills of exceptions are urged upon the attention of this court. We will consider the first, which raises the inquiry whether the plaintiffs were entitled to a special jury at the stage of the case when the application for it was made.

• The intrusion law makes trials of cases thereunder summary, because it is the interest of the State that all contestations for office shall be speedily determined. It authorizes either party to call for a special jury. But the application should not be granted unless it is made pursuant to articles 494 and 495 of the Code of Practice.

Article 494 declares that “ the plaintiff who wishes for a jury must pray for the same either in his original petition, or by a supplemental petition, which must be presented before the suit be set for trial.”

Article 495 provides that “ the defendant, in order to avail himself of thesame privilege, must pray for a jury in his answer, or previous to the suit being set down for trial.”

Here, after issue joined and after the case had been set down for trial ■on the summary docket, and on the day fixed for trial, the court granted ■a special jury to plaintiffs, and the defendant feeling aggrieved, because illegally delayed in the vindication of his legal right, took the bill of exceptions now under examination.

We'think the exception was well taken, and, at that stage of the case, the supplemental petition of plaintiffs calling for a special jury should not have been entertained, and the order should not have been granted.. This disposes oi plaintiffs’ bill of exceptions, because if, as we ñnd, they were not entitled to a special jury, we will not consider the controversy which they raised in regard to it at a later stage of the case. We come now to the merits of the case. Here we find that in January, 1875, the •Governor appointed plaintiff, Francis E. Dumas, tax collector of the Third District of the city of New Orleans, and on the twentieth day of December following he removed him and appointed the defendant, Thomas Carey, the commission, oath of office, and bond of the latter being adduced at the trial.

The appellee raises the question as to the authority of the Governor to remove a tax collector and appoint a successor. This is no longer an open question. See the cases of State ex rel. Attorney General vs. Dougherty, 25 An. 119; State ex rel. Dayries vs. Yoist, 25 An. 396; State ex rel. Weber vs. Fisher, 26 An. 537.

It is therefore ordered that the judgment herein in favor of the defendant be affirmed with costs.


author: Ludeling, C. J.

text:
    No. 3022.
    Frederick B. Brand vs. James Stafford.
    It has been decided that the right to annul a judgment is not restricted to the causes specified in article 607 of the Code of Practice. But to entitle one to such relief it must be shown that it would bo against good conscience to execute the judgment and that there has been no laches or negligence on the part of the party complaining. The judgment complained of is one of nonsuit, and is the result of negligence of the plaintiff. It was his duty to know what was being done in his case in the court in which ho had instituted it. Nor does the evidence show that there was any fraudulent misrepresentation made to obtain the judgment.
    APPEAL from the Sixth District Court, parish of Orleans. Coóleij, J.

      J. H. Halsey and B. H. Marr, for plaintiff and appellee.

      T. A. Bartlette, for defendant and appellant.
   Ludeling, C. J.

In May, 1869, the plaintiff brought suit in the Fourth District Court of New Orleans against defendant, and obtained a writ of provisional seizure against the property of defendant. This was set aside on bond. On the eighth of July, 1869, the plaintiff instituted another suit in the Sixth District Court of New Orleans against the defendant for the same cause of action, and obtained another writ of provisional seizure, which was also set aside on bond. On the sixteenth of July, 1869, the plaintiff obtained an order in the Fourth District Court to compel the defendant to give another delivery bond or restore, the property seized to the sheriff.

On the twenty-second of October, 1869, the defendant filed the plea of 7is pendens in the Sixth District Court. The exception was fixed for trial, on motion, ior the twenty-sixth ol October. On that day the trial was continued to another day, as appears from the minutes of the court. On the ninth of November the exception was tried and the suit was dismissed.

In the meantime, during the vacation, the .suit in the Fourth District Court had been discontinued without the knowledge of the defendant... The present suit is to annul the judgment dismissing the suit on the plea of Its pendens, on the ground that it was obtained “ on a fraudulent and untrue representation that there was a similar suit, for the same cause of' action, pending in the Fourth District Court.” It has been decided that the right to annul a judgment is not restricted to the causes specified in article 607 of the Code of Practice. But to entitle one to such relief it must be shown that it would bo against good conscience to execute, the judgment, and that there has been no laches or negligence on the part of the party complaining. 3 An. 046.

The judgment complained of is one of nonsuit, and is the result of the-negligence of the plaintiff; it was his duty to know what was being clone-in his case in the court in which he had instituted it. 13 An. 395. Nor does the evidence show that there was any fraudulent misrepresentation made to obtain the judgment.

It is therefore ordered and adjudged that the judgment of the lower-court be set aside, and that there- be .judgment rejecting the plaintiffs demand with costs.