text:
    No. 7369.
    N. O. City Gas Light Company vs. Board of Assessors.
    The complaint by a taxpayer of excessive valuation of his property by the Board of Assessors can not be heard in this court when it appears that he did not appeal to the lower court for the correction of the over valuation complained of.
    The paid up capital stock of the Now Orleans Gas Light Company is subject to assessment and taxation, like any property of that corporation. The value of such stock is to be ascertained from the market price or in any other manner.
    A PPEAL from the Fourth District J. Court, parish of Orleans. Houston,

      J. Ad. Rosier attorney for -plaintiff and appellant.

      Sam. P. Blanc for defendant and appellee.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiff is assessed on the rolls of 1878, for taxes to be paid in 1879, for the sum of three millions,five hundred and forty five thousand dollars. This includes real estate valued at five hundred and sixteen thousand eight hundred dollars — horses and mules at eleven hundred dollars — vehicles at nine hundred dollars — and the capital stock of the Company and values, exclusive of the above, at three millions twenty six thousand two hundred dollars. This last includes the value of the pipes, mains, metres, and a variety of tangible, corporeal property, valued at eight hundred and forty-two dollars and fifty-one cents. Thus ;—

1. Assessment of real estate.................... $516,800.00
2. animals....................... 1,100.00
3. “ vehicles...................... 900.00
4. “ pipes, mains, etc...........!... 816,542 51
5. “ capital and other values....... 2,2;9,657.49
$3,545,000. 00

The first three items are not objected to. The fourth is complained of as excessive, and the fifth as altogether erroneous and inadmissible, as fanciful, and there being nothing in the hands of the company representing it.

The complaint of excess of valuation in the fourth item cannot be heard here. A correction of over-valuation must be sought by application to the Board of Assessors, and if not granted by it, recourse must be had to the arbitration specially provided for that contingency. Gas Light Co. vs. Bd. Assessors not j7et reported. The assessment of stock and other values at over two millions is the matter in dispute. This is claimed to be not merely an over-valuation — an excessive value of something that does exist — but an imaginary value of nothing.

The assessment is justified by the defendant under the act of the legislature providing a revenue, as being necessarily included within the sixth division of the objects of taxation. Sees. Acts 1878, p. 229. It is as follows; — -AH capital invested, or employed each year in trade, traffic, merchandise, or any kind of commerce, or other business, and all investments or values of any kind (except the capital stock of banks and banking associations, whose shares are assessed in the hands of the shareholders) and all other investments and values not otherwise assessed or specially exempted by law.

Transposing parts of the sentence, the descriptive words specially to be noted are, all capital invested in any other business than trade, traffic, merchandise, or commerce, and all investments and values of any kind. Then to give special force, and impart a supreme importance to the last named objects of taxation, after a particular exception is inserted, the language already used is repeated with a significant addendum — all other investments and values not otherwise assessed or specially exempted by law. The language is all-embraciDg. Its comprehensiveness cannot be increased. The plaintiff insists, it is not comprehensive enough to include the imaginary value of a franchise, and that no language could be.

The plaintiff’s charter relates that the original Oompany had a paid eapital of $1,980.000.00. The legislature created a rival company, which was intended to engulf this, and named it the Orescent City Gaslight Oompany. One company sued the other, and the result (Crescent City Gaslight Company. v. N. O. Gaslight Co. 27 Annual, 138) was that each found its interest would be promoted by a consolidation. A treaty was made, and the Orescent City company, in consideration of the substantial bonus of one million and a quarter of dollars in stock, surrendered to the New Orleans oompany its exclusive right to make and vend gas for fifty years. The entire capital stock of the new or consolidated ■oompany, which retained the name of the old company, was fixed at ten million dollars, of which, three millions seven hundred and fifty thousand dollars was declared to be full paid. In plain words, the plaintiff considered the exclusive right to make and vend gas. for fifty years, of which it was about to be deprived, was worth a million and a, quarter of its stock, and it purchased that monopoly, privilege, franchise, with that amount of stock. The company gave more than that for this franchise, for by the consolidation, the holders of the new stock owned the tangible property of the old company proportionately. The franchise then was property, and it was a value. Nothing is better settled, says Burroughs, than that the franchise of a private corporation * * is property, and of the most valuable kind, as it cannot toe taken, for public use even, without compensation. Taxation, 167. Attorney Gen. v. Bank of Charlotte, 4 Jones Eq. (N. C.) 287.

Franchises, says another accepted writer, like every other thing of 'value and in the nature of property, within the State, are subject to the power of eminent domain, and any of their incidents may be taken away, or themselves altogether annihilated by means of its exercise. Cooley Const. Lim. 281. The relinquishment of the power of taxation will never be presumed. Those who claim that it has been relinquished, as to certain property or franchises, must shew it by express grant in explicit terms, and not by implication or doubtful intendment. Burroughs, Taxation, 113. Speaking of corporations ahd the right to tax them, the same writer says; — these artificial persons may be made to contribute to the support of the government in which they exist, and the tax may be imposed on the franchise, or the property of a corporation, or both. When imposed on its franchise the amount of the tax may be measured by its capital stock, either at par or at its nominal value, or by dividends, or it may be a specific amount. Ibid. 165. A tax on a corporate franchise may or may not be just or politic, but that it is within the power of the legislature to impose it cannot successfully or reasonably be questioned.

There were three and three quarters millions of dollars of capital stock paid in, and this was substantial property. The U.'S. Supreme court so denominated it, in saying ; — the capital stock paid in constitutes the fund raised by the corporators, with which the institutions began and carried on the particular business in which they were engaged. The injunction of the charters, which required this capital to be paid in,, made it necessarily substantial property. Bank tax Case, 2 Wall. 209. The terms capital, and capital stock, are in legal intendment synonymous, and are used in legislative acts as convertible terms, though strictly not of the same meaning, and our own statutes are full of evidence of the intent to tax it. Sess Acts 1856, p. 152 sec. 68. Sess Acts 1871, p. 112 sec. 22. Ibid. p. 115. Rev. Stats. sec. 307. The Act of 1877 provides when it shall be assessed, and the manner of assessing it. Sess. Acts, p. 138 secs. 11 and 23, and minute directions are given in sec. 24 to place the assessment of capital stock in the fourth column of the roll, and its value is to be ascertained from the market price of the stock, or in any other manner. This latter section was amended in 1878, so that the assessment would appear not to be restricted to the capital stock paid in. Sess Acts 1878, p. 235 sec. 3.

With what force or reasonableness can it be urged that the capital stock of the plaintiff was not intended to be taxed, or that it represents nothing? If it be meant that it is intangible and incorporeal, a ready assent is given to the assertion, but that it has a real value is attested by the rise and fall of it, and such like securities every day. The pulsations of the heart of the Paris Bourse are felt instantaneously on the banks of the Thames, and on the flags of Wall street.

The assessment in this case was confined to the capital stock full paid, and the authority to make it has been vindicated. The lower court so adjudged, and its judgment is affirmed.

On Application eor Rehearing.

The Revenue law of 1878 (Sess. Acts, p. 234) has taken personal property out of the dominion of arbitration, and therefore we erroneously said, a correction of over valuation must be sought by application to the Assessors, and if not granted, recourse must be had to the arbitration specially provided for. That is still true of real estate, but since the Act of 1878, it is true only of that.

We see no other error in our former Opinion, and none in our decree.

The rehearing is refused.


source: Caselaw Access Project

author: Spencer, J.

license: Public Domain

text:
    No. 7191.
    Jefferson and Lake Pontchartrain Railroad Company vs. the City of New Orleans.
    The Boards of Drainage Commissioner's of the various districts under the act No. 165 of 1858 are authorized to enter on any private land and dig and construct any canal that may be useful or necessary to drain and reclaim the land in those districts, subject to claims for compensation on account of any damage caused by such canal to tho owners of the land on which it is dug.
    Whore the owner of land, being fully apprised of the projected canal, fails to have his compensation for damages fixed, as provided for by section four of the act of 1853, before the work is begun, and makes no opposition to the completion of the canal, he thereby forfeits his claim to previous compensation, and all right to an injunction on the use of the canal.
    A claim for damages by the owner of the land for the wrongful cutting of the drainage canal is prescribed by two years from the time the lan$ was actually occupied and used for the construction of the works.
    Act No. 33 of the Legislature of 1861, amending act No. 165 of the year 1858 is not unconstitutional.
    APPEAL from the Sixth District Court, parish of Orleans. Bightor, J.

      Geo. L. Bright for plaintiff and appellant.

      JS. Howard, MoCaleb, city attorney, for defendant and appellee.
   The opinion of the court was delivered by

Spencer, J.

The plaintiff alleges its ownership of a strip of land about two acres wide running from North Line street, Carrollton, to Lake Pontchartrain. It charges that the board of commissioners of the second drainage district (the rights, powers, and obligations whereof have been transferred to the city of New Orleans) did in 1871 “forcibly, wrongfully, and illegally enter upon said land,” and cut and excavate a drainage canal from North Line street to the lake; that it will’cost to refill said canal $75,000; that since the opening of said canal the city has used it for drainage purposes, and that said use is worth $25,000; that the city has no right to use and maintain said canal and to drain into the same, and thus trespass upon petitioner’s property.

The prayer is for an injunction restraining the city from using said canal; for judgment declaring petitioner owner of said lands ; and for judgment for $100,000, as claimed.

The city answered by general denial, and an averment that said canal was dug by authority of law, and with the consent of the plaintiff.

The court below refused the injunction, and rejected plaintiff’s demands.

The questions for our solution are :

1. Did the drainage commission have legal authority to excavate said canal on plaintiff’s land ?

2. If so, was it a condition precedent to the exercise of that right that previous compensation be made ?

8. When the owner of property required for public use permits without resistance or resort to legal remedies its occupancy and,the construction of costly public works thereon can he thereafter demand and require their demolition, and enjoin their use, upon the ground that previous compensation had not been made?

4. What is the nature of plaintiff’s action in this case, and is it barred by prescription ?

The answer to our first question will be found in the fourth section of Act No. 165 of 1858, which reads as follows :

“That the said boards of commissioners are hereby invested with all the rights and powers necessary to thoroughly drain the several drainage districts, as expressed in the first section of this act, and to that end shall have the right at all times of entering on the lands, within the limits of the districts aforesaid, and of placing therein their engines and machinery, and of freely passing over and using the same, and of digging all necessary canals and drains, making all necessary embankments and levees, and of doing all things lawful to be done, which may be useful or necessary in draining, cleaning, and reclaiming the land within said districts.
“Said boards of commissioners are authorized to cut their lands and drains through the streets and squares, and in the event of any street selected for the location of a canal being too narrow for a draining canal and a public highway, the said board of commissioners may cause said street to be widened:
“Provided, however, that any'person or corporation shall have the right, by petition addressed to any court'of competent jurisdiction, to oppose any acts of the boards in the exercise of the powers conferred, by this section on said boards, and it shall be the duty of such court summarily to hear and determine the same, after a full hearing of both parties ; and such court shall limit the action of the boards to the exercise of the powers herein conferred in carrying into effect the provisions of this act, according to its true intent and meaning, and where the same can not be done without injury or loss .to the complainant said court shall award adequate compensation.”

It would seem that language so plain needed no commentary. The proposition, urged by plaintiff’s counsel, that this act only authorized the digging of canals through the public streets and public squares is not worthy of refutation. We hold that the act did authorize the construction of the canal on plaintiff’s lands ; and, moreover, that it pointed out to it in the proviso of the fourth section the remedy, if the contemplated work would result in injury.

2. By the proviso aforesaid the Legislature made ample provision for the protection of property holders, and provided a mode of securing to them compensation for any injury resulting froto the use of their property for the public purposes contemplated. The evidence shows that the plaintiff with full knowledge of the fact that this work was contemplated, for there was much correspondence between it and the board on the subject, took no steps to have its rights ascertained, or its compensation fixed; on the contrary, this immense work was begun in 1869, and continued to completion in 1871, to full knowledge of plaintiff; and not until 1877, about six years after the completion, is this suit brought, for the objects and purposes mentioned in the beginning of this opinion.

The right of demanding previous compensation in cases of this kind is personal and facultative to the owner. If he sees proper to waive his right and forego the remedy given him by law, it is his own affair, and- he has no one to blame but himself. If plaintiff had instituted the proceeding authorized and provided by the fourth section, we think that under the constitution its compensation for injury would have first had to be paid, before proceeding with the work. But not having done so, it must be considered as having waived right to previous compensation. The fact that there were, preceding the commencement of this work, propositions and counter-propositions passed between plaintiff and the board, apparently without resulting in an agreement, does not vary the principle upon which we rest this branch of the ease.

We can not answer our third inquiry better than by quoting the following pertinent and well-considered -authorities :

High on Injunctions, g 397, says : “As in -all cases of the exercise of the strong arm of equity by injunction, the right to the relief may be lost by one’s own negligence and delay in seeking protection. And toliere the owner of land over which a railway has been constructed, has stood quietly by, and neglected to insist upon compensation at the time his land was taken, and has waited until the road teas in full operation before asserting Ids rights, he will not be permitted to restrain its operation.”

And in the case of Goodin vs. Cincinnati, etc., 18 Ohio St., 169, Justice Welch, delivering the opinion of the court, said :

“Where a party stands by, as we must presume the plaintiffs to have done in the present case, and silently sees a public railroad constructed upon his land, it is too late for him, after the road is completed, or large sums have been expended on the faith of his apparent acquiescence, to seek by injunction, or otherwise to deny to the railroad company the right to use the property. Considerations of public policy, as well as recognized principles of justice between parties, require that we should hold in such cases that the property of the owner can not be reclaimed, and that there only remains to him a risrht of compensation. The injunction in the present case might hare been sought at the first known attempt, or eren threat to despoil the land, or to construct the railroad upon its line. The omission to do so is an implied■ assent. The .work being completed, the public, as well as those directly interested in the road, as stockholders and creditors, have a right to insist on the application of the rule.”

Hilliard on Inj unctions contains the same principle. At § 43 he says:

“To entitle the plaintiff to an inj motion, he must not be guilty of any improper delay in applying for relief. And this, although the application be on behalf of tho Attorney General. If a party is guilty of laches, or unreasonable delay in the enforcement of his rights, he thereby forfeits his claim to equitable relief — more especially where a party, being cognizant of his rights, does not take those steps to assert them which are open to him, but lies by, and suffers other parties to incur exp -nses and enter into engagements and contracts of a burdensome character.
“The court looks most minutely to.the time in which (the parties) have permitted the matter to proceed, and will not allow them to obtain an injunction in the absence of tne other party, when they have themselves, for some time, acquiesced. Acquiescence, although not conferring- a right on the opposite party, deprives the complainant of his right to the interference of a court of equity. Unless the applicant has acted promptly, he is held to hare impliedly authorised what he now objects to. Thus, where a party applies to stay operations upon a large and costly work, it should appear that he applied for an injunction as soon as he became apprised of his rights and the extent of the threatened injury.”

Our fourth inquiry is as to the nature and character of the plaintiffs demand, and the prescription applicable to it. It will be seen by our synopsis of the allegations and prayer of plaintiff’s petition, that so far as relates to the money demand, it is in damages for the “ forcible, wrongful, and illegal entry” upon its lands, and cutting a canal thereon in 1871. To this demand defendant pleads the prescription of one and two years, under arts. 3536 and 2630 of O. 0. The last paragraph of .the latter article reads as follows :

All claims for land, or damages to the owner, caused by its expropriation for the construction of any public works, shall be barred by two years prescription, which shall commence to run from the date at which the land was actually occupied and used for the construction of the works.”

Plaintiff’s action clearly falls within the scope of this article, and his action is barred. So far as plaintiff seeks to make its action petitory, it is sufficient to say that the act of 1858, under which the canal was dug, does not contemplate vesting in the board of commissioners or city the fee, but only a right of servitude of drain through plaintiff’s lands. The city asserts no right of ownership in the soil, and the. decree herein in no manner affects plaintiff’s ownership thereof.

It is further objected by plaintiff that the. act of 1861, No. 33, (amendatory of the.act 165 of 1858) whereby the limits of the Second Drainage District now extended, to embrace plaintiff’s lands, is unconstitutional as violative of arts. 115 and 116 of the constitution of 1852. We have lately had occasion in the case of Hammond vs. E. Lesseps et al., ante 337, to consider objections of this kind to the constitutionality of laws. Under the rules there stated we are not prepared to say that the act is open to the objections made.

The judgment is affirmed with costs.


author: Manning, 0. J.

text:
    No. 7310.
    The State vs. Hamp Johnson.
    Thera is no law requiring that three days should intervene between, a verdict in a criminal ease and the judgmeiit pronounced thereon.
    REPEAL from the Parish Court of Iberville. Cole, J.

      J. Hamilton Bills, District Attorney pro tem., for the State.
    Defendant unrepresented.
   The opinion of the court was delivered by

Manning, 0. J.

The accused was convicted of an assault with a dangerous weapon, and sentenced to six months confinement at hard •labour. Eight days after the verdict had been rendered, the prisoner’s counsel moved to set it aside on the ground (we quote the language of the motion literally) “ that said verdict is illegal and irregular, having been pronounced anl rendered without giving him three judicial days within which to apply for a new trial.”

A verdict is necessarily the conclusion of a trial, unless in Iberville they reverse the order, and have the trial after a verdict of conviction. The complaint is, that the accused did not have three judicial days, before the verdict was rendered, in which to apply for a new trial. Until the verdict was rendered, the accused could not know what was the result of his trial, and therefore could not know whether he would need a new one.

Possibly there was some confusion of ideas about verdicts and judgments, and the two were confounded or supposed to be identical, and it may be that the motion was intended to mean, that three days should intervene between a verdict in a criminal case and the judgment pronounced thereon. We know of no law to that effect. The Oode of Practice does not regulate criminal trials.

Judgment affirmed.


author: Manning, C. J.

text:
    No. 5865.
    Charles Maduel, Executor, et al. vs. Jules Tuyes et al.
    ~Where real estate is purchased by A, and actually is and continues to be liis, but the title to which is taken in the name of A, and A gives a letter of secret instructions to A, in virtue of which A, after the death of A, transfers the property to G who consents to disburse a part of the revenues of the property to carry out certain lawful purposes of A set forth in his secret instructions, the heirs of A may nevertheless recover from A and 0 the property thus conveyed or the value thereof. The letter of instructions having no authentic form, can not be construed as a donation inter vioos, and there being no proof of its having been designed as an olographic will, it follows that the property which was sought to be disposed of by it, ram fined a part of A’s succession.
    ^PPEAL from the Fifth District Court, parish of Orleans. Oullom,

      G. L. Bright for plaintiffs and appellees.

      J. Act. Rosier for J. Leveque, defendant and appellant.
   The opinion of the court was delivered by

Manning, C. J.

Charles Maduel, as executor of J. M. Caballero, -and Maria Conte, assisted by her husband, as sole heir of Caballero, sue the defendants for the recovery of a lot and building thereon in this-city, and for the rents thereof from Caballero’s death, May 1,1866, at two hundred dollars a month. They allege that Caballero was the owner of the property, though the title was nominally in Tuyes, who made a simulated transfer of it to Fernandez y Lineras for the stated price of $17,000.00, one third cash, and the residue on a credit of one- and two years — that Tuyes had secret instructions from Caballero to transfer the property after his (Caballero’s) death to Charles J. Leveque for certain purposes, and that Tuyes, Fernandez, and Leveque fraudulently confederated to deprive Caballero’s succession of it. The plan is-alleged to be this; — Tuyes sold to Fernandez, a friend of Leveque, as above stated, but the latter was the beneficiary of the sale, and received the price, and sold the notes, which represented two thirds of it, the-object being as is alleged to incumber the property with a mortgage aiid vendor’s lien. Judgment was sought against these three parties* but in the event it should appear that the mortgage notes are a real and ■valid incumbrance on the property, it is prayed in the alternative the property can not be returned to the succession unincumbered, that they be condemned to pay seventeen thousand dollars with interest, and the rents. Judgment was rendered below, on the verdict of a jury, against Tuyes and Leveque for the full amount claimed. A plea of Fernandez: to the jurisdiction was sustained. Tuyes and Leveque appeal, and in this court a discontinuance has been entered as to Tuyes.

The answers are the general issue, and a special denial of MariaConte’s quality of heir. Her status as heir was fixed ny the decree of this court in Suc. Caballeros v. His Executor, 24 Annual, 573.

It is not pretended that the legitime of the heir is diminished or affected by the disposition of this property, made by the ancestor. It was bought really by Caballero, whose secret instructions to Mr. Tuyes* dated April 5, 1865, were to pay to Madame Toussaint, mother of his late wife, seventy dollars monthly out of the rents, after deducting all expenses for taxes, repairs, etc., and if funds were in hand, to pay the annual expenses of keeping the tomb in which were deposited the remains of his wife and children, including four dollars a month to the keeper of the cemetery, and upon Caballero’s death, to sell the property, and deliver the proceeds to Charles Leveque, to whom Caballero had given instructions wliat to do with it. Levequo discloses, in his-testimony, that these instructions were to keep the tomb in order, to-ornament it, to “ defend Caballero’s honour from vile persons, and to-make charity.”

There would seem to be no good reason why a gift, coupled with such conditions, should not be valid when the legitime of the heir is not-affected by it. The object of the donor was honourable. There was, ¡nothing illegal, immoral, or contrary to public policy in the purpose oí dabal'ero, and unless the manner in which he attempted to effectuate it was illegal, the donation must stand. It will be perceived we are treating the transaction as if tlis evidence of it were a deed from Caballero to Tuyes, or to Leveque, by which he consecrated a certain property, or the fund arising first from its rents, and afterwards from its sale, to specified objects, in themselves licit and not reprobated. Such donation is not in fraud of an lieir, who has got all that the law says she must have.

The destination of this property by Caballero, even if it had assumed the form of a donation, was liable to revocation during his life. He had expressly postponed its operation until after his death. “I being dead, of the product of said property ” you will thus dispose, was his language. During Caballero’s life, Leveque himself rented the property from Tuyes, and paid the latter the rents. Caballero did not assume to exercise any control over it. He ha 1 conti led the trust to his friend Tuyes, and that trust was honourably and faithfully executed. The sale was made after his death, and there can be no question that a bona fide purchaser from Tuyes, either before or after Caballero’s death, would have acquired a good title against all the world. Before the sale was made, the plaintiff gave notice to Tuyes that she claimed the property by right of heirship to Caballero — the same right that she is now seeking to enforce.

The paper-writing, called ‘instructions’ of Cabellero to Tuyes, may be either a donation inter vivos or mortis causa, if it have the form of either of those instruments, and is not in other respects obnoxious to the requirements of the Code. Property cannot be acquired nor disposed of gratuitously, unless by donation in one of these forms. Civil Code, ■art. 1453 new no. 1467, although a manual gift of corporeal movables, accompanied by a real delivery, is not subject to any formality. Ibid. art. 1526 new no. 1539. Every donation of immovable property inter vivos, and of such incorporeal things as rents and credits must be made by notarial Act under penalty of imllity. Ibid. art. 1523 new no. 1536. It is manifest that -if these ‘instructions’ are-to be considered, as a donation inter vivos of the property, the want of the form imperatively prescribed strikes them with nullity. The instructions are a private and -secret letter, addressed by Caballero to Tuyes. And whatever .intentions Caballeio may have had as to the permanence of the destination of the property, there can be no question the destination was (revocable by himself at any time during his life. He had expressly directed that the property should not be alienated until after his death, and although he could not have revoked to the detriment of a bona fide purchaser from. Tuyes, who had acquired while the title was, by Caballero’s own act, in Tuyes, he could have forced the latter to convey or reeonvey to himself. The form of a donation inter vivos is wanting, and we cannot hold the instrument valid as such.

It occurred to us, while in consultation, that it might be a donation mortis causa, and as that question had not been raised in either the oral or printed arguments, we invited briefs from both counsel on that point. The counsel for the defendants at once, not only admitted but insisted that it was not a donation mortis causa, and thus the last prop was taken avray from his clients’ defence. We examined the question however, much aided and facilitated by the brief of counsel of plaintiff.

The ‘instructions’ have apparently the foim of one kind of donations mortis causa i. e. olographic wills. Of course we are not to say here that the document was wholly written, dated, and signed by the testator, since proof of that would only be furnished, if the paper had ever been offered for probate as a will, and it never has been so offered.

It would not have mattered what the document was called. The name given to an act of last will is of no importance, and testamentary dispositions may be made under any name, provided the intention to testate is apparent. Neither would it have been of any consequence that the instrument contained a dispesifion of only a part of the testator’s property. Civil Code, art. 1563 new no. 1570. It has one of the essential qualities of a testament. It was to take effect only after his death.

But if it has the form of an olographic will, the manner in which Caballero has sought to accomplish his design,is reprobated by the law.

The French authorities throw more light than our own on this question. A case at Besangon, involving the kind of disposition now before us was decided adversely to its legality ;—

La disposition d’un testament par laquelle, a pres avoir legué une partie de ses biens á un individu le testateur aponte, “Je lui remeta tout le reste de mes biens pour en disposer com me il sait, et que je lui ai dit de vive voix, ou que je lui noterai par écrit, nt’en rappoitant á sa conscience pour cela,” estnulle, comme faite a une persotme incertaine et ne conteDant pas la manifestation sufíisante de la volenté du testateur. Strey’s Code Nap. 1 vol. art. 895 no. 12.

And another at Limoges ;—

Le legs fait au profit d’un individu pour exécuter les intentions secretes du testateur, doit étre annulé coinme me désignant le veritable lógataire. En consequence le légataire apparent est tenu de restituer tout ce qu’il a regu, dans ce but, du testateur. Rep. Gen. tome 9. verbo Legs p. 48 no. 35.

And another at Metz;—

La disposition par laquelle le testateur legue le tiers ele ses biens a Fóglise on aa seminaire, a la volentó du lógataire designó dans le testament n’est pas valable. Ibicl. no. 36.

The object Caballero had in view was legitimate, and the heir could not have successfully resisted the accomplishment of his purpose, had lie sought to effect it in the mode permitted by the Code. He attempted to do in a clandestine way what he need not have been ashamed to do before the eyes of the world, and to accomplish by secret instructions what he might have done by an open and explicit declaration in a notarial Act, or by last will, and the nullity of his ‘instructions’is the penalty of his mistake.

Judgment affirmed.

Rehearing refused.


author: Manning, O. J.

text:
    No. 6847.
    The State vs. A. Depass and Alfred Baptiste.
    A party may be charged iii separate counts, in one information, of larceny and burglary. Such an information is not vicious on the score of duplicity.
    Neither the fact that two offens -s are not embraoid or denounced in the same statute, nor that they have no necessary connection or similarity, will prevent them from being charged, on separate counts, in a single information.
    The pleadings and modo of procedure of criminal prosecutions in England obtain in Louisiana, in virtue of a special statute to that effect.
    i PPEA.L from the Superior Criminal Court, parish of Orleans. Whit,/jl aker, J.

      H. N. Ogden, Attorney General, for the State.

      Cnllom c& Castellanos for defendants and appellants.
   The opinion of the court was delivered by

Manning, O. J.

The defendants are jointly charged with the crimes of burglary and larceny, each dime being charged in a separate count of the information. Upon conviction, they were sentenced to hard labour for a term of years, and Depass appealed.

It may be well to note in the outset, that this ease differs from Eord’s, 30 Annual, 311, in this — that in that case, the indictment was for burglary alone,-and contained but one count, and a conviction of larceny under it was held bad.

The appellant relies for reversal upon a motion in arrest of judgment for this cause ; — “That the indictment (information) upon which he was convicted is, upon its face, a nullity, and all proceedings thereon are necessarily void. That it contains two counts for distinct and separate offences, and therefore is insufficient for duplicity. That these offences are neither embraced in, nor denounced by the same statute* and have n 7 necessary connection or similarity, one with the other.”

The contrary has been expressly and often decided, and in one of the cases, the identical question as to the two identical crimes here charged was presented. “ Burglary and larceny may be joined in the same indictment under different counts.” Baker v. State, 4 Ark. 58. A court of very high authority thus dismisses a similar objection to that now urged ; — “It is every day’s p'.actice to charge a felony in different ways in several counts for the purpose of meeting the evidence as it may come out upon the trial; each of the counts on the face of the indictment purports to be for a distinct and separate offence, and the jury very frequently fin 1 a general verdict on all the counts, although only one offence is proved, but no one ever supposed that formed a ground for arresting the judgment.” Kane v. People, 8 Wend. 203. People v. Austin, 1 Parker Crim. 154. Another court of equal repute, considering a case, similar to this, where the first count charged burglary and the second simple larceny, and objection was made that they were distinct substantive offences, and could not be included in 1he same indictment, said it was common in practice, and there was no objection to it. Carlton v. Com. 5 Metc. 532. Com. v. Tuck, 20 Pick. 356.

The information is not then vicious for duplicity. The other ground is, that the two offences aro neither embraced in, nor denounced by the same statute, and have no necessary connection or similarity. The circumstance of inclusion in the same statute cannot be the test of legal joinder, for if that were true, all the crimes embraced in the celebrated Act of May 4, 1805, could be included in the same indictment; and as that Act embraced every crime which thereafter was punishable by our law, it would be equivalent to saying that all crimes, of whatever nature or degree, can bo included in the same indictment — a proposition, the reverse of that which the defendant’s counsel are seeking to maintain.

We suspect the latent idea in the mind of the mover in arrest is shadowed in the clause, that the two crimes have no necessary connection or similarity,” by which we will assume is meant, that they are not of the same generic class, and do not belong to the same family. Ford’s case, ut supra.

The objection is misapplied. A conviction of larceny under an indictment for burglary alone is bad, because to justify a conviction of a lesser crime under a charge of a greater, the two must be so related that the greater necessarily includes the less, as murder includes manslaughter. If therefore there were but one count in this information, and it was for burglary alone, a conviction of larceny would be reversed for error. Dinkey v. Com. 5 Harris, 126 as to convictions of lesser offences under charge of greater.

But two distinct offences may be charged in separate counts, and •a conviction of either is unquestionably regular. Nor is it necessary that they should be of the same class, in order to justify their location in the same indictment, provided each is placed in a separate count. Bishop Crim. Prac. ji 189 et seq.

The rule, that a joinder in one count of two distinct offences is bad, has exceptions ; and this crime of burglary furnishes an illustration of them, for in England the chief exceptions are in indictments for that crime. In Tuck’s case from Pickering, cited above, the ruling was that a count, charging that the defendant broke and entered into a shop with intent to commit a larceny, and did then and there commit a larceny, is not bad for duplicity. If then in indictments for burglary, there may be joined a charge of burglary and a charge of larceny in the same count, how much more can these two charges be made in two separate counts ?

The defendant’s counsel admit that such is the practice, and that “numberless decisions to that effect” are in the books, but argue that “ we must distinguish. What is good pleading therein England and the other States) may not be good pleading here. We must not lose sight of the important fact that., since 1805 Louisiana has cast off the shackles of the common and statutory law of England.”

The pleading and mode of procedure of criminal prosecutions in England is the special feature in that system that we have retained. That is the one particular shackle that Louisiana did not cast off. The Act of 1805 enacted that thereafter the great mass of offences, known and recognised as such by the common law, should not exist in this State, and that only such acts as were declared to be criminal by that, and other statutes of this State, should be deemed criminal. And it proceeded in numerous sections to declare what were crimes, and to affix punishments to their commission. It was soon found that the list was altogether too short, and in 1817 many others were added, and more since. Instead of defining these crimes, it adopted the definitions that obtained in English law, and then by a sweeping clause provided that the “forms of indictment, the method of trial, the rules of evidence, and all other proceedings whatsoever in the prosecution of the said crimes, offences, and misdemeanours, changing what ought to be changed, shall be, except as is by this act otherwise provided, according to the said common law.” Sec. 33.

The common law authorities upon all questions of procedure in criminal prosecutions are therefore our only guides in such matters. State v. Smith, 30 Annual, 846 where this subject is elaborately discussed and settled.

J udgment affirmed.


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    No. 5849.
    Ellen Murray vs. Pontchartrain Railroad Company.
    Where in. a suit tor damages against a railway company on account of injuries caused by a collision it appears that the negligence of the injured party contributed to, and was mainly the cause of the disaster, no recovery can be had by him or his legal representatives, even though it be in evidence that the servants of the company were in some degree to blame for the accident.
    APPEAL from, the Superior District Court, parish of Orleans. Hcnvkins, J.

      A. J. Lewis for plaintiff and appellee.

      Jno. A. Campbell and A. Micou fo.r defendant and appellant.
   The opinion of the court was delivered by

Manning, C. J.

Morris Murray was killed by a collision of his-bread-cart, which he was driving, with a train on the Pontehartrain Railroad on September 27,1874, and the plaintiff in the double capacity of his widow, and tutrix of his children, sues for twenty five thousand dollars as damages. The case was tried by a jury who gave ten thousand five hundred dollars, for which sum judgment was rendered.

The train was en route from the lake to its depot, and was passing up Elysian Fields street. The track is perfectly straight, and any one, at the point of collision on that street, can see the train approaching from the lake, which is four miles distant. Elysian Fields street, like Canal, has a middle ground with a street on either side. It is a double street. The Pontehartrain rail-track is on this middle ground. On one of these side streets, the Canal & Claiborne street railway has a track for its horse cars, which runs parrallel with the Pontehartrain track for some distance, but turns abruptly before it reaches Goodc.liildren street, and crosses the Pontehartrain track at a right angle. This crossing is sixty-two feet from Goodehildren street. Id was there the collision occurred.

The railroad train is due at this point at 5.29 A. M. It reached there on that morning punctually. Murray was driving his cart on Elysian Fields street — on that side street, whereon the Canal & Claiborne track is laid — and was driving on that track. His route was parrallel with that of the Pontehartrain road. His cart and the train were-going in the same direction. The view from the one to the other was unobstructed by houses or trees — was unobstructed by anything except his cart-cover, which closed in the sides as well as the top, and projected a little in front from the top. His wife was with him in the cart. They left home for the market at 4.40 A. M. by the time of their clock, and reached the crossing in a few minutes, and as they thought they were thus nearly forty minutes ahead of the time for the railway train, were not expecting it. They saw nothing, and heard nothing. As the cart reached the point of crossing, and wheeled horizontally to the railway track, Murray exclaimed, ‘ the steam ears are on us,’ and in an instant the horse plunged and was hurled aside, the cart broken, and Mr. and Mrs. Murray thrown out. He was killed. She was only a little hurt, and the horse not at all.

The railroad time guided the movements of the train, and numerous witnesses attest its correctness.' The train was there at 5.20 on that morning. The clock of the unfortunate man was wrong. The time it marked for him deceived and misled him. He reached the crossing at the moment the train was due, and his life paid the forfeit of his error.

The doctrine of contributory negligence is now imbedded in our jurisprudence, and is recognized and applied in all the States, and by the national courts. It was applied by this court in an early case wherein this company was defendant, Lesseps v. Pontchartrain R. R., 17 La. 361, and has recently been recognized, unimpaired in vigour and completeness. Schwartz v. Crescent City Railroad Co., 30 Annual, 15. The U. S. Supreme court have had occasion lately to consider how far such negligence relieves a railroad company from responsibility where, as in this case, it was urged that the company had omitted the precautions which should have been taken to avoid the collision, and have held that negligence of the company’s employees is no excuse for negligence on the part of the person injured. Chicago & R. I. Railroad Co. v. Houston, 5 Otto, 697.

The city regulations require a slackening of speed to three miles an hour, and ringing the bell, at Good Children street. The defendant’s witnesses say the speed of the train was in conformity to this regulation, and the warning of its approach was duly given. The plaintiff charges that the speed was ‘furious,’ and that the collision is attributable to the negligence of the company in not providing proper equipment of the road, by means of which the train could have been stopped. Proper brakes, and enough men to work them, and ordinary circumspection, she alleges, would have enabled the company’s employees to have stopped the train in time.

Grant all that is contended for in this respect by the plaintiff. The negligence of the deceased contributed to, and was mainly the cause of' the disaster’. It was three-fold. The mistake as to the. hour was occasioned by his implicit reliance on the correctness of his own time piece,, in regulating his starting, but he was made aware of its incorrectness while en route by meeting a horse-car on the Canal & Claiborne road, which does not commence running until 5 o’clock, and the inability to see the train was solely due to the cart-cover, which shut out the view completely. Surely, the defendant is not to be mulcted in damages because the deceased had a disordered clock, and drove in a cart which excluded the view from either side ; for it is manifest that if he had known the timo, he must have expected the train at that moment, or if he had not been unable to look without his own vehicle, he must have seen the train approaching. His course was parallel with the train. If he had g me forward sixty-two feet farther, he could have crossed at Good Children street safely, as the train would have shot by, but he was on the liorse-car track of the Claiborne road for his own convenience. It curved sixty-two feet from Good Children street. He chose to pursue that track, instead of keeping on the bed of Elysian Fields street, and turning into the street just ahead of him. He turned out of the public highway (Elysian Fields street), and crossed the middle ground, not through or on another public highway (Good Children street), but over a place which could not be traversed by a vehicle, except by keeping on the horse-car track. He had no right to be where he was, when ne met his death. He took no care nor precaution whatever. Any one crossing a railroad track is bound to use his senses — to look and to listen— before he may prudently venture across, and if the deceased had either looked or listened, he would have seen and heard the approaching train.

No recovery can be had for injuries suffered by one who, without looking carefully along the track of a railroad, walks across or along it, and is run over by a train. Steerman & Redñeld on Negligence, §40. It is culpable negligence to attempt to drive a team across the track of a railraa i in full view of an approaching train, on account of the risk of becoming entangled in the rails, even where there is apparently time to cross. Ibid. §489. It is settled, says the court of New York, that the law requires a vigilant use of eyes in looking, and the ears in hearing, upon approaching a highway crossing, to ascertain whether there is a train approaching, and that if by a vigilant use of these faculties while approaching the crossing, the vicinity of such a train may be discovered in time to avoid a collision therewith, the omission to exercise them, and thus avoid an injury, is such negligence as will bar recovery therefor, although the railroad may have been guilty of negligence contributing thereto. Davis v. Cen. & Har. R. R. 47 N. Y. 402. Aside from the fact of the. accident happening on the defendant’s own property, where the sufferer had no right to be, the failure of the engineer to sound the whistle or ring, the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for his safety. Chicago R. R. v. Houston, 5 Otto, 697. The middle ground of Elysian Fields street, unlike that of Canal and other streets of the same configuration, is the private property of this Railroad Company. It cannot be crossed by vehicles, except where streets cross it, only at the point where the Canal and Claiborne horse-cat track crosses it, and it cannot be crossed there by vehicles except by using the horse-ear track. The deceased seems to have presented a case, in which every element of contributory negligence is furnished by his own conduct.

The jury must have been misled by the charge of the judge, which was erroneous. It was, that if the accident occurred without wanton negligence of the Company, but through simple negligence, the jury was authorized to give exemplary and vindictive damages, but if the accident was unavoidable, and was not the result of the Company’s carelessness or negligence, then only actual damages could be given. We shall set aside the verdict rendered under such instructions.

It is ordered and decreed that the verdict of the jury is set aside, and the judgment rendered thereon is avoiled and reversed, and it is now decreed that there be judgment in favour of the defendant and against the plaintiff upon her demand, and that the defendant recover of the plaintiff its costs in the lower court, and the costs of appeal.

Rehearing refused.


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    No. 7437.
    Hypolite Cestac vs. Widow Florane.
    A widow who mortgages her undivided hall of a certain piece of community property thereby accepts the crmnmnify.
    The widow in community ean not, while the succession is still under administration, and before its debts are paid and her residuary interest thus definitely ascertained, execute a valid mortgage on her undivided half or any specific property of the succession. Where such a mortgage is sought to be executed by the mortgage creditor, the heirs are entitled to enjoin its execution.
    ^PPEAL from the Sixth District Court,, parish of Orleans. Rigldor,

      Frank D. Chretien for plaintiff and appellee.

      A. & W. Yoorldea for defendant,and appellant.
   The opinion of the court was delivered by

Manning, C. J.

Michel Elorane died in August 1870, leaving a will, a widow, and nine chidren, six of whom were minors. Ail the property was community. The testator devised to l.is widow the usufruct of his property, and appointed her executrix. She qualified, and was also confirmed natural tutrix to the minors.

In December 1871, the widow, as executrix and tutrix, petitioned the court for a sale'of the property, or of so much thereof as is necessary to pay over four thousand dollars of debts, and the costs and charges, and prayed a convocation of a family meeting to advised,ouehing the sale of the minors’ interests, and prescribe the terms of sale. The meeting was held, the terms of sale prescribed, the sale ordered, and fifty-six it ts of ground in New Orleans were sold in February 1872, and realized six thousand seven hundred and fifty dollars. The terms of sale were one third cash, and the residue on one and two years’ credit.

Ou February 15,1873, just as the first note had matured, B. & A. Soulié, alleging that they were creditors of the succession for $525 principal, prayed that the executrix be ordered to give security, and the order was granted. They also alleged that more than a year had elapsed since her qualification, and- that no account had been rendered by her, and prayed that she be ordered to file an account in ten days, and that order was made. We hear no more of these creditors, or of .their claim, nor was any account filed. But a few days afterwards, on February 26th., Mrs. Florane borrowed of John Shrepfer five hundred .and sixty dollars, and mortgaged to him an undivided half of a piece of ground, and on the 24th. of August 1875, she executed to Cestac, the plaintiff, her m te for one thousand dollars, and a mortgage on an undivided half of six half-squares of ground in this city, which belonged to her, the Act recites, “as having been common in goods with her late husband.”

In 1878 this note had been reduced to $910, and Cestac then sued out executory process for the foreclosure of his mortgage, when his proceedings were arrested by an injunction of Mrs. Florane, in her capacities of executrix of her husband and tutrix of her minor children, and by all the major heirs of the husband. They allege that the succession of Michel Florane is the owner of these six half squares, and that Cestac is about to have an undivided half of them sold under his mortgage— that, they are still under administration in the Second Court of Orleans —that there has never been a partition of the succession, or any part thereof, between the widow in community and the heirs, and the executrix has not made any settlement of her administration, and therefore the seizure is iliegal.

The defendant in injunction excepted that no cause of action was shewn, and no interest in the subject matter of the suit, and reserving the exception, answered by a general denial, and a special averment that the undivided half of the seized property was not under administration.

There has never been any account filed, and consequently the record does not shew what the executrix has done with the proceeds of sale of the fil'ty-six lots. Neither does it shew any action of the succession creditors, except that we have noticed. The whole inventory is only $5,102 50. The last paper filed by the executrix in the succession was on May 3,1876, She had executed the mortgage to Cestac fourteen months before.

The heirs of the succession raise the questions, whether the executrix, who is also widow in community, can validly mortgage an undivided half of any specific property of the succession, and whether the mortgage creditor can foreclose his mortgage, while the administration is pending, and sell absolutely an undivided half of the property without regard to the ultimate rights of the heirs.

Upon the dissolution of the'community by the death of one of the spouses, the survivor becomes owner of half of the community property, subject to acceptance or renunciation, which may be express or implied. Unquestionably, the widow Elorane accepted the community by mortgaging an immovable, this being one of the instances of implied acceptance given by writers as illustrative of the manner in which an acceptance is implied or tacit. Si elle liypothéquait un immeuble, ou constituait une servitude sur un bien dependant de la communauté. 2 Bellof, 206.

But while a succession is under administration, the widow in community and the heirs have no right to interfere with it, and have nothing to claim until the debts are paid, and the administration has legally terminated. Sue. Ogden, 10 Bob. 457. And there must be an administration when there are debts of the deceased to be paid, and a part of the lieirs are minors, who could only accept with benefit of Inventory. Civil Code, art. 1034 new no. 1041. It is true, even after administration is granted, beneficiary lieirs, if not opposed by creditors, may take charge of and administer the property before the administration is entirely completed, if put in possession thereof legally, and these beneficiary heirs may be sued by a creditor of the succession. Soye v. Price, 30 Annual, 93. But the succession, so long as it exists, is an entirety. As an ideal being, it takes the place as it were of the deceased, and so far as proprietary right is concerned, it is a prolongation of that of the deceased owner.

The proprietary interest of a widow in community is necessarily contingent. She owns one half of the residuum after the debts are paid. Until the debts are paid, it cannot be certainly known whether ■there will be any residuum, or if any, what portions of the property will remain to constitute that residuum. How then can she pick out a particular piece of property, or several pieces, and assuming that the sale of it or them will not be necessary to pay the debts, appropriate an undivided half to herself, and mortgage it as her own absolutely ?

The plaintiff argues that since the widow becomes responsible for ■half of the debts by accepting the community, she is also absolute owner of one half of the property. This is a non seqnitur. Her acceptance gives to the creditors two securities — that of the succession property, and that of her own. Because she becomes liable by acceptance to pay one half of the debts, it does not follow that the creditor loses his primary right against the succession property.

Nor can the law intend that where a person holds property in several capacities — for instance as widow in community, as executrix, and as tutrix — she can alienate it in one capacity to the detriment of the-others. It is no answer to say that she alienates as executrix when she-sells for the payment of debts. That is not her voluntary alienation, but an alienation in whieh she is but an instrument of the law. The-creditor is not hurt by such alienation, for it is made to pay him. The-heir is not hurt, for like the widow in community, he is entitled only to what is left after the debts are paid.

This case is almost identical with Hickman v. Thompson, 24 Annual, 264 and 26 Annual, 260. There as here, the widow had apparently used succession funds and had not accounted for them, and had mortgaged-an undivided half of property belonging to an unsettled community for her individual debt, and it was held that as creditors had not complained, the heir could not. This is placing minor heirs at the mercy of an-improvident executrix, or widow in community. In our opinion, so far from the heir being compelled to stand by and witness the spoliation of his heritage, it is the manifest and imperative duty of those who represent minor heirs to arrest a sale of the property of an unsettled succession, about to be made to pay the individual debt of an executrix or widow in community, and to delay it until the administration is forced to its end, and the rights both of the widow in community and the heirs-are definitely ascertained. The major heirs may interfere or not as suits-their pleasure, but they who have minor’s interests in charge cannot use-their own option. And to inflict damages upon the minors, through their representative, for the attempt to protect their rights, as was done-in this case and in that cited, is to add to the injury inflicted by an improvident executrix or widow in community, another injury inflicted through the medium of a court.

Mrs. Elorane could not mortgage a particular immovable of the succession for her own debt. She cannot select any specific piece of property, and by her own volition make an undivided half of it her own, and thus convert her previous ownership into an absolute and indefeasible title. The heir, as well as the creditor, is entitled to have the administration of the succession, as an entirety, completed. ‘Non con-stat but that the widow has airea ly received her full half of the entire succession, and if a mortgage given by her upon parts of its remaining property were held good, and the property alienated by its foreclosure, the heir would be denuded of his inheritance. Therefore

It is ordered, a lju iged, ami decreed that the judgment of the lower ourt is avoided aal reversed, and it is now decreed that the injunction of the heirs, both major and minor, is maintained and perpetuated, and they have judgment against the plaintiff for their costs in the lower court, and for those of the appeal.


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    No. 7315.
    J. W. Black vs. Good Intent Tow-Boat Company.
    Tho writ oí injunction will issue on the ex parte application of the complainant, only in its prohibitory or remedial form; as in cases where the only purpose to be accomplished is to restrain, or prohibit something from being done. But in i s mandatory form, when it commands the doing of something, it can not be issued until a hearing on the merits; or when, a prohibitory writ having issued, restraining a party from obstructing the exercise of a right, the obstruction may b ■, commanded to be removed because its continuance effects the very injury ho was prohibited from effecting.
    APPEAL from the Fifth District Court, parish of Orleans. Rogers J.

      Hornor & Benedict and Henry C. Miller for plaintiff and appellant.

      'James McConnell for defendant and appellee.
   The opinion of the court was delivered by

Manning, C. J.

This case presents a question not hitherto settled by our jurisprudence, i. e. should a mandatory injunction issue upon a preliminary motion or application?

There are two forms or kinds of injunction employed by English and American courts of equity, the most common form being that which operates as a restraint upon a party in the exercise of his real or supposed Tights, and the other, commanding an act to be done. The first is sometimes called the remedial writ, and the second the judicial writ, because it issues after a decree. 2 Story Eq. Jur. § 861. With us, the definition of the writ is statutory; — injunction, or prohibition is a mandate obtained from a court by a plaintiff, prohibiting one from doing an act which he contends may be injurious to him, or impair a right which he claims. Code Prac. art. 296.

The plaintiff is the owner of tow-boats, and is engaged in the business of towing vessels back and forth from the gulf to this City. In the prosecution of his business, it is often necessary and always useful to communicate by telegraph with the Passes of the Mississippi river. Tho defendant is an incorporated company, established to conduct the business of towing vessels to and from the gulf hither, and was empowered to build or buy steam tow-boats, and to purchase, or build, or establish a telegraph line between this City and the Passes. The company built the line, and for many years it was open to the public, any one sending dispatches over it at pleasure on paying the rates. The plaintiff thus used it, but for some cause his dispatches were refused transmission a year ago, and in May 1878 he brought this suit. His prayer is, that a writ of injunction issue, commanding the defendant company to receive and transmit by magnetic telegraph over its telegraph line between this City and the Passes, all messages from or to him, offered to be transmitted, on the payment of the usual rates of compensation, and that after due proceedings had, the writ be ldade peremptory.

The defendant construes the use of the disjunctive in our definition of the writ — ‘injunction or prohibition is a mandate’ — as explanatory of its nature, so that the word ‘prohibition’ shall be considered as a definition of ‘injunction,’ and as having been used to indicate the kind of writ which the Code adopts, thus restricting our statutory writ to one of those known in Equity practice. We are not inclined to adopt a construction which may shut us off from sources of relief that ought to be open to us, and particularly when it is based on the use of a single word, not intended apparently to have such broad significance. This court early declared that the writ is as effective in enforcing a right as in preventing a wrong. McDonough v. Calloway, 7 Rob. 442.

In that case, the plaintiff alleged that the defendant had wrongfully fenced up an alley way between their lots, which was common to both, and prayed the court to order the obstruction removed, and that an injunction-should issue, commanding the defendant not to disturb him in the free use and enjoyment of the common way. The judge gave an order simply enjoining the defendant from disturbing the plaintiff in the use of the alley, and several days afterwards, the plaintiff made an affidavit, and asked for a rule On the defendant to shew cause why he should not be punished for contempt, and why the obstructions should not be immediately pulled down. Upon the hearing of this rule, the judge said, it appeared the defendant had done no act since his injunction, but had quietly permitted the fence to stand, and as the writ was a preventive one, the defendants had not been guilty of any contempt and as to ordering the obstructions to be demolished, that he could not do so until he heard the parties on the merits. On appeal, the point was made, that injunction is not the proper remedy when the object is to direct a partv to perform a particular act; and that if it be, the order cannot be made, to the extent required, before hearing the parties on the merits, and this court said ; — the law has not left parties remediless in such eases, nor the courts powerless for the correction of such evils_ The judge below should at once have granted an order to have the obstruction removed by the sheriff.

It is claimed by the defendant that this case only shews that cases may arise of extreme necessity, in which our courts will enforce their authority or decrees by the mandatory writ of injunction; but it certainly shews that the issuing of such writ was considered within the competency of our courts. As it is the only authoritative case on that question, it becomes necessary to determine whether we will maintain that construction, and to what extent.

Since we do not administer law and equity in separate courts, it is essential, in interpreting the articles of the Code of Practice that treat of the writs, peculiar to equity jurisdiction, to give such effect to them as will make the writs effectual remedies, so far as this can be done without running counter to the express language of the Code. Besort is often had to the decisions of Equity courts in making this interpretation, controlled by the fact that our remedies are statutory, and can only be used for the purposes indicated ; but we should not be justified in going beyond the application of those remedies made by Equity courts, and recognised therein as sufficiently comprehensive to attain complete relief.

The history of the question now before us in the Chancery courts of England has been correctly and fully epitomised in a recent case, which reviewed all the decisions from the earliest in Vesey down to Heracy v. Smith decided by Sir Page Wood V. C. afterwards Lord Chancellor Hatherley, and the court summed up the investigation by saying; — there are eases in which mandatory injunctions have been ordered on motion, (equivalent to our granting the writ on prima facie shewing) but they are all, or nearly all, cases in which some erection, placed and maintained by the defendant to effect the injury complained of, was ordered to be removed, or its maintenance forbidden, on the ground that the defendant effected the act he was restrained from d ling by continuing such erection. Rogers Locomotive and Machine Works v. Erie R. Co., 20 N. J. Eq. 379. And that was precisely the McDonough case. Calloway effected the obstruction of the alley, which he was restrained from doing, by continuing the erection which caused the obstruction. Further on in the same case the New Jersey court say ; — A number of authorities and cases were cited on the argument to shew that courts of equity will, in certain cases, decree the restitution •of particular chattels. But these are all cases where it was so ordered upon final hearing. There is no case of any interlocutory injunction being granted, or even applied for, for such purpose.

The farthest we feel authorized to go is to hold that the writ of injunction, in the prohibitory or remedial form, can alone be issued on the ex parte application of the complainant, and this the more, since the issuing of the writ is not with us matter of discretion, but of compulsion, when the applicant for it complies with the requirements of the Code of Practice, by presenting a petition which on its face se'ts out a legal -cause for the writ, and fortifies it by his oath, and gives bond. Beebe v. Guinault, 29 Annual, 795. The. writ in the mandatory form cannot be issued until a hearing on the merits, when it is a judicial writ and is sited to enforce a decree; or when, a prohibitory writ having issued, restraining a party from obstructing the exercise of a right, the obstruction may be commanded to be removed because its continuance effects, the very injury he was prohibited from effecting.

This appeal is from a judgment setting aside the injunction obtained; ex parte, the trial having been only on the exception and motion to dissolve, and the lower judge presents the question he decided thus whether on the face of an application, such as the present, there is a warrant in law to issue in limine the injunction granted in this case ; or in other words,-is it lawful under our law and jurisprudence to issue a mandatory injunction before a trial upon the issues of the controversy 2?

His judgment answered that question negatively.

Judgment affirmed.


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    No. 7287.
    Thos. S. Elder vs. City of New Orleans et al.
    It is not necessary iliat the name of the elork of the lower court should appear ia the body of the transcript of appeal. His signature thereto is sufficient.
    Where a formal agreement between counsel has been made as to what shall be included in a transcript of appeal, the clerk’s certificate that the transcript contains all the documents, records, etc., required by the agreement, will be sufficient.
    The lower court fixes the return day of an appeal, and hence if it is erroneously-fixed, the error can not prejudice the appellant.
    The principal and surety on an injunction bond, who, on'the dissolution of the-injunction, have been condemned in solido for a certain sum, may unite and' give but one appeal bond, with a surety who hinds himself “for both and for either,” in the sum fixed by the court,
    Wher-e the appellant gives bond in the amount fixed by the court, the appeal can not be dismissed on the ground that the amount is insufficient.
    Where an injunction issues to restrain the sale of property worth over Seco, coupled with a demand for damages for a large amount, this court will have jurisdiction of an appeal from the judgment dissolving the injunction.
    The affidavitof a party praying for an injunction that “ all the facts above set forth-as bases of an injunction, and reasons why an injunction should issue are true and correct ” is insufficient.
    It is only when an injunction has been taken to restrain the execution of a money-judgment, that the principal and surety on the bond maybe summarily condemned in solido.

    The publication of the notice to delinquent taxpayers made by the Administrator of finance of the city of New Orleans in virtue of Act 48 of the Legislature of 1871, stands in lieu of citation, and just as effectively brings the parties into court.
    The right of a judge presiding in a court, and de facto- discharging the duties of that office, can not be collaterally questioned by litigants therein.
    The reception of secondary or illegal evidence in proof of a fact is no ground t®> annul a judgment upon, when the evidence was not objected'to..

      Under a judgment and execution for taxes the first writ of fi. fa. issued in the ease continues in force until finally satisfied.
    In the parish of Orleans the seizure of property under a fi.fa. issued in execution of a judgment for taxes is e-instructive. It takes effect by merely recording the notice of seizure, in the mortgage office, and such seizure can not be affected by an omission of the sheriff to state on his return the “date and hour” of the registry of the notice.
    In the absence of contrary proof it will be presumed that the sheriff properly recorded the notice of seizure in the mortgage office.
    It is a sufficient description of property seized and sold under a judgment for taxes that it is situated in a eei-tain distx-iet, and sauare, bounded by four certain streets, and measures so many feet in depth by so many feet in width.
    ^PPEAL from tlie Third District Court, parish of Orleans. Monroe,

      McGloin & Nixon for plaintiff and appellant.

      Sam. P. Plano, Assistant City Attorney, for the city, defendant and appellee.

      Henry Denis for Mrs. Adams, defendant and appellee.
   On Motion to Dismiss.

The opinion of the court was delivered by

Spencer, J.

Appellee moves to dismiss this appeal on six grounds.

The first, second, and third grounds may be disposed of in the main by saying that the iiregnlarities complained of are fully covered by the argument of counsel, shown by the record, and the documents filed by appellant on fourth January, 1879. All the papers not excluded by that agreement seem to be in the record, and in that of State ex rel. Elder vs. Judge Third District Court, No. 6846. The transcript was filed in time under said agreements.

It is not necessary that the clerk’s name should appear in the body of his certificate. His signature thereto is sufficient.

He certifies that the transcript contains all documents, records, etc., required by the written agreement of counsel. That was sufficient in a case where, like this, the counsel had made a formal agreement on the subject.

The fourth ground is that the appeal should have been returnable third Monday of May instead of first Monday of November. Appellant moves for the appeal, and the court fixes the return day thereof. If the court erred, appellant can not be prejudiced thereby.

Tne fifth ground is that the bond for a suspensive appeal, from the judgment dissolving the injunction, is defective and insufficient in amount. The judgment is for $100 damages and costs. The court fixed the bond at $250. When the appellant gives bond for the amount fixed fey the court, the appeal can not be dismissed. If it be a money judgment, the law fixes the amount for suspensive appeal. The judgment was one in solido against plaintiff and the surety on his injunction bond. They appealed by joint motion in open court, and gave one bond with a surety who bound himself for $250 “for both and for either” of the principals.

We know no law or reason why two persons condemned in solido in the same judgment should give separate bonds. If the surety be for both of them, and for each of them, and binds himself to pay the amount required, it is sufficient.

The condition of the bond in this case is that prescribed by the Code of Practice.

The sixth ground is that the amount involved is not within the jurisdiction of this court.

Plaintiffs petition alleges in substance that the city of New Orleans caused to be entered up against him, without citation or notice, and without default, a pretended judgment for $175 for taxes ; that iteaused to be issued thereon a pretended writ of fieri facias, which was illegal upon its face, and caused a pretended sale of his property to be made, without having made any seizure thereof, and without having given him any notice ; that he was entitled to redeem said property, and by way of compromise tendered the necessary amount to the purchaser, Mrs. Adams ; that the judgment and the sale are therefore absolute nullities ; that the sheriff, the purchaser, and the city are threatening to dispossess him under said void proceedings. He therefore prays an injunction restraining them, and for judgment against them declaring the nullity of said judgment, and of said sale, and for $301 0 damages for disturbing him, etc. It is alleged and admitted that the property is worth over $500 — in fact, several thousand dollars. Appellee relies on the case of Cushing vs. Sambola & Ducros, 30 An. 426, and the cases there cited, and others to same effect.

But that case does not meet all the issues in this case. We there held that an action to annul a judgment for less than $500, between the parties to such judgment, could not be brought within our jurisdiction by alleging damages to a greater amount as consequence of its execution. There is involved in this suit a demand to annul the sheriff’s sale, for matter subsequent to and independent of the judgment, and for damages to a large amount, resulting from his alleged acts. This state of facts brings the case within the jurisdiction of this court. Whether the plaintiff can inquire into the judgment itself, will be a subject of inquiry when the case comes before us for trial, and we need express no. ojMnion thereon at present.

The motion to dismiss is overruled.

On the Merits.

Plaintiff sues to annul, first, a judgment of the Superior District Court rendered against him in 1874 for taxes due the city of New Orleans; second, a sheriff sale, under execution of said judgment, whereby a square of ground in this city was adjudicated to Mrs. 0. Adams, Jr.

He alleges that the sheriff is about to put Mrs. Adams in possession under an order of court. He, therefore, asked and obtained an injunction restraining said parties from interfering with his possession.

Defendant moved to dissolve this injunction, with damages, on several grounds, one of which was insufficiency of the affidavit. The court sustained the motion and dissolved the injunction, with $100 damages, against principal and surety in solido. Plaintiff appeals from said decree.

The case was then tried on its merits, and there was judgment dismissing plaintiff’s suit. Prom this final judgment plaintiff also appeals.

Plaintiff’s petition alleges various grounds of nullity against the judgment and sale, and that the sheriff is about to and will execute a deed to Mrs. Adams, and is about to and will dipossess petitioner and place said purchaser in possession, unless enjoined. The oath is as follows :

“ That all the facts above set forth as basis of an injunction, and reasons why an injunction should issue, are true and correct.”

It is manifest that such an affidavit is insufficient. It can not be positively affirmed of amj fact stated in the petition that it is sworn to. What facts are or are not considered to be basis and reasons for injunction, is left to conjecture, argument and inference. The oath must be positive. The rule is well stated in Herbert vs. Joly, 5 La. p. 52, by Chief Justice Martin : “ The oath should be direct, positive, and unconditional.” See, also, 5 La. 82 ; 3 An. 225. The injunction was properly dissolved ; but we do not think that damages could be, in such case as this, summarily awarded. It is where the injunction is taken to restrain the execution of money judgments, that the principal and surety may be summarily condemned in solido. R. S.

This is not such a case. Indeed, there is no law making the surety in such case as this a party to the suit. The right of defendant for damages upon the bond should have been reserved.

On the merits, the grounds of nullity against the judgment are, first, want of citation ; second, incompetency of the judge ; third, that there was not legal proof of publication of the notices to delinquents prior to confirming default.

The judgment sought to be annulled recites that there was “ due proof of the publication required by law.” Under the law (see. 21 of the city charter, act No. 7 oí extra session of 1870) this publication stands in lieu of citation. Aside from the presumption of law, there was positive proof that this publication was made in the official journal for thirty days, as required. The publication was made three times during the thirty days, in conformity to section nine, act 18 of 1871. We see no reason to doubt the authority of the Legislature to confer the power to make this publication upon the Administrator of Finance. It is not a judicial act, and the Legislature may require it to be done, as well by that officer as by the clerk or sheriff. The citation was sufficient.

The second ground is that Jacob Hawkins, the judge presiding in the Superior District Court, was appointed to said office, and not elected as required by the constitution. This might be a good ground for his removal in a proper action brought for that purpose. The right of the judge presiding in a court, and de facto discharging the duties of that office, can not be collaterally questioned by litigants therein, more especially in proceedings to which he is no party.

The third ground is in substance that the proof- of publication was not that required by law, and he cites R. S. section twenty-six, which directs the State Printer to make affidavit to the publication. Even if that section referred to other than publications made by order of court, the fact of publication could be proved by other evidence if not objected to. The reception of secondary or illegal evidence in proof of a fact is no ground to annul a judgment upon. Such evidence should have been objected to when offered. This is elementary.

The grounds upon which the sale is attacked are—

First — That the writ of ft. fa. had no return day fixed therein.

Second — That there was no lawful seizure of the property, or return thereof.

Third — That there was no notice of seizure.

Fourth — No lawful description of the property seized and sold.

The first ground is abandoned, except that it is contended the sheriff made the sale under an expired writ. We have held, on more than one occasion, that the eighth section of act 85 of 1858 was in force still, and that under “judgment and execution for taxes,” “no alias or piarles writ shall be issued, but the first writ shall continue in force until finally satisfied.” Marin vs. Sheriff, 30 An. 295. That act is not repealed by the general law found in the R. S. on the subject of return of writs. It is not on the same subject matter, and relates to the special matter of ivrits on tax judgments.

Second — In the .parish of Orleans the seizure is constructive, and results from the recordation of the notice of seizure in the mortgage office. The sheriff in his return on the writ certifies that he “ caused the said notice of seizure to be duly recorded in the office of the Re«order of Mortgages.” This recordation was itself the seizure. It was a fact, an act The sheriff is directed to make out three notices of seizure — one for the debtor, one for registry, and a third one for iris'return. It directs him on this third one to state the “ date and hour” of the registry thereof in the mortgage office.

Plaintiff’s counsel treats this return on this third copy of the notice as sacramental, and argues that if that return is not made strictly as required there is no seizure. We have seen that the recordation constitutes the seizure. Can it be that the omission of the sheriff in his return to state the date and hour ” of registry can obliterate the fact of registry, and make non-existent that which really exists ? This is the very refinement of technicality.

There is no evidence of the date of this registry. We only have the sheriff’s return on the writ that was “ received November 28, 1874, and levied upon the property described in the within annexed notice of seizure ; * * * caused the said notice of seizure to be duly recorded,” etc. The words “ recorded August 80,1875,” written across the back of the writ, are unsigned and not in any way connected with the sheriff’s return thereon. We must, in the absence of contrary proof, presume that the sheriff did his duty and recorded the notice. He says he did. If the words referred to mean anything, it is that the writ itself was recorded somewhere, but where is conjectural.

Third — There was a notice of seizure given to and served in person upon the plaintiff as shown by the record.

Eourth — The property is described as a square of ground, No. 213, in the Sixth District, bounded by Magazine, Camp, Valmont and Leon-tine streets, measuring 278 by 306 feet. We are at a loss to see what defect there is in this description.

It embraces the whole square; and even if there be a discrepancy of a few inches in the dimensions one way and a few feet another between the notice and plaintiff’s title, what matters it? The bounds are accurately stated and well defined. There can be no mistake. We see no nullity in the judgment or sale, and the court a qua properly rejected plaintiff’s demand. But it improperly awarded damages against the' plaintiff and his surety in this action.

It is therefore ordered and decreed that the judgment appealed from, rejecting and dismissing plaintiff’s demand, is affirmed ; that the judgment dissolving the injunction and condemning plaintiff and surety in damages be annulled, so far as it awards said damages, and in all other respects is affirmed — reserving to defendants their right to proceed on the Injunction bond for such damages as maybe clue. It is further ordered that plaintiff pay costs of the court below and defendant those of this appeal.