11 I >a.JBgp»i«>«a,»«!aB- g3n» PERKINS LIBRARY Uuke Unh Kare Dooks CODE OF PRACTICE IN CIVIL CASES FOR THE STATE OF LOUISIAM: WITH THE STATUTORY AMENDMENTS, FROM 1825 TO 1853, INCLUSIVE, AND KEFERENCES TO THE DECISIONS OF THE SUPREME COURT OP LOUISIANA TO THE SIXTH VOLUME OF ANNUAL REPORTS. COMPILED Ain) EDITED BT THOMAS GIBBES MORGAN, COUNSELLOR AT LAW. NEW ORLEANS: BLOOMFIELD & STEEL, Entered, according to Act of Congress, In the yew 1853, by JOHN F. TR0%7, In the Clerk's office of the District Court of the United States for the Southern District of New-York. John F. Tbow, Print«r, Stereolyper, aod Electrotyper, SO Greene Street, Behreen Grand & Broome, New Totk< — i (J A I ADVERTISEMENT. This Edition of the Code of Practice of Louisiana, is a reprint of the Edition of 1825, — published by author- ity of the State. The amendments are published in full, this being considered preferable to incorporating them into the text. The amendments include those passed at the session of 1853. The references are to the 6th Annual Reports, none later having been pub- lished at this date. Baton Rouge, Lothsiana, June, 1853. ABBREVIATIONS. C. C— Civil Code. M.— Martin's Reports, Old Series, 12 vols. N. S. — Martin's Reports. New Series, 8 vols. L. — Louisiana Reports, 19 vols. R. — Robinson's Reports, 12 vols. A. — Louisiana Annual Reports, 6 vols. CONSTITUTION OF THE STATE OF LOUISIANA. ADOPTED IN CONVENTION, MAY 14, 1845. PREAMBLE. We the people of the State of Louisiana, do ordain and establish this Constitution. TITLE I. DISTRIBUTION OF POWERS. Art. 1. — The powers of the government of the State of Louisiana shall be divided into three distinct departments, and each of them be confided • to a separate body of magis- tracy, to wit : those which are legislative to one ; those which are executive to another; and those which are judicial to another. Art. 2. — No one of these departments nor any person holding office in one of them, shall exercise power properly be- longing to either of the others, except in the instances herein- after expressly directed or permitted. TITLE IL LEGISLATIVE DEPARTMENT. Art. 3. — The legislative power of the State shall be Tested in two distinct branches, the one to be styled the 6 CONSTITUTION OF THE STATE OF LOUISIANA. House of Representatives, the other the Senate, and both " the General Assembly of the State of Louisiana." Art. 4. — The members of the House of Representatives shall continue in service for the term of two years from the day of the closing of the general elections. Art. 5. — Representatives shall be chosen on the first Monday in November, every two years ; and the election shall be completed in one day. The General Assembly shall meet every second year, on the third Monday in January next en- suing the election, unless a different day be appointed by law, and their sessions shall be held at the seat of Government. Art. 6. — No person shall be a Representative, who, at the time of his election is not a free wliite male, and has not been for three years a citizen of the United States, and has not attained the age of twenty-one years, and resided in the State for the three years next preceding the election, and the last thereof, in the parish for which he may be chosen. Art. 7. — Elections for Representatives for the several par- ishes or representative districts, shall be held at the several election precincts estabhshed by law. The Legislature may delegate the power of establishing - election precincts to the parocliial or municipal authorities. Art. 8. — Representation in the House of Representatives, shall be equal and uniform, and shall be regulated and ascer- tained by the number of qualified electors. Each parish shall have at least one representative : No new parish shall be cre- ated with a territory less than six hundred and twenty-five square miles, rior with a number of electors less than the full number entitling it to a representative, nor when the creation of such new parish would leave any other parish without the said extent of territory and number of electors. The first enumeration to be made by the State authorities under this Constitution shall be made in the year 1847, the second year in 1855 ; and the subsequent enumerations shall be made every tenth year thereafter, in such a manner as shall be prescribed by law for the purpose of ascertaining the total CONSTITUTION OF THE STATE OF LOUISIANA. 7 population and the number of qualified electors in each parish and election district. At the first regular session of the Legislature after the making of each enumeration, the Legislature shall apportion the representation amongst the several parishes and election districts on the basis of qualified electors as aforesaid. A representative number shall be fixed, and each parish and election district shall have as many representatives as the ag- gregate number of its electors will entitle it to, and an addi- tional representative for any fraction exceeding one-half the representative number. The number of representatives shall not be more than one hundred nor less than seventy. That part of the parish of Orieans situated on the left bank of the Mississippi shall be divided into nine representa- tive districts as follows, viz.: Ist. First district to extend from the hne of the parish of Jefferson to the middle of Benjamin, Estelle and Thalia streets. 2d. Second district to extend from the last mentioned limits to the middle of Juha street, until it strikes the New Orleans Canal, thence down said Canal to the Lake. 3d. Third district to comprise the residue of the Second Municipality. 4th. Fourth district to extend from the middle of Canal street to the middle of St. Louis street, until it reaches the Metairie road, thence along said road to the New Orleans Canal. 5th. Fifth district to extend from the last mentioned limits to the middle of St. Philip street, thence down said street until its intersection with the Bayou St. John, thence along the middle of said bayou until it intersects the Me- tairie road, thence along said road until it reaches St. Louis street. 6th. Sixth district to be composed of the residue of the First Municipality. Yth. Seventh district from the middle of Esplanade street to the middle of Champs Elys^es street. 8 CONSTITUTION OF THE STATE OF LOUISIANA. 8tli. Eighth district from the middle of Champs Elys^ea street to the middle of Enghein street and Lafayette Av- enue. 9th. Ninth district from the middle of Enghein street and Lafayette Avenue to the lower limits of the parish. Art. 9. — The House of Representatives shall choose its Speaker and other officers. Art. 10. — In all elections by the people every free white male who has been two years a citizen of the United States, who has attained the age of twenty-one years, and resided in the State two consecutive years next preceding the election, and the last year thereof in the parish in which he offers to vote, shall have the right of voting : Provided, that no per- son shall be deprived of the right of voting who at the time of the adoption of this Constitution was entitled to that right under the Constitution of 1812. Electors shall, in all cases except treason, felony, breach or surety of the peace, be privi- leged from arrest during their attendance at, going to, or re- turning from elections. Art. 11. — Absence from the State for more than ninety consecutive days, shall interrupt the acquisition of the resi- dence required in the preceding section, unless the person ab- senting himself shall be a housekeeper, or shall occupy a ten- ement for carrying on business, and his dwelling-house or tenement for carrying on business shall be actually occupied during his absence, by his family or servants, or some portion thereof, or by some one employed by him. Art. 12. — No soldier, seaman or marine in the army or navy of the United States, no pauper, no person under inter- diction, nor under conviction of any crime punishable with hard labor, shaU be entitled to vote at any election in this State. Art. 13. — No person shall be entitled to vote at any elec- tion held in this State, except in the parish of his residence, and into cities and towrs divided into election precincts, in the election precinct in which he resides. CONSTITUTION OF THE STATE OF LOUISIANA. » Akt. 14. — The members of the Senate shall be chosen for the term of four years. The Senate, when assembled, shall have the power to choose its officers every two years. Art. 15. — The Legislature in every year in which they shall apportion representation in the House of Eepresenta- tives, shall divide the State into senatorial districts. No par- ish shall be divided in the formation of a senatorial district, the parish of Orleans excepted. And whenever a new parish shall be created, it shall be attached to the senatorial district from which most of its territory was taken, or to another con- tiguous district, at the discretion of the Legislature ; but shall not be attached to more than one district. The number of Senators shall be thirty-two, and they shall be apportioned among the senatorial districts according to the total popula- tion contained in the several districts : Provided, that no parish shall be entitled to more than one-eighth of the whole number of Senators. Art. 16. — In all apportionments of the Senate, the popu- lation of the city of New Orleans shall be deducted from the population of the whole State, and the remainder of the pop- ulation divided by the number twenty-eight, and the result produced by tliis di\dsion shall be the senatorial ratio entithng a senatorial district to a Senator. Single or contiguous par- ishes shall be formed into districts having a population the nearest possible to the number entitling a district to a Sen- ator ; and if, in the apportionment to be made, a parish or district ftill short of or exceed the ratio, one-fifth, then a dis- trict may be formed having not more than two Senators, but not otherwise. No new apportionment shall have the effect of abridging the term of service of any Senator already elected at the time of making the apportionment. After an enumeration has been made as directed in the (eighth) article, the Legislature shaU. not pass any law until an apportionment of representation in both Houses of the General Assembly be made. 10 CONSTITUTION OF THE STATE OF LOUISIANA. Art. 17. — At the first session of the General Assembly, after this Constitution takes effect, the Senators shall be equal- ly divided by lot into tAvo classes ; the seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year ; so that one-hatf shall be chosen every two years, and a rota- tion thereby kept up perpetually. In case any district shaU have elected two or more Senators, said Senators shaU vacate their seats respectively at the end of two and four years, and lots shall be drawn between them. Art. 18. — No person shall be a Senator, who, at the time of his election, has not been a citizen of the United States ten years, and who has not attained the age of twenty-seven years, and resided in the State four years next preceding his election, and the last year thereof in the district in which he may be chosen. Art. 19. — The first election for Senators shall be general throughout the State, and at the same time that the general election for Representatives is held ; and thereafter there shall be biennial elections to fill the place of those whose time of ser- vice may have expired. Art, 20. — Not less than a majority of the members of each House of the General Assembly shall form a quorum to do business ; but a smaller number may adjourn from day to day, and shall be authorized by law to compel the attendance of absent members. Art. 21, — Each House of the General Assembly shall judge of the qualification, election and returns of its mem- bers ; but a contested election shall be determined in such manner as shaU be directed by law. Art, 22. — Each House of the General Assembly may de- termine the rules of its proceedings, punish a member for dis- orderly behavior, and with the concurrence of two-thirds ex- pel a member, but not a second time for the same offence. Art, 23. — Each House of the General Assembly shall k^ep and publish weekly a journal of its proceedings ; and the CONSTITUTION OF THE STATE OF LOUISIANA. 11 yeas and nays of its members on any question shall, at the de- sire of any two of them, be entered on the journal. Art. 24. — Each House may punish by imprisonment any person not a member, for disrespectful and disorderly beha- vior in its presence, or for obstructing any of its proceedings. Such imprisonment shall not exceed ten days for any one of- fence, . Art. 25. — Neither House during the session of the Gen- eral Assembly, shall without the consent of the other, adjourn for more than three days, nor to any other place than that in which they may be sitting. Art. 26. — The members of the General Assembly .shall receive from the public Treasury a compensation for their ser- vices, which shall be four dollars per day during their attend- ance, going to and returning from the session of their respec- tive Houses. The compensation may be increased or dimin- ished by law ; but no alteration shall take effect during the period of service of the members of the House of Represen- tatives by whom such alteration shall have been made. No session shall extend to a period beyond sixty days, to date from its commencement, and any legislative action had after the expiration of the said sixty days, shall be null and void. This provision shall not apply to the first Legislature, wliich is to convene after the adoption of this Constitution. Art. 27. — The members of the General assembly shall, in all cases except treason, felony, breach or surety of the peace, be privileged from arrest during their attendance at the ses- sions of their respective Houses, and going to or returning from the same, and for any speech or debate in either House, they shall not be questioned in any other place. Art. 28. — No Senator or Representative shall, during the term for wliich he was elected, nor for one year thereafter, be appointed or elected to any civil office of profit under this State, which shall have been created, or the emoluments of which shall have been increased during the time such Senator or Representative was in office, except to such offices or ap- pointments as may be filled by the elections of the people. 12 CONSTITUTION OF THE STATE OF LOUISIANA. Art. 29. — No person, while he continues to exercise the functions of a clergyman, priest, or teacher of any rehgious persuasion, society or sect, shall be eligible to the General ? Assembly. Art. 30. — No person who at any time may have been a collector of taxes, or who may have been otherwise intrusted with public money, shall be eligible to the General Assembly, or any office of profit or trust under the State Government, until he shall have obtained a discharge for the amount of such collections, and for all public moneys with which he may have been intrusted. Art. 31. — No bill shall have the force of a law until, on three several days, it be read over in each House of the Gen- eral Assembly, and free discussion allowed thereon, unless in case of urgency, four-fifths of the House where the bill shall be pending, may deem it expedient to dispense with this rule. Art. 32. — All bills for raising revenue shall originate in the House of Representatives, but the Senate may propose amendments as in other bills : Provided, they shall not intro- duce any new matter under color of an amendment, which does not relate to raising revenue. Art. 33. — The General Assembly shall regulate by law, by whom, and in what manner writs of election shall be is- sued to fiU the vacancies which may happen in either branch thereof Art*. 34. — A majority of all the members elected to the Senate, shall be required for the confirmation or rejection of officers to be appointed by the Governor, with the advice and consent of the Senate ; and the Senate in deciding thereon, shall vote by yeas and nays, and the names of the Senators voting for and against the appointments respectively, shaU be entered on a journal to be kept for that purpose, and made pubHo at the end of each session, or before. Art. 35. — Eeturns of aU elections for members of the General Assembly shaU be made to the Secretaiy of State. Art. 36. — A Treasurer of the State shall be elected bien- CONSTITUTION OF THE STATE OF LOUISIANA. 13 nially, by joint ballot of the two Houses of the General As- sembly. The Governor shall have power to fill any vacancy that may happen in that office during the recess of the Legis- lature. Art. 37. — In the year in which a regular election of a Senator of the United States is to take place, the members of the General Assembly shall meet in the Hall of the House of Kepresentatives, on the Monday following the meeting of the Legislature, and proceed to the said election. TITLE IIL EXECUTIVE DEPARTMENT. Art. 38. — The Supreme Executive power of the State shall be vested in a Chief Magistrate, who shall be styled the Governor of the State of Louisiana, He shall hold his office during the term of four years, and together with the Lieuten- ant Governor chosen for the same term, be elected as follows : — The quaHfied electors for Representatives shall vote for a Governor and Lieutenant Governor, at the time and place of voting for Representatives ; the returns of every elec- tion shall be sealed up and transmitted by the proper return- ing officer to the Secretary of State, who shaU deliver them to the Speaker of the House of Representatives, on the second day of the session of the General Assembly, then next to be holden. The members of the General Assembly shall meet in the House of Representatives, to examine and count the votes. The person having the greatest number of votes for Governor, shall be declared duly elected ; but if two or more persons shall be equal, and highest in the number of votes poUed for Governor, one of them shaU immediately be chosen Governor, by joint vote of the members of the General Assem- bly. The person having the greatest number of votes for Lieutenant Governor, shall be Lieutenant Governor ; but if two or more persons shall be equal and highest in the number 14 CONSTITUTION OF THE STATE OF LOUISIANA. of votes polled for Lieutenant Governor, one of them shall be immediately chosen Lieutenant Governor by joint vote of the members of the General Assembly. Art. 39. — No person shall be cHgible to the office of Gov- ernor or Lieutenant Governor, who shall not have attained the age of thirty-five years, been fifteen years a citizen of the United States, and a resident within the State for the same space of time next preceding his election. Art. 40. — The Governor shall enter on the discharge of his duties on the fourth Monday of January next ensuing his election, and shall continue in office until the Monday next succeeding the day that his Tsuccessor shall have been declared duly elected, and shall have taken the oath or affirmation pre- scribed by this Constitution. Art. 41. — The Governor shall be inehgible for the succeed- ing four years after the expiration of the time for which he shall have been elected. Art. 42. — No member of Congress or person holding any office under the United States, or minister of any religious society, shall be ehgible to the office of Governor or Lieuten- ant Governor. Art. 43. — In case of the impeachment of the Governor, his removal from office, death, refusal or inability to qualify, resignation or absence from the State, the powers and duties of the office shall devolve upon the Lieutenant Governor for the residue of the term, or until the Governor, absent or im- peached, shall return or be acquitted. The Legislature may provide by law for the case of removal, impeachment, death, resignation, disability, or refusal to qualify, of both the Gov- ernor and Lieutenant Governor, declaring what officer shall act as Governor ; and such officer shall act accordingly until the disabiUty be removed, or for the residue of the term. Art. 44. — The Lieutenant Governor, or other officer dis- cnarging the duties of Governor, shall, during his administra- tion, receive the same compensation to which the Governoi would have been entitled, had he continued in office. CONSTITUTION OF THE STATE OF LOUISIANA. 15 Art. 45. — The Lieutenant Governor shall, by virtue of liis office, be President of the Senate, but shall have only a cast- ing vote therein. Whenever he shall administer the Govern- ment, or shall be unable to attend as President of the Senate, the Senators shall elect o^e of their own members as President of the Senate for the time being. Art. 46. — While he acts as President of the Senate, the Lieutenant Governor shall receive for his services the same compensation which shall for the same period be allowed to the Speaker of the House of Representatives, and no more. Art. 47. — The Governor shall have power to grant re- prieves for all offences against the State, and except in cases of impeachment, shall, with the consent of the Senate, have power to grant pardons and remit lines and forfeitures, after conviction. In cases of treason he may grant reprieves, until the end of the next session of the General Assembly, in wliich the power of pardoning shall be vested. Art. 48. — The Governor shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished dm'ing the term for which he shall have been elected. Art. 49. — He shall be Commander in Chief of the Army and Navy of this State and of the Militia thereof, except when they shall be called into the service of the United States. Art. 50. — He shall nominate, and by and with tlie advice and consent of the Senate, appoint all officers whose offices are established by this Constitution, and whose appointment is not therein otherwise provided for : Provided liowevcr, that the Legislature shall have a right to prescribe the mode of ap- pointment to all other offices established by law. Art. 51. — The Governor shall have power to fill vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of the next session, unless otherwise provided for in this Constitution ; but no jier- Bon who has been nominated for office, and rejected by the 16 CONSTITUTION OF THE STATE OF LOUISIANA. Senate, shall be appointed to the same office during the recess of the Senate. Art. 52. — He may require information in writins; from the officers of the Executive Department, upon any subject relat- ing to the duties of their respective offices. Art. 53. — He shall, from time to time, give to the General Assembly information respecting the situation of the State, and recommend to their consideration such measures as he may deem expedient. Art. 54. — He may, on extraordinary occasions, convene the General Assembly at the seat of Government, or at a dif- ferent place if that sliould have become dangerous from an enemy or from epidemic ; and in case of disagreement be- tween the two Houses as to the time of adjournment, he may adjourn them to such time as he may think proper, not ex- ceeding four months. Art. 55. — -He shall take care that the laws be faithfully executed. Art. 56. — Every bill which shall have passed both Houses shall be presented to the Governor ; if he approve he shall sign it, if not, he shall return it with his objections to the House in which it originated, which shall enter the objections at large upon its journal, and proceed to reconsider it ; if after such reconsideration two-thirds of all the members elected to that House shall agree to pass the bill, it shall be sent, with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two-tliirds of all the mem- bers elected to that House, it shall be a law ; but in such cases the vote of both Houses shall be determined by yeas and nays, and the names of the members voting for and against the bill, shall be entered on the journal of each House respectively. If any bill shall not be returned by the Governor within ten days (Sundays excepted) after it shall have been presented to him, it shall be a law in like manner as if he had signed it, unless the General Assembly, by adjournment, prevent its re- turn ; in which case it shall be a law, unless sent back within three days after their next meeting. CONSTITUTION OF THE STATE OF LOUISIANA, l7 Art. 57. — Every order, resolution or vote, to whicli the concurrence of both Houses may be necessary, except on a question of adjoumment, shall be presented to the Governor, and before it shall take effect, be approved by him, or being disapproved, shall be repassed by two-thirds of the members elected to each House of the General Assembly, Art. 58. — There shall be a Secretary of State who shall hold his office during the time for which the Governor shall have been elected. The records of the State shall be kept and preserved in the office of the Sccretaiy : he shall keep a fair register of the official acts and proceedings of the Gover- nor, and when necessary shall attest them. He shall, when required, lay the said register, and all papers, minutes and vouchers relative to his office, before either House of the Gen- eral Assembly, and shall perform such other duties as may bo enjoined on him by law. Art. 59. — All commissions shall be in the name and by the authority of the State of Louisiana, and shall be sealed with the State seal and signed by the Governor. Art. 60. — The free white men of the State shall be armed and disciphned for its defence ; but those who belong to re- Hgious societies whose tenets forbid them to carry arms, shall not be compelled so to do, but shall pay an equivalent for per- sonal services. Art. 61. — The Militia of the State shall be organized in such manner as may be hereafter deemed most expedient by the Lcgislatm-e. TITLE IV. JUDICIARY DEPARTMENT. Art. 62. — The judicial power shall be vested in a Supreme Court, in District Courts, and in Justices of the Peace. Art. 63. — The Supreme Court, except in case^ hereinafter provided, shaU have appellate jmisdiction only, which jurisdic- 2 18 CONSTITUTION OF THE STATE OF LOUISIANA. tion shall extend to all cases when the matter in dispute shall exceed thi-ee hundred dollars, and to all cases in wliich the constitutionality or legality of any tax, toll or impost of any kind or nature soever, shall he in contestation, whatever may be the amount thereof ; and likewise to all fines, forfeitures, and penalties imposed by municipal corporations, and in criminal cases on questions of law alone, whenever the punishment of death or hard labor may be inflicted, or when a fine exceeding thi-ee hundred dollars is actually imposed. Art. 64. — The Supreme Court shall be composed of one Chief Justice, and of three Associate Justices, a majority of whom shall constitute a quorum. The Cliief Justice shall re- ceive a salary of six thousand dollars, and each of the Asso- ciate Judges a salary of five thousand five hundred dollars an- nually. The court shall appoint its own Clerks. The Judges shall be appointed for the term of eight years. Art. 65. — AVhcn the first appointments are made under this Constitution, the Chief Justice shall be appointed for eight years, one of the associate Judges for six years, one for four years, and one for two years ; and in the event of the death, resignation, or removal of any of said Judges before the expiration of the period for which he was appointed, his successor shall be ap- pointed only for the remainder of this term ; so that the term of scr^dce of no two of said Judges shall expire at the same time. Art. 66. — The Supreme Court shall hold its sessions in New Orleans from the first Monday of the month of Novem- ber, to the end of the month of June inclusive. The Legisla- ture shall have power to fix the sessions elsewhere during the rest of the year ; until otherwise provided, the sessions shall be held as heretofore. Art. 67. — The Supreme Court and each of the Judges thereof, shall have power to issue writs of habeas corpus, at the instance of all persons in actual custody under process iD all cases in which they may have ajipellate jurisdiction. Art. 68. — In all cases in which the Judges shall be equal- CONSTITUTION OF THE STATE OF LOUISIANA. 1& ly divided in opinion, the judgment appealed from shall stand affirmed ; in which case each of the Judges shall give his sep- arate opinion in TNTiting. Art. 69. — All Judges by mtue of their office shall be conservators of the peace throughout the State. The style of all process shall be " The State of Louisiana." All prosecu- tions shall be carried on in the name, and by the authority of the State of Louisiana, and conclude against the peace and dignity of the same. * Art. 70. The Judges of aU courts within this State shall, as often as it may be possible so to do, in every definite judg- ment, refer to the particular law in \'irtue of which such judgment may be rendered, and in all cases adduce the rea- sons on which their judgment is founded. Art. 71. — No court or Judge shall make any allowance by way of fee or compensation in any suit or jiroceedings except for the payment of such fees to ministerial officers as may be established by law. Art. 72. — No duties or functions shall ever be attached by law to the Supreme or District Courts, or the several Judges thereof, but such as are judicial ; and the said Judges are prohibited from receiving any fees of office or other compen- sation than their salaries for any civil duties perfonned by them. Art. 73. — The Judges of all courts shall be Hable to im- peachment ; but for any reasonable cause, which shall not be sufficient ground for impeachment, the Governor shall remove any of them, on the address of three-fourths of the members present of each House of the General Assembly. In every such case, the cause or causes for which such removal may be required, shall be stated at length in the address, and inserted in the journal of each House. Art. 74. — There shall be an Attorney General for the State, and as many District Attorneys as may be hereafter found necessary. They shall hold their offices for two years ; their duties shall be determined by law. 20 CONSTITUTION OF THE STATE OF LOUISIANA. Art. 75. — The first Legislature assembled under thk Constitution, sliall divide the State into judicial districts, which shall remain unchanged for six years, and be subject to reorganization every sixth year thereafter. The number of districts shall not be less than twelve, nor more than twenty. For each district, one Judge, learned in the law, shall be ap- pointed, except in the districts in which the cities of New Orleans and Lafayette are situated, in which the Legislature may estabhsh as many District Courts as the pubhc interest may require. Art. 76. — Each of the said Judges shall receive a salar}' to be fixed by law, which shall not be increased or diminished during his term of office, and shall never be less than two thousand five hundred dollars annually. He must be a citi- zen of the United States, over the age of thirty years, and have resided in the State for six , years next preceding Ms ap- pointment, and have practised law therein for the space of five years. Art. 77. — The Judges of the District Courts shall hold their offices for the term of six years. The Judges first ap- pointed shall be divided by lot into three classes, as nearly equal as can be, and the term of office of the Judges of the first class shall expire at the end of two years, of the second class at the end of four years, and of the third class at the end of six years. Art. 78. — The District Courts shall have original juris- diction in all cbnl cases, when the amount in dispute exceeds fifty dollars, exclusive of interest. In all criminal cases, and in all matters connected with succession, their jurisdiction shall be unhmited. Art. 79. — The Legislature shall have power to vest in Clerks of courts authority to grant such orders, and do such acts as may be deemed necessary for the furtherance of the administration of justice, and in all cases the powers thus granted shall be specified and determined. Art. 80. — The Clerks of the several courts shall be re- CONSTITUTION OF THE STATE OF LOUISIANA. 21 movable for breach of good beliavior by the Judges thereof, subject in all cases to an appeal to the Supreme Court. Art. 81. — The jurisdiction of Justices of the Peace shall never exceed, in civil cases, the sum of one hundred dollars, exclusive of interest, subject to appeal to the District Court in such cases as sliall be pro^dded for by law. They shall be elected by the qualified voters of each parish, for the term of two years, and shall have such criminal jurisdiction as shall be provided for by law. Art. 82. — Clerks of the District Courts in this State shall be elected by the qualified electors in each parish, for the tenn of four years, and should a vacancy occur subsequent to an election, it shall be filled by the Judge of the court in which such vacancy exists, and the person so appointed shall hold his office until the next general election. Art. 83. — A Sherifi" and a Coroner shall be elected in each parish, by the qualified voters thereof, who shall hold their offices for the term of two years, unless sooner removed. Should a vacancy occur in either of these offices subsequent to an election, it shall be filled by the Governor ; and the 2^erson so appointed shall continue in office until his successor shall be elected and qualified. TITLE V. IMPEACHMENT. Art. 84. — The power of impeachment shall be invested in the House of Kepresentativcs. Art. 85. — Impeachments of the Governor, Lieutenant Governor, Attorney General, Secretary. of State, State Treas- urer, and of the Judges of the District Courts, shaU be. tried by the Senate ; the Chief Justice of the Supreme Court, or the senior Judge thereof shall preside during the trial of such impeachment. Impeachments of the Judges of the Supreme Court, shall be tried by the Senate. When sitting as a Court 22 CONSTITUTION OF THE STATE OF LOUISl S.NA. of Impeachment, the Senators shall be upon oath or affirma- tion, and no person shall be convicted without the concmTence of two-tliirds of the Senators present. Art. 86. — Judgments in cases of impeachment shall ex- tend only to removal from office and disquahfication from holding any office of honor, trust or profit mider this State, but the parties comdcted shall, nevertheless, be subject to in- dictment, trial and punishment according to law. Art. 87. — All officers against whom articles of impeach- ment may be preferred, shall be suspended from the exercise of their functions during the pendency of such impeachment. The appointing power may make a provisional aj^pointmcnt to replace any suspended officer until the decision on the im- peachment. Art. 88. — The Legislature shall provide by law for the trial, punishment and removal from office, of all other officers of the State, by indictment or otherwise. TITLE VI. GENERAL PROVISIONS. Art. 89. — Members of the General Assembly, and all officers, before they enter upon the duties of their offices shall take the following oath or affirmation: "I (A. B.), do sol-' emnly swear (or affirm), that I will faithfully and impartially discharge and perform aU the duties incumbent on me as , according to the best of my abilities and understanding, agree- ably to the Constitution and laws of the United States, and of this State ; and I do, further, solemnly swear (or affirm) that, since the adoption of the present Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within this State, nor out of it, with a citizen of this State, nor have I sent or accepted a challenge to fight a duel with deadly weapons with a citizen of this State, nor have I acted as second in carrying a challenge, or aided, advised, oi assisted any person thus offending, so help me God." CONSTITUTION OF THE STATE OF LOUISIANA. 2S Akt. 90. — Treason against the State sliall consist only in levying war against it, or in adhering to its enemies, giving them aid and comibrt. No person shall he convicted of trea- son, unless on the testimony of two witnesses to the same overt act, or his own confession in open com-t. Art. 91. — Every person shall be disquahfied from holding any office of trust or profit in this State, who shall have been competed of having given, or offered, a bribe to procure his election or appointment. Art. 92. — Laws shall be made to exclude from office and from the right of suffrage, those who shall hereafter be con- victed of bribery, perjury, forgery, or other high crimes or mis- demeanors. The privilege of free suffrage shall be supported by laws regulating elections, and prohibiting under adequate penalties all undue influence thereon, from power, bribeiy, tumult or other improper practice. Art. 93. — No money shall be drawn from the Treasuiy but in pursuance of specific appropriations made by law, nor shall any appropriation of money be made for a longer term than two years. A regular statement and account of the re- ceipts and expenditures of all pubhc money shall be pubhshed annually, in such manner as shall be prescribed by law. Art. 94. — It shall be the duty of the General Assembly to pass such laws as may be necessaiy and proper to decide differences by arbitration. Art. 95. — All civU officers for the State at large shall re- side within the State, and all district or parish officers witliin their districts or parishes, and shall keep their offices at such places therein as may be required by law. And no person shall be elected or appointed to any parish office who shall not have resided in such parish long enough before such election, or appointment, to have required the right of voting in such parish ; and no person shall be elected or appointed to any district office, who shall not have resided in such district, or an adjoining district, long enough before such appointment, or election, to have acquired the right of voting for the same. 24 COXSTITUTION OF THE STATE OF LOUISIANA. Art. 96. — The duration of all offices not fixed by thit Constitution shall never exceed four years. Art. 97. — All civil officers, except the Governor and Judges of the Supreme and District Courts, shall be remova- ble by an address of ax majority of the members of both Houses, except those the removal of whom has been otlicnvise provided for by tliis Constitution. Art. 98. — Absence on the business of tliis State or of the United States, shall not forfeit a residence once obtained, so as to deprive any one of the right of suffi-age, or of being elected or appointed to any office under the exceptions con- tained in tliis Constitution. Art. 99. — It shall be the duty of the Legislature to pro- vide by law for deductions from the salaries of pubhc officers who may be guilty of a neglect of duty. Art. 100. — The Legislatm-e shall point out the manner in which a person coming into the State shall declare his resi- dence. Art. 101. — In all elections by the people, the vote shaU be by ballot, and in all elections by the Senate and House of Representatives, jointly or separately, the vote shaU be given viva voce. Art. 102. — No member of Congress, nor person holding or exercising any office of trust or profit under the United States, or either of them, or under any foreign power, shall be ehgible as a member of the General Assembly, or hold or ex- ercise any office of trust or jirofit under the State. Art. 103. — The huvs, pubhc records, and the judicial and legislative written j)roceedings of the State, shall be promul- gated, preserved and conducted in the language in wliich the Constitution of the United States is written. Art. 104. — The Secretary of the Senate, and Clerk of the House of Representatives, shall be conversant with the French and EngUsh languages ; and members may address either House in the French or English language. Art. 105. — The General Assembly shall direct by law how CONSTITUTION OF THE STATE OF LOUISIANA. 25 persons who are now or may hereafter become sureties for pub- lic officers may be discharged from such suretyship. Art. 106. — No power of suspending the hiws of the State shall be exercised, unless by the Legislature or its authority. Art. 107. — Prosecutions shall be by indictment, or infor- mation. The accused shall have a speedy public trial by an impartial jury of the -sdcinage : he shall not be compelled to give evidence against himself ; he shall have the right of being heard liy himself or counsel ; he shall have the right, unless he shall have fled from justice, of meeting the witnesses face to face, and shall have compulsory process for obtaining wit- nesses in his favor. Art. 108. — All prisoners shall be bailable by sufficient sureties, unless for capital offences, where the proof is evident, or presumption great ; and the privilege of the habeas corpus shall not be suspended, unless when in case of rcbelKon or in- vasion the public safety may require it. Art. 109. — No ex post facto law, nor any law impairing the obhgation of contracts, shall be passed ; nor vested rights be divested, unless for purposes of public utihty, and for ade- quate compensation previously made. Art. 110. — The press shall be free. Eveiy citizen may freely speak, -wiite, and publish his sentiments on all subjects ; being responsible for an abuse of this Hberty. Art. 111. — Emigration from the State shall not be pro- hibited. Art. 112. — The General Assembly, which shall meet af- ter the first election of Kepresentatives under this Constitu- tion, shall, within the first month after the commencement of the session, designate and fix the seat of government, at some place not less than sixty miles from the city of New Orleans, by the nearest travelling route ; and if on the Mississippi river, by the meanders of the same : and when so fixed, it shall not be removed without the consent of four-fifths of the members of both Houses of the General Assembly. The sessions shall be held in New Orleans until the end of the year 1848. 26 CONSTITUTION OF THE STATE OF LOUISIANA. Art. 113. — The Legislature shall not pledge the faith of the State for the payment of any boncls, bills, or other con- tracts or obhgations for the benefit or use of any person or jDersons, corporation or body poHtic whatever. But the State shall have the right to issue new bonds in payment of its out- standing obhgations or liabihties, whether due or not ; the said new bonds, however, are not to be issued for a larger amount, or at a higher rate of interest, than the original obh- gations they are intended to replace. Art. 114. — The aggregate amount of debts hereafter con- tracted by the Legislature, shall never exceed the sum of one hundred thousand dollars, except in case of war, to repel inva- sions or suppress insurrections, unless the same be authorized by some law, for some single object or work, to be distinctly specified therein ; wliich law shall pro\dde ways and means, by taxation, for the pajmient of running interest during the whole time for which said debt shall be contracted, and for the full and punctual discharge at maturity of the capital bor- rowed ; and said law shall be irrepealable until principal and interest are fully paid and discharged, and shall not be put into execution until after its enactment by the first Legisla- ture returned by a general election after its passage. Art. 115. — The Legislature shall provide by law for a change of venue in civil and criminal cases. Art. 116. — No lottery shall be authorized by tliis State, and the buying or seUing of lottery tickets within the State, is prohibited. Art. 117. — No divorce shall be granted by the Legisla- ture. Art. 118. — Every law enacted by the Legislature shall embrace but one object, and that shall be expressed in the title. Art. 119. — No law shaU be revised or amended by refer- ence to its title ; but in such case, the act revised, or section amended, shall be re-enacted and j)ubhshed at length. Art. 120. — The Legislature shaU never adopt any system CONSTITUTION OF THE STATE OF LOUISIANA. 27 or code of laws by general reference to such system or code of laws, but in all cases shall specify the several provisions of the laws it may enact. Art. 121. — The State shall not become subscriber to the stock of any cori^oration or joint stock company. Art. 122. — No corporate body shall be hereafter created, renewed, or extended, with banking or discounting jmAdlcgcs. Art. 123. — Corporations shall not be created in this State by special laws, except for political or municipal pui-poses ; but the Legislature shall provide, by general laws, for the organi- zation of all other corporations, except corporations with bank- ing or discounting privileges, the creation of which is pro- hibited. Art. 124. — From and after the month of January, 1890, the Legislature shall have the power to revoke the charters of all corporations whose charters shall not have expired previous to that time, and no coi-porations hereafter to be created shall ever endure for a longer term than twenty-five years, except those which are political or municipal. Art. 125. — The General Assembly shall never grant any exclusive privilege or monopoly, for a longer period than twenty years. Art. 126. — No person shall hold or exercise, at the same time, more than one civil office or emolument, except that of Justice of the Peace. Art. 127. — Taxation shall be equal and uniform through- out the State. After the year 1848 all property, on which taxes may be levied, in this State, shall be taxed in proportion to its value, to be ascertained as directed by law. No one spe- cies of property shall be taxed higher than another species of property of equal value, on which taxes shall be levied ; the Legislature shall have power to levy an income tax, and to tax aU persons pursuing any occupation, trade or profession. Art. 128. — The citizens of the city of New Orleans shall have the right of appointing the several public officers neces- sary for the administration of the police of the said city, pur- 28 CONSTITUTION OF THE STATE OF LOUISIANA. STiant to the mode of elections wliicli shall be prescribed by the Legislature : ^jrov/c^ec?, that the Mayor and Record ei-g shall be inehgible to a seat in the General Assembly ; and the Mayor, Recorders, and Aldermen shall be commissioned by the Governor as Justices of the Peace, and the Legislature may vest in them such criminal jurisdiction as may be necessary for the pimishment of minor crimes and offences, and as the police and good order of said city may require. Art. 129. — The Legislature may pro\dde by law in what case officers shall continue to perform the duties of their offices until then- successors shall have been inducted into office. Art. 130. — Any citizen of this State who shall, after the adoption of tliis Constitution, fight a duel T\ith deadly wea- pons vnih a citizen of this State, or send or accept a challenge to fight a duel with deadly vp^eapons, either within the State or out of it, with a citizen of this State, or who shall act as second, or kno■\^dngly aid or assist in any manner, those thus offending, shall be deprived of holding any office of trust or profit, and of enjoying the right of suffrage under this Con- stitution, Art. 131. — The Legislature shall have power to extend this Constitution, and the jurisdiction of this State over any tenitory acquired by compact with any State, or with the United States, the same being done by the consent of the United States. Art. 132. — The Constitution and Laws of this State shaU be promulgated in the EngHsh and French languages. TITLE IV. PUBLIC EDUCATION. Art. 133. There shaU be appointed a Superintendent of Public Education, who shaU hold his office for two years. His duties shall be prescribed by law. He shall receive such com- pensation as the Legislatm-e may direct. CONSTITUTION OF THE STATE OF LOUISIANA. 2$' Art. 134. — The Legislature shall establish free Public Schools throughout the State, and shall provide means for their support by taxation on property or otherwise. Art. 135. — The proceeds of all lands heretofore granted by tlio United States to this State for the use or support of scliools, and of all lands wliich may hereafter be granted or be- queathed to the State, and not expressly granted or bequeathed for any other purpose, wliich hereafter may be disposed of by the State, and the proceeds of the estates of deceased persons to which the State may become entitled by law, shall be held by the State as a loan, and shaU be and remain a j)erpetual fund, on which the State shall pay an annual interest of six per cent. ; wliich interest, together mth aU the rents of the unsold lands, shall be appropriated to the support of such schools, and this iippropriation shall remain inviolable. Art. 136. — All moneys arising from the sales which have been or may hereafter be made of any lands heretofore grant- ed by the United States to this State, for the use of a semi- naiy of learning, and from any land of donation that may hereafter be made for that purj)ose, shall be and remain a per- petual fund, the interest of which at six per cent per annum, shall be appropriated to the support of a seminary of learning for the promotion of literature and the arts and sciences, and no law shall ever be made diverting said fund to any other use than to the estabHshment and improvement of said seminary of learning. Art. 137. — An University shall be established in the city of New Orleans. It shall be composed of four faculties, to wit : one of law, one of medicine, one of the natural sciences, and one of letters. Art. 138. — It shaU be called the " University of Louisi- ana," and the Medical College of Louisiana, as at present or- ganized, shall constitute the faculty of medicine. Art. 139. — The Legislature shall provide by law, for its further organization and government ; but shall be under no obligation to contribute to the establishment or support of said University by appropriations. 30 CONSTITUTION OF THE STATE OF LOUISIANA. TITLE VIII. MODE OF REVISING THE CONSTITUTION. Art. 140. — Any amendment or amendments to this Con- stitution may be proposed in the Senate or House of Repre- sentatives, and if the same shall be agreed to by three-fifths of the members elected to each House, and approved by the Governor, such proposed amendment or amendments shall be entered on their journals, with the yeas and nays taken there- on, and the Secretary of State shaU cause the same to be pubHshed, three months before the next general election, in at least one newspaper, in French and English, in every parish in the State in which a newspaper shall be pubhshed ; and if, in the Legislature next afterwards chosen, such proposed amend- ment or amendments shaE be agreed to by a majority of the members elected to each house, the Secretary of State shall cause the same again to be pubhshed in the manner aforesaid, at least three months previous to the next genefal election for Representatives to the State Legislature, and such proposed amendment or amendments shall be submitted to the people at said election ; and if a majority of the quaHfied electors shall approve and ratify such amendment or amendments, the same shall become a part of the Constitution, If more than one amendment be submitted at a time, they shaU be submit- ted in such manner and form that the peo]3le may vote for or against each amendment, separately. TITLE IX. SCHEDULE. Art. 141. — The Constitution adopted in 1812, is declared to be superseded by this Constitution, and in order to carry the same into effect it is hereby declared and ordained as fol- lows : Art, 142. — AU rights, actions, prosecutions, claims and CONSTITUTION OF THE STATE OF LOUISIANA. 31 contracts, as well of individuals as of bodies corporate, and all laws in force at the time of the adoption of this Constitution, and not inconsistent therewith, shall continue as if the same had not been adopted. Art. 143. — Qntil the first enumeration shall be made as directed in Article eighth of this Constitution, the parish of Orleans shall have twenty Representatives, to be elected as foUows, viz.: Eight by the First Municipality, seven by the Second Mu- nicipaUty, and four by the third Municipality, to be distribu- ted among the nine Representative districts as follows, by allotting to the First District 2 The parish of Livingston 1 Second u 2 u St. Tammany 1 Third (( 3 (( Point Coup6e 1 Fourth cc 3 u Concordia 1 Fifth u 8 (( Tensas 1 Sixth (( 2 (C Madison 1 Seventh (( 2 {( Carroll 1 Eighth (( f 1 (( Franklin 1 Ninth u 1 (( St. Mary 2 And to that part of the parish (( St. Martin 3 on the right bank of the u Vermillion 1 Mississippi 1 (( Lafayette 2 The parish of Plaquemines 3 C( St. Landry 5 (( St. Bernard 1 (( Calcasieu 1 (( Jefferson 3 C( Avoyelles 2 (( St. Charles 1 u Rapides 3 t( St. Jolin the Baptist 1 (( Natchitotches 3 ({ St. James 2 u Sabine 2 (( Ascension 2 ;( Caddo u Assumption 3 4( De Soto u Lafourche Interior 3 (( Ouachita u Terrebonne 2 (( Morehouse u Iberville 2 (( Union u West Baton Rouge 1 (( Jackson u East do 3 (( Caldwell u West Feliciana 2 (( Catahoula 2 u East do 3 (( Claiborne 2 u St. Helena 1 (i Bossier 1 u Washington 1 Total- —ninety-eight. 32 CONSTITtTTION OF THE STATE OF LOUISIANA. And the State shall be divided into the following Senato- rial Districts : All that portion of the parish of Orleans lying on the east side of the Mississippi River, shall compose one senatorial dis- trict, and shall elect four Senators. The parishes of Plaquemines, St. Bernard, and that part of the parish of Orleans on the right bank of the river, shall compose one district with one senator. The parish of Jefferson, shall compose one district, with one senator. The parishes of St. Charles and St. John the Baptist shall compose one district, with one senator. The parish of St. James shall compose one district, with one senator. The parish of Ascension shall compose one district, with one senator. The parishes of Assumption, Lafourche Interior and Ter- rebonne shall compose one district, with two senators. The parishes of Iber^alle_ and West Baton Eouge shall compose one district, with one senator. The parish of East Baton Eouge shall compose one dis- trict, with one Senator, The parish of Point Coupee shall compose one district, with one senator. The parish of Avoyelles shall compose one district, with one senator. The parish of St. Mary shall compose one district, with one senator. The parish of St. Martin shall comj)Ose one district, with one senator. The parishes of Lafayette and Vermillion shall compose one district, with one senator. The parishes of St. Landry and Calcasieu shall compose one district, with two senators. The parish of West Feliciana shall compose one district, ■with one senator. CONSTITUTION OF THE STATE OF LOUISIANA. 33 The parisli of East Feliciana shall compose one district, with one senator. The parishes of St. Helena and Livingston shall compose one district, with one senator. The parishes of Washington and St. Tammany shall com- pose one district, with one Senator. The parishes of Concordia and Tensas shall compose one district, with one senator. The parishes of Carroll and Madison shall compose one district, with one senator. The parishes of Jackson, Union, Morehouse and Ouachita shall compose one district, with one senator. The parishes of Caldwell, Franldin and Catahoula shall compose one district, with one senator. The parish of Eapides shall compose one district, with one senator. The parishes of Bossier and Claiborne shall compose one district, with one senator. The parish of Natchitoches shall compose one district, with one Senator. The parishes of Sabine, De Soto and Caddo, shall com- pose one district, with one senator. Art. 144. — In order that no inconvenience may result to the public service from the taking efioct of tliis Constitution, no office shall be superseded thereby, but the laws of the State relative to the duties of the several officers, Executive, Judi- cial and Military, shall remain in full force, though the same be contrary to this Constitution, and the several duties shaU be performed by the respective officers of the State, according to the existing laws, until the organization of the Government, under this Constitution, and the entering into office of the new officers, to be appointed under said Government, and no longer. Art. 145. — Appointments to office by the Executive under this Constitution, shall be made by the Governor to be elected under its authority. 3 34 CONSTITUTION OF THE STATE OF LOUISIANA. Art. 146. — The provisions of article twenty-eight, concern- ing the inability of members of tlie Legislature to hold certain offices therein mentioned, shall not be held to apjily to the members of the first Legislature elected under this Constitu- tion. Art. 147. — The time of service of aU officei-s chosen by the people, at the first election under this Constitution, shaU termi- nate as though the election had been holden on the first Monday of November, 1845, and they had entered on the discharge of their duties at the time designated therein. Art. 148. — The Legislature shall provide for the removal of all causes now pending in the Suj^reme or other Courts of the State under the Constitution of 1812, to courts created by this Constitution. Art. 149. — Appeals to the Supreme Court from the parishes of Jackson, Union, Morehouse, Catahoula, CaldweU, Ouachita, Franklin, Carroll, Madison, Tensas and Concordia, shall, until otherwise provided for, be returnable to New Orleans. TITLE X. ORDINANCE. Art. 150. — Immediately after the adjournment of the Con- vention, the Grovernor shall issue his Proclamation, directing the several officers of this State, authorized by law to hold elections for members of the General Assembly, to open and hold a jDoU in every parish of the State, at the places designa- ted by law, upon the first Monday of November next, for the purpose of taking the sense of the good people of tliis State in regard to the adoption or rejection of this Constitution ; and it shall be the duty of the said officers to receive the votes of aU persons entitled to vote under the old Constitution, and under this Constitution. Each voter shall express his opinion by depositing in the ballot box a ticket whereon shall be writ- ten, "the Constitution accepted," or "the Constitution rejected/' CONSTITUTION OF THE STATE OF LOUISIANA, 35 or some such words as will distinctly convey the intention of the voter. At the conclusion of the said election, wliich shall be conducted in every respect as the general State election is now conducted, the parish judges and commissioners designa- ted to preside over the same, shall carefully examine and count each ballot so deposited, and sliall forthwith make due returns thereof to the Secretary of State, in conformity to the provis- ions of the existing law upon the subject of elections. Art. 151. — Upon the receipt of said returns, or on the first Monday of December, if the returns be not sooner received, it shall be the duty of the Governor, the Secretary of State, the Attorney General, and the State Treasurer, in the presence of all such persons as may choose to attend, to compare the votes given at the said poll, for the ratification and rejection of tliis Constitution, and if it shall appear from said returns that a majority of all the votes given is for ratifying this Constitution, then it shall be the duty of the Governor to make proclama- tion of that fact, and thenceforth this Constitution shaU be ordained and estabUshed as the Constitution of the State of Louisiana. But whether this Constitution be accepted or rejected, it shall be the duty of the Governor to cause to be pubHshed in the State paper, the result of the polls, showing the number of votes cast in each parish for and against the said Constitution. Art. 152. — Should tliis Constitution be accepted by the people, it shall also be the duty of the Governor forthwith to issue his proclamation, declaring the present Legislature, elected under the old Constitution, to be dissolved, and direct- ing the several officers of the State authorized by law, to hold elections for members of the General Assembly, to hold an election at the places designated by law, upon the thhd Mon- day in January next, (1846) for Governor, Lieutenant Gover- nor, Members of the General Assembly, and all other officers whose election is provided for pursuant to the provisions of this Constitution. And the said election ghall be conducted, and the returns thereof made, in conformity with existing laws upon the subject of State elections. 36 CONSTITUTION OF THE STATE OF LOUISIANA. Art. 153. — The Greneral Assembly elected under this Con- stitutioiL, shall convene at the State House, in the city of New Orleans, upon the second Monday of February next, (1846) after the elections ; and that the Governor and Lieutenant Governor, elected at the same time, shaU be duly installed in office during the fii'st week of their session, and before it shall be competent for the said General Assembly to proceed with the transaction of business. Adopted in Convention, on the 14th day of May, 1845, in the city of New Orleans. In witness whereof we have here- unto subscribed our names. JOSEPH WALKEE, President of the Convention, and Senatorial Delegate of the County of Rapides. (Attest) HORATIO DAVIS, Secretary of the Convention. CONSTITUTION OF THE STATE OF LOUISIANA ADOPTED IN CONVENTION, JULY 31, 1852. PEEAMBLE. We, the people of the State of Louisiana, do ordain and establish this Constitution. TITLE L DISTRIBUTION OF POWERS. Art. 1. — The j)owers of the Government of the State of Louisiana shall be divided into three distinct departments, and each of them to be confided to a separate body of magistracy, to wit : those which are Legislative to one ; those wliich are Executive to another, and those which are Judicial to another. Art. 2. — No one of these departments, nor any j)erson holding office in one of them, shaU exercise power properly belonging to either of the others, except in the instances here- inafter expressly directed or permitted. TITLE IL LEGISLATIVE DEPARTMENT. Art. 3. — The Legislative power of the State shaU be vest- ed in two distinct branches, the one to be styled " the House 38 CONSTITUTION OF THE STATE OF LOUISIANA. of Representatives/' the other " the Senate," and both " the General Assembly of the State of Louisiana." Art. 4. — The members of the House of Eepresentatives shall continue in sendee for the term of two years from the day of the closing of the general elections. Art. 5. — RejDresentatives shall be chosen on the first Mon- day in N'ovember, every two years ; and the election shall be completed in one dayl The General assembly shall meet an- nually, on the third Monday in January, unless a different day be appointed by law, and their sessions shall be held at the seat of government. Art. 6. — Every duly qualified elector under this Constitu- tion shall be ehgible to a seat in the General Assembly ; pro- vided that no person shall be a Eepresentative or Senator, unless he be, at the time of his election, a duly quaUfied voter of the Representative or Senatorial District from which he is elected. Art. 7. — Elections for members of the General Assembly shall be held at the several election precincts estabHshed by law. The Legislature may delegate the power of estabhshing election precincts to the parochial or municipal authorities. Art. 8. — Rejiresentation in the House of Representatives shall be equal and unifonn, and shall be regulated and ascer- tained by the total population of each of the several parishes of the State, Each Parish shall have at least one Represen- tative. No new Parish shall be created with a territory less than six hundred and twenty-five square miles, nor with a population less than the full number entithng it to a Repre- sentative, nor when the creation of such new Parish would leave any other Parish without the said extent of territory and amount of population. The first enumeration by the State authorities under this Constitution shall be made in the year 1853, the second in the year 1858, the third in the year 1865 ; after which time, the General assembly shall direct in what manner the census shall be taken, so that it be made at least once in every pe- CONSTITUTION OF THE STATE OF LOUISIANA. 39 riod of ten years, for the purjjose of ascertaining the total poj)ulation in each Parish and election District. At the first regular session of the Legislature after the making each enumeration, the Legislature shall apportion the representation among the several Parishes and election Dis- tricts on the basis of the total population as aforesaid. A rep- resentative number shall be fixed, and each Parish an^ election District shall have as many Representatives as its aggregate population shall entitle it to, and an additional Representative for any fraction exceeding one-half the Representative num- ber. The number of Representatives shall not be more than one hundred nor less than seventy. Until an apportionment shall be made, and elections held under the same, in accordance with the first enumeration to be made as directed in this article, the Representation in the Senate and House of Representatives shall be and remain as at present estabhshed by law. Tlie limits of the Parish of Orleans are hereby extended, so as to embrace the whole of the present city of New Orleans, including that part of the Parish of Jefierson, formerly known as the City of Lafayette. All that part of the Parish of Orleans which is situated on the left bank of the IMississippi River, shall be di\dded by the Legislatm-e into not more than ten Representative Districts, and until a new apportionment shall be made according to the first census to be taken under this Constitution, that part of the City of New Orleans wliich was comprised within the for- mer limits of the City of Lafayette, shall vote for Senators from the Parish of Orleans, and form the Tenth Representa- tive District, and shall elect two out of the three Representa- tives now apportioned by law to the Parish of Jefierson ; the other Representative Districts shall remain as they are now es- tabhshed. Art. 9. — The House of Representatives shall choose its Speaker and other officers. Art. 10. — Eveiy free white male who has attained the age 40 CONSTITUTION OF THE STATE OF LOUISIANA. of twenty-one years, and who has been a resident of the State twelve months next preceding the election, and the last six months thereof in the Parish, in which he offers to vote, and who shall be a citizen of the United States, shall have the right of voting, but no voter, on removing from one Parish to another, within the State, shall lose the right of voting in the former until he shall have acquired it in the latter. Elec- tors shall in all cases except treason, felony, or breach of the peace, be privileged from arrest, during their attendance at, going to, or returning from elections. Art. 11. — The Legislature shall provide by law, that the names and residence of all quahfied electors of the City of New Orleans shall be registered, in order to entitle them to vote ; but the registry shall be free of cost to the elector. Art, 12. — ^No soldier, seaman or marine in the Army or Navy of the United States, no pauper or person under inter- diction, nor under conviction of any crime punishable with hard labor, shall be entitled to vote at any election in this State. Art. 13. — No person shall be entitled to vote at any elec- tion held in this State, except in the Parish of his residence, and in cities and towns divided into election precincts, in the election precinct in which he resides. Art. 14. — The members of the Senate shall be chosen for the term of four years. The Senate when assembled, shall have the power to choose its officers. Art. 15. — The Legislature, in every year in which they shall apportion representation in the House of Eepresentatives, shall divide the State into Senatorial Districts. No Parish shall be divided in the formation of a Senatorial District — the Parish of Orleans excepted. And whenever a new Parish shall be created, it shall be attached to the Senatorial District from which most of its territory was taken, or to another con- tiguous district, at the discretion of the Legislature ; but shall not be attached to more than one District. The number of Senators shall be thirty-two, and they shall be apportioned CONSITTUTION OF THE STATE OF LOUISIANA. 41 among the Senatorial Districts according to the total popula- tion contained in the several Districts ; Provided that no Par- ish shall be entitled to more than five Senators. Art. 16. — In aU apportionments of the Senate, the popula- tion of the City of New Orleans shall be deducted from the population of the whole State, and the remainder of the popu- lation divided by the number twenty-seven,and the result pro- duced by this di\'ision shall be the Senatorial ratio entithng a Senatorial District to a Senator. Single or contiguous Par- ishes shall be formed into Districts, having a population the nearest possible to the number entitling a District to a Sena- tor ; and if, in the apportionment to be make, a Parish or District fall short of or exceed the ratio one-fifth, then a Dis- trict may be formed having not more than two Senators but not otherwise. No new apportionment shall have the effect of abridging the term of service of any Senator already elected at the time of making the apportionment. After an enume- ration has been made as directed in the eighth article, the Legislature shall not pass any law until an apiwrtionment of Kepresentation in both Houses of the General Assembly be made. Art. 17. — At the first session of the General Assembly after tliis Constitution takes efi"ect, the Senators shall be equal- ly divided by lot into two classes ; the seats of the Senators of the first class shall be vacated at the expiration of the sec- ond year ; of the second class, at the exi^iration of the fourth year ; so that one-half shall be chosen eveiy two years, and a rotation thereby kept up perpetually. In case any District shall have elected two or more Senators, said Senators shall vacate their seats respectively at the end of two and four years, and lots shall be drawn between them. Art. 18. — The first election for Senators shall be general throughout the State, and at the same time that the general election for Kepresentatives is held ; and thereafter there shall be biennial elections to fill' the places of those whose time of service may have expired. 42 CONSTITUTION OF THE STATE OF LOUISIANA. Art. 19. — ^Not less than a majority of the members of each House of the General Assembly shall form a quorum tc do business ; but a smaller number may adjourn from day to day, and shall be authorized by law to compel the attendance of absent members. Aet. 20. — Each House of the Greneral Assembly shall judge of the quahfication, election and returns of its mem- bers ; but a contested election shall be determined in ^ch manner as shall be directed by law. Art. 21. — ^Each House of the General Assembly may de- termuie the rules of its proceedings ; punish a member for disorderly behavior, and with the concurrence of two-thirds ex- pel a member, but not a second time for the same offence. Art. 22. — Each House of the General Assembly shall keep and publish a weeldy journal of its proceedings ; and the yeas and nays of the members on any question shall, at the desire of any two of them, be entered on the journal. Art. 23. — Each House may punish by imprisonment any person, not a member, for disrespectful and disorderly behav- ior in its presence, or for obsructing any of its proceedings. Such imprisonment shall not exceed ten days for any one offence. Art. 24. — Neither House, during the sessions of the Gen- eral Assembly shaU, without the consent of the other, adjourn for more than three days, nor to any other place than that in which they may be sitting. Art. 25. — The members of the General Assembly shall receive from the public treasury a compensation for their ser- vices, which shall be four dollars per day during their attend- ance, going to, and returning from the session of their respect- ive Houses. The compensation may be increased or dimin- ished by law ; but no alteration shall take effect during the period of service of the members of the House of Eepresenta- tives by whom such alteration shall have been made. No session shall extend to a period beyond sixty days, to date fi:om its commencement, and any legislative action had after CONSTITUTION OF THE STATE .OF LOUISIANA. 43 the expiration of the said sixty days shall be null and void. This pro\dsion shall not apply to the first Legislature which ii to convene after the adoption of this Constitution. Art. 26. — The members of the General Assembly shall, in all cases except treason, felony, breach of the peace, be pri'sdleged from arrest during their attendance at the session of their respective Houses, and going to or returning from the same, and for any speech or debate in either House, they shall not be questioned in any other place. Art. 27. — No Senator or Representative shall, during the term for which he was elected, nor for one year thereafter, be appointed or elected to any civil office of profit under this State, which shall have been created, or the emohmicnts of which shall have been increased during the time such Senator or Representative was in office, except to such offices or ap- pointments as may be fiUed by the elections of the jieople. Art. 28. — No person who at any fimc may have been a collector of taxes, whether State, Parish, or Municipal, or who may have been othersvise intrusted with public money, shall be eligible to the General Assembly, or to any office of profit or trust under the State Government, until he shall have ob- tained a discharge for the amount of such collections, and for all public moneys with wliich he may have been intrusted. Art. 29. — No biU shall have the force of a law until on three several days, it be read over in each House of the Gene- ral Assembly, and free discussion allowed thereon, unless in case of urgency, four-fifths of the House where the bill shall be pending, may deem it expedient to dispense with this rule. Art, 30. — All biUs for raising revenue shall originate in the House of Representatives, but the Senate may propose amend- ments as in other bills ; provided they shall not introduce any new matter under color of an amendment, which does not re- late to raising revenue. Art. 31. — The General Assembly sliaU regulate by law, by whom, and in what manner writs of elections shall be 44 CONSTITIITION OF THE STATE OF LOUISIANA. issued to fill the vacancies which may happen in either branch thereof. Art. 32. — The Senate shall vote on the confirmation or rejection of officers, to be appointed by the Governor, with the advice and consent of the Senate, by yeas and nays, and the names of the Senators voting for and against the appoint- ments respectively, shall be entered on a journal to be kept for that purpose, and made pubUc at the end of each session, or before. Art. 33. — Eeturns of all elections for members of the General Assembly shall be made to the Secretary of State. Art. 34. — In the year in which a regular election for a Senator of the United States is to take place, the members of the General Assembly shall meet in the Hall of the House of Kepresentatives, on the Monday following the meeting of the Legislature, and proceed to the said election. TITLE III. executive department. Art. 35. — The Supreme Executive power of the State shall be vested in a Chief Magistrate, who shaU be styled the Governor of the State of Louisiana. He shall hold his office during the term of four years, and together with the Lieutenant Governor, chosen for the same term, be elected as follows : The qualified electors for Eepresentatives, shall vote for a Governor and Lieutenant Governor, at the time and place of voting for Kepresentatives ; the returns of every election shall be sealed up and transmitted by the proper returning officer to the Secretary of State, who shall dehver them to the Speaker of the House of Eepresentatives, on the second day of the ses- sion of the General Assembly, then next to be holden. The members of the General Assembly shall meet in the House of Eepresentatives, to examine and count the votes. The person having the greatest number of votes for Governor shall be de- CONSTITUTION OF THE STATE OF LOUISIANA. 45 clared duly elected, but if two or more persons shall be equal and highest in the number of votes polled for Governor, one of them shall immediately be chosen Governor by joint vote of the members of the General Assembly. The person hav- ing the greatest number of votes for Lieutenant Governor shall be Lieutenant Governor, but if two or more persons shall be equal and highest in the number of votes polled for Lieuten- ant Governor, one of them shall be immediately chosen Lieu- tenant Governor by joint vote of the members of the General Assembly. Art. 36. — No person shall be eligible to the office of Gov- ernor or Lieutenant-Governor who shall not have attained the age of twenty-eight years, and been a citizen and a resident within the State for the sj^ace of four years next preceding his election. Art. 37. — The Governor shall enter on the discharge of liis duties on the fourth Monday of January next ensuing liis election, and shall continue in office until the Monday next succeeding the day that his successor shall be declared duly elected, and shall have taken the oath or affirmation required by the Constitution. Art. 38. — The Governor shall be inehgible for the suc- ceeding four years, after the expiration of the time for which he shall have been elected. Art. 39. — No member of Congress or person holding any office under the United States shall be ehgible to the office of Governor or Lieutenant Governor. Art. 40. — In case of the impeachment of the Governor, his removal from office, death, refusal, or inabiUty to qualify, resignation or absence from the State, the powers and duties of the office shall devolve upon the Lieutenant Governor for the residue of the term, or until the Governor, absent or im- peached, shall return or be acquitted. The Legislature may provide by law for the case of removal, impeachment, death, resignation, disabihty or refusal to qualify, of both the Gover- nor or Lieutenant Governor, declaring what officer shall act as 46 CONSTITUTION OF THE STATE OF LOUISIANA. Governor, and such officer shall act accordingly until the disa* bilitj be removed or for the residue of the term. Art. 41. — The Lieutenant Governor, or officer discharg- ing the duties of Governor, shall, during his administration, receive the same comj^ensation to which the Governor would have been entitled, had he continued in office. Art. 42. — The Lieutenant Governor shall, by virtue of his office, be President of the Senate, but shall have only a castinof vote therein. Whenever he shall administer the Gov- ernment, or shall be unable to attend as President^ of the Sen- ate, the Senators shall elect one of their own members as President of the Senate for the time being. Art. 43. — While he acts as President of the Senate, the Lieutenant Governor shall receive for his services the same compensation wliich shall for the same period be allowed to the Speaker of the House of Representatives, and no more. Art. 44. — The Governor shall have power to grant re- prieves for all offences against the State, and except in cases of impeachment, shall, with the consent of the Senate, have power to grant j)ardons and remit fines and forfeiture, after conviction. In cases of treason he may grant reprieves, until the end of the next session of the General Assembly, in which the power of pardoning shall be vested. Art. 45. — The Governor shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the term for which he shaU have been elected. Art. 46. — He shall be Commander-in-Chief of the Army and Navy of this State, and of the Mditia thereof, except when they shaU be called into the sei-vice of the United States. Art. 47. — He shall nominate, and by and with the advice and consent of the Senate, appoint all officers whose offices -are established by this Constitution, and whose appointment is not therein otherwise provided for ; Provided, however, that the CONSTITUTION OF THE STATE OF LOUISIAlfA. 47 Legislature shall have a right to prescribe the appomtmcnt to ill other offices established by law. Art. 48. — The Governor shall have power to fill vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of the next session, unless otherwise pro^dded for in this Constitution ; but no person who has been nominated for office, and rejected by the Senate, shall be appointed to the same office during the recess of the Senate. Art. 49. — He may require information in ^^^iting from the officers in the Executive Department, upon any subject relating to the duties of their respective offices. Art. 50. — He shall, from time to time, give to the Gene- ral Assembly information respecting the situation of the State, and recommend to theu' consideration such measm'es as he may deem expedient. Art. 51. — He may, on extraordinary occasions, convene the General Assembly at the seat of Government, or at a dif- ferent place, if that should have become dangerous from an enemy or from epidemic ; and in case of disagreement be- tween the two Houses as to the time of adjournment, he may adjourn them to such time as he may tliink proper, not ex- ceeding four months. Art. 52. — He shall take care that the laws be faithfully ex- ecuted. Art. 53. — Every bill which shall have passed both Houses shall be presented to the Governor ; if he approve, he shall sign it, if not he shall return it with his objections to the House in wliich it originated, which shall enter the objections at large upon its journal, and proceed to reconsider it; if, after such reconsideration, two-thirds of all the fnembers elected to that House shall agree to pass the bill, it shall be sent, with the objections, to the other House, by wliich it shall likewise be reconsidered, and if approved by two-thirds of all the mem- bers elected to that House, it shall be a law ; but in such cases the vote of both Houses shall be determined by yeas and 48 CONSTITUTION OF THE STATE OF LOUISIANA. nays, and the names of the members voting for or against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the Governor within ten days (Sunday excepted) after it shall have been presented to him, it shall be a law in like manner as if he had signed it, unless the General Assembly, by adjournment, prevent its re- turn ; in wliich case it shall be a law, unless sent back within three days after their next session. Art. 54. — Every order, resolution or vote to which the concuiTcnce of both Houses may be necessary, except on a question of adjournment, shall be presented to the Governor, and before it shall take effect, be approved by him, or, being disapproved, shall be repassed by two-thirds of the members elected to each House of the General Assembly. Art. 55. — There shall be a Secretary of State who shall hold liis office during the time for wliich the Governor shall have been elected. The records of the State shall be kept and preserved in the office of the Secretary ; he shall keep a fair register of the official acts and proceedings of the Governor, and when necessary, shall attest them. He shall, when requir- ed, lay the said register, and all papers, minutes and vouchers relative to his office, before either House of the General As- sembly, and shall perform such other duties as may be enjoined on him by law. Art. 56. — There shall be a Treasurer of the State who shall hold his office during the term of two years. Art. 57. — The Secretary of State and Treasurer of State, shall be elected by the qualified electors of the State, And in case of any vacancies caused by the death, resignation or absence of the Treasurer or Secretary of State, the Governor shall order an election, to fill said vacancy. Art. 58. — All commissions shall be in the name and by the authority of the State of Louisiana, and shall be; sealed with the State seal and signed by the Governor. Art. 59. — The free wliite men of the State shall be armed and disciiDlined for its defence ; but those who belong to reh- CONSTITUTION OF THE STATE OF LOUISIANA. 49 gioiis societies, whose tenets forbid tliem to carry arms, shall not be compelled so to do, but shall pay an equivalent for personal ser\dces. Art. 60. — The Militia of the State shall be organized in such manner as may hereafter be deemed most expedient by the Legislature, TITLE IV. JUDICIARY DEPARTMENT. Art. 61. — The Judiciary power shall be vested in a Supreme Court, in such Inferior Courts as the Legislature may, from time to time, order and establish, and in Justices of the Peace. Art. 62. — The Supreme Court, except in the cases herein- after provided, shall have appellate jurisdiction only ; which ju- risdiction shall extend to all cases when the matter in disi)uto shall exceed three hundred dollars ; to all cases in which the con- stitutionality or legality of any tax, toll, or impost whatsoever, or of any fine, forfeiture or penalty imposed by a municipal cor- poration, shall be in contestation ; and to all criminal cases on questions of law alone, whenever the offence charged, is pun- ishable Avith death, or imprisonment at hard labor, or when a fine exceeding three hundred dollars is actually imposed. The Legislature shall have power to restrict the jurisdiction of the Supreme Court in civil cases to questions of law only. Art. 63. — The Supreme Court shall be composed of one Chief Justice and four Associate Justices, a majority of whom shall constitute a quorum. The Chief Justice shall receive a salary of six thousand dollars, and each of the Associate Judges a salary of five thousand five hundred dollars annually, until otherwise provided by Law. The Court shall appoint its own Clerks ; the Judges shall be elected for the term of ten years. Art. 64. — The Chief Justice shall be elected by the qualified electors of the State. The Legislatm-e shall divide the State 4 50 CONSTITUTION OF THE STATE OF LOUISIANA. into four Districts, and the qualified electors of each District, shall elect one of the Associate Justices. The State shall be divided into the following Districts until the Legislature shall otherwise direct. FIRST DISTKICT. The parishes of Plaquemines, St. Bernard, that portion of the Parish of Orleans on the right bank of the Mississippi Eiver, and that portion of the city of New Orleans which lies below the line extending from the Kiver Mississippi, along the middle of Julia street until it strikes the New Orleans Canal, and thence down said Canal to the Lake. SECOND DISTRICT. That portion of the City of New Orleans wliich is situated above the line extending along the middle of Julia street until it strikes the New Orleans Canal, and thence down said Canal to the Lake, and the Parishes of Jciferson, St. John the Bap- tist, St. Charles, St. James, Ascension, Assumption, Lafourche Interior, Terrebonne, West Baton Kouge and IberviUe. THIRD DISTRICT. The Parishes of St. Tammany, Washington, Livingston, St. Helena, East Baton Rouge, East Feliciana, West Felici- ana, Point Coupee, Avoyelles, Tensas, Concordia, Lafayette, VermiUion, St. Mary, St. Martin and St. Landiy. FOURTH DISTRICT. The Parishes of Calcasieu, Rapides, Sabine, Natchitoches, De Soto, Caddo, Bossier, Claiborne, Bienville, Caldwell, Union, Ouacliita, Morehouse, Jackson, Franldin, Catahoula, Madison, Carroll and Winn. Art. 65. — The office of one of the Associate Justices shall be vacated at the expiration of the second year, of another at CONSTITUTION OF THE STATE OF LOUISIANA. 51 the expiration of the fourth year, of a third at the expiration of the sixth year, and of the fourth at the expiration of tlie eighth year — so that one of the Judges of the Supreme Court shall be elected every second year. Art. 66. — The Secretary of State, on receiving the official returns of the first election, shall proceed immediately, in the presence and with the assistance of two Justices of the Peace, to determine by lot among the four candidates having the highest number of votes in the respective districts, which of the Associate Justices elect shall serve for the term of two years, which shall serve for the term of four years, wliich for the term of six years, and which for the term of eight years, and the Governor shall issue commissions accordingly. Art. 67. — Any vacancy that may occur in the Supreme Court from resignation or otherwise, shall be filled by election for the remainder of the unexpired term, but if such remain- der do not exceed one year, the vacancy shall be filled by Executive appointment. Art. 68. — The Supreme Court shall hold its Sessions in New Orleans from the first Monday of the month of Novem- ber to the end of the month of June inclusive. The Lcgisla- tm-e shall have power to fix the sessions elsewhere during the rest of the year ; until otherwise provided, the sessions shall be held as heretofore. Art. 69. — The Supreme Court and each of the Judges thereof shall have power to issue writs of " habeas corpus," at the instance of all persons in actual custody under process in all cases in which they may have appellate jurisdiction. j^RT. 70. — No judgment shall be rendered by the Supreme Court without the concurrence of a majority of the Judges comprising the Court. Whenever a majority cannot agree, in conseq[uence of the recusation of any member or members of the Court, the Judges not recused, shall have power to call upon any Judge or Judges of the Inferior Courts, whose duty it shall be, when so called upon, to sit in the place of the Judges recused, and to aid in determining the case. 52 CONSTITUTION OF THE STATE OF LOUISIANA. Art. 71. — All Judges, by Aqrtiie of their office, shall be con- servators of the peace throughout the State. The style of all process shall be " The State of Louisiana." All prosecutions shall be carried on in the name, and by authority of the State of Louisiana, and conclude against the peace and dignity of the same. Art. 72. — The Judges of all Courts within the State shall, as often as it may be possible so to do, in every definitive judg- ment, refer to the particular law in \drtue of which such judg- ment may be rendered, and in all cases adduce the reasons on which their judgment is founded. Art. 73. — The Judges of all Courts shall be Hable to impeachment, but for any reasonable cause, which shall not be sufficient ground for impeachment, the Governor shall remove any of them on the address of three-fourths of the members present of each House of the General Assembly. In every such case, the cause or causes for which such removal may be required, shall be stated at length in the address, and inserted in the Journal of each House. Art. 74. — There shall be an Attorney-General for the State, and as many District Attorneys as may be hereafter found necessaiy. They shall hold their offices for four years, their duties shall be determined by law. Art. 75. — The Judges, both of ithe Supreme and Inferior Courts, shall, at stated times, receive a salary, which shall not be diminished during their continuance in office ; and they are prohibited from receiving any fees of office, or other compensa- tion than their salaries for any civil duties performed by them. Art. 76. — The Legislature shaU have power to vest in Clerks of Courts authority to grant such orders and do such acts as may be deemed necessary for the furtherance of the adminis- tration of justice, and in all cases the powers thus granted shall be specified and determined. Art, 77. — The Judges of the several Inferior Com-ts shall have power to remove the Clerks thereof, for breach of good beha- vior ; subject in all cases to an appeal to the Supreme Court. CONSTITUTION OF THE STATE OF LOUISIANA. 53 Art. 78. — ^The Jurisdiction of Justices of the Peace shall he limited in civil cases to cases where the matter in dispute does not exceed one hundred dollars, exclusive of interest, suhjcct to appeal in such cases as shall he provided for hy law. They shall be elected by the qualified electors of each Parish, Dis- trict or Ward, for the term of two years in such manner, and shall have such criminal jurisdiction as shall be provided by law. Art. 79. — Clerks of the Inferior Courts in this State shall be elected for the term of four years, and should a vacancy occur subsequent to an election, it shall be filled by the Judge of the Court in which such vacancy exists, and tlic person so appointed shall hold his office until the next general election. Art. 80. — A Sheriff and a Coroner shall be elected in each Parish by the qualified voters thereof, who shall hold their office for the term of two years, unless sooner removed. The Legislature shall have the power to increase the number of Sheriffs in any Parish. Should a vacancy occur m either of these offices subsequent to an election, it shall be filled by the Governor ; and the person so appointed shall continue in office until his successor shall be elected and qualified. Art. 81. — The Judges of the several Inferior Courts shall be elected by the duly qualified voters of their respective Dis- tricts or Parishes. Art. 82. — It shall be the duty of the Legislature to fix the time for holding elections for all Judges at a time wliich shaU be different from that fixed for all other elections. Art. 83. — The Attorney-General shall be elected by the qualified voters of the State, and the District Attorneys by the qualified voters of each District on the day of the election for Governor of the State. Art. 84. — The Legislature may determine the mode of fiUing vacancies in the offices of the Inferior Judges, Attorney- General, District Attorneys, and all other officers not otherwise provided for in this Constitution. 54 CONSTITUTION OF THE STATE OF LOUISIANA. TITLE V. IMPEACHMENT. Art. 85. — The power of impeachment shall be vested in the House of Representatives. Art. 86. — Impeachments of the Governor, Lieutenant Gov- ernor, Attorney-General, Secretary of State, State Treasurer, and of the Judges of the Inferior Courts, Justices of the Peace excepted, shall be tried by the Senate ; tlie Chief Jus- tice of the Supreme Court, or the senior Judge thereof, shall preside during the trial of such impeachment. Impeachments of the Judges of the Supreme Court shall be tried by the Senate. When sitting as a Court of Impeachment, the Sena- tors shall be upon oath or affirmation, and no person shall be con^dcted without the concurrence of two-thirds of the Senators present. Art. 87. — Judgments in cases of impeachment shall extend only to removal from office and disqualification from holding any office of honor, trust or profit under the State : but the convicted parties shall, nevertheless, be subject to indictment, trial and punishment according to law. Art. 88. — All officers against whom articles of impeach- ment may be preferred, shall be suspended from the exercise of their functions during the i^endency of such impeachment : the appointing power may make a provisional appointment to replace any suspendeid officer until the decision of the impeach- ment. Art. 89. — The Legislature shall provide by law for the trial, punishment and removal from office of all other officers of the State by indictment or otherwise. CONSTITUTION OF THE STATE OF LOUISIANA. 55 TITLE VI. GENERAL PROVISIONS. Art. 90. — Members of the General Assembly, and all offi- cers before they enter upon the duties of their offices, shall take the following oath or affirmation : " I, (A. B.) do solemnly swear (or affirm) that I will sup- port the Constitution of the United States and of this State, and that I Avill faithfully and impartially discharge and perform all the duties incunil)ent on me as , according to the best of my abihties and understanding, agreeably to the Constitu- tion and laws of the United States, and of tliis State ; and I do further solemnly swear (or affirm) that since the adoption of the })resent Constitution, I, being a citizen of this State, have not fought a duel wdth deadly weapons witliin this State, nor out of it, Anth a citizen of this State, nor have I sent or accepted a challenge to fight a duel with deadly weapons with a citizen of tliis State, nor have I acted as second in carrying a challenge, or aided, advised or assisted any person thus of- fending, so help me God." Art. 91. — Treason against the State shall consist only in levying war against it, or in adhering to its enemies, gi^'ing them aid and comfort. No person shall be convicted of trea- son, unless on the testimony of two witnesses to the same overt act, or liis own confession in open court. Art. 92. — Every person shall be disqualified from holding any office of trust or profit in this State, who shall have been convicted of having given, or offered a bribe to procure liis election or appointment. Art. 93. — Laws sliall be made to exclude from office, and from the right of suffrage, those who shall hereafter be con- victed of bribery, perjury, forgery, or other high crimes or mis- demeanors. The privilege of free suffrage shall be sui)ported by laws reg*ulating elections, and proliibiting under adequate 56 CONSTITUTION OF THE STATE OF LOUISIANA. penalties, all undue influence thereon, from power, bribery, tumult or other improper practice. Art. 94. — No money shall be drawn from the Treasury but in pursuance of specific appropriation made by law, nor shall any appropriation of money be made for a longer term than two years. A regular statement and account of the re- ceipts and expenditures of all public moneys shall be pubhshed annually, in such manner as shall be prescribed by law. Art. 95. — It shall be the duty of the General Assembly to pass such laws as may be proper and necessary to decide differences by arbitration. Art. 96. — All civil officers for the State at large shall re- side within the State, and all district or parish officers, within their districts or parishes, and shall keep their offices at such places therein as may be required by law. Art. 97. — All civil officers, except the Governor and Judges of the Sujireme and Inferior Courts, shall be remov- able by an address of a majority of the members of both Houses, except those the removal of whom has been otherAvise provided by this Constitution. Art. 98. — In all elections by the people the vote shall be by ballot, and in all elections by the Senate and House of Kepresentatives, jointly or separately, the vote shall be given viva voce. Art. 99. — No member of Congress, nor person holding or exercising any office of trust or profit under the United States, or either of them, or any foreign power, shall be ehgible as a member of the General Assembly, or hold or exercise any office of trust or profit under the State. Art. 100. — The laws, pubHc records, and the judicial and legislative written proceedings of the State shall be promul- gated, preserved and conducted in the language in which the Constitution of the United States is written. Art. 101.— The Secretary of the Senate and Clerk of the House of Representatives shall be conversant with the French and Enghsh languages, and members may address either House in the French or English language. CONSTITUTION OF THE STATE OF LOUISIANA. 57 Art. 102. — No power of suspending tlic laws of this State shall be exercised, unless by the Legislature or by its au- thority. Art. 103. — Prosecutions shall be by indictment or infor- mation. The accused shall have a speedy public trial by an impartial jury of the vicinage : he shall not be compelled to give evidence against himself ; he shall have the right of being heard by himself or counsel : he shall have the right of meet- ing the witnesses face to face, and shall have compulsory pro- cess for obtaining Avitncsses in his favor. Art. 104. — All prisoners shall be bailable by sufficient sureties, unless for capital offences, where the proof is evident or presumption great, or, unless after conviction for any offence or crime punishable with death or imprisonment at hard labor. The privilege of the writ of habeas corpus shall not be sus- pended, unless when in case of rebellion or invasion the pubHc safety may require it. Art. 105. — No ex post facto law, nor any law impairing the obligation of contracts, shall be passed, nor vested rights be divested, unless for purposes of public utility, and for ade- quate compensation previously made. Art. 106. — The press shall be free. Every citizen may freely speak, write and publish his sentiments on all subjects ; being responsible for an abuse of tliis liberty. Art. 107. — The seat of Government shall be and remain at Baton Kouge, and shall not be removed without the consent of three-fourths of both Houses of the General Assembly. Art. 108. — The State shall not subscribe for the stock of, nor make a loan to, nor pledge its faith for the benefit of any corporation or joint-stock company, created or estabhshcd for banking pm-poses, nor for other purposes than those de- scribed in the following article. Art. 109. — The Legislature shall have power to grant aid to companies or associations of individuals, fonned for the ex- clusive purpose of making works of internal improvement, wholly or partially mtliin the State, to the extent only of 58 CONSTITUTION OF THE STATE OF LOUISIANA. one-fifth of the capital of such companies, by subscription of stock or loan of money or public bonds ; but any aid thus granted shall be paid to the company only in the same propor- tion as the remainder of the capital shall be actually paid in by the stockholders of the company, and, in case of loan, such adequate security shall be required, as to the Legislature may seem proper. No cori:)oration or individual association receiv- ing the aid of the State, as herein provided, shall possess banking or discounting pri^dleges. Art. 110. — No liabihty shall be contracted by the State as above-mentioned, unless the same be authorized by some law for some single object or work to be distinctly specified therein, which shall be passed by a majority of the members elected to both Houses of the General Assembly, and the ag- gregate amount of debts and liabilities incurred under this and the preceding article shall never, at any one time, exceed eight mniions of dollars. Art. 111. — Whenever the Legislature shall contract a debt exceeding in amount the sum of one hundred thousand dollars, unless in case of war to repel invasion or suppress in- surrection, they shall, in the law creating the debt, provide adequate ways and means for the j)ayment of the current in- terest and of the principal when the same shall become due. And the said law shall be irre2oealable until princii^al and in- terest are fully paid and discharged, or unless the repeahng law contains some other adequate provision for the payment of the principal and interest of the debt. Art. 112. — The Legislature shall provide by law for a change of venue in civil and criminal cases. Art. 113. — No Lottery shall be authorized by this State, and the buying or selling of lottery tickets within the State is prohibited. Art, 114, — No divorce shall be granted by the Legis- lature, Art. 115. — Every law enacted by the Legislature shall embrace but one object, and that shall be exj)ressed in the title. CONSTITUTION OF THE STATE OF LOUISIANA. 59 Art. 116. — No law shall be revived or amended by refer- ence to its title ; but in sucli case, the act revived, or section amended, shall be re-enacted and published at length. Art. 117. — The Legislature shall never adopt any system or code of laws, by general reference to such system or code of laws, but in all cases shall specify the several provisions of the laws it may enact. Art. 118. — Corporations with banking or discounting priv- ileges may be cither created by special acts, or formed under general laws ; but the Legislature shall, in both cases, provide for the registry of aU bills or notes issued or put in circulation as money, and shall require ample security for the redemption of the same in specie. Art. 119. — The Legislature shall have no power to pass any law sanctioning in any manner, directly or indirectly, the suspension of specie i:)ayments, by any person, association or corporation issuing bank-notes of any description. Art. 120. — In case of insolvency of any bank or banking association, the bill holders thereof shall be entitled to pre- ference in payment over all other creditors of such bank or association. Art. 121. — The Legislature shall have power to pass such laws as it may deem expedient for the relief or revival of the Citizens' Bank of Louisiana, and the acts already passed for the same purpose are ratified and confirmed, provided that the bank is subject to the restrictions contained in articles 119 and 120 of this Constitution. Art. 122. — No person shall hold or exercise, at tlie same time, more than one civil office of emolument, except that of Justice of the Peace. Art. 123. — Taxation shall be equal and uniform through- out the State. All property on which taxes may be levied in this State shall be taxed in iiroportion to its value, to be as- certained as directed by law. No one species of projjerty shall be taxed higher than another species of property of equal value, on which taxes shall be levied ; the Legislature 60 CONSTITUTION OF THE STATE OF LOUISIANA. shall have power to Icvj^ an income tax, and to tax all persons pursning any occupation, trade or profession. Art. 124. — The citizens of the city of New Orleans shall have the right of appointing the several public officers neces- sary for the administration of the police of the said city, pur- suant to the mode of elections which shall be prescribed by the Legislature ; Provided, that the Mayor and Recorders shall be ineligible to a seat in the General Assembly ; and the Mayor, Recorders, Aldermen and Assistant Aldermen shall be commissioned by the Governor as Justices of the Peace, and the Legislature may vest in them such criminal jurisdiction as may be necessary for the j)iinishment of minor crimes and offences, and as the poHce and good order of said city may re- quire. Art. 125. — The Legislature may provide by law in what case officers shall continue to perform the duties of their offices until their successors shall have been inducted into office. Art. 126. — Any citizen of this State who shall, after the adoption of tliis Constitution, fight a duel with deadly weapons with a citizen of this State, or send or accept a challenge to fight a duel with deadly weapons, either within this State or out of it, with a citizen of this State, or who shall act as se- cond, or knowingly aid or assist in any manner those thus of- fending, shall be deprived of holding any office of trust or pro- fit, and of enjoying the right of suffrage under this Constitu- tion ; and the office of any State officer, member of the Gen- eral Assembly, or of any other person holding office of profit or trust under this Constitution, and the laws made in pursu- ance thereof shall be, ipso facto vacated by the fact of any such person committing the offence mentioned in this article, and the Legislature shall provide by law for the ascertaining and declaration of such forfeiture. Art. 127. — The Legislature shall have power to extend this Constitution and the jurisdiction of this State over any * territory acquired by compact with any State, oi with the CONSTITUTION OF THE STATE OF LOUISIANA. 61 United States, the same being done by the consent of the United States. Art. 128. — None of the lands granted by Congress to the State of Louisiana for aiding it in constructing the necessary levees and drains, to reclaim the swamp and overflowed lands in this State, shall be diverted from the purposes for wliich they were granted. Art. 129. — The Constitution and Laws of this State shall be promulgated in the English and French languages. TITLE VIL INTERNAL IMPROVEMENTS. Art. 130. — There shall be a Board of Public Works to consist of four Commissioners. The State shall be divided by the Legislature into four districts, containing as nearly as may be an equal number of voters, and one Commissioner shaU be elected in each district by the legal voters thereof for the term of four years ; but, of the fii'st elected, two, to be designated by lot, shall remain in office for tAvo years only. Art. 131. — The G-eneral Assembly at its first session after the adoption of this Constitution, shall provide for the election and compensation of the Commissioners and the organization of the Board. The Commissioners first elected shall assemble on a day to be appointed by law, and decide by lot the order in winch their terms of service shall expire. . Art. 132. — The Commissioners shall exercise a diligent and feithful supervision of all public works, in which the State may be interested, except those made by joint stock companies. They shall communicate to the General Assembly, from time to time, their \dews concerning the same, and recommend such measures as they may deem necessary, in order to employ to the best advantage and for the purposes for which they were granted, the swamps and overflowed lands, convey- ed by the United States to this State. They shall appoint all 62 CONSTITUTION OF THE STATE OF LOUISIANA. officers engaged on the public works, and shall perform such other duties as may be prescribed by law. Art. 133. — The Commissioners may be removed by the concurrent vote of a majority of all the members elected to each House of the General Assembly ; but the cause of the removal shall be entered on the Joiu-nal of each House. Art. 134.-^The General Assembly shall have power, by a vote of three-fifths of the members elected to each House, to abolish said Board, whenever in their opinion a Board of Pub- lic Works shall no longer be necessary. . TITLE YIII. PUBLIC EDUCATION. Art. 135. — There shall be elected a Superintendent of Public Education, who shaU hold liis office for the term of two years. His duties shall be prescribed by law, and he shaU receive such compensation as the Legislature may direct ; provided, that the General Assembly shaU have power by a vote of the majority of the members elected to both Houses, to abolish the said office of Superintendent of PubHc Educa- tion whenever in theu' opinion said office shall be no longer necessary. Art. 136. — The General Assembly shall establish free pubhc schools tliroughout the State, and shall provide for their support by general taxation on property or otherwise ; and all moneys so raised or provided shall be distributed to each Par- ish in proportion to the number of free white children between such ages as shall be fij?:ed by the General Assembly. Art. 137. — The proceeds of all lands heretofore granted by the United States to this State for the use or support of schools, and of aU lands which may hereafter be granted or bequeathed to the State, and not expressly granted or be- queathed for any other purpose, which hereafter may be dis- CONSTITUTION OF THE STATE OF LOUISIANA. 63 posed of by the State, and the j)rocceds of the estates of deceased persons, to which the State may become entitled by law, shall be held by the State as a loan, and shall be and re- main a perpetual fund, on which the State shall pay an annual interest of six per cent. ; which interest, together with the in- terest of the trust funds deposited with this State by the United States, under the act of Congress approved June 23, 1836, and all the rents of the unsold lands shall be appro- priated to the support of such schools, and tliis appropriation shall remain inviolable. Art. 138. — All moneys arising from the sales which have been or may hereafter be made of any lands heretofore granted by the United States to this State, for the use of a seminary of learning, and from any kind of donation that may hereafter be made for that purpose, shall be and remain a perpetual fund, the interest of which, at six per cent, per annum, shall be appropriated to the support of a seminary of learning for the promotion of Hterature and the arts and sciences, and no law shall ever be made diverting said fund to any other use than to the estabhshment and improvement of said scminaiy of learning. Art. 139. — The University of Louisiana in New Orleans as now established shall be maintained. Art. 140. — The Legislature sh^ll have power to pass such laws as may be necessar}^ for the further regulation of the Uni- versity, and for the promotion of Hterature and science ; but shall be under no obligation to contribute to the support of said University by appropriations. TITLE IX. MODE OF REVISING THE CONSTITUTION. Art. 141. — Any amendment or amendments to this Con- stitution may be proposed in the Senate or House of Kepre- eentatives, and if the same shaU be agreed to by two-thirds 64 CONSTITUTION OF THE STATE OF LOUISIANA. of the nicnibers elected to eacli House, such proijosed amend- ment or amendments shall be entered on their journals, uith the yeas and nays taken thereun, and the Secretary of State shall cause the same to be pubhshed, three months l>ef(>rc the next general election fur Hoprcsentativos tif the State Legisla- ture, in at least one newsi)a})er in French and English, in cvciy Parish in the State in which a newspaper shall be publLshed ; and such proposed amendment or amendments shall be sub- mitted to the people at said election ; and if a majority of the Toters at said election shall approve and ratify such amend- ment or amendments, the same shall become a part of the Constitution. If more than one amendment be submitted at a time, they shall be submitted in such manner and form, that the peojde may vote for or against each amendment separately. TITLE X. SCHEDULE. Art. 142. — The Constitution adopted in eighteen hundred and forty-five is declared to be superseded by this Constitu- tion, jmd in order to cany the same into eflect, it is liereby declared and ordained as follows : Art. 143. — AU rights, actions, prosecutions, claims and contracts, as well of individuals as of bodies corj)oi"ate, and all laws in force at the time of the adoption of this Constitution, and not inconsistent therewith, shall continue as if the same had not been adopted. Art. 144. — In order that no inconvenience may result to the pubhc seiTice from the taking effect of tliis Constitution, no office shall be su])erseded thereby ; but the laws of the State relative to the duties of the several officers, Executive, Judicial and MiUtary, shall remain in full force, though the same be contrary to tliis Constitution, and the several duties shall be performed by the rcsi)cctive officers of the State, ac- cording to the existing laws, until the organization of the Gov- CONSITTUTION OF THE STATE OF LOUISIANA. 65 eminent under this Constitution, and the entering into office of the new officers to be appointed under said Government, and no longer. Art. 145. — Appointments to office by the Executive under this Constitution, shall be made by the Governor to be elect- ed under its authority. Art. 146. — The Legislature shall provide for the removal of aU causes now pending in the Supreme Court or other Courts of the State under the Constitution of 1845, to Courts created by or under this Constitution. Art. 147. — The time of service of all officers chosen by the peoj^le, at the first election imder this Constitution, shall terminate as though the election had been holden on the first Monday of November, 1851, and they had entered on the dis- charge of their duties at the time designated therein. The first class Senators designated in article 17, shall hold their seats until the day of the closing of the general elections in November, 1853, and the second class until the day of the closing of the general elections in November, 1855. Art. 148. — The first election for Judges of the Supreme Court shall be held on the first Monday of April next (1853), and they shall enter into office on the first ]\Ionday of May, 1853. Art. 149. — The first term of service of the District Attorneys and the Clerks of the Inferior Courts to be or- dered and established under this Constitution, shall be reg- ulated by the term of service of the first Governor, so that a new election for these officers shaU be held on the first Mon- day of November, 1855. TITLE XL ORDINANCE. Art. 150. — Immediately after the adjournment of the Convention, the Governor slvdl issue his Proclamation, direct- 6G CONSTITUTION OF THE STATE OF LOUISIANA. ing the several officers of this State authorized by law to hold elections for members of the General Assembly, to open and hold a jiull in every Parish of the State, at the i)laccs desig- nated by law, upon the first Tuesday of November next, for the purpose of takinjj; tlie sense of the good people of tliis State in regard to the adoption or rejection of this Constitu- tion ; and it shall be the duty of said officers to receive the votes of all persons entitled to vote under the old Constitu- tion and under this Constitution. Each voter shall express his opinion by depositing in a separate box, kept for that pur- pose, a ticket, whereon shall be written " the Constitution ac- cepted," or " the Constitution rejected," or some such words as will distinctly convey the intention of the voter. At the conclusion of said election, which shall be conducted in every respect as the general State election is now conducted, the Commissioners designated to i)reside over the s;une shall carefully examine and count each ballot so dej)osited, and shall forthwitli make due returns thereof to the Secretary of State, in conformity to tlie provisions of the existing law upon the subject of elections. Art. 151. — Upon the receipt of the said returns, or on the fifth Monday of November, if the returns be not sooner received, it sluill be the duty of the Governor, the Secretary of State, the Attorney-General and the State Treasmer, in the presence of all sucli persons as may choose to attend, to comi)are the votes given at the said \)o\\ for the ratification and rejection of this Constitution, and if it shall appear from said returns that a majority of all the votes given is for rati- fying this Constitution, then it shall be the duty of the Gov- ernor to make proclamation of that fact, and thenceforth tliis Constitution shall be ordained and established as the Consti- tution of the State of Louisiana. But whether this Constitu- tion be accepted or rejected, it shall be the duty of the Gov- ernor to cause to be published in the official paper of the Con- vention the result of the polls, showing the number of votes cast in each Parish for and aj^ainst the said Constitution. CONSTITUTION OF THE STATE OF LOUISIANA, 67 Art. 152. — Should this Constitution be accepted by the people, it shall also be the duty of the Governor forthwith to is- sue his proclamation, declaring the present Legislature, elected under the old Constitution, to be dissolved, and directing the several officers of the State authorized by law to hold ele.c- tions for members of the General Assembly, to hold an elec- tion, at the places designated by law, upon the fourth Monday of December next, for Governor, Lieutenant Governor, mem- bers of the General Assekibly, Secretary of State, Attorney- General, Treasurer and Superintendent of Public Education ; and the said election shall be conducted and the returns there- of made in conformity wdth existing laws upon the subject of State elections. Art, 153. — The General Assembly elected under this Constitution shall convene at the State House, in Baton Rouge, upon the third Monday of January next after the elec- tions, and the Governor and Lieutenant Governor elected at the same time, shall be duly installed in office during the first week of this session, and before it shall be competent for the said General Assembly to proceed with the transaction of business. Art. 154. — AU the publications herein ordered shall be made in the official journal of the Convention. Art, 155. — This Constitution shall be pubhshed in French and English in the official journal of the Convention, from the period of its adjournment until the first Tuesday of Novem- ber, 1852, one thousand eight hundred and fifty-two. Done at Baton Rouge, July 31st, 1852. (Signed) DUNCAN F, KENNER, President of the Convention. (Attest) J. B, WALTON, Secretary of the Convention. SYSTEM OF PRACTICE, CONTAINING RULES TO BE OBSERVED IN THE PROSECUTION OF CIVIL ACTIONS. Sections 25 and 26 of an act approved on the 25th of March, 1828. Sec. 25. — Be it enacted, &c. That all the rules of pro- ceeding which existed in this State before the promulgation of the code of practice, except those relative to juries, recusa- tion of judges and other officers, and vdth respect to the com- petency of the latter, be and are hereby abrogated ; and that all the civil laws wliich were in force before the promulgation of the civil code lately promulgated, be and are hereby abro- gated, except so much of title tenth of the old ci\il code as is embraced in the third chapter, which treats of the dissolution of communities or corporations. Sec. 26. — Be it enacted, &c. That the code of practice, Buch as it has been sent to the several courts in tliis State in the year eighteen hundred and twenty-five, shall be considered as having fuU force of law, though its provisions are not pre- ceded by these usual words, " Be it enacted," and it had been omitted to mention, at the end of said code, the names of the president of the Senate, the speaker of the House of Repre- sentatives, and of the Governor who signed the same, and of the date when the said code was approved. 70 OF CIVIL ACTIONS. ^ PART I. OF CIVIL ACTIONS. TITLE L OF ACTIONS IN GENERAL, Art. 1. — An action is the right given to every person, to claim judicially what is due or belongs to him. Action means also the exercise of that right, that is to Bay, a judicial demand founded on a contract, or given by law, by which the plaintiff prays that the person against whom he proceeds, be ordered to do that which he has boimd himself towards him to perform. 14: L. 420; 17 L. 132. CHAPTER L OF THE GENERAL DIVISIONS OF ACTIONS. Art. 2. — Actions are divided into several kinds : The fii'st division of actions is into personal, real, and mixed. Art. 3. — A personal action is that by which a person proceeds against one who is personally bound towards him, either by a contract or by virtue of the law, in order to com- pel him to pay what he owes to him, or to perform what he had promised. This action is called personal, because it is attached to the person bound, and follows liim every where. 2L. 94; 10 L. 216; 6 A. 481. OF CIVIL ACTIONS. 71 Art. 4. — A real action,. is that which relates to claims made on immovable property, or to the immovable rights to which they are subjected. The object of this action is, the ownership or the posses- sion of such property ; and they are therefore subdivided into petitory and possessory actions. Art. 5. — The petitory action, is that by wliich he who has the property of a real estate, or of a right upon, or grow- ing out of it, proceeds against the person having the possession, in order to obtain the possession of the immovable property, or the enjoyment of the rights upon it, to which he is en- titled. Art. 6. — A possessory action is that by which one claims to be maintained in the possession of an immovable property, or of a right upon, or growing out of it, when he has been disturbed : or to be reinstated to that possession, when he has been divested or evicted. Art. 7. — A mixed action, is one which, in its nature, partakes both of the real and of the personal action, such as a claim for the ownership of real property, and also for the fruits it has produced, or their value. 6 R. 466. Art. 8. — The second general division of actions, classes them into civil and cruninal actions. Art. 9. — A civil action is one which is brought for pri- vate interest, such as a suit to obtain the payment of a sum due, the restitution of property, or reparation for an injury done by words or action. Art. 10. — A criminal action is one wliich is instituted in the name of the State, by its proper officers, in order tp obtain the pubUc reparation of any crime or misdemeanor ; this action comes under the head of penal jurisprudence. Art. 11. — Actions, with respect to then- object, are di- vided into two classes ; those by which movables, and those by which immovables are claimed. 6 A. 354. 72 OF CIVIL ACTIONS. Art. 12. — Although incori^orcal lights bo not in reality movables nor immovables, they arc nevertheless placed by law, in one of those two classes. Actions tending to recover an immovable, or a real right, or an universality of tilings, such as an inheritance, are con- sidered as real ; while actions for the recovery of a movable or of a sum of money, though accompanied with a mortgage, are not real actions. 17 L. 566. CHAPTER II. OF THE RULES APPLICABLE TO ALL CIVIL ACTIONS. Art. 13. — The forms, the effects, and the prescription of actions are governed by the law of the place where they arc brought : but contracts are governed by the law of the place where they were entered into. 8 R. 262 ; 5 K S. 585 ; 2 N. S. 96 ; 6 K S. 631 ; 8 N. S. 8, Y M. 213,353 ; 1 L. 225,542; 2 L. 115, ^ L. 138 ; 11 L. 464; 12 L. 534; 13 L. 446; 14 L. 305; 17 L. 458. Art. 14. — Every obligation gives impHedly a right of ac- tion to enforce its execution ; but the obligation and the right of action do not always arise at the same time. Thus in con- tracts to be performed at a future period, the obligation which grows out of the contract, arises at the very moment of mak- ing it, but the right of action growing out of it, arises only when the stipulated term has arrived. Art. 15. — An action can only be brought by one having a real and actual interest wliich he pursues, but as soon as that interest arise, he may bring his action. 4M. 662; 9 M. 466; 3 K S. 291,392; 5 N. S. 512; 8 N. S. 509; 2 L. 263 4 L 220,533; 5 L. 48 ; 14 L. 254,448 ; 17 L. 152,481; 18L. 92; 3 L. 431 10 L. 154; 13 L. 13, 867; 1 • L. 369; 1 R. 195 ; 10 R. 128; 2 A. 97,441 t A. 350. OF CIVIL ACTIONS. 73 j^iiT. 16. — In all actions, wlncli are to be brought at tlie end of a stated period, the right of action subsists until the last day has expired. Art. 17. — Natural obhgations give no right of action, but what has been paid pursuant to those obligations is not sub- ject to repetition. /- Those are natural obligations, for which the law gives no right of action ; they arise on contracts entered into by per- sons who, though possessed of sound discretion and judgment enabling them to make contracts, are nevertheless disquahfied by law from contracting, as are the contracts of mamcd women made without the authorization of their husbands. Art. 18. — He who pays through error, what he docs not owe, has an action for the repetition of what he has thus paid, unless there was a natural obligation to make such payment ; but he must prove that he paid through error, otherwise it shall be presumed that he intended to give. 2 L. 129; 15 L. 316; 6 L. 204; 19 L. 138; 7 R. 522. j^RT 19.— Obhgations contrary to justice, good faith or good morals, such as those by which a reward is promised to another to commit a crime, give no right of action to either party to enforce the execution of the contract. But if the reward promised has been paid, no action can be brought to obtain the repayment of the amount. Art 20. He who has a right of action to claim what is due to liim, lias a right yet more evident to use the same cause of action as an exception, in order to preserve his rights. 12 R. 472. Art. 21. — Actions do not abate by the death of one of the parties, after answer filed. 11 L. 360; 6 R. 44 ; 3 A. 547. Art. 22. — Actions arising from obhgations are the pro- perty of him in favor of whom they have been contracted ; they are transmitted with his estate to his heirs, who may carry them on in their own name. 6 L. 619. 74 OF PERSONAL ACTIONS. Art. 23. — The universal successor, or successors, by an universal title of a deceased person, such as his heirs, or uni- versal legatees, are entitled to the same actions and exceptions, as the person to whom tliey succeed ; hut they cannot claim, on their own behalf, any right which he had not himself, for this reason, that no one can transfer a better title to another than that which he liimself had. 2 L. 514. Art. 24. — The rule laid down in the preceding article takes place also with respect to the successors of a deceased person claiming a thing by virtue of a particular title ; that is to say, by sale, donation, or legacy, but so far only as concerns the thing itself, of which the deceased has thus disposed of in their favor. Art. 25. — Heirs or universal legatees may be sued for civil reparation of the injury caused by the crimes or misdemeanors of the deceased, w'hose succession they have accepted, although no action was instituted for that purpose against the deceased during his life, and although neither he nor his heirs have been benefited by such an oifence. CHAPTER III. OF THE RULES PECULIAR TO THE DIFFERENT KINDS OF CIVIL ACTIONS. Sec. I. — Of the several kinds of Personal Actions, and of the 7'uks luhicli (jovcrn them. Art. 26. — A personal action lies against liim who has bound liimself towards another, personally and independently of the property which he possesses. 10 L. 21G. Art. 27. — Such action can only be brought against the \ OF PERSONAL ACTIONS. 75 / debtor, or the obligor, or the person who directly represents him, such as universal heirs, or heirs by an universal title Art. 28. — Personal actions are gi'oundcd on one of the four causes which give rise to personal obhgations. These causes are contracts, or quasi contracts, oflfences, or quasi offences. Art. 29. — Personal actions arise from contracts, where one has bound himself for liis own advantage, as by selling, pur- chasing, liiring or letting, or by any like contracts. 1 L. 36; 10 L. 164, 216. Art. 30. — Personal actions arise from quasi contracts, when they are grounded on the obligations imposed upon him who has managed the affairs of another, without being au- thorized. 7 N. S. 140; 11 L. 286 ; 2 R. 1 : 6 R. 91. Art. 31. — Personal actions arise from offences, as when one has become Hable to another for the injury he has inflicted on him by some crime or offence, such as theft or slander. 2 L. 94 ; 6 A. 354. Art. 32. — Personal actions arise from quasi offences, when the ground of action is the injuiy done to another, by one of those faults wliich are not considered as real crimes or offences. 1 N. S. 410; 8N. S. 588; 7 L. 531, 586; 10 L. 131, 288, 581. Art. 33. — Personal actions arising from contracts, are di- vided into direct and equitable actions. Art. 34. — A direct contra-distinguished from an equi- table action, is that which arises immediately from contracts, and binds ipso facto aU who have been parties to it. Art. 35. — An equitable action, is that wliich does not im- mediately arise from a contract, but from equity, in favor of q, third person, not a party to it, and for whose benefit certain stipulations have been made : thus if one stij)ulated in a con- tract entered into with another person, and as an express con- dition of that contract, that this person shall pay a certain sum on his account, or give a certain thing to a third person, not a party to the act, that third person has an equitable ac- 76 OF PERSONAL ACTIONS. tion against the one who has contracted the obligation, to enforce the execution of the stipulation. 5 R. 240; 6 R. 407 9 R. 19,48; 1 A. 280,372 ; 2 A. 940; 3 A. 129; 5 A. 225. Art. 36 — Certain contracts, from their nature, give rise to two species of personal actions, in favor of the contracting parties ; one of these is like^vise termed direct, in contra-dis- tinction to the other which is called a contrary action. Art. 37. — A direct action, in this acceptation, is that which arises out of a contract at the very moment of its being made, without the occurrence of any new cause since the con- tract ; as, in the contract of loan termed commodat, where the action arises in favor of the owner of the thing against him to whom he has lent it, in order to recover it. Art. 38. — The contrary action, is that which arises from some cause wliich has occurred since the contract, and has for its object the obtaining of some indemnity, such as the action which the law gives to the borrower in the loan called commo- dat, for the recoveiy of the disbm'sements wliich he has been obliged to make for the preservation of the thing lent to him. Art. 39. — It is of the essence of all synallagmatic con- tracts, that is to say of those wliich contain reciprocal obliga- tions between the parties, to give rise to two species of direct actions. Thus, in the contract of sale, the purchaser has an action against the seller to compel him to deliver the tiling sold, and the vendor has likewise his action against the pm'chaser, to comjicl him to i)ay the price. 8 L. 1, 181; 10 L. 19; 11 L. 239. Art. 40. — Personal actions, being attached to the person of the debtor, may be brought against all his heirs, should he die without having extinguished it, but each of them ^\^ll only be liable for the amount and portion which he has inher- ited from the debtor's estate. 10 L. 216. OF THE PETITORY ACTION. 77 Sec. II. Of the real action, its subdivisions, and the rides peculiar to it. Art. 41. — A real action lies against liira wlio, without having contracted any obligation towards the plaintiff, is nev- ertheless bound towards him, as possessor of the immovable property of which that plaintiff claims the ownership or the possession, or on which he claims to exercise some immovable right. Art. 42. — The real action gives the right to follow the thing in whatever hands it may be found ; but as relates to hj'pothecary actions, this rule is subject to some modifications which are established in the paragraph wliich treats of that action. 4 A. 553. § 1. 0/" the petitory action. Art. 43. — The petitoiy action, or one by which real pro- perty, or any immovable right to such property may be sub- jected, is claimed, must be brought against the person, who is in the actual possession of the immovable, even if the person having the possession be only the farmer or lessee. But if the farmer or lessee of a real estate be sued for that cause of action, he must declare to the plaintiff the name and the residence of his lessor, who shall be made a party to the suit, if he reside in the State, or is represented therein, and who must defend it in the place of the tenant, who shall be discharged from the suit. 4 N. S. 391; 5 N. S. 71, 232; 5 L. 356; 4 R. 29; 5R. 314; 12 R. 489; 2 A. 487 ; 3 A, 637. Art. 44. — The plaintiff in an action of revendication must make out his title, otherwise the possessor, whoever he be, shall be discharged from the demand. 7 L. 37; 8 L. 234, 821 ; 10 L. 350; 9 R. 215, 37' 78 OF THE POSSESSORY ACTION, ETC. Art. 45. — The petitory action may be brought by one who has the o^vnership only of an undivided part of an estate, or of a real right to which such an estate is subjected, though his OANTicrsliip may be limited to a certain period, or end by the occurrence of a certain event. 8 N. S. 171. § 2. Of the possessory action, and of the rules which govern it. Art. 46. — The possessory action, wliich is a branch of real actions, may be brought by any possessor of a real estate, or of a real right, who is disturbed either in the possession of the estate or in the enjoyment of the right, against him who causes the disturbance, in order to be maintained in, or restor- ed to the possession, whether he has been evicted or disturbed ; provided liis possession be accompanied by the quaUfications hereafter required ; slaves being classed as real property are likewise subject to the possessory action. 5 N. S. 233 ; 8 N. S. 171 ; 7 N S. 487 ; 2 L. 227 ; 3 L. 415 ; 6 L. 58, 659 ; 6L. 56; 7 L. 155,415; 9L. 153: 10 L. 140,442,465; 12L. 2; 15 L. 140,452,561 ; 16 L. 29,45 ; 19 L. 253 1 R. 35, 109,163 ; 3 A. 339. Art. 47. — The possessors entitled to bring these actions, are those who possess as owners. Persons entitled to the usufruct, or to the use of a real es- tate or slaves, and others having real rights growing from such real estate or slaves, may also bring their action, when disturb- ed in the enjoyment of their rights. 2L. 227; 7 L. 6; 1 R. 142,159; 6 R. 100; 7 R. 149; 10 R. 407; 2 A. 357. Art. 48. — Those who possess in the name of another, such as tenants, are not entitled to the possessory action, when dis- turbed in the enjoyment of the real estate which they possess in that quality, or even when they are exj^elled ; but they have their remedy against the person in whose name they pos- sess, and they are bound to apprise him of the disturbance they have experienced, by personal notice, if he be within the State, and by advertisements in the newspapers, if he be out OF THE POSSESSORY ACTION, ETC. 79 of the State, in order that he may quiet them, if it can be done, otherwise they lose all right to claim damages from him, and will be liable to him besides for all the loss and damages which he may have sustained through their neglect, 10 R. 407 ; 2 A. 357. ^RT 49 — In QTcdcv that the possessor of a real estate or slave, or one who clainis a right to which such estate may bo subjected, may be entitled to bring a possessory action, it is required : 1. That he should have had the real and actual posses- sion of the property, at the instant when the disturbance oc- curred : a mere civil, or legal possession, is not sufficient ; 2. That he should have had that possession quietly and without interruption, by %artue of one of the titles prescribed in the 47th article, for more than a year previous to his being disturbed ; provided the possession of less than one year be sufficient, in case the possessor should have been e\'icted by force or by fraud ; 3. That he should have suffered a real disturbance either in fact or in law ; 4. That he should have brought his suit, at the latest, witliin the year in wliich the distm-bance took place. Wlien the possession of the plaintiff is accompanied with all those circumstances, it matters not whether he possesses in good or in bad faith, or even as an usurper, he shall, neverthe- less, be entitled to his possessory action. T N. S. 48G; 6L. 5C; 7 L. 6,414; 9 L. 152; 10 L. 140,405; 1 R. 142,159; 6 R. 1 ; 10 R. 407 ; 2 A. 205 ; 3 A. 339. Art. 50. — The disturbance which gives rise to the posses- sory action may be of two kinds : disturbance in fact, or dis- turbance in law. Art. 51. — Disturbance in fact occurs, when one, by any act, prevents the possessor of a real estate, or of a right grow- ing from such an estate, from enjoying the same quietly, or throws any obstacle in the w\ay of that enjoyment, or evicts him through violence, or otherwise. 80 OF THE POSSESSORY ACTION, ETC. Art. 52. — Disturbance in law takes place, when one, pre- tending to be the possessor of a real estate, says that ho is dis- turbed by the real possessor, and brings against the latter the possessory action ; for in such a case, the true possessor is dis- turbed by this action, and may also bring a possessory action, in order to be quieted in his possession. But in no case shall the mere demand in revendication of a real estate, or of a real right, be considered as a disturbance in the enjoyment of a possessor, and entitle liim to bring a possessory action. Art. 53. — The plaintiff in a possessory action, needs only, in order to make out liis case, to prove that he was in posses- sion of the property in question, in the manner required by this Code, and that he has been either disturbed or evicted within the year previous to his suit. So that when the possession of the plaintiff, or the act of disturbing him is denied, no testimony shall be admitted, ex- cept as to the fact of the possession, or as to the act of dis- turbance, and all testimony relative to property shall be re- jected. 7 N. S. 486 ; 6 L. 50 ; 7 L. 6,4U; 9 L. 152 ; 3 A. 339. Art. 54. — If the possessor, who has been disturbed in, or evicted from his possession, biing a petitory action, that is to say, claim the o-vvnership of the i)ropcrty, he shall not after- wards be entitled to the possessory, by dismissing the petitory action. The same rule shall govern, if he sue at the same time for the possession and the ownership of the property ; he shaU then be considered as having renounced the possessoiy in order to resort to the petitory action. Art. 55. — Petitory and i)Ossessory actions shall not be cu- mulated, or joined together, except by consent of parties. Therefore, he who is sued in a possessory action, cannot brmg a petitory action, until after judgment shall have been rendered in the possessory action, and imtil, if he has been i OF THE HYPOIpECARY ACTION. 81 \ condemned, he shall have satisfied the judgment given against him. Art. 56. — Nevertheless, if the judgment rendered in a possessory action, require a settlement, which may occasion delay, then the judge shall fix a term for making such settle- ment, at the end of Avhich the petitory action may be brought. Art. 57. — If the plaintiff, in a possessory action, consent that it be cumulated with the petitory action, he shall be con- sidered as having renounced the possessory action, and the judgment shall decide only the question of OAvncrship. Art. 58. — When each of the jmrties, in a possessory ac- tion, alleges that he has the possession of the property, and both of them bring suit on the allegation of having been dis- turbed in their possession, if the fact of the possession bo doubtful and uncertain, the judge shall maintain in possession the one of the parties, who shall appear to him to have the most apparent possession, or he may, at the request of one of the parties, order the sequestration of the property, until the question of oAviiership shall have beefi decided. 1 L. 1; 2 A. 219. Art. 59. — If one who is disturbed in, or evicted from his possession, suffer a year to elapse without bringing a posses- sory action, that action shaU be prescribed, and he must then resort to a petitory action. Art. 60. — Possessory actions cannot be maintained for personal property ; the action in revendication for that species of property, having nothing in common with the extraordinary privileges secured to the owners of real estate, or of real rights, when they are disturbed m their enjoyment. § 3. 0/ the Hypothecary Action and of its Rules. Art. 61. — An hypothecary action is a real action, which the creditor brings againt the property which has been hy- 82 OF THE DYPOTIfJCARY ACTION. pothecated to him by his debtor, in order to have it seized and sold for the payment of his debt. 4 L. 452; 11 R. 209 ; 1 A. 204. Art. 62. — The hypothecary action, like all real actions, follows the property to "which it is attached, in whatever hand it may be found, but it is subject to difterent rules, according as the property may be in the possession of the debtor, of his heirs, or of third persons. 5 N. S. 50; 4 L. 447; 9 L. 1 ; 10 L. 490; 11 L. 419; 1 A. 204. Art. 63. — When the hypothecated property is in the hand of the debtor, and when the creditor, besides his hypo- thecary right, has against his debtor a title importing a confes- sion of judgment, he shall be entitled to have the In-jiothecat- ed property seized immediately and sold, for the payment of his debt, including the capital, the interest, and the costs, pursuant to the rules provided hereafter for executory pro- ceedings. 4 N. S. 196; 8 L. 257; 11 K50; 13 L. 512; IG L. 223; 1 R. 295; 11 R. 209; 1 A. 204, 279. Art. 64. — If the creditor has no executory title against his debtor, and the latter be in possession of the hypothecated property, the former can only seize and sell such property, af- ter having obtained judgment against the debtor in the usual form. 2 L. 132 ; 6 L. 5'J ; 11 R. 209 ; 1 A. 204. Art. 65. — If the debtor has died, leaving a single heir, who has accepted the succession, the hypothecary creditor may act against that heir, in the same manner as he would have done against the debtor himself, that is to say, cither by pursuing the executory or the ordinary mode of proceeding, according to the tenor of the hypothecary act. 1 A. 204. Art. G6. — If, on the contrary, the deceased debtor leaves several heirs, and they have accepted the succession, in such a jase it must be ascertained whether the h}^)othecary act im- ports a confession of judgment or not. OF THE HYPOTHECARY ACTION. 83 If SO, and there have been no partition of the estate among the heirs, the creditor shall be entitled to seize and sell the hypothecated jiropcrty, as if the original debtor were still alive. But if there has been a partition among the heirs, and the hypothecated property has fallen to the share of one or more of them, the creditor may obtain an order of seizure against those heirs, and sell the property for the amount of his claim, lea\nng to them their recourse against their co-heirs for their proportion of the debt. 1 A. 204. Art, 67. — But if the hypothecary act do not import con- fession of judgment, the creditor cannot seize and sell the hy- pothecated property in the possession of the heirs of his debt- or, or of any one of them, until he has obtained a judgment against each one of the heirs, for such a part of the debt as he is bound to pay, according to the share he has inherited, unless the creditor prefer to have the judgment executed per- sonally against the heirs or their property, for such sums as each of them has been adjudged to pay. 1 A. 204. Art. 68. — If the hypothecated property be neither in the possession of his debtor nor of his heirs, but in that of a third person, the creditor has his action against that person, in or- der to compel liim either to give up the property, or pay the amount for which it stands hypothecated. This is the hy- pothecary action, properly speaking. 2 N. S. 505; 4 N. S. 402; 6 N. S. 651; 8 N. S. 403; 1 L. 29; 2 L. 135; 7L. 488; 8 L. 257; 10 L. 194,490; 12 L. 296; 13 L. 313; 14 L. 133; 15 L. 188; 16 L. 223; 2 A. 367. Art. 69. — If, thirty days after the amicable demand, made from the debtor or his heirs, of the payment of an hypotheca- ry debt, it has not been fully discharged, the creditor may bring his action against the third possessor of the property hyi)othecated to him, to have it seized and sold ; if that third 84 OF THE HYPOTHECARY ACTION. poesessor have not, within the ten clays, after having Dccn no- tified of such a demand, paid the amount of the hypothecary debt, including the interest and costs, 4 N. S. 402; 6 N. S. 309, 405, 627; 7 N. S. 577 ; 8 N. S. 95; 2 L. 132,544; 4L. 305,823,125,477; 6 L. 59,277 ; 11 L. 419; 15 L. 184,183; 16 L. 223 ; 19 L. 154; 1 R. 135. Art. 70. — But the creditor, who brings this action must declare on oath, in the petition, that the debt on wliich he de- mands the seizure of the hypothecated property, is really due to him, and that he has in vain demanded payment from his debtor, thirty days previous to his bringing his suit. See notes to art. 69. Art, 71. — Nevertheless, if the tliird possessor, against whom the action is brought, be not personally bound for the payment of the debt, he may oppose the sale of the hypoth- ecated property, if there be other hypothecated property in the possession of the original debtor, and require its pre%ious discussion, pending which, the proceedings, as to the sale of the property, shall be stayed. 16 L. 223; 9 R, 69. Art. 72, — The tliird possessor, who requires discussion, shall be boimd to designate to the plaintiff the property of the principal debtor, which he wishes to have discussed, and ad- vance the costs required for carrying on the necessary proceed- ings, in order to execute this discussion. He is not entitled to demand the discussion of such pro- perty of the principal debtor, which may be out of the juris- diction of the tribunal of the place where the payment was to have been made, nor that of property in dispute, or out of the possession of the debtor, 7 N, S. 199; 7 L. 278; 11 L. 133. Art. 73. — The exception of discussion cannot be opposed to the privileged creditor, or to one who has a special hypothe- cation. 10 R. 45, OF JUDGES THEIR JURISDICTION. 85 Art. 74.— Third possessors of property which has been seized, owing to their failure of discharging the amount of the hypothecary debt, within ten days after ha\ing been notified that payment has been demanded of the hyjiothecary debt may, until the very day of the sale, retain possession of the hypothecated property, by paying the debt with interest, and all the costs incurred in the suit. CHAPTER IV. WHERE ACTIONS ARE TO BE BROUGHT, AND IN WHAT MANNER. Art. 75.— Actions must be brought before competent judges. Sec. I. — Of Judges ; their Jurisdiction ; hoiv their com- petency is regulated. Art. 76. — Jurisdiction means the power of him who has the right of judging, or sometimes that word means also the spa'ce or extent of country over which the judge is entitled to exercise that power. Art. 77.— Degrees of jurisdiction, means the different tri- bunals before which the same suit may be successively plead- ed, and the rules estabhshed for proceeding in an inferior jurisdiction, previous to taking the suit before a superior juris- diction. Art. 78. — There are several kinds of jurisdictions, accord- ing to the nature and the extent of the powers delegated to the judge exercising it. Art. 79. — The first division is into civil and criminal ju- risdiction. Art. 80. — Civil jurisdiction extends to all civil matters, and criminal jurisdiction comprises whatever relates to crimes and misdemeanors. '86 OF JUDGES THEIR JURISDICTION. Art, 81. — Some judges exercise general, wliilst otlieis pos- sess only special jurisdiction. Judges having general jurisdiction, are those, who, in vir- tue of the law, take cognizance of all matters but such as are specially excepted from their jurisdiction. Judges having special jurisdiction are such as have an ex- clusive jurisdiction in certain cases pointed out by law. Constitution of 1852. Art. 61. — The Jadiciarj^ power shall he vested in a Supreme Court, in such Inferior Courts as the Legislature may, from time to time, order and establish, and in Justices of the Peace. Stat. 28th April, 1853. No.181. § 1.— Be it enacted by the Senate and House of Kepresentatives of the State of Louisiana, in General Assembly convened, T^at there shall be elected in and for each Judicial District of the State, (the first Judicial District excepted,) by the qualified voters thereof, one Judge for the term of four years, who shall receive a salary of twenty- five hundred dollars per annum, payable quarterly on his own warrant, out of any funds in the Treasury not othei-wise ap- propriated. § 2. — Be it further enacted, &c., That the jurisdiction of the District Court and the powers, duties and responsibilities of the District Judges to be elected under this act, shall re- main tlie same as are now established by law, subject to such modifications as may hereafter be made by the General As- sembly. 1 A. 146. Constitution of 1845. Art. 78 — The District Courts shall have original jurisdiction in all civil cases, when the amount in dispute exceeds fifty dollars, exclusive of interest. In all criminal cases, and in all matters connected with succession, their jurisdiction shall be unlimited. Art. 82. — There are judges having an exclusive jurisdic- tion, such as the special judges mentioned in the preceding article. OF JUDGES — THEIR .JURISDICTION. 87 There are judges with concurrent jurisdiction, that is to say, having cognizance in matters of the same nature, though they hold their courts in the same place or district. Art. 83. — There are judges having equal jurisdiction, that is to say, that though they can only take cognizance of cases arising within a certain space, they have a similar jurisdiction as to the nature of cases which may he hrought before them. Art. 84. — There are judges of original, and judges of ap- pellate jurisdiction. Judges having original jurisdiction, are those before whom suits arc brought in the first instance. Judges having appellate jurisdiction, are those before whom appeals are brought by those who complain of the judgment of the court of the first instance, and who try the cause again, affirming or reversing the judgment of the inferior court. Art. 85. — The decision of some judges are subject to ap- peal, others decide in the last resort. Judges subject to appeal, are those whose decisions may be carried by appeal before a superior court, having appellate ju- risdiction. Judges in the last resort, are those whose judgment cannot be appealed from. Art. 86. — In matters of jurisdiction, the right given to a judge to take cognizance of certain causes, against certain persons within his jurisdiction, is termed competency. Art. 87. — In order to ascertain whether a judge be com- petent or not, three points must be taken into consideration ; 1. The object or the amount in dispute ; 2. The person of the defendant ; 3. The place where the action is to be brought. Art. 88. — To determine on the comi30tency of a judge, a» relates to the object or amount in dispute before him, it is ne- cessary to examine what are his powers, what is the nature of the cause, and what is the amount of the sum. Art. 89. — To determine liis competency, as relates to the person of the defendant, the ride which requires that the do- 88 OF JUDGES THEIR JURISDICTION. fendant be sued at the place of his domicil or usual residence must be observed. This rule is subject, however, to various exceptions, detennined in the chapter which treats of judicial demands and of citations. 1 L. 223 ; C R. 6. Art. 90. — To determine on his competency, as relates to the place where the action is brought, we must be governed ' by the rule which provides that a judge shall not exercise any jurisdiction beyond the limits of the territory assigned to him. Art. 91. — When the jurisdiction of the judge, before whom a suit is brought, is limited to a certain sum, the ques- tion of jurisdiction must be decided by the amount claimed, and not by the sum actually due, not including, however, the in- terest, and the costs which have been subsequently incurred. But if one, in order to give jurisdiction to a judge, de- mand a sum below that which is really due to him, he shall be presumed to have remitted the over2)lus, and after having ob- tained judgment for the sum he had claimed, he shall lose all right of action for that overplus. 2 R. 207 ; 5 R. 90; See Art. 156. Art. 92. — The consent of parties cannot render a judge competent to try a cause, which from its nature cannot be brought before him, or when the amount in dispute exceeds the sum over which he has jurisdiction. All judgments, ren- dered in contravention of this provision, shall be void. 2 R. 54 ; 8 R. 201. Art. 93. — If one be cited before a judge, whose jurisdic- tion does not extend to the place of his domicil or of liis usual residence, but who is competent to decide the case brought before him, and he plead to the merit, instead of declining the jurisdiction, the judgment given shall be vahd, except the de- fendant be a minor. 2L. 224; 11 R. 11. Art. 94. — The same cause cannot be brought before two OF THE MODE OF BRINGING CIVIL SUITS. 89 separate courts, though they be possessed of concurrent juris- diction, except by discontinuing the suit first brought before the answer is filed. Hence, if the same suit be brought before two separate courts, having concurrent jurisdiction, the judge, before whom the action was brought first, shall sustain his jurisdiction, and the defendant shall be entitled to have the cause dismissed by the other court, and to recover costs. Nevertheless, if the defendant, instead of claimng to be dismissed, answer in the two actions, in the two separate courts, the first judgment rendered by either of them shall be vahd and executory against the party cast in the action. All proceedings shall be staid in the other court, and the plaintiff dismissed after paying the costs. Sec. II. — Of the mode of bringing civil suits, of suits, and of parties litigant. Art. 95. — Actions are brought before the courts by what is termed suit. Art. 96. — A suit is a real, personal, or mixed demand, made before a competeijt judge, by which the parties pray to obtain their right, and a decision of their disputes. In that acceptation, the words, suit, process and cause, are almost synonymous. Art. 97. — Civil actions may be prosecuted, according to the nature of the case, by three kinds of proceedings, to 'SNdt : Ordinary, executory, or summary. 8 N. S. 95. Art. 98. — The proceedings are ordinary, when citation takes place, and all the delays and forms of law are observed. They are executory, when seizure is obtained against the property of the debtor, without previous citation, in virtue of an act or title importing confession of judgment, or in other cases provided by law. They are summary, when carried on with rapidity, and 90 WHAT PERSONS ARE ENTITLED TO BRING ACTIONS. without the observance of the formalities required in ordinary cases, as when- courts provide for the administration of vacant successions, and the property of minors and absent heirs. 8 L. 25'7 ; 3 A. 434. Art. 99. — In order to constitute a suit or action, there must be, at least, two parties present, or duly represented, though one of the two may fail to appear ; it is therefore that they are called the principal parties to the suit. G N. S. 517 ; 4 L. 158; 5 L. 424 ; 17 L. 479. Art. 100. — The plaintiff is he who sues another for some- thing which he says is due, or belongs to him. The defendant is the one against whom this suit is brought. Art. 101. — Besides the plaintiff and the defendant, there are often other parties to the suit, such as warrantors, third persons intervening, and parties opposing ; but such parties, whether plaintiffs or defendants, as the case may be, are only so, incidentally and subsidiarily. CHAPTER V. WHAT PERSONS ARE ENTITLED TO BRING ACTIONS, Art. 102. — Those who are disquahfied from contracting are generally disquahfied from suing. The exceptions to this rule are provided in the following articles. Art. 103. — Slaves cannot sue, either as plaintiffs, or as defendants, except as relates to their freedom. But the earnings of slaves, and the price of their service, belong to their owners, who have their action to recover the amount from those who have employed them. Stat. SOtJi, 3Iay, 1846, p. 153— From the passage of tliis act, no slave shaU be entitle to his or her freedom under the WHAT PEKSONS AKE ENTITLED TO BRING ACTIONS. 91 pretence that lie or she has been, with or without the consent of his or her owner, in a country where slavery does not exist, or in any of the States where slavery is prohibited. 6 N. S. 418; 1 N. S. 350; 3 L. 170; 9 L. 156; 3 A. 556. Art. 104. Children, as long ^s they are subject to pater- nal power, that is to say, while tTieir fathers and mothers are living, and they, not emancipated, cannot bring suit against them. Art. 105. — A married woman, cannot sue her husband, as long as the marriage continues, except it be to obtain a sepa- ration from bed and board, or for the restitution and enjoy- ment of her paraphernal property, or in case she holds her property separate from him, by her marriage contract ; but in every case, she cannot sue, without the authorization of the court before which she brings her action. Stat. 7th April, 1826, p. ICG. — § 1. The article one hun- dred and five be amended so as to make the English corres- pond with the French text by inserting after the words " bed and board," the words " or for the separation of property." 2 L. 29 ; 1 R. 230, 468. Art. 106. — A married woman, whether she be of age, or a minor, cannot appear in court against any one, without the authorization of her husband, although she may be a public merchant, carrying on her trade separate from him, unless she has obtained a separation from bed and board, by virtue of a jugdment duly executed, or has been regularly divorced. 8 N. S 515 ; 4 K S. 388; 1 R. 230,468 ; 2 R. 368 ; 6 R. 77 : 2 A. 879 : 5 A. 631 ; Art. 107. — Husbands have, under their control, the per- sonal and possessory actions to which their wives are entitled, though they be themselves minors ; therefore, they can pro- ceed judicially, and in their own name, in whatever relates to the preservation of the dotal property, which their wives have brought to them by marriage, as well as to the recovering of the debts due them, these being under their administration. 92 WHAT PERSONS ARE ENTITLED TO BRING ACTIONS, But actions, relating to the ownership of tlie dotal or pa- raphernal property of the wife, or of some real right helonging to her, must be brought by the wife, duly authorized by her husband, or by the judge, if he fails to do it. 3 N. S. 615; 2 L. 29; 9 L. 348; 4 R. 37,114; 6 R. 77,154; 2 A. 879; 5 A. 631; Art. 108. — Min(»rs, persons interdicted, or absent, cannot sue, except through the intervention, or with the assistance of their tutors or curators. 5 N. S. 677; 8 N. S. 665; 2 L. 142; 6 L. 493 ; 7 L. 216,559; 9 L. 234 ; 10 L. 14,454; 3 R. 119; 7 R. 167. Art. 109. — When minors are under the age of puberty, their tutors act themselves, in all judicial proceedings, in the name of their minors, in all the suits which may be brought for them, without making them parties to those ac- tions. The curators of persons interdicted, or absent, act judi- cially in the name of those whom they represent, in the same manner as the tutors of minors, under the age of puberty. Art. 110. — When minors have attained the age of puber- ty, they appear themselves, and in their own names, in all their suits ; but they must be assisted by the curators ad lites appointed to assist them generally in all suits, or specially for any one suit, unless they have been emancipated by mamagc, in which case, the minor husband may act, without the assist- ance of any curator. The office of " Curator ad litcs" is abolished by tlie 9th section of etat. 11th March, 1830, p. 48. See Civil Code, art. S57, and anicndments. 4 L. 477 ; 6 L. 231. Art. 111. — The curators of vacant successions, or of ab- sent heirs, may bring all lands of actions, relating to their ad- ministration, in their own name, and in their quahty, without being obliged to mention the name of the heirs they represent, because it is often uncertain whether such heirs exist, and their names are generally unknown, 5 L. 472; 15 L. 492; 1 R. 108; 1 A. 75. Art, 112. — Bodies corporate, and chartered institutions, AGAINST WHOM ACTIONS MAT bS BROUGHT. 93 act judicially through their proper representatives, under the name or title given to them in tlieir act of incorporation. 8 L. Ill ; 2 A. 897. Art. 113. — As the right of action may be transmitted, it passes to the heirs ; therefore, the heirs of the deceased may sue the debtor of the succession, in the same manner as the deceased himself could have done. But actions being divisible, if there be several heirs, each may sue for his separate share, in the same manner as each is only bound, pro rata, of his share for the debts of the succes- sion. 6 ]Sr. S. 292 ; 5 L. 363 ; 15 L. 514 ; 16 L. 31 ; 18 L. 41 ; 19 L. 403,405 ; 1 R. 54,521; 5R. 473. CHAPTER VI. AGAINST WHOM ACTIONS MAY BE BROUGHT. Art. 114. — Civil actions can only be brought against such slaves, as are claimed as slaves, and allege that they are free. As relates to the damages which they may occasion by their offences and quasi offences, the person aggrieved must sue the owner, who is bound to repay them, unless he should prefer to let the offending slave be seized and sold, in order that the damages sustained may be satisfied out of the proceeds. 7 L. 586 ; 9 L. 341. Art. 115. — Actions against interdicted persons, or minors under the age of puberty, must be brought directly against the tutor of the minor, or the curator of the interdicted person. . If the minor be above the age of puberty, the suit must be brought, both against him and against his curator ad Utes, unless he be a husband, emancipated by marriage, in wliich case he may be sued alone ; if the minor be absent, the suit 94 AGAINST WHOM ACTIONS MAY BE BROUGHT. may be brought against his curator ad Ufcs, who shall answer both in liis own name, and in that of the minor. See note to art. 110. Art. 116. — If the minor, whether under or above the age of puberty, against whom one intends to institute a suit, has no tutor, nor curator ad Utes, the plaintiff must demand that a curator ad hoc be named to defend the suit. The same course must be pursued, if the person intended- to be sued, be absent and not represented in the State. 2 N. S. 554; 3 X. S. 178; 4 N. S, 185, 431,680; 6 N. S. 15; 1 L. 83; 2 L. 467 8 L. 244,485; 4 L. 157,258; 5 L. 489; 6 L. 377,472,690; 7 L. 75; 9 L. 79,88,276 10 L. 84,121,420; 11 L. 267; 12 L. 449,575,606; 13 L. 284; 14 L. 415,447 15 L. 37,83 ; 6 R. 142,189; 2 A. 562,916,1010 ; 3 A. 562. Art. 117. — When the tutor of a minor under the age of puberty, has interests opposed to those of his ward,Jie cannot sue him, except by making the under tutor defendant in the cause. Art. 118. — When one intends to sue a married woman, for a cause of action relative to her own separate interest, the suit must be brought, both against her and her husband. Should her husband be absent, the plaintiff must demand that she be authorized by the judge before whom the suit is brought, to defend it alone, if she be of age ; if she bo a mi- nor, he must pray for the nomination of a curator ad hoc, to assist her in her defence. Nevertheless if she be divorced or separated from her hus- band, from bed and board, by a judgment duly executed, she may be sued alone, without the authorization of her husband or of the judge being required. 4 N. S. 388 ; 2 L 36 ; 4 L. 259 ; 6 L. 639 ; 10 L. 401,574 ; 2 R. 368 ; 6 R. 127, 407; 9R. 192; 2 A. 879. Art. 119. — Suits against coriiorations, corporate bodies or chartered companies, must be brought against them under their legal titles. Art. 120. — If one against whom there was a cause of ac- tion, die, leaving one heir only, the suit shall be carried on against such heir, as it would have been against the deceased. AGAINST WHOM ACTIONS MAT BE BROUGHT. 95 If the suit had already been brought against the deceased, and he had not answered, it shall not be interrupted, but shall be continued against the heir, by a mere citation or notice served on him to that eifect, within the delay for original cita- tions, according as the distance may be from his domicil to the court where the action has been brought. If, on the contrary, the deceased have two, or more heirs, the plaintiff may proceed personally against each of them, for the share which he inherits, if that share be suflicicntly known and ascertained by an inventory, or partition ; other- wise, they can only be sued, each for a virile portion, that is to say, for an equal part of the debt, dividing it in as many parts as there are heirs. If the suit had been already commenced against the de- ceased, it shall be continued against his several heirs, by citing each of them separately, as if there were only one, but judg- ment can only be given personally against each, for his hered- itary share, or virile portion, as above provided. 3 N. S. 623 ; 6 N. S. 427 ; 1 L. ] 1 1 ; 3 L. 527 ; 5 L. 361 ; 8 L. 527 ; 10 L. 396 ; 12 L. 429; 5 R. 224,473; 6 R. 44; 11 R. 37; 2 A. 484. Art. 121. — The hypothecary creditors of a person de- ceased, have, besides their action against each of liis heirs, as provided in the preceding article, an hypothecary action against such of the heirs, who have possession of some prop- erty, subject to their hypothecation. This action lies for the whole amount of the debt, wdiethci the heir, thus sued, possesses the whole, or only a part of the hypothecated property ; he has, however, his recourse against his co-heirs, for the share which they are boiind to contribute towards the pa}Tnent of the debt. The heir, against whom the hypothecary action is institu- ted, may be discharged, by relinquishing such hypothecated property as may have fallen to his share, if there has been a partition, or his undivided share of such property, if the pro- perty has not been divided. But this relinquishment shall not free the heir from his 96 AGAINST WHOM ACTIONS MAY BE BROUGHT. liability to the personal action, in case tlie creditor should pre- fer to proceed against liim directly, rather than to resort to the hypothecary action, or in case the proceeds of the sale of the hypothecated property should be insufficient to discharge the debt. Art. 122. — All kinds of actions may be brought against vacant successions, when all the heirs are absent and not rep- resented in the State, provided they be instituted against the curator appointed to administer the succession. The judgments rendered against the curator, are as valid and efficacious, as if they had been rendered against the heirs themselves. But if some of the heirs of the deceased are present, or represented in the State, the suit must be brought against the heir present, or represented, as weU as against the curator of those who are absent. 2 L. 255 ; 3 L. 274 ; 7 R. 206 ; 8 R. 488. Art. 123. — Testamentary executors may appear, and de- fend all the actions brought against the succession they ad- minister, when none of the heirs are present or represented in the State ; but if all the heirs, or any one of them, be pre- sent or represented, none but personal actions can be brought against the testamentary executor alone. All real actions, such as those of revendication, and the like, must be brought both against the testamentary executor and the heirs present or represented. 8 R. 488. OF COURTS OF ORIGINAL JURISDICTION. 97 PART 11. CONTAINING BULES TO BE OBSERVED IN THE PROSECUTION OF CIVIL ACTIONS. TITLE I. PROCEEDINGS TO BE OBSERVED IN THE PROSECUTION OF AC- TIONS BEFORE COURTS OF ORIGINAL JURISDICTION. Art. 124. — The rules of proceedings, contained in the present title, relate only to the district and parish courts of the State, when in the exercise of their ordinary jurisdiction. Special rules are hereafter established for courts of pro- bates and justices of the peace. CHAPTER L OF COURTS OF ORIGINAL JURISDICTION, AND THEIR POWERS. Art. 125. — The Hmits of the territorial jurisdiction of the several district and parish courts in this state, are established by special statutes. Art. 126. — The jurisdiction of district courts, excepting the court of the first district, extends over aU civil cases, when the amount in dispute exceeds fifty dollars. 7 98 OF COURTS OF ORIGINAL JURISDICTION. Their judgments are in the last resort in all the causes, when the amount in dispute is under three hundred, and ex- ceeds fifty dollars ; for all larger sums, an appeal lies from their judgment. The court of the first district has the same jurisdiction, except in causes originating in the city of New Orleans, where the said court exercises original jurisdiction in cases above one hundred dollars and upwards, and without ap- peal from one hiuidred to three hundred dollars. Staf. lOfh Fchnmnj, 1841, p. 16. § 11.— Whenever a con- flict of privileges arises between different creditors, all the suits and claims shall be transfen-ed to the court by whose mandate the property on which the privilege or right of mortgage is to be exercised, was first seized either on mesne process or on de- finitive execution ; and said courst shall proceed to class said pri\ileges and rights of mortgage according to their rank and dignity, in a summary manner, after notifying aU parties inter- ested. See amendments to Art. 81. Editor's Note. — Parish and Probate Courts and the City Courts of New Orleans no longer existing, it is not deemed necessary to note the vast num- ber of cases that have been decided arising out of questions of conflict of ju risdiction. Art. 127. — The parish and city courts of New Orleans have a concurrent jurisdiction with the first district court, subject to the same restrictions and rules. Art. 128. — The parish courts, except that of the parish of Orleans, have jurisdiction in all civil cases, when the value in dispute does not exceed three hundred dollars. Their decisions arc in the last resort, when the value in dispute does not exceed fifty dollars, and subject to appeal when it exceeds that sum ; but an appeal lies in all cases where the right to real property is in question, or where the legality of a tax, or of some toll is disputed. See aniendements to Art 81. G R. 427 ; 9 R. 153. Art. 129. — District and parish courts have no jurisdio OF COURTS OF ORIGINAL JURIbDICTION". 99 tion, when actions arc brought against persons residing in tho State, out of the limit of their respective jurisdiction, except in the cases expressed in this code, unless the defendant, of his own accord, should submit to their jurisdiction, as hereaf- ter provided. 2 N. S. 375; 3 K S. 651 ; 4 N. S. 33,57,188,300; 5 N. S. 73; 8 N. S. 247 2 L. 'J'24; 3 L. 127,280; 8 L. 213,523; 9 L. 649; 10 L. 228; 12 L. 44; 13 L. 371.375; 14 L. 131,172; 18 L. 17,557,503; 111.228,537; 2U. 128; 8 R. 7,28,244, 411. Art. 130. — All judges possess the powers necessary for the exercise of their respective jurisdictions, though the same be not expressly given by law. 2 A. 87. Art. 131. — The judges of the supreme, district, and parish courts, have the power to punish all contempts of their authority, by fine, not exceeding fifty dollars, and imprison- ment for a period not exceeding ten days, for each offence of that kind. 1 L. 134; 11 L. 601; 8 R. 500; 1 A. 183. Art. 132. — Attorneys and advocates, when guilty of con- tempt of the courts, before which they plead, arc subject to punishment, pursuant to the provisions of special laws. Stat. 20th Ilarch, 1839, p. 170.— § 21. When a fine shall b3 imposed by any court of justice, for the non-at- tendance of any witness, juror, or for any other cause, it shall be the duty of the clerk of said court to issue within two ju- dicial days, a writ of fieri facias, at the suit of the State, against the person or persons on whom said fine shall have been imposed, and that the clerk and sherift", or coroner and marshal, as the case may be, shall be made responsible for the faithful performance of the law contained in the above section ; provided, however, that such fines shall not be im- posed without a rule on the party to show cause unless the circumstances of the case should in the discretion of the Court require no delay. 6N.S. 161- 11 L. 601; 1 L. 135; 8 R, 600. See 1 A, 183. 100 OF COURTS OF ORIGINAL JURISDICTION, Art. 133. — Courts of oiiginal jurisdiction may fine jury men, sheriffs, constables, and the otlicr officers attached to the courts, when they fail to attend, or neglect their duty ; but the fine cannot exceed fifteen dollars, for each offence of that description. Art. 134. — Those courts may enforce the personal attend- ance of witnesses before them, by having them pro})erly sum- moned for that purpose ; pro\'ided they reside in the parish where the court is held. Art. 135. — If a witness, who has been duly summoned in a suit, fail to appear personally, the court may order, at the request of either of the parties, that he be brought by attach- ment before them ; and if he does not show good cause for not having obeyed the summon, the court may fine liim in a sum not exceeding one hundred dollars. No. 275, Stat. April 30th, 1853,— § 1. Any witness who may have been summoned to attend any of the courts of this State to testify in a civil case, and shall have attended, claim- ed, and received a certificate therefor, shall not again be compelled to obey any summons for attending said court in said case at a subsequent term, until he be paid, or the money tendered to him, upon demand by the said witness of the party whom he was summoned, or in'^liis absence, of his agent or his attorney. Art. 136. — If a witness summoned in a cause, refuse to answer any questions put to him, except such as might lead him to accuse himself of some crime, the court may fine such witness in a sum not exceeding two hundred and fifty dollars, and imprison him for a term not exceeding thirty days. Art. 137. — The party aggrieved by the refusal of a witness to answer the questions -put to him, has, besides, his action of damage for the loss he may have sustained tlu-ough his refusal. Art. 138. — Courts may, at the request of the parties, ad- dress commissions to judges of other courts, justices of the OF COUKTS OF ORIGINAL JURISDICIION. 101 peace, or other persons, to take the deposition of witnesses, or the answers to the interrogatories of the parties, residing out of the parish where such courts are held ; and even of witness- es residing witliin the parish, when they are old and infirm, or expected to leave the State, The formalities to be observed in such cases are hereafter provided. 9 L. 242 ; 18 L. 59 ; See art. 439. Art, 139, — Courts may likewise, at the request of either of the parties, order that the other shall bring into court the object in dispute, of which he is in possession, if it be a slave, or such movable property as can be produced, in order that it may be shown by testimony, that it is in reality the object claimed ; and if the party refuse to comply with the order, that refusal shall be considered as full proof of the identity of the object. Art. 140, — Courts may also at the request of one of the parties, decree, that the other party bring into court the books, j)apers, and other documents, which are in his possession, and which are material in the cause, provided the party requesting their production declares in writing, and on oath, what are the facts he intends to establish by such books, papers, or other documents ; and on the refusal of the party thus called upon to comply with the order of the court, the facts stated and sworn shall be considered as having been confessed, until satisfactory evidence be shown of the impossibility of produc- ing such documents, 1 L. 205 ; 10 L. 103 ; 3 K. 227 ; 4 R. 15 ; 8 R. 6. Art. 141. — Courts may also, at the request of either of the parties in a suit, order a third person, having in his pos- session papers, titles, acts, or documents, which may be im- portant in the decision of a cause, to bring them into court, on the day fixed for the trial. 18 L. 4G1, Art, 142, — ^Nevertheless, notaries are not bound to pro- duce the record of acts passed before them, of which authentic 102 OF THE ORDINARY PROCEEDINGS, copies may be obtained, except when it is necessary to prove the genuineness of the signatures affixed to them. Art. 143. — When a party or a third i)erson has been or- dered to produce some books, deeds, or other documents, he must deliver them prenous to, or on the day fixed for the trial, to the clerk of the court, who shall receipt for them, have charge of them, and return them again to the party to whom they belong, after the cause shall have been decided. Art. 144. — Courts have tlie power to order the arrest and imprisonment of the parties, attachment in the hands of tliird persons, sequestration, execution, and sale of their property, in the manner, and in the cases hereafter provided ; they pos- sess, besides, the other powers specially delegated to them by the provisions of the present code. 2 L. 255. Art. 145. — The courts are authorized to enact, respective- ly, rules establishing the mode of proceeding before tliem, in all cases not provided by tliis code, provided the same be not contrary to the rules here prescribed. 11 L. 124. CHAPTER II. OF THE ordinary proceedings. Art. 14G. — The word proceeding, in its general accepta- tion, means, the form in which actions are to be brought and defended, the manner of intervening in suits, of conducting them ; the mode of deciding them, of opposing judgments, and of executing them. The forms are different, in ordinary, executory, and sum- mary proceedings. OF DEMAND, AND OF CUMULATED ACTIONS. 103 Sec. I. — Of Demand, and of Cumulated Actions. Art. 147. — A demand means a civil action brought before a court of justice, to obtain a thing to which one thinks liim- self entitled. Art. 148. — Separate actions may be cumulated in the same demand, except in the cases hereafter expressed ; this is termed mimdation of action. Art. 149. — The plaintiff is not allowed to cumulate seve- ral demands in the same action, when one of them is contrary to, or precludes another. As when one has bought a tiling in the name of another, and with his funds, without his authorization ; the person, for whom the purchase has been made, cannot demand, by the same action, both the thing bought in his name, and the money employed for paying the price. Nor can a vendor demand, at the same time, the rescission of the sale he has made, and the price for which it was made ; he must decide for one or the other of the two causes of ac- tion, as the one precludes the other. 1 N. S. 439 ; 2 K S. 323 ; 6 N. S. 39 ; 7 N. S. 403 ; 8 N. S. 334 ; 1 L. 139; 4L. 353,360; 5 L. 440 ; 8L. 2G7; 13 L. 582; 14 L. 279; 15 L. 78,199; 16 L. 384 ; 6 R. 520; 11 R. 87 ; 12 R. 188; 2 A. 158; 3 A. 366. Art. 150. — In possessory actions, one cannot claim, at the same time, both the possession and the ownershij), if the two are demanded ; it shall be presumed that the posses- sory has been rehnquished, in order to resort to the petitory action. 16 L. 380. Art. 151. — If the plaintiff has several causes of action, tending to the same conclusion, not contrary to, nor exclusive of each other, though they arise from different contracts, he may cumulate and bring them in the same suit, as, for exam- ple, if one claim from another one hundred dollars in virtue of a sale, and one thousand dollars in virtue of a loan, or if 104 OF DEMAND, AND OF CUMULATED ACTIONS. he claim a slave from another, both by inheritance and by purchase. 6 N. S. 392; 8 N. S. 333, 438; 1 L. 131 ; 5 L. 437 ; 8 L. 267. Art. 152. — When two causes of action, contrary to, and exclusive of each other, liavc been cumulated in the same de- mand, the defendant may refuse to plead to the merits, until the plaintiff have made his choice as to which of the two he means to proceed with ; and if the exception be sustained by the court, the plaintiff shall be bound to amend his petition, 60 as to preserve only one cause of action, otherwise liis suit shall be dismissed with costs. G X. S. 392 ; 7 N. S. 403 ; 15 L. 195 ; 3 A. 365. Art. 153. — Demands are principal or incidental. The principal demand is that by which the suit is com- menced in court ; and for this reason it is also termed ordi- nary demand. An incidental demand is that which is made before issue joined, in order to obtain something relating to the principal object of the suit ; such are demands in warranty or in inter- vention. 17 L. 176; 6R. 466. Art. 154. — The principal demand must be brought before the court which has the jurisdiction of the case. The incidental demand must be decided at the same time with the principal ; it is subject to the same jurisdiction as the suit itself 17 L. 176; 6 R. 4GG. Art. 155. — One should only demand in court what is really due to him ; nevertheless, if one demand more, the ac- tion shall be sustained for the amount actually due, and the defendant shall pay the costs, unless he prove, that previous to the suit he made a real offer of the amount actually due to the plaintiff, with the interest, and the cost which had accrued. Art. 156. — If one demand less than is due him, and do not amend his petition, in order to augment liis demand, he shall lose the overplus. 14 L. 140 ; 2 R. 207 : Ante 91, OF DEMAND, AND OF CUMULATED ACTIONS. 105 Art. 157. — If, in an action of debt, the plaintiff fail to claim the interest due to liim, or to amend his petition in order to include it, he cannot, after judgment, demand such interest by another action ; he shall be considered as having remitted it. But as relates to the costs of the suit, it is not required that they should have been claimed in the petition or answer, in order to recover them ; they arc due to him in favor of whom the judgment has been rendered, even if notliing is said on the subject in the judgment. 17 L. 331 ; 1 R. 469; 12 R. 194; 6 A. 297. Art. 158. — When the demand is premature, that is to say, when the action has been brought before the debt had become due, the suit must be dismissed, leaving to the party his right to bring his action in due time. The same rule must be observed, if the object due be de- manded out of the place where it was to have been delivered, or if the obligation be conditional, and its execution be de- manded before the condition has been fulfilled. 1 L. 504; 8 L. 589; 11 L. 420; 13 L. 403. Art. 159. — Judicial demands are either verbal or in writ- ing. It is only before justices of the peace that demands may be made verbally, as will be provided in the rules to be ob- served for proceeding before the tribunals of justices of the peace. All other demands brought before the courts, must be in writing, and in the form of petition. Art. 160. — Though there be as many kinds of demands as there are actions, those which must be made in writing are subject to no distinct and peculiar form ; they are only sub- jected to a few general and common rules, hereafter pro- vided. 13 L. 416. Art. 161. — It is sufficient ir^all judicial demands, which 106 BEFORE WHAT TRIBUNALS ACTIONS are required to be in writinj:^, to express clearly what is de- manded, with such conclusions as may serve as a basis to the judgment to be rendered in the cause. Sec. II. — Before lohat tribunals actions are to he brour/Jit. Art. 162. — It is a general rule in civil matters, that one must be sued before his own judge, that is to say, before the judge having jurisdiction over the jjlace where he has his do- micil, or residence ; but that rule is subject to several excep- tions. 8 N. S. 252 ; 2 L. 29, 224, 280 ; 3 L. 125 ; 8L. 213, 524 ; 9 L. 549 ; 11 L. 1"78 ; 14 L. 124; 3 R. 7, 26, 411; 6 R. 6,406; 1 A. 78. Art. 163. — In actions of revendication of real property, or when proceedings are instituted, in order to obtain the seizure and the sale of real projjcrty, in virtue of an act of hypothecation, importing confession of judgment, the defend- ant may be cited, whether in tlic first instance, or in appeal, either witliin the jurisdiction where the property revendicated •or hypothecated is situated, though he has his domicil or resi- dence out of that jurisdiction, or in that where the defendant has his domicil, as the plaintiff chooses. 2 N. S. 375 ; 3 N. S. 654 ; 4 N. S. 188 ; 2 L. 223 ; 4 L. 240 ; G R. 460 ; 9 R. 549 11 R. 387; 3 A. 637. Art. 164. — In matters relative to successions, the defend- ants, though domiciliated elsewhere, must be cited to appear before the court of the place where the succession has been opened : 1. In all suits brought by the heirs against each other, un- til after partition, inclusively ; 2. In all suits brought by the creditors of the deceased, previous to the partition ; 3. In all suits relating to the execution of testamentary dispositions, until the final settlenieut of the affairs of the es- tate has been effected. « ARE TO BE BROUGHT. 107 Art. 165. There are other exceptions to this rule, wliich require that the defendant be sued before the judge having ju- risdiction over the place of his domicil or residence ; they are here enumerated : 1. In matters relative to the partition of real property be- tween several co-proprietors ; for in such a case tlie suit must be brought before the court of the place where such property is situated, though the co-proprietors may reside in different parishes ; 2. In matters relative to partnership ; as long as the part- nership continues, in all suits concerning it, the parties must be cited to appear before the tribunal of the place where it is established, or if there are several estabhshments, before that of the i^lace where the obligation was entered into ; 3. In matters relative to failure, all the suits already com- menced, or which may be subsequently instituted against the debtor, must be carried before the court in which the failure has been declared ; 13 L. 423 ; 17 L. 87 ; 2 R. 348; 9 R. 45 4. In matters relative to warranty, they must be carried before the court having cognizance of the principal action in which demands in warranty arise ; 5. In matters relative to judicial costs, or to the fees of advocates, the suit instituted for their recovery must be 'brought before the court where they have been incurred ; 6. When the defendants are foreigners, or have no fixed or Imown place of residence in the State, they may be cited wherever they are found. Stat. 1th April, 1826, p. 168.— § 2. Number five of ar- ticle one hundred and sixty-five, be and the same is hereby repealed, and that suits for the recovery of the debts therein mentioned may be brought before any court of competent jurisdiction. 4 R. 342. Art. 166. — If a defendant reside alternately in different parishes, he must be cited in that in which he appears to have his ])rincipal establishment, or his habitual residence. 108 OF PETITION AND CITATION. K his residence in each appear to be nearly of the same nature, in such a case he may be cited in either, at the choice of the plaintiff, imless he has declared, jjursuant to the i)rovi- sion of the law, in which of those parishes he intended to have his domicil. 9 R. 243; 1 A. 78; 4 A. 553. Art. 1G7. — If the defendant change his domicil, he must be cited in the parish where he has resided wdthin the last year, or within that where he has declared, in the manner pre- scribed by law, that he intended to have his domicil. Art. 168. — If the defendant has not made such a declara- tion, he may, nevertheless, be cited in the parish where he lives, though he has not resided one whole year in it, if he has done in that parish acts which manifest sufficiently that he intended to make it the place of liis domicil, 11 L. 179. Sec. III. — Of Petition and Citation. Art. 169. — It is not necessary, previous to bringing a suit, to make an amicable demand in writing. Stat. 20th March, 1839, p. 162.— § 1. When the defendant resides out of the State, or when the suit is commenced by arrest or attachment, an amicable demand shall in no case be necessary. 7 N. S. 294; 8 N. S. 117 ; 1 L. 209,420 ; 4 L. 105,204 ; 6 L. CG7,715 ; 7 L. 270; 8L. 110; 11 L. 76. Art. 170. — Every demand in writing must be commenced by a petition. 1 N. S. 200 ; 4 N. S. 001 ; 7 K S. 444 ; 3 A. 434. Art. 171. — A petition is a written document, which the plaintiff addresses to a competent judge, setting forth the cause of the action which he intends to bring against the de- fendant, and praying to be permitted to cite th,at defendant OF PETITION AND CITATION. 109 before him, in order that he may be ordered to do or to give a certain thing. See 3 N. S. 28G ; 7 N. S 300; 3 L. 348,350; 4 L. 117 ; 11 L. 255. Art. 172. — The petition, when either party speaks the French hmguage as a mother tongue, must be drawn both in the French and Enghsh languages, and it must mention the name or title of the court to which it is addressed : 1. The name, surname, and the place of residence of the plaintiff ; 2. The name, and the place of residence of the defendant, or the place where he lives ; 3. The petition must contain a clear and concise state- ment of the object of the demand, as well as of the nature of the title, or the cause of action on which it is founded ; 4. It must not contain any insulting or impertinent ex- pression ; 5. It must end by conclusions analogous to the nature of the action to which the plaintiff has resorted ; 6. It must be signed by the plaintiff or his attorney in fact, or by his advocate. 1 N. S. 202 ; 2 N. S. 85,358,626 ; 3 N. S. 167,286,640 ; 4 N. S. 178,282 ; 5 N. S. 39,78,693; 6 N. S. 9,88,127,242,417,649; 7 N. S. 228,260,356,366,401,573; 8 N. S. 437,467,704; 1 L. 35,214; 3 L. 255,292,359; 4 L. 117; 6 L. 16,142,594; 7 L. 413,599; 8 L. 298 ; 9 L. 280; 10 L. 219; 11 L. 157,508; 12 L. 254,401,459,521,587; 13 L. 493; 14 L. 190; }7 L. 604; 1 R. 20,190,242,335, 449,533 ; 4 R, 257 ; 12 R. 138 ; 2 A. 145,366,655. Art. 173. — If the plaintiff demand a specific object, he must describe it with certainty in his petition, in such a man- ner as to leave no doubt as to the object demanded. 3 A. 223. Art. 174. — When the action is founded on a notarial or public act, an authenticated copy must be annexed to the pe- tition, in order that it may be communicated to the defendant, if he require it. 2 L 133. Art. 175. — But if the title on which the demand is found- 110 OF TETITION AND CITATION. ed, be an act under private signature, or a note bearing the signature of the defendant, the original of sucli an act or the note itself, must be annexed to thc*f)ctition, in order that the defendant may be enabled, either to avow or deny the sig- nature. Nevertlieless, it is not necessary to serve on the defendant, copies of the acts or documents annexed to the petition. Stat. 7th Aj^ril, 182G, p. 168.— § 2. That so much of ar- ticle one hundred and seventy-five as requires the original of an act or note under private signature to be annexed to the petition be repealed, provided that if the defendant jiray a view or oyer of the document declared upon, the court shall ord^^he same to be filed -within a reasonable delay, and in dcmilt o/* the plaintiiF's complpng with said order liis petition shXU be dismissed, / 3 A. 223 ; 4 A. 296. Art. 176. — The petition, together with all the annexed documents, must be delivered to the clerk of the court to which it is addressed, who shall receive it, and indorse im- mediately, the date of the day, month, and year, when he re- ceived it. Art. 177. — The defendant or his attorney, may agree, that the plaintiff's petition be drawn only in English ; he may Ukewise waive the service of it, provided, in the latter case, the defendant, or his attorney, certify in writing, and under his signature, on the back of the original delivered to the clerk, that he acknowledges that the petition has been duly served on him ; in such case, the clerk shall not be entitled to charge for a copy, nerson resid- ing witliin the jurisdiction of the court, fur such sum as the court may determine, according to the nature of the case, ag security that he ^^^ll deliver the property in dispute, in the same state in which it was at the moment of issuing tlie in- junction, and that he will pay besides to the plaintiff all dam- ages he may have sustained by his act, if a definitive judg- ment be rendered against liim in the suit pending. lOR. 68; 2 A. 321. Art. 308. — If one against whom the injunction is directed, violate the same or refuse to obey, the court may cither cause to be destroyed whatever may have been done in contravention to the injunction, if it be practicable, or they may punish him by an imprisonment not exceeding ten days, but which may be repeatedly inflicted, until the party obeys the mandate of the court. The party aggiieved by the disobedience of such person, may also recover from him such damages as he may show that he has sustained from such disobedience. 10 R. G8. Art. 309. — The sheriff, whenever he receives an act of suretyship in any of the cases mentioned above, must imme- diately send the same to the clerk of the- court which gave the mandate, in order that the plaintiff may liave an opportunity of objecting to the sufficiency of the security, in the manner provided for in case of the surety given for the appearance of debtors. 6 N. S. 4G; 10 R. 68. § 5. Of Judgment by Default. Art. 310. — If the defendant do not appear, either in per- son or by liis advocate, after the delay provided by the law, the plaintiff may take a judgment by default against liim. 6N. S. 211, 417; 7 N. S. 614; 8 N. S. 119,284,802,339; 6 L. C97 ; 7 L. 469 ; 7 L. 501 ; 10 L. 223; 6 R. 9 ; 12 R. 41. OF JUDGMENT BY DEFAULT. 163 Art. 311. — Such judgment may be obtained by mo\ang for it in court, but it consists merely in a statement on the records of the court, showing that the defendant has failed to appear. , 6 R. 9. Art. 312. — If three days after this first judgment has been rendered, the defendant neither appear nor file liis answer, a definitive judgment will then be given for the plaintiff, provided he prove his demand. This proof is required in all cases. * Stat. 1853. No. 300. An act to amend article three hun- dred and twelve of the Code of Practice. That article three hundred and twelve of the Code of Practice, which is as fol- lows: — "If three days after tliis fii'st judgment has been rendered, the defendant neither ajppear nor file his answer, definitive judgment will then be given for the plaintiff", pro- %dded he prove his demand. This proof is required in aU cases ;" be, and the same is hereby amended, so as to read : — " If two days after this first judgment has been rendered, the defendant neither appear nor file liis answer, definitive judgment will then be given for the plaintiff', proAdded hq prove his demand. This proof is required in all cases." 3 N. S. 154 ; 6 N. S. 211, 417 ; 7 F. S. 6U; 8 N. S. 119, 284, 301, 802 ; 3 L. 114 ; 11 L. 88; 12 L. 133, 259, 618; 13 L. 395; 14 L. 97, 269,472; 15 L. 166, 298; 16 L. 314; 17 L. 358; 1 R. 16,448; 3 R. 155;6 R. 9; 9R. 478; 12 R. 484,518; 1 A. 117. ^ Art. 313. — ^Vlien, from the nature of the demand, dam- ages are to be assessed, the court wiU direct a juiy to be sum- moned to find the same, in the same manner as if the defend- ant had answered ; and the court AviU give their judgment in conformity with the verdict of the jury. 11 L. 168 ; 12 L. 618 ; 18 L. 474 ; 5 R. 141 ; 6 R. 273 ; 3 A. 69 ; 6 A. 521. Art. 314. — If the defendant, on the very day when a de- finitive judgment by default was to have been rendered against him, appear and file his answer, the first judgment taken, shall be set aside. 3L. 115; 10 L. 650; 1 R. 448; 10 R. 560; 6 A. 119. 154 OF THE APPEARANCE AND Art. 315. — A jaJgmcut Ly default must express the ground on which it was rendered, but it is sufficient to state in the final judgment, that the demand was proved. 3KS. 154; 12 L. 133; 10 L. 314; 13 L. 495; 1 R. 448; 3 11. l§5; 17 L. 355 9 R. 478. ^ G. Of the appeafojice and answer of the defendant. Art. 316. — When the defendant appears, he may pray for further time to answer, and the court may grant a delay, if necessary for the purposes of justice. 8 N*. S. 505, 514 ; 4 L. 5C4 ; 7 L. 393. Art, 317. — It shaU be sufficient in all cases, except in the first judicial district, for a defendant to file liis answer on the first day of the term. Art. 318. — In the delay given to the defendant for an- swering, Sunday is included hke other days ; but in all cases where delay is given, either to do something or to answer, neither the day of serving the notice, nor that on which the act is to be done, or the answer filed, are included. The exceptions to tliis rule are specially provided by law. 10 L. 125,221; 12 R. 421. Art. 319. — The answer must be drawn in English, and in French when the plaintiff speaks that language as a mother tongue ; it must express the name, surname, and residence of the defendant, as well as the name of the plaintiff' ; and it must be free from all abusive, defamatory," or imi3ertinent ex- pressions. It must conclude by praying that the demand of the }jlain- tiff be rejected, and that he be sentenced to pay the costs of the suit ; unless the defendant himself should incidentally plead compensation or some other exception. 3 N. 8.- 270, 622, 645, 687 ; 4 N. S. 492 ; 5 N. S. 635 ; 7 N. S. 284, 482, 520; 8 N. S. 295, 515, 558, 704 ; 1 L. 318 ; 2 L. 207 ; 3 L. 307, 392 ; 6 L. 405 ; 7 L. 85 ; 8 L, 227; 9 L. 127, 159, 160, 413; 10 L. 106, 228, 550 ; 11 L. 83,76, 189; 12 L. 9, 398; 13 L. 13; 15 L. 231 ; 17 L. 292, 419, 528. ■ ANSWER OF THE DEFENDANT. 155 Art. 320. — The defendant may refuse to answer to the merits, if he has good ground for such refusal ; as if the suit is brought by one pretending to act as the attorney in fact of the plaintiff, and he fail to annex to the petition a copy of his power of attorney, or by a minor, without being assisted by his curator, or by a married woman, mthout the authorization of her husband or of the com't. 1 L. 283 ; 7 L. 595 ; 5 L. 405. Art. 321. In all the cases mentioned in the preceding ar- ticles, and in all other cases of the like nature, if the defend- ant take any such exceptions, and the same be sustained by the court, he shall not be required to answer to the merits, until the documents, wliich he calls for, be produced, or unti? the plaintiff be assisted in such a manner as to enable them to proceed regularly. 2 ]Sr. S. 212; 4 L. 272; 10 L. 107. Art. 322. — The defendant need not plead to the merits, if he decUne the jurisdiction of the court before which the suit is brought. 4 N. S. 678 ; 7 L. 393 ; 10 L. 228. Art. 323. — When the defendant answers to the merits, he is not bound to answer specially to all the allegations contained in the petition ; it is sufficient to deny, generally, all the facts stated, except he be called upon, either to acknowledge or to deny his signaiure. 6 N. S. 220, 250 ; 7 N. S. 520 ; 8 K S. 167, 290 ; 6 L. 745 ; 10 L. 10(5 ; 8 L. 227 ; 11 L. 34, 76. Art. 324. — When the demand is founded on an obliga- tion, or an act under private signature, which is alleged to have been signed by the defendant, such defendant shall be bound in his answer to acknowledge expressly, or to deny his signature. 1 L. 488 ; 3 L. 307 ; 5 L. 34; 1 A. 325. Art. 325. — If the defendant deny liis signature in his an- swer, or contend that the same has been counterfeited, the 156 OF THE APPEARANCE AND ANSWER, ETC. plaintiflF must prove the genuineness of such signature, either by witnesses who have seen the defendant sign the act, or who declare tliat they know it to he liis siiz:nature, because they have frequently seen him write and sign his name." But the proof by witnesses shall not exclude the proof by experts, or by a comparison of the ^vriting, as established by the Cinl Code. 9 L. 409, 502 ; 1 A. 325 ; 3 A. 323 ; 4 A. 52. Art. 326. — The defendant, whose signature shall have been proven, after his having denied tlie same shall be baiTcd from every other defence, and judgment shall be given against him, without further proceedings. 8 N. S. 230, 299 ; 2 L. 240 ; 8 L. 226 ; 12 K 12 ; 1 A. 325. Art. 327. — The defendant, though not bound to answer specially to all the allegations of the plaintift', except when called upon to avow or to deny his signature, must, neverthe- less, if he intend to resist the action by means of some excep- tion, plead the same expressly and positively in his answer, in all the cases hereafter prescribed ; otherwise he shall not be permitted to avail liimself of such exceptions afterwards. 7 L. 595 ; 4 R. 172 ; 9 R. 618 ; 2 A. 129. Art. 328. — The defendant, in his answer, may allege facts different from those alleged by the plaintiff, and bring an in- cidental demand, when the same grows out of the action, or is specially permitted by law. . 2 A. 4C2. Art. 329. — When the defendant, in his answer, alleges, on his part, new facts, these shall be considered as denied by the plaintiff, therefore, neither replication nor rejoinder shall be admitted. 6 N. S. oil ; 8 N. S. 141 ; 3 L. 392 ; 4 L, 836 ; 5 L. 4 ; 12 R. C48. OF EXCEPTIONS AND DEFENCE. 157 Sec. VII. — Of Exceptions^ and Defence. Art. 330. — Exceptions are means of defence, used by the defendant, to retard, prevent, or defeat the demand brought against him. But the word defence, in its more restricted acceptation, ia only apphcd to such exceptions as go to the merits, showing that the action is neither just nor well founded. Art. 331. — There are two principal species of exceptions, some arc dilatory, others peremptory. Dilatory exceptions are divided into decUnatory and dila- tory exceptions. 4 N. S. 287, 435, 470, 482, 487 ; 5 N. S. 232, 343 ; 6 N. S. 10; 7 N. S. 284, 361 ; 8 N. S. 409, 439 ; 1 L. 420 ; 2 L. 203 ; 3 L. 236, 308, 461 ; 4 L. 91, 104, 157, 360, 482 ; 10 L. 550 ; 12 L. 617 ; 13 L. 11, 109 ; 14 L. 22*8 ; 17 L. 480 ; 19 L. 430 ; 2 R. 381 ; 3 R. 202 ; 9 R. 535 ; 3 R. 93, 108. §1.0/" Dilatory Exccpticnis. Art. 332. — Dilatoiy exceptions, are such as do not tend to defeat the action, but only to retard its progress ; declinatoiy excejjtions have this effect, as weU as the exception of discus- sion opposed by a third possessor, or by a surety, in an hy- pothccaiy action, or the exception taken, in order to call in the warrantor. ^ 3 L. 308; 3 R. 57; 5 R. 268. Art. 333. — It is a i-ule, which governs, in aU cases of ex- ceptions, except in such as relate to the absolute incompetency of the judge before whom the suit is brought, that they must be pleaded specially a limine litis, before issue joined ; other- wise they shall not be admitted. Stat. 20th March, 1839, p. 172.— § 23. Hereafter no dilatory exceptions shall be allowed in any case after a judg- ment by default has been taken ; and in every case must be 158 OF DECLINATORY EXCEPTIONS. pleaded in limine litis ; nor shall such exceptions hereaftei be admitted in any answer in any cause. 1 N. S. 130, 507, 703; 4 >. S. 437 ; 1 L. 283, 419; 6 K 63 ; 7 L. 599; 8 L. 689 ; 10 L. 650 ; 14 L. 188 ; 3 R. 67 ; 5 R. 268 § 2. 0/ Declinator ij Exceptions. Art. 334. — Declinatory exceptions, do not tend to defeat the demand, but only to decline the jmisdiction of the judge before whom it is brought. In such cases, the defendant contends that he is not bound to plead before the court in which the action has been brought. 12 L. 118. Art. 335. — There arc two kinds of decHnatoiy excep- tions : 1. When the exception is taken to the competency of the judge, pursuant to the rules above provided ; 2. When it arises from the fact of another suit being pend- ing, between the same parties, for the same object, and grow- ing out of the same cause of action, before another court of concurrent jurisdiction. In both cases the suit must be dismissed, and the plaintiff decreed to pay costs. 3N.S. 363; V'n. S. 187; 7 L. 197; 9 L. 380 ; 11 L. 33; 3 R. 92, 108 12 R. 635; 2 A. 839 ; 4 A. 520 ; 5L. 116; 17 L.498; 1 A. 46 ; 5 A. 494 6 N. S. 517; 4L.158; 5 L. 425 ; 17 L. 479; 13 L. 373; 11 K. 402 ; 3 A. 22^ 4 A. 860; 12 R. 635 ; 2 A. 839. Art. 336. — Declinatory exceptions may be pleaded in the defendant's answer, .previous to his answering to the merits ; but except as relates to dechnatory exceptions, the defendant must plead in his answer aU the dilatory or peremptory excep- tions, on which he intends to rely, or which he is bound to plead expressly and specially, pursuant to the provisions of this code. 12 M. 636 ; 4 N.S. 437 ; 6 L. 380 ; 7 L. 197 ; C R. 419. OF THE RECUSATION OF JUDGES. 159 § 3. Of the recusation of Judges. Art. 337. — Recusation is the refusal, on tlic 2)art of the defenilarit, to have liis cause tried by the judge before whom he has been sued, on account of the ties of relationship, exist- ing between such judge and the plaintiff, or for other just causes hereafter expressed. 12 L; 118; 4R. 23; 2 A. 628. Art. 338. — The causes for which a judge may be recused are : 1. His being interested in the cause ; 2. His being in any way related to one of the parties ; 3. His having been emj)loyed, or consulted as advocate ia the cause ; 4. His being a material witness in the cause for either party. Stat. Wi Januarij^ 1825, p. 24. — In all ci\il and criminal causes in which the State, the j^arishes, or the politic or reli- gious incoqiorations, except the banks, and other moneyed insti- tutions are interested, it shall not be a sufficient cause to challenge the judge or justice of the peace, who have cogni- zance of the case, nor the sheriff or other executive officer or any of the jurors who are called to serve in the cause, to al- lege that they are citizens or inhabitants of the State or of the said parishes, or members of the said politic or religious incorporations, or that they pay any State parish or city tax. Stat. 18th Fehruary, 1825, p. 138.— § 1. It shall not be deemed a sufficient cause of recusation against any judge of the Supreme Court of this State that he has been emjiloyed as counsel or attorney in the case, but the said judge or judges may, notwithstanding they may have been employed or con- sulted as an. attorney or counsellor, in any cause, proceed to the trial of the same, any laAV to the contrary not^vithstanding. § 2. Whenever a quorum of the judges of the Sujireme Court, shall recuse themselves, from any cause whatever, the 160 OF THE RECUSATION OF JUDGES, judgment given by the court below, shall be pro\isionally ex- ecuted by giving good and sufficient security in double the amount of the judgment therein given. Stat. 25th March, 1828, p. 152.— § 5. That the fourth paragraph of the three hmidred and thirty-eighth article of the Code of Practice, be, and is, hereby, repealed ; and that no judge shall be rendered incompetent to sit. on the trial of any case now pending, or which may hereafter be instituted in any of the courts of this State, in consequence of his being a material witness in the case, in fovor of either pfirty, and that his being a w^itness shall no longer be a cause of recusa- tion of said judge. § 6. In every case now pending, or which may hereafter be instituted in any of the courts of this State, wliich are, by law, provided with clerks, in which the judge of said court may be a rnaterial witness, the clerk of said court shall ad- minister the oath to said judge, and shall take down his Qvi- dence in wTiting, if reqimed by either party in the cause ; and in such courts as may not be provided with clerks, it shall be lawful for any person authorized by law to administer oaths, 'to administer the oath to, and take down the evidence of the said judge in writing, and the said clerk, or other officer shall certify and sign said evidence,- and the same shall be filed and used as eWdence in the cause : Provided, however, that the above formalities may be dispensed with, by consent of parties, in all cases, and the evidence of said judge taken in any o^her manner and form that may be agreed upon by the parties. Stat. 1st June, 1846, p. 113.— Whenever the judge of any court in this State is interested, or has acted as counsel or at- torney in any cases instituted, or wliich may be instituted, in the courts of the district for wliich such judge may have been appointed, or is related to either of the parties so as to be in- capable of trying such cases by the existing la^YS, or is dis- qualified in any other way by law, and is recused by either of the parties, or recuses himself, it shall be the duty of the said judge to refer the said case or cases to the judge of an adjoin- OF THE RECUSATION OF JUDGES. 161 ing district ; that thereupon ' it shall be the duty of the clerk of the court to notify the judge of the adjoining district, that such case or cases, have been referred to him for trial, and it shall be the duty of the judge to whom such case or cases shall have been referred, to repair to the parish where such case or cases are pending, and to hold a special court for the trial of the same, and it shall be the duty of said judge to or- der a special jury to be drawn for the trial of such case or cases, if necessary ; provided this act shall not apply to the parish of Orleans. No. 229. Stat 28th April, 1853. A71 act to organize Dis- trict Courts for the City and Parish of New Orleans. § 4. Whenever the judge of any of the courts created by this act, shall be interested in any cause brought in the court over which he presides, or shall be related within the fourth degree to either of the parties, or shall recuse himself for any of the causes provided by law, or shall otherwise be incapable of, or disquahfied from trying such cases, it shall be the duty of one of the judges of one of the other district courts to preside in the interim in the place of said judge, to proceed in such case as if it had been brought before him, and ta discharge each and all the duties which the judge of said court would have to discharge, if present. No. 249. Stat. 28th April, 1853.— § 1. Whenever the judge of any inferior court in tliis State, the parish of Orleans except- ed, is interested or has acted as attorney or counsel in any cases instituted, or which may be instituted in such court, or is related to either of the parties by consanguinity in the di- rect ascending or descending line, or collaterally to the fourth degree, inclusive, or is disqualified in any other way, by law, and is recused by either of the parties, or recuses himself, such case or cases shall be heard, tried and determined, as well up- on final hearing as upon application for interlocutory orders, in the following manner, to wit : The parties, by their counsel, shall select some member of the bar in attendance on the court ; and in the event they do not make such selection, then 11 162 OF THE RECUSATION OF JUDGES. it shall 1)0 the duty of the court to designate at least three members of the bar, in attendance as aforesaid, not of counsel interested or related to the parties in the manner above set forth, and from that number one shall be chosen by lot ; when such selection, in either of the two ways aforesaid, shall bo made, it shall be the duty of the judge to retire for the time from the bench, and the said member of the bar, so selected, shall take his place, and hear and try and determine the cause or causes for which he shall have been so selected. § 2. In all cases and every cause tried, heard and determin- ed, according to the pro^dsions of the foregoing section, it shall be the duty of the judge to enter the proceedings in the court, by ^^rtue of this act, as if the same were had before him, and it shall be his duty to sign all, every and any judgment or judgments, decree or decrees to be rendered in the cause or causes, as the same would have been signed had the judgment or decree been rendered by him, when presiding in court, and in every other respect the records, minutes and proceedings shall be and appear as if the selection provided for by this act had not been made, and appeals from any decree^ or judg- ment thus rendered, shall be granted and allowed by the judge, as by law now jirovided in other causes. § 3. The member of the bar thus selected, according to the j)rovisions of this act, shall, during the time occupied in the trial of causes by virtue of this act, have the same power to preserve order in court and punish for contempt, as is vest- ed by law in the judges of the several courts. § 4. The attorney thus appointed to sit on the trial of the cause, shall take the oath prescribed by the constitution be- fore taking the bench. § 5. All acts or part of acts not in accordance A^dth the above and foregoing provisions, be, and the same are hereby, repealed. § 6. This act shall take effect from and after the third Monday of June, eighteen hundred and fifty-three. 2 L. 345, 889 ; 2 A. 46, OF PEREMPTORY EXCEPTIONS, 163 Art. 339. — Affinity is not a good canse of recusation, ex- cept when the judge is the father-in-law, son-in-law or broth- er-in-law of one of the parties. Art. 340. — The judge may recuse liimsclf, but only in such caKSCs, where the parties themselves would have the right of recusing him. Art. 341. — The decision of cases where the judge is recus- ed, is provided for by special laws. Art. 342. — When there are, in the same parish, two courts of concurrent jurisdiction, and the judge of one of these is recused, such judge shall order the cause to be removed to the other court, to be there tried and decided. 6 L. 35. § 4. (y Peremptory Exceptions. Art. 343. — Peremptory exceptions, are those which tend to the dismissal of the action. Some relate to forms, others arise from the law. 8 K S. 410, 453 ; 7 L. 204, 413, 457 ; 10 L. 169. Art. 344. — Peremptory exceptions relating to forms, are those which tend to have the cause dismissed, owing to some nullities in the proceedings. Such exceptions must be pleaded in limine litis, that is to say, at the beginning of the suit, and before answering to the merits. After the defendant has pleaded to the merits, such excep- tions shall not be heard ; all nullities are cured. 4 11. 172; 11 R. 87; 1 A. 372. Art. 345. — Pcremptoiy exceptions, founded on law, are those which, without going into the merits of the cause, show that the plaintiff cannot maintain his action, either because it Is prescribed, or because the cause of action has been destroyed or extinguished. 6L.467; 3R. 357; 6R. 419; 9R. 518; llR. 87.' 164 OF INTERROGATORIES ON FACTS AND ARTICLES. Art. 346. — Peremptory exceptions, founded on law, niay bo i^leaded in every stage of the action, previous to the defini- tive judgment ; but they must be pleaded specially, and suffi- cient time allowed to the adverse party to bring his evidence. 4N. S. 487; 1 L. 318; 2 L 121; 4 L. 432; 6 L. 94 ; 8 L. 162; 14 L. 422; 19 L. 262; 3 R. 357; 6 R. 419. Sec. VIII. — Of interrogatories on facts and articles. Art. 347. — Both plaintifi' and defendant are permitted to annex, either to their petition or their answer, interrogatories on facts and articles. Stat. 3df May, 1847, p. 146. — From and after the passage of this act no court shall make an order requiring a female to answer interrogatories on facts and articles, in open court, un- less the party propounding them, or his or her agent or attor- ney, shall make oath to the materiality of the interrogatories, and that they are not proj^ounded for the purpose or in the hope of having them taken for confessed, but with the hona fide desire to have them ti'uly answered by the party interro- gated. 1 L. 19G; 1 R. 299; 3 A. 272. Art. 348. — Interrogatories on facts and articles, are ques- tions put in writing, in the form of articles, and annexed to a petition or to an answer, to wliich one of the parties to the suit prays that the other be ordered to respond, under oath, in order to make use of his answers as testimony in sup^jort of his demand, or to aid him in liis defence. 1 R. 299; 3 R. 243 ; 9 R. 19 ; 7 K S. 259 ; 3 L. 241 ; 4 L. 611 ; 7 L. 523 ; 11 L. 276. Art. 349. — The party interrogated on facts and articles, is bound to answer on oath and categorically, each of the ques- tions put to him, unless he cannot do so without confessing himself guilty of some crime. Except in t?ie above case, if the party interrogated refuse OF INTERROGATORIES ON FACTS AND ARTICLES. 165 or neglect to answer on oath to all the questions put to him, the facts concerning which he shall have so refused or neglect- ed to answer, shall he taken for confessed. 1 N. S. 194; 5 N. S. G49; 1 N. S. 529; 8 N. S. 301 ; 2 L. .315; 4 L. 159; 1 L. 623 ; 10 L. 551 ; 5 R. 489 ; 9 R. 125. Art. 350. — To enable the defendant to obtain the answer of the plaintiff to interrogatories, he shall subjoin to the in- terrogatories proposed to be answered, his affidavit of their materiality, and that in his opinion the answer of the plaintifi' would assist him in making his defence, but the party interro- gated may object in writing to any of the questions as not per- tinent, and the judge shall decide summarily whether he ought to answer or not ; if ordered to answer, he must do it, otherwise the facts unanswered will be deemed confessed. 7 N. S. 269; 9 R. 125; 2 A. 938. Art. 351. — The party propounding the interrogatories may require the party interrogated to answer in open court, and in his presence, on the day appointed to that effect by the judge, if the party interrogated reside in the parish where the court holds its sittings. See amendment to art. 347 ; 2 L. 73 ; 7 L. 335 ; 10 L. 417, 551 ; 5 R. 491 ; 6 R. 354 ; 9 R. 125 ; 12 R. 445 ; 2 A. 11, 845. \ Art. 352. — If the party reside out of the parish where the court sits, but within the State, a commission shall be directed to any-jiidge or justice of the peace in the parish where said party rcsid^s^ whose duty it shall be to receive his answers to the interrogatories propounded to him, after giving to the op- posite party a written notice in due time, in order that said party may be present thereto, or have himself represented, if he thinks proper. Stat. 10th February, 1843, p. 14.— That the article three hundred and fifty-second of the Code of Practice be and the same is hereby repealed, and that, in lieu thereof, the follow- ing article be substituted : — " In all cases where a party in- terrogated resides out of the parish where the suit is pending, and whether within or without the State, it shall be liis duty 166 OF INTERROGATORIES ON FACTS AND ARTICLES. to file his answer to the interrogatories propounded to him within such period as shall be fixed by the court, on the motion of the party interrogating, and notice of which order, fixing the delay, together with a copy of the interrogatories pro- pounded, shall be served on the attorney representing the party interrogated. Provided, that when the party interro- gated resides out of the State, his answers shall be taken by commission." 6 R. 354; 9 R. 125. Art. 353. — In answering a question, the party must simply confess, or deny the fact. Nevertheless, the party interrogated may state some other facts tending to his defence ; provided they be closely hnked to the fact on which he has been questioned, and an appeal made to his conscience. His declaration, in such a case, shaD Ij^ave as much effect as his answer to the question itself, 4 N. S. 303 ; 1 L. 194 ; 2 L. 537 ; 10 L. 371 ; 11 L. 356 ; 6 R. 1 • 9 R. 173 , 1 A. 247 : 2 A. 908 ; 3 A. 648 ; 6 A. 204 ; 2 N. S. 148 ; 3 N. S. 110 ; 5 N. S. 650 ; 6 K S. 569. Art. 354. — The answers of the party inteiTogated are evi- dence, but do not exclude adverse testimony, and may be de- stroyed by the oath of two witnesses, or of one single witness, corroborated by strong circumstantial evidence, or by written proof. 9 M. 1 ; 1 N. S. 648 ; 2 L. 538 ; 3 L. 119 ; 11 L. 18, 356 ; 9 R. 125- Art. 355. — The jDarty who sues for the recovery of a debt, or the execution of an obhgation arising from a written act, may be interrogated on the reality, or simulation of the act. 13 L. 73; 9R. 125. Art. 356.' — The party wishing to avail himself of the con- fessions made by the adverse party in his answer to an inter- rogatory on facts and articlel;'*«i^st not divide them : they must be taken entire.. 1 N. S. 383 ; 2 N. S. 55 ;>N. i? 58, 116 ; 4 N. S. 305 ; 5 N. S. 39, 178 ; 6 N. a 259,569,706; 2 I#i52 ; 3 L. 119,124,241; 5 L. 66; 6 L. 344; 7 L. 523 8 L. 142 ;41 L; 276, 418 ; 14 L. 67, 186, 298 ; 1 5 L. 121, 365 ; 16 L. 284 ; 1 R. 12, 83.'7^2, 123, 179, 300, 311 ; 3 R. 126, 244; 4 R. 144 ; 9 R. 125. OF ISSUE JOINED. 167 Sec. IX.— 0/ issue Joined, (contestatio litis). Art. 357.— The cause is at issue, when the defendant has answered, either by confessing or by denying the facts set forth m the petition, or by pleading such dilatory, or peremptory exceptions, as he is bound to plead in limine litis, pursuant to the provisions of this code. 5 N. S. 38 ; 8 N. S. 339. Art. 358.— When the defendant pleads some declinatory exception, without answering to the merits, there is no issue joined. Art. 359.— The joining of issue is iti fact the foundation of the suit, as citation is that of the action ; it is only after this is done, that the suit begins ; the parties are then in a situation to discover what e^ddence is necessary in suj^port of their respective claims. 5 N. S. 42Y ; 6 K S. 469 ; Y K S. 285 ; 4 R. 1. Art. 360.— When the defendant suffers judgment by de- fault to be taken against him, the issue is joined tacitly ; be- cause such defendant is presumed, by his sUence, to have'con- fessed the justice of liis adversary's demand ; therefore, the plaintiif is allowed to proceed with his proofs, in order to havo the judgment confirmed. -ZL. IVS; nL.82; 12 R. 518; 1 A. 117. Art. 361.— If, after issue joined, either the plaintiff or defendant die, it is not necessary to recommence the action ; it continues between the survi\dng party and the heirs of the one deceased, pursuant to the provisions enacted in the first part of this code. 5 K S. 42T ; 3 L 442 ; 11 L. 360 ; 6 R. 44 ; 3 A. 547. 168 OF DEMANDS IN COMPENSATION, OR SETT OFF CHAPTER II. Of the incidental demands ivhich may be made pending the action. Art. 362. — The defendant, besides the exceptions wliich he can oppose to the action brought against him, may, on his part, institute demands incidental to the suit, either against the plaintiff, or against third persons, not parties to the cause. Art. 363. — The incidental demands which the defendant may bring, are demands, In compensation ; In reconvention ; In warranty. Art. 364. — Third persons, not originally parties to the suit, may intervene in the same, and, like the defendant, institute demands incidental to the main action, either before judg- ment, or on exception ; and these demands are called the in- tervention and opposition of third persons. 11 R. 314. Art. 365. — The incidental demands must be made in writing in the same manner that the principal demand is made. Sec. I. — 0/ demands in compensation, or set-off. Art. 366. — Compensation, or set-off, is a mode of ex- tinguishing debts, which takes place when it happens that both plaintiff and defendant are indebted to each other ; each re- taining, in payment of the sum due to him, the amount which be owes to the other. 11 L. 216 ; 13 L. 25Y ; 4 A. 140 ; See 8 R. 22 ; 9 R. 1G5 ; 3 A. 124. Art. 367. — The defendant may jAead compensation, or sett OF DEMANDS IN COMPENSATION, OE SETT OFF. 169 off, at every stage of the proceedings, provided it be pleaded specially. 8 N. S. 665 ; 15 L. 369 ; 13 L. 257 ; \1 L. 371 ; 19 L. 542 ; 3 R. 258 ; 6 R. 86 ; 11 R. 346; 2 A. 79,932, 938; 3 A. 617; 4 A. 140. Art. 368. — Compensation may be pleaded, either in the answer to the prhicipal demand, or it may be claimed by a distinct and separate demand. 9L. Ill; 4 A. 140, 157. Art. 369. — When the debt, which the defendant offers in compensation of that which the plaintiff claims, is of a less amount than the one demanded, compensation only takes place for that amount, and judgment must be given in favor of the plaintiff for the suri)lus ; the defendant must pay the costs, unless he shows that he has made a real tender of such overplus, at the time and in the manner provided by law. 10 L. 402. Art. 3V0. — If, on the contrary, the two debts, as to cap- ital and interest, be equal, the judgment shall free both from their respective obligations, and direct the costs incurred prior to the pleading of compensation, to be paid by the de- fendant, and those incurred subsequently, to be borne by the plaintiff. Art. 371. — But, if the debt which the defendant sets off in compensation, exceed in amount that which the plaintiff claims, he may pray in his answer, that the judgment be given in his favor for the balance ; and if the compensation be just and equitable, the judgment shall be so rendered. Art. 372. — When the defendant opposes compensation, not in liis answer, but by instituting a separate demand be- fore the same court in which the suit is pending, the plaintiff shall be bound to answer in the cause, although he may have his domicil out of the jurisdiction of such court ; provided the compensation, so opposed, be not of such nature, or amount, as to render such court incompetent. Art. 373. — If the defendant suffer judgment in the origi- 170 OF DEMANDS IN RECONVENTION. nal suit, without pleading such compensation as he may have to oppose, as provided above, he shall not, on that account, lose his right of action against the plaintiff to recover what- ever amount such plaintift' owes to him ; hut he must bring his action before the court, within whose jurisdiction the plain- tiff has his domicil. 8 R. 22. Sec. II. — Of demands in reconvention. Art. 374. — The demand, which the defendant institutes, in consequence of that which the plaintiff has brought against him, is termed a demand in reconvention. 2 N. S. 73,84, 196; 3 N. S. 354, 364; 4 N. S. 441; 5 N. S. 18; 6 N. S, 611, 671; 7 N.S. 151, 289, 517 ; 8 N. S. 149, 707 ; 1 L. 266; 2 L. 285; 3 L. 100,548 4L. 132; 5 L. 540; 6L. 75; 7 L. 564 ; 9L.,20; 10 L. 185, 334,402; 11 L. 252, 309 12 L 506; 13 L. 65; 14 L. 385; 15 L. 25, 378; 17 L. 176, 371; 2 R. 209, 216, 222 3 R. 364,387; 4 R. 1, 96; 9 R. 90,418; 10 R. 119; 11 R 347; 12 R. 423, 646 3 A. 617 ; 4 A. 381, 136 ; 5 A. 3, 150, 179, 250, 303. Art. 375. — In order to entitle the defendant to institute a demand in reconvention, it is requisite that such demand, though different from the main action, be, nevertheless, neces- sarily connected with, and incidental to the same ; as, for in- stance, the demand instituted by the possessor in good faith against him who sues in order to evict him, or for the pur- pose of obtaining the payment of the improvements made on the ])remises. § 7. That article three hundred and seventy-five of said code be so amended, that when the plaintiff resides out of the State, or in the State, but in a different parish from the de- fendant, said defendant may institute a demand in reconven- tion against liim for any cause, although such demand be not necessarily connected with, or incidental to the main cause of action. See ante 374. Art. 376. — If the demand instituted by the defendants be one, in its nature, independent from the action brought by V OF DEMANDS IN WARRANTY. 171 the plaintiff, it shall be considered as a principal, and not a reconventional demand, and must be brought at the domicil of the plaintiff. Art. 377. — In all cases of reconvention, the defendant may plead it, either as an exception, in his answer to the prin- cipab demand, or institute a distinct and separate demand be- fore the court in which the main action is pending ; and the original plaintiff shall be bound to answer, Avithout pleading to the jurisdiction of the court, even if he has his domicil elsewhere ; pro\dded the court be competent. 6 N. S. 611 ; 7 N. S. 405 ; 1 L. 266 ; 2 L. 386 ; 4 L. 104, 484, 485 ; 5 L. 450 ; 8L. 261; 9 L. 310; 10 L. 186; 5 R. 2; 10 R. 119. Sec. III. — Of demands in loarranty. Art. 378. — The obligation which one contracts to defend another in some action which may be instituted against him, is termed loarranUj. The one who has contracted this obli- gation is called the warrantor. 3 M. 2G1 ; 6 N. S. 391, 453 ; 8 N. S. 356, 549 ; 1 L. 38, 110 ; 7 L. 187 ; 8 L. 37 ; 11 L. 276; 13L. 19, 23; 18 L. 103; 19 L. 368 ; 1 R. 55; 2 R. 187, 225; 2 A. 219, 254, 828 ; 6 A. 32. Art. 379. — Warranty may be of two kinds, real or per- sonal. Real warranty is that which arises in real, or hypothecary actions, as when a purchaser is sued in eviction of an immov- able property which has been sold to him. Personal warranty is that which takes place in personal ac- tions ; it arises from the obligation which one has contracted, to pay the whole, or a part of a debt, due by another to a third person. 8 R. 27. Art. 380. — When one is sued in eviction of an immovable property sold to him, or for the pa}TQent of a debt which an- other had promised to pay on his account to the plaintiff, he shall be entitled to a delay, 'in order to have his warrantor 172 OF DEMANDS IN WARRANTY. made a party to the suit, as provided in the following ar- ticle. 7 N. S. 587. Art. 381. — The delay granted to call the warrantor, must be the same as that given to such warrantor, to answer to the demand instituted against him, according to the distance of his domicil from the i)lace where the court is held, in which the main action is pending. UL. 497; 19 L. 473; 1 R. 133. Art. 382. — The defendant wishing to call one in warranty, may, in his answer, pray the court to decree against his war- rantor the same judgment which may be rendered against him on the principal action ; such prayer will he considered as a demand in warranty. Art. 383. — The clerk of the court in wliich the defendant has in his answer, called one in warranty, must make out a copy of such answer, and issue a citation, both of which shall be served on the warrantor, who shall be allowed for answer- ing, the same delay as in ordinary suits ; and he shall address the same to the sheriff of the parish, in wliich the warrantor resides, in order that it be notified to liim, in the same manner as is directed in ordinaiy suits. Art. 384. — The warrantor thus cited, is bound to appear before the court in which the principal demand has been insti- tuted, even when he resides out of its jurisdiction, in order to defend the suit for the defendant ; he may plead every excep- tion in defending the cause wliich the defendant himself might have pleaded, even such as are personal to such defendant, 4 N. S. 393 ; 8 N. S. 15C ; 1 L. 38 ; 6 L. 350, 378 ; 8 L. 239, 252 ; 10 L. 271. Art. 385. — If the defendant is cast in the action, the judge, when he gives judgment against such defendant, must render, at the same time, a judgment in favor of the defend- ant against his warrantor, for whatever indemnity may be due to such defendant, as well as for all the loss and damage he may have sustained, by reason of the action. OF DEMANDS IN WARRANTY. 173 No. 298. Stat. 30th April, 1853.— An act to amend the three hundred and eighty-Jifth article of the Code cf Practice. That article three hundred and eighty-five of the Code of Prac- tice be amended and re-enacted so as to read as follows : " If the defendant is cast in the action, the judge, when he gives judg- ment against such defendant, must render at the same time a judgment in favor of the defendant, against his warrantor, for whatever indemnity may be due to such defendant, as well as for all the loss and damage he may have sustained by reason of the action. But no sheriff, constable, or other ofScer of court, shall have the right to recover of any seizing creditor, sued as warran- tor, the counsel fees of such shentf, constable or other officer, in- curred by calling such creditor in warranty, unless the, latter shall, within ten days only from service of the call in waiTanty, fail to appear and make defence for the defendant who calls him. G N. S. m ; 5 R. 76 ; 8 R. 488 ; 9 R. 50. Art. 386. — The judgment so rendered, shall be exocutory on the part of the plaintiff against the defendant, and on the part of tlie defendant against his warrantor. 8 R. 488. Art. 387. — If one called in warranty has himself a wan-an- tor who is bound to defend him, he may also in liis answer, pray that his warrantor be cited to appear to the suit ; he shall be entitled, in order to do so, to the same delay granted to the defendant for calhng liis wan*antor ; the same rule shall govern, if there be a greater number of warrantors. In such cases, the proceedings shall be carried on, and the judgment ren- dered and executed in the manner provided in the preceding articles. Art. 388. — The defendant, though he has not called his warrantor to defend the suit brought against him, docs not lose ^ on that account, his action in warranty, unless tlie warrantor prove that he had means for defeating the action, wliich were not used, owing to the defendant having failed to call liim in 174 OF INTERVENTION OR INTERPLEADING. wan-anty, or ha^^ng neglected to apprise him of the suit hav- ing been brought. Sec. IV. — Of Intervention or Interpleading. Art. 389. — An intervention or interpleader, is a demand by which a third person requires to be permitted to become a party in a suit between other persons ; either by joining the plaintiff in claiming the same thing, or something connected with it, or by uniting with the defendant in resisting the claims of the plaintiff. 11 M. 260, 455 ; 4 N. S. 434, 488 ; 3 N. S. 330 ; 5 N.S. 501 ; 7 N. S. 197, 334, 587, 615; 2L. 456; 3 L. 183; 4L. 157 ; 6 L. 486 ; 6L. 690; lOL. ?18; 11 L.462; 14 L. 274; 15 L. 417; 16 L. 264; 19 L. 154; 4 R. 290; 9 11.180; llR. 314, 326; 12 R. 215; 2 A. 271, 355, 462, 488, 755; 3 A. 222, 331 ; 4 A. 206, 212, 279,544. Art. 390. — In order to be entitled to intervene, it is enough to have an interest in the success of either of the parties to the suit. Stat. 7fh April, 1836, p. 172.— § 10. Articles three hun- dred and eighty-nine and three hundred and ninety, shall be so amended, that it shaU not be necessary that the i)arty in- terpleading should join either the plaintiff or defendant, but that it may be lawful for him, where his interest requires it, to oppose both. IL. 431; 7L. 196; 4R. 290; 11 R. 326. Art. 391. — One may intervene, either before or after issue has been joined in the cause ; provided the intervention do not retard the principal suit : the person intervening must be always ready to plead, or to exhibit his testimony ; because he has always liis remedy by a separate action to vindicate his rights. 5 N. S. 501 ; 7 N. S. 587 ; 11 R. 326 ; 4 A. 206. Art, 392. — The plaintiff, in intervention, must institute his demand before the court in which the principal action has been brought ; being considered as plaintiff, he must foUow the jurisdiction of the defendant. 6N.S. 658; 19 L. 154. OF THE OPPOSITION OF THIRD PERSONS, 175 Art. 393. — The intervention must be formed hj a petition addressed to the court, before which the principal demand has been brought ; it must set forth the grounds on which the cause is supported. This petition must be served on the party against which it is directed, in order that he may answer to the same in the delay given in ordinary suits. 19 L. 154; 3 A. 366. Art. 394. — The judge cannot refuse to admit an inter- vention ; but he must pronounce on its merits, art the same tiine that he decides the principal action ; if the demand be not sustained, the person intervening shall be decreed to pay the incidental costs. 3 A. 321,366; 4 A. 212, Sec. V. — Of the opposition of third persons. Art. 395. — This opposition is a demand brought by a third person, not originally a party in the suit, for the jjurpose of arresting the execution of an order of seizure, or judgment rendered in such suit, or to regulate the effect of such seizure, in what relates to him. 3 L. 495 ; 7 L. 486 ; 4 R. 39, 466 ; 5 R. 68, 352, 496 ; 6 R. 427 ; 8 R. 14 ; 9 R. 302 ; 1 A. 146, 330 ; 3 A. 454, 597. Art. 396. — Such ojiposition may take place in two cases : 1. When the third person maldng the opposition, pretends to be the owner of the thing which has been seized ; 2. When he contends that he has a privilege on the pro- ceeds of the thing seized and sold. 5R. 496; 10R.28; 11 R. 181; See notes to art. 395. Art. 397. — This opposition must be made before the court which has granted the order of seizure, or the judgment in virtue of which the provisional seizure has been effected. 10R.424; 11R.181; 12R.519; 3 A.454; 19L.154; Sec notes to art. 395 ; See also 4 N. S. 390 ; 7 N. S. 659. Art. 398. — If the opposition has for its object to set aside 176 OF THE OPPOSITION OF THIRD PERSONS. the order of seizure, as having been effected on pro|3erty not belonging to the party against whom the order was directed, but owned on tlie contrary by the third person making the op- position, it must be done by means of a petition, which, to- gether with a citation, must be served on the party making the seizure, as in ordinary suits : but such opposition shall be considered as a separate demand, distinct from the suit in which the order was granted. 3 L. 495 ; 1 R. 41 ; 8 R. 14 ; 10 R. 424 ; See art. 395. Art. 399. — The court may, nevertheless, at the request of the third opponent, enjoin the sheriff not to proceed to the sale of the property thus claimed : i)rovided such tliird person give security to the plaintiff, for such an amount as the court shall determine, to be responsible for all damages which said plaintiff may sustain, should the opposition be wrongfully made. 4 A. 279; See art. 400. Art. 400. — If the tliird person, who has intervened in the suit, has not injoined the sale of the property of which he claims the ownership, or has failed to furnish the surety re- quired, his opposition shall not prevent the sheriff from sell- ing the property under seizure ; but, in such case, the sheriff shall be personally responsible for all damages wliich said sale may occasion to the intervening party ; and the shcrifi' shall have his recourse against the party who has obtained the order of seizure. If the opposition be sustained, the sale made by the sheriff shall be null. See art. 395. Art. 401. — If, on the contrary, the opposition be made on the gi'ound that the third opponent has a privilege which en- titles him to be paid, in preference to the party making the seizure, out of the proceeds of the sale of the property seized ; as when there are several seizures or conflicting claims, on the same property ; such opposition may be made by motion, of which due notice must be given, both to the party who has made the seizure, and to the sheriff; and the court, without OF EEAL TENDER. 177 requiring any security from the tliircl opponent, shall direct the sheriff to retain in his hands, subject to their further order, the proceeds of the sale. 4R. 39; 5 R. 596; 7E. 73, 87; 10 R. 28,154; 11 R. 181; 1 A. 144, 330- 6 A. 756. Art. 402. — If the third person has, either a privilege of a higher class than that of the party who has made the seiz- ure, or a special hypothecation duly registered, anterior to that of such party ; in such case, the third opponent shall be paid for the amount of his claim, together with the interest and costs ; and the plaintiff in the cause shall be entitled only to receive the surplus, if there be any. 5 A. 736 ; See also ante, art. 401. Art. 403. — If, on the contrary, the third person interven- ing has only a general or legal hypothecation on the property seized, the plaintiff in the original suit shall be paid in pre- ference, if he prove that the defendant has other property of sufficient value, to satisfy the claiju of the third opponent : in such case, the third person intervening shall be condemned to pay the costs. See art. 401. CHAPTER IV. I Of the proceedings after issue joined^ until judgment he given. Sec. I. — Of real tender. Art. 404. — When the defendant confesses that he owes the whole or a part, either of the debt, or of the property de- manded of him, and the plaintiff refuses to receive what such defendant acknowledges that he owes him, such defendant may make a real tender of the same to such plaintiff, either after the issue has been joined, or even previous to any judicial proceeding having been instituted against him. 16L.206; 4R.144; 11R.520; 12R.648. 12 178 OF REAL TENDEri. Art. 405. — It is necessary to distinp^ish such real tenders, which are made for a debt for money due, from those which have for their ohjcct, tlic ol»li 532 ; 7 M. 490 ; 1 N. S. 699 ; 5 N. S. 164, 643 ; 3 L. 458 ; 4 L. 367 ; 9L. 310; 6R. 354; 9R.240; 3 A. 660. Art. 492. — After discontinuing the suit, the plaintiff may bring the action anew ; provided he has paid the costs of tho first suit. 4 R. 193. Sec. II. — Of the Trial he/ore a Jury. Art. 493. — The mode of selecting and summoning the jury is established by special laws. Art. 494. — The plaintiff, who Avishes for a jury, must pray for the same, either in liis original petition, or by a sujiple- mental petition which must be presented before the suit be set down for trial. Stat. 20th March, 1839, p. 172.— § 24. All suits against makers and indorsers of promissory notes, drawers, indorsers and acceptors of bills of exchange, and generally all suits 202 OF THE TRIAL BEFORE A JURY brought on unconditional obligations to pay a specific sum of money, shall be tried without a jury unless the defendant shall make oath that his signature to said note, or other obligation, is not genuine or that he expects to prove that the same had been obtained througli fraud or en-or or of want or ftiilurc of consideration, or in cases when the defendant in his answer may set up a plea of compensation or reconvention and make oath to the truth of all the allegations in said plea or answer. 4N.S.636; 6N.S.2, 265; llL. 157, 162; 2 R.274; 3 A. 150; 4 A. 146. Art. 495. — The defendant, in order to avail himself of the same privilege, must pray for a jury in his answer, or previous to the suit being set down for trial. Nevertheless, if in his answer the defendant have only de- cHned the jurisdiction of the court, without answering to the . merits, he may, if the plea be overruled, pray for a jury in his answer to the merits. 1 N. S. 230 ; 8 L. 254 ;' 2 A. 651 ; 3 A. 196. Art. 496. — When a cause is to be tried by a jury, the name of each of the jurymen summoned to try it, shall be written separately on tickets, which shall be put. in a box, destined for tliis purpose, from which they shall be drawn by the clerk in the manner prescribed in the following article. Stat. 27th February, 1826, p. 46. — § 5. As soon as any number of the jurymen, whose names shall be on the list made out for the term, shall have met together, the court nray pro- ceed to cause the jurymen who are present to be called and sworn, without complying with the formality of drawing a jury iov each case as prescribed by article 469 of the Code of Practice. Art. 497. — As soon as not less than twenty jurymen shall be present, the court shall order the cause to be called, and the clerk shall draw out of the box, one by one, the tickets on which the names of the jurymen have been written, and then he shall form a list of them, in the order in which they shall have been di'awn. OF THE TRIAL BEFORE A JURY. 203 Art. 498. — The formality of drawing the names of jury- men, as prescribed in the preceding article,' shall be repeated for each cause to be tried, unless the parties shall consent to call the names of the jurymen in any other manner they choose. Art. 499. — When the Hst of jmymen present shall have been formed in the manner above specified, or when the par- ties shall have agreed to call them in any other manner, the jurymen shall be called three at a time to be sworn ; the par- ties must then make their challenges to the court, if they have any cause therefor, either to the array or to the poll. Art. 500. — Challenges may be made to the array, or to the polls. Art. 501. — A challenge to the array may be made for any irregularity in the manner of summoning the jurymen, or of drawing their names. 8 N. S. 426. Art. 502. — Challenges to the polls are divided into two kinds, one founded on legal and sufficient reasons, another which depends on the will of the parties without then' being obliged to make known their motives for so doing. Art. 503. — Challenges to the polls, the causes of which the parties are bound to declare and prove, are those which are founded : 1. Upon the jur}Tiian's filling some public employment which exempts him from serving in this capacity ; 2. Upon his not having the qualifications requii-cd by law ; 3. Upon his being suspected of some partiaHty or favor for one of the parties ; 4. Upon liis having been convicted of some crime or mis- demeanor, which legally renders him incapable of acting as a juryman. Art. 504. — The causes of challenge which have been men- tioned in the preceding article, are to be understood in the sense, and under the modifications hereafter mentioned. 204 OF THE TRIAL BEFORE A JURY. Art. 505. — A juryman may be chaUenged or excuse him- self, if he fills any public functions, which by their nature, or the provisions of law, exempt him from sers'ing as a jury- man. Art. 506. — A juryman may be challenged, because he does not possess the qualifications required by law. These quaUfications arc, that the juryman must be a free white man, above the age of twenty-one years ; that he be a housekeeper, and that he have resided at least one year in this State, and six months in the parish. 2 R. 266. Art, 507. — A juryman may be challenged, as suspected of partiality in the cause : 1. If he be a relation of, or allied to, one of the parties, or his or her master, domestic, counsellor, £^^torney, agent or partner ; 2. If he have an interest, direct, or indirect, in the cause ; 3. If he have already served as juryman in the same suit ; 4. If he have formed an opinion upon the cause before coming into court ; 5. If he have received any bribe for giving his verdict. 2 L. 345. Art. 508. — A juryman may be challenged for crime by him committed, if he has been convicted of any crune deemed infamous by the penal laws of this State. Art. 509. — The juryman, challenged for any one of the above mentioned causes, may be interrogated under oath, con- cerning the truth of the facts alleged against him, and he must answer such questions, touching the matter, provided that he do not expose himself to injure his reputation, or ac- cuse himself of some crime or misdemeanor. Art. 510. — The judge shall pronounce upon the challen- ges to jurymen, in the same manner as upon those made to witnesses ; and the party, who may think himself aggrieved by his decision, may, in like manner, take an exception to his opinion. OF THE TRIAL BEFORE A JURY, 205 Art. 511. — Besides the challenges, the causes of which the parties must declare and prove as above, the plaintiff" and defendant have each the right of challenging peremptorily four jmymen. Art. 512. — "When there arc many plaintiffs or defendants n a cause, the parties who are equally interested, will be obliged to join, in order to enjoy the right of challenging which has been mentioned in the preceding article, so that there may be no more than four jurymen peremptorily challenged, on each side. Art. 513. — If, on account of the challenges, absence, or sickness of some of the jurymen, or of any other legal excuse, the jury should not be complete, the court shall order the sheriff' to summon a certain number of persons present, having the legal qualifications, in order to complete it. Stat. 8th March, 1841, p. 5Q—% 1. To amend the 51Sth Article of the Code of Practice. Hereafter the district judge of the ninth judicial district court in cases where juries are allowed, shall be authorized in any case, when from any cause whatever, the regular panel of jurors may be exhausted, to direct the clerk of the court, in open court, to put in a box to be prepared for that purpose, the names of such a number of '' persons having the qualifications to serve as jurors, as he may think necessary, not to exceed one hundred, and to direct said clerk in open court, to draw from the said box such a number of names as he may deem necessary, not to exceed fifty, and that the same" course may be pursued during the same court, as frequently as in the opinion of the said judge, it may be necessary, and the said clerk shall, immediately after the said drawing, hand to the sheriff" or proper officer, a summons for the said jurors, and the said sheriff or officer shall immedi- ately proceed to summon the said jurors, who are hereby re- quired to obey the said summons, under the penalties now provided for the punishment of defaulting jurors. Art. 514. — As soon as a juryman shall have been accepted by the parties, or the challenge made to him shall have been 206 OF THE TRIAL BEFORE A JURY. Dvemiled by the court, he shall take an oath, that he wiU pronounce, in a just and impartial manner, and to the best of his judgment, in the case of such a one against such a one, (naming tlic title of the cause) which is about to be submit- ted to him ; and as soon as there shall be twelve jurymen sworn, the court shall name, from amongst them, a foreman, who shall preside over them and sign the verdict which they may render. Art. 515. — The case shall be pleaded before the jury, in the same manner as before the court ; and when the pleadings are finished, the judge shall charge the jury on the form of giving their verdict. Stcd. 25th March, 1831, p. 114.— § 8. In all cases aj^peal- able to the Supreme Court, it shall be the duty of the judge to deliver his charge to the jury in writing, if the counsel of either party require the same. 5 R. 78. Art. 516. — In this charge the judge must limit himself to giving the jury a knowledge of the laws applicable to the cause submitted to them, and he shall abstain from saying any thing about the facts, or even recapitulating them, so as to ex- ercise any influence on their decision, in this respect. 7 K S. 136, 249, 508 ; 1 L. 56, 270, 274; 8 L. 108-; 9 L. 257 ; 5 R. 78; 12 R. 162; 2 A. 1019. Art. 517. — If, when the judge shall have finished liis charge to the jury, one of the parties believes that the judge has mistaken the law, which hchas stated to the jury, or in the application which lit has^ made of it, he may require the judge to give his opinion in writing, touching this matter, and on liis refusal, he may take an exception, in the manner and form heretpfore ^et forth. . ^ ->,^^ 4 lSb ; 8 L. 32, 138 ; ll'L. $09 ; 5 K 2VN.2 R. 162. '^ Art. 0I8. — Wlienthe jury shall have retired into the room designated for this purpose, they shall deliberate under the direction of their foreman, upon their verdict, and as soon as OF THE TRIAL BEFORE A JURY. 207 they shall haw agreed upon the manner of giving it, the fore- man shall reduce the verdict to writing, and sign it, as it is hereafter mentioned, and give notice to the court, if it be still in session, that the jury are ready to give their verdict. 5 N. S. 267 ; 9 L. 410 ; post, 622, 526, 527. Art. 519. — The verdict may be either general or special. A general verdict is that by which the jury pronounce at the same time on the fact and the law, either in favor of plaintiff or defendant. A special verdict, is that by which the jury pronounces on the facts only, IcaAdng to the court the right of giving judg- ment on these facts and the law applicable to them. 6 N. S. 95, 264; 3 L. 70 ; 6 L. 333, 493, 560, 606; 7 L. 210, 247, 269, 530; 8 L. 65, 169, 515; 9 L. 19, 16.3, 252, 524; 11 L. 614; 5 R. 162. » Art. 520. — The jury is always at liberty to give a genei-al verdict, by pronouncing on the law and on the fact, in the case submitted to them. Therefore, the law permitting either party to submit, spe- cially, the facts in the case, to the jury, and so depriving them of the right of giving a general verdict in the suit, is abro- gated. 8 L. 33 ; 10 L. 81 ; 12 II. 162. Art. 521. — But, should the jury think proper to render a special verdict on the facts of the cause, those facts which the juiy shall have found, shall be considered as true, and the judge shall render judgment accordingly, saving the right of granting a new trial, if he believe that the jury have given their verdict contraiy to the evidence. 5 R. 78. Art. 522 — The form of a general verdict consists in the foreman indorsing on the back of the i:)etition, these words, " verdict for the i)hnntiff for so mjuch, with interest," if it has been prayed for ; or, " verdict for the defendant;^" according as the verdict is for plaintiff oi defendant. Ante, 518 ; 13 L. 109 ; 14 L. 343 ; 9 R. 59. Art. 523. — The jury has nothing to do >vith the costs in 208 OF THE TRIAL BEFORE A JURY. a general verdict, inasmuch as it is entirely reserved for ihsi court to pronounce on this subject, which is a consequence of its judgment Art. 524. — ^Vllen the verdict is special, the foreman must Aviitc on the petition, or on a separate sheet of paper, and successively, the different facts wliich they find in the cause. 5 R. 78. Art. 525. — Whether the verdict be general or special, the foreman must sign it, mentioning liis quality. 8 L. 275. Art. 526. — When the jury have returned into court, in order to give in their verdict, the judge shall order the clerk to caU the jui-j-men, to ascertain that they are all present ; and if the jury be aU present, the foreman shall hand the verdict to the judge, who shall order the clerk to read it, in a loud and intelligible voice. Art. 527. — After the reading of the verdict, he shall ask the jury if the verdict has been agreed to, and if the foreman answer affirmatively, he shall enter the verdict on the records of the court, unless one of the parties require that the jurors be called, and each of them asked if he has agreed to the ver- dict, and if it appear that all the jurors have agreed to the verdict, the same shall be recorded. Art. 528. — If, on reading the verdict, it appear that there is some want of form as to the manner in which it has been drawn, it may be corrected at the request of cither of the parties, under the direction of the court, either in their pre- sence, or after the jury shall have retired for that puri)ose, in which case it shall again be brought into court after ha^ing been corrected, ia order to be read and recorded, as above di- rected. 7 N. S. 307 ; 5 R. 78 ; 9 R. 69 ; 2 A. 472. Art. 529. — If the court intend adjourning to the next day, previous to the jury having brought in their verdict, they may authorize them, after they have agreed on their verdict, OF JUDGMENTS AND COSTS. 209 to deliver the same, sealed, to the clerk of the court, in order that it be read the following day, at the opening of the court. In such cases, the jury must attend in com-t to be present at the reading of their verdict. 7N. S. 225; 8 N. S. 274. Art. 530. — If, pending the adjournment, some member of the jury have fallen sick, so as to be unable to be present in court when the verdict is read, the court may commission a justice of the peace to take the declaration, on oath, of such juror as to the manner in which he voted, at the time the verdict was agreed to, unless the parties agree to dispense with his declaration. Art. 531. — If a juror die during the adjournment, the court shall examine, on oath, either the foreman or any other member of the jury, in order to ascertain the manner in which the deceased voted at the time the verdict was agreed to, and the testimony of such juror shall have the same effect as the declaration of the deceased would liavc had, were he alive. Art. 532,- — The plaintiff, until the moment when the jury shall be about to withdraw, is at liberty, on pajdng the costs, to discontinue his suit ; but if the plaintiff allow the jury to withdraw, before discontinuing his suit, the verdict shall be binding on him. 6 N. S. 643 ; 6 L 270 ; 3 A. 660 ; ante, 492 ; see 1 N. S. 698. Sec III. — Of Judgments and Costs. Art. 533. — Judgments in civil cases, are rendered by de- fault, or after hearing the parties. 6 N. S. 514; 8 11.254. Art. 534. — Judgment by default is that which is given at the demand of one only of the parties to the suit, whether he be plaintiff or defendant. Ante, 360. 14 210 OF JUDGMENTS AND COSTS. Art. 535. — Judgment contradictorily rendered is that which has been given after the parties have been heard, either in support of their claims, or in their defence. 8 R. 254. Art. 536. — If after the cause has been set down on the docket for trial, the plaintiff does not appear either in person or by attorney, to plead his cause, on the day fixed for trial, the defendant may require that judgment of nonsuit be ren- dered against such plaintiff, with costs. But such judgment cannot be pleaded as res judicata, oi in bar of another suit, for the same cause of action, provided the plaintiff show that he has paid the cost of the first suit. 1 M. 529 ; 6 N. S. 2, 457 ; Y N. S. 171, 364; 3 L. 445 ; 9 L. 577 ; 5 R. 211 ; 7 R. 106 ; 12 R. 99 ; 3 A. 660 ; see 4 A. 176, 240 ; 5 A. 165. Art. 537. — Another distinction of judgments is into inter- locutory and final. Art. 538. — Interlocutory judgments do not decide on the merits, they are pronounced on lireliminary matters, in the course of the proceedings. Art. 539. — Definitive or final judgments are such as de- cide all the points in controversy between the parties. Definitive judgments are such as have the force of res jvr- dicata. 5 X. S. 104, 119 ; 7 N. S. 257 ; 2 L. 424 ; 5 L. 225 ; 6 L. 167 ; see 565, 666. Art. 540. — Courts give mandates or orders, which, though they are not termed judgments, have, nevertheless, the same effect as judgments ; such are mandates of aiTCst, and of seizure. Art. 541. — When a cause has been tried by a jmy, and such jury have given a general verdict, the comi; must give judgment jnirsuant to the same, mthin three days from the time when such verdict has been entered on the records, unless a new trial has been granted. 8 N. S. 123 ; see 490, 646 ; 4 K S. 628. Art. 542. — If it be a special verdict, the court shall have OF JUDGJtENTS AND COSTS. 211 the same time for deliberation before giving judgment, as the law gives in cases wMch are tried by the court. 4N. S. 311; see 490. Art. 543. — All judgments must be read by the judge in open court. 4 A. 106. Art. 544. — All judgments, whether interlocutory, final, or definitive, must be correctly entered on the records, with the date of the day on which the same were rendered. The same rule must be observed, in relation to all orders or mandates given by the court, as well as to all motions made by the parties pending the suit. 11 R. 160; 4 A. 106. Art. 545. — Definitive judgments, though entered on the docket of the judgments of the court, shall not hereafter af- fect the property of the person against whom such judgments have been rendered, all laws to the contrary notwithstanding. — Such judgment must be recorded at the office of mortgages, in order to give the party a judicial mortgage, pursuant to the provisions of the law. C. C. 3289; 5 N. S. 112; 1 L. 91;7 £.'486,492; 5 A. 225. Art. 546. — The judge must sign aU definitive or final judgments rendered by him, but he shall not do so, until three judicial days have elapsed, to be computed from the day when such judgments were given. Stat. 20th March, 1839, p. 164.— § 10. That article five hundred and forty-six of said code be so amended, that hereaf- ter, all motions for new trials in causes, shall be made and deter- mined, and all final judgments signed before the adjournment of the court for the term at which such causes were tried, and whether three judicial days shall have elapsed or not : Provid- ed, that this amendment does not apply to the parish of Or- leans. 4 N. S. 625; 5 N. S. 105,244,320,660; 1 L. 469, 613; llL. 617;17 L. 485; 4 R. 162; 7 R. 451 ; 11 R. 160; 1 A. 206, 334; 3 A. 62; see 536. 212 OF JUDGMENTS AND COSTS. Art. 547. — Judgments may be {imcntled by the court un- til after ha\ang been signed, in order, 1. To alter the phraseology of the judgment but not its substance ; 2. To correct errors of calculation, as for instance, if more have been given tlian was demanded, or if the party in favor of whom the judgment was given, had been ordered to pay the costs. Except in tlic cases above provided, courts cannot alter their judgments ; but they may, ex officio, direct a new trial in order to revise their judgments. 6 L. 69; 7 R. 451. Art. 548. — A judgment, when once rendered, becomes the property of him in whose favor it has been given ; and tlie judge cannot alter the same, except in the mode provided by law. 4 N. S. 411 ; 6 N. S. 97 ; 8 N. S. 118, 466 ; 2 L. 148 ; 6 L. 377 ; 7 L. '223, 501 ; 9 L. 418; 4 R. 152; 7 R. 451 ; 9 L. 77, 267 ; 3 A. 657. Art. 549. — In every case the costs shall be paid by the party cast, except where compensation lias been allowed, or real tenders made, as heretofore provided by this code. 6 N. S. 273, 493 ; 7 N. S. 265 ; 2 L. 692 ; 9 L. 417 ; 10 L. 496 ; 9 R. 77 ; 10 R. 147; 12 R. 194; 3 A. 702; see 169,369,415. Art. 550. — The same ride shall be observed, with re- gard to tlie party cast, on incidental demands, whether they be dilatory or declinatory. 2 L. 179; 9 R. 77; 12 R. 194; 3 A. 702. Art. 551. — If the court have not decreed in their judg- ment that the party cast should pay the costs, the same arc nevertheless due to the party in whose favor the judgment had been given ; and such party shall be entitled to have the same taxed, on execution of the judgment. 2 L. 179; 9 L. 77; 12 R. 194. Art. 552. — The costs to be paid by the party cast include, not only the taxed costs, but also all the expenses incurred in OF JUDGMENTS AND COSTS. 213 taldng testimony by commission, and the compensation allow- ed, for their servdces, to such experts, auditors, or judicial ar- bitrators, as may have been appointed in the suit. Stat. 20th Ilarch, 1839, p. 166.— § 11. That article two hundred and fifty-two of said code be so amended, that the costs to be paid by the party cast, shall include, in addition to those therein specified^ the costs of copies of notarial acts, of judg- ments, and other copies of the records of other pubUc officers, necessary in the cause. 1 N. S. 448 ; 9 R. 77 ; 1 A. 279 ; see 462. Art. 553. — Interests shall not be allowed by the judgment, unless the same have been ex2:)ressly claimed, and then, only in cases in which the law permits such interests to be stipu- lated. 6 N. S. 77, 202, 211, 271, 449, 462, 690; 6 N. S. 10, 499, 575, 715 ; 7 N. S. 15,225,264,361, 363,409,436; 8 N. S. 34, 185, 612; 1 L. 78 ; 2 L. 185; 5 L. 328; 6 L. 67, 708, 730, 761 ; 7 L. 105, 134, 192, 323 ; 8 L. 261, 268,572; 9 L. 72, 267, 445, 478; 11 L. 64, 216, 227, 238, 412, 49-3. Art. 554. — No interest shall be aUowe4 on accounts or unliquidated claims. § 15. That article five hundred and fifty-four of the Code of Practice be, and is hereby repealed. Art. 555. — All judgments rendered, except in the first ju- dicial district, shall be considered as having efiect only from the last day of the term, whatever may be the day on wliich they shall have been signed. 14 L. 277. CHAPTER YI. 0/ the Mode in which Definitive Judgments may he Revised, Modified or Reversed. Art. 55Q. — Definitive judgments may be revised, set aside, or reversed : 214 OF KEW TRIALS. 1. By a new trial ; 2. By appeal ; 3. By action of nullity ; 4. By rescission. This last mode can only be exercised by minors, or persona who were absent when judgment was rendered against them. Sec. l.—Of Nciv Trials. Art. 557. — The court may revise their judgment by grant- ing a new trial, in the cases hereafter provided. Art. 558. — The party, who beUcves himself aggrieved by the judgment given against him, may, within three judicial days after such judgment has been rendered, pray for a new trial, which must be granted, if there be good ground for the same. 4 N. S. 532; 5 K S. 154, 244, 319 ; 6 N. S. 654; 8 N. S. 175 ; 5 L. 262 6 L. 559; 7 L. 355 ; 10 L. 209; 3 R. 429 ; 7 R. 451. Art. 559. — The party demanding a new trial, must set forth the grounds on wliich he rests liis demand, and the same must be filed, entered on the records of the court, and noti- fied to the adverse party, in order that he may answer within the delay prescribed for answering. 3 R. 454; seo 180. Art. 5G0. — A new trial shall be granted, 1. If the judgment appear clearly contrary' to law and evidence ; 2. If the party has discovered, since the trial, evidence important to the cause, which he could not, ■with due dili- gence, have obtained before ; 1 N. S. 643 ; 3 N. S. 124 ; 4 N. S. 419 ; 13 L. 424 ; 18 L 531 ; 19 L. 88,476 ; 2 A. 225, 583, 025. 3. If the cause has been tried by a jury, and it be shown that the jury has been bribed, or has behaved improperly, so that impartial justice has not been done in the cause. OF THE APPEAL AND STATEMENT OF FACTS. 215 Art. 561. — If a new trial be prayed for on the ground of new evidence having been discovered, or on account of bribery or misconduct of the jury, or of the adverse party, the party prapng for the new trial, must, on filing his motion, annex to the same, liis affida\dt of the facts alleged in proof of the bribery, or misconduct of the jiny, or of his having discovered the evidence material to his suit, since the judgment was ren- dered, although he had used every eflort and dihgcncc in his power, to procure the necessary testimony. This affidavit must be filed in the records, in order that the adverse party may have conmiurdcation of the same. 5 N. S. 421; 6 N. S. 327 ; 7 N. S. 125, 149; 8 N. S. 190; 2 L. 216, 497 ; 3L. 383; 5 L.452;7 L. 84; 9 L. 411 ; 10 L. 155,409; 11 L. 141, 198; 3 R. 434 ; 7 R. 451 ; 9 R. 177 ; 2 A 225 ; 4 A. 401, 544 ; see 560. Art. 562. — No affida\it is necessary when a new trial is prayed for on the ground of the judgment being contrary to law and evidence. Art. 563. — The court shall decide summarily on such ap- plications. If a new trial be granted, the cause shall again be set on the docket ; and on the new trial the parties shall not be precluded from producing new proofs, on the groimd of the same not having been offered on the first trial. 5 N. S. 659. Sec. II. — Of the Appeal and Statement of Facts. Art. 564. — An appeal is the act by which one of the par- ties to a suit has recourse to a superior tribunal, in order to have the judgment of an inferior court corrected. 6 N. S. 323, 382, 598 ; see 648, 570, 578, 582, 589, 590, 594, 901. Art. 565. — One may appeal from all final judgments ren- dered in causes in wliich appeal is given by law, whether such judgments have been rendered after hearing the parties, or by default. 7 R. 451; 12 R. 315. Art. 566. — One may likewse appeal from all interlocu- 216 OF THE APPEAL AND STATEMENT OF FACTS. tory judgments; when sucli judgment may cause him an irre- paral:)le injury. 4 N. & 3CG; 6 N. S. 350, 878, 531 ; 7 N. S. 63, 102, 204, 459 ; 8 X. S. 313, 691 ; 2 L. 142 ; 3 L. 194, 819, 444 ; G L. 133, 253, 436 ; 8 K 204, 605 ; 9 L. 94 ; 10 L. 499; 11 L, 40, 3G9 ; 15 K 121; 2 A- 964 ; 3 A. 217. Art. 567. — The party, against whom judgment has been rendered, cannot appeal : 1. If such judgment have been confessed by him, or if he have acquiesced to the same, by executing it voluntarily ; ^ 12 L. 127; 15 L.449; 3 R. 253; 4 R. 85 ; 5 R. 447*; 7 R. 451; 3 A. 115. 2. If he has suflfercd the time prescribed by law for ap- pealing to elapse. 7 N. S. 243 ; 1 L. 290 ; 2 L. 2G5 ; 4 R. 127 ; see 375, 593, 907. Art. 568. — An appeal Hes from all judgments rendered by parish courts, except that of New Orleans, on all suits where the amount demanded exceeds one hundred dollars. Const. 1852, art. 02. Art. 569. — Such appeals must be carried before the dis- trict court, witliin whose jurisdiction the parish, where the judgment was rendered, is included, or before the supreme court, if the district judge cannot sit on the trial of the ap- peal, for causes provided for by special laws. 5 R. 1G2. Art. 570. — An appeal lies from all judgments rendered, by the district courts of the State, and by the parish court of New Orleans, on all suits whore the amount, or value in dis- pute, exceeds three hundred dollars. Such appeals must be carried before the supreme court of the State. 2 N. S. 314; 5 N. S. 88, 507,047; 8 N. S. 285, 339; 1 L. 240; 2 L. 439; 3L.44G; 4 L. Ill; 5 L. 36 ; C L. 87, 323, 598; 7 L. 611; 8 L. 167, 192; 11 L. 82,123,125,402. Art. 571. — The right of appeal is given, not only to those who were parties to the cause in which a judgment has been rendered against them, but also to third persons not parties OF THE APPEAL AND STATEMENT OF FACTS. 217 to such suit, when such tliird persons allege that they have been aggrieved by the judgment. 4 N. g. 343, C23 ; 6 N. S. 161, 307 ; 7 N. S. 345, 575, 676 ; 3 L. 319, 442 ; 3 R. 113 ; 6 R. 154 ; sec 574 ; C. C. 2408. Akt. 572. — Tutors, curators, and other persons charged with the administration of another's estate, may appeal for the benefit of the persons whoso property they administer, if they deem an appeal necessary. Art. 573. — Whoever intends to appeal, must present a petition to that effect to the court which lias rendered the judg- ment by which he believes himself to have been aggrieved, praying to be allowed to appeal from such judgment, and oifer- ing to give such surety as the court may direct, as hereafter provided. § 1. Articles five hundred and seventy-three and five hun- dred and seventy-four of the Code of Practice shall be so amended that the party intending to appeal may do so cither by petition or by motion in open court at the same term at which the judgment was rendered, in which last case the judge shall fix the amount of security, and cause the same, with the order granting the appeal, to be entered upon the minutes of the court ; and when an appeal has been granted on motion in open court, no citation of appeal or other notice \o appellee shall be necessary. 6 N. S. 281 ; 3 L. 360; 10 L. 271,440, 6 R. 64 ; 4 A. 534 ; see 596, and amendment. Art. 574. — The judge, in granting the appeal so de- manded, shall state, at the foot of the petition of appeal, the amount of the surety to be given by the appellant, and the day on wliich the appeal shall be returned. 12 R. 187; 3 A. 135; see 673, and amendment; see also, 6 N. S. 316, 3 L. 181; 7 L. 36,448; 10 L. Ill, 254, 440. Art. 575. — If the appeal have been taken within ten days, not including Sundays, after the judgment has been notified to the party cast in the suit, it shall stay execution, and all further proceedings, until a definitive judgment be rendered on the appeal ; provided the appellant give liis obligation with 218 OF THE APPEAL AND STATE3IENT OF FACTS. a good and solvent security, residing within the jurisdiction of the court, in favor of the a])pellec, for a sum exceeding by one half the amount for which tlie judgment was given, if the same be for a specific sum, as surety fur the payment of the amount of such judgment, in case the same be affirmed by the court to which the aj)peal is taken. § 1. — Articles five himdrcd and seventy-five and six hundred and twenty-four of the Code of Practice shall be so amended that whenever an answer has been filed in a suit in which the defendant has had personal service made ui)on him to appear and file his answer, or when a judgment has been rendered in a case after answer filed by the defendant or by his counsel, the party cast in the suit shall be considered duly Dotified of the judgment by the fact of its being signed by the judge : Pro\dded, that in the country parishes no execu- tion shall issue in cases where an appeal lies until fifteen days after the adjournment of the comt, by which the judgment was rendered, within which delay a party may take a suspen- sive appeal on filing petition and appeal bond, as now provided by law. 9 M. 34; 10 M. 74; 2 N. S. 629; 5 N. S. 128; 6 N. S. 317; 8 N. S. 441 ; 2 L. 324 ; 4 L. 205 ; 6 L. 324, 586; 7 L. 448; 8 L. 204; 9 L. 49; 10 L. 254, 411, 423; 19 K 107; 3 R. 42; 6 R. 17, 463; 9 R. 185; 12 R. 187; 1 A. 122; 2 A- 1013; 3 A. 37. Art. 576. — If the judgment decree the delivery of a slave or of some movable of a perishable nature, the court shall require surety to an amount exceeding by one half the esti- mated value of such slave or movable. 3 R, 42 ; 1 A. 122. Art. 577. — But if the judgment decree the delivery of real estate, not of a jTerishable nature, security shall only bo required to an auKjunt, exceeding by one half the estimated value of the revenue to be derived from such real estate, pend- ing the suit, and for such further amount as the judge may determine as surety for any injury, or deterioration which may be caused to the estate by the appellant, while in possession of the same. 8H. 42; 1 A. 122. OF THE APPEAL AND STATEMENT OF FACTS, 219 Art. 578. — If the appeal be taken after the ten days have expired, or if the appellant fail to fui-nish the surety required in the preceding articles, such appeal shall not stay the exe- cution of the judgment. But, in that case, no surety shall he required, except to such an amount as the court may determine as sufficient to secure the payment of the costs. 5 N. S. 219, 238; 10 L. 12; 11 L. 383, 482; 3R. 13; 12 R. 187; 1 A. 122; 4 A, 3 ; see 596. Art, 579. — In the appeal bond, it must be set forth in substance, that it is given as surety that the appellant shall prosecute his appeal, and that he shaU satisfy whatever judg- ment may be rendered against him, or that the same shall be satisfied by the proceeds of the sale of his estate, real or per- sonal, if he be cast in his appeal ; otherwise that the surety shall be liable in his place. 6 N. S. 294; 9 L. 229, 230; 10 R. 154, 191; 11 R. 266; 1 A, 122; 2 A. 1013; 3 A. 37 ; see 596, and amendment. Art, 580. — Some judgments, however, are executed pro- visionally, although an appeal has been taken from the same within the delay prescribed, and the necessary surety given. Such judgments relate : 1, To the nomination of tutors and curators of minors, of persons absent or interdicted, and of vacant successions ; 17 L. 432 ; 4 L. 567 ; see 876. 2, To the appointment of syndics of creditors, when the court orders that they shall administer provisionally. Art. 581. — When an appeal has been taken, and security given, as directed by the court, the clerk shall deliver a copy of the petition of appeal to the sheriflF, to be served on the appellee, together with a citation to appear before the court of appeal to answer within the delay hereafter prescribed. 6N. S. 108; 6 L. 115, 117; 7 L. 362; 10 L. 483; 11 L. 179; 12 L. 14; 6 R. 127 ; 4 A. 534 ; see 596, and amendment. Art. 582. — The sheriff shall serve the petition and cita- tion on the appellee, if he reside within the State, or his advo- 220 OF THE APPEAL AND STATEMENT OF FACTS. cate, if he do not, by delivering a copy of the same to such appellee, or to his advocate, or by leaving it at the place of their usual domicil. 5 N. S. 428 ; 6 N. S. 309 ; 7 N. S. 395 ; 4 K 317 ; 6 K 139 ; 7 L 1 13, 362; 8 L. 156: 9 L. 276, 473 ; 10 L. 160, 254, 399, 401, 489, 539, 580; 3 H. 1. Art. 583. — The appellee must be cited to appear before the court of appeal at its next term, if there be sufficient time for doing so, after allowing the same delay which is granted to defendants in ordinary suits ; and if there be not sufficient time to admit of the appellee ha^-ing this delay, owing to the distance from his domicil to the place where the court of ap- peal is held, he shall be cited to appear before the same at the subsequent term. 3 R. 271. Art. 584. — The sheriff must make his return on the back of the petition, stating how the same was notified to the ap- pellee, in the same manner as when a defendant is cited to appear before a court of original jurisdiction, and dehver or transmit the same to the clerk of the court of appeal, before the expiration of the term at wliich the appellee has been cited to appear. 5 N. S. 510; 10 L. 484; 5 A. 42; seo 200, 587. Art. 585. — After the appeal has been allowed, and the surety given, the clerk of the court from whose judgment the appeal is taken, shall make a transcript of all the proceedings, as well as of all documents filed in the suit, and annex to the same the petition of a2)peal, in order that the same may be delivered to the appellee when demanded. 6 N. S. 128; 2 L. 491 ; 3 L. 294, 305, 445, 44G ; 6 L. 38, 165, 211 ; 7 L, 175, 638; 10 L. 516; 4 11. 323, 326; 2 A, 709; 3 A. 226; 5 A. 42, 716, 744. Art. 586. — If the testimony jiroduced in the cause have been taken in writing, and if the records contain all the evi- dence produced in the suit, the judge shall certify, at the foot of the records, that they contain all the evidence adduced by the parties, otherwise he must make a statement of facts, in the manner hereafter provided. 1 K S. 591 : 2 N. S. 240 ; 4 N. S. 491 ; 5 N. S. 102 ; 7 N. S. 398 ; 8 N. S. 303 . OF THE APPEAL AND STATEMENT OF FACTS. 221 2 L. 164 ; 3 L. 296, 360, 455 ; 4 L. 8 ; 6 L. 102, 321, 479 ; 6 L. 157, 165, 211 ; 10 L. 560 ; 7 R. 179 : 8 R. 148 ; 2 A. 242. Art. 587. — The appellant must return the said petition of appeal and the transcript of the proceedings into the court of appeal, on the return day thereof. 4 N. S. 346 ; 5 N. S. 191 ; 8 N. S. 185 ; 3 L. 251 ; 5 L. 349 ; 7 L. 177 ; 8 L. 206; 11 L. 199; 2 A. 628. Art. 588. — If the appellant neglect to file in the appel- late court the copy of the record and the accompanying pa- pers, within the time thus fixed, the appellee may employ one of the modes mentioned in the two following articles, either to have execution on the judgment, or final judgment on the ap- peal, 1 N. S. 573 ; 8 N. S. 597 ; 2 A. 1013. Art. 589. — If the appellee prefers having execution on the judgment, he may, within three days after the time allow- ed for the appcUant to file the record, obtain a certificate from the clerk of the appellate court, declaring that the record has not been brought up, and on the production of this certificate in the lower court, it shaU award execution on the judgment, which then becomes irrevocable. 5 N. S. 192 ; 8 N. S. 184 ; 4 L. 68 ; 5 L. 348 ; 7 L. 344 ; 10 L. 500, 503 ; 10 R. 419 ; 1 A. 414 ; 2 A. 1013 ; 3 A. 245 ; 5 A. 81. Art. 590. — If the appellee prefers to have judgment on the appeal, he may obtain a copy of the record from the lower court, and bring it up to the appellate court, and may pray for judgment, or for the dismissal of the appeal, in the same manner as if the record had been brought uj) by the appel- lant. 4N. S. 360; 6N. S. 159; 7 L. 176; 2 A. 769; 3 A. 226; 5 A. 42, 716, 744; see 884. Art. 591. — If the appeal have been duly returned on the return day, the appellee must appear within the delay above prescribed, and file his answer prapng that the judgment of the inferior court be affirmed, and the appellant decreed to pay the costs. See 887. 222 OF THE APPEAL AND STATEMENT OF FACTS. Art. 592. — NcvcrthelcRs, if the appellee complain of some parts of the judgment of the inferior court, he may, without appealing; from the same, pray it be set aside in those points in which he believes he is aggrieved. 7 N. S. G57 ; 2 A. 546 ; Bee 883, 889. Art. 593. — No a]ipcal will lie, except as regards minors, after a year has expired, to be computed from the day on which the final judgment was rendered, if the party claiming the same reside in the State, and after two years, if he be ab- sent therefrom. This delay, as relates to minors, must be computed from the day of their becoming of age. 2L. 324; "7 L. 381; 11 L. 383; 3 R. 113; 5 R. 270; 7 R. 451; 12 R. 180,456; see 1133. Art. 594. — From the moment when the citation of appeal is served on the appellee, the appellant cannot withdraw his appeal, and whether the appellee obtain the rejection of the appeal by producing the record from the court below, or pro- secute execution on the judgment appealed from, on the certi- ficate of the clerk that the record has not been brought up by the appellant, the appeal shall be considered as abandoned, and the appellant shall not be afterwards allowed to re- new it. 4 L. 41 ; 7 L. 448; 1 A. 414; 2 A. 028, 722; 3 A. 339; see 901. Art. 595. — But if the appellant wishes to withdraw his appeal before he has cited the appellee, he may be allowed to do so, on motion to the lower court ; and in such case, he may renew his appeal within the time herein above allowed. G N. S. IGO; see 10 L. 502. Art. 596. — If, on the execution of the judgment of the appellate court, there is not sufficient property of the appel- lant to satisfy the judgment and costs, the api)cllec may ob- tain judgment against the surety given by the ai)pellant, so far as his security goes, and this on mere motion of the lower court, after gi\^ng to such security notice in writing of the said motion, ten days before obtaining judgment. OF THE APPEAL AND STATEMENT OF FACTS. 223 Stat 20th March, 1839, p. 170— § 20. In all cases of ap- peal to the supreme court or other tribunals in this State, if the judgment appealed from be affirmed, the plaintiff may, on the return of the execution that no property has been found, obtain a decree against the surety on the apj)eal bond for the amount of the judgment, on motion, after ten days notice, which motion shall be tried siunmarily and without the inter- vention of a jury, unless the said surety shall allege under oath that the signature to the bond purporting to be his, is not gen- uine, or that the judgment has been satisfied. 9L. 229; 10 R. 136, 147, 191; 1 A. 122; 2 A. 1013; 3 A. 37 ; 5 A. 523. Art. 597. — The rules provided in the preceding articles shall govern all appeals, whether the same be taken from judg- ments rendered by district courts, parish courts, or by the parish court of New Orleans. Art. 598. — Appeals taken from the judgments of parish courts except that of Orleans, shall be tried de novo, that is to say, that each of the parties shall be allowed to produce new evidence, and to have their witnesses examined again. Art. 599. — Nevertheless, if the testimony given before the parish court be taken in writing, and has been sent with the records to the district court, the party in whose favor such tes- timony was given, may use the same before the district court, without being obliged to produce the witnesses in person. Art. 600. — The rules of practice, to be observed by the supreme court, are hereafter prescribed in a particular title, and the two following articles : Art. 601. — Either party may require the clerk to take down the testimony in writing, which shall serve as a statement of facts, if the parties should not agree to one. 6 L. 129 ; 7 L. 245 ; 10 L. 562; 7 R. 179. Art. 602. — When the depositions of witnesses have not beer taken in writing in the inferior court, the party intending to appeal, or his advocate, must require the adverse party or his advocate, to draw up, jointly with him, a statement of the facts 224 OF THE NULLITY OF JUDGMENTS. proved in the cause, and tliis statement thus drawn up and sign- ed, cither by the parties or their advocates, sliallbe annexed to the records, and a transcript of the same transmitted to the su- preme court. 6 N. S. 89 ; 8 N. S. 304 ; 2 L. 225 ; 10 L. 213 ; 4 R. 259 ; 7 R. 179 ; 4 A. 18; sec 3 R. 1C9. Art. 603. — If the adverse party, when required to do so, refuse to join in making out the statement of facts, or if the parties cannot agree as to the manner of drawing the same, the court, at the request of either, shall make such statement, ac- cording to their recollection of the facts, or from the notes they have taken of the evidence. 1 N. S. 396; 2 L. 165, 296, 347; 8L. 64; 3 R. 169; 4R. 259; 7 R. 179; 4 A. 18; see 896. Sec. III. — 0/ the Nullity of Judgments. Art. 604. — One may demand the nulUty of a judgment, for any of the causes provided in this section, even if no appeal have been taken from the same, or if the delay for taking the same have expired. 9 R. 191 ; 1 A. 92 ; 5 A. 219 ; sec 11 L. 419 ; 12 L. 394. Art. 605. — The causes for wliich the nullity of a definitive judgment may be demanded, are two-fold : those that are rela- tive to the form of proceeding, and those that appertain to the merits of the question tried. 9 R. 191; 1 A. 92; see 604. Art. 605. — The vices of form for which a judgment can be annulled, are the following : 1. If a judgment has been rendered, even contradictorily, against a person disquahfied by law from appearing in a suit, as a minor, without the assistance of his curator, or tutor, or a married woman without the authorization of her husband or of the court ; 2. If the defendant, although quahfied to appear in a OF THE NULLITY OF JUDGMENTS. 225 cause, have been condemned by defiiult, without ha\dng been cited ; 3. When the judgment, though clothed with all the neces- sary formalities, has, nevertheless, been given by a judge in- competent to try the suit, either owing to the amount in dispute, or to the nature of the cause ; 4. If the defendant has not been legally cited, and has not entered appearance, joined issue, or had not a regular judgment by default taken against him. 6 N. S. 507 ; 2 L. 35 ; 10 L. 269, 573 ; 5 R. 284 ; 9 R. 191 ; 11 R. 37, 77 ; 1 A. 92 ; 5 A. 219 ; see 18 L. 651 ; 1 R. 528 ; 3 A- 646. Art. 607. — A definitive judgment may be annulled in all cases where it appears that it has been obtained through fraud, or other ill practices on the part of the party in whose favor it was rendered ; as if he had obtained the same by bribing the judge or the witnesses, or by producing forged documents, or by denying ha'sdng received the pa}mient of a sum, the receipt of which the defendant had lost or could not find at the time, but has found since the rendering of the judg- ment. 7N. S. 606; 2L. 139; 8 L. 103; 11 L. 139; 4 R. 127; 9 R. 191 ; 1 A. 92; 3 A. 446. Art. 608. — The nullity of a judgment may be demanded from the same court, which has rendered the same, or from the court of appeal before which the appeal from such judg- ment was taken, pursuant to the provisions hereafter ex- pressed. 1 N.S.200, 703; 3 N. S. 136; 8 N. S. 520; 1 L. 21 ; 2 L. 15; 6 L. 656; 12 L. 894; 14 L. 150, 177; 5 R. 284; 6 R. 365; 7 R. 63 ; 9 R. 191; 11 R. 77; 1 A. 92, 172 ; 2 A. 492 ; 3 A. 453 ; 5 A. 219 ; see 604, 606. Art. 609. — The nullity can be demanded on the appeal, only while the appeal is still pending, and when the nullity is apparent on the face of the records. 3 L. 451; 7 R. 115; 9 R. 191; 1 A. 92; see 604. Art. GIO. — The party prajang for the nullity of a judgment, before the court which has rendered the same, must bring his 15 226 , OF THE RESCISSION OF JUDGMENTS. action by means of a petition ; and the adverse party must be cited to appear, as in ordinary suits. 7 R. 115; D R. 191 ; 1 A. 92 ; see 180, 604. Art. 611. — Though there has been no appeal within the delay prescribed l)y law, the nullity of the judgment ma}' yet be demanded by means of an action, brought before the court which has rendered the same, within the delay hereafter pro- vided. 9 R. 191 ; 1 A. 92; see G04. Art. 612. — The nullity of a judgment rendered against a party without his having been cited, or by an incompetent judge, even if all the formalities of the law have been ob- served, may be demanded at any time, unless the defendant were present in the parish, and yet suffered the judgment to be executed without opposing the same. The same rule shall govern, as regards a defendant not qualified to appear in a suit where judgment has been given against him, if he suifer the judgment to be executed against his property, without opposing the same. 9 R. 191 ; 1 A. 92 ; see G04 ; see 8 N. S. 148 ; 2 L. 266. Art. 613. — When a judgment has been obtained, through fraud on the part of the plaintiff, or because the defendant had lost or mislaid the receipt given to him by the plaintiff ; the action for annulling such judgment must be brought within the year after the fraud has been discovered, or the re- ceipt found. 7 R. 94; 9 R. 191; 1 A. 92. Sec. IV. — Of the Rescission of Judgments. Art. 614. — A judgment may be reversed, if it has been rendered on an attachment, obtained against a person absent, and who had no knowledge of the action having been brought against him ; if such person show that he was not indebted, either for the whole, or for part of the sum for which the judgment was obtained and his property sold. OF THE PROCEEDINGS IN EXECUTION, ETC. 227 But this action shall be prescribed after two years have elapsed from the date of the judgment. 5 R. 284. Art. 615. — A judgment rendered against a minor may be rescinded, if such minor show, either that his cause has not been well defended, or that he has been aggrieved by such judgment. But that action shall be prescribed, if four years have elapsed after the minor has arrived to the age of majority ; nor can it be brought by the curator, or the tutor, during the minority of their ward. Stat 7th April, 1826, p. 172.— § 12. Article six hun- dred and fifteen, shall not be taken or construed to imply the nidlity of a judgment where a minor has been regularly represented in a suit according to law. 10 L. 275. Art. 616. — The action for rescinding judgment, of which this section treats, must be pursued by presenting a petition to the court, by which such judgment was rendered ; and the adverse party must be cited, as in ordinary suits. 6 R. 284; Bce 180. CHAPTER VI. 0/ the Proceedings in Execution of Judgments. Sec. I. — General Provisions. Art. 617. — The execution of judgments belongs to the courts by which the causes have been tried in the first in- stance, whether such judgments have been affirmed or reversed on appeal. 1 N. S. 658 ; 7 L 409 ; 6 R. 427 ; 12 R. 519. Art. 618. — Therefore, the court of appeal, whether it affirm or reverse the judgment, or whether it has rendered 228 OF THE PROCEEDINGS IN another definitive judgment in the cause, must send the same to the inferior court, in order that it may be executed. 7 N. S. 347; 6 R. 92; see 915. Art. 619. — This judgment cannot even be executed, until it has been recorded in the records of the inferior court which first had cognizance of the cause. 6 R. 92. Art. 620. — This recording shall be directed to be made, on motion in open court, by the party wishing to make use of the judgment, but without any obligation, on his part, to give previous notice to the opposite party. Art. 621. — It is also the duty of the party wisliing to avail himself of the judgment, to follow up the execution of it, according to the delays and forms hereafter provided. Art. 622. — If the judgment has been rendered where no appeal lies, or on confession of one of the parties, the party wisliing to make use of it, may prosecute the execution imme- diately after the close of the term, excepting in the first dis- trict. Art. 623. — If the judgment has been confirmed, or a new one rendered on the appeal, which pronounces definitively on the cause, the execution may be prayed for, as soon as the judgment has been recorded in the inferior court, to which the execution is remanded. 6 R. 92. Art. 624. — Kespecting judgments subject to appeal, the part in whose favor one is rendered, can only proceed to the execution after ten days, counting from the notification which he is obliged to make to the opposite party, if the latter has not appealed from the judgment, witliin this interval, or if, having appealed, he has failed to furnish the security necessary to stop execution. Amended by Slat. 21d March, 1843, p. 40, § 2. See art. 575, where the amendment will be found.— 3 L. 258; 6 R. 17. A RT. 625. — A party wishing for the execution of a judg- EXECUTION OF JUDGMENTS. 229 ment, which has been rendered in his favor, may apply for this purpose to the clerk of the court having cognizance of the case in the first instance, who shall deliver to him an order of execution, according to the particulars of the judgment which has been pronounced, as is declared hereafter. 2 L. 66. Art, 626. — This order must be in English and French, when the French language is the maternal tongue of the party cast, must be sealed with the "seal of the court, and signed by the clerk, who shall direct it to the sheriff, with orders to ex- ecute it, according to its contents, or according to the direc- tions of the judgment to which the writ may refer, and to make his return to the court of the manner in which he shall have executed the writ. Art. 627. — In this case, and in all others where the sheriff is charged with the execution of an order of the court, he must, on receiving it, indorse on it the day of the week, month and year, on which it was delivered to him. Art. 628. — Orders of execution are different, according to the nature of the judgments to be executed ; for these judg- ments may direct that a thing shall be given, or a thing be done or omitted, or a sum of money be paid, and this variety, subjects the execution to different rules, which are explained in the two following sections. Art. 629. — It is for the court, whether appellate, or infe- rior, which has rendered the judgment, to take cognizance of the manner of its execution, when the proper manner of exe- cuting it is to be determined. 7 N. S. 658 ; 6 R. 92, 427. Sec. II. — Of the Execution of Judgments loMcli require sonyetliing to he given or something to he done. Art. 630. — When the judgment directs one of the par- tics to deliver an estate to the other, the clerk must issue a writ of possession, by wliich the sheriff shall be enjoined to 230 OF THE EXECUTION OF JUDGMENTS. put him, in whose favor the judgment was renilered, in pos- session of the estate and appurtenances, belonging to it, ac- cording to the judgment. 7 L. 409,416; 9 L. 273. Art. 631. — This writ of possession shall be directed to the sheriff, with a copy of the judgment, and even of the petition to wliich it refei-s, if the party require it, to the end that the sheriff may not be mistaken, conceniing the nature of the estate and appurtenances of which he is to give the posses- sion. Art. 632. — If, three days after the sheriff shall have sensed a copy of this writ, on the party who has been condemned to quit the estate, he shall refuse to obey the order and to go oflf, the sherifl" shall proceed to put in full possession of the estate the party who has obtained the judgment, and shall compel the other to depart, even by breaking open the doors, if it be necessar}'^, and by summoning the posse comitatus, if resistance be made. Art. 633. — The party, against whom the judgment has been rendered, shall be considered to have complied with it, by quitting the estate, and leaving the other party free to take possession. 11 L. 820. Art. 634. — If the judgment should order the delivery of a slave or other specific object, the writ shall direct the sheriff, on fliilure of the debtor to deliver to him the slave or other specific object, after three days' service of a copy of the writ, to seize the slave or other object wherever it may be found, and deliver it to the party in whose favor the judgment was rendered. Art. 635. — If the party, who has been condemned to de- liver a slave or other object, conceals it, or canies it out of the jurisdiction of the court, so that the sherifl cannot seize it, the party, in whose favor the judgment was rendered, shall have the choice either of instituting an action for damages, or of cumpeDing a specific execution of the judgment, by obtain- OF THE EXECUTION OF JUDGMENTS. 231 ing a sequestration of his other property, until he has satisfied it, in the same manner as is practised on judgments, directing a specific performance, as is stated below. 2 A. 760. Art. 636. — When the judgment orders, not the delivering, but the doing or refraining from something specified in it, if the party condennied, on demand made by the sheriff that he shall comply with it, refuses or neglects to do so, and this refusal or neglect appears by a certificate of the sherifi", the party in whose favor the judgment was rendered, may obtain, on motion, an order to distrain all the property movable and immovable of the party who is in default, until he shall have fully satisfied the judgment. 7 N. S. 8 ; 11 L. 498 ; 2 A. 760 ; C. C. 1921 ; see 1058. Art. 637. — It is the duty of the sherifi", charged with the execution of this order of distringas, to seize mthout delay, the movable and immovable property of the party in default, and to receive the rents, income and other profits, and to keep the whole subject to the order of the court, until the order shall be revoked. 1 A. 435. Art. 638. — Nevertheless, the court may, from time to time, when the nature of the case requires it, order that the sums arising from the income thus collected, shall be paid to the party in whose favor the judgment was rendered, if he demands it, and gives good and sufficient security to refund the sums thus paid to him, when the judgment of the court shall have been complied with, and he shall have been paid the expenses and damages which may be allowed to him, as provided in the fol- lowing article. Art. 639. — The judge may quash the order of distringas, if it be proved to him that the party condemned has fully sat- isfied the judgment, and has paid aU the damages which he has the power of gi-anting to the other party. Art. 640. — As soon as the sheriff shall have executed the 232 OF THE EXECUTION OF JUDGMENTS. writs of possession and order of distringas, which were directed to him, he must return into the court which issued tliem, the originals of these writs, with his return indorsed, stating the manner in wliich they have been executed, and the particulars of the property distrained, in case the order of distringas was ifisued. Sec, III. — Of the Execution of Judgments directing the pay~ ment of a sum of money. § 1. Of tlie Writ of fori facias. Art. 641. — When the judgment orders the payment of a sum of money, the party in whose favor it is rendered, may apply to the clerk, and obtain from him a writ of fori facias against the property of his debtor. 4N. S. 197 ; 5 N. S. 287, 419, 707 ; 7 N. S. 15G ; 8 N. a 391 ; 7 L. 273 ; 9 R. 2C7. Art. 642. — This writ is directed to the sheriff of the parish where the property of the debtor is situated, and orders him to 8ei2!e the property, real and personal, rights and credits of the debtor, and to sell them, to satisfy the judgment obtained against him, Stat. 1th April, 1826, p. 1V4.— § IG, All writs oi fieri facias issued by the clerks of the several courts throughout this State shall be made returnable by them in not less than thirty,' nor more than seventy days. Stai. 20th March, 1839, p. 166.— § 13. In the parish of Orleans, whenever a party, ])laintiff in a cause, has ap})lied for a writ oi fieri facias against the defendant, and has reason to believe that a third person has property or eftects in his pos- session, or under liis control, belonging to the defendant, or is indebted to him, he may cause such third i)erson to be cited to answer under oath, such interrogatories as may be i)ropounded to him touching said property and eflfects, or such indebtedness, in the same manner and with the same regulations as arc pro- vided in relation to garnishees in cases of attachment. Such OF THE EXECUTION OF JUDGMENTS, ETC. 233 third person shall thereupon be bound to answer in the same manner, and shall be liable in the same manner for his ni'glect or refusal to answer, and his answers may be disproved in the same manner as those of garnishees ; in case such third person shall confess in his answers that he has property or effects in his possession, or under his control, belonging to the defendant, or is indebted to him in any sum of money, the court shall order him forthwith to deliver up said property, to pay such sum (if the same be due, and if not, when the same sliall be due), to the sheriff, and a copy of said order, with the receipt of the sheriff indorsed thereon, shall be delivered to the said third person, and shall be decreed equivalent to a receipt from the debtor himself ; the property and effects, in the possession of a third person, belonging to the defendant, or debts due by him to such defendant, shall be decreed to be levied as by the sheriff from the date of the service of the interrogatories, on such persons. Stat. I8th March, 1840, p. 43.— The thirteenth section of the above recited act shall be so amended that the provisions therein contained, shall have full effect in each and every parish in the State x)f Louisiana. i 4 L. 344; 9 R. 182; 12 R. 8. Art. 643. — As soon as the sheriff has received this writ, he must execute it, without any delay, by seizing the property of the debtor, which he shall find in his parish, except such things as arc mentioned in the following article : Art. 644. — The sheriff cannot seize the linen and clothes, belonging to the debtor or his wife, nor his bed, nor those of his family, nor his anus and military accoutrements, nor the tools and instruments necessarj' for the exercise of the trade or profession, by which he gains a living. Stat. 2M March, 1842, p. 380.— § 1. Besides the effects mentioned in the articles 644 and 647 of the Code of Practice, the sheriff shall in no case seize the rights of personal ser\atude8, of use and habitation, of usufruct to the estate of a minor child, or the income of dotal property. 234 OF THE EXECUTION OF JUDGMENTS, ETC. § 2. Any law, or part of law, contrary to the provisions of tliis act shall l)e, and the sanie is hereby re])ealed. Stat. I8th March, 1852, p. 222.— § 1. In atldition to the property now exempt from sale under execution, there shall be exempt by law, from sale on execution, for debts hereafter con- tracted, the lot or piece of ground and buildings thereon, occu- pied as a residence and bona fide owned by the debtor, having a family, to the value of one thousand dollai-s ; Provided, that no debtor shall be entitled to the exemption pronded for in this section, whose wife shall own in her own right and be in the actual enjoyment of property worth more than one thou- sand dollars. § 2. To entitle any property to the exemption provided for in the preceding section, a full and accurate description thereof shall be recorded in the office of the recorder of mortgages of the parish in wliich said property is situated, in a book to be provided and kept for that purpose, by said recorder, and to be known as the homestead exemption book, but no proi)erty shall by virtue of this act, be exempt from sale for non-payment of taxes or assessments levied pursuant to law, or for a debt con- tracted for the purchase-money thereof, or for any debt con- tracted prior to the recording of the description of said property as aforesaid. § 3. In addition to the homestead of a householder herein- before cxemjjted from sale under execution, there shall also be exempt by law, from seizure for rent and sale on execution, such household effects as may be necessary for housekeeping, owned by any person being a housekeeper, or having a family for which he or slie provides, to the amount and value of two hundred and fifty dollars ; Provided, that such exemption shall not extend to any execution issued on a demand for the pur- chase-money of any of the effects or things in this sect ion spe- cified and contained. § 4. In addition to the property and effects hereinbefore exempted from seizure for rent and sale under execution, there shall also be exempt by law, from seizure for rent and sale on \ OF THE EXECUTION OF JUDGMENTS, ETC. 235 • execution, the books of the family library, the family portraits and pictures, the working tools and instruments of any mechan- ical trade, and the books, instruments and apparatus of any lawful profession, which may be necessaiy for the exercise of such trade or the practice of such profession, and by which any person gains a li\dng for himself and family ; Provided, that such exemption shaU not extend to any execution issued on a demand for the purchase-money of any of the articles or things in this section mentioned and contained. § 5. In addition to the property and effects hereinbefore exenipted from sale under execution, and from seizure for rent, there shall also be exempted by law, from seizure or attach- ment, or from being* garnisheed, the wages of labor and the compensation for professional or other ser\ices, which shall have been earned and due within the last thirty-one days pre- ceding the issuing of any seizure, attachment or garnishment against a debtor to an amount sufficient for the necessary sup- port of any person having a family for which he or she pro\ades ; Provided that such wages or compensation may in all cases be seized, attached or garnisheed for alimony, furnished to the debtor or his family, and also for the rent of the premises occu- pied by them at the time, § 6. Tliis act shall take eflfect from and after its passage, and all laws or parts of laws conflicting with this act or con- trary to any of its provisions, are hereby repealed. An Act to Repeal an Act entitled " Aii Act to exempt the Homestead of a Householder from seizure and sale on Execu- tion, and also to exempt from execution from seizure for rent, and from being garnisheed, certain personal property and effects, and the ivages of labor, and compensation for j^rofes-- sional and other services. — An Act entitled " An Act to ex- empt the Homestead of a Householder from seizure and sale on execution, and also to exempt from execution, from seizure for rent, and from being garnisheed, certain personal jjroperty and effects, and the wages of labor, and compensation for profes- 236 OF THE EXECUTION OF JUDGMENTS, ETC. sional and otliersomccs/'apjjrovccl the eighteenth March, eigh- teen hundred and fifty-two, be, and the same is hereby repealed, 7 N. S. 3S7 ; 1 A. 393 ; 5 A. C51 ; 6 A. 789. Art. 645. — Nor can he seize the agricultural implements and working cattle, separately from the lunil to which they are attached. Stat 27th March, 1843, p. 45.— § 1. Article six hundred and forty-five of the Code of Practice shall be so amended, that in addition to the articles therein exempted from seizure in certain cases, shall be included the corn, fodder, hay, provisions, and other supplies necessary for can^-ing on" the supply of the plantation to which they are attached, for the current year. § 2. This act shall be in force from and after its publi- cation in the State Gazette ; and all laws and parts of laws conflicting herewith, shall be and the same are hereby re- pealed. Art. 646. — With the exceptions mentioned in the two preceding articles, and if the party prosecuting the execution of tlic judgment, has no privilege or mortgage on the i)roperty of the debtor, the sheriif must commence by seizing the mova- ble projierty ; if there be not movables, he may seize slaves, and if there be no slaves, he may seize the immovables, unless the debtor point out himself to the sheriff what property he wishes to have seized and sold first ; Provided the property thus pointed out be situated in the parish. 4 N. S. 91. Art. 647. — But if the debtor has neither movable, nor slaves, nor immovable property, the sheriff may seize the rights and credits which belong to him, and all sums of money which may be due to him, in whatsoever right, unless it be for alimony or salaries of office. 1 L. 103; 3 II. 152; 4 K. 340; 11 R. 124; 12 R. 105; 1 A. 435 ; 4 A- 293, 307 ; C. C. 1987 ; see art 6-lJ, and ameiidmeDt. Art. 648. — The debtor shall not have the right of point- ing out to the sheriff the property wliich he wishes him to OF THE EXECUTION OF JUDGMENTS, ETC. 23V seize, when the creditor who prosecutes the execution of the judgment has a privilege or mortgage on part of liis property, for in this case the creditor shall have a right to direct the seizure of such property as is mortgaged to him, if he prefers it ; hut with respect to other property, not subject to his claims, he must conform to the directions above given. Art. 649. — The debtor shall also lose the right of point- ing out to the sherifi' the property to be seized, if he allows the sheriff to execute the writ, and advertise for sale the goods seized, without exercising the right, 3 R. 152; see art. 642, and amendment. Art. 650. — Nevertheless, the debtor, whose land shall have been seized, shall always be entitled to demand that a portion only, which he shall designate, shall be sold, if that portion is sufficient to satisfy the judgment : but if it be in- sufficient, a sale of the other portion shall be made. Art. 651. — The sheriff shall seize the property of the debt- or to a sufficient amount to discharge the judgment, as well as interests and costs ; he may even seize sometliing beyond this amount, to pay the interest which may become due, and the estimated costs of the seizure and sale. 6 N. S. 90; 7 L. 569. Art. 652, — Nevertheless, if the debtor is of opinion that the sheriff has seized more property than could reasonably be thought necessary to discharge the judgment and costs, he may, on application to the judge who issued the writ, demand that an appraisement be made of the property taken by the sheriff. 3 R. 12.3. Art. 653. — The judge, on application, shall order that an appraisement of the property seized be made by two compe- tent persons, whom he shall name and swear for that purpose, and if he shall find, by the appraisement, that more property was taken than is necessary to satisfy the judgment, as has been directed above, he shall reduce the seizure to such an amount only, as shall be sufficient for this purpose. 238 OF THE EXECUTION OF JUDGMENTS, ETC. Stat. 7th April, 1826, p. 172.— § 13. Articles sLx hundred and fifty-two and fifty-three, shall be so amended, that unless the application for the aj>praisomcnt of the property according to said articles be made before the day of sale, it shall in no case have the effect to prevent the sale on the day fixed by the ad- vertisement. , Art. 654. — It shall be the duty of the sherilBf as soon as he shall have executed the writ oi fieri facias , to give notice thereof in writing to the debtor, and to annex thereto a Ust of the property seized, which he shall deliver to him in person, or leave at his place of ordinary residence. 6L. 631; 8R. 152; 9 R. 182; 12 R. 8; 2 A. 239; 5 A. 737. Art. 655. — Three days after this notice, the sheriff shall advertise the sale of the property seized, in the manner and form directed in the following paragraph. 6 L. 630; 8 R. 152; 9 R. 509; 11 R. 533; 12 R. 8 ; see 745. Art. Q5Q. — When the sheriff seizes houses or lands, he must take at the same time all the rents, issues and revenue, which this property may yield. 6 R. 100; 12 R. 8; see 1141. Art. 657. — If it be land or a, plantation which he has taken, unless the same has been leased or rented, it shall re- main sequestered in his custody until the sale ; Consequently, he may appoint a keeper, or an overseer to manage it, for whom he shall be responsible. 6 R. 100; 2 A. 157; see 1142. Art. 658. — If it be a house which he has seized, it also remains sequestered in his custody ; he may receive the rent from those who occupy it ; he may even lease it, provided it be not for a time beyond that appointed for the sale. 6R. 100; 5 A. 174. Art. 659. — When the objects seized consist of money, movables, beasts or slaves, he should put them in a place of safety, under the penalty of being responsible for the loss oi injury which they may sustain through his fault or neglect. 6 R. 345 ; 7 .R. 82. OF THE EXECUTION OF JUDGMENTS, ETC. 239 Art. 660. — Nevertheless, the sheriff cannot remove from lands or plantations the implements of agriculture, the cattle or slaves, employed in cultivating or clearing them, but he may appoint a guardian or overseer for their preservation. G R. 345; 2 A. 157; 14 L. 281. Art. 661. — Until the sale, the sheriff is authorized to make sucli disbursements as are necessary for their preserva- tion, or even for their cultivation and clearing, if the things seized consist of lands or plantations. 7 R. 82 ; 9 R. 509. Art. 662. — The sheriff cannot lease or hire out the ani- mals or slaves he may have seized, unless he be authorized ex- pressly by the court, with the consent of both the parties. 6 R. 345 ; 7 R. 82. § 2. Of the Sale and Adjudication of Fropertiy seized under the tvrit of Fieri Facias. Art. 663. — The debtor may, down to the moment of ad- judication, prevent the sale of the property taken, and obtain its release, by paying into the hands of the sheriff the amount of the judgment, with interest and costs. Art. 664. — The sale of the property must be made by the sheriff at the seat of justice for the parish where the seizure is made, and he shall choose for the place of sale, the spot where it may have the greatest degree of pubhcity, except in the cases enumerated in the following articles. 6 R. 21 ; 2 A. 385 ; 3 A. 147. Art. 665. — In the country, the sale may be made on the plantations which are to be sold, if the debtor require it ; but in this case, notice must be given of the fact in the advertise- ments of sale. 6 R. 21. Art. 666. — Animals and utensils attached to plantations and manufactories, and such articles as cannot be easily re- 240 OF THE EXECUTION OF JUDGMENTS, ETC. moved, must be sold on the spot where they are taken, on the day and hour appointed for this purjiose by the sheriff. Art. 667. — Three days after the sheriff shall have given notice to the debtor, of the property seized from him, unless an injunction issue to prevent liim, he must advertise the sale of such property at the day, place and hour, which he shall designate for that purpose in the manner hereinafter directed. 6 R. 345 ; 8 R. 152 ; see 4 L. 396 ; see 655. Art. 668. — Every such sale must be announced by public advertisements, composed in English and French, and affixed to the door of the church, if there be one, and to that of the court-house of the parish where the seizure is made. 2 L. 360; 4 L. 890; 6 L. 737, 738. Art. 669. — These advertisements must be inserted, more- over, three times in Enghsh and French, to wit : in two news- papers, for seizures which are made in the parish of Orleans, and in one newspaper only, for seizures which are made in the other parishes where public papers are printed. 4 N. S. 456 ; 9 L. 643 ; 12 R. 130 ; 2 A. 615. No. 260. Stat. April 2dfh, 1853. — An Act relative to Judi- cial Advertisements. — §1. In all cases in which advertisements are required to be made in relation to judicial proceedings, or in the sale of property under judicial process, such advertisements shall be published in a newspaper printed in the parish in which such judicial proceedings are carried on, or in which such sale is to take place ; and if there be no newspa})er i)ubhslicd in such parish, such advertisements shall be published by jiosting the same on the door of the court-house and two other pubhc places in different parts of said parish ; Provided, that it shall be the duty of the sheriff or other officer publishing sudi advertise- ments to publish the same in the English language only, except when the defendant in the judicial process or the person direct- ing the sale shall request the said advertisement to be published in the French language also ; and, provided further, that this OF THE EXECUTION OF JUDGMENTS, ETC. 241 proviso shall not apply to the parishes of St. Landry, Calcasieu, Lafayette, Vermillion, St. Martin, St. Mary, St. Bernard, West Baton Rouge, St. Charles, Lafourche, Avoyelles, Natchitoches, Plaquemine, St. James, Assumption, Ascension, Terrebonne, Pointe Coupee, Iberville, and St. John the Baptist. § 2. When there are two or more newspapers published in the parish where such proceedings are had or such sale is to be made, the defendant in the judicial process shall have the right of selecting the newspaper in which said advertisement is to be made ; Provided, said selection be made within three days after the notice of such proceedings or the seizure made under said process ; and if the defendant neglect to select, the plaintiff shall have right to do so. § 3. The costs of publishing advertisements required by law, as hereinbefore provided, shall not exceed the rate of one dollar for every hundred words, for the first insertion, and at the rate of fifty cents for every subsequent insertion ; Provided, that in case the said advertisements cannot be published at the rates herein stipulated, they shall be published by posting the same at the door of the court-house and two other public places in the parish wherein such publication is to be made, § 4. The third section of this act shall not apply to the city of New Orleans, and all laws contrary hereto are hereby repealed. Art, 670. — The sale of movable effects can only be made ten days after the first notice which has been given, and that of slaves, ships, steamboats, and immovables, only thirty days after the same notice. 11 L. 438; 9 R. 185. Art, 671. — Ten days before proceeding to the sale of the property seized, if it consist of immovables, the sheriff shall summon the party whose effects are seized, by a written notice, deUvered to him in person, or left at liis usual place of resi- dence, to appear on the day, place and hour which he shall 16 242 OF THE EXECUTION OF JUDGMENTS, ETC. mention to him, for the imrposc of naming an appraiser of the property to be thus sold. Stat. 25th March, 1828, p. 154.— § 10. After the pro- mulgation of this act, two days notice given to the phiintiff and defendant, by the sheriff, to appoint men to vahie property under execution, shall be sufficient, any law to the contrary notwithstanding. 9 R. 531 ; 3 A. 390. Art. 672. — If the party appear and name his appraiser, the creditor shall have the right of naming the other, and if either the jDlaintiff or defendant refuse to appoint an ap- praiser, he shall be appointed by the sheriff, in, the name of the plaintiff or defendant, who shall have refused or neglected to make the appointment. 3 A. 390 ; see 770. Art. 673. — The appraisers, thus named, shall, before jiro- ceeding to make an appraisement, take an oath before a judge or justice of the peace, to make a just and true appraisement of the property seized, whether for cash, or for the time of credit designated by the parties, as provided above. Stat. 5th March, 1847, p. 55. — § 1. Article six hundred and seventy-three, and seven hundred and seventy, of the Code of Practice, shall be, and the same are hereby, repealed. § 2. Article six hundred and seventy-three of the Code of Practice, shall read as follows : " The appraisers thus named shall, before proceeding to make an appraisement, take an oath before the sheriff of the parish, or before a judge or justice of the peace, to make a true and just appraisement of the property seized, whether for cash or for the time of credit designated by the parties, as provi- ded above." Art. 674. — If they cannot agreee in their appraisement, they shall name an umpire who shall also be sworn ; and if they cannot agree on the choice of an umpire, the sheriff shall name one. 8 A. S90. OF THE EXECUTION OF JUDGMENTS, ETC. 243 Art. 675. — When the appraisers shall have been thus named and sworn, they shall proceed together to appraise the property taken, and after ha^^ng reduced this appraisement to writing, and affixed their signature or ordinary mark, they shall deliver it to the sheriff to serve as a basis for the sale. 5 N. S. 288 ; 9 R. 531 : 10 R. 466 ; 3 A. 390. Art. 676. — Slaves seized must be appraised either by the head, or by famihes, and the other effects must be appraised ■with such minuteness that they may be sold together, or sep- arately, to the best advantage of the debtor, as he may QJLTGCt 9 L. 543 ; 9 R. 531 ; 10 R. 466 ; 3 A. 390. Art. 677. — On the day and hour appointed for the sale, the sheriff or liis deputy shall repair to the place where it is to be made, and shall proceed to cry the property taken, after having read, in an audible voice, the notice declaring the na- ture and description of it. 12R. 8;3A. 39a Art. 678. — If they are slaves, lands, or other objects sus- ceptible of being mortgaged, which are to be sold, the sheriff, after having declared of what they consist, as directed in the preceding article, shall also read, in an audible voice, the cer- tificate wliich he shall have obtained for this purpose from the office of the register of mortgages in the parish where the sale is made, to show whether there exist any privileges or mort- gages on the property offered for sale. 5 R. 272 ; 9 R. 65, 509 ; 10 R. 65 ; 3 A. 390. Art. 679. — When there exists a mortgage or privilege on the property put up for sale, the sheriff shall give notice, be- fore he commences the crying, that the property is sold sub- ject to all privilege, and hypothecations of whatsoever kind they may be, with which the same is burdened, and with the condition that the purchaser shall pay into his hands whatever portion of the price for which the property shall be adjudica- 244 OF THE EXECUTION OF JUDGMENTS, ETC. ted, may exceed the amount of the privileges and special mortgages, to which such property is subject, 1 N. S. 603 ; 3 K S. 605 ; 4 N. S. 162 ; 6 N. S. 616 ; 7 N. S. 281, 383 ; 6 L. 298 ; 9 R. 531 ; 3 A. 390 ; see 241, 718. Akt. 680. — These previous steps being taken, the sheriff shall proceed to the sale and adjudication of the property taken, and if the price offered by the highest and last bidder, does not reach two- thirds of the appraisement made on it, as dii'ected above, then the tiling shall not be adjudged, and the sale shall be postponed for fifteen days, if it be immovable property, and ten days if movable, counting from the fresh notice which shall be given by the sheriff, in the manner here- after directed. 6 N. S. 124 ; 4 L. 396 ; "7 L. 91, 570 ; 9 L. 11 ; 10 L. 134 ; 9 R. 531 ; 3 A. 390 ; see 703, 705, 716. Art. 681. — The sheriff, on giving notice of the place, day and hour of this new crying, must announce that it will be made at twelve months' credit, the purchaser being required to furnish good and sufficient joint security, and special mort- gage on the thing sold, bearing interest from the day of the adjudication, at the same rate as that allowed by the judg- ment. 10 R. 30. Art. 682. — At this second adjudication, the thing seized shall be adjudged to the highest and last bidder, provided the amount be equal to three-fifths of the appraisement, on the terms mentioned in the preceding article, unless there exists a privilege or special mortgage in favor of some other person besides the judgment creditor, or entitled to a preference over him. Stat 7th Aiyril, 1826, p. 172.— § 14. The proviso and exception contained in article six hundred and eighty-two are repealed, and that at the second adjudication, the thing seized shall be adjudged to the highest and last bidder for whatever it will bmig on twelve months' credit according to the terms OF THE EXECUTION OF JUDGMENTS, ETC. 245 mentioned in article six hundred and eighty-one. The fol- lowing words in article seven hundred and twenty, to wit : " After the advertisements directed above, but with the mod- ifications contained in the following article," shall be repealed ; and that the whole of article seven hundred and twenty-one be and the samt is hereby repealed. Art. 683. — But if there exist on the property any privi- leges or special mortgage in favor of other persons than the judgment creditor, and which are preferred to him, the sheriff shaU announce that the purchaser shall be entitled to retain in his hands, out of the price for which the property was ad- judicated, the amount required to satisfy the privileged debts and special hypothecations to which the property sold was subject, but that he shall be bound to give his obligation for the surplus of the purchase -money, if there be any, and sub- scribe his obligation at twelve months' credit, with security, as is stated above, 1 N. S. 3S3 ; 9 L. 11, 92, 99 ; 5 R, 2l2 ; 6 R. 407 ; 7 R. 398 ; 10 R. 65, 107 ; 12 R. 389 ; 1 A. 219 ; 2 A. 617 ; 3 A. 642. Art. 684. — Consequently, if the price offered in this case by the highest and last bidder, is not sufficient to discharge the privileges and mortgages existing on the property, and which have a jDreference over the judgment creditor, there shall be no adjudication, and the sheriff shall proceed to seize other property of tlie debtor, if there be any, 4 N. S. 163 ; 7 R. 406 ; 10 R. 65, 107 ; 12 R. 130 ; 1 A. 32, 330, 426 ; 2 A. 617 ; 3 A. 542. Art. 685. — If the seizing creditor be a vendor, or has any privilege or special mortgage on the property seized and of- fered for sale, which is anterior or entitled to a preference over other privileges or special mortgages existing on said property, he may, notwithstanding what is contained in the preceding article, require that the property be sold at any price to pay him, although the purchase-money be not sufficient to satisfy 246 OF THE EXECUTION OF JUDGMENTS, ETC. all the privileges or mortgages \vith which such property i8 burdened. 5 R. 272; 6 R. 100; 9 R. '72. Art. 686. — When a seizing creditor has a privilege or spe- cial mortgage on the property seized, for a debt of wliich all the instalments are not yet due, he may demand that the pro- perty be sold for the wliole of the debt, provided it be on such terms of credit as are grafted to the debtor by the original contract for the payment of such instalments as are not due. 16 L. 171 ; 1 R. 295 ; 6 R. 461 ; 9 R. 72 ; 10 R. 49 ; see 11 L. 72. Art. 687. — When a property seized and sold is subject to any real charge, as usufruct, use, habitation, servitude or others, it is sold with all these burdens, and the purchaser is bound to fulfil them himself, or permit the enjoyment of them, over and above the price to be jiaid. Art. 688. — The»debtor may himself bid for his property seized and offered for sale, on the same terms as every other person. The case is the same with respect to the judgment credi- tor. 6 R. 407; 3 A. 381 ; see 8 L. 303,423. Art. 689. — If the person to whom the property has been adjudged, shall refuse to pay to the sheriff the price of the ad- judication, or to offer the proper sureties, when the sale has been made on credit, the sheriff shall expose to sale anew the thing seized, and adjudge it to another person. 2 L. 360 ; 3 L. 475 ; 4 L. 396 ; 7 R. 406 ; 8 R. 450 ; 10 R. 89 ; see 719. Art. 690. — The adjudication thus made, has of itself alone, the effect of transferring to the purchaser all the rights and claims which the party in whose hands it was seized, might have had to the thing adjudged. 5 N. S. 220 ; 7 N. S. 227 ; 1 L. 44; 4 L. 341 ; 10 L. 453; 17 L. 494 ; 6 R. 100, 107; 8 R. 450; 9 R. 405, 414; 11 R. 124, 270; 1 A. 426 ; 11 L. 284; 13.L. 290; 15 L. 385; 19 L. 235. OF THE EXECUTION OF JUDGMENTS, ETC. 247 Art. 691. — Within three days after the adjudication, the sheriff shall pass an act of sale to the purchaser of the property or eflects adjudged by him, in the manner and form hereafter directed. 6 R. 100. Art. 692. — 'This act of sale must be made by and in the name of the sheriff of the parish where the seizure was made be signed by him in his official capacity, with a mention of the place, the day, the month, and the year in which it was passed. 3 L. 422. Art. 693. — This act must make mention, 1. Of the wi'it by virtue of which the object has been seized and sold ; 2. Of the title of the cause in which the writ has been issued ; 3. Of the names and surnames of the defendant, plaintiff and purchaser ; 4. Of the nature of the object sold, with a description of it, as well as of the price and conditions on which it has been adjudged ; 5. Of the manner in which the purchaser has paid the price, or bound himself to discharge it ; 6. Of the amount of the privileges or mortgages with which the property adjudicated is incumbered, and which were made known at the time of the adjudication ; 7. And finally, of the special mortgage which he has given to secure the payment of the price, where the sale has been made on a credit. 7 R. 398. Art. 694. — The sheriff shall conclude this act, by selling and transferring to the purchaser, all the right which the for- mer owner had in the thing sold, pursuing the same forms as in ordinary sales. 1 N. S. 227 ; 8 N. S. 337 ; 1 A. 426. 248 OF THE EXECUTION OF JUDGMENTS, ETC. Art. 695. — This act of sale adds nothing to the force aud effect of the adjudication, but is only intended to afford the proof of it. Consequently, if the sheriff has omitted any of the forraali- ^ ties above prescribed, the adjudication shall not be void (in that account, if it otherwise appear that it was made by virtue of a legal authority, and with all the forms requisite for its va- lidity. Stat. 10th March, 1834, p. 125.— An Act for the fur- ther assurance of titles, to purchasers at judicial sales. — § 1. The purchasers of property at sheriff"'s sales, those made by the authority of the court of probates, those made by the syn- dics of insolvent estates, and finally those of any kind and de- scription which are made by the authority of justice, may protect themselves from eviction of the property so purchased, or from any responsibility as jiossessors of the same, by pursuing the rules hereinafter prescribed. § 2. It shall be the duty of said purchasers, if the purchase has been made wdthin the limits of the city and parish of New Orleans, to publish three times in two of the newspapers print- ed in the city in French and English : or if the sale has been out of the limits of the parish and city aforesaid, then he shall pubhsh the same for the space of time and in the same langua- ges, in the newspaper which is printed nearest to the place where the sale takes place, a monition calling on all persons who can set up any right to the property in consequence of in- formality in the order, decree, or judgment of the court under which the sale was made, or any irregularity or illegality in the appraisements and advertisements in time or manner of sale, or for any other defect whatsoever, to show cause within thirty days from the day the monition is first inserted in the public papers, why the sale so made, should not be confirmed and homologated. § 3. This monition shall state the judicial authority under which the sale took place, and shall also contain the same de- scription of the property purchased as that given in the judi- OF THE EXECUTION OF JUDGMENTS^ ETC. 249 cial conveyance to the buyer, and shall further declare the price at which the object was bought. § 4. The clerks of the respective courts from which the orders, decrees or judgments may have issued, and in \drtue of wliicli the sales ought to be homologated, have been made, shall on application of the buyer, grant this monition in the name of the State, and affix to it the seal of the court. § 5. On the expiration of the thirty days mentioned in the second section of this act, the party obtaining the monition, may apply to the judge of the court, out of which said moni- tion issued to confirm and homologate the sale., and it shall be the duty of the judge in case no cause is shown against the prayer of the monition, to homologate and confirm the judicial sale in question : provided, always, that before he does so con- firm it, he shaU be fully satisfied that the advertisements have been inserted in the newspapers as already directed, and that the property has been correctly described, and the price at which it was purchased, truly stated : but in case opposition be made to the homologation, and it should appear the sale was made contrary to law, it shall then be the duty of the judge to annul it, otherwise to confirm it, as in case no oppo- sition was made. § 6. The judgment of the court on the monition aforesaid, shall be in itself conclusive evidence, that the monition has been regularly made, and duly advertised, nor shall any evi- dence be received thereafter to contradict the same, or to prove any irregularity in the i^roceeding. § 7. The judgment of the court confirming and homologat- ing the sale, shall have tlie force of res judicata, and operate as a complete bar against all persons whether of age, or mi- nors, whether present or absent, who may thereafter claim the property sold in consequence of an illegahty or informahty in the proceeding whether before or after judgment, and the said judgment of homologation shall in all cases be received and considered as fuU and conclusive proof, that the sale was duly made according to law, in virtue of a judgment or order legally 250 OF THE EXECUTION OF JUDGMENTS, ETC. and regularly pronounced on the interest of parties duly rep.> resented. § 8. Nothing contained in this act shall be taken or un- derstood so as to render valid any sale made in virtue of judg- ment where the party cast was not duly cited to make defence, and that in every case where minors are interested they shall have their recoui-se on their tutors or curators, if said tutors or curators have improperly neglected to make opposition to the confirmation of the sale of their property. § 9. When no opposition is made to the confirmation of the sales, the costs attending the proceedings shall be paid by the party who pays for the monition ; and where o})position is made, tlie costs shall be borne by the party against whom judgment is rendered. § 10. Nothing contained in this act shall be construed or understood to authorize the jjurchaser at a judicial sale, to re- fuse carrying the same into effect, or to delay the papnent of the price for any greater space of time than is now allowed by law ; and in case the said purchaser shall not deem it neces- sary to use the remedy conferred by this act to assure his title, then the said sale shall have the same effect as is now given to it by the existing laws of the State. Stat. Wtli March, 1837, p. 62. An act to amend an act entitled "an act for the further assurance of titles to purchas- ers at judicial sales" ajjproved March \Qth, 1834. — Hereafter not only the actual purchasers of property at sheriffs' sales, those made by the authority of the court of probates, those made by the syndics of insolvent estates, and finally those of any kind and description wliich are made by the authority of justice, but all subsequent purchasers holding under such actual j)urchasers by a regular chain of title, shall be allowed to avail themselves of the benefits conferred u2)on actual pur- chasers by the said act, approved March tenth, one thousand eight hundred and tliirty-four. Stat. 12th March, 1838, p. 98. An act to, amend an act for the further assurance of titles to purchasers at judicial OF THE EXECUTION OF JUDGMENTS, ET/. 251 sales, approved 10th March, 1834. — The provisions of said act shall be extended to tax sales, and any one interested may ap- ply to the clerk of the district court of tlie parish wherein the property may he situated for a monition in order to enable such person to have any tax sale of property perfected, which sale shall bo homologated by the district court in the same manner, and upon the same conditions that said court may homologate judicial sales ui\der the provisions of the ^aid act. And the publications required shall be made in some newspaper j)rinted in (or if none be) in one nearest the parish in which the pro- perty shall be situated ; provided that no tax shall be confirmed under the provisions of this act, unless such sale shall have been made ten years prior to the apphcation for a monition. Stat. 12th 3Iarch, 1838, p. 98. The act entitled " an act for the further assurance of titles to purchasers at judicial sales," approved March tenth, eighteen hundred and tliirty- four, and all the acts amendatory of the same, shall be so amended, that it shall not hereafter be necessary in the ninth judicial district, composed of the parishes of Con- cordia, Tensas, Madison, and Carroll, as well as the pa- rishes of St. Helena, Washington, and Sabine, to publish monitions in the French language, and that their publication in the English language, shall have the same effect as if published in both languages. 4 L. 344 ; 10 L. 522 ; 11 L. 437, 438 ; 9 R. 405 ; see 692, 693. Art. 696. — If this act of sale includes a special mortgage, to secure the payment of the price stipulated, the sheriff shall have it recorded, before sending it to the clerk, as is directed in the foUowng article. Art. G97. — The sheriff shall, within ten days at farthest from the adjudication, deliver or direct to the clerk of the court which issued the writ of fieri facias, the original of the act of sale which he has passed to the purchaser, for the ob- ject sold to him, whether on credit, or for cash, and it shall be the duty of the clerk to record this act hterally in a record to be kept by him for tliat jnirpose, and to indorse on the origi- nal his certificate of the registry. 252 OF THE EXECUTION OF JUDGMENTS, ETC. Stat. lOth February, 1841, p. 17.— § 13. It shall be the duty of said sheriffs to cause to be recorded in the conveyancee office, in the city of New Orleans, all judicial sales of real property and slaves made by them, besides hanng said sales re- corded in the clerk's office, as is now required by law. 3 N. S. 493 ; 3 L. 422 ; 6 L. 627 ; 8 L. 423 ; 3 R. IGO. Art. 698. — This act, thus recorded, and delivered to the purchaser, shall be held as full proof of what it contains, in aU the courts of this State, in the same manner as an act be- fore a notary would be. Stat. 25th March, 1828, p. 154.— § 11. From and after the passing of this act, a copy of any sale or deed of convey- ance, heretofore made and executed, or which may hereafter be made and executed, by any sheriff or any other person ex- ercising and performing the duties of sheriff' in tliis State, or by the city marshal of New Orleans, certified to be a correct copy by the clerk or deputy clerk of the court in whose office such sale or deed of conveyance is or may be recorded, shall' be received as evidence in the same manner and have the same effect in every respect as a duly certified copy of an authentic act ; and if the original of any such sale or deed of conveyance has been lost or mislaid, without the same having been recorded in the office of the parish judge of the parish in which such sale or deed of conveyance has been made and executed, then, a copy of the same, certified as aforesaid, being recorded in such office, shall have the same effect in every respect, from the time the same shall be recorded, as if the original had been recorded : provided, howcMier, that the affidavit of any person interested, in having such sale or deed of conveyance recorded, shall be deemed sufficient to establish, that the same has been lost or mislaid, and authorize the recording of a copy of the same as aforesaid, and that the city marshal of the city of New Orleans shall pass his deeds of conveyance in the same manner as the sheriff's of this State. 9 L. 181; 10 L. 522; 11 L. 490; 3 R. ICO. Art. 699. — The sheriff shall set down in a book kept by OF THE EXECUTION OF JUDGMENTS, ETC. 253 him for the purpose, an exact account of all sales made by him on seizures, and in the account he shall make mention of the sale, the articles sold, the name of the purchaser and of the price due or paid by bim. This book shall be open to the inspection of all persons interested, who shall Avish to exam- ine it. Akt. 700. — The sheriff who has made a seizure and sale, within thirty days at the farthest, from that on which he re- ceived the writ, if he has sold only movable eifects, and within seventy days from the same time, if they be slaves, ships, steamboats, or immovables that he has sold, if so long a time has been necessary to effect a sale, shall deliver or direct to the clerk of the court the original of the writ, on wliich he shall indorse a return, signed by himself, of the manner in which he has executed it, as is directed hereafter. However, the delay for making tliis return does not run, but is suspended, if the judge enjoins the sheriff not to pro- ceed in the sale so long as the injunction continues. 1 N. S. 20G; 8 N. S. 392; 3 L. 4; 6 L. 631 ; 7 L. 176 ; 8 L. 256 ; 11 L. 38 ; 3 R. 355 ; see amendment to art. 642. Art, 701. — But if the sheriff has bcBn able to sell the property seized, before the expiration of the time allowed liim in the preceding article, he shall immediately after the sale, re- turn to the clerk of the court the original writ, and his report as above directed. 3 N. S. 496. Art. 702. — In his return the sheriff shall specify the ob- ject seized and sold, and shall declare whether the sale was made for ready money or on credit, who was the purchaser, at what price, and on what conditions. 1 L. 44. Art. 703. — When the sale has been made on a credit of twelve months, on account of the object sold not having been carried to two-thirds of its appraised value, at the first crying, the sheriff must dispose of the bond with security, which he 254 OF THE CONSEQUENCE OF THE ADJUDICATION. has caused to be executed by the purchaser, in the manner directed in the following paragraph. See 681. § 2. — Of the Consequence of the Adjudication, and of the Payment of the Price. Art. 704. — When the sheriff has sold for ready money, he shall on simple demand, pay to the judgment creditor, or liis attorney, the sum, com^g to him from the price of adjudica- tion, unless the court enjoins him not to make the j^ayment ; and if there remain a surplus, after the suing creditor is paid, as well as the costs, the sheriff shall deliver such surplus to the debtor. 4N.S. 14G; 6L. 138; 10 L. 480; 5R. 272. Art. 705. — If the sale has begn made on a credit, either for the whole or a part, and payable in notes, by virtue of a permission to that effect, granted by the parties, the sheriff shall take from the purchaser separate notes for the portions respectively coming to them, and shall dehver the notes in the same manner as when the sale is made for ready money. N. S. 472; see 681. Art. 706. — But when the property sold is subject to privi- leges or special mortgages in favor of other persons besides the suing creditor, the sheriff shall require from the purchaser, and he shall be comi)elled to dehver to the creditor, whether the sale be made for ready money, or on credit, only the surplus of price, beyond the amount of the privileges or special mortgages, if there be any surplus. 5 R. 272 ; 6 R. 407. Art. 707. — On the other hand, if the suing creditor him- self has a privilege or special mortgage which is preferable or anterior to other mortgages existing on the property sold, the sheriff shall require of the purchaser, the payment of the price, to the amount of the privilege or special mortgage of the seiz- OF THE CONSEQUENCE OF THE ADJUDICATION. 255 ing creditor, and tlie purchaser shall apply the surplus of the price, if there be any, to paying the special inprtgages existing on the property, subsequent to that ofi the suing creditor. 5 R. 272; G R. 407 ; 7 R. 39i ; 8 R. l75'. Art. 708. ^The purcnaser is hour i for nothing beyond the price of liis adjudication, and if, after ] a}ang the suing creditor, as directed in the j)reccding article, more due, to discharge the mortgasics there remains nothing lubsequent ti» that of the suing creditor, the sheriff shall give hlin/a rcleaiCe from these mortgages, 2L. 650; 3 L. 212; G L. 451; 5 R. 347; G R.^16; 8^R. 97, 175; 9R.72; 1 A. 10, 16. Art. 709. — The hypothecary action lies against the pur- chaser of a property seized, which is subject to privileges or mortgages in favor of such creditors as have ^id privileges and mortgages, in the same manner and under the same rules and restrictions as are applicable to a third possessor of a mortgaged property. 3 R. IGO; 3 A. 542. Art. 7K). — If there exist a general mortgage on the pro- perty, resulting either from a legal or judicial mortgage, the purchaser cannot avail himself of this mortg}jige, although it be duly recorded, to retain part of the price for the purpose of pay- ing it, or to refuse paying the jiricc, if that has not been already done, unless there has been a suit commenced against him, in virtue of this general mortgage, to make him quit the property, or unless he has just reason to fear that such a step will be taken in which case he may retain the price, unless the suing credi- tor shall relieve him from tliis disturbance, or give him proper, security against it. SN. S. 221; 5N. S. 48; 5N. S. 81; 5 L. 279; 3 R. 5 ; 4 R. 112; 5 R. 496; 7 R. 398 , 8 R. 175 ; 9 R. 414 ; 1 A. 219 ; 2 A: 384 ; 5 A. 736. Art. 711. — However, if the purchaser has been evicted from the thing adjudged to liim, on the gr*(md that it belongs to another person than the party in whose hands it was taken, he shall in that case, have his recourse for reimbursement against 256 OF THE CONSEQUENCE OF THE ADJUDICATION. the seized debtor and the seizing creditor ; but upon the judg- ment obtained jointly for that purpose, the purchaser shall first take execution against the debtor, and upon the return of such execution, no property found, then he shall be at liberty to take out execution against the creditor. 5 N. S. 81 ; 6 L. tJZI ; 5 R. 247 ; 9 K. 206 ; 10 R. 65 ; 11 R. 522 ; 2 A. 479. Art. 712. — The suing creditor shall be allowed his action against the party in execution, for the reimbursement of what- ever he shall have been thus obliged to pay to the purchaser, upon the return of the execution, no property found belonging to the debtor. Art. 713. — On the other hand, if the purchaser is obliged to quit the property sold to him, on the hypothecary action of the creditor who had a legal or judicial mortgage, on all the property of the party in execution, or if he has paid the amount of such mortgage to avoid being dispossessed, he shall only have recourse to the party in execution, and not to the suing creditor. 3 R. 5; 5 R. 496; 11 R. 522. Art. 714. — The purchaser shall even lose the redress grant- ed by the two preceding articles, if an action is instituted against him, for the purpose of evicting him, and he neglects to give notice of it to the party from whom the property was seized, provided this party possessed the means of repelhng the de- mand, if informed of its having been made. 5 R. 496. Art. 715. — The purchaser against whom a suit is com- menced by a creditor having a legal and judicial mortgage on the property of the debtor sued, may require the creditor to discuss the other property which the debtor has in his posses- sion, and even that which he has alienated since the })urchase, because the creditor who has a general mortgage can only act against the property of which liis debtor has disposed, in the order in which alienations have been made, beginning at the most recent, and ascending to the most ancient. 6 N. S. 103 ; 7 L. 305 ; 6 R. 496 ; 6 R. 51 ; 8 R. 176 ; 10 R. 68. OF THE CONSEQUENCE OF THE ADJUDICATION. 257 Art. 716. — When the sale has been made on twelve months' credit, by reason of the property not having been bid for at two-thirds of the appraisement, if the whole price be coming to the judgment creditor, including interest and costs, as provided for in the preceding paragraph, the sheriff shall re- quire from the purchaser his bond with security, for the bene- fit of the judgment creditor, and shall, if required, deliver the bond to the latter, on his papng all the costs wliicli are due. 3 L. 25; 2^V. 407. Art. 717. — But if there be several judgment creditors, or if a portion of the purchase-money is to be paid over to the debtor, the sheriff shall take from the purchaser as many bonds as may be necessary to deliver to each party his just portion, after deducting costs. 8 R. .5. Art. 718. — If the purchaser has bought a property subject to privileges or special mortgages, the sheriff can only require his bond with security, for the suq:)lus of price, after deducting the amount of these privileges or special mortgages. See 679. Art. 719. — If the purchaser who has given his bond with security, refuse or neglect to pay it when due, together with the interest, the clerk who first issued the order of seizure, shall, on the demand of the judgment creditor, or any other person interested, and on the bond being dchvercd to him, is- sue an execution for the amount^ both against the purchaser and his surety, in the same manner as on -a final judgment ; and this execution shaU be directed to tHe sheriff, to be carried into effect. 4 R. 181 ; 10 R. 154 ; 2 A. 239 ; 4 A. 36 ; see 689 Art. 720. — If the amount of the bond, with interest and costs, be not paid to him on demand, it is the duty of the sheriff, under this execution, to seize immediately the i)roperty of the purchaser, or of the surety, or of both, to the amount of the debt and costs, and to sell them for ready money, after 17 258 OF THE CONSEQUENCE OF THE ADJUDICATION. the advertisements directed above, but with the modifications contained in the following article. Stat. 7t7i April, 1826, p. 174.— § 14. The foUowing words in article seven hundred and twenty, to wit : " after the adver- tisements directed above, but with the modifications contained in the following article," be repealed ; and that the whole of article seven hundred and twenty-one be, and the same is here- by repealed. § 15. It shall be the duty of the clerk who issues the exe- cution according to the provisions of article seven hundred and twenty, to indorse thereon, that the same issued on a twelve months' bond, and that the property to be seized under the same, shall be sold for whatever it will bring in cash, and it shall be the duty of the sheriff to execute the same by seizing the property of the principal or security, or both, and to seU the same for whatever it will bring in cash after making the advertisements required by law. 7 N. S. 194; 4 R. 181 ; 2 A. 239. Art. 721. — Property seized on execution issued on a twelve months' bond, shall not be sold for less than one-half of its appraised value ; the appraisement to be made in the manner prescribed for appraisements on the primary seizure. See ante, 720, and 682 ; where the acts repealing this article will be found. Art. 722. — The creditor, by the mere act of seizure, is in- vested with a privilege on the movable and immovable pro- perty thus seized, which entitles him to a preference over other creditors, unless the debtor has become bankrupt, previous to the seizure. 7 L. 487 ; 3 R. lOG, 219, 276 ; 6 R. 152, 268, .345 ; 8 R. 450; 12 R. 8 ; 3 A. 40, 436. Art. 723. — When several successive seizures are made of the same property, the creditors making them are entitled to a preference over other ordinary creditors, according to the or- der of their seizures. 6 R. 345 ; 3 A. 430. OF IMPRISONMENTS ON JUDGMENT. 259 Ari 724. — Provisional seizures and sequestrations give no privilege to those who have made them, until they have ob- tained a j tdgment and order of execution on the property se- questered or provisionally seized. 3 L. 183 ; 4 L. 224 ; 8 L. 42 ; 6 A. 444 ; see 275, 289. Art. 725. — But the provisional seizure in executory pro- ceedings and in actions in rem, gives the same pri\ilege as the seizure in execution. See 292. Sec. IV. — 0/ Imprisonments on Judgment. Art. 726. — When the sheriff to whom an execution is di- rected, can find no property to seize, he may call upon the party against whom the execution is awarded, to point out to him property wliich he may possess in the parish. 10 R. 136 ; 2 A. 407. Art. 727. — If, on this application, the debtor shows him no property, and the judgment creditor is unable to point out any, the sheriff shall return the execution into court, after in- dorsing on it a report signed by him, in which he shaU declare that he has found no property to seize, notwithstanding the demand made of the parties. 4 L. 301 ; 6 L. 63; 10 R. 136; 2 A. 407. Art. 728. — If, after this report, the judgment creditor dis- covers any property belonging to his debtor, he may obtain a new execution, to be carried into effect in the same manner as the one first issued. Art. 729. — If, on the contrftry, the judgment creditor can find" no property belonging to his debtor, he may demand of the clerk, and it shall be the duty of that officer to deliver to him an order to imprison the body of tlie debtor (a cajoias ad satisfacienduin) until he shall have made a cession of property to his creditors, and have obtained a discharge in conformity to the provisions of an act entitled " an act for the relief of insolvent debtors who are in confinement, &c." 260 OF IMPRISONMENTS ON JUDGMENT. Stat 28t7i March, 1840, p. 131.— § 1. The writ of capias ad satisfaciendum be and the same is hereby abolished. § 3. In all cases of arrest imder a writ of arrest, the con- dition of the bond shall be that the security shall be resjionsi- ble in case the principal foils to pay the .judgment obtained against him, and the plaintiff shall be entitled to judgment against the security on such obligation, on the return of " no property found" on the writ oi fieri facias, on giving ten days notice to such security as provided for by law. § 4. No debtor shall hereafter be held in imprisonment under a writ of arrest, for a term exceeding three months, pro- vided that if the debtor reside within the State of Louisiana, be shall at the expiration of sucli time, if so required by the com- plaining creditor, be ordered by the court to surrender his property to bis creditors ; which order shall be rendered on the petition of such creditor, setting forth the facts and stating under oath that he has reason to believe that such debtor is possessed of property or assets which may be made available to bis creditors ; and such debtor shall not be discharged from imprisonment until he shall have filed in the court from wliich the order of arrest issued a schedule of his affairs and surren- dered liis property to his creditors ; that said schedule shall be made and all the proceedings in such surrender shall be had and conducted in conformity with the provisions of the act entitled " an act for the relief of insolvent debtors in actual custody, and for establishing prison bounds fur the public jail and for other purposes" approved March twenty-fifth, eighteen hundred and eight, and of the act amendatory of and supple- mentary to said act, and the provisions of this section shall apply to debtors now in imprisonment under writs of ariTCst. § 5. Whenever two or more final judgments, each for a sum exceeding three hundred dollars, shall have been rendered against a debtor and execution issued thereon and returned " no property found," and the plaintiffs shall unite in a petition setting forth under oath that they have reason to believe that the defendan', has property, rights or assets of some descrip- OF IMPRISONMENTS ON JUDGMENT. 261 fcion within the State of Louisiana which may be made avail- able to liis creditors, the court shall order such defendant to show cause within ten days wliy he should not pay the amount of such judgment, or in default of such jxaymcnt, why he should not make a surrender of his property to his creditors, and in case said judgments arc not satisfied on or before the return day of said order to show cause, the court may if satisfied with the showing, render judgment on said petition, ordering the defendant to file in court within a reasonable time to be fixed by the court, a schedule of his affjiirs and to surrender his property to his creditors ; which schedule shall in all things be made conformably to the laws now in force relative to the voluntary surrender of property, and all tlie pro- ceedings had in such matter shall be conducted as provided foi by said laws ; provided that if such judgments shall have been rendered by the city court of New Orleans, the judgment creditors shall address their petition either to the parish, dis- trict, or commercial courts. § 6. In case such debtor shall fiiil or refuse to comply with the judgment of the court, ordering surrender within the delay fixed, the court shall on motion order such debtor to prison there to remain until he shall have compUed Avith such judgment. § 7. In case any debtor who shall have surrendered his property under this, or any other act shall be convicted of fraud, he shall be sentenced by the court to sufi'er imprison- ment for a term not exceeding three years. § 8. All debtors now in actual custody, shall be discharged therefrom on the tenth May, eighteen hundred and forty ; pro- \'ided that there be no charge of fraud pending and undecided against them ; provided further that when a debtor has not been convicted of fraud, a charge of fraud may still be made against him. § 9. No citizen of another State shall hereafter be arrested in this State, at the suit of a non-resident creditor, except in cases where it shall be made to appear that the debtor has ab- sconded from his residence. 262 OF IMPRISONMENTS ON JUDGMENT. § 10. If a debtor who has not voluntarily surrendered his property to his creditors or has not been proceeded against for a surrender under the provisions of this act shall, in violation of any existing law, have within the year, given an unjust ad- vantage or preference to any one or more of his creditors, by payment or otherwise, or shall have anticipated the payment, or provided for the payment of a debt not due, the eifect whereof shall be to injure the complaining creditor ; or shaU purchase property for cash, the delivery whereof shall be made to liim, and then shall sell or dispose of the same without pay- ing his vendor, or shall remove the same beyond the reach of such vendor, or shall conceal or cover the same in any man- ner so that his vendor cannot render the same liable, (or shall fail to pay over money received or collected for, or deposited with him for another,) or shall have made a conveyance, or transfer, or mortgages, or pledge of his property to the preju- dice of the complaing creditor ; any of such facts shall be held presumptive evidence of fraud, liable, however, hke all other presumptions, to be disproved. § 11. Any creditor who imder the tenth section of this act may justly believe that he has good cause of complaint, may apply to a competent judge, who may thereupon order the ar- rest and confinement of the party complained of, until such party shall give bond in a sum to be fixed by the judge, with one or more solvent sureties residing in the State, conditioned for such party's appearance to answer the petition and abide the final order of the court thereon. § 12. AU cases which shall originate under the provisions of this act, shall be tried within the shortest delay and in pre- ference to all other cases on the docket ; not, however, deny- ing to either party sufficient time to procure witnesses and evidence upon a proper showing ; and either party may require the same to be tried by jury. § 13. When the causes mentioned in the tenth or eleventh sections of this act shall be tried, if the jury or court, as the case may be, shall be "satisfied that the defendant has been OF IMPRISONMENTS ON JUDGMENT. 2()3 guilty of defrauding the complaining creditor, the court shall condemn the defendant to be imprisoned for a period not ex- ceeding three years ; and if it shall appear that the defendant has only been guilty of conferring an unjust preference or ad- vantage upon another bona fide creditor, whose demand was actually due, sucli defendant may be relieved from the im- prisonment by paying the complaining credited, or repairing the injury or fraud complained of ; and in case the jury- or court, as the case may be, shall find the charges against the debtor unfounded, and that the creditor has proceeded without reasonable ground of suspicion, they may impose such damages against the party complaining as may be reasonable and just. § 14. The creditor who may proceed against his debtor under the provision of the tenth or eleventh sections of this act may in the same action proceed against the party in favor of whom the defendant may have made the sale, conveyance, mortgage, transfer, pledge, assignment or payment complained of and the court may render judgment against such third party in pursuance of the existing laws. § 15. The debtors complained of, shall not by the provisions of this act, be denied or deprived of the benefit of the writ of habeas corpus. Stat. lOfh February, 1841, p. 17.— § 14. Whenever a judg> ment is rendered against a sheriff or other public officer, for money by him or them received, in his or their offiaial capacity, \ and converted to his or then- own use, or not accounted for, and the writ of fieri facias is returned " uo property found," a capias ad satisfaciendum may be taken out arid executed against such defendant or defendants. Stat. lOth February, 1841, p. 18.— § 19. Nothing contained in the act entitled " an act to aboUsh imj)risonment for debt, approved twenty-eighth IMarch, eighteen hundred and forty," shall be construed in any manner to impair the remedy of creditors on bail bonds, executed prior to the passage of said act ; and that for the purpose of fixing the security on said bonds, the writ of capias ad satisfaciendmn shall remain m 264 OF EXECUTORY PROCESS. force ; proAaded, that a debtor arrested under such writ, shall be entitled to be discharged on complying with the provisions of said act. Art. 730. — Tliis order shall be directed to the sheriff of the parish in which the debtor resides, who shall execute it, by confining the body of the debtor, unless he pays the amount of the judgmant, with interest and costs, unless he takes the prison limits. Art. 731 . — If a debtor against whom a warrant of impris- onment has been rendered, shall fly into another parish, to avoid being imprisoned, he may be arrested by the sheriff or any constable bearing the order, in the jiarish where he shall be found, provided that the officer shall cause to be indorsed on the warrant, an authoiization to that effect, by the judge or any justice of the peace of the parish or district in which it is to be executed. CHAPTER VII. Of Executory Process. Art. 732. — Executory process can only be resorted to in the following cases : 1. When the creditor's right arises from an act importing a confession of judgment, and which contains a privilege or mortgage in his favor ; 2. When the creditor demands the execution of a judg- ment which has been rendered by a tribunal different from that witliin whose jurisdiction the execution is sought. The proceeding by provisional seizure, (attachment,) or in rem, resembles in some sort the executory process, but should not be confounded with it, as they are subject to different rules. 4N. S*. 197; 2 L. 547; 3 L. 112; 4 L. 322; 11 L. 163; 12L. 45; 4R. 490; 6 R. 27 ; 10 R. 180. OF EXECUTORY PROCESS. 265 Art. 733. — An act is said to import a confession of judg- ment, in matters of pri^dlcge and mortgage, when it is passed before a notary public, or other officer fulfiUing the same func- tions, in the presence of two witnesses, and the debtor has de- clared or acknowledged the debt for which he gives the privi- lege or mortgage. 12 L. 476; 4 11. 328; 5 R. 21 ; 6 R. 20; 10 R. 180; 3 A. 150; sec 7 M. 239. Art. 734. — When the creditor is in possession of such an act, he may proceed against the debtor or his heirs, by caus- ing the property subject to the privilege or mortgage to be seized and sold, on a simple petition, and without a previous citation of the debtor, in the manner laid down in the tliird paragraph, second section, third chapter of the first part of this code. 6 N. S. 466 ; 7 N. S. 646 ; 4 L. 88 ; 15 L. 431 ; 9 R. 8, 267 ; 1 A. 204 ; 2 A. 145; 3 A. 268; see 2 A. 613; C. C. 1370, 1382, 1387, 1395, 1390, 3361; see 61 to 67, 744. Art. 735. — In obtaining this order of seizure, it shall suf- fice to give three days' notice to the debtor, counting from that on which the notice is given, if he resides on the spot, adding a day for every twenty miles between the place of his residence, and the residence of thel^udge to whom the petition has been presented. 7 N. S. 510; 4L. 308; 6 R. 192, 463; 9 R. 8 ; 2 A. 145; 3 A. 268; see 163. Art. 736. — The judge within whose jurisdiction is situated the property subjected to the privilege or mortgage, has the power to issue this order of seizure and sale, although the debtor resides out of his jurisdiction ; and in this case, the clerk of the court issuing the order shall direct to the sheriff of the parish where the debtor resides, a written notice to be given to liim, and it shall be the duty of the said sherifi" to serve the notice, and return the original with liis report in the same manner as in ordinary citations. 2 A. 145. Art. 737. — If the debtor who has granted the privilege or mortgage is absent, and not represented in the State, the judge. 266 OF EXECUTORY PROCESS. at the request of the plainiiff, shall appoint him an attorney, to whom notice of the demand shall be given, in the manner above directed, and contrarily with whom the seizure and sale shaU be prosecuted. 8 N. S. 584 ; 3 L. 444 ; 7 L. C6 ; see 748, 749. Art. 738. — The debtor, against whom this order of seizure shaU have been rendered, may obtain an injunction to suspend the sale, if before the time of sale, he files in the court issuing the order, his opposition in WTiting, alleging some of the rea- sons contained in the following article, and of which he shall swear to the truth. 2 R. 90 ; 4 R. 490. Art. 739. — The debtor can only arrest the sale of the thing thus seized, by alleging some of the follomng reasons to wit : 1. That he has paid the debt for wliich he is sued ; 2. That it has been remitted by the creditor ; 3. That it has been extinguished by transaction, novation, or in some other legal manner ; 4. That time has been granted to him for paying the debt, although this circumstance be not mentioned in the contract ; 5. That the act containing the privilege or mortgage, is forged ; 6. That it was obtained by fraud, violence, fear, or some other unla\vful means ; 7. That he has a liquidated account to plead in compensa- tion of the debt claimed ; 8. And finally, that the action for the recovery of the debt is barred by prescription. 15 L. 431 ; 3 R. 345 ; 4 R. 27, 95, 490 ; 10 R. 68 ; 5 A. 634. Art. 740. — When the judge grants an injunction, on the allegation under oath, of any of the reasons mentioned in the preceding article, he shall require no surety fi-om the defendant, but he shall pronounce summarily on the merits of his opposi- tion, if the plaintiff requires it, as is explained below. ^ 5 N. S. 642; 8 N. S. 370 ; 4 R. 59 ; 10 R. 68 ; 6 A. 634; see 750. OF EXECUTORY PROCESS. 267 Art. 741. — The plaintiflf against whom the injunction has been obtained, may compel the defendant to prove, in a sum- mary manner, before the judge, the truth of the facts alleged in his opposition. 2 L. 321, 482 ; 4 L. 90 ; 4 R. 59 ; 5 A. 634 ; see 756. Art. 742. — If, on being thus required, the defendant proves that the action on Avhich the seizure has been obtained is 'ex- tinct or prescribed, or that the cause of it is void, or that the debt on which it is founded is paid, remitted, or compensated, the judge shall revoke the order of seizure, and condemn the plaintiff to pay costs. Art. 743. — But if the defendant does not prove the truth of the facts alleged in his opposition, or if it appears that he has paid or can plead in compensation, for only a part of the debt, the judge shall dissolve the injunction he had granted, and the sale of the property shall proceed, either for the whole debt or for a part, as the case may be. 2 A. 763. Art. 744. — The executory process in matters of privilege and mortgage, may be pursued, not only against the debtor, or his heirs, but also against the third possessors of the things subjected to it, according to the forms prescribed in the 3d paragraph, 2d section, 3d chapter of the 1st part of this code. SL. 319; 1 A. 204; sec 61,68. Art. 745. — When the sheriff sells property which he has seized conformably to the provisiofls contained in this chapter, he must cause the same appraisements to be made, and ob- serve the same delays and formalities as are prescribed for the sale of property seized in execution. 8 L. 581 ; 9 R. 8 ; 5 A. 737 ; see 654, 664. Art. 746. — When a creditor has obtained against his debt- or a judgment having the force of res judicata, in a tribunal different from that in which he seeks the execution, whether the judgment was rendered in tliis State or another State of the Union, or in a foreign country, he may, on this ground, pro- 268 OF EXECUTORY PROCESS. • ceed by cxecutoiy process, and cause to be seized and sold the proport}'^ of his debtor, without previous citation, in the same manner as on privileged or mortgaged debts, contained in acts imjiorting confession of judgment, except in the case mention- ed in the following article. 8 L. 475 ; 8 L. 581 ; 10 L. 222, 381 ; 12 L. 44, 46 ; 3 R. 94 ; 4 R. 274 ; 9 R 267 ; 2 A 212 ; 3 A. 253, 693, 698 ; see 747. Art. 747. — If the judgment of which the creditor is in pos- session, shall appear to have been rendered by default, or on attachment, in other tribunals than those of this State, he cannot proceed by the executory process under the pretext that the judgment has acquired the force of res judicata, but must adopt the ordinary moda Stat. 1st June, 1846, p. 166. — So much of articles seven hundred and forty-six and seven hundred and forty-seven of the Code of Practice as authorizes a creditor having obtained a judgment in another State of the Union, or in a foreign country, to proceed by executory process on said judgment be, and the same is hereby repealed. 1 L. 207 ; 8 L. 294 ; 6 R. 29 ; 9 R. 267 ; 2 A. 212 ; 3 A. 693, 698. Art. 748. — The defendant, against whom an order ot seizure has been obtained, by virtue of a judgment, as stated above, may obtain an injunction to stop the sale of the proper- ty seized, if he alleges under oath, in his opposition, that the judgment has not acquired the force of res judicata, because he has appealed from it, or because it is void by the law of the place where it was rendered. 4 R. 274; 2 A. 212 ; see 304. Art. 749. — The defendant may also obtain an injunction, on alleging, under oath, any of the causes which prevent the sale of property mortgaged or otherwise bound, by virtue of an, act importing a confession of judgment. 2 A. 212; see 739. Art. 750. — But in the cases mentioned in the two pre- ceding articles, the judge shall not grant an injunction without OF SUMMARY PROCESS. 269 requiring that the defendant shall give bond to the plaintiff, with good security, to the amount of one-half more than the api^raised value of the property seized, if it consist of slaves or movables, or in such sum as the judge shall fix, if the pro- perty be immovable, conditioned to pay such damages as the plaintiff may suffer, should the injunction be dissolved. 2 A. 212; see 740. Art. 751. — The opposition on which the injunction was granted, shall be pronounced on summarily, as in the case of a public act bearing a privilege or mortgage. ' 4 R. 59 ; 2 A. 212. Art. 752. — Judgments rendered in the different courts of the United States, shall import full proof in the courts of this State, if the copy of them which is offered, be certified by the clerk of the court in Avhich they are rendered, be sealed with its seal, if there be one, and clothed vdih the certificate of the judge, chief justice or magistrate who presides in the court, as the case may be, declaring that the attestation is made in due form. 5 N. S. 129 ; 8 K S. 306, 705 ; 9 L. 530 ; 9 R. 267 ; 2 A. 212. Art. 753. — When the judgments have been rendered in foreign countries, the copies presented shall be considered au- thentic, and admitted in evidence in the tribunals of this State, if they are clothed with all the forms required to prove their authenticity, in the countries where they are pronounced. 2 A. 212. CHAPTER VIII. 0/ Summary Process. Art. 754. — The summary process is to be used in every case where it is expressly prescribed by law. 8 L. 254 ; 3 A. 434. « 270 OF SUMMARY PROCESS. Art. 755. — Besides the cases specially directed by law^ judgment shall be pronounced summarily : 1. On all incidental questions arising in the course of a civil trial. 2. On all motions for new trial, and on declinatory excep- tions ; (pleas to the jurisdiction.) 3. On motions to homologate.thc reports of experts, accounts of auditors, awards of arbitrators, nominations of syndics by creditors, and tableaux of distribution, as well as on the oppo- sitions made to them ; 4. On disputes relative to the privileges of the creditors of a bankrupt, and the order in which they are to be paid. No. 117. Stat. 12th April, 1853.— § 1. In all cases in which the right to office is involved, it shall be the duty of the dis- trict court before which said case is to be tried, to give said case precedence over all others, except criminal cases, and to take up, try and dispose of such case, whenever the same may be ready for trial ; or if said case be an appeal before the supreme court, it shall be the duty of said supreme court to give said case like precedence over all others, except appeals in criminal cases, and to take up, hear and dispose of such cases, whenever the same may be ready for argument, and without regard to the term of the supreme court then being held. § 2. This act shall take effect from and after its passage. 2 L. 349; 3 A. 272. Art. 756. — The cases, which are to be decided in a sum- mary manner, shall not be set down on the ordinary docket of suits, but are decided on days fixed for the purpose, and in a speedy manner, conformably to such special rules as each court may establish on this subject. 3 L. 482 ; 4 R. 59 ; 3 A. 434. Art. 757. — These cases are decided without the interven- tion of a jury. OF THE DUTIES AND POWERS OF SHERIFFS. 271 CHAPTER IX. OF THE VARIOUS OFFICERS OF COURTS OF ORIGINAL JURISDICTION. Art, 758. — The officers of courts of original jurisdiction are sheriffs, clerks, translators, criers and constables. Art. 759. — The rules concerning the appointment of these officers, the duration of their terms of service, and their emolu- ments, are determined by special laws. In this section vre shall treat only of their duties in relation to civil suits prosecuted before tribunals. Sec. I. — Of the duties and powers of sheriffs, in civil matters. Art. 760. — It is the duty of the sheriff of each parish to execute the judgments and orders of the supreme, district, parish and probate courts, directed to him agreeably to law, 5 K S. 125; 3 L, 312; see 1047. Art, 761. — Eegularly, sheriffs can only exercise their duties in the parish for wliich they arc appointed ; but they may arrest a debtor taking refuge in another parish, by obtaining an au- thorization to that effect, on the back of the order of arrest, from any judge or justice of the peace of the parish to which he may have fled. See 731. Art. 762. — In executing the orders and judgments with which they are charged, sheriffs may enter on the lands and into the house of a debtor, break the doors, remove the furniture if the execution cannot be effected by other means, may remove obstructions which any person may have placed in the high road ; in short, they may do all such acts as are necessary in the exe- ' cution of the orders or judgments with wliich they are charged ; and if resistance be offered, they may require assistance from the neighbors or persons passing by. 6 R. 100 ; see 632. 272 OF THE DUTIES AND POWERS OF SHERIFFS. Art. 763. — But the sheriff cannot execute the orders oi judgments with which he may be charged, in civil matters, on the days and hours excepted by the preceding provisions of this code, nor arrest a debtor going to or returning from.a mus- ter of the miUtia. Art. 7G4. — Every sherifif may, with the approbation of the parish court in which he exercises his duties, name as many deputies as he thinks fit, but he remains responsible for them, and they must, before entering on their duties, take an oath before the parish judge, to perform faithfully the duties re- quired by law from the sheriffs by whom they are named. This appointment and oath shall be entered on the records of the parish court. Art. 765. — Sheiiffs may notify and execute, by means of constables, the different orders, citations, summonses and judg- ments which they are directed to give notice of, and to cany into execution, they being responsible however, for the manner in which the constables may perform this duty. Art. 766. — It is the duty of the sheriff to pay all sums of money received or collected by him, by virtue of an order or judgment of a court, to the person to whom they belong, ox to his general or special attorney, within three days after a de- mand. 6 R. 202 ; 1 A. 144. Art. 767. — If the sheriff refuse or neglect to pay the money thus demanded, the party to whom it is due may move the court which rendered the order or judgment, which motion shall be served on the sheriff, and shall be answered by him within ten days, and if the court find that the sheriff is in de- fault, it shall condemn him to pay to the claimant, as well the Bum due as twenty per cent, damages per annum, reckoning from the time when the money ought to have been paid. Stat. 10th February, 1841, p. 14.— § 6. It shall be the duty of said sheriffs to pay over to the parties entitled to the same all moneys, bonds or obligations wliich they hold in their official capacity, on the first demand made for that purpose by OF THE DUTIES AND POWERS OF SHERIFFS. 273 said parties, their attorneys, or agents ; and in case any one of said sheriffs should neglect or refuse to pay over the funds in their hands on said demand, the party aggrieved may pro- ceed against said sheriff, by motion, of which twenty-four hours' notice shall he given, and if it appear to the satisfaction of the* court that the sheriff has neglected or refused to pay over any funds, or deliver any bonds or obligations in his possession to the party entitled to the same, without any legal cause or rea- sonable excuse, the judgment of the court on said case shall be certified to the governor of the State of Louisiana, wdiose duty it shall be forthwith to remove such sheriff' from office, and to appoint another sheriff in his place : and if said appointment should take place during the recess of the legislature, the com- mission of such sheriff shall cxi)ire in the same manner as other appointments by the governor during the recess. Stat. lOfh Februarij, 1841, p. 17.— § 14. Whenever a judgment is rendered against a sheriff or other public officer, for money by him or them received, in his or their official ca- pacity, and converted to his or their own use, or not accounted for, and the writ oi Jieri facias is returned "no jiroperty found," a cajyias ad satisfaciendum may be taken out and ex- ecuted against such defendant or defendants. 11 L. 4G3; 5R. 202. Art, 768. — The sheriff is bound to recover and account for all fines which are imposed by the different courts of his parish, and shall pay the amount every six months ; those which are for the benefit of the State, into the hands of the State treasurer, and those which accrue to the parish, into the hands of the treasurer of such parish. Art. 769. — The sheriff who shall neglect to make pay- ment of the fines recovered by him, at the times fixed by the preceding article, shaU be condemned to pay the amount, on motion in the name of the State by the treasurer into whose hands the payment should have been made, before the court of the district or parish where the sheriff* resides. Art. 770. — When the sheriff causes property to be ap- 18 274 OF THE DUTIES AND POWERo OF CLERKS. praised which has been seized or distrained by him, if there be no jndge or justice of the peace on the sj)ot to administer the oatli to the appraisers, he may administer it liimsclf, hut he shall receive no reward on tliis account, nor shall he adminis- ter an oath in any other case than the one now mentioned, or in such others as the law shall make such provision for. Stat. 5th 3Iarch, 1847, p. 55. — § 3. Article seven Imndred and seventy of the Code of Practice shall read as follows : '' When the sheriff causes proi^erty to be appraised, which has been seized or distrained by him, said sheriff, or any judge or justice of the peace, may administer the oath to the ap- praisers : but the said sheriff' shall receive no fee or compensa- tion for the administration of said oath ; nor shall he administer an oath in any other case than the one now mentioned, or in Buch others as the law shall make provision for." Art. 771. — The deputy sheriff* may rej)resent the sheriff" in all the duties confided by law to the latter ; but this power ceases in all cases where the duties of the sheriff are fulfilled by the coroner, as directed in the next article. Art. 772. — The coroner is appointed to peifonn the du- ties of the sheriff, where that office is vacant, either by the death, resignation, or removal of the incumbent, until a suc- cessor has been appointed. The coroner also discharges the duties of the sheriff, whenever the latter is interestedjin a cause. 15 L. 289; 1 A, 317. Art. 773. — The provisions relative to the appointment of coroners and the duties exclusively confided to them, are pre- scribed by special laws. Sec. II. — Of the duties and looioers of clerks. Stat. 29th May, 1846, p. QQ.—% 1. The clerks of the several district courts shall have power to issue writs of aiTcst, attach- ment, sequestration, and provisional seizure ; to issue com- missions to take testimony in and out of the State, to fix tho OF THE DUTIES AND POWERS OF CLERKS. 275 return day thereof, and to appoint commissioncFs to execute the same ; to grant orders for affixing seals and taking inven- tories, anfl to order the probate and execution of wills ; to confirm testamentary executors, to appoint and confirm tutors and under tutors, to appoint dative testamentary executors, administrators, curatoi's of vacant successions, and absent heirs and attorney of absent heirs, after giving notice in the cases and manner required by law ; to grant marriage licenses, to call family meetings and homologate the proceedings of the same, provided that, if opposition be made to such homologa- tion, the contestation on the same shall be determined by the district court ; to grant orders for the sale of property of suc- cessions ; to issue citations to warrantors, provided that the judge may disregard the same should said judge be of opinion that said citation ought not to have been allowed. § 2. Whenever it shall be found by the clerk that a suc- cession is so small, or is so much in debt that no person will apply for, or will be willing to accept the curatorship, or when a vacancy exists in such appointment which no one demands the nomination to, the said clerk shall assume the administra- tion of such succession. He shall cause the efiects of said succession to be sold, and the proceeds to be applied to the payment of its debts ; the whole to be done in as summaiy a manner as possible, to diminish costs, provided this section is not to apply to successions amounting to more than five hun- dred dollars. § 3. It shall be the duty of the several clerks to send, at the end of every year, a list certified under their hands and seals, of all the vacant estates or those belonging to absent heirs wliich were opened in their respective parishes during the course of said year, with mention of the name and surname of the deceased, the time of his or her death, the name and sur- name of the curators or executors of said estate, to the treasurer of the State. § 4. Whenever it shall occur that no one will take upon himself the tutorship of a minor, and comply with existing laws 276 OF THE DUTIES AND POWERS OF CLERKS. ' by giviug the. required security for the tutorship of minors, it shall be the duty of the clerk to summon a family meeting, and with its advice to nominate one discreet and responsible person in that parish to be tutor, and another to be under tutor, who shall in all respects comj)ly with existing laws in relation to tutors, except that of giving security for liis admin- istration. § 5. All orders which, by the provisions of this act, the several clerks are empowered to grant may be opposed by any person in interest, to the same extent as such orders arc now subject to opposition, and in case of such opposition said orders shall not be executed unless the district court shall sustain the same. § 6. All appointments which, by the provisions of this act, the several clerks are empowered to make, may be opposed by any person in interest to the same extent as such apjiointments are now subject to opposition, and, in case of such opposition, the district court shall determine on the same, and if any such opposition be made, said appointment shall be provisional, and the person so provisionally ajipointed shall have no power, except to collect and preserve the accounts and property of the estate, with which by such appointment said person may be intrusted, provided, that all persons so provisionally ap- pointed shall qualify in manner and form as requu-ed by law. § 7. In all cases of opposition to any order granted, ap- pointments made, or homologation decreed, or motion tiled in the clerk's ofiice, it shall be the duty of the clerk to place said opposition on the docket of the district court, and to issue a copy of said motion to be served on the opposite party. § 8. The clerks of said courts shall have power to grant orders of injunction during the absence of the judge of the district from the parish ; Provided, that whenever such order is granted by a clerk enjoining the execution of any judgment of a court of tliis State for a specific sum of money, the party obtaining the same, shall be required to give bond conditioned as the law directs, in a sum of one-half over the amount en- joined. OF THE DUTIES AND POWERS OF CLERKS. 277 § 9. The said clerks shall have power to order all executors, tutors, curators, administrators, and syndics to file accounts, within ten days after such order may have been made, allowing one day for every ten miles between the residence of the party 80 ordered and the court-house. § 10. It shall be the duty of the said clerks to make, and place on the docket of the district court, at each term thereof, a list of all such executors, administrators, tutors, curators, and syndics as shall have failed to file accounts within the twelve months next preceding. § 11. In every year, each of the sheriffs of this State, ex- cept those within the first judicial district, jointly, witll not less than two freeholders of his parish, shall fonn, agreeably to their particular knowledge, a list of the inhabitants of their respective parishes, that in their judgments they may consider capable of fulfilling the duties of jurors in the district courts : Provided, that the number of inhabitants inscribed on said list shall not exceed two hundred, and consists of at least one hun- dred, if so many competent jurors are found in said parish ; which list, duly signed and certified by said sherift" and free- holders, shall, by the sheritf, be transmitted to the clerks of the district courts of their respective parishes : And provided also, that the sheriif and freeholders shall, as far as possible, avoid placing on the list the names of those individuals wlio have ser^'cd as jurors according to the previous jury list. It shall be the duty of the clerks of the said district courts, to write on the ballots the names of the persons composing said list, and put the said ballots in a box shut with two locks, one of the keys of which shall be kept by the clerks of the district court, and the other by, the sheriff. At least twenty days before each jury session of the district , court, tlie clerk of the said court, in tlie presence of the slieriiF and two freeholders of the parish, shall draw from said box not less than forty-eight ballots, and the same clerk shall deliver to the shcrifl* of the parish a certified list of the names of the persons so drawn, and it shall be the duty of said sherifi" to 278 OF THE DUTIES AND POWERS OF CLERKS. summon said persons to serve as grand and petit jurors at the ensuing terra of said district court : Pro^'ided, that in case of absence, death, or sickness of tlic sheriff, the duties required of liim by this act may be performed by any duly commissioaed justice of the peace of the parish. In any case when a jury/ selected imder the pro\asions of this act, shall be set aside by the court on account of any de- fect or informality whatsoever, it shall be the duty of the clerk of the district court to give immediate notice thereof to the sheriff, or in case of his death, sickness, or absence, to some justice of the peace, whose duty it shall be to draw a new set of juj-ors instanter, under the provisions and formalities hereto- fore required, which said jurors' shall be summoned to appear instanter, and serve as jurors, the twenty days required being in such case waived, and the said court shall not be adjourned, except from day to day, till such jury can be convened : Pro- vided, that such session be not continued so as to interfere with any regular session of said court in another parish. All or any objections which might or could be made, on account of any defect or informality wliich may have occurred, either in the fc)rmation, dra\ving, or summoning of said juries under the provisions of this act, or any other defect whatso- ever, in the construction of said juries, shall be made on the first day of the terms of said district courts, and not after- wards, § 12. The said clerks shall issue all orders, ^vrits, and pro- cesses of every kind emanating from their respective courts, and shall have authority to administer oaths. § 13. The said clerks shall receive as compensation for the orders which, by tliis act, they are empowered to grant, and for all writs, notices, or processes issued on said orders, they shall receive the same compensation as is now allowed by law to the clerks of probate courts, or judges thereof, or such com- pensation as may hereafter be allowed by law. § 14. The clerk shall record all proceedings in successions in the same manner as was required of parish judges, and he OF THE DUTIES AND POWERS OF CLERKS. 279 shall receive therefor such fees as are now or may hereafter be allowed by law. § 15. The several clerks of the district courts in this State, before they enter upon the discharge of their offices, shall give bond, with at least two securities, for the faithful discharge of their official duties. Said bond shall be made to the governor, and may be sued upon by any party injured ; the bond and securities thereon shall be approved by the district attorney of the judicial district in which said bond is given ; and it shall be deposited in the office of the sheriiF of the parish, who shall transmit a certified copy of the same to the State treasurer ; and a copy of the bond so transmitted, duly authenticated by said treasurer, shall be admissible as evidence. § 16. The amount of the bonds of the several clerks shall be determined by the parochial authorities of the parishes re- spectively ; and said bond shall be renewed every two years, and in case of failure of the clerk so to renew liis bond, he shall be removed from office by the district judge on due proof of the fiict being made by the district attorney, whose duty it shall be to prosecute in sucli cases. § 17. Whenever any clerk of any district court now exist- ing, or hereafter to be organized within this State, shall be guilty of any malfeasance in the discharge of the duties of liis office, or of any breach of good beha\dor, it shall be lawful for the person or persons Aj'ho shall be aggrieved thereby, or any other persons, to complain to the judge of the said court, by petition, setting forth the nature of the charge against the said clerk, and the facts ujion which the same is founded. It shall be the duty of the district attorney of said district court, upon the presentation of any such petition, to cite said clerk to ap- pear and answer to the same, on a day to be by the said court assigned, and named in the citation, and upon the appearance of such clerk, to proceed to hear and determine the matters alleged against him in said petition. If upon hearing all tlio proofs to be exhibited by the parties, the said judge shall be of opinion that the said clerk has been guilty of any act which, ) 280 OF THE DUTIES AND POWERS OF CLERKS. in the opinion of said court, ought to disquahfy him from hold- ing his said office of clerk, that then, and in that case, tho court shall proceed to pronounce judgment to that effect, and the said clerk shall be accordingly removed from office. In such proceedings, it shall be the duty of a person select- ed by the sheriff for the purpose, to write down all the testi- mony that may be presented by the parties, in order that a copy thereof, and of all other papers connected with sueli ac- tion, may be sent to the sujireme court, in case an appeal shall be obtained. In no event shall the clerk be suspended in the exercise of his functions except in proceedings relative to his own trial, but should judgment of removal be pronounc- ed against him, and he should fail to demand an appeal in ten days from the date such judgment was rendered, the judge shall declare the office vacant and shall fill the same by appoint- ment. If any clerk as aforesaid, shall fail to appear and answer to any citation from the said district attorney, as aforesaid, and proof being made of the service thereof, or shall not show cause to the satisfaction of the said judge why he does not ap- pear, that it shall be the duty of the said judge to pass judg- ment of removal from office against the said clerk, and it shall be the duty of the judge of the court of which the delinquent was clerk to proceed to the appointment of another clerk as aforesaid. § 18. Each of said clerks shall have power to appoint as many deputies as he may judge necessary, to be approved by the district judge, and sworn in by him in open court, or in chambers : that the clerk shall be responsible for the official conduct of said deputies, and said deputies shall have all the powers now vested by law in the deputy clerks. § 19. The foregoing provisions of this act shall not apply to the clerks of the district court in and for the parish of Jef- ferson, but that said clerk shall exercise the same powers and perform the same duties as are required by law from the clerka of courts in the parish of Orleans, and shall furnish the sama security and receive tlie same compensation as said clerks, pro- OF THE DUTIES AND TOWERS OF CLERKS. 281 vicled that no salary shall be paid him, and that the election for said clerk shall take place on the third Monday in June next. § 20. The said clerks shall enter into tlicir several offices so soon as they shall have received theu' several commissions from the governor, given bond and taken the oath prescribed by the constitution. § 21. This act shall go into operation on the third Monday of June of the present year. Stat. I6th March, 1848, p. 107.— The eighth section of the act to provide for carrying into effect the judiciary system, approved the twenty-ninth of May, eighteen Inmdred and forty-six, be amended so that the same shall read as follows, to wit : § 2. The clerks of said courts shall have power to grant orders of injunction during the absence of the judge of the district from the parish ; Provided, that whenever such order is granted by a clerk enjoining the execution of any judgment of a court of this State for a specific sum of money, the party obtaining the same shall be required to give bond, conditioned as the law directs, in a sum of one-half over the amoimt en- joined ; and provided, furtlier, that in all cases in which the district judge is interested, though present in the parish in which the injunction is sought to be obtained, the clerk shall have power to issue said injunction, and it shall be sufficient for the party applying for the injunction, in addition to the other requisites prescribed by law, to swear that he verily be- lieves that the district judge is interested in the cause ; but this section shall not apply to the parish of Orleans or Jef- ferson. Stat. 16th March, 1850, p. 99.— § 1. The first and eighth sections of the act, entitled "An act to provide for car- rying into effect the judiciary system of this State," approved May twenty-ninth, eighteen hundred and forty-six, and the act entitled " An act to amend an act, entitled an act for car- rjang into efiect the judiciary system, and giving clerks the right to grant injunctions in certain cases," approved March 282 OF THE DUTIES AND POWERS OF CLERKS, sixteenth, eighteen hundred and forty-eight, be and the same are hereby rejiealed. § 2. The clerks of tlie several district courts shall have pow- er to issue writs of arrest, attachments, sequestrations and provi- sional seizure ; to issue commissions to take testimony, in and out of the State ; to fix the return day thereof, and to appoint commissionei-s to execute the same ; to grant orders for affix- ing seals and taking inventories, and to order the probate and execution of wills ; to confirm testamentary executors ; to appoint and confirm tutors and under-tutors ; to appoint da- tive testamentary executors, administrators, curators of vacant successions and absent heirs, and attorney of absent heirs, af- ter giving notice in the cases and manner required by law ; to grant marriage licenses ; to call family meetings, and ho- mologate the proceedings of the same : Provided, that, if op- position be made to such homologation the contestation on the same shall be determined by the district court ; to grant orders for the sale of the property of successions ; to issue ci- tations to warrantors ; provided that the judge may disregard the same, should said judge be of opinion that said citation ought not to have been allowed ; to grant orders of injunction during the absence of the judge of the district from the par- ish ; provided, that, whenever such order is granted by a clerk, enjoining the execution of any judgment of a court of this State, for a specific sum of money, the party obtaining the same shall be required to give bond, conditioned as the law directs, in a sum of one half over the amount enjoined ; and provided further, that in all cases in wliich the district judge is interested, though present in the parish in which the in- junction is sought to be obtained, the clerk shall have power to issue said injunction ; and it shall be sufficient for the party applying for the injunction, in addition to the other re- quisites prescribed by law, to swear that he verily believes that the district judge is interested in the cause ; but this section shall not apply to the parishes of Orleans or Jefflu'son. § 3. The said clerk, shall have power to homologate the OF THE DUTIES AND POWERS OF CLERKS. ' 283 proceedings of meetings of the creditors of insolvent succes- sions ; to issue orders for the advertisement of the fihng of tablccaux of tutors, executors, administrators, curators of va- cant estates and absent heirs, syndics of insolvent successions, and of insolvent debtors, and to homologate the same : Pro- vided, that if there be opposition made to such homologation, the contestation on the same shall be determined by the judge of the district court ; provided, also, that the foregoing pro-- visions of this act do not apply to the clerks of the courts of the parishes of Orleans and Jefferson. § 4. In all cases where the clerks of the several district courts of the State, (the parishes of Orleans and Jefferson ex- cepted,) have anterior to the passage of this act, performed any of the functions wliicli they are especially empowered to do by the provisions of this act, their said acts shall be conclu- sive upon the rights of all persons and parties therein con- cerned : Provided, thai all persons and parties who are dissat- isfied ^fitll the exercise of said functions by the clerks of said courts, shall have the right of making opposition thereto within forty days from the promulgation of this act, Stat. 18th 3Iaych, 1852, p. 206.— § 1. The clerks of the district courts throughout the State, (the parishes of Orleans and Jefferson excepted,) shall have power to order the adver- tisements of the filing of tableaux of distribution and accounts of tutors, administrators, curators, executors and syndics, and to homologate the same after the advertisement required by law ; Provided, that, if opposition be made to such tableaux or accounts, the same shall be referred for decision to the dis- trict court, and all further proceedings thereon by the clerk shall be suspended. § 2. No tutor's account, or account of any administrator, curator, executor or syndic, presented in a solvent succession, stiaU be approved by the clerk, until the heirs or their representa- tives, or the parties interested therein, have been legally cited in the manner required by law to bring parties into court and the legal delays for ^answering or opposing such account elapsed. 284 OF THE DUTIES AND POWERS OF CLERKS, § 3. The first Saturday of every inontli shall be fixed as the only day on which the clerks shall have the right to homo- logate tableaux and accounts. § 4. The clerks of the district courts shall have power to receive, file and record all mandates and decrees rendered by the supreme court in causes taken up by apjical from their respective courts, and to issue all legal process under said man- dates and decrees of the supreme court. § 5. Upon the death or insolvency of either party to a cause, it shall be lawful for clerks of courts, and it is hereby made their duty, on the application of any party interested, to file any pleadings required for the purpose of making the representatives of the deceased or insolvent party, parties to the suit, and to issue the necessary process for said j)inpose. No. 329. Stat. SOfh April, 1853.— § 1. The clerks of the several district courts, out of the parish of Orleans, shall have power to issue writs of arrests, attachment, sequestration and provisional seiziire, and to grant orders for setting se(][uestra- tion aside and fixing the amount of bonds therefor. They shall have the power to administer oaths in all cases, to issue commissions, to take the testimony of witnesses residing out of the parish, and in the parish where it is made to appear that the witness is about to depart, or for any other cause, the party desiring his testimony may have cause to apprehend, that he will othervidse be deprived of it, and to appoint commis- sioners to execute the same, and to fix the return day thereof. To gi'ant orders for affixing seals, taking inventories, and mak- ing partitions, and to order the execution of wills ; to confirm testamentary executors, to confirm and appoint dative testa- mentary executors, administrators, curators of vacant succes- sions, and absent heirs, and attorney of absent heirs, after giving the notices as required by law, to grant marriage licen- ses, to order family meetings, and homologate their jiroceed- ings, if no opposition is made thereto, to grant orders for the sale of succession property, to order calls in waiTanty and to OF THE DUTIES AND POWERS OF CLERKS. 285 issue citations thereon, to grant orders of injunction in the absence of the judge from the parish, or when the judge is in- terested, and when, for a specific sum of money, shall require bonds in an amount one-half over and above the specific sum so enjoined. But when the sale of specific property is enjoined by the defendant or any third party, the bond shall be for an amount one-half over and above the estimated value thereof, as certified to by the officer making the seizure ; said injunc- tions may be issued by the clerk, on the oath of the party or his attorney, that the judge is absent from the parish or for some good reason, and being interested, said judge is unable to give the order; § 2. Said clerk shall have power to homologate the pro- ceedings of meetings of creditors of insolvent successions, and take the necessary bond required of syndics, to issue orders for the advertisement of the filing of tableaux of tutors, execu- tors, administrators, curators of vacant estates, and absent heirs, syndics (tf insolvent successions, and insolvent debtors, and to homologate the same. § 3. The first Saturday in every month shall be fixed as the only day on which the clerks shall have the right to homo- logate accounts and tableaux of distribution ; and no account or tableaux, shall be approved or homologated until the heirs or their legal representatives, or the parties interested therein, who reside within the parish in which the court having juris- diction of the matter is held, shall have been legally cited in the manner required by law, to bring parties into court, and the legal delay for considering or opposing such accounts shall have elapsed. § 4. No account as aforesaid shall be homologated and ap- proved Until the heirs or their representatives, or the parties interested therein, who reside out of the parish in which the court, having jurisdiction of the matter, is held, shall have been notified for at least thirty days, which notice shall be given by advertisement in the same manner, as an advertise- ment of sheriff sales are made in said parish, and shall have 286 OF THE DUTIES AND POWERS OF CLERKS. the same effect as a citation regularly issued and served ; nor until the legal delay for considering and opposing such accounts shall have elapsed : Provided, that neither advertisement nor citation shall he necessiiiy in any case when the heirs or their legal representatives, or other persons interested, consent to the homologation of said accounts. § 5. Whenever opposition is made and filed to the homo- logation of any such accounts or tableaux within the time specified in the notices, and at any time before the same shall have been hojnologated, the said opposition shall be referred for decision to the courts, and all further proceedings therein by the clerk shall be suspended. § 6. It shall be the duty of the several clerks to keep con- stantly posted up in their office a cojiy of all the successions, wherein tableaux and accounts havo been filed, and are there pending for homologation. § 7. The clerks may appoint deputies Avho shall take the oath required by the constitution and exercise the powers now granted to the deputy clerks. Art. 774. — Clerks shall issue all orders or writs in the name of the State of Louisiana and of the court from which they issue, and shall seal them with the seal of such court, and sign them with their own names, designating their quaUty as clerks. Const. 1845, art. 79. Const. 1852, art. 76. Art. 775. — Clerks shall keep at least two record books. 4 R. 52 ; SCO 1045. Art. 776. — In one they shall set down in order the titles of aU causes depending before the court, mentioning the date of the fihng of the petitions or answers, and the names of the counsel employed by the parties. 4 R. 52. Art. 777. — In the other they shall set down all the orders and judgments rendered, as well as the motions made by the parties or their counsel. » 4 R. 52. OF TRANSLATORS, CRIERS, AND CONSTABLES. 287 Art, 778. — Both these records shall be open to the ins^jec- tion of all parties interested, or their counsel, and shall be accompanied by an alphabet containing the titles of the causes with the number of the pages on which are to be found the motions, orders, or judgments relating to them. Art. 779. — Clerks shall preserve with the greatest care the pleadings, documents, and papers confided to them, as well as the minutes of the court, and they shall be provided with closets or desks in which these papers may be kept safely and under key. Art. 780. — Clerks shall have power, during the absence of the judge, to issue orders of arrest, sequestration, attachment, and provisional seizure, in the cases provided by law. They may also issue commissions to examine witnesses. Art. 781. — But when such orders of arrest, sequestration, attachment, and provisional seizure, issued by the clerk, have been obtained in an irregular manner, or on a false or erroneous allegation of facts, the judges alone shall have the power of re- scinding them. Art. 782. — Clerks may appoint deputies, for whom they shall be responsible, and who shall take an oath before the court, to fulfil well and faithfully all the duties intrusted to the clerk whom they represent, and their appointment shall be mentioned in the records. 15 L. 33 ; 2 A. 247. Art. 783. — All the duties imposed by law on sheriffs and clerks shall continue in every thing not contrary to, or incom- patible with, the provisions contained in the jDresent chapter. Sec. III. — 'Of Translators, Criers, and Constables. Art. 784. — It is the duty of the translators and criers appointed by the different courts, to attend jJunctually, for the fulfilment of the duties imposed upon them, who shall hold their offices for one year. 288 OF ORDERS WHICH COURTS OF JUSTICE, ETC. Art. 785. — If there be no translator appointed, or he should be absent, the court may appoint one, if necessaiy, at the request of one of the parties, who shall take an oath to execute well and faithfully to the best of his knowledge, such translations as he is charged with, unless the attorneys for the parties agree that they themselves, or one of them shall do it. CHAPTER X. Of Orders which Courts of Justice may render in certain Cases, Art. 786. — Besides the powers which are granted to courts of justice, according to the provisions above mentioned, there are others conferred on them in certain cases, which are exer- cised in a summary manner, without going through the ordinary forms of action. It is of these powers and the manner of their exercise that we shall treat in the present chai)tcr. Art. 787. — The first of these powers is that of issuing the writ of habeas corpus, that privilege granted to all free jiersons of being released, from illegal arrest or detention. Art. 788. — The other extraordinary powers belonging to courts of justice, may be divided into two species, wliich are enumerated in the two following articles. Art. 789. — Courts of justice may, in certain cases hereaf- ter provided, direct orders to individuals or corporations to com- pel them to perform certain duties prescribed for them by the law, or to prevent them from usurping powers which do not belong to them. 1 A. 162; see 2 L. 89. Art. 790. — Courts of appeal have the right to issue orders to inferior judges : 1. To compel them to render justice to parties, or to per- form certain duties belonging to their office, or to prevent OF THE WRIT OF HABEAS CORPUS. 289 them from usurping an authority which does not belong to them ; 2. To obHge them to send up a copy of their proceedings, that the vaHdity of them may be examined, when they are ac- cused of having violated any of the forms of law. Sec. I. — Of ilie writ of Habeas Corpus. Art. 791. — The habeas corpws is an order in writing, issued in the name of the State, by a judge of competent jurisdiction, and directed to a person who has another in his custody, or detains him in confinement, commanding him to bring before the judge the person thus detained, at the time and place ap- pointed, and to state the reasons for which he thus keeps him imprisoned and deprived of liberty. 6 L. 436. Art. 792. — The district judges and the judge of the crimi- nal court of New Orleans, and the courts established or to be established, whose jurisdiction exceeds three hundred dollars, shall alone have the right of granting writs of habeas corpus within the hmits of their respective jurisdictions, except in the case provided by the following article. Const. 1845, art. 62. Const. 1852, art. 61, 69. Stat. 16th 3farch, 1828, p. 156, 416.— Without altering in any manner the powers by which the judge of tlie parish of Orleans is authorized by the Code of Practice to issue writs of habeas corpus and other extraordinary process, it shall be law- ful for the other parish judges of this State to issue writs of mandamus, certiorari and prohibition, directed to the justices of the peace under their jurisdiction to compel the said justices to comply with the duties which are imposed on them by law, or to prevent them from exceeding the limits of their jurisdic- tion ; and that the said jiarish judges may issue writs of habeag corpus in all cases not capital. 2 M. 86, 277, 279 ; 3 I^L 42 ; 6 M. 569; 6 L. 427 ; 8C0 1041. 19 290 OF THE WRIT OF HABEAS CORPUS. Art. 793. — When the judge of any district is absent, in- terested, or prevented by any cause whatever, from acting in that quahty, and there is no criminal court, or court of con- current jurisdiction in the district, the habeas corpus may be issued by any judge of competent jurisdiction, in one of the adjoining districts. But in this case, the absence, interest or disability of the judge of the district vs^here the imprisonment exists, shall be made to appear by the oath of the petitioner, or other sufficient proof. Art. 794. — The habeas corpus may be obtained on a peti- tion being addressed to a judge who has the power of granting it. It must be signed by the party, or some other person in his name, mentioning, in the latter case, the name of the party confined. Art. 795. — This petition shall state in substance, that the party applying is imprisoned or deprived of hberty, and by whom, if the person's name be known, or if it be not known, by designating or describing liis person, as far as possible. Art. 796. — If the imprisonment or detention exists, by vir- tue or under pretext of a judicial order, the copy of such order shall be annexed to the petition, or the petitioner shall allege that a copy of it has been demanded and refused. Art. 797. — If the imprisonment or detention took place by virtue of a judicial order, regular in its form, but illegally ob- tained or executed, the petition shall mention in what the ille- gality consists. Art. 798. — If the imprisonment or detention has not been made by virtue of a judicial order, the petitioner need only allege that he is illegally imprisoned or confined. Art. 799. — The petition shall conclude by praying for a habeas cprpus ; the petitioner shall swear that it contains the truth to the best of his behef. Art. 800. — The judge to whom this petition is presented, if he has the power of issuing a habeas corpus, shall immedi- ately grant one to the petitioner, unless it appear by the peti- tion itself, or by the documents annexed to it, that the party ?-annot be set at liberty, nor admitted to bail. OF THE WRIT OF HABEAS CORPUS. 291 Art. 801.— The habeas corpus may be granted in court, with the signature of the clerk and the seal of the court, or out of court under the signature alone of the judge, to whom the petition is presented. Art. 802.— The habeas corpus may be served by any free wliite male person, capable of giving evidence. Art. 803.— The person to whom the writ is delivered, may serve it by delivering it to the person to whom it is addressed, or who keeps the party in confinement ; and if that person re- fuses to receive the ^vrit, he who is charged to serve it shaU inform him of its contents. But if the person to whom the habeas corpus is addressed, conceals himself or refuses admittance to the person charged to serve it on him, the latter shall affix the order on the cx°te- nor of the place where the person resides, or in which the pe- titioner is confined. Art. 804.— The service of the habeas corpus shaU be prov- ed by the affidavit of the person directed to serve it. Art. 805.— It is the duty of the person on whom a habeas corpus IS served, whether it be directed to him or not, to obey and return the order without delay, to the court which issu- ed it. Art. 806.— Obedience to the habeas corpus is manifested on the part of the person to whom it is directed, by his pro- ducing the person to be set at liberty, if that person be in his custody ; and by making on the back of the order or separate- ly, his answer in writing, in the form and manner hereafter directed. Art. 807.— The person on whom a habeas corpus is served shall declare positively in his answer : ' 1. Whether he has or has not in his power or custody, the person to be set at Hberty, or whether that person is confined by him. ^ 2. By what authority or for what cause he arrested or de- tained him. Art. 808.— If the person on whom a habeas corpus is 292 OF THE WRIT OF HABEAS CORPUS. served had held the petitioner in confinement, or had detained him within three days preceding the service, or had transfer- red the custody to anotlier, he shall state particularly in his 'f answer to whom, at what time, for what cause, and by what authority, he made the transfer. Art. 809. — If the prisoner be kept in custody by virtue of a judicial order, the original of that order must be annexed to the answer. Art. 810. — This answer must be signed and sworn to by the person making it. Art. 811. — Whenever a habeas coqjus shall have been ob- tained for a person who is confined by \drtue of a final judg- ment, or order of any competent tribunal of ci\al or criminal jurisdiction, the oflicor having the legal custody of such per- son need not produce him, unless specially ordered to do so, notwithstanding such final judgment, in the cases laid doAvn in the following article, and it shall be sufficient for him to return the habeas corpus, with his answer in writing annexing the judgment or order by Adrtue of which the person is confined. Art. 812. — The judge may direct that the person confined shall be produced before him, notwithstanding any final judg- ment, sentence, or order under which he may have been de- prived of liberty, if it appears to him, that from some cause expressed in the affidavit on which the habeas corpus was granted, or in the answer accompanying the return of the writ, this production is necessary, to enable him to grant to the par- ty the relief prayed for. Art. 813. — The return of a habeas coii)Us shall be made in twelve hours after its service, or sooner, if it be so ordered by the writ, in every case where the place of confinement is not more than twelve miles from that to which the return is to be made. If the person confined is at a greater distance, the time for the return shall be increased one day for every twenty miles distance, and so in proportion for shorter distances. Art. 814. — When the habeas corpus has been duly served; OF THE WRIT OF HABEAS CORPUS. 293 if the party in whose favor it has been granted, is not produc- ed within the time above fixed, the judge who issued the writ, shall issue a warrant to some officer of justice, commanding him to arrest and take in 'charge the person who disobeyed the writ, and to bring such person before him, to be proceeded against according to law. Art. 815. — If the person thus brought before the judge, refuses to deliver the habeas corpus which has been served up- on him, or to produce the party whom he was ordered to pro- duce in the cases where, according to the above provisions, he might be compelled to do it, he shall be sent to prison, and shall remain there until he obeys the habeas corpus ; and shall be comdemned to pay all the costs of the proceeding, be- sides the action for false imprisonment, which the party may institute against him. Art, 816. — Whenever, by reason of the sickness or infirm- ity of the party confined, he cannot be brought before the judge, without endangering his life, he who has liim in confine- ment, shall mention it in his answer on returning the habeas corpus : and if this act be proved by the certificate of a phy- sician or surgeon, regularly authorized to practice, and by the declaration of two other witnesses, and the signature of the party confined, if he can write, if the answer appears to him sufficient in other respects, the judge shall repair to the place where the party is confined, if he can do it without quitting the place of holding his usual sittings, otherwise he may de- termine on the habeas corpus, in the same manner as if the party was produced before him. Art. 817. — If the person confining the petitioner, cannot produce him, because he is dead, or through some other una- voidable accident, or overpowering force, he shall mention it in his answer to the writ, but this fact, to form an excuse, must be proved in a perfectly satisfactory manner to the judge. It is to be understood, that in this case, and in every other, where the person confining another, is bound to make proof 294 OF THE WRIT OF HABEAS CORPUS. of the causes which prevent producing him, proof to tlie con- trary may l)c offered by the person who obtained tlie habeas corpus. Art. 818. — If the person kepf in confinement is repre- sented before the judge, he may deny all the facts stated in the answer to the Jtahcas corpus, or he may allege others on his side, to show that liis detention or imprisonment is illegal, or that he has a right to be set at liberty ; wliich denials and allegations shall be made imdcr oath. Art. 819. — The judge shall then proceed in a summary manner to hear the testimony and the reasons adduced, as well by the party confined as by the party confining, and shall pronounce on the whole subject as the nature of the case may require, and according to the rules hereafter estabhshcd. Art. 820. — If the judge cannot pronounce immediately on the habeas corpus, he may, until his judgment is rendered, commit the j^arty to the sheriff of the parish where the writ is issued, or to such other person as the age of the party and other circumstances may render proper. Art. 821. — If it appear to the judge, by the return of the habeas corpus, or by the documents which accompany that return, that the person whose liberation is solicited is detained by virtue of an order rendered in a civil suit, or at the request of an individual having an interest in his confinement, the said judge shall not pronounce on the habeas corpus unless it be proved to his satisfaction, that previous reasonable notice in writing has been given to the plaintifi' in such civil action, or to any other party interested, or his agent or attorney, if they are not more than twenty miles distant from the j)lace where the habeas corpus has been obtained. Art. 822. — If it appear to the judge, from the return to th3 writ or from the accompanying documents that the party is confined by the order of some tribunal, he can only restore such party to liberty in the following cases : 1. Where such tribunal has exceeded its jurisdiction, as defined by law : OF THE WRIT OF HABEAS CORPUS. 295 2. Where the original imprisonment was lawful, but by some act, omission or event which has since occurred, the par- ty becomes entitled to his liberty : 3. Where the order of imprisonment is deficient in some legal requisite : 4. Where the order, although in due legal form, lias been rendered in a case where the law docs not allow the issuing of orders of arrest or imprisonment : 5. Where the order is in due form, but has been rendered or executed by a person not authorized for that purpose, or where the person detaining the prisoner is not the person to whom the law has prescribed that duty : 6. Where the order appears to have been obtained under false pretences, or by corruption : 7. Where there exists no general law, judgment, order or decree of a court of justice, if it be in a ci\'il suit, or sentence of comdction, if in a criminal suit, to justify the imprison- ment. Art. 823. — The judge pronouncing on the habeas corpus can no other^vise examine the validity or propriety of the judg- ment or decree of a regularly constituted tribunal, under which the imprisonment has taken place ; and whenever it shall appear to liim that there exists sufficient legal ground for the detention of the prisoner, on account of any offence with which he may be charged, althougli the order of imprisonment may have been rendered in an irregular and unauthorized manner, or have been executed by a person not duly author- ized for the purpose, the judge shall render a new order of ar- rest, in regular form, directed to the proper officer, or admit the party to bail, if the nature of the offence allows it. Art. 824. — But if it shall appear to the judge from the return and annexed documents, or otherwise, that there is no cause for arrest or confinement, or if he thinks that such ar- rest and confinement cannot legally continue, he shall imme- diately set the i)risoner at hbcrty. Art. 825. — But if the judge decide that the party cannot 296 OF OTHER ORDERS. be released from confinement, nor admitted to bail, be sbaU remand him to prison, or place liim under the same custody in which he was, if tlie detention was legal ; otherwise he shall place him in the custody of the person to whom the law confides such duties. Art. 826. — A party discharged from imprisonment under a habeas corjms, in a criminal proceeding, through deficiency of proof, or some important defect in the warrant of imj)rison- ment, may be an'ested and confined anew, on satisfactory proof, and imder a legal warrant, although it be for the same ofience. Art. 827. — So also in a civil suit, a party who has been released on account of illegality of the warrant under which be is confined, or want of authority in the person confining bim, may be arrested anew and imprisoned, for the same cause of action, provided it be done in a legal manner. Sec. II. — 0/ other Orders which Courts of Justice may render. Art. 828. — Besides the habeas corjnis, there are four other species of orders wliich courts of justice may issue, to wit : 1. The order directing the j)erformance of some specific act ; (writ of mandamus.) 2. The order forbidding further proceedings in a suit ; (writ of prohibition.) 3. The order of which the object is to pronounce on the vabdity of a judicial proceeding ; (writ of certiorari.) 4. The order of which the object is to prevent an usurpa- tion ; (writ of quo warranto.) 1 A. 162. OF OTHER ORDERS. 297 § 1. Of the order directing the performance of some specific act, {writ of mandamus^ Art. 829. — Tliis is an order issued in the name of the State, by a tribunal of competent jurisdiction, and addressed to an indi\adual, or corporation, or court of inferior jurisdiction, directing it to perform some certain act, belonging to the place, ■?uty, or quality with which it is clothed. 4 R. 227 ; 11 R. 285; see 11 L. 285. Art. 830. — The object of this order is to prevent a denial of justice, or the consequence of defective police, and it should therefore be issued, in all cases where the law has assigned, no relief by the ordinary means, and where justice and reason re- quire that some mode should exist of redressing a wrong, or an abuse of any nature whatever, 4 R. 227. Art. 831. — This order may be issued, at the discretion of the judge, even when a party has other means of relief, if the slowness of ordinary legal forms, is hkely to produce such a delay that the public good and the administration of justice will sutler from it. 3 M. 171, 182 ; 5 M. 271 ; 2 N. S. 571 ; 4 N". S. 189 ; 7 N. S. 1 ; 2 L. 88, 394, 503 ; 4L. 14; 6 L. 595; 8L. 79; 9 L. 94,579; 11 L. 38. Art. 832. — This order may be directed to individuals, whether holding offices or not, to corporations, and to judges of inferior tribunals. Art. 833. — It may be directed to a simj^le individual, as to the heirs or other legal representatives of a deceased public officer, or to such officer himself if he be alive, or has resigned, or been removed, to compel them to deliver to the successor of such officer, the papers and other eflfects belonging to his office. Art. 834. — It may be directed to public officers to compel them to fulfil any of the duties attached to their office, or which may be legally required of them. 2 L 395. 298 OF OTHER ORDERS. Art. 835. — It may be directed to all corporations estabUslicd by law : 1. To compel them to make elections, and perform the other duties re(|uired by their charter ; 2. To compel them to receive or restore to their functions, such of their members as they .sliall have refused to receive, al- though legally cliosen, or whom they shall have removed Avitli- out sufficient cause. 5 L. 332; 6 L. 598; "7 L. 511; 9 L. 332; 11 L. 369; sec 607. Art. 836. — This order, in all the above-mentioned cases, can only be issued by courts whose jurisdiction in civil matters exceeds the sum of three hundred dollars. Art. 837. — It may be directed more particularly to judges of inferior courts, commanding them to render justice, and to perform the other duties of their office conformably to law. 1 A. 25. Art. 838. — In this last case, the order (or writ of manda- mus) issues not only when the judges of inferior courts are guilty of a denial of justice or unreasonable delay, in pronounc- ing judgment on causes before them, but also if they refuse or neglect to perform .any of the duties required of them by law, or which may enable the superior courts to exercise their a^)- pellate jurisdiction. Art. 839. — It is only the court which exercises appellate jurisdiction over an inferior court that can direct to the latter an order to perform any of the duties belonging to it. 7 L.509; 8 L. 76, 202; 9 L. 93, 326, 570; 11 L. 37, 38, 360; 12 L. 118; 8 H. 5; 11 R. 285. Art. 840. — The party wishing to obtain an order in any of the cases mentioned in tliis paragraph, must apply to any competent tribunal by petition, stating the nature of his right, or of the injury he sustains, or of the denial of justice which he experiences, and shall make oath of the truth of the facta thus alleged. Art. 841. — The court to whom the complaint is addressed, OF OTHER ORDERS. 299 if it thinks there is ground for interposing its authority, shall issue an order addressed to the party or to the inferior judge, against whom the complaint is made, by which he shall be directed to do what has been demanded of him, or show cause to the contrary, within a certain time after the service of the order, to be fixed by the court. Art. 842. — If, on the day assigned for answering the order, the party or judge to whom it is directed answers and states sufficient reasons to justify his conduct, the complaint shall be dismissed, and the petitioner sentenced to pay costs. Art. 843. — But if the answer is considered insufficient, then a peremptory mandate shall issue, ordering the party or inferior judge to do what has been demanded of him, and if he does not obey, an order of airest shall issue, and he shall be imprisoned until he has rendered obedience to the mandate. Art. 844. — When the mandate directing the performance of a specified act shall have issued against a corporation, the notice shall be served on the mayor or presiding officer of such corporation ; and if the corporation or the body of directors disobey the order, it shall be punished for the contempt by the sequestration of its revenue (writ of distringas) until it yield obedience to the mandate. § 2. Of the Order forbidding further Proceedings in a Suit, {Writ of Prohibition. ) Art. 845. — This mandate only issues to courts or inferior judges which exceed the bounds of their jurisdiction. 5 R. 21. Art. 846. — It is an order rendered in the name of the State, by an appellate court of competent jurisdiction, and directed to the judge and to the party suing, in a suit before an inferior court, forbidding them to proceed further in the cause, on the ground that the cognizance of the said cause does not belong to such court, but to another, or that it is not competent to decide it. 5 R. 27. 300 OF OTHER ORDERS. Art. 847. — To obtain this mandate, the defendant who complains that the inferior court wishes to ti-anscend its juris- diction, shall apply by petition to the court having cognizance of appeals from such inferior court, stating the cause and na- ture of the action brought against him, and showing that the said court is not competent to try it. Art. 848. — The court to which tliis petition is olFercd, shall require the oath of the petitioner to the truth of the facts stated in it, unless these facts be proved by the mere ex- amination of the prayer, or of the proceedings which took place before the inferior court. 19 L. 174; 7 R. 550. ■ Art. 849. — If the court shall think that the matters stated in the petition are sufficient, it shall issue an order forbidding the judge to take cognizance of the cause, and forbidding the plaintiff to prosecute it further. 19 L. 174; 9 R. 480. Art. 850. — When, on the receipt of this order, the inferior judge acknowledges that he has no jurisdiction, he shall ab- stain from all further acts in the case. 9 R. 480. Art. 851. — But if he believes himself competent, he may give a written answer to the order, after which the court is- suing it shall pronounce finally and summarily on the right of jurisdiction; and if he thinks that the inferior judge is not competent to judge the cause, it shall render its prohibition perpetual, otherwise it shall allow the judge to proceed to the trial and judgment of the case. 9 R. 480. Art. 852. — If, in contempt of the order, the judge or the party shall proceed any further in the suit, the superior tri- bunal shall cause them to be arrested, and shall punish them for such contempt, and the opposite party shall have an action for his damages against them. Art. 853. — If an inferior judge has rendered judgment in OF OTHER ORDERS. 301 a case where he had not jurisdiction, and the execution has issued, the court may direct its order as well to the party pro- secuting, as to the officer charged with the execution, forbid- ding them to proceed in the execution, in the same manner as if the prohibition had been addressed to the judge before issu- ing the order of execution, and under the same penalties above enacted. 5 R. 27, Art. 854. — But in tliis case, the party prosecuting may reply to the order, in the same manner as above directed, for obtaining judgment with regard to the jurisdiction of the in- ferior judge. § 3. Of the Mandate^ having for its object to ascertain the validity of judicial proceeding, {icrit of certiorari.) Art. 855. — This also is an order rendered in the name of the State, by a competent tribunal, and dii'ccted to an inferior judge, commanding him to send to such tribunal, a certified copy of the proceedings in a suit jiending before liim, to the end that their vaUdity may be ascertained. Art. 856. — This mandate concludes by enjoining upon the inferior judge to proceed no further in the case, untU judg- ment shall be pronounced on the regularity of his proceed- ings. Art. 857. — This mandate is only granted in cases where the suit is to be decided in the last resort, and where there lies no appeal, by means of which proceedings absolutely void might be set aside, as when the inferior judge has refused to hear the party or his witnesses, or has pronounced sentence without having cited him to appear. 5 N. S. 90 ; 6 N. S. 382 ; see 899. Art. 858. — The party wishing to obtain tliis mandate shall address his petition to a competent tribunal, in which he shall state the causes of nullity of the acts done by the lower court to his prejudice, in a cause where there lies no appeal 6 N. S. 381 ; 5 L. 379. 302 OF OTHER ORDERS. Art. 859. — The tnith of the facts contained in this peti- tion, sliall be sworn to by the party praying for the mandate, but with respect to the nullities alleged, he need only affirm their existence to the best of his knowledge. Art. 860. — This mandate can only be directed to an in- ferior judge by the court having immediate appellate jurisdic- tion over him, and by no other. Art. 861. — The inferior judge to whom this mandate is directed shall immediately send to the superior court a certi- fied copy of the record called for, which copy shall be sealed with the seal of the court, if it have one. Art. 862. — If after the service of the mandate and the injunction contained in it, the inferior judge does not send the coi^y of the record called for, or if he proceeds further in the cause, the superior court shall order him to be arrested and imprisoned until he shall have obeyed the mandate directed to him. Art. 863. — The mere service of the order to send up the record, renders void every act which may have been subse- quently performed by the judge to whom it was directed, or by his order. Art. 864. — If upon examining the certified record thus sent, it shall appear to the court issuing the mandate, that the proceedings are null and have not been sanctioned by the party complaining of them, it shall avoid the proceedings and direct the inferior judge to try the cause anew, in conformity with the provisions of the law. Art. 865. — If the court which issued the mandate, finds that the proceedings have been regular, or that the party has waived his objection to them, it shall dissolve the order which it had issued, and shall condemn the party who applied for the mandate to pay the whole costs. Art. 866. — When a court of competent jurisdiction issues a mandate for the purpose of inquiring into the validity of a proceeding, in the last resort, if judgment has been rendered and execution sued out in the court below, it may arrest the OF OTHER ORDERS. 303 execution, by enjoining the party suing it and the officer charged with it, to proceed no further until the validity of the proceedings has been pronounced upon, and tliis under the same penalties Avhich are inflicted for contempt of court. § 4. 0/* the mandalc to 2^rcvcnt an usurpation of office, {ivrit of quo warra7ito.) Art. 867. — This is an order rendered in the name of the State, by a oompetent court, and directed to a person who claims or usurps an office, in a corporation, inquiring by what authority he claims or holds such office. 6 L. 598; 1 A. 162. Art. 868. — This mandate is only issued for the decision of disputes between parties, in relation to the offices in corpora- tions^ as when a person usurps the character of mayor of a city, and such like. With regard to offices of a pubhc nature, that is, which are confen-ed in the name of the State, by the governor, with or without the consent of the senate, the usurpations of them are prevented and punished in the manner directed by the penal code. 1 A. 162. Art. 869. — A mandate to prevent the usurpation of an office in a city or other corporation, may be obtained by any person applying for it, and the party to whom it is directed must make his answer in writing, within the time allowed by the court, and state the authority under which he exercises his office. 1 A. 162. Art. 870. — If the person to whom the order is directed does not answer within the time allowed, the cGurt shall de- clare him not qualified to ffil the place of which he performs the duties, shall forbid him to perform them any longer, shaU condemn him to pay the costs, and shall direct the corporation to proceed to a new appointment. 1 A. 162. 304 OF OTHER ORDERS. Art. 871. — But if the person to whom the order is direct- ed, answer within the time allowed, the court shall pronounce upon the answer, in a summary manner, and after hearing the parties, if he thinks that the person to whom the mandate was directed, has usurped the office which he holds, or that he con- tinues in it unlawfully, it shall render judgment against him, in the manner pronded in the preceding article. 1 A. 162. Art. 872. — All mandates treated of in the second section of tliis chapter, shall be issued by the clerk, in the name of the State and of the court which renders them, shall be sealed with the seal of such court, and signed by the clerk in his of- ficial character. These mandates shall be dehvered to the sheriff, who shall serve them on the persons to whom they are directed. See 828. Art. 873. — When the legislature has granted to a corpo- ration the right to determine the validity of the elections of its members or officers, courts of justice shaU not issue man- dates for the purpose of inquiring into that fact. OF PROCEEDINGS IN THE SUPREME COURT. 305 TITLE 11. OF PROCEEDINGS IN THE SUPREME COURT OF THE STATE. Art. 874. — The supreme court has only appellate jurisdic- tion, which it exercises in all civil cases, where the object in dispute exceeds the sum of three hundred dollars. Const. 1845, art. 63. Const. 1852, art. G2. IN.S. 140; 2N.S. 314; 5 N.S. 10, 87, 506,645; 6 N. S. 457 ; 8 N. S. 285, 838; 1 L. 178; 3 L. 446; 8 L. 164; 9 R. 163. Art. 875 — The supreme court has jurisdiction, though the judgment appealed from be for less than three hundred dollars, if the demand was for more than that sum. 2 A. 212. Art. 876. — It has also jurisdiction by apj)eal, of the ap- pointment of tutors or curators of minors, inderdicted, or ab- sent persons, or of vacant estates and of syndics of the credi- tors of an insolvent, if the property which is to be placed un- der the charge of such tutors, curators or syndics amount to more than three hundred dollars. 11 L. 40; see 680,1049. Art. 877. — The supreme, as well as other courts, possesses the powers which are necessary for the exercise of the jurisdic- tion given to it by law, in aU the cases not expressly provided for by the present code. ' 5 K. 59. Art. 878. — It may direct to courts immediately under its jurisdiction, not only such mandates as are mentioned in . the second section of the tenth chapter of the preceding title, for 20 E06 OF PROCEEDINGS IN THE SUPREME COURT. the purpose of insuring the better administration of justice, but also such as it shall judge necessary, to enable it to exer- cise the appellate jurisdiction which it has over those courts. 8 L. 80 ; see 828, 848. Art. 879. — The supreme court may also make such rules as it may think proper to determine the form of proceeding before it, in cases not provided for in the present code, and not inconsistent with its provisions, or which may hereafter be provided for by law. Art. 880. — The supreme court may be adjourned by one of its judges from day to day, until a sufficient number to try causes be collected ; and if neither of the judges be present on the day fixed by law for the commencement of the term, the clerk may adjourn it in hke manner. Art. 881. — The judges of the supreme court may be chal- lenged in the same manner, and for the same causes, as the judges of original jurisdiction ; they must conform to all the rules of procedure established above, and which are applicable to them in every thing not otherwise provided for under the present title, or which may hereafter be provided for by law. Art. 882. — The mode for obtaining an appeal to the supreme court, and the effect of such appeal, are established by the general rules in matters of appeal, contained in the second section of the sixth chapter of the preceding title. Art. 883. — If the appellant has not filed in the supreme court, on the day appointed by the inferior judge, the record from the court below, and was prevented from doing so by any event not under his control, he may, either in person or by attorney, apply to the court before the expiration of the three days, after which the appellee may obtain a certificate from the clerk, declaring that the record has not been filed, and may demand a further time to bring it up, which may be granted by the court, if the event causing its delay be proved to its satisfaction ; the court may even grant an injunction to the appellant during the further time allowed, to suspend the OF PROCEEDINGS IN THE SUPREME COURT. 307 execution on the judgment appealed from, if at the time of petitioning for such further delay, the appellee has already required of the clerk the certificate necessarj'^ for the pursuit of such execution. 10 K. 419 ; 3 A. 189 ; soe 589 ; see 5 N. S. 192; 8 N. S. 697 ; 3 L. 257 ; 7 L. 350 ; 8 L. 206. Art. 884. — But if the appellant has not obtained a fur- ther delay, and has not filed in the supreme court a copy of the record on the day directed by the court below, the appel- lee may cither proceed with the execution on the judgment appealed from, or he may bring up a copy of the record him- self, and have judgment on the appeal, in the manner pro- vided in the second section, sixth chapter of the present title. 8 L. 217 ; 3 A. 189 ; see 588, 590. Art, 8S5. — The appellee shall have the same right in case the appellant has obtained further time to bring up the re- cord, and has failed to do so within the time, 3 A. 189. Art, 886. — If a copy of the record in the lower court, and the papers belonging to it, have been filed in the supreme , court, the appellee shall, within three days of the time allowed him for appearance by the citation of appeal, file with the clerk his answer in writing to such appeal. 9 R. 155 ; see 891. Art. 887. — The appellee, in his answer, may cither pray for a simple confirmation of the judgment with costs, or he may pray also for the damages spoken of hereafter. See 6 L. 526 ; see 890, 907. Art. 888. — If the appellee has cause to complain of the judgment appealed from, he may, without appeal on his part, state in his answer the points on which he thinks he has sus- tained wrong, and may pray that the judgment be reversed with respect to them, and confirmed with costs on the rest. 15 L. 352 ; 6 R. 51 ; 9 R. 155 ; 1 A. 340 ; 2 A. 546 ; 3 A. 37, 222 ; 5 A. 38. 140, 683 ; see 592. Art, 889. — But if the appellee, on the appeal of the 308 OF PROCEEDINGS IN THE SUPREME COURT. other party, neglect to pray that the judgment be reversed ot those points which are prejudicial to him, he shall not after- wards be allowed to appeal, but the judgment shall remain 1 irrevocable for or against him. 6 K. 51 ; see 3 L. 377. Art. 890. — If the appellee neglect to answer to the appeal within the time allowed him, the appellant may have the cause set down for argument, but the appellee shall be allowed to file his answer until the day of argument, if he only prays for confirmation of the judgment "with costs, but if he demand the reversal of any part, or damages against the appellant, he shall file his answer at least three days before that fixed for the argument, otherwise it shall not be received. 1 N. S. 265, 2vl ; 2 L. 301 ; 3 L. 54, 434; 7 L. 59; 8 L. 217 ; 9 L. 71 ; 14 L. 129, 288; 1 R. 18; 6 R. 494; 9 R. 256; 1 A. 35; 3 A. 186, 198, 222, 380, 444. Art. 891. — But if the cause be argued without the appel- lee having filed his answer, and without any objection being made on that head, the judgment pronounced shall not be the less vahd for such omission. Art. 892. — When a cause has been fixed for argument, if the appellee, or his attorney does not appear, the court shall proceed to the hearing, if the appellant require it. So if the appellant does not appear, the appellee may ar- gue the cause, but in either case the court shaU examine the record, and render judgment for one of the parties as the na- ture of the proofs and the justice of the case shall seem to require. Art. 893. — If, however, before the judgment becomes de- finitive within the time hereafter prescribed, the party who did not appear on the day fixed for the argument, shall prove that he was prevented by an unavoidable accident, the court may grant him a new hearing of the cause, and after argument, may reverse the judgment, if there be grounds for it. See 911. Art. 894. — The supreme court shall receive no new evi- OF PROCEEDINGS IN THE SUPREME COURT. 309 dence, even though it may have been discovered since the judgment below, but shall i)ronounce on the case, on the same evidence as was adduced below, except in the cases hereafter expressed. Art. 895. — The supreme court can only exercise its juris- diction in so far as it shall have knowledge of the matters ar- gued or contested below. 4K S. 364; 8 N. S. 435,453; 1 L. 323; 3 L. 616; 6 L. 402; 3 R. 236; 6 R. 83 ; 5 A. 40. Art. 896. — If therefore the copy of the record brought up be not duly certified by the clerk of the lower court, as con- taining all the testimony adduced, the supreme court can only judge of such cause on a statement of facts, prepared and signed in the manner directed in the second section of the sixth chapter of the preceding title, or on a written exception to the opinion of the judge, or on a special verdict, and in the absence of all these, it shall reject the appeal with costs ; but this is to be understood with such modifications as are con- tained in the following articles, 5 N. S. 84, 89, 104, 409 ; 3 L. 446, 454, 481 ; 4 L. 41 ; 6 L. 166, 211, 303; 8 L. 518; 11 L. 571; 4 R. 147, 443; 5 R. 169; 12 R. 456,461 ; 2 A. II, 220. Art. 897. — The appellant who does not rely, wholly or in part on a statement of facts, an exception to the judge's opinion, or special verdict, to sustain his appeal, but on an error of law appearing on the face of the record, shall be al- lowed to allege such error, if within ten days after the record is brought up, he files in the supreme court a written paper, stating specially such errors as he alleges ; otherwise his ap- peal shall be rejected. 4 N. S. 497 ; 5 N. S. 85, 341 ; 6 N. S. 638 ; 7 N. S. 234 ; 1 L. 52 ; 2 L. 225 ; 6L. 72, 144, 156, 209; 9 L. 276, 325; 10 L. 154, 555; 11 L. 92. Art. 898. — If, at the time of argument, or before the ap- pellant perceives that the copy of the record is incomplete, either through mistakes or omissions, or from the clerk ha\-iug failed to certify the copy, as containing all the testimony pro- duced in the cause, or from any similar irregularities not aris- 310 OF PROCEEDINGS IN THE SUPREME CODRT. ing from any act of the appellant, the court may grant him a reasonable time to correct such errors or omissions, during which time judgment on the appeal shall be suspended. Stat. 20th March, 1839, p. 170.— § 19. Hereafter, no appeal to the supreme court shall be dismissed on account of any defect, error, or irregularity in the petition or order of ap- peal, or in the certificate of the clerk or judge, or in the cita- tion of appeal or servdce thereof, or because the appeal was not made returnable at the next term of the suj)reme court, when- ever it shall not appear that such defect, error, or in-egularity is imputable to the appellant, but in all such cases the court shall grant a reasonable time to correct such errors or irregu- larities (in case they are not waived by the appellee) and may impose on the appellant such terms and conditions as in their discretion they may deem necessary for the attainment of jus- tice — and may also impose such fines on the officer who shall have caused such irregularities as they may deem proportioned to the offences. 3 L. 294, 296; 5 L. 321; 4 L. 472; 9 L. 119; 12 L. 437, 537; 5 R. 153. Art. 899. — If the record be incom2)lete, because the judge below refused to perform any of his duties, such as to sign the exceptions to his opinion, or if such imperfection proceed fi-om a similar refusal by the clerk, the suj)reme court shall direct a mandate to such judge or clerk, ordering him to perform the duty imposed on him by law or by the nature of his office, and in the mean time it shall suspend its judgment on the ap- peal. 5 N. S. 90 ; see 857. Art. 900. — When a party desiring to appeal from the judgment of the lower court, cannot obtain a statement of facts from the judge, or his signature to exceptions from his opinion, upon motion the supreme court shaU direct a mandate order- ing him to perform his duty, provided said motion be made, on the first day of the term succeeding the refusal of the judge. 12 L. 437. OF PROCI/EDINGS IN THE SUPREME COtTRT. 311 Art. 901. — When the supreme court once has jurisdiction of an appeal, wliether by the transmission of the record, or by that of the citation served on the appellee, it cannot, in any case, permit the appellant to withdraw his appeal, without the consent of the appellee, and the cause shall take its course, whether the appellant make default or not. Art. 902. — Although in general, parties before the su- preme court are not allowed to plead other matters than those which were before the inferior court, nevertheless it may depart from this rule, when the exception taken is one of those which may be pleaded at any period of a cause, and the proof of it appears by the mere examination of the record. Thus prescription may be pleaded before the supreme court, when the proof of it appears on the face of the proceedings in the lower court. But the party to whom it is opposed shall have the privilege of demanding ^hat the cause be remanded for trial upon that plea. 3 R. 236 ; 5 R. 83 ; 9 R. 98, 518 ; 1 2 R. 540 ; 1 A. 246 ; 2 A. 780. Art. 903. — When the defendant, in a case brought by ap- peal before the supreme court, dies during the continuance of the suit, his heir may be made a party in liis place. Art. 904. — A creditor of a party to a suit, who has not proved his debt in the lower court, cannot exercise his debtor's right of appeal. 7 N. S. 313, 346,641 ; C. C. 1986. Art. 905. — When the supreme court reverses the judg- ment of an inferior court, it shall pronounce on the case the judgment which the lower court should have rendered, if it be in possession of all the facts and testimony to enable it to pro- nounce definitively. 11 L. 368; 3 R. 349; 9 R. 267; 3 A. 37. Art. 906. — But if the court shall think it not possible to pronounce definitively on the cause, in the state in which it is, either because the parties have failed to adduce the neces- Bary testimony, or because the inferior court refused to receive 312 OF PROCEEDINGS IN THE SUPREME COURT. it, or otherwise, it may according to circumstances, remand the cause to the lower court, with instructions as to the testi- mony which it shall receive, to the end that it may decide ac- cording to law. 8 M. 170, 235 ; 10 M. 69 ; 11 M. 202, 205 ; 12 M. 355 ; 6 N. S. 003. C35, 647 ; 3 L. 341 ; 6 L. 81 ; 7 L. 69 ; 10 L. 246; 12 L. 381, 413, 673 ; 13 L. 186, 344; 15 L. 231 ; 16 L. 477 ; 18 L. 318; 19 L. 418, 517; 2 R. 491; 8 R. 19, 119; 9 R. 168, 387, 394; 11 R. 13, 32; 12R. 95;1 A. 118; 2 A. 276, 846; 5 A. 183, 540,596. Art. 907. — The court in confirming a judgment appealed from shall condemn the appellant to pay all the costs. It may even condemn hun to pay to the appellee, if the latter claims it by his answer, such damages as it may think equivalent to the loss which he has sustained by the delay consequent on the appeal, provided the amount of such damages does not exceed ten per cent, on the value of the amount in dispute, 3 M. 405 ; 8 M. 164 ; 10 M. 201 ; 12 M. 395, 491, 492 ; 3 N. S. 248, 256, 257 ; 5 N. S. 106, 152 ; 7 N. a 608 ; 8 N. ^ 253, 500 ; 6 L. 230, 523, 640 ; 7 L. 167, 571 ; 8 L, 180, 550; 9 L. 415; 11 L. 268; 12 L. 11,422; 13 L. 291,494,592; 14 L. 261, 263, 264, 324, 325, 326, 347, 361, 427, 435, 448, 466 ; 16 L. 17, 18, 19, 20, 23, 24, 25, 27, 31, 32, 37, 217, 222, 232, 255, 288, 418, 435, 440, 442, 443, 444, 445 ; 16 L. 248, 250,263,269, 565; 17 L. 69,520, 584; 18 L. 36, 680, 582,584; 19 L. 345. Art. 908. — If the judgment be reversed, in whatever de- gree it may be, the appellee shall pay the costs. 7 L. 570. Art. 909. — The supreme court shall state the reasons of its judgments, by citing, as exactly as possible, the laws on which it founds its opinion. When the judges arc all of the same opinion, it shall be sufficient that one of the number pronounce the judgment, but if there be a division between them they shall declare their oi)inions separately. Sec 4 L. 173. Art. 910. — All the judgments or orders rendered by the supreme court shall be recorded at length by the clerk, in re- cords kept for that purpose. Art. 911. — Tlie judgments rendered by the supreme court shall be final, and the clerk shall deliver a copy to every per- OF PROCEEDINGS IN THE SUPREME COURT. 313 son requiring it, after three judicial days shall have elapsed from the rendering of the judgment. 5 N. S. 408 ; 10 L. 374; 8 R. 500. Art. 912.— In the interval between the day on which the judgment is rendered, and that on which it becomes final, a party dissatisfied with the judgment, may apply to the court for a new hearing in the cause, and for this purpose shall pre- sent a petition, in which he shall state substantially the rea- sons for which he thinks the judgment erroneous, and shall cite the authorities in support of his opinion. Art. 913. — The court shall consider of the reasons addu- ced in such petition, without argument, and if it grants a new hearing of the cause, shall state the points on which it Avishes to hear the parties anew. While the court is deliberating on this application, the three days allowed for rendering a judgment final, do not run. Art. 914. — If the court refuses a new hearing, it sliall de- clare its opinion, without being obHged to state the reasons for it. Art. 915. — No execution shall issue on the judgments of the supreme court, but such judgments, whether confirming or reversing those appealed from, shall be sent back for tlieir'ex- ecution to the inferior court, and no mandate need be directed to the latter for that purpose. Art. 916.— Precedence shall be determined among the judges of the supreme court, by the date of their coimuis'^ions, and if their commissions are of the same date, the oldest indi- vidual shall take precedence. Art. 917.— The supreme court may, when required by one of the parties, direct orders to public ofticers or individuals, to produce before it any title deeds, papers or documents relating to suits which are in their possession, or if which they are de- positaries, when the said documents may be necessary to the decision of a cause pending before it. Art. 918. — But the supreme court can only exercise this power, with regard to the documents belonging to a public 314 OF PROCEEDINGS IN THE SUPREME COURT. office, when such office is kept in the place where it holds its sittings, otherwise the parties must produce properly certified copies of the papers belonging to such suits, which have been adduced in the lower court. This rule shall be common to all the tribunals of the State. Art. 910. — Whenever any title deed or document relating to a suit shall be produced by a public officer, or other indi- vidual, by order of the supreme court, it shall be delivered to the clerk of the court, who shall give a receipt for it, and when the cause is determined, it shall bo the duty of the clerk to re- turn such document to the pubUc officer, or other individual, from whom he received it, and not to retain it under any pre- text. Art. 920. — It is the duty of the sheriffs of the dififerent parishes where the supreme court is in session, to attend its sittings, or to send one of their deputies ; and a compensation is granted to such sherifts, of two dollars for each day they or their deputies shall be thus employed, wliich sum shall be paid to them out of the treasury of the State, on the wan-ant of one of the judges of the supreme court. OF COURTS OF PROBATE, 315 TITLE III. OF THE PKOCEEDINGS IN COURTS OF PROBATE. CHAPTER I. OF COURTS OF PROBATE AND OF THEIR JURISDICTION. Art, 921. — Courts of probate arc especially established to appoint legal representatives for minors, orj^hans, insane and absent persons, and to superintend the atlministratioii of vacant successions. Const. 1845, arts. 62, "78 ; Const. 1852, art. 61. Art. 922. — They are called courts of probate, because the proving and recording of last wilk and testaments are made before them. Art. 923. — The parish judges are ex officio judges of the courts of probate, in their respective parishes. Art, 924. — Courts of probate have the exclusive power : 1. To open and receive the proofs of last wills and testa- ments, and to order the execution and recording of them. 2. To appoint tutors and curators for minors, interdicted and absent persons who have no representatives in the State, and for such persons as are capable of administering their own property. 3. To confirm or reject such tutors of minors as may have been appointed by the last will of their father or mother. 4. To appoint curators to vacant estates and absent heirs. 5. To make the inventories and sale of the property of suc- cessions, which are administered by curators, or testamentary 316 OF COURTS OF PROBATE. executors, or in which the heir prays for the benefit of in- ventory ; 6. To homologate wills in which one or more testamentary executors are appointed, and to issue letters of administration to such executors ; 7. To appoint administrators under the will, when the ex- ecutor appointed by the testator, will not, or cannot perform the duties, or is dead or absent ; 8. To remove or supply the places of such tutors, curators, and testamentary executors, in the cases provided by law ; 9. To compel such administrators to render an account, when required, or at the period fixed by law ; 10. To interdict persons who fall into a state of madness, and to restore them to the enjoyment of their rights when they regain their reason ; 11. To compel such heirs as have taken time to deliberate, to declare, when required by the creditors of the deceased, whether they accept or renounce a succession ; 12. To decide on the putting in provisional possession of the heirs of absentees ; 13. To decide on claims for money which are brought against successions administered by curators, testamentary ex- ecutors, or administrators of successions, and to establish the order of privileges and mode of payment ; 14. To ordain and regulate all partitions of successions in which minors, interdicted or absent jiersons arc interested, or even those which are made by autliority of law, between persons of lawful age, and residing in the State, when such persons cannot agree upon the partition and the mode of making it. Stat I6th March, 1842, p. 300.— § 1. The succession of persons domiciliated out of the State of Louisiana, and leaving in this State, at their demise, movable or immovable pro- perty, or both, shall be opened and administered upon as are those of the citizens and inhabitants of the State ; and the judge before whom such successions shall be opened shaU OF COURTS OF PROBATE. 317 proceed to the appointment or confirmation of the officer to administer it, under the name, and in the manner pointed out by tlie existing hiws, under the separate sections of the code which treat of successions generally. § 2. In testamentary successions, wlienever the executor or executors named by tlie testator will not perform the duties, or may be dead or absent, the judge shall appoint one or more dative testamentary executors, as it is iirovided by the 924th article No. 7 of the Code of Practice, and in the same manner as if the testator had omitted to name his executor. § 3. Whenever the testamentary executor named in the will shall be present in the State, but be domiciled out of it, the judge shall only grant him the letters on the execution of his bond, with a good and solvent security, for such a sum and under such conditions as are required by law from dative tes- tamentary executors. § 5. Whenever the testamentary executor or any othet administrator of a succession shall sufifer his ten days to elapse after his confirmation or appointment, without hav- ing either qualified or caused an inventory to be at least begun, the judge shall forthwith and ex officio appoint a successor in office, as if no such officer had been confirmed or appointed. ** § 6. The courts of probates shall have exclusive cognizance of all suits or actions against sureties on the bonds of appeal, and all others which they arc bound by law to receive or exact from appellants and administrators, tutors, curators, and tes- tamentary executors generally ; and no such suit shall be instituted against the security until the necessary steps have been taken to enforce payment against the principal. See (under clerks) Stat 29th M-iy, 1846, p. 63, § 1, 2, 4, 5, 6, 7, 9; Stat. 16th March, 1850, § 1, 2, 3, 4, ; Siat. 18(h March-, 1852, p. 206, § 1, 2, 3. Stat, llth February, 1834, p. 54. — § 1. In all cases where oaths are required by law to be taken in courts of probates, the same may be administered by the judge, the clerk of tho court of probates, or his deputy clerks, and in the parish of 318 OF COURTS OF TROBATE. Orleans, by the judge of the court of probates, or by the regis- ter of wills, or any of his deputies ; and all oaths of tutors, curators, appraisers, and other oaths of office required by law, shall be recorded in a bound book kept for that purpose. § 2. In the parish of Orleans it shall suffice, in all cases, and to all legal intents and purposes, that the public notices and advertisements which the law requires to be given by the court of probates be published in both languages, French and English, in two of the newspapers printed in New Orleans, all laws to the contrary notwithstanding. § 3. It shall be the duty of said clerks of courts of probates, and of the register of wills, of the parish of Orleans, to record in a bound book all bonds, particularly those given by tutors, administrators of successions, and curators ; and for such re- cording of any bond there shall be allowed fifty cents. S(af. 27ih March, 1840, p. 111.— § 1. In all successions, the property belonging to which is situated at the Cheniere Cami- nada, Grande Isle, in the parish of Jefferson, and the value of which does not exceed fifteen hundred dollars, any justice of the peace of that 2)lace shall have the same powers that are granted to the parish judge of the parish of Jefterson, ex officio judge of the court of probates for the settlement of said suc- cessions, and shall be entitled to the same emoluments for his services that the judge of the parish of Jefterson is entitled to, under the tariff, while acting ex officio judge of the court of probates. § 2. The said justice of the peace may bo commissioned by any judge of the court of probates, parish or district judge, in this State, to take the inventory of property situated at Che- niere Caminada, belonging to successions opened in the parish of Jefferson or any other parish in this State. § 3. In all successions opened in the parish of Jefferson, the said justice of the peace shall transmit to the office of the parish judge of said parish certified copies of all acts of pro- cedure done by him, imder the authority of this act, within a period not to exceed ninety days. MODE OF PROCEEDING IN CERTAIN ACTIONS. 319 § 4. All acts or parts of acts contrary to the provisions of this act be, and they are hereby repealed. 6 L. 26, 395 ; 12 L. 72 ; 15 L. 36, 358 ; 17 L. 4 ; 3 R. 92, 99 ; 4 R. 20, 412 ; 5 R. 2; 6 R. 44; 7 R. 183, 206; 11 R. 77, 209; 12 R. 536; 1 A. 173. Art. 925. — The courts of probates shall have no jurisdic- tion except in the cases enumerated in the preceding article, or in those which shall be mentioned in the remaining part of this title. SR. 92, 99; 4 R. 20, 412; 5 R. 2; 7 R. 183. CHAPTER II. OF THE MODE OF PROCEEDING IN COURTS OF PROBATE. Art. 926. — Courts of probate have two modes of proceed- ing, the one by summary, and the other by the ordinary process. Art. 927. — The rules relative to proceedings in courts of probate differ according to the various matters of which they have cognizance, and of which we shall treat in the following sections. Sec I. — Of the mode of proceeding in certain actions. § 1. Of the opening and jyroving of wills. Art. 928. — When a testator is dead, his testamentary exe- cutor or any other person who may feel an interest in having his will executed, shall present a petition for that purpose to the judge of probates of the place where the succession is opened. 8 L. 87 ; 9 L. 526 ; C. C. 1637. Art. 929. — The place in which a succession is opened, is, and in future shall be held to be, as follows, notwithstanding any former law to the contrar}'. In the parish where the deceased resided, if he had a domi- cil or fixed place of residence in the State ; 320 OF THE MODE OF PROCEEDINQ In the parish where he left landed property, if he had nei- ther domicil nor })lacc of residence in the State ; or in the pa- rish in which it appears from the inventory that his principal property was situated, if he had property in several parishes ; In the parish where he died, if he had no certain or any fixed property. 7 X. S. 52 ; C. C. 929. Art. 930. — If the will be made by a public act, it shall be sufficient for tlie petitioner to annex a copy of it in due form to his petition, and to pray for the execution and recording of it. Art. 931. — If it be the executor appointed by the will who presents the petition, he shall demand not only the execution and registry of the will, but that letters testamentary be de- livered to him, if he agrees to accept the appointment. Stat. 16th March, 1842.— p. 302. § 4.— Whenever the testamentary excutors named in the will shall present a pe- tition praying for the execution and registry of the wiU, and should fail to pray besides for tlie letters testamentary, in conformity with the 931st article of the Code of Practice, then and in that case he shall be presumed to have declined the trust. 6 N. S. 402 ; 7 L. 32. Art. 932. — The judge shall only order the execution and registry of the will, when satisfied that the testator is actually dead. C. C. 1C39. Art. 933. — When the will has been made in the presence of witnesses, the judge, after being satisfied of the testator's death shall order that the will be i)roved before him on a day, place and hour to be fixed by liim, by the number of witnesses required for the purpose by law. 6 L. 725 ; 7 L. 45 ; 9 L. 470 ; 10 L. 328, 533 ; C. C. 1C71. Art. 934. — If the wiUbe contained in a sealed packet, the IN CERTAIN ACTIONS. 321 judge shall order the opening of it at the time appointed by him, and shall then proceed to the proof of the will. 10 K 328. Art. 935. — The party praying for the opening and proof of the will, shall cause to fee summoned the number of witnesses possessing the qualities required for such proof, and if the pre- sumptive heirs of the deceased or any of them, reside in the place, he shall give them notice in writing, that they may attend, if they think proper, at the oj^ening and proof of the will. Art. 936. — If the petitioner alleges under oath in his peti- tion that he is informed that the will of the deceased, the opening of which and its proof and execution are prayed for, is deposited in the hands of a notary or any other person, the judge shall issue an order to such notary or other person, directing him to produce the will or the packet containing it, at a certain time to be mentioned, that it may be opened and proved, or that the execution of it may be ordered. Art. 937. — If the notary, or other individual to whom the said order is directed, refuses to obey it, the judge shall issue an order to arrest him, and if he does not adduce good reasons for not producing the wdU, shall commit him to prison until he produces it, and he shall be answerable in damages to such persons as may suflfer from his refusal. Art. 938. — At the time appointed for opening and proving the will, the judge shall proceed in this duty in the manner prescribed by law. Art. 939. — For the purpose of such proof, the judge shall receive the deposition in writing, of each of the witnesses pro- duced, which depositions shall be signed by them with their names or ordinary marks, and the whole shall remain an- nexed to the record. Art. 940. — After this proof, the judge shall read the will in an audible and distinct voice, to the end that its provisions may be heard by the witnesses and all other persons present, 21 322 OF THE APPOINTMENT OF TUTORS, ETC. and if it appear to be in regular form, the execution of it shall be ordered, and it shall be recorded. 5 N. S. 182 ; 9 L. 470 ; 10 L. 632. Art. 941. — The judj^e shall also ordain that the original of the will thus proved shall be deposited in his office, after be- ing signed, ne varietur, by him, at the beginning and end of each page. Art. 942. — The judge before whom a will shall be thus opened and proved, shall prepare a process verbal, in which he shall recite ; 1. The manner in which the opening and proof were made ; 2. The names and surnames of the witnesses and the man- ner in which they made their declarations ; 3. The reading the will in an audible and distinct voice to the witnesses and other persons present ; 4. The order for executing and recording the will, and for depositing it, after having signed it, ne varietur, at the begin- ning and end of each page. This process verbal shall be dated and signed by the judge or clerk, and shall remain annexed to the record as a part of it. Art, 943. — When a will has been thus proved, the depo- sitions of witnesses taken in writing shall be considered good evidence, in case the will be subsequently attacked, although Buch witness be dead or removed permanently from the State. ^ 2. 0/" the Appointment of Tvtors mid Curators of Minors, Interdicted and Absent Persons. Stat, nth March, 1830, p. 48.— § 1. From and after the passage of this act, any surviving flither or mother who shall have heretofore become, or shall hereafter become the natural tutor or tutrix, curator or curatrix of their minor child or cliildren, may, and they are hereby permitted to give a special mortgage on im- movable property, not slaves, for the security of the rights and OF THE APPOINTMENT OF TUTORS, ETC. 323 property of their said children and the faithful discharge of their functions as tutor or tutrix, curator or curatrix aforesaid : Pro- vided, that a meeting of the family of the said minor or minors, duly called according to law, on the petition of the said surviving father or mother to that effect, addressed to the court of ])robate3 of the proper parish, shall declare that the pro^jcrty offered to be so specially mortgaged is, in the opinion of said family meeting, of sufficient value to secure the rights of said cliild or children in capital and interest, which said mortgage shall he executed in the same manner that mortgages of the like nature arc now executed by curators ad bona of minors. And from and after the execution of the said special mortgage, by the said father or motlier, natural tutor or tutrix as aforesaid, all the remain- ing property of the said father or mother acquired or to be acquired, shall be completely discharged from all legal, tacit, or any other description of mortgages, hypothecation, or lien whatever arising from said tutorship, § 2. In case of an adjudication made under the 338th article of the Civil Code, or any other law authorizing similar adjudications, a special mortgage may be given by the father or mother on real property, not slaves, to secure the rights of the minors ; and such special mortgage shall have the effect of annulling the mortgage arising from such adjudication. § 3. A special mortgage given in favor of a minor or minors may be changed after a family meeting, called and held accord- ing to law, shall have recommended such change, and after the deliberations of said family meeting shall have been duly homologated ; Provided, that the title of the property proposed to be mortgaged shall be laid before the said family meeting, and shall be carefully inspected by the under tutor and the judge ; and provided that all the other provisions contained in this act sliall be fully complied with. § 4. In all cases of application made by a father or mother to give a special mortgage, and the person applying shall be bound to present at the family meeting a certificate from the , register of mortgages, showing what mortgages, if any, exist on 324 OF THE ArrOINTMENT OF TUTORS, ETC. the property offered to be specially mortgaged ; the undei tutor shall be called, and it shall Ixj his duty to be present at the deliberations of the family meeting, and when not fully sat- ^ isficd with the value or kind of property offeR^d to be mort- gaged, with the validity of the titles of said property, or with the deliberations of the family meeting, he shall refuse liis approbation to sjvid deliberations ; and any under tutor neg- lecting to perform the duties hereby prescribed, or neglecting to ascertain the real value of the i)roperty offered to be mort- gaged, shall be responsible to the minors for any loss they may experience from such neglect ; and it shall also be the duty of the under tutor, whenever the value of the property sjiecially mortgaged shall have diminished so as to endanger the interest of the minors, to require an additional mortgage. § 5. Whenever an under tutor shall refuse to approve of the deliberations of a family meeting, or object to their homo- logation, the court shall decide whether the 0})position is well founded, and if unfounded the opposition shall be overruled, and the deliberations homologated as if no opposition had taken place: Provided, that when the court shall decide that the opposition of the under tutor is unfounded, and shall homolo- gate the deliberations of the family meeting, the under tutor who shall have made the opposition shall be exonerated from the personal responsibility which is im2)osed upon him by the preceding section. § 6. All costs occasioned by the demand to give a special mortgage shall be paid by the persons making the ai)}ilication. § 7. It is hereby made the duty of all public officers before whom family meetings shall be called, to read this act to them and to the under tutors, and any officer foiling to perform this duty shall be responsible for any loss arising from such neglect either to the under tutor or to the minor or minors. § 8. In all cases where special mortgages shall be given by curators or tutors in lieu of the legal mortgage existing in such cases, as recognized by law, it shall be the duty of the judge receiving such special mortgage to cause the property proposed OF THE APPOINTMENT OF TUTORS, ETC. 325 to be mortgaged to be appraised by experts, in the same man- ner as is provided when adjudications of the property of minors are made to their surviving father or mother, and tlie said judge shall in no case accept the said mortgage unless the value of the property so appraised shall exceed, exclusive of all prior liens, privileges, or mortgages, tlie amount of the debts or rights of the minors intended to be secured by the said special mortgage, by at least twenty-five per cent, in addition to the amount of the said debts or rights, to be ascertained by a previous liquidation, to be made according to law in the office of the judge having jurisdiction of the said matter, and including all interest which will probably accrue. § 9. There shall be hereafter no curator ad bona or curator ad litem appointed in any case ; that the persons and estates of minors shall in all cases be placed under the power of tutors and under tutors ; and that the powers, duties, and responsi- bihties of tutors and under tutors, as well as their liability to be removed from office, shall continue until the minor or minors attain the age of majority, or are otherwise emancipated: Provided, that this section shall not apply to cases in which curators ad bona shall have been appointed before the promul- gation of this act. § 10. The grandfather or grandmother, when the tutorship shall have devolved or may devolve upon either of them by operation of law, shall be entitled to the benefit of the provi- sions in favor of natural tutors or tutrices contained in the first section of this act. Art. 944. — The appointment of a tutor or curator to a mhior belongs to the judge of probates of the place of domicil or usual residence of the father and mother of such minor, if they or either of them be living. 9 L. 238,671 ; 3 R. 303 ; 2 A. 71. Art. 945.— If the ftither and mother of the minor be dead, the appointment shall be made by the judge of probates of their last place of domicil, or if they had no domicil, of that of the minor's nearest relations. 7 N. S. 388; 10 L. 97 ; see IIC. 326 OF THE APPOINTMENT OF TUTORS, ETC. Art. 946. — If the father and mother of the minor reside out of the State, and are not represented in it, and the minor be also absent, he may he jirovided witli a tutor or curator by the judj^e of probates of the place whore his principal proper ty is, or where he has interests to assert or defend. 7 L. 544, 547 ; 2 A. 71 ; C. C. 294 ; sec IIG, 963. Art. 947. — All persons, even strangers, ought to give in- formation to the judge, within whose jjrovince it lies, of the fact which gives rise to the appointment of a tutor. Art, 948. — ^It is the duty of the competent judge to whom this information is given, or to whom a petition is presented for ai)pointing a tutor or curator to a minor, to make the ap- pointment in the manner hereafter provided. Art. 949. — If it be the father of the minor who presents the petition claiming his tutorship, the judge shall confer it on him, only requiring of him an oath to perform the duties well and faithfully. 10 L. 98; 12 R. 63G ; 2 A. 71. — See aincndmciit under "Appoinlniont of tutors and curators," § 1. Art. 950. — If the father of the minor be dead, and his mother claim the tutorship, the judge shall confer it on her, if she has not entered into a second marriage, only requiring from her the same oath as in the foregoing article. 11 L. G3, 108 ; 2 A. 553. — Sec amendment referred to in the preceding article. Art. 951. — But if the minor be the child of a first mar- riage, and the mother has contracted a second, the judge shall not confer the tutorship on her, during the life of her second husband, except by the advice of a family meeting duly con- voked for that purpose. 10 L. 459,402; 3 K. 390; C. C. 372. Art. 952. — If it be one of the ascending relations of the minor who claims the tutorship, and the minor has seVeral as- cending relations in the same degree, the judge shall, on a pe- tition presented to him for the- purpose, direct that the o1 hei ascending relations in the same decree be summoned to show OF THE APPOINTMENT OF TUTOltS, ETC. 327 cause, if they have any, why the appointment prayed for shall not be made. 6 N. S. 455 ; 10 L. 54*; 3 R. 390. Art. 953. — If it be a relation not in the ascending line who claims the tutorship, the judge shall order the petitioner to declare under oath what arc the minor's relations residing in the State, who arc in an equal or nearer degree than he is, and on such declaration he shall order that such relatives be cited to show whether they have any cause for opposing the appointments prayed for. Art. 954. — If there be conflicting claims between the as- cending and other relatives, and one of them shall pretend a better right than the person claiming the tutorship, he shall file his written opposition to the appointment, in the office of the judge, before the day on which such an appointment is to be made, stating substantially his reasons for the opposition. 3 R. 390. Art. 955. — The judge shall determine in a summary way on such opposition, and shall confer the tutorship on the person whom he thinks to have the best right ; but the other party may appeal from his decision as hereafter provided. 3 R. 390; see 580, 1034, 1049. Art. 956. — If the father or mother of the minor have ap- pointed a tutor for him by will, the tutor thus appointed shall present a petition to the judge of probates, to which a copy of the will must be annexed, praying to be confirmed in Ms tutorship. 7 L. 543, 644. Art. 957. — If no relation of the minor claim the tutor- ship, or will accept the same, the judge may appoint, with the advice of a meeting of the minor's relations, or friends if he have no relations, any stranger wilUng to act in that capacity and having the necessary qualifications. 6 L. 213, 500 ; 7 L. 543 ; 11 L. 446 ; see 108. Art. 958. — A minor, who has arrived at the age of puber- 328 OF THE APPOINTMENT OP' TUTORS, ETC. ty, may, in his own name, present a petition to the judge in order that curators ad bona and ad lites, may be appointed for him ; he shall himself designate the persons whom he wishes to be nominated. But the minor must appear in person to confinn the state- ment in his petition. 6 L. 246; 7 L. 6C>0; see 110. — See nniciidment under "Appointment of tu- tors and curators," § 1. Art. 959. — If a minor, under the age of puberty be ab- sent, the judge, with the advice of a meeting of relations, or of friends if he have no relations, shall appoint for such minor a curator to take care of his estate, and another to take care of his person. Stat. 7th Jpril, 1826, p. 174.— § 17. That the English text of article nine hundred and fifty-nine be made to correspond with the French part by substituting the word "above" to the word "under" in the first line of said article. Art. 960. — If the person appointed as curator or tutor, have reasons to assign for not serving as such, he must, within ten days after having had notice of his nomination, if he re- side in the place, deliver to the clerk of the court, which has nominated him, a written opposition, setting forth the grounds of his refusal to act. If he reside not in the place, the delay of ten days, granted for filing his opposition, shall be increased at the rate of one day for every four leagues, counting tlic distance from his resi- dence to the place where the court which made the appoint- ment is held. Art. 961. — The judge shall decide summarily on the merits of such opposition ; if the reasons assigned be sufficient, he shall proceed to appoint another tutor or curator ; in the contrary case, he shall order him to act and to pay the costs of t,he opposition, leaving him the right to ajjpeal from his de- cision as hereafter prescribed. Art. 962. — The rules above prescribed with respect to the OF THE APPOINTMENT OF CURATORS. 329 tutorship of minors, shall govern as regards the curatorship of interdicted persons. Art. 963. — Curators must be appointed to represent per- sons absent ft-om the State, who have property in the State, and are unrepresented therein. Such appointment shall be made by the judge of probate of the place where the property hes. The person claiming such curatorship, shall be appointed, if he have the required quaUfication, and give the surety which the law directs. 6 L. 35.5 ; 11 L. 156, 331 ; 2 A. 662. Art. 964. — The above provisions shall not be so constraed as to prevent persons having claims against a minor, or a per- son absent, from pursuing the same, previous to a curator or tutor having been appointed, as above prescribed : but in such cases, the person claiming must in his petition, pray the court to which it is addressed, to appoint a tutor or curator ad hoc to defend the minor or absent person in the action. 6 R. 142; 2 A. 662, 1010. § 3. Of the appointment of Curators to vacant successions and to absent heirs. Art. 965. — The mode of proceeding to be pursued by courts of probates, in making inventories and sales of estates belonging to vacant successions, is provided by special laws. The following provisions relate only to the ai)pointment of curators charged with the administration of such estates. 1 L. 50; 9L. 142, 144, 146; 10 L. 462; C. C. 936, 3492. Art. 966. — One wishing to be appointed curator to a va- cant estate or to the estate of a person absent, must make liis demand by a petition addressed to the probate judge of the place where the succession has been opened. 5N. S. 506; 7 L. 402; C. C. 1038, 1106. Art. 967. — On the filing of such petition, the judge shall give pubUc notice of the same, and direct, if any opposition 330 OF XnE APPOINTMENT OF CURATORS. be intended, that the same be made within ten days from the date of the notice. 5 N. S. 500; C. C. 1107. Art. 0G8. — The notice sliall be given by wTitten advertise- ment in French and English, wliich must be posted at the door of the parocliial church of tlic place, if there be one, or at the door of the court-liousc. Art. 969. — Besides this notice, the advertisement must be inserted in French and English, as hereafter prescribed, to wit : in New Orleans and the places not more than one hun - dred miles distant from the same, in two of the newspapers printed in that city ; and in the places beyond that distance, in one of the newspapers, if there be any published within fifty miles of the place where the judge, giving the order, usually resides. 7 L. 40;-,; ('. C. 1109 Art. 970. — Opposition to applications for a curatorship, must be made within ten days of the date of the notice that such application has been made. 3L. 471; 4 A. 25; C. C. 111. Art. 971. — Such opposition must be in writing and signed by the opponent or his advocate : it must be delivered to the clerk of the court before which the demand has been brought. Art. 972. — This opposition can only be founded on the allegation of a better right on the part of the person opposing, than that of tlic person claiming the tutorsliip ; otherwise it shall be rejected with costs, and shall not prevent the confirming the tutorship to the person demandhig it, if he jjossess such requisites and give such security as the law calls for. 6 L, 448 ; 7 L. 402 ; 10 L. 440 ; 13 L. 78 ; 1 R. 461 ; 10 11. 193 ; sec 963. Art. 973. — If the opposition rests on a right of preference alleged by the person opposing, the court shall decide on the opposition in a summary manner, and shall confer the tutor- ship according to law, with a right of appeal to the other party, however, as hereafter declared. 3 L. 471 ; C. C. 1113 ; see 580, 876, 1034. OF THE BENEFIT OF INVENTORY. 331 § 4. 0/" the Benefit of Inventory. Art. 974. — The heir who wishes to enjoy the benefit of inventory, and to have time for dehberating, shall, as soon as he is made acquainted with the death of the person to whose succession he is called, present a petition to the judge of pro- bates where the succession is opened, to declare his intention of taking the time allowed to deliberate, and shall pray that an exact inventory be made of the succession property, after removing the seals, if any have been affixed. 1 L. 185; 4 L. 202; 10 L. 541; 11 L. 155; C. C. 1032; 7 l\. 24; 12 R.41. Art. 975. — The judge to whom such petition is presented, shall proceed to make an inventory of the property of the suc- cession, either in person or by appointing some notary for the purpose. — ^ 7 R. 24; 12 R. 41. Art. 976. — During the time allowed for making the inven- tory and for dehberating, the judge shall appoint an adminis- trator to retain the property, if any of the creditors of the succession shall require it, and in making such appointment, he shall prefer the beneficiary heir : such administrator shall give good and sufficient security, in the same manner as cu- rators of vacant estates and absent heirs, unless the said ad- ministrator shall prefer giving such security by a special mort- gage. 1 A. 181; 2 A. 462; C. C. 1034, 1042, 1119. Art. 977. — After the expiration of the time f )r making the inventory and for deliberation, the creditors and legatees of the succession, or any of them, may present a petition to the judge of probates of the j)lace where the succession is opened, and demand that the beneficiary heir be cited and made to declare whether he accepts or refuses the succession. 8 L. 414, 417; 9 L. 140; 7 R. 24 ; 12 R. 41 ; C. C. 1048. Art. 978. — If on such demand the beneficiary heir shall offer his renunciation in due form, he shall be dismissed with 332 OF THE SETTLEMENT OF SUCCESSIONS. costs, and the administrator of the succession shall pioceed to sell the property and pay the debts, under the authority of the judge of probates wlio apixiinted him in the same manner as curators of vacant estates are required to do. 8 L 420; 7 R. 24 ; 12 II. 41 ; C. C. 1029. Art, 979. — Where the presumptive heir of a i)erson de- ceased has not i)rayed for time to deliberate, every creditor or legatee of the deceased may, ten days after the opening of the succession, cite such heir to appear before the judge of pro- bates, and call on him to declare whether lie accepts the suc- cession or refuses it. 1 R. 24; 12 R. 41. Art. 980. — If the heir thus cited declares that he accepts, or if he be silent or make default, he shall be considered as having accepted the succession purely and unconditionally, and may be sued as if he had done so. Art. 981. — But if he declares that he wishes for the bene- fit of inventory and for time to deliberate, the judge shall de- lay pronouncing on the matter, until the expiration of the time allowed. Art. 982. — But if, when the creditor or legatee makes such demand, the time allowed by law has already expired, the heir shall be obliged to declare his intention within a time to be allowed by tlie judge, not more than ten days from that on which he ought to have given his answer, § 5. 0/ the settlement of successions. Art. 983. — All debts in money which are due from suc- cessions administered by curators appointed by courts and by testamentary executors, shall be liquidated and their ])ayment enforced by the court of probates of the place where the suc- cession was opened. The case is different with respect to the action of re- vcndication and other real actions which shall be instituted OF THE SETTLEMENT OF SUCCESSIONS. 333 against such estates ; they may be brought before the ordinaiy tribunals. Const. 1845; arts. 62, 78, 79; Const. 1852; arts. 61,76. Stat. 25th March, 1828, p. 156.— § 13. In any case where a partition of a succession has been or may be made, belonging to one or several heirs, who are present or represented therein, all the real and personal actions or others which are relative to the said succession, shall be brought against the said heirs, be- fore the district court of the district where the said succession is Oldened, which court shall have an exclusive jurisdiction to try the same, though the said heirs, or any of them, may re- side out of the said district : Provided, that the court for the first judicial district of this State, and the parish court of the parish of New Orleans, shall have a concurrent jurisdiction to try the said causes, whenever the succession was opened in this last parish. § 14. All suits brought against curators and other admin- istrators during the time of their administration or curatorship, shall, after the expiration of said time, and even after the said curators and administrators have rendered their accounts to the heirs, be, and remain in the court of probates, there to be con- tinued and tried without any additional formality except that of making the heirs parties to said suits, which shall be ordered by the court on motion of any of the parties, or on apphcation of such heirs themselves. § 15. In obtaining possession of the effects of a succession, the heirs shall not be permitted, under any pretence whatso- ever, to have an actual delivery of any property of such suc- cession which may be in suit, or to receive the proceeds or any moneys of said succession when there shall be claims thereon pending in the said courts, unless they previously give good and sufficient security, if the jilaintiff or plaintiffs in such suits re- quire it, and file their WTitten obligation to that effect in the said court of probates, which security shall be of one-fourth over and above the amount of the claims for money thus pend- ing, or of the appraised value of the property thus claimed, 334 OF THE SETTLEMENT OF SUCCESSIONS. wliich estimation shall be made by two appraisers appointed by the judgo 3R. 92; 4R. 412; 5 R. 314 ; 7 R. 24 ; 1 1 R. 77 ; 12 R. 536; 1 A. 173, 204; 2 A. 513; 3 A. 637. Art. 984. — No bearer of a claim for money against a suc- cession administered by a curator appointed by a judge or by a testamentary executor or administrator, shall commence an action against such succession, before presenting his claim to the curator, 6L. 75; 19 L. 441; 3 R. 2G4 ; 5 R. 270; 7 R. 24 ; 10 R. 372; 12 R. 41, 489; 2 A. 249. Art. 985. — If such claim be liquidated and be acknowledg- ed by the curator or testamentaiy executor or administrator, he shall write on the evidence of the claim, or on a paper which he shall annex to it, a declaration signed by him, and stating that he has no objection to the payment of such claim, after which the bearer of such claim shall submit it to the judge, that it may be ranked among the acknowledged debts of the succes- sion. 3 R. 92 ; 5 R. 270 ; 7 R. 24 ; 9 R. 61 ; 12 R. 16, 41, 489, 511 ; 2 A. 249. Art. 98G. — If the claim be not liquida'ted, or if the curator or testamentary executor or administrator have any objection to it, and consequently refuse to approve it, the bearer of the evidence of such claim, whatever may be its amount, may bring his action against the Qurator or administrator, in the ordinary manner, before the court of probates where the suc- cession was opened, and may obtain judgment in the same manner as in other courts. 3 R. 92 ; 5 R. 9G, 270 ; 7 R. 24 ; 11 R. 209 ; 12 R. 41, 489, 511. Art. 987. — But the creditor who has obtained such judg- ment, or the acknowledgment of his debt, can only obtain the payment of it concurrently with the other creditors of the suc- cession^, unless it be such a privileged claim as ought to be paid without delay. 7 R. 24; 11 R. 209; see 1063. Art, 988. — When the time for paying creditors shall have OF THE SETTLEMENT OF SUCCESSIONS. 335 arrived, the curators or testamentary executors shall call to- gether all the creditors of the succession, in the manner pio- vided by law, to receive what is due to them, as also interest and costs, if the estate be sufficient for that purpose, or to de- teimine the order in which they shall be paid, if it be insuffi- cieat. 9L. 49; 10 L. 358; 7 R. 24 ; 12 R. 41,611 ; 1 A. 92, 212; see 1054. Art. 989. — As the creditors of estates administered by curators or testamentary executors or administrators can only obtain payment after certain delays, interest shall be allowed on their debts, if the estate be sufficient, from the death of the debtor, if they were due at that time, or from the date when they became due, if it were after that event, although no ju- dicial demand may have been made. 6 L. 19 ; 362, 19 L. 441 ; 1 R. 393 ; 3 R. 270; 7 R. 24 ; 8 R. 488 ; 9 R. 276 ; 10 R. 474 : 1 A. 92 ; 3 A. 323. Art. 990. — It shall be the duty of the several judges of probates, on the application of the creditors or any creditor of a vacant estate, to cause, on the requisite advertisements being made, so much of the property of the said estate as is neces- sary to pay the debts of the same, which may be due, to be offered for sale and sold at public auction to the highest bidder fof cash, if the creditors require it ; and if, on thus offering Raid property for sale, the appraised value should not be bid and obtained, then, the same shall, in not less than fifteen, nor more than twenty-five days, from the time it is thus offered, be sold at public auction and after public advertisement, to the highest bidder, for what it will bring, on a credit of twelve months ; provided, however, that in all sales of effects belong- ing to a vacant estate, on a credit, the purchaser shall give bond and security to the satisfaction of the probate judge and curator, and a mortgage on the real estate so purchased. Stat 15th March, 1830, p. 64.— § 1. From and after the passage of this act, it shall be lawful for testamentary execu- tors, administrators, and curators, to cause the property real and personal, of such succession or successions as may be un- 536 OF THE SETTLEMENT OF SUCCESSIONS. dcrthcir administration, to be sold by any commissioned auf-« tioneer, and sucli sale or sales so made, shall be {;ood and valid in law ; provided said testamentarj- executors, administrators or curators (as the case may be) comply with the requests of the law, relative to the sale of successions, or vacant estates, and provided the said testamentary executor, curator, or ad- ministrator, or any other person, cause the process-verbal of such sale or sales when made in the parish of Orleans, to be re- corded in the office of the rej^ister of wills, and wlicn made in any of the other parishes of this State, in the office of the parish judge. § 2, All the laws and parts of laws now in force, which are in contravention of this act, be and the same are hereby repealed Stat. 7th April, 1847, p. 73.— It shall be the duty of the judge of the court in which a succession is opened to order the sale of all i)roperties belonging to said succession, to be made by either the sheriff of the parish, or by such auctioneer or auctioneers as may be appointed or named by the person ad- ministering said succession. 7 L. 316; 8 L. 412; 9 L 48, 181 ; 9L. 378, 11 L. 156; 5 R. 96 ; 7 R. 24; 10 R. 457 ; 11 R. 209 ; 12 R. 41, 511 ; 5 A. 437 ; 6 A. 446. Art, 991. — It shall be the duty of the judge of probates in all cases of vacant estates, on the application of the credi- tors or any creditor thereof whose debt shall not then be due, to sell, after the usual advertisements, upon the conditions con- tained in the preceding article, so much of the estate as will be sufficient to pay the claim or claims of the creditors who shall make the application, and on such terms of credit as will correspond with the falling due of the several claims of the creditors. 7 R. 24 ; 10 R. 457 ; 11 R. 209 ; 3 A. 407 ; 8cc 668. Art. 992. — The principles contained in the two preceding articles, shall apply to all successions accepted with benefit of inventory, whether the heirs are minors or of age, and to all successions administered by administrators. 4 R. 412 ; 5 R. 96 ; 7 R. 24 • 10 R. 467 ; 3 A. 407 OF THE SETTLEMENT OF SUCCESSIONS. 337 Art. 993. — Ten days after the classification and order of the payments shall be fixed by court of probates, and as often thereafter as a majority of the creditors in amount may require it, it shall be the duty of the curator to account for before the judge of probates and pay over to each of the creditors or their representatives, a due proportion of the sums which he may have in his hands ; and on his failing to render his account, ten days after being notified of the demand of the cioditors to that effect, or to make payment within ten days after the account rendered, execution shall issue, of course, in the name of all the creditors of the estate, or of those to whom he has failed to make payment, against all the property of said curator which shall be sold, after the usual advertisements, for what it will bring in cash. V R. 24 ; 11 R. 209 ; 12 R. 41, 511 ; see 1057. Art. 994. — When tutors and curators of minor heirs ad- minister a succession with the benefit of inventory, and the said tutors or curators fail to pay over the money as specified in the preceding articles for the government of curators of^ vacant estates, execution shall issue against said tutors or cu- rators in the same manner as is provided in said article against the beneficiary heir and curator of vacant estate, and on said execution, the property of said tutor or curator shall be sold in the same manner as that of a beneficiary heir and curator of vacant estate. Y R. 24; 10 R. 451 ; 12 R. 41. Art. 995. — What is said in this section in relation to the liquidation of estates, only applies where such estates are ad- ministered by curators or other persons appointed by a court, or by testamentary executors. 4 R. 20 ; 5 R. 96 ; Y R. 24 ; 12 R. 536 ; 1 A. 92, 204. Art. 996. — The case is difierent when such estates are in the possession of heirs either present or represented in the State, although all or some of those heirs be minors ; for in such cases the actions for debts- due from such successions 22 338 OF ACCOUNTS TO BE RENDERED, ETC. ^ shall be brought before the ordinary tribunals, either against the heirs themselves, if they be of age, or against their cura- tor if they be under age, or interdicted. 6 N. S. 521 ; 5 L. 386 ; 10 L. 10, 17 ; 3 R. 29 ; 4 R. 412 ; 7 R. 21 ; 12 R. 630 ; 1 A. 92, 204, C. C. 1051. ^ 6. — Of Accounts to be Rendered by Administrators of Estates, and other Persofis. Art. 997. — The judges of the courts of probates who have appointed or confirmed the tutors or curators of minors, interdicted, absent, or other persons unable to administer their own i)roperty, testamentary executors, curators of vacant es- tates or absent heirs, or other i^ersons administering successions, alone have the power of compelling them to account and pay over what they may be found to owe. Stcd. 13th March, 1837, p. 95.— § 3. All executors, admin- istrators, curators and syndics, shall deposit all moneys hereto- fore collected by them as such, and all moneys hereafter col- lected, as soon as the same shall come into their hands, in one of the chartered banks of this State or in one of their branches allowing interest on deposits^ if there be one in the parish, and shall keep a bank book in his official name and character, and shall on no account remove or withdraw said dei)osits or any part thereof, until a tableau of distribution shall be homologat- ed, or unless ordered by a competent court, and then only to pay such debts as may be ordered for payment ; and if any executor, administrator, curator of a vacant succession or syn- dic, shall fail to comply with the jjrovisions of this section, and proof shall be made thereof by any creditor or other person interested, wliicli proof may be administered on simple motion after ten days' notice, which motion may be filed in the clerk's office at any time, then such executor, administrator, curator or syndic, shall be condemned jointly and severally with his secmity or securities, to pay to the use of the estate twenty per cent. i)er annum interest, on the amount not so deposited or withdrawn without order, besides all special damage .6u£fer- OF ACCOUNTS TO BE RENDERED. ETC. 33^ ed, and shall be dismissed from office as executor, administra- tor, curator or sjmdic, as the case may be. § 4. Any creditor or otlier person interested, may at the regular sittings of the courts in New Orleans, and in the coun- try, as well during the vacation as the sitting of the court hav- ing jurisdiction, file in the clerk's office a motion to know whe- ther any executor, administrator, curator or syndic, has any funds ; and such executor, administrator, curator or syndic, shall be bound within ten days to ffie a true statement of his account with the bank showing the amount of funds collected by him, and on failure so to do, such executor, administrator, curator or syndic, shall be dismissed from office, and pay ten per cent, per annum interest, on any sums for which he may be responsible. § 6. All executors, administrators, curators of vacant suc- cessions and syndics, shall at least once in every twelve months render to the probate court a full, fair and perfect account of their administration, and on failure so to do, shall be dismissed from office and pay ten per cent, per annum interest, on all sums for which he may be responsible from the date of the ex- piration of the twelve moiiths aforesaid. T N. S. 106 ; 2 L. 52, 484 ; see 924, 1007. Art. 998. — Therefore, if a minor, a person under interdic- tion when restored to his rights, an absentee whose property has been administered by a tutor or curator, wishes to make his tutor or curator account for his management, he shall pre- sent his petition for that purpose to the court of probates by whom such tutor or curator was appointed, praying that he may be cited to appear in the ordinary manner, and that he may be decreed to give an account of his administration, or pay such sum as he may suppose to be due. 3 N. S. 607; 3 L 245; 6 L. 30; 9 L. 239; 10 L. 474; 11 L. 21; C. C. 1181; see 1000, 1033. Art. 999. — The minor who has a right to demand this ac- count, can only institute the action in his own name, after the attainment of full age. If he has only reached the age of 340 OF ACCOUNTS TO BE RENDERED, ETC. puberty, he shall be assisted by a curator ad lites, even if he be emancipated, unless he be a married man. Stat. \2tk March, 1828, p. 154.— § 12. That the nine t hundred and ninety-nintli article of the Code of Practice be so amended as to authorize a married woman, who is a minor, to sue and to be sued, even in the case i)rovided for by the said article ; Provided, she acts under the authority and with the consent of her husband, though himself a minor ; and that, in such case, it shall not be necessary to appoint to her a curator ad litem. 3 L. 516; 9L. 571; 2 A. 553; C. C. 368. Art. 1000. — When the heirs or other persons entitled to successions which are administered by curators appointed by a judge, or by testamentary executors, shall present themselves, or send their powers to reclaim such successions, they shall present a petition to the judge who a])pointed or confirmed these curators or executors, praying that they may be cited and compelled to account for their administration. 4 R. 42, 278; 6 R. 9; 7 R. 183; C. C. 177. Art. 1001. — The said heirs or other persons claiming, shall file along with their petition, all such i)roofs as may go in sup- port of it, to the end that the curator or testamentary execu- tor may be made acquainted with them. 4 R. 42, 278; 6R. 9; 7 R. 183 Art. 1002. — The judge shall pronounce on this claim in a summary manner, as soon as the time allowed for the curators or executors to answer shall have expired. 9 L. 416; 10 L. 171; 4R. 42, 278; 6 R. 9 ; 7 R. 183. Art. 1003. — If from the examination of the testimony produced in support of the prayer, the judge discovers that the petitioners are entitled to the succession, he shall put them in possession of it, and shall direct the curator or executor to render an accoimt witliin a reasonable time to be fixed by him. Stat. 15th March, 1828, p. 156. — § 15. In obtaining pos- session of the effects of a succession, the heirs shall not be OP ACCOUNTS TO BE RENDERED, ETC. 341 permitted under any pretence whatsoever, to have an actual dehvery of any property of sucli succession which may be in smt, or to receive the proceeds or any moneys, of said succes- sion when there shaU be claims thereon depending in said couits, unless they previously give good and sufficient security If the plamtifF or plaintiffs in such suits require it, and file their written obligation to that effect in the said court of pro- bates, which security shall be of one-fourth over and above the amount of the claims for money thus pending, or of the api-ised value of the property thus claimed, ;hich esti- mation shall be made by two appraisers appointed by the 10 L. 329; 11 L. 223 ; 4 R. 42, 278 ; 6 R. 9;7R. 183. Art 1004.— If the curator or executor obeys the order and renders his account, the heirs or other claimants shall, within three days afterwards, file their written objections, if they have any, signed by themselves or their counsel, to each item of the account to which they object, or of which they pray for the rejection. •' ^ ^ 4L. 300; 9L. 48,59; 12 R. 155. Art. 1005.-The judge may himself decide on these objec ^ons, or refer them to auditors, to make a report on thcni to Art. 1006.-If from his own examination, or the report of the audi ors, the judge thinks the objections unfounded, he shall condemn the party making them to pay the costs ; if, on the other hand, he considers them well founded, he shall sentence the curator or executor to pay the costs of the pro- ceedinc:. ^ See 6 N. S. 335. Art. 1007.-If from a scrutiny of the account the curator or executor shall appear to owe a balance, he shall be sentenced to pay It to the heirs or other claimants, with interest from he day of judgment: if the balance is in his' favor, the pe- titioners shaU be adjudged to pay him in the same manner 342 OF ACCOUNTS TO BE RENDERED, ETC. and he may, until such pajincnt be made, retain the property of the succession which may be in his hands. S L. 194 ; 10 R. 479 ; 11 U. 1S:5 ; 1 A. 92 ; See 7 L. 389 ; 8 L. 199 ; 9 L. 284 Art. 1008. — The rules above established shall be observed in all cases of petition for an account brought before the courts of jirobatc. Art. 1009. — If the heirs or others entitled to successions which arc administered by curators appointed by a judge, do not appear or send their j)o\vers before the exj)iratioii of the time at which such administrators are to render their accounts, according to law, it shall be the duty of the judge of i)robate3 who appointed or confirmed them, to name a counsel for the absent heirs, if there be not one already, to demand an account from such administrators, and to make them pay the balance due, if there be any, into the treasury of the State. 9 L. 284, 308 ; 10 L. 275 ; see 6 L. 656 ; C. C. 1210, 1654; sec 917, 1016, 1054. Art. 1010. — The counsel thus appointed shall present his petition to the judge of probates, and shall cause the curator or executor to be cited and directed to render his account within the time determined by the judge. Art. 1011. — If, at the expiration of such time, he refuses or neglects to render his account, the judge shall issue a man- date directing him to comply with the provision of the law, and if within the time allowed to obey this mandate the administrator persists in refusing to render an account with- out tendering a good reason for the delay, the judge shall order him to be arrested and imprisoned until he renders the account. Art. 1012. — When the tutor or curator of a minor, inter- dicted or absent person, or of a vacant estate, refuses to render an account to those who have a right to demand it, such per- sons may compel him either by praying that he be imprisoned until he do render it, or by having his property and income distrained, or by using any other means which the law may afford. See 2 L. 266. OF THE REMOVAL OF TUTORS, CURATORS, ETC. 343 ^7. Of the Removal of Tutors, Curators, and Testamentary Executors. Art. 1013. — Tutors and curators of minors, interdicted and absent persons, and curators of vacant estates and absent heirs, or other administrators of successions, may be removed by the court of probates wliich aj^pointcd them, for any of the causes specified by law. 5 N. a 382; 10 L. 474; 9 R, S63; C. C. 1J49; see 1018 Art. 1014. — Testamentary executors may be deprived in the same manner, and for the same causes. 9 R. 353. Art. 1015. — It shall be the duty of every person to ac- quaint the judge of probates with the flict rendering it proper to remove the tutor or curator of a minor or person interdicted. 1 L. 65; 10 L. 84; see 1033. Art. 1016. — The judge, when made acquainted with such fact, if he thinks there is probable cause for removal, shall direct the subrogated tutor or the curator ad lites of such minor to prosecute the removal of the tutor or curator ad honay or if the said minor has no subrogated tutor or curator ad lites, he shall appoint a curator ad hoc to commence the action. Art. 1017. — The action for the removal of the tutor or curator of a minor shall be commenced by petition and cita- tion, and the matter shall be conducted in the usual form. 9 R. 353, 354 ; 1 A. 20. Art. 1018. — The removal of curators of vacant estates and absent heirs, and that of testamentary executors or other administrators of successions, may be prayed by any heir, creditor, or other person concerned, and the suit be conducted in the same manner as above. 1 A. 20; 4 A. 123; see 10 L. 477; 19 L. 31 ; C. C. 332; sec 1014. Art, 1019. — The judge who shall be made acquainted with any fact sufficieut to justify the removal of a curator of 344 OF THE PARTITION OF ESTATES. a vacant Buccession or of absent heirs, whom he has appointed, may direct the counsel of the absent heirs whom he shall ap- point for the purpose, to institute a suit in their name to obtain a removal of such curator. 9 R. 354. § 8. Of the Partition of Estates. Art. 1020. — Whenever a minor, interdicted or absent per- son, is interested in the partition of a succession, it shall be made by judicial authority. 6 L. 474, 572; 1 A. 228; see 3 L. 143; C. C. 1246; see 116, 122, 946, 959. Art. 1021. — Even when all the heirs are of full age, and present, or represented in the State, the partition shall be made by the same authority, if one of them refuses the parti- tion, or they cannot agree upon the mode of making it. 7 L. 160; 11 L. 446. Art. 1022. — All partitions of succession property shall bo made by the court of probates of the place where the succession is opened. . Art. 1023. — Every heir, whether of fuU age or minor, may force his co-heirs to a partition. 10 L. 458; sec 8 L. 179, 676. Art. 1024. — The heir desirous of obtaining a partition, shall present his petition to the judge of probates, praying that his co-heirs may be cited to hear the sentence of partition and the mode in which it js directed to be made. 10 L. 502; 17 L. 346; 19 L. 36; 4 A. 56, 260; see 16 L. 157 ; 10 R; C. C. 1230, 1231, 1234, 1246. • Art. 1025. — The judge of probates to whom tliis petition is made, shall cite to appear before him, the other co-heirs, although all or any of them have their residence out of his jurisdiction. 11 L. 446; see 164, 1024. Art. 1026. — The sheriffs of the different parishes, to ON THE PARTITION OF ESTATES. 345 whom such citations arc directed, shall serve them on the parties concerned residing in their parishes, and return them vnth their report to the court which issued them, in the same manner as with ordinary citations in other cases. See 186, 582. Art. 1027. — At the expiration of the time allowed for answering the petition, the judge shall decree the partition, direct the manner in which it shall be made, and refer the parties to a notary whom he shall appoint to make the parti- tion. 8 L. 554, 577 ; 1 R. 512 ; C. C. 12G7 ; sec 1033. Art. 1028. — If in the course of the proceedings before the notary, any controversy should arise between the parties, the judge shall decide on it in a summary manner, on motion by the first party applying to him, and on giving notice to the other parties and a reasonable time for them to answer. See 1034. Art. 1029, — When the partition is completed by the notary, any person interested may deposit a copy of the pro- ceedings on it, in the office of the court which directed it, and may move that his co-heirs shall be called to state, within ten days after service of the order on them for that purpose, any reasons that they may have why the partition shall not be homologated. 6 N. S. 654 ; 10 L. 502 ; 1 R. 149. Art. 1030, — If the co-heirs have any objections to the manner in which the partition was made, they shall make opposition in writing to the homologation prayed for, within the time above allowed, stating the en-ors or irregularities of which they have to complain in said partition. 1 R. 149. Art. 1031. — If the judge consider the opposition well founded, in part or in whole, he shall order that the partition be rectified, and shall refer the parties to the same or another notary whom he shall appoint, who shaU prepare a supplemen- 346 OF THE PROCEEDINGS OF ALL ACTIONS IN tary act of partition, in conformity with the judge's decision, a copy of which shall be on the files of the court, as well as the act of partition. 1 R. 1S9. Art. 1032. — If the judge considers the opposition of the co-heirs unfounded, he shall confirm the act of partition, and it shall become final between the parties, provided the legal formalities have been observed, 7 N. S. 312 ; 1 R. 139 ; sec Slat. ISJth March, 1828, § 13. Sec. II. — 0/the Proceedings in relation to all Actions brought in the Courts of Probates. Art. 1033. — Whenever a proceeding is commenced in the court of probates by citation, and no shorter time has been fixed by law, the defendant shall have the same delay to a})pcar and answei:, as in the ordinary tribunals of original jurisdiction. Art. 1034. — Whenever it is said in this title, that a cause shall be decided in a summary manner, the judge shall pro- nounce upon it with the greatest practicable celerity, giving it a preference over all other petitions to which the law has not afforded the privilege of a summary process. 5 R. 96 ; 6 R. 9. Art. 1035. — Judges of probates shall sit for the trial of contested cases at least once a month, on a day to be fixed by them, except in the city of New Orleans, where the said court shall sit at least once a week to decide cases pending before it. With regard to summary cases they shall hear them every day, at certain hours to be appointed by them, 6t as often as may be necessary. Const. 1845, art. 78; Const. 1852, art. 71 ; sec art. 921 and amendment; 5 R. 96; 11 L.4a6; 1 A. 20. Art. 103G. — All cases tried before a court of probates shall be decided without the intervention of a jury, even if the parties should wish for one. THE COURTS OF PROBATES. 347 Art. 1037. — Courts of probates have power to issue orders of arrest, attachments, sequestration, writs of distringas, pro- visional seizure, execution and injunction, in all cases where they may be necessarj and proper : to compel the attendance of witnesses ; to issue commissions for taking their depositions : to appoint experts, auditors or arbitrators ; to compel parties or other individuals to produce title deeds, papers, or other objects which may be in their possession ; to punish contempts of their authority, as other judges may ; and in short, to ex- ercise all such other powers not enumerated in this title, as may be necessary to enforce their jurisdiction. 1. R. 271; 4R. 278; see 210, et seq ; 269, etseq; 248, ct seq ; 641, et scq; 296 et seq ; 471, etseq; 425, et seq; 441, c^ seq; 473, et seq , 131, et seq. Art. 1038. — Courts of probate may call meetings of the creditors of such successions as are administered under their authority, when the curators or executors or other administra- tors of successions think such meetings necessary to ascertain the wish of the creditors with regard to the manner of selhng the property. Art. 1039. — Courts of probate may homologate the de- liberations of such creditors in the same manner as is done in cases of bankruptcy, and may pronounce summarily on such opposition as shall be made. 2 A. 782; sec 1034. Art. 1040. — Courts of probate may adopt such rules of proceeding as they may think proper, in cases not provided for by the present title, provided they be not incompatible with what is here contained. Art. 1041. — But judges of probates cannot, as such, grant writs of habeas corpus, or issue any of the mandates mentioned in the tenth chapter of the first title of this second part. 1 A. 75; see 7'Jl, 792. Art. 1042. — The testimony of witnesses in causes before the courts ol' jirobates, shall be taken in writing, and annexed to the record, and a list shaU be made of such documents as 348 OF THE PROCEEDINGS IN ALL ACTIONS IN are. produced by the parties, and arc not annexed to the record, that they may be read on the appeal. 16 L. 236 ; 1 R. 2; 3 A. 654 ; 4 A. 487, 500 ; A. 530; see 6 N. S. 102. Art. 1043. — The rules relative to exceptions to the judge's opinions on such points of law as arc submitted to him, to the mode of demanding and granting a new trial, of signing the final judgment, of appealing from it, giving security on such appeal, taking a copy of the record and filing it in the appel- late court, and of citing the appellee, are the same as are pro- vided for the courts of original jurisdiction, in the first title of this part. Art. 1044, — All the rule concerning pleadings and orders which are required to be in English and French, before the other tribunals, as provided in the first title of this part, shall prevail also in the courts of jjrobates, unless the parties con- sent that they shall be in English only. Art. 1045. — The judges of the courts of probates, in parishes where there are no registers, and the register of wills for the parish of Orleans, shall keep two records in the same form as is directed for clerks of the district courts of the State. Art. 104G. — The register of wills of New Orleans shall, under the direction of the judge, make the inventories and sales of succession property, which are directed by law to be made by the courts of probates, independently of such duties as they have to perform in coinuion with other clerks. 2L. 328; 11 L. 166. ' Art. 1047. — The sheriffs of the different parishes shall execute all the orders, judgments and decrees rendered by the courts of probates in their respective parishes, and shall receive the same emoluments as are allowed them in the district courts. Sec 7 CO. Art. 1048. — The sheriffs shall also attend or send one of their deputies or constables to the courts of probates which shall be held in their parishes, and for such attendance they THE COURTS OF PROBATES. 349 shall be allowed one dollar on every cause decided, which fee shall be taxed and paid by the party, or succession which shall be sentenced to pay the costs. See 920. Art. 1049. — Appeals shall be carried from the courts of probates directly to the supreme court, in all cases where th( matter in dispute shall exceed the sum of three hundred dol- lars. 3 R. 5 ; see 874, 1051 Art. 1050. — The appeal shall be taken in the same man- ner from judgments confirming or removing a tutor or curator of a minor, interdicted or absent person, of a vacant estate or absent heirs when the value of the succession property shall exceed the sum of three hundred dollars. 8 N. S. 286 ; 3 L. 260, 446 ; 3 R. 5 ; see 876, 1059. Art. 1051. — When the object in dispute or the property of the succession does not amount to three hundred dollars, but exceeds one hundred, the appeal from the courts of pro- bates, except those from the parish of Orleans, shall be carried to the district court within the jurisdiction of which the court of probates is held. The district court shall proceed in the same manner as is prescribed by this code in relation to appeals from the parish to the district court. See 569, 1049. Art. 1052. — There shall be no appeal from the decisions of the court of probates for the parish of Orleans where the object in dispute is of less value than three hundred dollars. The constitution of 1845 having abolished exelusivc probate courts and vested jurisdiction in the district courts; and no exclusive probate courts hay ing been created under the constitution of 1852, these articles (1051 and 1062) are no longer in force. Art. 1053. — When a judgment shall be rendered for a sum of money, against a curator to a vacant succession, or absent heirs, or against a testamentary executor or other administra- tor, such administrator shall, within three days after the judg- 350 OF THE PROCEEDINGS IN ALL ACTIONS IN ment has been notified to him, if he has a sufficient amount in his liands, discharge tlie amount of the judgment, if it be for a privileged debt, such as funeral or law charges, or others of that kind, which are to be paid in preference to all others, be- fore the exi)iration of the three months within which curators of estates and testamentary executors are bound to make pay- ment of the debts due by the estate which tlicy administer. 7 R. 46; see 10 L. 12C. Art. 1054. — But if it be for an ordinary debt the cura- tor, testamentary executor or other administrator cannot be compelled to pay the amount of such judgment, until after the expiration of the three months allowed him to ilischarge the debts of the succession, and if the time be expired, he shall pay the amount of such judgment concurrently with the other debts of the succession, by applying to the judge of probates who appointed him, for a convocation of the creditors, in the manner i)rcscribed by law, that he may distribute among them the sums whicb may be in his possession. 16 L. 126; 1 R. 40; 12 R. 511. Art. 1055. — But if the curator, executor or other adminis- trator has no funds in his hands, he shall inform the sheriff, when the judgn^ent is notified to him, that he has not sufficient funds to satisfy it. 6 R. 68;7 R. 46; 9R. 276 ;12R. 511. Art. 1056. — The party obtaining the judgment, may, thereupon make a motion to the court that the curator or ex- ecutor shall be compelled to prove the truth of his declaration, by filing in court, within a time to be specified, a brief state- ment of his condition, as administrator or executor with regard to the said succession. 6 R. 68; 9 R. 276 ; 12 R. 511. Art, 1057. — If the curator, testamentary executor or ad- ministrator, refuses or neglects to pay the amount for which judgment has been rendered, in one of the modes pointed out in the preceding articles, or if he fails to prove that he has no 7nE COURTS OF PROBATES. 351 funds in his hands, belonging to the succession, the party in whose favor the judgment was rendered, may take out an exe- cution against him, under which his property, to a sufficient amount to pay the debt, shall be seized and sold. 6 R. 68 ; 9 R. 276 ; 12 R. 511 ; see 993. Art. 1058. — If the judgment direct that something shall be given or delivered, or that something shall be done or refi'ain- ed from, the party in whose favor it is rendered, may, on the curator, executor or administrator failing to satisfy it within three days after it is notified to him, and when the judgment shall have acquired the force of res judicofa, obtain an order to distrain the property of such administrator, until he com- plies with the judgment. 11 L. 498; set 630. Art. 1059. — When an appeal is made from a judgment appointing or removing a tutor or curator of a minor, inter- dicted or absent person, or of a vacant succession or absent heirs, or other administrators of successions, such appeal shall not suspend the execution of the judgment, but it shall havo eftect pro\dsionally, until the apjDcal is decided. 5 A. 518; see 580. 352 OF THE JURISDICTION OF JUSTICES OF TITLE IV. OF PROCEEDINGS BEFORE JUSTICES OF THE PEACE. CHAPTER I. OP THE JUKISDICTION OF JUSTICES OF THE PEACE IN CIVIL MATTERS, Art. 1060. — Justices of the peace have jurisdiction both in civil and criminal matters. It is their civil jurisdiction which is treated of in the present title. Art, 1061, — Justices of the peace have an exclusive origin nal jurisdiction in all the civil cases hereafter mentioned. 4 L. 12. Art. 1062. — With regard to the civil jurisdiction of justi- ces of the peace, three things are to be considered : 1. The value of the object in dispute ; 2. The nature of the case submitted to them ; 3. The domicil of the defendant. Art. 1063. — Justices of the peace may pronounce judg- ment : 1. On all claims for sums of money, by whatever right they are claimed, whether as debts, damages, jfines or taxes : 2. On all claims for the restitution of movable property ; But in neither case have they any jurisdiction, when the value in dispute exceeds the sum fixed in the two following articles. THE PEACE IN CIVIL MATTERS. 353 No. 93. Stat Sth April, 1853.— § 1. From and after the passage of tliis act, justices of the peace throughout this State shall have the power to ai^point curators ad lites, to enable minors to present their claims before said justices of the peace, when the amount claimed shall not exceed one hun- dred dollars : Provided, there be neither natural nor legal tutor to said minors, and that it be made to appear, by proper affidavit, that the minors are transient persons following some trade or occupation, and are without parents in this State. § 2. Said curator ad litem shall, in no case, be entitled to any fees nor commission on the amount of any judgments collected, and shall have no control over any moneys arising therefrom. § 3. Said judgments, when collected by the constable of the court in which the suit was instituted, shall by him be paid over to the minor himself without additional costs or com- mission. Art. 1064. — Justices of the peace, except those of the city and precincts of New Orleans, have cognizance of aU cases of the nature of those described above, where the matter in dispute does not exceed the sum of fifty dollars. Const. 1852, art. 78. Stat. 7th April, 1826, p. 174.— § 1. Hereafter, justices of the peace shaU have jurisdiction when the amount claimed or value of the object in dispute does not exceed one hundred dol- lars exclusive of interest, subject to an appeal to the district court in all cases when the amount sued for, or the value of the object in dispute exceeds ten dollars : Provided, that this section shall not be construed to extend the jurisdiction of jus- stices of the peace over other objects of property, than those embraced by existing laws ; the intention of this section be- ing to increase the amount of jurisdiction and determine the amount for which appeals may be granted. § 2. Justices of the peace may celebrate marriages within their respective parishes. 23 354 OF THE JURISDICTION OF JUSTICES OF Art, 1065. — Justices of the peace in the city and precincts of New Orleans exercise the same jurisdiction, to the amount of one hundred dollars, and no more. Art. 1066. — The district and parish courts have no origi- nal jurisdiction in causes of which the cognizance is thus given to justices of the peace exclusively. 4 L. 12. Art. 1067. — To ascertain the amount in dispute before justices of the peace, regard must be had to the demand, with- out considering interest and charges which may enlarge the sum. Art. 1068. — Justices of the peace have no jurisdiction when the right of property or the possession of an immovable or slave, or the right of imposing a tax or toll, is called in question, although the amount of the demand may not exceed the sum of which they are allowed to take cognizance. Stat. 7th April, 1826, p. 174.— That the article one thou- sand and sixty-eight be amended by striking out the words : " or the right of imposing a tax or toll " which exist in said ar- ticle, Stat. 2d April, 1832, p. 150.— § 1. Hereafter the police juries of the different parishes of this State, are hereby author- ized and empowered, if they deem it proper, to divide their re- spective parishes into as many sections as they may think proper, and for each section thus laid off, one or more justices of the peace may be appointed, if there bo not a sufficient num- ber resident therein. § 2. In future, no justice of the peace shall hold, exercise, or entertain jurisdiction in any civil matter where the defendant does not reside witliin the limits of his ward ; jjrovided, that in cases where there is no justice of the peace resident in any ward, when he is absent, or where there ex- ists some legal ground for his recusation, then the nearest justice of the peace to the residence of the defendant, may ex- ercise jurisdiction. § 3. That should the police jury of the parish of Jefferson, THE PEACE IN CIVIL MATTERS. 855 divide the said parish into wards, as authorized by this act, the justice of the peace in the ward containing the suburbs of the Nuns, Lafayette, Livaudais, and Wiltz, shall have jurisdiction up to one hundred dollars, with a right to the parties of an ap- peal for all sums over ten dollars, to the parish judge ; the proceedings had before the said justice of the peace, shall be the same as those prescribed by law for the associate judges of the city court of New Orleans. Art. 1069. — In civil cases within their competence,' justices of the peace can only cite before them such persons as are do- miciliated or residing within the limits of their jurisdiction, or strangers who may chance to be there. In this case the term strangers applies to such as have no domicil, or fixed place of residence in the State. Art. 1070. — Justices of the peace can only exercise theii authority in the limits of the parish for which they are ap- pointed, or in such limits as are prescribed to them by special laws. Art. 1071. — Justices of the peace decide without appeal, in the city and precincts of New Orleans, on all demands, within their competence, where the principal of the demand does not exceed twenty dollars ; and in the rest of the State, on all demands where the principal does not exceed ten dollars. On aU judgments exceeding these sums, an appeal is al- lowed in the manner hereafter provided. Art. 1072. — If a justice of the peace before whom an ac- count is brought, is of kin or allied to one of the parties, he may be challenged by the other, and in that case he shall send the cause to be tried by the justice of the peace living nearest to the domicil or usual place of residence of the de- fendant. 356 OF THE MODE OF TRIAL CHAPTER II. OF THE MODE OF TRIAL BEFORE JUSTICES OF THE PEACE. Art. 1073. — The claim, the answer, and the other pro- ceedings in causes brought before justices of the peace, are piade verbally, and there are no written acts but such as are expressly required by the present title. Art. 1074. — To preserve a record of what takes jilace be- fore therQ, justices of the peace shall keep a bound book, in which they shall set down, in the order of date, the different causes which are brought before them, and in this record they shall state : 1. The title of the suit, that is, the names of the plaintiff and defendant ; 2. The object and the amount of the demand, if it be a sum of money wliich is claimed ; 3. The date of the citation, and the service of it ; 4. The answer of the defendant, if he appears, and his non-appearance, if he makes default ; 5. The names of the witnesses produced by both parties ; 6. The date of the judgment, and its substance, Avhich shall be written in full ; 7. The date of the appeal, if one has been taken. Art. 1075. — The formalities required above in the mode of keeping the record, are not indispensable, and their omission does not nuUify the proceedings. Art. 1076. — But when such record is regularly kept, a copy of it certified by the justice shall be admitted in evi- dence on the appeal, with respect to the facts which are declared in it. Art, 1077. — When a suit is instituted before a justice of the peace, he shall make a note in his record, of the date and BEFORE JUSTICES OF THE PEACE. 357 nature of the demand, and shall immediately prepare a eita French and English ,f either party speaks French as a mother tongue, othenvise the citation to be in English only, to all he defendant before him, to answer said demand, and he sha de Uver the said citation to any constable of the pa, 1 hat t" may be serx-ed on the defemlant ' Art 1078.-The constable to whom the citation is de- ivered shaU serve it on the defendant by delivering said cita- Um to him, or by leaving it at his usual place of residence n.tif;rr. -'''- ''''-' ''' -'-'' •^"'- - ■>'- -^ AitT. 1079._If the defendant be a mariner, cr person em- ployed on board a ship or other vessel, and has 'no oJhe Inov™ place of residence but said ship, the constable may serve the citation by delivering it to him in person, or by leavin. it on board, with some free person of the crew whom he shalf judg^ to be above the age of fourteen years ^ ^ thedefcndaTT?" T"-''""" ^''" ^"™"° «- -''''ion on the defendant, shall return in writing to the justice the date ::t::ron[i:fiirzr------"-»ot^^^ AuT. 1081.— If any dispute arise concerning the foct of such^sernce, or its date, the constable shall be'a .0^^ AET 1082._Thc defendant thus cited, shall only be obliged to appear and answer to the action, the day aftei the service of the citation, if he reside or happens to be In t le ci tv or precincts of New Orlean.,, or within ten days afte , 2 vice, in other i)arts of the State Art. 1083._When the defendant appears the iustice Bhal record his an.swer, and if he decline's the j isd tl" art. 1084.-If both parties are ready to try the eau.se ali"fif "r'T""' •" "^" i-™g-otherwise'«t juS BhaU a, such a day and hour as he thinks proper, aliowiug 358 OF THE MODE OF TRIAL sufficient time to the parties to summon their witnesses, if it be necessary. Art. 1085. — If, at the time fixed for the hearing of the cause, one of the parties foils to appear, the justice, after the lapse of an hour, if the party reside in town, or after waiting an hour longer, if they reside in the country, shall discharge the defendant with costs if it be the plaintiff who makes de- fault ; and if it be the defendant, the justice shall proceed to hear the plaintiff's testimony, and if he find the claim to be well founded, he shall grant a judgment by default against the defendant, which may be carried into execution three days after being notified to him. Art. 1086. — If the two parties appear at the time ap- pointed, the justice shall immediately proceed to hear them and to render judgment, and in this case the judgment may be executed without being notified. Art. 1087. — The parties may appear before the justice either in person, or by a special attorney or by a lawyer. Art. 1088. — At the time of trial, or before, each party may call on the other to testify on oath, on the matters in dis- pute between them, and the justice may receive their declara- tion in ^vriting, and annex it to the record, after having caused it to be signed by the party attesting, or his mark made, if he cannot write. Art. 1089. — If the suit be in revendication of a movable object and the defendant pleads to the jurisdiction of the jus- tice of the peace, on the ground that the thing claimed is be- yond the value of which he has cognizance, the judge shall cause it to be appraised by two persons selected by the parties and sworn by him, who shall make their a])praisement in writ- ing, and according to such appraisement the justice shall de- termine whether he be competent or not. If one of the par- ties refuse to name an appraiser, the justice shall appoint one for him, and shall also appoint an umpire if the two first can- not agree in the appraisement. Art. 1090. — The party considering himself injured by the . BEFORE JUSTICES OF THE PEACE. 359 judgment, may appeal from it, on declaring such his intention to the justice, without presenting any petition, and the jus- tice shall note the time of such appeal, and take from the ap- pellant such security as the case requires. Art. 1091. — If the defendant has pleaded compensation, the justice shall admit the plea, if the amount pleaded be a liquidated sum, or can be proved without retarding the deci- sion of the cause ; and if under this plea, the defendant is only indebted for a balance, the justice shall give judgment for such balance only, and the defendant shall pay the costs, un- less he had oflFered to pay such balance. Art. 1092. — But if the defendant, on pleading compensa- tion, has offered to pay the balance wliich he considers due, by depositing it in the hands of the justice, the defendant shall only pay costs up to the time of such offer, and the plaintiff shall bear the expenses subsequently incurred. Art. 1093. — If the compensation pleaded exceeds the de- mand, the justice, if he considers the plea to be rightly made, shall render judgment in favor of the defendant, if he prays it, for the excess of the debt pleaded in compensation over that on which the demand was founded, and the plaintiff shall pay the costs. Art. 1094. — If it be proved to the justice that before the commencement of the suit, the defendant had offered to the plaintiff in the presence of a credible witness, to pay the sum or thing claimed by him, the justice, in pronouncing judgment in favor of tlie plaintiff, shall sentence him to pay the costs, and shall allow him no interest except such as had accrued before the offer. Art. 1095. — Except in the cases where offers have been made, as provided above, the party cast shall always pay the costs, although the judgment be for a smaller sum than was claimed. 360 OF ORDERS WHICH JUSTICES OF CHAPTER III. OF ORDERS WHICH JUSTICES OF THE PEACE MAY MAKE IN SUITS COMMENCED BEFORE THEM. Art. 1096. — In causes within their jurisdiction justices may issue orders of arrest, attachment, sequestration and pro- visional seizure, according to the rules hereafter provided. Art. 1097. — Every creditor for an amount within the juris- diction of a justice of the peace, may have his debtor arrested and compel him to give security to appear, if the debtor ia about to depart from the State, or from the parish ■where he has his domicil, or if ho has no domicil in the State. Art. 1098. — The creditor wishing to arrest his debtor, shall make liis demand, before any competent justice of the peace, to have the debtor cited and condemned to pay the sum due, and that he be at the same time required to give security to appear and answer the said demand. Art. 1099. — But this arrest shall only be ordered by tho justice, on the creditor making an affidavit that the defemlant is really indebted to him in the sum demanded, stating such sum precisely ; and such affidavit shall also state that the creditor really believes that his debtor is about to depart from the State or parish of his domicil, before judgment can be ob- tained against him, and tliat such debtor docs not to his know- ledge, possess any property in the State, to satisfy the de- mand. Art. 1100. — When the demand shall be brought against a person having no domicil in the State, the creditor may have him arrested and held to bail, by declaring in his affidavit that such creditor has no domicil in the State, without being oblig- ed to declare that he is about to dci)art, but in other respects, taking the same oath as required in the preceding article. Art. 1101. — The justice to whom this prayer for arrest shall be made, accompanied by a suitable affidavit, shall de- THE PEACE MAY MAKE IN SUITS, ETC. 361 liver to a constable, a citation, and order to arrest and bring before him tlie said defendant, and he may answer to the ac- tion brought against him. AiiT. 1102. — The constable charged to execute this order, shall a. rest the defendant, on delivering to him the citation of which b? is in possession, and shall take him before the justice of the peace who caused him to be cited, if the said justice be at his ofrce. Art. 1103. — Tlie justice shall require from the defendant liis bond in double the sum demanded, with one good and sol- vent surety, conditioned for his appearance on the trial of tlie cause. Art. 1104. — If the defendant will not or cannot give the security required of him, the justice shall send him to prison, there to reniain until he gives the security demanded, or shall be discharged from imprisonment in tlie manner provided by law. Art. 1105. — If the constable who has arrested the defend- ant does not find the justice at his office, he may take from the defendant, the security for his appearance, recpiired above, or in default thereof, conduct him to prison, by virtue of the order which ho has received. Art. 1106. — It shall be the duty of the jailer of the parish whither the defendant shall have been carried, to receive and keep him until £et at Hberty, by order of the said justice ; and for the support of the defendant while in prison, the plaintifif shall pay to such jailer, weekly and in advance, the sum of three dollars and iifty cents. Art. 1107. — The justice of the peace to whom the plain- tiff shall apply for the arrest of his debtor, shall recpiire from him such sum as^ ought to be advanced to the jailer, on deliv- ering the debtor into his custody ; and in all civil actions brought before them, jiistices of the peace may demand secu- rity for the costs. Art. 1108. — The bond to be furnished by the debtor un- der arrest, shaU contain .i condition, that if he should depart 362 OF ORDERS WHICH JUSTICES OF without permission from the justice who caused him to be ar- rested, or should fail to appear to satisfy such judgment as may be rendered against him, his security shall be bound to satisfy such judgment, to the amount of his bond. Art. 1109. — Even when the debt, owing from a person about to dei)art from the State, is not yet due, the creditor may, if the debt be one of which a justice of the peace has cognizance, apply to any competent justice, and procure the arrest of his debtor to comi)el him to give security for his ap- pearance when the debt becomes due. Art. 1110. — But to obtain such order of arrest, the cred- itor must make an affidavit, in which he shall declare that the person whom he wishes to arrest is really indebted to him in a sum whicli he shall sj^ecify and Avhich is not yet due, and that he is informed and verily believes that such debtor means to depart permanently from the State for the purpose of defraud- ing his creditors, and without leaving any property, as far as he can learn, to satisfy them. Art. 1111. — In case of such arrest, the person thus brought before a justice of the peace, shall be set at liberty, if he furnishes to the justice, his bond in double the amount in which he is indebted, with one good and sufficient security, conditioned that he will surrender himself on such judgment as may be pronounced on the debt, when it becomes due, or that his security shall pay it for him ; otherwise the justice shall imprison such debtor until he furnish the security, or pay the debt. Art. 1112. — A person who shall have become security for another, in a cause depending before a justice of the peace, may, at any stage of the cause, provided it be before judg- ment, release himself from all responsibility on that account, by giving .up the person of the debtor to the justice who took the bond, and who shall then imprison the debtor, unless he give new bail. Art. 1113. — The bail vho wishes to give up the debtor's person, may, if the debto refuses to come voluntarily, or THE PEACE MAY MAKE IN SUITS, ETC. 363 wishes to leave the State or the jurisdiction of the justice, without his consent, apply to tlic judge who took his bond, to have the debtor arrested, as p'ovidcd above. Art. 1114. — If the bail does not produce the body of the debtor in execution of the final judgment which has been ob- tained against him. the plaintiff may apply to the justice who issued the execution, if the constable has made a return, stat- ing that he has found no property of the debtor, and obtain judgment against the surety for so much as is covered by liis bond, and no more. Art. 1115. — No order of arrest or imprisonment can be obtained in civil suits commenced against minors, unless they make a business of buying and selHng merchandise ; or against a woman in any civil case. Art. 1116. — A person who is creditor for a sum within the cognizance of a justice of the peace, may attach the pro- perty of his debtor, in the three following cases : 1. If his debtor resides out of the State ; 2. If the debtor is about permanently to depart from the State ; 3. If the debtor be only transiently in the State and have no domicil in it, or so conceals himself that process of law cannot be served on him. Art. 1117. — A creditor who wishes to obtain an order from a justice, for attaching his debtor's property, shall make an af- fidavit that such debtor is really indebted to him in a sum which he shall specify, and is in one of the predicaments men- tioned in the preceding article, describing such i)redicament expressly. Art. 1118. — The creditor sliall, moreover, deliver to the justice his bord in favor of tlie defendant for double the amount of the demand, with one good and sufficient surety, to answer such damages as the defendant may sustain, in case the attachment should prove to have been improperly obtained. Art. 1119. — The justice of the peace to whom such demand and affidavit shall be presented, shall direct to a constable of 364 OF ORDERS OF JUSTICES OF THE PEACE. the parish a citation against the defendant, and an order tc attach the movable property which the defendant may have in the parish, wherever it may be found, even in the hands of tliird persons, as well as such debts as may be owing to liim, although they are not yet due. Art. 1120. — The constable charged with the execution of this order shall begin by serving on the defendant the citation, which is issued in the same manner as in ordinary cases, if such defendant has domicil in the place, or if he can be found ; but in the contraiy case, or if the defendant be absent, the consta- ble shall affix a copy of such citation, in English and French, at the door of the parish church, if there be one, and on the door of the court-house of such parish. Art. 1121. — The constable shall then proceed without de- lay to seize the movable property which the defendant has in his parish, to the value of the sum due, together with interest and costs, and shall make a list of such property in the pres- ence of a credible witness, which list he shall deliver to the justice issuing the order of seizure, on making his return. Art. 1122. — If the defendant's property consist in debts owing to him, the constable shall attach and stop them in the hands of the debtor, after receiving his declaration of the amount due by him, and the time when it is to be paid, and shall make his rejiort of it to the justice, as above directed. Art. 1123. — If such debtor refuses to declare what he owes to the defendant, the plaintiff may have him cited before the justice of the peace, to compel him to make such declaration under oath to the justice, and if he refuses to make such de- claration, or fails to appear, such refusal shall be considered as an acknowledgment that he is indebted to the defendant in a sufficient sum to discharge the demand, and judgment shall be rendered against him in favor of the plaintiff. Art. 1124. — If a claim be made before a justice of the peace for a specific object, or any movable of a value within his jurisdiction, the plaintiff may require that such object shaU be sequestered until judgment be had, if he makes his affidavit OF APPEALS FROM JUDGMENTS, ETC. 365 that he verily fears that the defendant means to remove such object out of the said justice's jurisdiction. Art, 1125. — If a demand be made for a sum due for rent within the jurisdiction of a justice of the i)eace, the plaintiff may demand that the furniture of the house subject to the rent be seized provisionally, if he make an affidavit that he is afraid of the defendant removing it from the house, to deprive him of the pledge which he has on it. Art. 1126. — Whenever a plaintiff wishes to obtain an or- der of seizure, attachment, sequestration, or provisional seizure, before a justice of the peace, the agent or attorney of such plaintiff may be allowed to make the necessary oath ; Provided, such oath be founded on his own knowledge, and not on infor- mation derived from his principal. Art. 1127. — But the defendant whose jiroperty shall have been seized, attached, sequestered, or provisionally seized, shall obtain a restoration of such i:)roperty, if he give to the justice of the peace his bond, with one good security in double the amount demanded, to satisfy such judgment as shall be ren- dered against him, with interest and costs. CHAPTER IV. OF APPEALS FROM JUDGMENTS RENDERED BY JUSTICES OF THE PEACE. Art. 1128. — Appeals from judgments rendered by justices of the peace in the city of New Orleans, where the value of the object in dispute exceeds the sum of twenty dollars, and in the other parts of the State where the value of the objects in dispute exceeds ten dollars, are brouglit before tlie judges of the parish where such justices exercise their functions. Art. 1129. — Therefore, in all causes brought before a jus- tice of the peace in which an appeal is allowed, he shall make an exact statement of the depositions of the witnesses produced 366 OF APPEALS FROM JUDGMENTS RENDERED before him by both parties, and when one of them declares ver- bally his intention of taking an appeal, he shall prepare a state- ment of facts containing the substance of such depositions, and after communicating it to both parties, he shall sign and annex it to the record which he shall send to the appellate court. JStat. 1828, p. 158.— § 21. The articles eleven hundred and twenty-nine, eleven hundred and thirty, eleven hundred and thirty-six, and so much of the article eleven hundred and thirty-five of the Code of Practice as relates to the statement of facts to be made by justices of the peace, shall be and the same are hereby repealed ; and that in future all appeals from judg- ments rendered by justices of the peace shall be tried in the parish courts de novo, except the parties mutually agree be- fore the justices of the peace to send up the appeal upon a statement of facts which they shall make. Art. 1130. — But if the parties themselves agree on such a statement of facts, the justice shall allow them to do so un- der his direction, and shall retain this statement to transmit to the appellate court, after having caused it to be signed by the parties, or their marks affixed, if they cannot write, and certified it under his own signature. See 1129, and amendment. Art. 1131. — No appeal from a judgment before a justice of the peace shall stay execution, unless the said appeal be taken three days after the judgment, if it has been pronounced in the presence of the parties, or within three days after the notification of it, if it has been rendered in the absence, or on default of one of the parties, and unless the appellant shall execute his bond in the appellee's favor, with one good and sufficient security, for double the amount of such judgment, conditioned that he shall pay such sum as shall be awarded against him on the appeal. Art. 1132. — If the appellant will not, or cannot give such security, the justice of the peace shall allow him to appeal if he give security in a sum to be fixed by said justice, sufficient BY JUSTICES OF THE PEACE. 367 to pay the costs, but in this' case the appeal shall not stay ex- ecution. Art. 1133. — If a party havin