The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1849-05-18
Supreme Court of Louisiana.
Condensed Decsions-NEw ORLEANS, May IA,

| Supreme Court of Louisiana.
Condensed Decisions-NEw ORLEANS, May Il, 1919.
Proceedings under the act of March 49, 1sO to mplisoa
fraudulent debtor essentially civil proceedings
Art 1O7 of the Constitution is applicable 10 criminal
| prosecutions only.
| MARTIN & SToCKwELL as. PETER CHRYsTAL.
| Appeal from The Third District Court of Nep Or
| leans. .EusTIs, C. j.. Appeal by defendant
| from judgment by which he was adidged to pay
plaintiffs 1865 81, with interest," and to be imprs-
oned for two years from the rendition of the udg-
ment The proceedings against defendant
| instituted under the act of March %, 1S40 entitled
an act TO abolish imprisonment for debt" The
trial by jury was waived, and the lower court held
defendant guilty of fraud under the 10Th section Of
said act in having purchased merchandise for cash
and having obtained possession thereof and dis
posed of the same, and removed it beyond the reach
OF his vendors, without having paid the price or
| any portion thereof.
The principal defence was that the offence i'm
| pued to defendant was essentially criminal one
and the proceeding not being Instituted by and in
the name of the State, but conducted solely on the
petition of plaintiffs it cannot be sustained under
art lU1 OF the Constitution. This ground was
| deemed by the Supreme Court untenable, and it
was held that proceedings having for their object
the incarceration of the debtor for the payment of
his debts have always been considered by courts
as civil and not ct. criminal proceedings: Maurn's
case, Is l.. r. $50; Andrews Us. His Creditors IL
l.. k. 467; L. II. 574; L. r. 1913; l.. II. 175
Art. 1O7 of the Constitution held to be appi-
cable to criminal prosecutions only. Judgment
affirmed, with costs.
SAMUEL WILSON Us. DAVID GowANs... APP
peat from The FtM District Court Of Nev Orlea,s.
RosT, j.. Judgment reversed plaintiffs iniInc-
| ton dissolved and defendant allowed TO proceed
under his order of seizure and sale, plaintiff 10
| pay costs in both courts.
JULIA ARBUCKLE Us. WIDOW B. BoUNY AND
w. l.. IALBOTT, CALLED An
| peal from The Fifth District Court Of Men Orleans
EUsTIs, c. j. Action by plaintiff for her free
| dom under the last will of the late Samuel Ar
buckle, of Missouri, who died in 1915 The iudp.
ment below in favor of plaintiff was affirmed with
| costs.
Where the transcript of appeal has been eaonaby filed
motion to dismiss the appeal that ground need not
be made within three days after the record iled-it
may be made any time thereafter Decision in O Reilly
Us. Mcleod, 2 An. 1873. overrued.
E. P. DWIGHT, CURATOR OF WIN. s. BARR,
Us: JOHN +. MCMILLEN. Appeal from the Fifth
District Court Of New Orleans. :. SLIDELL, j..
The appeal IN This case was relurnable on the first
Monday of November, 1913. The transcript was
not filed until the 9th of December 1913. The ap.
pellee has moved TO dismiss The appeal on this
ground. The appellant resists this motion, alleging
1t was not made within three days after the tran.
| script was filed, and quotes O'Reiy u.s. Mcleod,
2 An. 1873.
| Per curiQm: "Under the provisions of the Code
| of Practice we have frequently held that party,
who negects TO file the transcript seasonably must
be considered as having abandoned his appeal
The omission OF the Appellee 10 move the dismissal
upon that ground within three days after the filing
OF The transcript ought not 10 bar the appellee, for
two reasons: l, because he was not cited and 9,
because ne cannot be held to constant vigilance,
after the legal delay has passed, in watching day
by day the docket to see at what time the negligent
appellant VIII ilie The Transcript" Appeal dis
| missed at appellants cost.
w,,so p,,n
Uuo,,ns H. IN 1' s ~, Vs. r iAabEpn'
- 80 so a. Y ~ if,eue J'o" "'e Io"'h DGS-
MJrnant a a. aI" .L '..'
'u0s "i'''' ann ''0o wiz" eos@'
JAMES p. KAy rs GEopcr Cp,Nr AoneoJ
from The late Gin Court of Lafauet,e SINH
i Indictment affirmed win costs
Where an affidavit for an injunction is susceptible of
constructions one good and sufficient the other bad and
insufficient, the Injunction ought not be granted MAN.
tanned The act OF 1881, relative to damages on judy
ments enJoined Is not applicable to an injunction sued
ont against The execution OF Judgment OF ejecment
D.NRtcE P,rp1cK W.rsu pr Ar Aooeo1
from, he EurL D;.tr;c, /r,,rt nf ~, n II
SrInEI, AnneaI bv nj. iot;a. fron, th md
mant Of he ionsr CON-, sns,aininn IacnjJatS5
,,;a 20 J;oi,, H. -; 800; S ~. L
..a - ~ - - ii ~ pi
was ;nsnfc;sn, frhs sa;da7, MAJ . as t ema,.
" D.n Pins ,ha .hn,. nanaaJ na,;,;n,,<- -.
oath tho, ,b. rao,s coz 10Th in ~ -. anes
which in his on;n;on renJsr a.. i,no,io r,ap,saa
are true to the hest of his knouIsJoe an bol;r',
tn Surname conr, Hi Tho, III; a. 40 w. 80 ~
csnha Of tun oonstruc,inns ' Sna = no, u.s.
nla;ntifr means IN swear hat the fac,s ,st fnr y;
The neti,ion are trne and that in his on,;nn ,hau
render an iniunclion necessary The o,her iS tba
he means io swear that sncI Of the Gcts stated nc
in his npinion render an iniuncIon necessary arc
true Construed in the former sense The afI;dav;,
would he good in the latter If vouH he had Per
curon 4 nariv annlving far an Injunction should
present an afI;dav,t clear and nna3m;vocai as,,h
fishing bv his oath ali the facts which would war
rant the interference of The Cont Inv laving Char
basis for an Indictment for pur,rv if any of The
alIeeatons sworn tn he untr,,a Whan the AFFIDAVIT,
has q donbf uI asnect az in the nrasant case The
ini,Incfion oupht NOT to be GRANTED ar mainfanaJ
Hebert ne Jolv 81 r - lanai Panl ,s Carr;,J
4 Az ~ ;nJ,,,,,, h,I,,,,,, no., :, 4.:.,I ,lI,
and defendant being decreed TO nav The costs nr
appeal. The District Judge having erroneouslv al.
lowed fen per cent interest IN tn, Indictment en-.
ioined. which was udpment of e;ectment nder
the ACT of 1871 relating 10 iudumeots for ,,oaev