The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1868-02-19

| by the usual forms of the law.
The next question 10 be determined is whether
the validity Of plaintiffs title is put at issue by
the pleadings in this cause in other words, Il
this petitory or a possessory action? II the
former, the title TO the lands in controversy is al
iesne; the latter, the title is not at issue and
the only question is ss to the possession. (Code
Practice, 43, a., As, As et seg.)
The petition alleges that plaintiff is owner, and
in possession for more than one year, of these
lands, by virtue Of his entries and patents; that
defendant, BOhn, entered said lands a second
time in January, 1866; shat he sets up a claim
OF ownership by virtue Of his second entry. and
is proceeding to obtain patent, and that plain
tin fears that defendant, BOhn, will disturb him
by attempting TO take actual possession of these
lands, and commit trespass thereon, and
prsys that the affidavit and bond an
nexed to the petition being considered,
defendant, Bohn, be enjOned from further
proceedings to procure patent, and from tres
passing, and that AdOlphe Dupre, Sr., register of
the land office, the other defendant. be enjoined
from issuing patent TO BOhn, and foally prays
for judgment in his favor peTpetuating the in
ton.
The defendant, Bohn, after a general denial,
admits the second entry, but alleges that the
lands in controversy had not been disposed of by
the State, that they were open for entry and
prays for judgment against plaintiffs demand.
Adolphe Dupre, ST., has filed no answer, bat
judgment by default having been taken. the case
stands against HIM as confirming a default.
The character Of an action, whether petitory or
possessory, is to be determined not by the al
legations alone, but by the prayer Of the
petition and the allegations taken to-
gether. IL plaintiff alleges that he is owner
and in possession, and prays for possession, { ie
scton is poSSeSsory. II he prays for judgment
for the property, Tor the ownership, the action
will be pettOTy. Hood VS.. Segrest. l Rob. l0a.
In the case at bar plaintiff alleges that he Is 10
possession as owner, under act, Q. P. AZ that he
Is disturbed by the defendant. BOhn, aud suing
out an injunction to restrain him from distur.
bance or uespass, pending the suit, prays for
judgment against both defendants perpetuating
the Injunction. PaiUtif has not asked for judg-
ment decreeing him TO be the owner Of the land
nor to annul the certificate obtained by the de-
fendant, Bohn, but only for a judgment to per-
petuate an Injunction against disturbance of 8
possession. 10 seems 10 me clear that this is the
possessory action. must therefore disregard a
that portion of the evidence, which has reference
to the tile to the property described in the petit
ton.
/ am of the opinion that the fact of the posses.
sion by plaintiff, and of the disturbance by the de-
fendant, is fully made out by the evidence; and
plaintiff is entitled 10 judgment as prayed for.
have arrived at this conclusion from a careful
examination of the peadings. and the evidence,
and OF the law applicable to the case. But think
that the statute of 2lst February, 1866, (p. 50)
relied upon by counsel for plaintiff is conclusive Of
this controversy. Section first of that act re.
cites: That the officers of the State land Office
are directed to suspend the sale of such public
lands as have been already entered by parties
since the outbreak of the late civil war; and in sll
cases where a second entry has been made before
the PRONUNCIATION of this act. 10 suspend the issu
ance Of the patent in the name of the State for
said second entry" The language of the act is
clear and imperative, and am bound to give it
effect.
Adolphe Dupre, Sr., register of the State land
office, being a ministerial officer of the govern
ment, nominal party to this suit. and without
interest, should not be condemned to pay costs.
InfN Nhara ha I'D. f.,
prayed for in the petition, and that August Bohn,
defendant pay the costs OF this suit.
FRs-A fire broke out yesterday morning
about ii O'Clock, in the kitchen in the rear
OF MIR. Hart's house on Enghein street,
between Love and Craps streets. occupied as a
rag picker shop, by which the building was en-
iirely destroyed and the following houses con.
sumed or damaged: Mr.. McCsulay's kitchen, con-
sumed and insured; two kitchens belonging to
Mrs. Waldauer, consumed and insured and the
kitchens of Mr.. Miller and Mr.. Foley damaged.
The want Of water was severely experienced.
A DESIRABLE ORGANIzATIoN.-Iti is, we are in
formed, in contemplation with a number of Irish
gentlemen, old residents and substantially identi.
fed with the interests Of New Orleans, to organ.
ize society for benevolent purposes, which will
aid their cOuntrymen already here, and assist and
advise those who may come hereafter. Such So
cieties, Irish. English, Scotch, German, French.
Italian and Spanish, have been and are among the
most conspicuous features OF social organization
In New ork and there is no doubt that, with
their occasional festivities published TO the world,
and the knowledge spread abroad that honest and
good citizens had banded together to aid zone an
other and befriend the stranger, such assOcia-
tions have had much to do in concentrating to
that city the vast tide of European emigration
that for fifty years has set in there aud has been
directed thence westward, TO the profit of the
sapaciOus people who now find themselves cit
zens of the imperial city Of the continent.
New TRIAL GRANTED ON CHARGE OF ARSON
The Supreme Court yesterday, in an appeal taken
from the First District Court in the case of E.
Rose and II. Abrahams, convicted before that
tribunal-Rose Of being the principal in an arson,
and Abrshams Of being an accessOry-granted a
new trial to Abrahams. The judgment is as fol-
lows, and the reasons OF the court explain the
ground of appeal:
" Harris Abrshams having been indicted as an
accessory TO the fact TO the crime Of arson. and
having been sentenced TO suffer the punishment
prescribed by law for such ofense, has appealed.
" On trial the Jury rendered against him the
verdict guilty as accessory, and the question is
whether he could be condemned as accessory be-
fore the fact under such verdict.
"A person may De guilty of the crimes Of &C
cessoIy before and accessory after the fact: bat
the crime of accessory before the fact is different
from the crime Of accessOy after the fact and the
respective punishments for these ohenses are also
different. The accessory before the fact is sub
ject to the same punishment as the principal OF.
only TO fine or imprisonment, or both.
''The verdict guilty as accessory is not sn un.
ambiguous response TO the charge OF guilty as
accessory before the fact, for the words Of the
verdict may as well apply to guilty as accessory
after. the fact as to guilty accessory
before the fact, end the judge in sentencing Abra-
hams had to interpret the verdict. As The jury
did not expressly 6nd Abrahams guilty of the
oflense as charged, or as an accessory before the
fact by tUppOsition only could the Judge de-
termne that the jury had found him guilty as
accessory before the fact.
LET the sentence of the judge and the verdict
Of the jury as TO Harris Abrahams be set aside,
and let the case be remanded.n
In connection with this case there ia an appeal
pending, taken from the Sixth District Court
against iudpment giving G.. Salvador five thou
sand dollars, claimed by him, a reward offered
by underwriters, for the conviction Of party of
arson. The plea Of the insurance companies is
that the reward was not offered until after the
arson was committed Of which Rose was con.
victed. he having taken no appeal, is ia the
Penitentiary expstDg his sentence.
Or TIE SHELL ROAD.-Yesterday was one OF
the pesfsutest days of the season, aud the OpDOr-
tuDity was taken by many 10 drive out to the lake
end. The Canal street road is not in q perfect
STATE, owing, no doubt, to the bad weather which
we have experienced lately, but this defect will
be remedied we have been told, very shortly.
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