The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1877-05-22

United States court until now, because IL WAS
nj cssssry first TO determine what Was the nature
OF the present proceeding, and 10 define the
limits within which 1t could be used by either OF
the parties.
Tie right OF transfer IL founded upon the act
Of Congress which provides tor the enforcement
OF the right Of suffrage OF colored persons,
wherein IL IL enacted that Whenever any person
shall be defeated or deprived OF bis election TO
denial to any citizen, who shall Offer to
vote, on account OF race. color or previous
condition Of sefvitude, such person
may bring any appropriate suit or proceeding to
recover possession of such Office and upon the
other statutes which specify the classes of cases
that are removable. basis is laid for the appli-
cation by averments in the petition for removal
that ut least TO- 600 colored citizens who offered to
vote at the election Of 7th November, 1876 were
denied the right 10 vote ON account OF their color
OF previous condition Of servitide, and that by
reason Of such denial the res ondtnt ID deprived
OF his ofI,ee.
The Issue thus atten pied TO be raised In this
petition for removal Ia identical with that pre-
scented by the answer, viz. the title to the Office
Of Auditor, and we have seen thst under no cir
cumstances can The title tn an of1lee be inquired
into by mandamus. Since. then, the right to
remove the cause Ia claimed because OF the as
sumption that the proceeding has quality which
IL has not, Ii follows that the refusal to remove
we shall make the writ pefemptory, and in
doing 30 1t IL obvious that we recognize the
relator as the Auditor Ut Public Accounts OF this
State. There are persons and factp OF which q
court takes judicial cUgniz ince. This court takes
eognizace Of the fact that Francis T. Nichols liz
the Chief Executive Of this State, and regards
hia commission az furnishing prt'',d fdete title
TO en- office. We take judicial cognizaDce ut the
persons who hold The principal offices Of State
Of the Attorney General, who represents the
State iii this proceedug-pf the relator a. the
Auditor. Government could not exist, under our
form, without thus taking certain things for
granted. Government must have a BEGINNING,
and Ii is an elementary and . necessary principle
that The courts constituted by ind organized
under government, must recognize the author
lily under which they act
But this does not prevent the RESPONDENT
from inquiring into the .rightfu'ness OF rela-
tors title TO his Office In thas fofm OF pro-
cpdure which The law has designated for that
purpose. There liz a mode provided by
law and indicated az the special machinery 10
ntruded into his Office. ruen inquiry cannot be
pro 5ohed by respondent in an answer to rule Why
4 mandamus should not isene, nor could the rels-
tor have demanded an adjudication Of his own
title by invoking the writ tor that purpose.
Let the persmpt9ry writ issue, commanding
the respondents to deliver to the felator the keys,
archives, books, records and papers belonging to
the Office of Auditor of Public Accounts of this
8 ate, and Ii is further ordered aud deereed that
the felator have and recover of the respondent
the costs OF both courts.
No. e5e0.--Harah and Austin Voolfolk ct al We.
Emily Wooflk, Elise Labauve ct 81. opponents
and appellants. Appeal from The Parish court,
parish OF Iberve. Plaintiffs aud defendants
having unconditionally accepted the succession
OF Austin Wo lfolk, Sr., and having taken posses
sion OF it's property Exceeding $500 In valuel,
the Parish Court has no jurisdiction OF the suit
for par itior between those parties, and, there
fore, the judicial mortgages OF opponents have
not been displaced by the sale under decree for
partition, aud have not been transferred from
the property to the proceeds. Judgment reversed.
No et97-Joha /. Adams Il Go. appellants vs.
John Nelson ct al.-Appesi from the District
Court parish Of Lafourehe. Where the plea OF
non joinder mia ninder Of parties IL made only
In the argument Of counsel, the court cannot
notice 1t. Where defendant, In his answer, adj
mits certain allegations Of plaintiffs, who are
suing az partnership. to be true. ii is waiver
Of his right TO take advantage Of any variance be-
tween the names OF the persons stated In the
petition as composing the firm, and those dis
clcssd in the evidence, unless be has by special
pies put that variance at iseue. Judgment ag sinst
defendant, In solido for s24,539 IA. with reoogni-
lion Of mortgage.