deed was executed, James Hall went into possession of some of the land reserved, as above, and died while so in possession, and his widow, the appellee, Ella Hall, claimed the land. H. C. Hall brought this ejectment suit to recover the land so occupied by said Ella Hall, and on the trial asked that the deed containing the above clause be excluded from the jury, because it conveyed nothing to James Hall, which the court refused, and, judgment being rendered for defendant, plaintiff appeals.

Clayton & Anderson, for appellant. Allen, Robins & Stribling, for appellee.

CAMPBELL, J. The deed offered in evidence by the defendant should have been excluded, and the verdict should have been for the plaintiff. Reversed and remanded.

STEIN v. HAMBLETT.

(Supreme Court of Mississippi. January 28, 1889.)

EXEMPTIONS-RIGHT TO.

Under Code Miss. § 1244, providing that certain things shall be exempt from seizure on execution, the right to exemptions may be asserted, though the title of the claimant to the property claimed as exempt be only a possessory one.

Appeal from chancery court, Yalobusha county; B. MCFARLAND, Judge. On a former appeal certain property was claimed by the wife of T. H. Hamblett, but was adjudged to be liable for her husband's debts, under section 1300 of the Code of 1880. Hamblet v. Steen, 4 South. Rep. 431. When the sheriff proceeded to levy on the property, and sell the same under the former judgment, to satisfy the judgment of appellant, Stein, T. H. Hamblett obtained an injunction restraining the sheriff from selling certain personal property, as he claimed the same to be exempt. He had tendered the sheriff a bond, which was refused; hence the injunction. The court sustained the claim for exemption, and Stein appealed.

R. H. Gallody and I. T. Blount, for appellant. Geo. H. Lester, for appellee.

CAMPBELL, J. Certain things are exempt from seizure under execution. Section 1244, Code. It matters not by what tenure the articles are held by the defendant. They cannot be taken from him. His right may be merely possessory, and the allowance of exemption may inure to the benefit of some one else, who may wrest the property from him; but they are exempt because the statute so provides, and it does not make exemption depend on the title of the defendant. Affirmed.

MOSELEY v. JAMISON.

(Supreme Court of Mississippi. February 4, 1889.)

WITNESS-EXAMINATION.

In an action to recover damages for the shooting of plaintiff by the defendant, the former rested after having shown the fact of the shooting and his injuries, and the defendant then introduced evidence to justify his action. Held, that the exclusion of the testimony of a witness for plaintiff as to the commencement of the affair leading up to the shooting, on the ground that such testimony was not in rebuttal,

was error.

Appeal from circuit court, Chickasaw county; J. W. BUCHANAN, Judge. While trying a case before E. A. White, a justice of the peace, Moseley being the attorney prosecuting Jamison as the defendant, a difficulty arose be

tween them in which Moseley was shot, both having used pistols, and Moseley brought this suit for damages, and there was verdict and judgment for Jamison, from which Moseley appealed.

W. T. Houston, for appellant. W. G. Orr, for appellee.

CAMPBELL, J. The judgment must be reversed because of the exclusion by the court of the testimony of E. A. White, a witness for the plaintiff, as to the beginning of the rencounter between the plaintiff and the defendant, out of which this action arose. The plaintiff produced evidence of his having been shot and injured by the defendant, without disclosing the particulars of the shooting, and, having shown the extent of his injuries and damages, rested, when the defendant introduced evidence to justify his shooting the plaintiff. After the defendant had closed his evidence, White was introduced, and asked as to the commencement of the shooting, and, on the objection of the defendant's counsel, was not permitted to tell of the beginning of the difficulty because it was said his testimony was not in rebuttal. It is impossible to conceive of a more manifest instance of rebuttal than is here presented; and for this flagrant error, although it cannot be said confidently whether the excluded evidence would have produced a different result or not, the judgment must be reversed. Reversed and remanded.

SIMS v. STATE.

(Supreme Court of Mississippi. February 4, 1889.)

CRIMINAL LAW-FORMER ACQUITTAL.

Where one indicted for unlawful cohabitation with his daughter, E., was acquitted because the proof showed that E. was his step-daughter, a plea of former acquittal to a subsequent indictment for unlawful cohabitation with his step-daughter, E., constituted no defense.

Appeal from circuit court, Tunica county; J. H. WYNN, Judge.

J. B. Perkins, for appellant. T. M. Miller, Atty. Gen., for the State.

ARNOLD, C. J. Appellant was indicted for unlawful cohabitation with his daughter, Emma Sims. On the trial, the proof showed that Emma Sims, was his step-daughter, and not his daughter, and he was acquitted, the court instructing the jury to acquit on account of the variance. Afterwards appellant was indicted for the same act and offense with Emma Sims, his stepdaughter, and to this indictment he pleaded the former acquittal. The plea was held insufficient by the court, and he was convicted, and appealed, and assigns for error the judgment of the court as to that plea. As the acquittal on the first indictment resulted from a variance in the allegations of the indictment and the proof, the plea was not a bar to the second prosecution. If what was set out in the second indictment had been proven under the first, there could have been no conviction under the first, and, because this was so, the plea constituted no defense. 1 Bish. Crim. Law, § 1052; 1 Whart. Crim. Law, § 565; Code, § 2998. Affirmed.

STATE ex rel. CITY OF NEW ORLEANS . JUDGE OF SECOND CITY COURT. (Supreme Court of Louisiana. December 17, 1888.)

1. STATUTES-REPEAL.

Act No. 136 of 1880 does not repeal act No. 90 of 1877, which is a special statute relative to the bringing of suits by the city of New Orleans before justices of the peace for the collection of licenses, and to the tax to be paid by the city on instituting such suits.

2. SAME.

Act No. 136 of 1880 is a general statute which fixes taxes to be paid in the shape of stamps, in all suits brought before district and city courts in New Orleans, and which is not incompatible with the act of 1877. Both can be reconciled and stand together.

3. MUNICIPAL CORPORATIONS-LICENSE SUIT-STAMPS.

Stamps for $1.50 on a license suit for $50 by the city is sufficient, and the city judge should issue process.

(Syllabus by the Court.)

Application for mandamus.

W. B. Sommerville, for relator.

BERMUDEZ, C. J. This is an application for a mandamus to compel the defendant to sign and issue process in a case before his court. The defense is that the stamps required by law were not affixed to the claim, and that until such stamps have been attached the judge is prohibited from acting. It appears that the city of New Orleans brought suit by rule against a party for a license, claiming $50, and that stamps for $1.50 were placed on the claim filed. The city judge contends that the city ought to have affixed stamps for $3; that the act of 1877, No. 90, on which the city relies, was repealed by act of 1880, No. 136; and that by the latter stamps for $3 are required on a claim between $40 and $60. The act of 1877 had for its object to authorize the bringing of city suits for licenses and taxes, before courts of justices of the peace, and to fix the costs in such cases. The act of 1880 proposed to fix the fees of clerks, sheriffs, and constables in the district and city courts for the parish of Orleans. The former was a special statute, and the latter is a general statute. It is true that the act of 1880 repeals all laws inconsistent with it, and all laws on the same subject-matter, but this repeal does not apply to special laws which are not evidently and irresistibly repugnant to the general law, and not on the same subject-matter. Had the act of 1880 distinctly stated that in all cases, including those brought by the city of New Orleans for licenses, the stamps on all claims between $40 and $60 shall be $3, instead of $1.50, as fixed by anterior laws, the clash would have been so irresistible that the two acts would not have co-existed. Taken together, the acts of 1877 and 1880 simply mean that, except in suits brought by the city of New Orleans under act 1877, the stamps in each case shall be affixed as regulated in the act of 1880. Repeals by implication are not favored by law. Authorities cannot be quoted on this question. It is a fact advanced by counsel representing the city that such has been the uniform understanding and application of the law as well by city judges as by the civil district court in the exercise of its appellate jurisdiction over such city courts, and this statement is not contradicted. This court has already held that laws anterior to first Monday in August, 1880, relative to justices of the peace, and which were not clearly repealed, are still in existence, and may be enforced by the city courts created by the constitution, art. 135, which are assimilated to such justices. State v. Skinner, 33 La. Ann. 146; State v. Judge, 37 La. Ann. 575.

Considering, therefore, that the required amount of stamps has been affixed by the city of New Orleans in the suit in question, it is ordered and decreed that a peremptory mandamus issue to the judge of the Second city court, directing him to sign and issue the preliminary process in the suit mentioned in this proceeding brought by the city of New Orleans against A. Chiapella, No. 71 of the docket of his court.

STATE ex rel. ADAMS et al. v. JUDGES OF THE COURT OF APPEALS.

(Supreme Court of Louisiana. January 7, 1889.)

COURTS-STATE Courts-JURISDICTION OF THE Court of APPEALS OF THE CITY OF NEW ORLEANS.

The court of appeals has no jurisdiction in a suit to annul a judgment discharging an insolvent from liabilities exceeding $2,000; in the instant case, $14,000 and more. (Syllabus by the Court.)

J. W. Adams and others appealed to the court of appeals of the city of New Orleans from a judgment rendered in suits brought by them against one Downey, their debtor, to set aside a judgment fraudulently obtained by said Downey, releasing him from all liability to his creditors. The court of appeals refused to entertain the appeal, alleging that the matter involved was beneath their jurisdiction; whereupon the appellants asked a writ of mandamus requiring said court to hear and determine said cause.

B. R. Forman, for relators.

BERMUDEZ, C. J. This is an application for a mandamus to compel the judges of the court of appeals in this city to exercise jurisdiction over certain cases, decided by the district court, whose judgment was taken up to said court for review. The relators, who are the plaintiffs and appellants in said cases, charge, substantially, that they are each creditors for an amount less than $2,000 of Andrew Downey, who made a cession of his property, and who, upon false and fraudulent representations, as regards them, (the relators,) obtained a judgment discharging him from further liability to his creditors; that they have separately sued to obtain the nullity of the same; that, their demand having been rejected, they have appealed to the court of appeals to have said judgment against them revised; that said court has refused to try said case on appeal, for want of jurisdiction, ratione materiæ, and has dismissed their appeal. The judges of the court of appeals return, admitting their refusal, basing it on the main ground that the matter in dispute is the validity vel non of the judgment discharging the insolvent from claims and debts exceeding $14,000, which they would have been powerless to review, as an appeal by a particular creditor whose claim would have been for less than $2,000. In the reasons assigned by them for dismissing the appeal, they say, appropriately: "In an action of nullity, the matter in dispute is the judgment sought to be annulled. State v. Judge, 18 La. Ann. 398; Denegre v. Moran, 36 La. Ann. 423. The proceedings and judgment sued to be annulled in this case were had contradictorily between Downey and all his creditors, and discharged him from an indebtedness of $14,788.20. Obviously this court could not have entertained an appeal from the judgment by a particular creditor on the ground that the amount of his demand against the insolvent was less than $2,000. Neither can it entertain on any such ground an appeal in an action to annul such judgment." The relators have sued, alleging the absolute nullity of the judgment, and ask that it be avoided in its entirety. The grounds alleged for the nullity attack the judgment in radice, and, if they be sufficient and proved, the judgment may have to be annulled as a whole. It is therefore apparent that the judges of the court of appeals have no jurisdiction to annul the judgment attacked and complained of. It is therefore ordered and decreed that the application for a mandamus be refused, with costs.

WEICK et al. v. HENNE et al., (WEICK, Intervenor.)

(Supreme Court of Louisiana. December 17, 1888.)

1. WILLS-NUNCUPATIVE-EXECUTION.

One of the formalities required by the Civil Code in the confection of a testament nuncupative in form, and received by public act, is that the act must be received by a notary in the presence of three witnesses residing in the place when the will is executed; that is to say, in the parish where the instrument is made.

2. SAME.

This formality must be observed; otherwise the testament is null and void. 3. SAME-PROOF.

Such testaments are full proof of themselves. They must bear upon their faces the evidence that all the formalities required by law have been complied with. An omission of any formality cannot be supplied by evidence dehors the testament. Succession of Volmer, 40 La. Ann. -,4 South. Rep. 254, affirmed. (Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; N. H. RIGHTOR, Judge. A. J. Murphy, for appellant. B. K. Miller and E. J. Wenck, for appellees.

WATKINS, J. Certain of the collateral heirs of Francis P. Burger, deceased, seek the annulment of his last will, in which the defendants are named as legatees. The plaintiffs are two nephews, Jacob F. and William F. Weick, and the defendants are Mrs. Henne, Mrs. Lemon, and Magdalena Bisterer, widow of the deceased. The intervenor, Widow Delia Weick, is the natural tutrix for her five minor children, issue of her marriage with Francis Weick, deceased, another nephew of the testator. Since this appeal was taken, and appellate jurisdiction has attached, one of the plaintiffs and appellees, Jacob F. Weick, has departed this life, and his widow, Theresa Kranz, has been appointed and confirmed natural tutrix of her five minor children, issue of her marriage with the last-named deceased, and by an order of this court she has been substituted in his place and stead. Magdalena Bisterer, in her answer, admits the will's nullity, but the other two aver its. validity. There was judgment in favor of Jacob P. Weick, William P. Weick, and Magdalena Bisterer, annulling the will, and declaring the plaintiffs to be the legal heirs of Frank P. Burger, deceased, and as such entitled to be placed in possession of said succession,-one third to each. There was no disposition whatever made of the demands of the intervenor. This resulted in a dual appeal,-one brought up by the defendants Mrs. Henne and Mrs. Lemon, and another by the intervenor.

The will is nuncupative in form, and was received by a public act. There are several grounds of nullity assigned, of only one of which we deem it necessary to take notice; and that one is that there is no express mention made in the act of the residence of the witnesses being "in the place" where it was executed, it being therein stated only that the witnesses were "competent," and "residing in the neighborhood of said Burger," the testator. One of the formalties required by the Code in the confection of a testament in the nuncupative form by authentic act is that it "must be received by a notary public in the presence of three witnesses residing in the place when the will is executed." Rev. Civil Code, art. 1578. It declares that "by the residence of the witnesses in the place where the testament is executed is understood their residence in the parish where that testament is made; that residence is necessary only when it is expressly required by law." Id. art. 1594. It further declares that "the formalities to which testaments are subject by the provisions of the present section must be observed; otherwise the testaments are null and void." Id. art. 1595. Hence such a recital as the one contained in the testament under consideration is wholly insufficient. It should have contained a statement that the witnesses resided "in the place where the will