was executed." Such a recital in a nuncupative testament in authentic form is essential and sacramental. In Succession of Volmer, 40 La. Ann. 4 South. Rep. 254, we held a will wanting this essential requisite to be a nullity, using the following language, viz.: "The charge against it [the will] is that it was not set forth that the three witnesses are residents of the parish of Orleans, but that they are competent witnesses. The omission is fatal. The notary is required by law, under pain of nullity of the act, to express specifically every material fact constituting the competency of himself, and of the officiating witnesses, under the law, in that respect, and also every formality observed in the execution of the will." The objection urged against the will of Burger is even more serious. It recites that the witnesses reside "in the neighborhood" of the testator, and not "in the place where the act was executed." It matters not at what place the testator may reside, but the witnesses must reside in the same parish or "place" as the notary executing the testament. The omission of the notary to make this statement is fatal to the validity of the will of Burger. Our attention has been attracted to certain bills of exceptions that were retained by defendants' counsel to the ruling of the judge a quo in rejecting proffered evidence of the residence of the witnesses in the parish of Orleans when the will was executed. We are of the opinion that the ruling was correct, and is sustained by ample authority. The Code declares that "nuncupative testaments received by public act * * * are full proof of themselves." Rev. Civil Code, art. 1647. To be solid, they must bear upon their faces the evidence that all the formalities required by law for their validity have been complied with. When all the legal requirements do not appear from the will itself, it must be declared null, for the reason that the omission cannot be supplied by evidence dehors the testament. Swift v. Swift, 9 La. Ann. 117; Falkner v. Friend, 1 Rob. (La.) 48. In Succession of Volmer, above cited, we said on this subject: "The act must make full proof on its face of every element necessary to its validity, as no evidence is admissible to supply any deficiency." The evidence was properly rejected. On the whole, our conclusion is that the judgment appealed from correctly annulled the will of Burger, for the reason that the notary who executed it failed to state that the attesting witnesses were residents of the parish of Orleans, the place where same was executed. But we are of the opinion that it is erroneous in two particulars, viz.: (1) In failing to dispose, in any manner, of the demands of the intervenor. (2) In declaring the two plaintiffs to be exclusive heirs of the testator, Burger. The plaintiffs' petition admits that "the minor children of their deceased brother Francis Weick" are legal heirs, with themselves, of the testator, and entitled to one-third of his estate. Such is the claim set up by their mother as tutrix. Indeed, the judgment itself, while declaring the plaintiffs (of whom there are but two) to be the heirs of Burger, and as such entitled to be put in possession of his succession, yet states their proportion thereof to be one-third only. This is clearly a non sequiter, and obviously incorrect, unless the conclusion drawn therefrom by the intervenor's counsel, that the judgment was also in favor of the defendant Magdalena Bisterer, be correct. This deduction is drawn from the language of the judgment, it being in favor of Jacob Weick, William Weick, and Magdalena Bisterer. The only legitimate inference to be drawn from the decree, as written, is that, because Magdalena Bisterer has prayed in her answer for the annulment of the will, its nullity was inadvertently decreed in her favor, but it cannot be fairly construed as entitling her to a portion of the estate of her husband. Under the circumstances, the judgment should be revised and amended so as to recognize the rights of the minors of Francis Weick, represented by their tutrix as intervenor, as heirs of Francis P. Burger, and entitled to on: v.5so.no.21-34 third of his succession.. It is therefore ordered and decreed that the judg ment appealed from be amended by decreeing that William F. Weick, the minor heirs of Jacob F Weick, deceased, and the minor heirs of Francis Weick, deceased, are the sole, exclusive, and equal heirs of Francis P. Burger, deceased; i. e., one-third to William F. Weick, and one-third to the minors of each of his deceased brothers, Jacob and Francis Weick, and placed in possession of his succession; and, as thus amended, same be affirmed at appellees' cost. Rehearing refused. STATE ex rel. LEVY et al. v. ELLIS, Judge. (Supreme Court of Louisiana. December 17, 1888.) 1. PROHIBITION, WRIT OF-TO DISTRICT JUDGE-WHEN LIES. A prohibition cannot issue to a district judge to prevent him from doing an act which he denies to have done, which he refuses to do, and which is not shown to have been done by him. 2. INSOLVENCY-APPOINTMENT OF PROVISIONAL SYNDIC-APPEAL. A judgment or decree appointing a provisional syndic in an insolvency proceeding, cannot be suspensively appealed from. It must be executed, although an appeal was granted from it, and was perfected. 3. SAME-CANCELLATION-MANDAMUS. A mandamus does not lie against a district judge to direct him to annul such appointment, and to cancel the letters issued to the provisional syndic, when for reasons assigned the judge has declined to do so. 4. MANDAMUS-TO COURTS-JUDICIAL DISCRETION. The exercise of a legal discretion cannot be controlled by mandamus. (Syllabus by the Court.) Application for mandamus. mus. Bayne & Denegre, for respondent. BERMUDEZ, C. J. This is an application for a petition and for a mandaThe relators complain that the district judge has proceeded to execute a judgment after a suspensive appeal had been taken therefrom, and that he has refused to cancel what has been thus done. The district judge returns, denying emphatically having acted in the manner complained of after the appeal had been allowed, and avers that what was done took place after the judgment had been signed, but before the appeal had been asked. He further returns that the reason for which he declined avoiding what had been thus done by him, is that, after the appeal had been granted and perfected, he ceased to have any further jurisdiction over the case, and could legally render no valid order in the premises. It appears that the relators applied for a respite, which, after due proceedings, was granted them; that certain creditors obtained orders requiring the applicants to furnish bond and security as concerned them, which have not been appealed from; that subsequently, the applicants having failed to comply with such orders, under proper proceeding the judgment according the respite was annulled, and a judgment of cession of property was rendered against the applicants, appointing a provisional syndic; that after said judgment had been signed letters were issued to the syndic, and that subsequently a suspensive appeal was asked, granted, and perfected from said judgment. It also appears that the provisional syndic thus appointed, treating his appointment as operative, entered an appearance in the United States circuit court sitting in this city, in his official capacity, in a matter in which the creditors of the applicant had an interest, and that the petitioners then took a rule in the court below, to review the letters issued to the syndic, and that the district judge declined to act, as having no further jurisdiction over the subjectmatter in consequence of the suspensive appeal. The prohibition asked is to prevent the judge from executing the judgment appealed from, and the mandamus prayed for has for its object to compel the judge to annul the letters issued to the syndic. As it is clear that the district judge has not only not done any act after the appeal had been perfected, but has refused to do any, the court is at a loss to perceive how the writs asked can be allowed. It would have been immaterial if the letters had issued after the appeal, as the judgment was provisionally executory. It is also apparent that, if the execution of the judgment during a session could have been suspended by appeal, such is not the case, however, as to the appointment of the provisional syndic, which was made under Rev. Civil Code, art. 3093; Act No. 134, 1888. The Code of Practice distinctly provides that some judgments are executed provisionally, although an appeal has been taken from the same within the delay prescribed, and the necessary surety given. Such judgments relate (1) to the appointment of tutors, etc.; (2) to the appointment of syndics, when the court orders that they shall administer provisionally. Code Prac. art. 580. The jurisprudence is in accord. The relators seem to act under the theory that the judgment appointing the provisional syndic could be suspensively appealed from, but this is a manifest error. It is therefore ordered that the restraining order herein made be rescinded, and that the applications for writs of prohibition and mandamus herein be refused, at cost of relators. STATE v. ALLEN. (Supreme Court of Louisiana. December 17, 1888.) BURGLARY-INFORMATION-Sufficiency. An information for burglary is not fatally defective for not asserting that the offense was committed in the day or in the night time. The offense may consist merely in the entry with felonious intent, and is equally punishable whether committed in the day or in the night time, under the terms of the same statute. (Syllabus by the Court.) Appeal from district court, parish of Assumption. E. N. & L. H. Pugh, for appellant. Walter H. Rogers, Atty. Gen., for the State. BERMUDEZ, C. J. On an information for burglary with intent to steal, the accused was found guilty and sentenced to one year at hard labor. His complaint is that the information does not charge an offense known to law, in this: that it does not specify the time of the entry; that statutory crimes must be charged in the words of the statute, and contain every fact constituting the offense; that the information, in omitting to state whether the entry was in the day-time or in the night-time, is fatally defective. He contends that the objects of an information are to furnish the accused with such a description of the charge against him as will enable him to make his defense, to avail himself of his conviction or acquittal for protection against further prosecution for the same offense, and to inform the court of the facts, that it may decide whether they are sufficient to support a conviction, if one be had. He concludes that the information is fatally defective in not setting forth that the entry in the store designated was in the night-time or in the day-time. Those objections were raised below on a motion in arrest of judgment, and were overruled. They are renewed on appeal. The section under which the information was filed provides, (section 854, Rev. St.:) "Whoever, with intent to kill, rob, or steal, shall in the night-time enter without breaking, or in the day-time break or enter, any * * * shop, * * on conviction shall be imprisoned at hard labor not exceed * ing five years." The information charges that the defendant, "into the store of one Drozin Himel, in the parish of Assumption situated, did feloniously and burglariously enter, with intent, the goods and chattels of the said Drozin Himel then and there being found, willfully, feloniously, burglariously to steal, take, and carry away, contrary to," etc. The statute denounces two offenses: (1) The entry without breaking, but with felonious intent, in the night-time; (2) the entry or breaking with like intent, in the day-time. The information charges entry, and is silent as to breaking, and is in perfect accord with the statute, except in this: that it does not set forth the time, whether the offense was committed during the day or during the night. Mere entry without breaking is an offense, when committed with felonious intent, whether at night or in day-time. The use of the word "or" as regards the commission of the offense in day-time excludes the idea that both entry and breaking are essential ingredients of the offense, which is punishable in the same manner whenever committed. Why did the legislature use the word "or," and not the word "and," is a matter with which the court has no concern. It has no authority to alter this important expression. It could have availed the accused nothing had the information specified the commission of the offense either in day or night time. State v. Kelly, 25 La. Ann. 381. The objection would be entitled to great force at common law, where it is essential to set forth and prove as an ingredient when the crime of burglary was perpetrated,-whether in the night-time or the day-time,—because there is a discrimination on the subject; but such is not the case in this state, where the offense, whether committed in the night-time or in the day-time, is equally punishable. The information in terms avers all the essential ingredients to constitute the offense. It brings the accused within the letter and spirit of the statute, and unequivocally informs him of all the facts and circumstances on which the state relies, which he is entitled to know with a view to prepare his defense. The information answers legal exigencies, and is amply sufficient in its specifications. Judgment affirmed. FISK et al. v. GERMANIA NAT. BANK et al. (Supreme Court of Louisiana. December 17, 1888.) 1. BANKS AND BANKING-CONTRACT OF DEPOSIT-VIOLATION-LIABILITY OF BANK. This case hinges mainly on questions of fact. It sought to hold the defendant bank liable for the contents of a bank-box, for wrongfully delivering the box, and to recover from Ringrose and Washburn the contents of said box, amounting to $100,000, which they are charged with having appropriated. Held, the bank, having delivered the box to the bearer of the ticket or card which called for the delivery of the box to "bearer," had legally complied with its contract, and was therefore exonerated from all responsibility in the premises. 2. CONVERSION-SUFFICIENCY OF EVIDENCE. Held, as to Ringrose and Washburn, the evidence having entirely failed to show that the box in suit contained any money or values as alleged by plaintiffs, or to connect either of these two defendants with any spoliation of that or any other box belonging to the succession of Fisk, no recovery could be had as against them. (Syllabus by the Court.) Appeal from civil district court, parish of Orleans; RIGHTOR, Judge. Posey & Ker and Gus. A. Breaux, for appellants. Braughn, Buck, Dinkelspiel & Hart, A. J. Murphy, Horace E. Upton, W. B. Lancaster, and J. J. O'Conner, for appellees. POCHE, J. Plaintiffs in this case are the widow and the son of F. M. Fisk, who died in this city in December, 1874. They instituted this suit in December, 1884, for the recovery of the contents of a bank-box, which they alleged had been deposited by the deceased in the Germania Bank, when it was taken out by two of the defendants, Anne Conery and V. B. Ringrose, and rifled of its contents, which were appropriated by Ringrose and the other co-defendant, W. W. Washburn. They alleged that the contents of said box consisted of money and of securities worth in the aggregate $100,000, for which they asked judgment against the four defendants in solido. They appeal from a judgment which rejected their demand. The defendants interposed numerous pleas in defense, which may be summarized into a general denial, and the plea of prescription of one and ten years. Plaintiffs' theory of their case is substantially as follows: The deceased, Fisk, who was a thrifty and wealthy man, was divorced from his wife, who obtained in the same proceedings a judgment against him for her share of the community property, which amounted, in 1871, to more than $150,000, consisting mainly of immovable property. To avert the seizure of any of that property by his wife, Fisk proceeded to remove it beyond her reach through various devices, one of which was to convert most of it into cash and negotiable securities. He kept a small bank-account, and inclosed the bulk of his money and valuables in a bank-box, which was deposited in the defendant bank, and which was marked in the name of Anne Conery, one of the defendants herein, with whom he lived in open concubinage, occupying the same house for nearly 20 years. As the greater part of his moneyed transactions were carried on in the name of Anne Conery, he held her general and special power of attorney, under which he dealt with all matters, property, money, and values which stood in her name, and by virtue of which, together with the deposit ticket or card, he called for and took out of the bank as often as he desired the box therein deposited in her name and as her property. It is then contended that at the time of his death the box contained some $70,000 in currency, $35,000 in bonds, and other negotiable securities, besides jewelry, and other small effects of value, and that with the ticket of deposit which Anne Conery abstracted from the person of Fisk, as he lay unconscious at the approach of death on the day before his demise, the box was taken out of the bank by Ringrose, who stole the money which it contained; the bonds being appropriated by Washburn,-one of the conspirators,-who had been appointed executor of Fisk through a holographic will which had been taken out of the bank-box by Ringrose, and by the latter handed to Anne Conery, the universal legatee under the will, which she delivered to Washburn. Washburn's administration of the estate was soon brought to an end through a subsequent will of the deceased, under the effect of which one of his daughters became executrix, and thereafter administered the succession through Washburn as her instituted agent. The succession thus administered amounted to something over $40,000, of which the widow and heirs were in due course placed in possession. Thus the controversy is restricted to the alleged contents of the bank-box. It is argued that the difference between the inventoried value of the community in 1871, and the amount of property left by Fisk at his death, was represented by the money and bonds which the bank-box contained at the time of his death, and which were appropriated by Ringrose and Washburn a few days after his death. As could be naturally expected in a trial which took place some 12 years after the occurrence of the alleged events and incidents which form the basis of the suit, the evidence, which fills up an immense record, is decidedly conflicting, having imposed on the court tedious and painful labor to reach a satisfactory analysis thereof. And we leave the record with the clear conviction that the case is entirely with the defendants. As it turned out during the trial that the testimony of Anne Conery was the main prop of plaintiffs' case, it follows naturally that they do not press their claim, and that they are not clamorous for a judgment against her. Their attack will therefore be considered as being leveled exclusively against the three other defendants. |