ment, and to the charge of the court, and the judge correctly declined to set the same aside. Vide State v. Ross, 32 La. Ann. 854, with which the instant case is almost identical. Judgment affirmed.

STATE v. Wingard.

(Supreme Court of Louisiana. October 8, 1888. 40 La. Ann.)

1. FORGERY-WRITING FORGED.

A writing of the following tenor: "Prime Wingard 507 Cot. T. T. P., "-is such in form as to be apparently of some legal efficacy, and may serve as a basis for a prosecution for forgery, uttering, etc.1

2. SAME-INDICTMENT.

In order to justify the admission of proof to show in what the forgery consisted, it was unnecessary to make specific averment to that end in the indictment. (Syllabus by the Court.)

Appeal from district court, parish of Bienville; J. T. BOONE, Judge. B. F. Edwards, for appellant. J. A. W. Lowry, Dist. Atty., for the State. BERMUDEZ, C. J. The defendant was convicted of forgery, and sentenced to two years at hard labor. He complains, on appeal, that the lower court erred in holding that the instrument alleged in the indictment is such as can be forged; that said instrument is complete, and can be the basis of legal liability; that, under the averments, evidence could be received explanatory of the instrument.

1. The indictment charges that the accused, on a day stated, in the parish named, did falsely and fraudulently forge and counterfeit a certain writing or paper of the tenor following, to-wit: "Prime Wingard 507 Cot. T. T. P.," with intent to defraud C. W. Hammer; and willfully and feloniously did offer, utter, and dispose of, put off, and publish as true a certain false, forged, and counterfeited writing or paper, of the tenor following, to-wit, (as above;) with intent to defraud C. W. Hammer; he, the said Primus Wingard, at the said time he so uttered and published the said last-mentioned false, forged, and counterfeit writing or paper aforesaid, well knowing the same to be false, forged, and counterfeited; contrary," etc. One of the three essential elements of forgery to be charged against a defendant is that what is averred to have been forged, etc., be a writing, in such form as to be apparently of some legal efficacy. 1 Bish. Crim. Law, § 572, p. 352; Whart. Crim. Law, 338; State v. Ferguson, 35 La. Ann. 1042; State v. Ford, 38 La. Ann. 797. On a germane question, this court recently held that certain writing: "Willy Jones has picked 215 pounds of cotton. [Signed] HENRY WEARTLY;" and "David Jefferson has picked 852 pounds of cotton. [Signed] HENRY WORTHER, "--were writings of some legal efficacy, which could serve as the basis for a prosecution. State v. Jefferson, 1 South. Rep. 669. It said: "The law does not require, in cases of forgery, that the instrument charged to have been forged shall, on its face, purport to be an order for the payment of money, or delivery of goods. It is sufficient that the instrument be one by the use of which money or goods can be obtained;" and the court referred to a New York case, (People v. Finch, 5 Johns. 236,) in which it had been held that an instrument reading: "Due J. F. one dollar, on settlement, this day," is one which can be treated as a note for the payment of money. The district court held that the indictment contains the essential elements to support the charge. It is evident that the paper mentioned in the indictment is in a form which apparently has some legal efficacy, and that upon it money could have been obtained, as in fact it was in this case. The court ruled correctly.

As to what instruments forgery may be predicated of, see Stewart v. State, (Ind.) 16 N. E. Rep. 186, and note; Hendricks v. State, (Tex.) 9 S. W. Rep. 555, and note.

2. The second objection is that the writing or instrument in question is incomplete on its face, so that, as it stands, it cannot be the basis of any legal liability. This objection may be considered as involved in the first, and the ruling just made disposes of it.

3. The third objection is that the indictment contains no allegations explanatory of the alleged forged instrument or writing, and hence evidence cannot be received to that effect. The testimony offered was indispensable to establish bow the alleged forgery had been committed. Indeed, it is impossible to conceive how the jury could have concluded that the paper had or had not been forged, unless proof had been adduced to show what the paper was, and in what manner it was originally drawn up. It was unnecessary to aver in the indictment how the paper had been tampered with and forged. Forgery may consist in making and issuing, with fraudulent intent, etc., a paper or writing false or forged either in its entirety or in some significant or important portion or part of it. In the instant case it was not pretended that the whole writing had been forged, but simply that one of the figures in the number had been forged, by changing it from "1" to "5," so as to make the number to be "507" instead of "107." By the alteration, the party named would have been entitled to receive a larger sum than he would had not the writing been tampered with. It was legitimate to receive evidence under the circumstances, and the lower court did not err in admitting it.

4. The motion in arrest is based on the grounds set forth in the first bill just passed upon. The second bill is to the overruling of the motion in arrest. The views above expressed justify the action of the trial judge on the motion in arrest, and dispose of the second bill. Judgment affirmed.

SANDIDGE v. HUNT.

(Supreme Court of Louisiana. October 23, 1888. 40 La. Ann.)

1. VENDOR ANd Vendee-SUIT BY VENDEe-ReimburseMENT.

A petition in which is demanded by a vendee reimbursement by the vendor of taxes paid since sale, which existed anterior thereto, and damages sustained by him in a loss occasioned by a private disposition of the property, states a cause of aetion as to the former, but not as to the latter.

2. SAME-LIMITATION OF ACTIONS.

A suit for reimbursement of taxes paid is a personal action only, prescribed by 10 years.

3. SAME-PLEADING-ALLEGATIONS OF PAYMENT.

In such a suit, no allegation of eviction is necessary as a sine qua non for the discharge of the taxes incumbering the property acquired. It is only necessary to allege the existence and discharge of the same.

4. EVIDENCE-JUDICIAL NOTICE-PRESUMPTIONS.

While we are bound to take judicial cognizance of the principles of the common law as it prevails in other states, this is not true of the statutes of such states, which will be presumed to be just the same as our own, in the absence of proof to the contrary.

5. SAME.

It will likewise be presumed, in the absence of contrary proof, that taxes assessed under and in pursuance of the laws of Tennessee are secured by liens and privileges as are taxes assessed under own laws.

(Syllabus by the Court.)

Appeal from district court, parish of Bossier; J. T. BOONE, Judge.

Action by L. D. Sandidge against Turner Hunt to compel reimbursement for the payment of delinquent taxes on the property purchased of the defendant under a full warranty deed.

Lowry & Vance, for plaintiff. Snider & Smith, for defendant.

WATKINS, J. Plaintiff's claim is grounded on the following state of facts, viz.: That he and defendant entered into a contract of exchange of certain real property, and the act was passed before a notary in this state. The plain

tiff sold and exchanged to the defendant his plantation situated in Bossier parish, La., and the defendant sold and gave in exchange to the plaintiff certain city lots, with improvements, in Memphis, Tenn. There is a clause in the act stipulating full warranty and subrogation in respect to the properties which are mutually conveyed, with the exception of a lot situated on Orleans street, in said city of Memphis; in reference to which there is an express exclusion of warranty. This piece of property, however, cuts no important figure in the case. The properties each party respectively conveyed were specified in the act to be of the value of $4,000. The plaintiff surrendered possession of his property in Bossier parish to Hunt, and the latter surrendered possession of his property in Memphis to the former. This act of exchange, and possession thereunder, date in December, 1878; and the petitioner avers that in 1884 the property he received from Hunt "was seized and proceeded against in the city of Memphis" for delinquent and unpaid taxes, which had been assessed against the property he acquired antecedent to the exchange, and against which Hunt had given and contracted an obligation of warranty in his favor. It further represents that "in this emergency he was compelled to sell all of the Linden-street property at public auction, and received therefor $1,525." He alleges that he paid, in the discharge of such taxes, penalties, and costs, the sum of $542.52 on the 25th of June, 1884. It is further specially averred that "by said forced sale of said property, owing to the emergency, the unfavorable season of the year, and the existing depression of values, he was damaged in the sum of $2,500, the difference be tween the estimated and true value of said property, by the parties in the contract of exchange, and the amount received at the forced sale;" and he demands of the defendant the said two sums, viz., $542.52 taxes, and $2,500 damages, and prays judgment therefor. The defendant tenders the following peremptory exceptions, to-wit: First, no cause of action shown, because he sold the property voluntarily; second, there is no allegation of eviction, or threatened eviction, partial or in toto, of which he had notice, and which proceeding for eviction he defended; nor that he was evicted by a paramount title. These exceptions having been, by the court, referred to the merits "without prejudice," defendant's counsel filed an answer, in which he pleads the general issue, and specially avers that there was no incumbrance on the property in question; and denies that the plaintiff was, by any process of law, deprived of the property, or any part thereof, "so as to make this defendant liable for breach of warranty, or for damages." He also pleads the prescription of one, three, five, ten, and twenty years to all and singular the demands of the plaintiff. Judgment went against the defendant for the sum of $240.36, with interest, his pleas and exceptions having been overruled, and he appeals. In this court the plaintiff has filed an answer, and prays an increase of the judgment to the full amount demanded in his petition.

1. Under the plain and unambiguous terms of the Civil Code, we think the plaintiff's petition states no cause of action, in so far as his claim for $2,500 damages is concerned, as will appear by reference to the clause we have quoted above from his petition. It is a concession that he disposed of the property, in greater part, at a voluntary sale, made at public auction. It makes no difference that it was done on account of financial embarrassment depriv ing him of the means wherewith to discharge the taxes due on the property. Indeed, the confessed unfavorableness of the season, and the existing depression of values, “ought to have been strong reason why he should not have disposed of the property at a sacrifice." Eviction is the loss suffered by the buyer of the totality of the thing sold, or a part thereof, occasioned by the right or claims of third person. Rev. Civil Code, art. 2501. To argue that the claim of, and even the seizure of, the property, by the state of Tennessee, justified a voluntary sale and sacrifice of the property, if you will, under the circumstances given, may be the foundation of such a claim for damages as

this, is, in our opinion, to argue against the precepts of the Civil Code. But we do think that his petition does state a cause of action with regard to the amount of taxes, penalties, and costs he paid, and reimbursement for which he claims. The Code says that "the seller is obliged, of course, to warrant the buyer against the eviction suffered by him from the totality or part of the thing sold, and against the charges claimed on such thing, which were not declared at the time of the sale." Rev. Civil Code, art. 2501. This is even so "although at the time of the sale no stipulations have been made respecting the warranty." Id. The taxes preferred by the state of Tennessee and the city of Memphis are evidently just such "charges" claimed on the things as are contemplated by the Code. The district judge evidently entertained this view of the law, and so decided.

2. This is a suit for reimbursement of money expended in disincumbering the property of taxes, and not one for the collection of the taxes themselves, When payment was made, they became extinguished, and ceased to be. Hence this is in the nature of a personal action, and governed by the prescription of 10 years. This period has not elapsed since the taxes were paid. It is alleged in the petition that the payment was made on the 25th of June, 1884, and this suit was brought on the 21st of January, 1886. The receipts, which are in evidence, show that the taxes were paid about the former date. Rev. Civil Code, art. 3544. The defendant's plea of prescription is directly addressed "to the demands of the plaintiff's petition," and not to the taxes assessed by the state of Tennessee. That state taxes are levied and collected pursuant to state laws this court will assume as a fact coming within its judicial cognizance; and, inasmuch as the statutes of the state of Tennessee form no part of the body of the common law, we will presume that they are just the same as those of our state, in the absence of contrary proof. It is only of the precepts of the common law that we are bound to take judicial notice. Copley v. Sanford, 2 La. Ann. 335; Kling v. Sejour, 4 La. Ann. 128. We are of the opinion the pleas of prescription urged by the defendant were correctly overruled by the judge a quo.

3. The exceptions of defendant, to the effect that there is no allegation that plaintiff had been evicted from the property, or dispossessed, and by a paramount title, are fully answered by the provisions above quoted from article 2501 of the Civil Code. This law obliges the seller "to warrant the buyer against the eviction suffered by him of the totality or part of the thing sold. and against the charges claimed on such things," etc. In case the loss is sustained by an eviction, of course, proof of eviction is of the essence of the evidence required; but, if the loss is occasioned by the coerced discharge of taxes incumbering the property at the time of sale, it is quite sufficient for the vendee to prove the existence of such taxes at the date of his acquisition of the property, to entitle him to recoup the same from the vendor. The Code does not seem to require that such "charges" should have effected an eviction of the vendee; but it appears to us to be clear that it contemplates that the mere existence of such charges, at the time of sale, is enough to authorize the vendee to discharge the same, and call on his vendor for reim bursement. It would be quite unreasonable to hold that the vendee was without right to sue because the state of Tennessee failed to give defendant due notice of the tax proceedings in the contemplated expropriation of the property. He was at the time a citizen of this state, and hence a non-resident of the state of Tennessee. Had he waited for that purpose, his property might have been, in the meanwhile, sent to sale, and the same conveyed to a stranger by an irredeemable title. There is no force in this contention.

4. The numerous bills of exceptions attest the stubbornness of the contest in the court below, but the necessity for the consideration of very many of them has been obviated by our rulings in preceding paragraphs of this opinion, eliminating the plaintiff's demand for $2,500 damages. With regard to the

quantum and sufficiency of the evidence to establish plaintiff's claim to reimbursement for prior taxes paid, we deem it sufficient for us to state, in general terms, again, that this is not a suit for the collection of taxes eo nomine, but for reimbursement for taxes paid. While it is true that there was no proof administered as to the existence of any tax liens, privileges, or mortgages securing said taxes in the state of Tennessee, there is sufficient evidence to show the existence and exigibility of the taxes themselves. Now, if the statutes of Tennessee are presumed to be the same as our own, we are bound to know that taxes that were assessed in 1878 to 1884 are thus secured on the property assessed, and that no registry of such lien is required.

5. There seems to be no serious controversy in regard to the amount of the judgment apppealed from. The judge a quo had the testimony before him, and seems to have carefully examined and analyzed it, and we shall not disturb his finding. Judgment affirmed.

THOMPSON v. DUSON et al.

(Supreme Court of Louisiana. July Term, 1888. 40 La. Ann.)

VENDOR ANd Vendee-THE CONTRACT-COMPLEted Sale.

}

An instrument of writing acknowledging the receipt of a specified sum as a part of the purchase price of a tract of land, the title to which is to be executed at a future date, and the terms of which are to be ascertained by reference to another instrument, is not a sale which transfers the ownership of the property, but is only a promise of sale on the conditions imposed, and confers the right on the promisee to compel performance on the part of the promisor.

(Syllabus by the Court.)

Appeal from district court, parish of St. Landry; E. D. ESTILETTE, Judge. Kenneth Baillio, for appellants. W. S. Frazee, for appellee.

WATKINS, J. Under a writ of fieri facias issued under a judgment in the suit entitled John Chaffee & Sons v. C. J, Thompson, three-fifths undivided interest in the Joel Tucker plantation was seized and advertised for sale in satisfaction thereof; and plaintiff, representing the heirs of Mrs. M. W. Kilpatrick, enjoins the sale of one-third of said three-fifths thereof, on the ground of ownership by their title of inheritance. The sheriff and seizing creditors join in one answer. They plead the general issue, and no cause of action, and aver that the plaintiffs and their deceased mother were well aware of the fact that, for a great while before the seizure complained of, C. J. Thompson and his wife not only claimed said property as owners, but had recorded titles to the rights of Mrs. Kilpatrick, and that Mary E. Glaze, the wife, at and antecedent to the said seizure, was in the possession thereof, as owner, under a dation en paiment from her husband, and which had been heretofore duly recorded, and against their assertion of title same is urged as an estoppel. They further aver that Mary E. Glaze has also enjoined their seizure and sale on the ground of her ownership of the whole of the three-fifths interest, ineluding that of Mrs. Kilpatrick, grounded on that dation, and, on that account, aver that neither of their demands is serious or bona fide, and they are only intended to obstruct their legal proceedings. They pray for the dissolution of the plaintiff's injunction, with statutory damages of 10 and 20 per cent.on the amount of the judgment sought to be executed, and special damages of $250. On the trial, the judge a quo sustained and perpetuated plaintiff's injunction, and quashed the seizure of that part of the property claimed, without damages, and the defendants have appealed.

Our decision must turn upon the construction of the following instrument of writing, viz:

"NAVASOTA, Grimes COUNTY, TEXAS, January 30th, 1880. "Received of Chas. J. Thompson, of the parish of St. Landry, state of Louisiana, the sum of five hundred dollars, said amount being the first payment