as having passed in rem adjudicatem, and the former judgment in such case is conclusive between the parties." Aurora City v. West, 7 Wall. 82, 19 L. Ed. 42. If it be true that Molyneaux held, and that Pettit now holds, the title which the latter sets up, Pettit may defend upon the merits upon that ground. But, if Pettit is merely Taylor under another name, it makes no difference whether such title was derived from the state, or from Dibble himself, or from any other source; the result is the same; for, if Taylor wished to rely on it for the purpose of showing, as against Dibble, or those claiming under him, an outstanding adverse title, whether in himself, or in some other person, or in the state, the time for him to have urged it was when he was called upon to defend the suit in which Dibble alleged that he held a better title than Taylor or any one else. And, failing to urge it at that time, he cannot be heard, either in his own name or in the name of another, to urge it now. "But," it is said, "this is not a question of title set up by way of defense, but of an outstanding adverse title set forth by the plaintiff himself upon the face of his petition, from which it appears from his own averments that he is not the owner, and has no standing in court to prosecute a suit for the recovery of the property claimed by him." And, if we could accept the interpretation which the defendant's counsel place upon the petition of the plaintiff, we should be compelled to recognize the force of their deductions. That is to say, if we considered that, upon a fair construction of the plaintiff's petition, he intended to say that the title to the property in question became vested in the state by virtue of the adjudication of November 7, 1889, and has never been devested since that time, but that the conveyances from the state to Molyneaux and from Molyneaux to Pettit were fraudulent simulations quoad the state as well as the transferees named, there would seem to be no answer to the proposition that, such averments being taken as true, it must follow that the state is still the owner of the property, and hence that the plaintiff, who makes those averments, and yet sues to recover the property, discloses no cause of action. But we do not interpret the plaintiff's petition in that way. We understand it to mean, not that the state was or is involved in the simulation charged, but that the state has parted with its title to the property, and that the simulation was and is a matter between Taylor and the adjudicatee and transferee, who represented and stood for him for the purposes of the adjudication and transfer.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that this cause be remanded to be proceeded with according to law; the costs of the appeal to be borne by the appellee, and those of the lower court to await the final judgment.

(106 La.)

MCFARLAIN v. TOWN OF JENNINGS. (No. 14,097.)

(Supreme Court of Louisiana. Dec. 16, 1901.) MUNICIPAL CORPORATIONS-CENSUS-EVIDENCE THEREOF-ORDINANCE-IN

JUNCTION--PUBLIC HEALTH.

1. In view of the special power expressly granted, and the absence of legislative provision regarding enumeration required to enable a municipal corporation to enforce a grant of pow er, it is competent for the municipal authorities, by regular methods, to ascertain and make public the number of persons residents of the municipalities.

2. But the court will not assume that the statute has been complied with unless it be made to appear, by sufficient and competent testimony obtained in some regular way, that the number of the population was more than 2,000 at the date that an ordinance was passed to enforce the power.

3. While deciding that the municipality has the power to ascertain the number, the court holds that the methods required were only followed after the plaintiff's injunction had been issued, and not in time to affect the injunction. 4. The courts have the power to enjoin the enforcement of municipal ordinances relating to public order and health, even though penal in their nature. Le Court v. Gaster, 23 South. 463, 50 La. Ann. 521.

5. As relates "to irreparable injury," the allegations made the showing sufficient, and the objection on the ground that it was not is not sustained.

BREAUX, J. The town of Jennings adopted an ordinance relating to the running at large of stock within the town. We are informed by the record that after it had been adopted the mayor had a census of the town taken by his daughter, and the council afterward ordained a census to be taken by a census taker regularly appointed. The mayor's daughter's census shows that the population of Jennings was 2,004. The census taken a short time afterward by the census taker of the council shows that 2,030 persons resided in Jennings between June 1 and 9, 1901. The mayor and council, claiming that the number of inhabitants is more than two thousand, seek to have the stock ordinance enforced. In accordance with their order the cows of plaintiff were impounded, and plaintiff obtained an injunction and claimed damages against Jennings and its marshal. The census of the United States shows that the population of Jennings was 1,539 in 1900. The case was put at issue and tried. Judgment was pronounced for plaintiff, sustaiuing his injunction, and allowing him damages against the town in the sum of $65. Defendant appeals.

Manifestly, the legality of the ordinance in question depends upon the extent to which

the inhabitants can be held bound by the census taken at the instance of the municipality of Jennings. If that census is to be taken as fixing the number of inhabitants, then the town has at this time the required number to bring it within the scope of section 17 of Act No. 136 of 1898, which confers upon the mayors and aldermen of cities and towns having more than 2,000 inhabitants the power to prevent or to regulate the roaming at large of animals, and cause them to be impounded. Sections 4 and 17 of the cited act above. If, on the other hand, the census of the United States is to be taken instead, as conclusive of the number in the town, then the mayor and aldermen have not, because of the insufficiency in number, the power to have stock impounded that are found roaming in the town. Under the governor's proclamation issued in the year 1900 in pursuance of the provisions of Act No. 136 of 1898, Jennings, having the requisite num ver of 1,000 inhabitants, is a town; that being the number necessary to its incorporation under that act. The municipalities under the act just cited are to be classified according to their population as shown by the United States census. The class is changed in accordance with the provisions of the statute. In section 8 of this statute special authority is conferred upon the governor in matter of classification when it shall be shown by reference to an act of congress or legislature that the population of a city, town, or village has increased or diminished so as to take it out of the class to which it previously be longed. It is then made his duty, after proper investigation, to make a correct classification of the erroneously classified corporation. The authority of the governor, it will be observed, is confined to classification of these corporations into cities, towns, and villages. The law contemplates, evidently, classifications by the executive based upon the number required to constitute a city, town, or village, but no reference is made in the statute to any other classification by the executive, or to ascertaining any other number, except those needful to establish classification of the corporation into a village, town, or city. Yet, without regard to classification by the governor, certain powers are delegated to a designated municipality when the number of its members exceed 2,000, and among these powers is the power delegated to impound stock. But the statute does not expressly authorize and direct how to find out and determine how many persons are within the town when it seeks to enforce powers delegated to towns of more than 2,000 inhabitants. As relates to the ascertaining if in the town there are as many persons as just mentioned, no reference is made to a census, whether by the United States or by the state. The statute is absolutely silent upon the subject. The question arises, should the number taken from the census be controlling, in the absence of stat

utory direction? If the population can only be determined by the United States census, it would result in not carrying the legislative will into effect. It might well occur that a town would have the requisite number, and yet for a period of nine or more years the law would remain a dead letter. As the law reads at present, it contains no reference to a census, as relates to the special power in question, and we take it that without a special enactment the census is not exclusive of all other methods of ascertaining the number of members of a corporation. It must in some way be ordered that the census of the United States be taken as a basis in determining the number of a municipality. If we were to take the census as determining the question, a town with 2,000 inhabitants at this time would have to wait until the next census before attempting to exercise the power conferred, and even then it would require some legislation to render it possible to determine the number by reference to the census of the United States. Recently, in another jurisdiction, it was held that the failure of the legislature to point out a method to determine the number of persons should not be allowed to destroy the power granted. We quote, "In this case it is manifest that the provision can be determined by competent testimony outside of any legislative enactment"; that it was a question for the court to determine. State v. Neal (Wash.) 65 Pac. 188. In another case, and regarding number of population, another court said: "It is manifest that the provision can be determined by competent testimony outside of any legislative enactment." Anderson v. Whatcom Co. (Wash.) 45 Pac. 665, 33 L. R. A. 137. The same rule was sustained in Kumler v. Board (Cal.) 37 Pac. 383. In the first decision cited above the court said regarding a similar question to the one here: "We think that in the case under discussion a rule is equally prescribed which is capable of enforcement. In this case the ascertainment of the amount of the population in the town or city is for the courts, and not for the legislature." In each of these cases it became necessary to establish the population of municipal corporations in which the lawmaking power had failed to make provision for ascertaining the number of persons. We do not go to the extent of holding that the question is not for the legislature, and in that respect we do not agree with the cited cases; nor do we think that, as between a municipality and its members, the number of the population may be ascertained as any other fact. must be some regular method followed in ascertaining the number of the population. We think legislation is desirable to provide means for ascertaining the number of persons, but where a power is granted, and the lawmaking power is silent, as in this case, it then becomes a question to be ascertained by a method usually followed in the course

There

of municipal administration. We cannot agree with counsel for plaintiff and appellee that the census of the United States must be taken to determine the number of population of a town, and that the municipality is without authority in the premises. Having concluded as before stated as relates to the authority of the town to establish the number, we will ascertain if the municipality bas complied with needful regulation to enforce the power. There must be an organized method followed by the municipality in determining the number, and this we have not succeeded in finding. It does not appear of record that the ordinance relating to the running at large of stock was made public by advertisement, and no attempt was made to validate this ordinance after a census had been taken. No census was made or enumeration taken by the town prior to the filing of appellee's suit. We have noted that a young lady had taken a census. The record shows that she acted for the mayor personally. There is no question but that she made every reasonable attempt to perform the duty. It remains that it was only a private census. No attempt was made by the council to validate this census. Subsequently an ordinance was adopted and a census was taken,-only, however, it is conceded, between the 1st and 9th of June, 1901, a number of days after the injunction had been issued. We think it was too late to affect any of the rights of the plaintiff and appellant. A corporation may ascertain the number of its population by following the methods it follows in all other proceedings affecting its members. We are convinced that this was not done prior to the institution of the suit. We cannot agree with the proposition that an enumeration made within a month of the adoption of the ordinance enjoined, and showing the required population, is sufficient to establish the requisite number at the time of the adoption of the ordinance, if there be no evidence to the contrary. The fact should have been established and made public before attempting to enforce the ordinance.

The next contention of defendant and appellant is that the execution of a municipal ordinance is not subject to injunction. We do not think there is any weight in this defense. Illegal ordinances may be enjoined. This was the purpose of the plaintiff in injunction. The fact that it relates to a public regulation does not add any strength to the contention. This question was considered and decided adversely to defendant and appellant in Lecourt v. Gaster, 50 La. Ann. 521, 23 South. 463.

The next contention of appellant is that the irreparable injury, as alleged, was not imminent. We have not discovered good grounds to sustain this contention. Plaintiff's property had been impounded, and they were to be disposed of, had not an injunction been taken. This of itself presents an issue

of possible irreparable injury, sufficient to satisfy the court that there was good ground for the injunction.

For these reasons, it is ordered, adjudged, and decreed that the judgment appealed from be affirmed.

(106 La.)

BONIN v. TOWN OF JENNINGS et al. (No. 14.098.)

(Supreme Court of Louisiana. Dec. 16, 1901.) DISMISSAL OF ACTION-DILATORY EXCEPTION -TIME FOR PLEADING.

1. An overruled dilatory exception, general in its terms, will not be reopened in order to consider points dilatory in their nature, which are to be timely pleaded. Generally the pleader is held bound to plead all his dilatory pleas in due time. Moreover, it is not manifest that there is sufficient ground to sustain the exception.

2. For reasons assigned in the case of McFarlain v. Town of Jennings (No. 14,097) 31 South. 62, the judgment is affirmed.

(Syllabus by the Court.)

Appeal from judicial district court, parish of Calcasieu; Edmund D. Miller, Judge. Action by Charles Bonin against the town of Jennings and others. Judgment for plaintiff. Defendants appeal. Affirmed.

Cline & Cline, for appellants. Sompayrac & Toomer, for appellee.

BREAUX, J. The facts are the same in this case as those in McFarlain v. Town of Jennings (No. 14,097, just decided) 31 South. 62, with this addition,-that defendant attacks the injunction on the ground of informality of the affidavit. In the district court defendant filed an exception in general terms looking to the dismissal on the ground of informality generally. The district court overruled this exception. Then another exception was filed to cure the defect in not having specially pleaded against the form of the affidavit. As a matter of practice, we will take occasion to say that all grounds going to the dismissal should be urged by way of exception before the court is called upon to rule upon questions dilatory in their nature. Moreover, it does not occur to us that the exception should have been sustained.

For the reasons assigned in the case of McFarlain v. Town of Jennings (No. 14,097, just decided) 31 South. 62, the judgment appealed from is affirmed.

(106 La.)

SUCCESSION OF CROUZEILLES. (No. 13,863.)

(Supreme Court of Louisiana. Dec. 16, 1901.) WILL-MENTAL CAPACITY-MISTAKE IN NAME -EVIDENCE OF EXECUTION-HEIRSHIP. 1. Though a person execute a last will and testament during an attack of delirium tremens, it will be maintained if executed during a lucid interval.

2. Where a notary public in writing a last will, understanding the name as given to him by the testator to be "Grouzeilles," instead of

"Crouzeilles," so writes the name by mistake throughout the instrument, and the testator merely affixes his mark as his signature, evidence is admissible to prove said mistake; and on proof of said mistake, and of the fact that the party making the will was really François Crouzeilles, the will will be maintained. The mistake was, besides, evidently the result of idem

sonans.

3. When the recitals made in the will are of character such as to leave no doubt in the mind of the court that the testator did make to the notary, in presence of the witnesses, the declaration required to be by him made, by article 1579 of the Civil Code, the will will be maintained. It is not the duty of courts to refuse carrying out the wishes of deceased parties by pushing the requirements of the law to ex

tremes.

4. Parties claiming to be heirs of a deceased person, and to be placed in possession of his estate, must prove their heirship. Code Prac. art. 1003; Solari v. Barras, 13 South. 627, 45 La. Ann. 1132.

(Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; George H. Théard, Judge.

In the matter of the succession of François Crouzeilles. Petition of Lafon Brothers to set aside a will probated as his will. From a judgment rejecting a petition, plaintiffs appeal. Affirmed.

A. E. & O. S. Livaudais and Frank McGloin, for appellants. George Montgomery, for appellees.

Statement of the Case.

NICHOLLS, C. J. François Crouzeilles died in the city of New Orleans on the 5th day of February, 1899. On the 7th of the same month Juste Fontaine, Jr., presented a petition to the civil district court for the parish, in which he averred that François Crouzeilles had died in that city on the 5th of February, 1899, leaving a last will by public act (a copy of which he annexed to his petition), by which petitioner was appointed testamentary executor, and that he left neither ascendants, descendants, nor other forced heirs. He prayed that said will be probated, registered, and executed; that letters testamentary issue to him upon his taking the legal oath; and that an inventory be taken before Barnett, notary. The will was probated as that of François Grouzeilles, and an inventory ordered to be taken as prayed for.

The succession was opened as that of François Grouzeilles. On the 12th of April, on the suggestion of counsel of the testamentary executor that in opening the succession the name of the deceased had been inadvertently spelt "Grouzeilles," instead of "Crouzeilles," his real name, which error had been caused by a clerical error of the notary who drew up the will, which had been probated by writing the name of the testator "Grouzeilles," the court ordered the title of the succession to be changed so as to make it be entered as the succession of François Crouzeilles. The inventory taken by Barnett was taken as that of François Grouzeilles, but the various properties therein were referred 31 So.-5

to as those of François Crouzeilles. The letters testamentary issued as issued under the will of François Crouzeilles. Subsequent proceedings were made in that name. In November, 1899, Pierre Lafon, Placide Bernis. Lucien Crouzeilles, Jeanne Plante, wife of Jean Bardel, and Marcelline Crouzeilles, wife of Phil Leger (the latter a resident of the state of Illinois, and the others of the republic of France), presented a petition to the civil district court for the parish of Orleans, in which they averred that they were the only cousins in nearest degree of François Crouzeilles, who had died in New Orleans without forced heirs, and without any brothers or sisters or descendants from them; that a document had been filed and on ex parte proceedings it had been probated as the will of François Grouzeilles; that Juste Fontaine, Jr., and Anna Schilder, claiming to be the widow of the deceased, claimed said will to be the last will of François Crouzeilles; that said will does not purport on its face to be that of François Crouzeilles, and these parties could not by attempted proofs dehors the instrument contradict, vary, or in any wise alter or add to said alleged testament, particularly by endeavoring to show that the name of the testator was wrongly given to the notary. Reserving said preliminary and peremptory objection and complaint, and only in the event of same being held inadequate, and its being proven with the court's authorization that it was, in fact, François Crouzeilles who appeared and executed said instrument, under a wrong name, and with full reservation of the issue so reserved, petitioners alleged and pleaded: That said pretended last will and testament was null, void, and of no effect, for the following reasons: (1) That François Crouzeilles, going for peace's sake through the form, never intended to make a last will, or to devest his heirs of the blood of their right of inheriting from him; (2) that said alleged last will was never signed by François Crouzeilles, though he was, as petitioners believed and alleged at the time, able to have affixed his signature, had he so desired; (3) that said instrument does not set forth the name of said François Crouzeilles, and therefore cannot stand for the last will and testament of said deceased; (4) that said alleged testament does not recite the name of the testator, or of any testator; (5) that even if said deceased was incapacitated to actually sign with his own hand said instrument, yet there is not the legal substitute for a signature, as in such case the law exacts; the name of him declared being false, and not the equiva lent of his real signature; (6) that the said pretended testament does not distinctly set forth as the law requires a declaration on the part of the testator of his inability to sign; 17) that said instrument does not in any view or event express truly the reason why said testator did not sign the same. Petitioners averred that they were entitled to have the

ex parte order vacated, and to have said pretended last will decreed null, void, and of no effect, and to be recognized as only heirs of said deceased François Crouzeilles, and as such to be placed in possession of his entire estate. They averred that the testamentary executor and widow had been in possession since the death of the deceased of the property left by him, and they should be condemned in solido to restore the same to them, with fruits and revenues. The petition closed with a prayer in conformity with its allegations. Defendants excepted to plaintiffs' demand, on the ground (1) that it was too vague and indefinite to permit of their safely answering it, in that it does not show how alleged relationship of plaintiffs to decedent is established, or, if at all, said plaintiffs are heirs in the same degree and for equal parts or not; (2) it does not affirmatively show any interest in the plaintiffs to attack the will; (3) it sets forth no cause of action; (4) the will cannot be attacked collaterally in the same action; a direct action must be instituted and regularly allotted; (5) plaintiffs' demand is premature. These exceptions were overruled. Plaintiffs, by supplemental petition, attacked the testament, on the ground that the testator had been for some time before, and was at the time of the execution of the will, and continued thereinafter to be, insane, and absolutely incapable of making any testamentary disposition whatever, or of performing any rational act. Defendants, after pleading the general issue, admitted the execution of and probating of the will referred to in the petition. They averred that the notary, misunderstanding the testator, by reason of the similarity in pronunciation, wrote the name "Grouzeilles," instead of "Crouzeilles," notwithstanding the fact that the will, which was in due form, was dictated by François Crouzeilles, the deceased. They alleged that the name of the deceased had been misspelled upon other occasions, and that the testator's real name was François Crouzeilles, he being the same person whose succession was being administered in the civil district court by Juste Fontaine, Jr., as testamentary executor, and the same person who died on the 5th of February, 1899; and that there was no such person as François Grouzeilles. The district court rendered judgment, rejecting plaintiffs' demand at their costs, and they appealed.

Opinion.

We do not think it has been shown that at the time of the execution of the will which has been attacked in this litigation the testator was insane. It is true that he died either during or as the result of an "attack of delirium tremens," but it is established that there were lucid intervals during such attacks, and the testament seems to have been executed during one of them. We can reach no other conclusion under the testimony given by the notary and the wit

nesses who were present at the time. The attending physician was not then present, and he declined giving any opinion of his patient's mental condition at that moment. It is suggested that one of the witnesses should not be believed, for reasons assigned. Waiving a discussion as to whether the facts on which this suggestion is made were proved or affirmed, and whether they would have carried with them an impeachment of his testimony, the fact remains that the testimony of the others is absolutely uncontradicted. It is urged that if the testator was sane he deliberately gave to the notary a name other than his real name, and therefore "it is manifest that he was acting against his true inclinations"; in other words, that the will was made under duress of some kind. There is not a word to support that position other than the fact itself that the testator's name is given throughout as "Grouzeilles," instead of "Crouzeilles." The testator did not himself write out his name to the will as "Grouzeilles"; he simply attached to it his mark, the notary himself placing the mark between the words "François" and "Grouzeilles"

his

(François X Grouzeilles). It is very evi

mark.

dent that the notary, who did not know the testator, understood the name given to be "Grouzeilles," not "Crouzeilles." This was a mistake easily to be made, under the rule of "idem sonans." The testimony establishes beyond the possibility of a doubt that the party who executed the will was François Crouzeilles, and not François Grouzeilles, and that there is no such person as François Grouzeilles. We think evidence to prove that fact was legally admitted. The will attacked closes with the words: "In faith whereof said testator, said witnesses, and I, said notary, have each subscribed our names, in presence of each other, on the day and date and at the time of taking said last will and testament. The said testator declared unto me, notary, in presence of said witnesses, not being able to sign his name on account of nervousness, has made his mark." Opponents assert that these recitals are not a compliance with the requirements of article 1579 of the Civil Code, which declares that "the testament must be signed by the testator; if he declares that he knows not how or is not able to sign, express mention of his declaration, as also of the cause that hinders him from signing, must be made in the act." It is insisted that the wording of the sentence should have been, "Having been asked to sign, the said testator declared to me, notary, in presence of said witnesses, that he could not do so, and, not being able to sign his name on account of nervousness, he has made his mark." We think that in France at one time the notary writing out a will was required to call upon the testator to sign his name, and required to state that