Marin et al. vs. Sheriff and City of New Orleans. for the payment of taxes, alleged to be due to the city of New Orleans, certain lots of ground, the property of the plaintiffs, they enjoined the sale upon various grounds, among which are that the taxes were assessed and judgments rendered against one M. A. Peyroux, claimed by the city but denied by the plaintiffs to have been a former owner of the property, and that there was no registry of any tax or other lien affecting the property at the time of their purchase and that of their vendors; that the city can not seize their property under fieri facias issued upon a judgment against a third person; that the description of the property is insufficient and not such as to determine its location, and that no notice of seizure was ever served either upon the plaintiffs or the debtor in execution, M. A. Peyroux. The several judgments were all obtained in the usual manner for the enforcement of the collection of city taxes, upon filing the tax lists, which also appear in the record, and were with a single exception all rendered as well as the property assessed against M. A. Peyroux. That exception was an assessment and judgment against Jules Casnard, one of the plaintiffs in injunction. As the seizure in this case is of the property of the judgment and tax debtor, and is not therefore liable to the most important objections raised to those in the other cases, we will consider it first. The judgment recognizes a “lien and privilege" upon the property described in the tax rolls and bills or claims on file." That description which is identical with that in the seizure and advertisement is as fol lows: "Assessment district 7, square 373, between St. Ann, Main, White, Dupré-2 corners, 9 lots 28.2 x100, 132x141, 4 126x141, 6 188x100, under the head of description of real estate. It will be at once apparent that this description is too loose and unsatisfactory for the purpose of assessment, recognition of lien and privilege, seizure, advertisement, or sale: and that the property could not be located or identified by it. So many lots in such a square between certain streets, without giving their respective numbers, is really no description. This objection would have been fatal to recovery had it been urged before judgment. As it was not we can only consider it as affecting the tax lien and the proceedings to enforce the judgment, as to which it is well taken. The plaintiff Casnard also alleges as one of the grounds of injunction that the writ had expired and was not in force when the seizure was made, and none of the forms of law had been observed in making the seizure. The writ issued on the twenty-fifth of November, 1873. The sheriff's retum shows it was "received December 1, 1873, and levied," but does not state when the levy took place. The return further shows that on the twentyfirst of May, 1875, the property was advertised to be sold on the twentythird day of June, 1875, and that on the twenty-third of June, 1875, further proceedings under the writ were stopped by injunction. Nothing Marin et al. vs. Sheriff and City of New Orleans. is said in the return of the sheriff having returned the original writ and retained a copy, nor does any copy or other subsequent writ appear in the record. We think the injunction must be sustained on these grounds also, and that there was no valid subsisting seizure, and could be no valid sale of the property of Jules Casnard under the judgment against him. All the other assessments and judgments, as before stated, were against M. A. Peyroux, claimed by the city to have been a former owner of the property seized. Equal or very nearly equal looseness and insufficiency in the description of property pervades them also, and the proceeding under them; but without reference to this and other grounds of objection and injunction, it suffices to say that the record fails to disclose any registry of the tax list or other registry to preserve the tax lien or even of the judgments against Peyroux, and that the city can not proceed under execution against him to seize the property of the plaintiffs. It is therefore ordered, adjudged, and decreed that the judgment of the court a qua be annulled, avoided, and reversed, and that the injunction sued out in this case be perpetuated in favor of all the plaintiffs, except Jules Casnard, and that it be also perpetuated in his favor so far as affects the particular seizure complained of. It is further ordered that the défendants pay the costs of both courts. ON REHEARING. DEBLANC, J. Our attention has been called to sec. 8 of act No. 85 of 1858, which provides: "that no alias or pluries writs of fieri facias shall be issued in any case of judgment and execution for taxes, but the first writ shall continue in force until finally satisfied, unless ordered to be returned by competent authority." The counsel representing the city contends that the terms of that law are plain, and that the first writ remains in force until satisfied or properly returned. In this he is right, and our former opinion, based on the general law regulating the return of such writs, is hereby amended, and—in this respect-made to conform with the 8th section of the act of 1858. "Registry, it is said, is the only notice of title the assessors must heed." Reference to the public archives is one of the means of ascertaining the title to and description of immovables subject to assessment, but it is not the only one. The law is imperative: the assessor mustby diligent inquiry--ascertain the names of all the inhabitants of their respective parishes, whether taxable for licenses or for property, or on both, and also all the taxable property within the same. Rev. Statutes, sec. 24. 30 296 47 545 Marin et al. vs. Sheriff and City of New Orleans. In this case, the property seized for taxes was not seized from the real owners, nor for taxes due by them, but under a judgment obtained against another party, and without notice to those who-at the date of and before any attempt to execute that unrecorded judgment-held a clear and valid title to the property levied upon. Nor is this all: in its assessment, the description of the property is so loose, incomplete and defective, that under a sale based on that assessment-no title could have been divested, no purchaser placed in possession of the property now owned and possessed by plaintiffs. The counsel for the city contends that the conveyance from the former to the present owners of the property so assessed was made before and without payment of the taxes due on the transferred property, and that no one should be allowed to ask relief from taxes by virtue of a conveyance made contrary to the provisions of a prohibitory law. The answer to this is that the record does not disclose any registry of the tax-list or other registry to preserve the tax lien. It is, therefore, ordered that our first decree remain undisturbed. No. 6890. THE STATE VS. ALFRED SIMIEN. The facts set forth in the affidavit of a party accused of a crime, in support of his motion for a continuance, are, for the purposes of the motion, to be taken as true. They can not be traversed, or contradicted by counter affidavits, or other evidence. When the confessions of a prisoner to the committing magistrate have been reduced to writing, but on being offered in evidence on the trial of the accused, are, on his motion, rejected on account of defects of form in the writing, his voluntary declarations to the magistrate may be proved by parol. To warrant a conviction on circumstantial evidence, it is necessary that the circumstances should be of such a nature, and so related, as to leave no reasonable doubt that the accused is guilty of the offense with which he is charged. It is not necessary that the circumstances should produce that positive conviction which would flow from the testimony of a reliable witness, A PPEAL from the Eighth Judicial District Court, St. Landry parish. H. N. Ogden, Attorney General, for the State. The opinion of the court was delivered by MANNING, C. J. The defendant was indicted for stealing a cow. He applied for a continuance, and made affidavit that "Madame J. B. Simien, a competent and material witness in his behalf, is absent without his consent or procurement, and that he will not be able to procure her State vs. Simien. attendance at the present term of the court; but he expects to procure her attendance at the next ensuing term. He represents that a short time previous to the institution of this prosecution he had purchased from Madam Simien a two-year-old heifer. He further represents that he can not sufficiently establish the same fact by the witnesses in attendance upon the trial, or by other witnesses known to petitioner." He then states that this witness is old and sick, that the application is not made for delay, but to obtain substantial justice, and further that he has used due diligence to procure the attendance of the witness, and that she has been in attendance upon the session of the court until attacked by illness. The State prayed leave of the court to traverse this affidavit, alleging that the witness, who is the mother of the accused, was not sick, and the application for a continuance was a mere subterfuge to avoid a trial, and that the witness was absent by connivance with the accused. The defendant objected to hearing this on the ground that the statements made in the affidavit must be taken as true for the purpose of trying the motion, and the court overruled his objection for the reason that an affidavit for a continuance can be traversed when the judge suspects that the object is delay merely, and that the facts sworn to are not true. The first bill reserved is as to this point. The rule is, that the affidavit of the accused, upon which is grounded his motion for a continuance, is for the purposes of the motion to be taken as true, and no counter affidavit can be received, nor can the statements or facts it contains be contradicted by a cross-examination or aliunde proof, and this rule is of such universal acceptance that we are not inclined to modify it. Archbold's Crim. Prac. 1 vol. 569 et seq. The case of Allen v. the State, 10 Georgia, 85, cited by the judge a quo in support of his ruling, does not go so far, and if it does, it is opposed to the whole current of authority. The State offered in evidence what purported to be a voluntary declaration of the accused before the justice of the peace who held the preliminary examination, which on objection by the accused that such declaration was defective in form, was ruled out by the court. The State then offered the justice of the peace as a witness to prove by parol that a declaration had been made before him by the accused, and what that declaration was. The objection of the defendant to the admission of this testimony was overruled, and he reserved a bill to the ruling. The declaration had been taken down in writing by the committing magistrate, but had not been properly attested or authenticated. Our law requires that such declaration shall be reduced to writing and signed by the prisoner in the presence of the magistrate and of two witnesses, or if the prisoner can not sign, that that circumstance shall be men State vs. Simien. tioned, and the declaration shall be certified with the signature of the magistrate and the same number of witnesses. Rev. Stats. 1870 sec. 1010. The point is not decided in State v. Rodriguez, 2 Martin, 254, to which the counsel for the defendant refers us, but the court say, it may well be doubted whether, while the law so carefully provides for the safety of the accused against the great facility with which words may be misrepresented, and his declaration colored, it is not much more consonant with justice that the testimony of the committing magistrate should be refused when he had neglected to reduce to writing the declaration of the prisoner. In the present case, he had not neglected to reduce the examination to writing, but the writing was not properly attested or authenticated. The principle approved in Rodriguez's case is there stated to have been. decided in State v. Grove in North Carolina as preserved in Martin's Notes. More recently the court of that State has held that though the examining magistrate, before whom a prisoner charged with felony is brought, does not reduce the examination to writing, as it is his duty to do, yet evidence may be given of such prisoner's confessions at the time, but to render such evidence admissible, it must appear that the committing magistrate did not take down the examination in writing, or that the same is lost. State v. Parish, Busbee Rep. 239. So also in Mississippi, where a justice of the peace took the confessions of an accused in writing at the time they were made, it is erroneous to allow the justice to testify of these confessions from recollection when the non-production of the writing is not accounted for. Peter v. the State, 4 Smedes & Marsh. 31. Neither of these cases is like the present, for the magistrate did take the declaration in writing, and it is not lost, but was produced and rejected on objection by the accused. Our statute providing for the declarations of an accused person to be taken down in writing is similar to those of other States, and they are all either copied from or assimilated to the statute of Philip and Mary, which first broke down the rule of the common law in England, until then inexorable, that no examination of the prisoner himself was permissible. But before the passage of that statute, the confessions of a prisoner, when made under circumstances defined by the law, were admissible. We hold that when declarations of a prisoner to the committing magistrate have been reduced to writing by the magistrate, and the written examination is offered by the State, and upon objection by the prisoner of its informality, it is held inadmissible by reason of irregularity, parol evidence is admissible to prove what he voluntarily disclosed. 1 Greenleaf's Ev. ¿ 227. The third bill reserved was to the refusal of the court to charge that |