Insurance Co. vs. Hart. Agricultural and Mechanical College bonds of the State of Louisiana, of the series involved in this suit, were primarily executed and issued by the proper officers of the State for value. That they are in the form of commercial obligations, payable to bearer, at a future date. Under the funding laws of the State, enacted in pursuance of a constitutional enactment in the year 1874, they were surrendered to the Board of Liquidation of the State as valid and binding obligations of the State, and in exchange therefor consolidated bonds of the State were issued in the form they are presented to the court. That they subsequently passed into circulation as valid obligations of the State for value, and in the due course of dealing and business were listed by the local Stock Exchange; that from that date to the month of September, 1889, a period of nearly fifteen years, they were bought and sold in open market without suspicion or suggestion of fraud or illegality; that it was during that period of time plaintiff company purchased same from defendant, through the medium of a broker, for a valid and adequate consideration, and in the usual course of trade. Finding these bonds in its hands after the disclosures that were made in September, 1889, to the effect that they were fraudulent and illegal because they had been theretofore condemned and placed under ban by a clause in the organic law of 1879, recalling them from circulation and directing them to be destroyed by the Legislature, plaintiff brought this suit against the defendant as vendor thereof, and demands judgment against him on the theory that he sold it, fraudulent and void obligations of the State, instead of legal and valid obligations of the State. To what I have said in argument I do not propose to add one word; nor to the authorities cited do I propose to make any addition. For the proposition that when the State (sovereign though she be) goes into market to borrow money upon her promises to pay she occupies a plane which is occupied by any private individual in like situation; and her obligations possess the same significance as those of private individuals seeking relief in courts of justice, and no other, I still contend. If that be a correct proposition of law, it follows necessarily that the declaration of the State-albeit through a command in the Constitution-can no more affect her promises to pay, in the hands of third and innocent holders, than a similar declaration made by Insurance Co. vs. Hart. an ordinary maker of a negotiable promissory note, payable at a future date after it had passed into the hands of an innocent third person for value. That the obligations of the State had passed into the hands of third persons, and were outstanding, in the hands of third and innocent holders for value, at the date of the adoption of the Constitution of 1879, and so remained until the discoveries in September, 1889, was a matter of proof in the case of Pugh vs. Moore, Hyams & Co.; but since that date the Legislature of the State has enacted and promulgated a law, in the shape of a concurrent resolution, in which all these aforesaid facts are specifically set out and enumerated. Act 182 of 1894. In that resolution it is stated that whereas certain banks, as fiscal agents of the State, had "paid to the holders thereof certain interest coupons of certain consolidated bonds of the State of Louisiana maturing July 1, 1889; and, whereas, the bonds from which said coupons had been detached were subsequently ascertained to be the property of the State of Louisiana, and which had fraudulently been put in circulation by E. A. Burke, then Treasurer of the State of Louisiana, "Be it resolved, That the Auditor is authorized and directed to warrant in favor of said banks for the sum of two thousand six hundred and sixteen dollars each, said sums being the respective amounts paid by them as fiscal agents of the State aforesaid upon any unexpended balance in the hands of the State Treasurer of the appropriation made for the payment of interest upon the consolidated bonds of the State of Louisiana by the Legislature of 1888; and the Treasurer is hereby authorized and directed to pay said banks the said sums in the usual course." This legislative enactment, I take it, is an emphatic and undisguised recognition on the part of the legislative department of the government of the State's obligation to pay the identical bonds about which this defendant is sued. This act was passed, approved and promulgated since the Pugh case was decided and with a full knowledge of its scope and effect. And the legality of that resolution was affirmed in State ex rel. Banking Company vs. Auditor, 47 An. 1679. Considering these facts I can not see how this defendant can be compelled to reimburse the plaintiff the amount it expended for the State vs. Ventura and Dippolita bonds in controversy, contemporaneously acquired with the payment by the banks of the interest coupons which were detached from the self-same bonds. The defendant is in identically the same position as the banks. No. 12,075. 48 586 104 654 STATE OF LOUISIANA VS. GIOVANNI VENTURA AND GIUSEPPE DIPPOLITA. Motion for an appeal must be filed in due time and an order of appeal entered by the court. A PPEAL from the Seventeenth Judicial District Court for the Parish of St. Mary. Allen, J. M. J. Cunningham, Attorney General, and Pierre A. Simmons, Jr., of Counsel, for State, Appellee. Submitted on briefs for the State February 29, 1896. Opinion handed down March 9, 1896. The opinion of the court was delivered by BREAUX, J. The defendants were indicted for murder. After trial they were found guilty without capital punishment, and were sentenced to the penitentiary for life. In this court the Attorney General, representing the State, moves to dismiss the appeal on two grounds: 1. The record does not show that an appeal from the verdict and sentence was either obtained or denied. 2. There is no bill of exception in the record, taken to the ruling of the trial judge. The defendants are not represented by counsel before this court. The want of an order of appeal, when none has been applied for, is fatal to the appeal. Further, errors in rulings in criminal trials are available on appeal by exceptions duly taken. It becomes a question of fact as to whether the record contains an order of appeal, or whether there is any evidence showing that Chamberlain et als. vs. Abadie. application was made for such an order, and in the second place whether a bill of exception was taken during the trial and is of record before this court. We have read the transcript from cover to cover, for an application for an appeal or evidence of an order of appeal. In view of the gravity of the case, although there is no order of appeal of record, we none the less examined the transcript and found no ground which would justify the reversal of the verdict and sentence of the court on appeal. AS TO EXCEPTION. A bill of exception was reserved to the court's ruling on a motion for a continuance, on the ground that no copy of the indictment had been served on the accused. Although the motion was denied by the court, the case was postponed and other copies of the indictment were served on the accused. At the second calling of the case for trial the accused, through counsel, declared that they were ready for trial without objection in regard to service of the indictment. There is a note in the minutes of another bill reserved, but there is no evidence of grounds upon which it was reserved, or of any statement to stand in lieu of a bill. The entry is only: "Bill reserved," without reference to any fact or law. The appeal is therefore dismissed. No. 11,939. GRACE F. CHAMBERLAIN ET ALS. vs. CYRIL ABADIE. The payment of taxes on property is not by itself evidence of corporeal possession of the property, and without some act showing corporeal possession, will not support the plea of ten years' prescription. Possession animo domini forms the basis of the ten and thirty years' prescription, and it must be, at least in its commencement, a corporeal possession. The corporeal possession is regulated to a great extent by the uses for which the immovable property is destined, and its nature. Α' PPEAL from the Civil District Court for the Parish of Orleans. Kernan & Wall for Plaintiffs, Appellants. 48 587 52 197 48 587 104 716 48 587 109 589 109 654 109 833 109 834 Chamberlain et als. vs. Abadie. Harry H. Hall for Defendant, Appellee. Argued and submitted February 14, 1896. The opinion of the court was delivered by MCENERY, J. The plaintiffs instituted this petitory action to recover a square of ground situated in the seventh district of this city. Plaintiffs' ancestor acquired this property from the New Orleans Canal and Banking Company, Samuel Kohn, Laurent Millaudon and John Slidell, July 23, 1833. Nathaniel Chamberlain, the grandfather of plaintiffs, died in 1836, and the square of ground which they claim was inventoried in his succession. There is no evidence in the record that it ever passed from the succession by judicial sale, or that it was ever sold for taxes. Defendant sets up title as follows: Warwick Martin to Edward Chase, who acquired title for account of J. W. Clark and others in 1854, and in 1856 J. W. Clark and others sold to E. W. Clark. Edward Chase conferred title in 1882 to E. W. Clark; June 27, 1887, E. W. Clark sold to defendant. The defendant pleads the prescription of ten years. C. C. 3478. To prove possession and occupancy during the time necessary to perfect his title, he exhibits the receipts for taxes on the property paid by himself since his purchase of the same, and by the authors of his title, for more than ten years. The evidence shows that the square was vacant, not enclosed, low and swampy, until defendant, seven years before the institution of this suit, took actual possession of the same and filled in the hollows and made the square high ground. The square was formerly a part of the undivided half of a plantation acquired by the New Orleans Canal and Banking Company. The question at issue is, does it require some act when the property is unoccupied, marsh, swamp, or wood land, to be done in order to show to the world that the property is occupied in such a manner as to be equivalent to corporeal possession, to mark the commencement of the prescription of ten years? The defendant cites the cases of Giddens vs. Mobley, 37 An. 417, |