Because the Legislature desired that this appointee should have the office during the whole unexpired term, and so provided, is no reason for denying to him the right to hold it at least for the term for which the Legislature had clear constitutional authority to give it to him.

But if the charter provision for an appointment by the mayor is conceded to be unconstitutional, null, and void in toto, plaintiff's case is not benefited thereby. Plaintiff is a plaintiff in injunction. He must show a right in himself. It does not suffice for him to show absence of right in his adversary. If, as chief deputy or clerk, he is not entitled to hold the office, he has no right to an injunction, no matter what the authority, or no authority, of the defendant may be. Now, plaintiff is not an officer whose mandate, expressly or impliedly, requires him to hold the office until some one may qualify to take it. Plaintiff's mandate was special, ad hoc. It was to act as treasurer until this appointment should be made by the mayor, and the appointee have qualified. Therefore his own authority terminated with this appointment, no matter what authority the appointment may or may not have conferred upon defendant. If no authority was conferred on the appointee, then the situation might be that no one had authority to act as treasurer; but, certainly, under the express terms of the charter, the authority to plaintiff was withdrawn, as an effect of this appointment. The idea of the Legislature, evidently, was that only a day or two would be required for the mayor to make this appointment, and the appointee to qualify, and that this brief interregnum could be safely bridged over by letting the chief deputy of the office act, with only such bond as he had theretofore furnished. The Legislature had no idea to consent that this important office should be filled by a deputy or clerk during the possibly protracted time until an election by the people could be held to provide a regular incumbent, and still less that it should be so filled for a space of 18 months, for, as we understand, no provision has been made by law for the holding of a special election to fill the vacancy in this office. The clearly expressed intention was that the authority to this deputy to act should terminate with the qualifying of the mayor's appointee.

The learned counsel of plaintiff says that the amount of the bond to be given by this chief deputy or clerk is required to be fixed by the council, and that at the death of the treasurer the council might exact a new bond commensurate in amount with the additional responsibilities of this deputy. The answer to this is twofold: The first answer is that, if the council may increase the bond, so it may decrease it, and that the Legislature has not consented to leave the matter of the bond of the treasurer of the city of New Orleans to the discretion of the council, except to the limited extent specially provided, namely, that the council should fix the bond of this chief deputy, and that in case of the death of the treasurer this chief deputy should act as treasurer during the few days that might be required for some one to be appointed and to qualify by giving the bond required by law of a treasurer. The second answer is that it is not clear that the intention of the statute is that this deputy or clerk shall give a new bond before acting as treasurer, or that a new or additional bond can be required of him. Pending the furnishing of this new bond, there would be a break in the continuity of the office the very thing to avoid which the deputy or clerk was authorized to act; and the deputy or clerk might put his own construction on the law and refuse to give this new bond, and pending the squabble the office would come to a standstill, and the interregnum not be bridged at all.

In the course of the argument above, it is said that plaintiff has no authority, even though defendant has none. It was only by way of argument that the possibility of there being no one to have charge of the office was thus assumed. The fact is that, no matter how destitute of legal life defendant's title may be, it, in connection with the recognition and countenance of the mayor and city council, makes him treasurer de facto, and, as such, qualified to carry on the office, at least for the time being. It is well settled that an officer appointed under an unconstitutional law may be an officer de facto, and his acts as such be valid, and a protection to all parties dealing with him in his apparent legal capacity. Am. & Eng. E. of L., vol. 8, p. 775.

Judgment affirmed.

ABANDONMENT.

ACCORD AND SATISFACTION.

See Absentees."

ABSENCE.

ABSENTEES.

In a proceeding via executiva upon a mort-
gage containing the pact de non alienando, the
allegation that the mortgagor resides in an-
other state, coupled with a request to that
effect, justifies the appointment of a curator
ad hoc.-Huber v. Jennings-Heywood Oil Syn-
dicate, 747.

Persons claiming under the mortgagor by a
conveyance of later date than the mortgage
are not entitled to notice of proceedings on the
mortgage, and can attack the same only for
want of notice to the mortgagor, or by showing
either that he was not absent from the state,
or that he was represented in the state to
the knowledge of the plaintiff, so that the ap-
pointment of a curator ad hoc was not justi-
fied.-Huber v. Jennings-Heywood Oil Syndi-
cate, 747.

Where a suit is brought by a resident partner,
and an appeal taken in the name of the firm is
dismissed, and not renewed within the year pre-
scribed in case of residents, the nonresident
universal legatee of one of the partners, ac-
quiring the claim pendente lite, will not be al-
lowed to appeal.-S. Blum & Co. v. Wyly, 1092.
Under Code Prac. art. 593, a nonresident
plaintiff, appearing as such on the record, can
appeal at any time within two years from the
judgment.-S. Blum & Co. v. Wyly, 1092.

ACCEPTANCE.

Of mortgage, see "Mortgages," § 1.

ACCESSION.

Annexation of personal to real property, see
"Improvements.'

ACCOMPLICES.

Testimony, see "Criminal Law," § 4.
1101

ACCOUNT.

Accounting by executor or administrator, see
"Executors and Administrators," § 7.

ACKNOWLEDGMENT.

Of indebtedness barred by prescription, see
"Prescription," § 3.
Operation and effect of admissions as ground
of estoppel, see "Estoppel," § 3.

ACTION.

Jurisdiction of courts, see "Courts."
Limitation by statutes, see "Prescription."
Actions between parties in particular relations.
See "Master and Servant," § 6.
Co-tenants, see "Partition," § 1.
Actions by or against particular classes of
parties.
See "Absentees"; "Infants." § 3; "Insane Per-
sons," § 1; "Municipal Corporations," § 4.
Particular causes or grounds of action.
See "Libel and Slander," § 3.
Appeal bonds, see "Appeal," § 11.
Breach of contract of employment, see "Master
and Servant," § 1.

Obstruction of stream, see "Waters and Water
Courses," § 1.

Personal injuries, see "Electricity"; "Master
and Servant," § 6.

Price of goods, see "Sales," § 3.
Price of land, see "Vendor and Purchaser," § 6.
Particular forms of action.

See "Petitory Actions."

Particular forms of special relief.
See "Divorce"; "Injunction"; "Partition," § 1.
Confirmation of tax title, see "Taxation," § 7.
Establishment of will, see "Wills." § 1.
Foreclosure of mortgage, see "Mortgages," § 4.
Rescission of contract, see "Contracts,'
"Vendor and Purchaser," § 3.
Setting aside fraudulent conveyance,
"Fraudulent Conveyances," § 2.

Trial of tax title, see "Taxation," § 7.

see

1102

representative, and there being neither allega-
tion nor proof in the record as to the value of
the right claimed, the Supreme Court is with-
out jurisdiction of an appeal.-State ex rel.
Young v. Sanders, 188.

Where, after judgment by confession, the
state petitions for suspensive appeal, making al-
legations of fraud which require evidence to
be taken, the proper remedy is by an action in
nullity, and the appeal will be dismissed.-
Kiernan v. Jackson, 645.

No appeal lies from an interlocutory order
dismissing a rule taken on plaintiff to return
a deposition in the possession of a nonresident
commissioner.-Drainage Commission of New
Orleans v. Charles F. Collom & Co., 815.

An order dismissing a rule on plaintiff to re-
turn into court a deposition in the possession of
a nonresident commissioner does not cause ir-
reparable injury, justifying appeal.-Drainage
Commission of New Orleans v. Charles F. Col-
lom & Co., 815.

§ 2. Right of review.

The rule that the right of one of the par-
ties to a suit to appeal to a particular court
carries with it the right of the opposing party
to a like appeal is not universally true.-State
ex rel. Young v. Sanders, 188.

an order of appeal, to be binding.-Walker v.
Parish of Tangipahoa, 321.

his costs for serving citation of appeal, he has
Where a district clerk himself pays a sheriff
no right to refuse delivery of transcript of ap-
peal to appellant until he has been reimbursed.
-State ex rel. Blum v. Wells, 463.

Where several appellants give a lawful ap-
peal bond, except that only one appellant binds
himself to prosecute the appeal, the appeal
will not therefore be dismissed.-Goothye v.
Delatour, 766.

An error in the recital of the date of the
judgment appealed from will not vitiate the
appeal bond, the judgment being otherwise
identified.-Goothye v. Delatour, 766.

6. Supersedeas or stay of proceedings.
The appellate court need not remand a cause,
to have it determined by the district court
whether the appeal should be suspensive or de-
volutive. Succession of Wintz, 40.

An appeal from a judgment appointing or
removing a tutor does not, under Code Prac.
arts. 580, 1059, suspend the execution of the
judgment, but may be maintained as a devolu-
tive appeal.-Succession of Watt, 937.

§ 7.

Record and proceedings not in rec-
ord.

188.

A litigant's interest in the mere incidental
matter of costs does not alone entitle him to
appeal to the Supreme Court.-State ex rel.
Young v. Sanders, 188.

§ 3. Presentation and reservation in
lower court of grounds of review.
A demand not embraced in the pleadings be-
low cannot be urged on appeal. Stephens v.
Duckett, 979.

4. Parties.

Where, to determine that an appeal is friv-
olous, and dismiss it, would involve considera-
tion of the merits, the motion to dismiss will
be denied.-Dardenne v. Schwing, 318.

An appeal will not be dismissed, as taken
merely for delay, unless it appears plainly from
the record that such was the only object of
the appellant.-Dardenne v. Schwing, 318.

Where it does not appear that the evidence
called for by defendant had been offered in evi-
dence, the appeal will not be dismissed because
it had not been copied in the transcript.-In re
Seim, 554.

Departure from the regular prescribed meth-
od of bringing parties into court disregarded,

where it has brought about a situation which
warrants judicial action.-Succession of Car-
bajal, 944.

§ 9. Hearing and rehearing.

Points not made on the original hearing will
not be considered on an application for rehear-
ing. Stephens v. Duckett, 979.

§ 10. Review.

An issue not presented before the district
court and Court of Appeal will not be consid-
ered by the Supreme Court.-Neith Lodge, No.
21, I. O. O. F., v. Vordenbaumen, 213.

In cases of slander, the verdict will not be
disturbed, unless not sustained by any correct
view of the evidence.-Covington v. Roberson,
326.

Where title to a fund is in litigation, and
after judgment is appealed, and a third party
files an opposition and admits that his claim is
inferior to that of defendant, and introduces a
judgment in an action between him and plain-
tiff. entitling him to a preference over plain-
tiff's claim, such judgment and admission will
be the law of the case on appeal.-Thompson
v. Vance, 548.

A judgment based on conflicting evidence will
be affirmed.-Mente & Co. v. Le Blanc, 970.

The opinion of the trial judge on questions of
fact, unless clearly wrong, will be affirmed.-
Brady v. Jay, 1071.

§ 11. Liabilities on bonds and under-
takings.

Without an order of appeal in the record, the
bond of appeal is a nullity.-Walker v. Parish
of Tangipahoa, 321.

Where the pleadings are directed to have a
bond on appeal decreed a nullity, and it is so
held, the court will not determine whether an
amount deposited in lieu of bond should be re-
turned to the party making the deposit.-Walk-
er v. Parish of Tangipahoa, 321.

APPLIANCES.

1. On criminal charges.

It is not a condition precedent to the right
of a deputy sheriff, holding a warrant for
the arrest of a person charged with a crime in
the parish of the magistrate issuing the war-
rant, that he should have first complied with
Rev. St. 1876, § 1085, as to making a return.—
State ex rel. Cavignac v. Aucoin, 51.

ARREST OF JUDGMENT.

In criminal prosecutions, see "Criminal Law,"
$ 7.

ASSAULT AND BATTERY.

Assault with intent to kill, see "Homicide," § 4.
§ 1. Civil liability.

While a father, under Civ. Code, art. 2318.
may be liable for the wrongful act of his mi-
nor child, it must be shown that the one who
had a difficulty with the son, resulting in the
injury, was not himself at fault.-Miller v.
Meche, 143.

One who is quick to meet a minor with whom
his relations were strained, and is the first to
resort to insulting words, and then to blows,
is not in position to recover damages from the
father of the minor for injuries received in
the struggle which ensued.-Miiler v. Meche,
143.

§ 2. Criminal responsibility.

On trial for assault by willfully shooting, it
is reversible error to refuse to charge that the
jury may convict of a mere assault.-State v.
Matthews, 962.

ASSESSMENT.

APPLICATION.

For change of venue, see "Criminal Law," § 2.
For continuance, see "Criminal Law," § 5.

APPOINTMENT.

Of executor or administrator, see "Executors
and Administrators," § 2.

Of officers in general, see "Officers," § 1.
Of tutor, see "Tutorship," $ 2.

APPURTENANCES.

Passing by deed, see "Deeds," § 3.

priation," § 1.

Of tax, see "Taxation," § 2.

ASSIGNMENTS.

Fraud as to creditors, see "Fraudulent Con-
veyances."

§ 1. Rights and liabilities of parties.
Under Civ. Code, art. 1891, the right to re-
lease of a contractor who buys a logging con-
tract must be determined, not by his ability to
fulfill his agreement, but by the nature of the
logging contract.-Forsman v. Mace, 28.

ASSOCIATIONS.

Mandamus to bar association, see "Mandamus,"
§ 2.