Volume 1 — Manning's Unreported Louisiana Cases (1880)

Cullom, J. The main, suit of La Société v. Morris, was decided and a settlement was made by compromise. One of the stipulations of this compromise was that Mr. Lingan, the attorney who collected the amount, was to receive one-half of the sum thus collected as his fee. The sum collected was $4,000. The plaintiff society transferred all its rights to another society, which appears to be its successor.

Saucier, J. The “ Mary Alice,” a tow-boat of plaintiffs, took in tow a barge, the “Lucy Brooke” laden with walnut timber belonging to the American Timber and Manufacturing Company. The captain signed a bill of lading for the barge and cargo, consigned to Geo.

<p>A suit on a rent note for ninety dollars, with the allegation that it is one of a series given under a contract of lease for six months, each of the nine being for that sum, and a prayer for judgment for ninety dollars, and for such other sums as many become due under the lease before judgment, is within the jurisdiction of the District Court, and when all the notes matured before judgment, is within the jurisdiction of this court.</p>

<p>Interest, not having been demanded in the petition, will not be allowed by this court on a prayer for amendment of the judgment of the lower court.</p>

Cullom, J. Lawson had sold the boat to Kouns in 1871, but no change in the title had been made on the Custom House records. The boat had been lost, and certain creditors of the boat had sued Lawson in the United States court, and had judgment. Kouns and Moran had given Lawson a bond to indemnify him against all claims that might be preferred against him as owner of record, and this suit was to enforce it.

<p>Appeal from the Sixth District Court of New Orleans. Saucier, J.</p>

A motion was made by defendants appellants to strike the case from the summary docket, on the ground that promissory note cases were not included in the list of preference cases by any legislative Act. This was in 1877. The motion was refused, and judgment rendered for the amount of the note.

Lynch, J. The transcript did not contain all the records offered in evidence, and a motion was made to dismiss on that ground.

Cullom, J. The plaintiffs in the two suits held a mortgage upon the defendant’s lot, which was unimproved when the mortgage was given and recorded, May 19, 1871. Buildings were erected on it shortly after-wards, and Markey had furnished the lumber used in their construction. The other intervenors had furnished other materials. Markey’s privilege was recorded August 12, 1871, for a sum stated in liis affidavit as being due July 18, 1871.

<p>The provision of the Code of Practice for a rehearing of causes after decision cannot be extended so as to embrace a second rehearing.</p>

<p>Applications ior extension oí time to bring up the transcript are granted without prejudice to the appellee’s right to move to dismiss, or to show that the extension should not have been granted.</p> <p>Application for extension of time must be made before the expiration of that allowed by law, and if time has been once extended and more is desired, the application for it must be made before the expiration of that first granted.</p>

For a Prohibition. In June, 1877, the Crescent City Live Stock Landing and Slaughter House Company applied to the Third Court for an injunction to restrain John Larrieux from yarding, stabling, and slaughtering any animals destined for human food anywhere within the parishes of Orleans, St. Bernard, and Jefferson, except in its buildings and at its abattoir on its premises, and the court refused it. The company appealed from the refusal, and that appeal is pending.

Houston, J. Anna Conery mortgaged the property, the sale of which is injoined, to Thomas Dwyer ostensibly to secure two notes of $4,000 each. In fact she owed nothing to Dwyer, the notes and mortgage having been given for the convenience of F. M. Fisk. After Fisk’s death, the plaintiff who is his executrix, obtained executory process to foreclose the mortgage, the notes having come in her possession.

<p>In a rule taken by the executor of a succession upon the recorder of mortgages to cancel the mortgages upon the property of the succession,-which had been sold under order of the Probate Court, the mortgagees, or parties holding the mortgages, are necessary parties to the rule.</p>

<p>Appeal from the Fourth District Court of New Orleans. Lynch, J.</p>

Bermudez, J., a,d hoc. The succession of Pierre Pinaud being under administration in the Second Court, one of the assets thereof had been advertised for sale under a fieri facias issued in a suit of Pinaud’s Admx. v. Fellon. The asset was a note which was in the possession of Zaclick in pledge. An injunction had been obtained forbidding the sale, and the judge had been counsel in this injunction suit.

<p>Appeal from the Fifth. District Court of New Orleans. Cullom, J.</p> <p>On motion to dismiss.</p>

Hewes, J. S. Friedlander had execution issued on a judgment obtained by him against Salluste Marcotte, under which was seized a tract of land of forty-six acres, with dwelling, etc., upon it, in which Marcotte lived with his minor child and aged mother, who were dependent on him for support. The value was under two thousand dollars. The property belonged to the community between Marcotte and his deceased wife.

MORSE, J., acl hoc. The administrator’s account was homologated after amendment, on opposition of two heirs and a creditor. An item of $800, paid by the administrator to Trichel was rejected, and he appealed to have that error corrected. Trichel was apparent owner of two judgments against the deceased, both rendered while she was living, and the administrator paid him $800 in full discharge of them, the aggregate judgments exceeding this sum a little.

Lynch, J. The suit is to recover fifty thousand dollars as damages for alleged losses suffered in consequence of the defendant’s wilful disregard and violation of Act No. 60, of 1872, the violations complained of being their neglect to send to his hospital the indigent cases of small-pox, for his treatment. There was judgment for $24,855.

Hawkins, J. George W. Campbell leased certain vacant lots in New Orleans from the Female Orphan Asylum, and made valuable improvements thereon. The property of the asylum was exempt from taxation, under an act of the Legislature, as a charitable institution.

<p>When there is no bill of exceptions, no special verdict, no statement of facts, and no assignment of errors, the Supreme Court cannot review the case, and as it is the duty of the appellants to file a complete transcript and no diminution is suggested the court will ex proprio motu dismiss the appeal.</p>

<p>Appeal from the Fifth District Court of New Orleans. Cullom, J.</p>

<p>Where several notes are pledged to a bank to secure a debt, a part of them cannot be withdrawn by persons claiming to be owners, until the whole debt for which they were pledged is satisfied.</p>

<p>A non-resident married woman cannot take an appeal from a judgment against her, rendered without personal appearance in the lower court, but through the appointment of a curator ad hoc, unless authorized thereto by her husband or the court.</p>

The history of the litigation, and the disposition made of it anterior-'to the present proceedings, may be found in Edwards v. Fairbanks, 27 La. Ann. 449, and Coleman v. Fairbanks, 28 La. Ann. 93.

<p>The writ of prohibition will not be granted against an injunction, obtained by a third party, restraining the plaintiff in prohibition from doing certain acts, merely on the ground that such plaintiff had himself enjoined the public authorities from interfering with him in doing the same acts. Prohibition in such case will be granted only when the cross injunctions are between the same parties.</p>

<p>Appeal from the Superior District Court of New Orleans. Lynch, J.</p>

<p>Appeal from the District Court for Jefferson. Pardee, J.</p>

Tissot, J. The administratrix filed a tableau and account which was opposed by sundry creditors. The first part of the opinion of the court disposes of several of these oppositions, maintaining some items, and reducing or rejecting others upon grounds not presenting any question or principle of law, and then proceeds: —

<p>In a suit to recover thirty per cent of a stock note, where liability upon the note is denied, the court will have jurisdiction if the amount of the note is above the appealable sum, although the portion of it sought to be recovered in the suit is below that sum.</p>

<p>Aureal from the Fifth District Court of New Orleans. Cullom, J.</p>

<p>Appeal from the Superior District Court of New Orleans. Hawkins, J.</p>

Tissot, J. Victor Lacroix, a free man of color, son of Francois Lacroix, was married to Sarah Brown, a white woman, in New Orleans in January, 1862. At the time of marriage she did not know that her husband (as she supposed him to be) was of colored blood, but became aware of it afterwards, and before the conception of her child. This child, Marie Cecile (her father Victor having died before his father Francois), claimed her father’s share of this succession.

<p>Appeal from the District Court for St. James. Flagg, J.</p>

<p>Appeal from the Parish Court of Carroll. Moss, J.</p>

<p>The article oi the Constitution of Louisiana, which provides that prosecutions shall be by indictment or information, is not in conflict with the Federal Constitution forbidding any one to be held to answer for an infamous crime unless on a presentment or indictment of a grand jury, as the latter relates to and governs criminal prosecutions in the Federal courts alone.</p>

<p>Appeal from the Second District Court of New Orleans. Tissot, J.</p>

Tissot, J. Mrs. Dowler took a rule on Hodgson, auctioneer, to compel him to pay her $750 cash proceeds of a sale made by him under an order of court. Hodgson averred his readiness to pay it, less the expenses and charges which reduce the sum to $359.70, and tendered that amount in open court. On trial the auctioneer’s charges were allowed except $76, which was a discount allowed him by the newspapers on his advertisement. Hodgson appealed.

<p>A judgment for a sum due for a salary is exempt from seizure equally as well as the claim was before judgment, and this exemption continues in favor of a donee, of such judgment if he has been subrogated to the right of the plaintiff in judgment, his donor, by order of court upon proof offered, and notice thereof was given to the judgment debtor prior to the seizure of the judgment.</p>

<p>Where a claim is made oí a privilege upon the proceeds of sale of sugar and molasses by a third opponent, and there is no evidence shewing that the sugar, etc., was grown upon the plantation described in the act of privilege, his claim will be rejected. Neither privileges, nor the evidence in support of them, will be extended by implication.</p>

The Parish Judge acting. The plaintiff, claiming to have been elected judge of the Ninth District in November, 1876, took this rule under Act No. 39, approved March 5th, 1873, which regulates proceedings in suits for judicial offices, in which he alleges that the Returning Board, of which J. M. Wells was President, had returned him as elected, and W. P. Kellogg had commissioned him on December 9, 1876, and he had qualified shortly thereafter, but that the defendant had taken…

<p>Appeal from the Sixth District Court of New Orleans. Saucier, J.</p>

<p>Appeal from the Superior District Court of New Orleans. Hawkins, J.</p>

<p>Appeal from the Second District Court of New Orleans. Tissot, J.</p>

<p>An injunction, obtained at the instance and for the benefit of a private person, cannot be coupled with a mandamus in the name of the State upon the relation of the same person.</p> <p>A mandamus will not issue to the chairman of a committee of either branch of the Legislature to compel him to issue certificates to witnesses for attendance before it, payable out of a contingent fund appropriated for the use of that committee, the issuing of certificates in excess of the appropriation having been expressly forbidden, when the record affords no means of ascertaining whether the fund has not already been exhausted, and when a discretion is given to those controlling the fund which is inconsistent with the use of the writ of mandamus.</p>

Hyman, J. In June, 1876, the administrator of Jean Salvant filed Ms final account, classifying a claim of Mrs. Ettle as secured by mortgage on the Pearl plantation, which had already been recognized as such on a provisional tableau that had been homologated. Joseph and Charles. Getzinger, the opponents, had been classed as ordinary creditors on the provisional tableau.

Cullom, J. This suit is upon a policy of insurance upon a sugar-house in Pointe Coupeé Parish in amount $20,000. The defendant pleads in bar of recovery a stipulation in the policy, that the underwriters shall not be responsible for any loss or damage by fire which shall be caused by any explosion, and alleges that the fire, and consequent loss, was the immediate result of an explosion of the boilers.

Hewes, J. On March 1, 1866, Emelie Pochel wife of Auguste Voinche, obtained judgment against him for (1) a monthly allowance or fifty dollars during her natural life; (2) sixteen hundred _ and fifty dollars with interest. She died and her son A. A. Voinche is her administrator. In June, 1871, the administrator had execution issued on this judgment, and his father’s property was seized to satisfy the balance thereof, certain credits being acknowledged.

Saucier, J. The defendants were the agents of the plaintiff for the sale of their safes, and purchased from them at a liberal discount, and resold. The suit is upon promissory notes for the purchase price of safes. The defence is breach of warranty, and failure of consideration by reason of the safes not being fire-proof. The record was large, and the testimony abundant and conflicting. All that part of the opinion which treats of the evidence is omitted.

<p>A relator who, having obtained from one o£ the justices oi this court an order upon the lower judge to shew cause why a mandamus should not issue to compel him to grant a suspensive appeal, neglects to file the papers in court or to obtain the writ in ten months, loses his remedy by his own laches. Ignoring the order he had obtained, and neglecting the use of the means of relief which it would have afforded until the time in which a suspensive appeal is permitted has passed, his own conduct has deprived him of relief.</p>

<p>The oath of the appellant, that the amount involved is over the sum necessary to give the Supreme Court jurisdiction, is not conclusive. It will suffice when the record does not contain oilier and more satisfactory proof, but when there is satisfactory evidence in the record that the amount involved is less than the appealable sum, the appellant’s oath will not be considered.</p>

<p>Police juries are limited to the same rate oí taxation as is imposed by the State for her government.</p> <p>Other taxes than the general levy for parochial government are legal only when authorized for specific purposes by special laws.</p>

<p>Appeal from the Sixth District Court of New Orleans. Rightor, J.</p>

<p>When the transcript does not contain the record of another suit offered in evidence, and no application is made for leave to complete the transcript, in the absence of an agreement on such omission, a motion to dismiss the appeal will be sustained.</p>

<p>Appeal from the Sixth District Court of New Orleans. Saucier, J.</p>

Dewing, J. The suit is upon a note signed by John A. Sigur as tutor to Achille Sigur for a part of the purchase price of the Richland plantation, bought for the minor under the advice of a family meeting approved by the court.

<p>A witness can be discredited by otlier means than by direct attack upon his character for veracity. His story may be contradictory, his answers evasive, his conduct shuttling. The circumstances that attended the act or surrounded the person of whom he is speaking may make impossible or improbable the doing that which he swears was done, and these circumstances often converge to and compel a conclusion adverse to his credibility with more directness and more force than the sworn statement of another that he is not credible.</p>

<p>Appeal from the District Court for Carroll. I-Iough, J.</p>

<p>Appeal from the Fifth District Court of New Orleans. Rogers, J.</p>

For Prohibition. The relator brought suit against Charles Germaine for the settlement of a partnership between them in the tug-boat Rochester. Experts were appointed to ascertain the state of the accounts, and their reports were homologated. From this judgment of homologation the plaintiff took a suspensive appeal, which was allowed by the court on a bond of three hundred dollars.

<p>An agreement to insure a lot of goods, made by the seller with the buyer, means that they shall be insured from the point of shipment to the point of destination, and the seller’s habit or custom, not shewn to be known to the buyer, to insure only a part of the route, leaving uninsured another part equally dangerous, cannot control the agreement.</p> <p>Where a seller agrees to ship goods under insurance, and fails to do it, he cannot recover the price of the goods of the buyer, if lost. The contract is commutative, what is promised by one party being the equivalent consideration of what is promised by the other.</p>

Helena. Kemp, J. The action is for a tract of land alleged to have been sold by act under private signature of date February 11, 1871, with faculty of redemption on or before the following January. The suit was instituted after the expiration of that time.

<p>The case will be stricken from the docket where the appeal is from a judgment, which had been already appealed from and such appeal dismissed, and a writ of prohibition thereafter applied for was refused.</p>

<p>Appeal from the Superior District Court of New Orleans. Hawkins, J.</p>

Hawkins, J. Henry Fassman died in 1876. Four years after, the State sued him for the taxes of 1869 and 1870, and two judgments were rendered against him for $1,812.50 with five per cent as attorney’s fees, and twenty per cent as damages. The citations were addressed to the dead man. Notice of one of the judgments was served on his executor.

<p>A planting partnership having been dissolved by the death of one of the partners in mid-year, the administrator of the deceased was charged with the inventoried value of the growing crops, and was prevented from showing the expenses of cultivation after the decease of his intestate, and the privileged charges; held, this was error. The administrator was not concluded by the inventory. ¿Ton constat there were any net profits.</p>

<p>Appeal from First Justice of Peace Court of Jefferson.</p>

<p>"Where one sues on a planting partnership with a married woman, alleged to have been made by her husband as her agent, he must not only prove the contract of partnership, but also the husband’s authority to make it.</p>

Beattie, J. The suit is upon five notes of eight thousand dollars each, secured by mortgage, and for the enforcement of the mortgage. The testimony having disclosed that West was a member of the Adams firm when the transactions commenced, but had ceased to be when this suit was instituted, and that Renaud was not a member at first, but became one afterwards, the defendants urged in argument the fact of mis and non-joinder. No plea had been filed.

Lynch, J. Lewis contracted with Olmstead to make certain improvements and repairs oí a store and warehouse. D. & J. Edwards, furnishers of materials and machinery used by Olmstead in the work, sued Lewis for them on a balance of accounts on the ground that credit was given to Lewis, and that Olmstead was acting only as his agent in the purchase. They had filed with Lewis an attested account under the statute.

<p>A tona fide purchase ol land from one having the recorded title will be good against a prior purchaser who had never recorded his title.</p> <p>The word “ file ” with the date following, but no signature of an officer or mention of an office thereunder or thereabout, gives no indication where the paper was filed.</p>

<p>Where one sells cotton here oí a certain sample and guarantees expressly that all oí it is of the same class, and on reaching a foreign country it is discovered that the cotton was false packed, and the buyer has been there condemned to pay the difference in value, he is entitled to recover the same thus paid from his seller.</p>

<p>Where the transcript does not shew that the prisoner pleaded, or was arraigned, the conviction will be set aside, and a new trial ordered.</p>

Rule to shew cause. The suit was instituted to recover $498.57 with interest from judicial demand, half the cost of a boundary wall, and an amended petition was filed stating that the interest, if claimed for the time it was really due, would have made the sum claimed over $500, but that he remitted all not claimed in the original petition “on account of the delay Consequent to appeals in ordinary suits to the Supreme Court.” The judgment was for the defendant, and the…

<p>Appeal from the Parish Court of Iberville. Crowell, J.</p>

For a Mandamus. The petition was drafted and signed by the district attorney pro tem. in the absence of the district attorney, and was deposited in the clerk’s office. Its object was to test the eligibility of T. Fontelieu to the office of district judge. The clerk neglected, and finally refused to file it, and issue it actions.

<p>Appeal from the District Court for Tensas. Hough, J.</p> <p>The injunction was dissolved below with attorneys’ fees and eight per centum on the sum enjoined as damages.</p>

<p>A writ of certiorari will be granted on a suggestion of diminution of the record, if it is reasonably apparent that the absent paper or document is included in the description of what was offered, as set forth in the note of evidence, although the minuteness of detail in such description has obscured the intention of the party offering the paper.</p>

<p>In a suit to reinstate upon the records a judgment which had been burned in the conflagration of a Court-house, the sole issue is the existence or non-existence of the judgment. The object is to establish a fact, not to enforce a contract or agreement.</p>

Creswell, J. The executor filed a tableau of debts which was opposed by the guardian of Lucy Cook, claiming $1,000 as the portion of a minor child in necessitous circumstances, and by Crane, Breed & Co. claiming a special privilege upon the proceeds of sale of certain property. The succession was insolvent.

<p>When a defendant, convicted under two separate indictments of.larceny of a hog and of altering the mark of a hog, has pleaded the prosecution for the larceny in bar of the latter, but has failed to embody the facts in a bill of exceptions, and also failed to obtain from the judge a statement of the facts, so that the appellate court has no means of knowing whether the stealing and the altering were concurrent or simultaneous acts, and yet it is apparent from the language of the judge that both indictments were based on and grew out of the same facts, and the hog stolen was the hog altered, the court will remand the case to give the prisoner an opportunity of establishing his plea of autrefois convict.</p>

<p>When an affidavit is made for a continuance on account of the absence oi witnesses, and the facts which they are expected to prove are set forth, and the State admits that the witness, if present, would swear to them, this testimony may be contradicted by the State, and the witness may be discredited, in every way that the State could employ for those purposes if the witness had been present and had given their testimony on the trial.</p> <p>It is within the sound discretion of the judge below to permit the State to introduce further evidence, after it had announced that it had closed, provided it be done before argument is begun.</p> <p>The jury are not permitted to take written evidence, introduced on the trial, into the jury-room. They must rely on their memory.</p>

Graham, J. The plaintiff sues upon a note payable in five annual instalments, the interest and one-fifth of the principal being payable annually, ■which was given by the defendant by way of endowment of the college. It contains a condition that it shall not be binding unless twenty-five thousand dollars are subscribed for the same purpose by January 1, 1873.

<p>Appeal from the District Court for Franklin. Smith, J.</p>

Parsons, J. The plaintiffs brought suit in November, 1874, upon a note of D. B. Trousdale for $891.15, indorsed by his sister, the defendant, which was secured by a mortgage upon four hundred acres of land, and obtained judgment against both of them the next month. Six days before this judgment, Emily A. Trousdale sold to Atkins, the other defendant in this suit, her interest in another tract of land, of which she and Atkins were joint owners, for $2,500, payable in one year.

<p>Appeal from the District Court for Lafourche. Beatty, J.</p>

<p>An exception of no cause of action is a general demurrer, and must be tried on the face of the papers. The offer in evidence of the pleadings and process of the cause on trial is unnecessary and improper.</p> <p>It is inconsistent pleading to set up defences to an action, and afterwards except to the petition as not disclosing any cause of action. In such case the exception should be overruled.</p>

<p>The proceedings in execution of a mandate of a court are not to be trifled with. The obligations assumed by a purchaser at a sheriff’s sale cannot be put on and off at pleasure.</p> <p>Where the bid at suoli sale is made by another, at the time unauthorized, but the party in whose name the bid was made afterwards adopts it as his own, this ratification, of the bid will bind him, and he will be compelled to comply with it.</p>

Smith, J. Margaret T. Adams bought a tract of land from Marcellin Gillis and did not pay for it, nor the taxes due upon it after her purchase. The collector sold it for the taxes of 1872 and 1873, and Gillis bought and took title from the collector, which was recorded in December, 1874.

Ray, J. The suit is for a tract of land and for the rents. After occupying the land for a year or two Hewitt found himself unable to pay for it, and agreed with Hampton to rescind the sale. Hampton went into possession and Hewitt removed to another place.

<p>Country merchants, drawing on their city factors in whose hands they had funds, with whom their business relations were such as authorized them to draw with good reason to expect and believe that their drafts would be honored, and who to make payment certain, shipped cotton more than sufficient to cover the drafts after drawing them, are entitled to have their drafts promptly presented, demand of payment made, and in case of refusal notice thereof given by next day’s mail.</p> <p>In such cases there must be presentment, demand of payment, and notice of dishonor in writing to charge the drawers.</p> <p>A promise to pay a dishonored bill, in order to bind the promissor, must be made with full knowledge that he has been discharged by the laches of the holder.</p>

Hudspeth, J. Both parties derive title from the United States through mesne conveyances, the plaintiff from a patent issued to one Bundy, November 3, 1876, based upon a receiver’s receipt to him from the Opelousas land office on May 23, 1839, the defendant from a patent issued to Doyle June 1, 1846, upon a receipt of the same office dated August 26, 1839.

Looney, J. The plaintiff obtained an appeal on motion, but failed to give bond. Within the year'he prayed a devolutive appeal by petition, asking leave to withdraw the former appeal which he had not perfected, and the order was granted, and citations served. The third opponent moved to dismiss on the ground that the first appeal was abandoned.

<p>Appeal from the District Court for Red River. Chaplin, J.</p>

<p>Appeal from the District Court for Caddo. Looney, J.</p>

Chaplin, J. The suit is for slander of title, accompanied by an injunction to restrain the defendant from disturbing the plaintiff. The defendant admits that he claims title, and avers his readiness to sue to establish it.

<p>An hypothecary action to enforce a mortgage upon lands, founded upon a judgment against a tutor, falls when that judgment is reversed.</p>

<p>Where the facts are stated in the petition and the usual allegations are made therein, it is sufficient that the affidavit shall be of the truth of these facts and allegations without again reciting them. It is not necessary that the facts or circumstances, which have induced the apprehension that the defendant would conceal, part with, etc. shall be recited in either the petition or affidavit.</p> <p>When a planter obtains supplies from a factor, without which he could not make a crop, his duty is to send that crop to the factor for sale, and his interest is not to talk and act as if he were preparing to divert it from its legal destination, for if he does thus talk and act, he inevitably induces the apprehension that he is about to do what the law says he shall not do, and a sequestration oí his crop made under those circumstances is legal and will be maintained.</p>

<p>Where a company has become in a* hopeless and helpless condition, without a dollar in its treasury, and threatened with dissolution for non-compliance with its charter, and a number of capitalists are induced to undertake its reorganization and to furnish the necessary funds to enable it to fulfill its obligations to the State, and as an inducement to them it was agreed that sixty thousand shares of stock that had been reserved at its organization should be delivered to them as preferred stock, upon their paying five dollars per share, which was paid and thereby the company was put in funds, the original corporators or stockholders cannot rightfully claim that these shares shall be divided among themselves, nor are they entitled to any part thereof. These shares belong to the new members as a bonus for their assistance and services in revivifying the eoxnpany, without which its dissolution could not have been prevented. Bach v. La. Levee Co., 25 La. Ann. 228 approved.</p> <p>Where the new company, thus reorganized, sets apart twenty per centum of its net earnings and distributes it as a dividend on the preferred stock, and refuses to distribute i the residue of its net earnings as a dividend on the entire stock, contrary to its charter, and by resolution directs that the residue shall be held until the object of the f 'incorporation is fully attained and its work completed, an original stockholder may invoke the interposition of the court to remedy this injustice, and to compel the distribution of this residue of eighty per centum of its net earnings among all the holders of stock, preferred as well as ordinary. If, however, his petition or proof fails to furnish the data that would enable the court to fix the amount of this dividend, and he does not claim judgment for his distributive share thereof, no moneyed judgment can be rendered.</p>

Cullom, J. Jos. Borzone was insured in the defendant company for $6,600, and his loss by fire was estimated by him at $6,381. He was indebted to the plaintiffs $3,941, and to others in various sums. He made a pro rata distribution among them of the amount the company owed him on his policy as estimated by him, and gave to each of them an order on the company for such sum.

The plaintiff owns lots in the square hounded hv Fulton, St. Joseph, North Market and Front streets in New Orleans. The streets running parallel with the river, beginning with the one nearest the river, are Water, Delta, Front and Fulton. The streets running towards the river, beginning with the one furthest below, are Julia, St. Joseph, North Market, South Market and Delord.

Cullom, J. The defendant had transferred to the plaintiff certain rent notes as collateral to secure a mortgage note of Ms own, and afterwards substituted to these, other rent notes of another person, which were not paid because the rented property was under seizure — was in fact under seizure when the exchange was made, of which the plaintiff was ignorant.

Smith, J. Grayson had recovered a judgment against one Sims which was recorded and operated a judicial mortgage upon his lands. Held: Mare, J. rendering the opinion, that the citation for revival should have been addressed to and served upon Sims, and therefore the citation to Norton was without legal warrant and a judgment for revival could not be entered thereon. A rehearing was granted.

Saucier, J, Nash, as auctioneer, sold certain succession property for nine hundred dollars. Lara, the purchaser, paid him, but did not remove the property. For some unexplained cause the property was again sold, as the property of the succession by the sheriff, and was purchased by another person who paid the price, and it was received by the executor and distributed in his final account.

Saucier, J. The default was entered on December 12, 1874. The answer was filed in the clerk’s office on the 14th. The default was confirmed on the 17th. The plaintiff contended that the fact that an answer had been filed should have been brought to the attention of the court by a motion to set aside the default or in some other way.

<p>Appeal from the District Court for Tensas. Hough, J.</p>

Dewing, J. The plaintiff sued to recover certain town property in Baton Rouge. The defendant claimed title from Mrs. T. Gusman, the mother of plaintiff, through mesne conveyances. Mrs. Gusman had been in unequivocal open possession for nearly twenty years, under certain proceedings for separation from bed and board, divorce and division of property, completed in 1851.

<p>Appeal from the Fourth District Court of New Orleans. Houston, J.</p>

<p>Appeal from the Fifth District Court of New Orleans. Rogers, J.</p> <p>After stating the case,</p>

Houston, J. The plaintiffs obtained judgment for $977.40 against Fisk in January, 1871, who took a suspensive appeal, and Washburn was surety on the appeal bond. Afterwards Fisk was adjudged a bankrupt. In 1874 he moved to dismiss his appeal, alleging his disr charge in bankruptcy, and filed the discharge in this court, and this motion was refused, and the case continued for the purpose of citing the assignee. The assignee was thereupon cited, but made no appearance.

Saucier, J. The plaintiff recovered judgment of the defendant Dezutter for $2,750 on February 10, 1872. The next day was Sunday, the 12th and 13th were holidays, the latter MardiGras. On the 14th, Dezutter sold the only property he had, a house and lot on Bampart Street, to Scherer, the nominal price being $4,000, one-half of which was recited to be cash, and the other payable in one year.

Tissot, J. Mrs. Centlivre bought two improved lots at the succession sale of Matilda Brown, and refused to comply with the terms, on the ground that the lots formerly belonged to the community between Jean Bives and his wife, and that the husband gave a power of attorney to his wife to sell them, and the sale by her under that power is the origin of Matilda Brown’s title.

For Mandamus. One of the parties to a suit offered in evidence two records of other suits with all the documents thereto attached. Objection was made by the other side on the ground of irrelevancy of the evidence, and the court reserved its ruling on this objection. In deciding the case, the judge did not pass upon this reserved question. An appeal having been taken, the clerk copied these records in the transcript, and they All four-fifths of it.

For a Mandamus. The act of 3870, extra session, p. 100, enacts that in all cases in which the right to office is involved, the appeal shall be returnable in ten days and the appellate court shall give the cause preference. Sec. 2604, Rev. Stats. of 1870, provides that appeals in such cases shall be returnable either at New Orleans or at one of the country terms. The Acts of 1870 are to have precedence over the Revised Statutes when they are in conflict.

<p>The execution oí a judgment for a sum ol money cannot be suspended by a rule upon the plaintiff in execution and the sheriff, to shew cause why certain judgments against the plaintiff, bought after the rendering of the judgment upon which execution issued, should not be received in compensation therefor.</p> <p>A suspensive appeal from a judgment discharging such rule is not allowable.</p>

<p>Appeal from the Fourth District Court of New Orleans. Houston, J.</p> <p>On motion to dismiss.</p>

<p>Appeal from the District Court for St. Helena. Duncan, J.</p>

Tissot, J. The account was homologated November 22, 1878, the attorney for absent heirs having been duly cited. On September 25, 1879, the absent heirs presented themselves and obtained an appeal, praying for citation of the administratrix and all parties in interest. The errors assigned are the allowance of sundry amounts as charges against the succession which are excessive, and that the administratrix lias not charged herself with a piece of land.

Tissot, J. The sale was under executory process to foreclose a mortgage. The advertisement contained the description of the property as recited in the mortgage. De Armas, surveyor, made a plan of the property, not, it appears, for the purposes of the sale, and not referred to in the advertisement, but it was exhibited at the sale.

<p>The relator brought suit against the New York Life Insurance Company, on a policy on her husband’s life in her favour, and alleging that the Louisina National Bank was in possession of it, joined the bank as defendant, and prayed judgment for the amount of the policy against the insurance company, and for the delivery of the policy against the bank. The insurance company answered that it could not decide between the claimants, tendered the amount, and deposited it in court. The bank claimed the policy and its proceeds. Meanwhile the bank commenced an independent suit on the policy. The two suits were cumulated and there was judgment for Mrs. Pilcher against the insurance company, and for the insurance company against the bank. The bank took a suspensive and the insurance company a devolutive appeal. Mrs. Pilcher issued execution against the company, and also took a rule to shew cause why the money deposited should not be paid to her. The judge quashed the fi. fa. and discharged the rule on the ground that the appeal of the bank suspended the execution of her judgment. The relator applied for a mandamus.</p>

Rogers, J. The plaintiff had sold all the movables of his intestate under order of court to pay debts, and the proceeds were insufficient to pay the privileges. Pugh held a mortgage on the real property, and foreclosed by executory process. The plaintiff brought this action to recover of Pugh the sum necessary to pay the residue of the privileges.

<p>Appeal from the District Court for Grant. R. P. Hunter, Judge ad hoc.</p>

<p>Appeals in cages ol contested election are governed by the general law that provides lor the return ol appeals in all other civil causes, and therefore are returnable, not in ten days, but at the next regular return-day for appeals from the court wherein the cause was tried.</p>

<p>Appeal from the District Court for Grant. Blackman, J.</p>

<p>Appeal from the District Court for Madison Hough, J.</p>

<p>The signature to au appeal bond by one who is uot a principal nor a witness will be held to he that of a surety, although he is not so described.</p> <p>There is no law giving a privilege on a right of servitude. Recording a note, given for one-half the cost of a common wall does not create a privilege upon the wall. Even when the note is merged in a judgment which expressly recognises a privilege, such privilege will not exist to the prejudice of mortgage creditors.</p> <p>When the prayer of the petition is not for a personal judgment on a note, but simply that the defendant be condemned to pay it or surrender the property upon which the privilege is claimed, no personal judgment will be rendered.</p>

<p>Objection that the petit jury was not drawn for each week of the term, and that the list as thus drawn was not published, must be made on the first day of the term.</p> <p>In an indictment for perjury it is not essential that the averment should be in express terms that the court, wherein the perjury was committed, had jurisdiction of the • matter then on trial, but it is sufficient to aver that an issue was joined, which came up for trial in due form of law, and the judge had competent authority to administer the oath in question.</p> <p>An objection that the style of the court before which the perjury was committed is not fully set forth must be made by demurrer to the bill or in a motion to quash.</p> <p>It is not necessary that the proceedings, pleadings, and evidence should be set out in full in the indictment, but it is sufficient if the averment be made that the false swearing was upon a material question.</p> <p>If the indictment charges that the oath was wilful, wicked, corrupt, and malicious, it is sufficient, and need not use the word “knowingly,” or “knowing it to be false.”</p> <p>A verdict in a criminal prosecution need not be written, or if it should be written, need not be signed by the foreman of the jury or any body else.</p>

<p>Where the names of the adverse parties are set out in a petition for appeal and citation of them is prayed, and the order granting the appeal directs the parties to be cited, and the clerk issues citations and does not accompany them with copies of the petition, held, the omission is not imputable to the appellant, and the cause will be continued to enable him to complete the service of his process.</p>

Boarman, J. The action is for the recovery of a part of a town lot and of a structure thereon. E. C. Hart owned four lots numbered 13 to 16 inclusive in square 38 of the town of Shreveport, having an aggregate front of 160 feet on Caddo Street by a depth of 150 feet along Market Street to an alley parallel with Caddo Street. The lots were laid out to front on Caddo Street, but when the owner built on them the buildings were made to face Market Street.

<p>Appeal from the District Court for Morehouse. Parsons, J.</p>

<p>A wife having died, leaving a separate estate besides her interest in the community, her daughter applied for administration, which was opposed by the surviving husband. Held, the daughter as beneficiary heir was entitled to the administration.</p>

Boarman, J. In November, 1867, B. W. Snow was arrested in Ouachita Parish, charged with forgery, and in February following was released on bail, John J. Hope being his security. Snow did not appear to answer the charge, and his bond was forfeited in December 1870, and judgment rendered against him and his surety. They appealed to the Supreme Court and the judgment was affirmed. State v. Snow, 23 La. Ann. 596. Hope lived in Caddo.

The defendants were charged with resisting the town constable in the discharge of Ms official duty.

Graham, J. The suit was for the price of a tract of land, and the defence that the vendor, who is the plaintiff, had no title. Evidence in support of this defence was excluded on the ground that a vendee is not allowed to attack his vendor’s title, unless he avers that he has been evicted, or that he is threatened with eviction.

<p>The bonds oí the State, issued in aid oí the Consolidated Association of Planters, are unquestionable debts of the State, possessing all the characteristics and requisites that are necessary to entitle them to be exchanged for consolidated bonds under the provisions of the Eunding'Bill.</p> <p>The fact that these bonds were at one time classed by the Auditor of Public Accounts as contingent liabilities of the State, does not change or affect their character.</p>

<p>The transcript of appeal from a line imposed under an ordinance of a municipal corporation must exhibit the ordinance, or certain admissions of its terms. An order of the chief of police directing the arrest of persons for doing certain acts mentioned, is not sufficient. That is simply his construction of an ordinance.</p>

<p>The objection that one of the grand jurors who found the bill was himself under indictment for an offence punishable by hard labor comes too late in a motion for a new trial.</p> <p>The presence of the prisoner when the motion for a new trial was made and overruled is not essential.</p>

<p>When there is no bill of exception nor assignment of error, nor motion for a new trial in a criminal cause, the judgment will be affirmed.</p>

<p>It is too late after verdict to object to want of service of the venire upon the prisoner. When the verdict is expressed, improperly, or otherwise improperly framed, it is competent for the judge to so inform the jury, to give them new directions thereon, and send them back to act upon them.</p>

<p>Appeal from the Parish Court of Caddo. Creswell, J.</p> <p>So much of the opinion as recites details is omitted. After disposing of them,</p>

Landry. Hudspeth, J. The suit was against an absentee who was cited through a curator ad hoc. The citation required the defendant to answer in twelve days. Personal service was made on the 15th of November, and default was entered on the 26th and confirmed on the 30th. The sheriff’s return has his charge endorsed upon it for six miles. There was no proof of the actual distance of the curator’s domicil.

<p>Appeal from the District Court for Morehouse. Parsons, J.</p>

<p>Appeal from the District Court for Bossier. Turner, J.</p>

<p>When a creditor of a succession, whose debt is acknowledged by the administrator upon his provisional tableau, appeals from the judgment of homologation thereof he must make the other creditors, who like himself are placed upon the tableau parties to his appeal on pain of dismissal.</p> <p>The creditors who have been ranked upon the tableau of distribution are entitled, after it has been homologated, to instant payment of their respective claims, and may-issue execution against the administrator’s individual private property in default of his paying them.</p> <p>Qucere: — Whether the failure of an acknowledged creditor to appeal subsequently from the judgment of homologation, whereby the administrator has paid out the fund to all except the appealing creditor, is a bar to any other appeal.</p>

<p>Appeal from the Parish Court of Franklin. Bine, J.</p>

Turner, J. The action was for a settlement of a partnership in a saw mill business. The plaintiff annexes to his petition exhibits from the partnership books, and a list of accounts and book charges, which he alleges, were turned over to Chaffe for collection, and which he either did collect, or ought to have collected.

<p>Aureal from the District Court for St. Landry. Baillio, J. ad hoc.</p>

<p>Appeal from the District Court for St. Martin. Fontelieu, J.</p>

Saucier, J. The suit is for damages for a wrongful issuance of an attachment. W. E. Hunt attached nineteen mules on a claim of over $3,000 against one O’Brien. McCaffrey & Co. attached the mules on a claim of over $500 against O’Brien. Slawson intervened, claiming ownership of the mules. By agreement made in the Hunt suit the mules were sold, the proceeds to be held by the sheriff to abide the result of the litigation.

Cullom, J. The suit was for the value of brick furnished one Ivens, the contractor. There were two houses built side by side by the same contractor, but owned by different persons. The brick had been used by the contractor, but he had died, and the plaintiff did not know how many had been used in each building, and did not prove in this case what proportion of them the defendant had used. The lower court gave the plaintiff judgment.

McVea, J. Mrs. Fenn, the mother-in-law of the defendant, held his note for $893.83, and in February, 1872,-voluntarily destroyed it in his presence, telling him she did not wish it paid. No consideration was agreed on between them for this act, but on the same day, Kearney gave her Ms oMigation, expressed to be for vaMe received, to pay her seventy-five dollars per annum-during her natural life.

Hough, J. Thomas J. Morrison in 1874 mortgaged a house and lot in Tallulah to the plaintiffs, and in 1875 to the defendants, both of which were recorded. The lot belonged to his mother and aunt. The house had been built by him upon it with their permission. It was a shop or store. In 1876 he sold the house to the plaintiffs, and shortly thereafter the mother and aunt sold the lot to them.

Houston, J. Nolan contracted with the State to do certain levee-work in Plaque-mine Parish.

<p>Appeal from the Sixth District Court of New Orleans. Rightor, J.</p>

Rogers, J. Catherine Daly owned an improved lot, and mortgaged it to the defendant to secure a loan. The lot was assessed in the name of John Daly, her husband, and was sold by the collector for non-payment of taxes, and was bought by O’Hern, the plaintiff. Within six months from this sale, the defendant tendered the plaintiff what he had paid and such other sum as the statutes then allowed, and demanded to redeem the property. He was refused.

Bradley, J. ad hoc. In 1870 the defendant bought a tract of land from Thomas G-. Davidson, paid him the price agreed on, $500, and cleared, improved and lived upon it. No deed or written title was given, Davidson all along promising that he would make the formal title.

For a Prohibition. Katz was the testamentary executor of Henry Loeb, and under order of court had an inventory made, and a sale of movables was also ordered. One Vega injoined this sale on the allegation that he was a partner with Loeb in mercantile business, and then in a separate proceeding prayed to be appointed liquidator of the firm and for an inventory.

Pierson, J. Seth Bedford sold a tract of land in 1861, to his father Stephen Bedford. The deed was properly recorded. Stephen died in 1873, and Seth in 1874. Scheen became administrator of Stephen’ estate — Hofley of Seth’s. Hofley inventoried and sold this land as Seth’s, and Williams and Dickson bought it at that succession sale.

Rightor, J. The suit was for the taxes of 1878, and was resisted on the ground that the defendant is the holder and owner of a number of bonds issued under the thirty-seventh section of the Act of February 28, 1852, and that as the city had failed to levy a tax for the years 1874-8 inclusive to pay the maturing coupons and to redeem the bonds as provided in that section, the ordinance imposing the tax on him, now sought to be recovered, impaired the obligation of a contract.

McVea, J. The suit is to annul an order of seizure and sale, and the adjudication thereunder, of a plantation composed of two tracts of land. The order was taken at the instance of A. Roehereau & Co., against the plaintiff Foreman, and the sale made in 1867. This suit was entered in 1877. Roehereau & Co. are defendants also with their vendee. On motion to dismiss,

<p>To entitle one to a homestead, he must be the head of a family who are dependent on him for support, and therefore a childless widower, whose mother, brothers, and sisters do not live with him, has no claim to it.</p> <p>One of several co-proprietors is not the owner of any separate or distinct part of the land, and while he holds in indivisión cannot claim the homestead exemption.</p>

Bryan, the plaintiff, bought an improved lot in the town of Baton Rouge in 1860 for $1,500, of which $400 were paid cash and for the residue gave his note secured by vendor’s privilege and special mortgage.

Monroe, J. The relator was the transferee of sundry claims due by the State to sheriffs and clerks for services rendered in 1873. The Legislature, in 1875, passed an Act appropriating several sums out of the revenues of 1874, to cover deficiencies existing for former years; directed the treasurer to transfer all moneys received and to be received for taxes prior to 1874, to a special fund, and apply it to the payment of warrants issued under that Act.

Tissot, J. Lyons died in 1867, and his widow qualified as his administratrix and tutrix. The largest asset of the estate was the decedent’s interest in the clothier-house of L. W. Lyons & Co., the company being H. B. Stevens, who was appointed liquidator of the firm. The mother of the deceased, sued the succession for alimony, and the widow as administratrix answered that the debts nearly equalled the assets, and there would be left barely sufficient to support the children.

<p>The Code of Practice forbids the dismissal of an appeal for any defect or irregularity in the certificate of the clerk, and therefore when he had omitted to certify that the record contains all the documents filed, it is not ground for the.dismissal of the appeal.</p> <p>If the record is incomplete in not containing certain court records, introduced in evidence by the appellees and movers, and the lower clerk was in fact never furnished with copies of such records by the party who introduced them, but they were offered in evidence merely by giving the clerk the title and number of the suit or record, it is not the appellant’s fault nor the clerk’s fault that they are not in the record, but it is the fault of the appellee, and he cannot profit by it.</p> <p>Fraud consists in the artifices by which one party induces an error in the mind of another, bearing on a material part of the contract, with the view of giving an advantage over or causing a loss to that other. It is not an absolute vice of consent, like error or violence, nor does it affect the validity of a contract, if practiced by a third person without the knowledge of the party who benefits by it, but in such case the injured party has his action in damages against the practicar of the fraud.</p>

Rogers, J. The relator is the judge of the Fourth Court of New Orleans, and holds unpaid warrants for his salary for 1878 amounting to $2,200, which had been presented to the treasurer for payment, and were refused on the ground that there was no sum whatever to the credit of the General Fund of that year.

Waggaman, late civil sheriff of Orleans, and his sureties were sued for $3,535.65 received under sixty-one writs of provisional seizure issuing out of the Superior District Court, at the suit of the city against as many persons for unpaid licenses. It was consented that $1,500 of this should be held by the sheriff until four of the suits should be finally decided, and they were decided in favour of the city. She had judgment below for $2,172.75. The defendants appealed.

Rogers, J. Hammond provoked a concursus and was condemned to pay sundry persons divers sums, and appealed, giving John Thorn as surety. This court reduced the judgment below, a writ of fi. fa. issued and was returned nulla bona, and then the judgment creditors proceeded by rule against Thorn. On motion to dismiss,

<p>Appeal from the Fifth District Court of New Orleans. Rogers, J.</p>

<p>On a trial for murder, the coroner’s inquest is not admissible to prove that the prisoner killed the deceased, or to connect him with the homicide, but it is admissible to prove the death. When, therefore, the inquest contains a statement that the prisoner inflicted the wound that caused death, or contains the expression of opinion that the death was caused by the accused, that portion of the document must be excluded, and this may be done by telling the jury that no part of the inquest must be considered by them or have any effect upon them save that which establishes the death.</p> <p>Where this has not been done, or where the record fails to shew that it was done by the judge specially and with particularity, the case will be remanded, since the prisoner’s constitutional right to be confronted with the witnesses against him is thereby infringed.</p>

Monroe, J. The above Insurance Company became insolvent and R. S. Howard was appointed receiver of it by the Superior District Court. He rendered an account to that court woieb was opposed by Garcia Y. Leon and other creditors, but before action thereon the Superior District Court was abolished, and its records were directed to be transferred to the Third Court.

Pierson, J. The suit was for ejection of a tenant from leased premises, and the averment was that Walmsley had leased from Lestan Prudhomme the Panola plantation for a certain rental, which had not been paid, and that notice to vacate was given in November, 1877, which was disregarded. The defendant excepted that the administrator is the proper party to bring the suit, and alleged that there was one, whereupon he came in and made himself a party.

Rightor, J. The plaintiffs agreed to supply Generes, a sugar planter, to the amount of $3,000 and no more. He gave a pledge of his crops of the most stringent kind to secm-e them, and besides obtained Dufour’s endorsement of his note for $2,000 which he gave the plaintiffs as collateral. The note was endorsed by Dufour with knowledge of the contract, and of the use to be made of it. The plaintiffs advanced over $7,000 and the crops sold for $4,500.

Monroe, J. The relator holds vouchers for services as assistant sergeant-at-arms of the lower house of the Legislature for the session of 1872, amounting to $2,640, and prays this mandamus to compel the Auditor to warrant for them. The appropriation was $75,000 to pay per diem and contingent expenses, all of which had been drawn except $21.60.

<p>Appeal from the Fifth District Court of New Orleans. Rogers, J.</p>

<p>Parol testimony Is admissible to prove an interruption of prescription of a promissory note. The prohibition of such testimony is to a renunciation of prescription.</p>

Rogers, J. The plaintiff, with the consent of the defendant took executory process to foreclose a mortgage without producing the note, alleging that it had been lost or stolen. Mrs. Glaser injoined on the ground that she held and owned the note, and had acquired it in due course of business before maturity. The plaintiff had handed the note to his daughter; who was the divorced wife of the defendant, for her to raise money or to pay the expenses of her divorce suit.

For a Mandamus. Sylvanie Denegre is the widow and executrix of James D. Denegre. Ada Denegre is the widow of one of his sons, and the legatee of the usufruct of her deceased husband’s estate, which consists of his undivided interest in his father’s succession.

<p>Appeal from the Third District Court of New Orleans. Monroe, J.</p>

Rightor, J. Hession was a contractor with the State for building certain levees, and Stover was a foreman employed by him to superintend the laborers. Stover sued for a balance due him, and alleging a privilege on the funds due Hession by the State, injoined the payment of them to Hession. Hession was cited June 28, and on same day bonded the injunction, and simultaneously took a rule on Stover to shew cause on July 2nd, why the injunction should not be dissolved.

<p>Appear from the District Court for Iberville. McVea, J.</p> <p>On rule.</p>

Houston, J. The allegations are that the partnership of the plaintiff and defendant in the crockery business had been dissolved, and that “since the dissolution the same sign still exists and that Navra insists on styling himself the successor of Navra &Offner” — that Navra has gone into bankruptcy, made a composition with his creditors and resumed business, still keeps up the same sign, and that the constant association of the plaintiff’s name with an establishment thus…

<p>Appeal from the District Court for Rapides. Blackman, J.</p> <p>After stating the facts and testimony at length,</p>

Tissot, J. Michael Egan, the deceased, had been separated from bed and board and in property from his wife by judicial decree, and had settled with her and paid her her share of the community property. She had spent all of it. On his death his executor did not place her on his provisional tableau for the widow’s portion. He did place Donnelly thereon as a creditor.

<p>Appeal from the District Court for Pointe Coupee. Yoist, J.</p>

McVea, J. At the death of Robert Bowman, his widow qualified as tutrix to their two children. The inventory included his separate property, the community property, and her separate property. Afterwards she petitioned the court for appointment as administratrix, alleging there were debts. She was appointed and qualified. She then obtained an order for the sale of a slave (this was in 1857) to pay •debts, and the sale was made.

<p>The question of prematurity of a demand must be determined by the state of facts existing at the time the suit is brought. If the debt, for the recovery of which the suit is brought, was not due, the plaintiff’s demand was properly injoined. And it does not mend the matter that the debt becomes due before the issue is decided. The penalty for bringing an action prematurely is the dismissal of it. The exception of prematurity is not defeated by the maturing of the demand subsequent to mating it and during the progress of the suit.</p>

For Mandamus and Prohibition. A purchaser at sheriff’s sale of mortgaged property had retained in his own hands $2,600 of the price, of which there were several claimants. The relatrix, whose claim upon that fund was rejected, prayed a suspensive appeal from the judgment distributing it, and insisted she was entitled to it upon a bond for costs. The judge refused it upon such bond.

<p>The principle that the creditor of a vendor cannot disregard a sale made by him, and that a seizure cannot be made of the property sold, until by a revocatory action he has annulled the sale, cannot be invoked when the sale is not real but a sham.</p> <p>The alienation by a debtor of the whole of his property for an insufficient price is conclusive proof of fraud.</p> <p>Minute carefulness to conceal fraud often betrays its presence.</p> <p>Superfluous pains-taking efforts to create the verisimilitude of honest dealing are the devices of crafty schemers to conceal dishonesty.</p>

<p>An American has the legal and political right to abdicate his citizenship, and to become the citizen or subject of any other country.</p> <p>The status of the husband quoad citizenship fixes that of the wife. An American woman, marrying a foreigner, becomes a foreigner. Her political status is changed ipso faoto by her marriage with a foreigner.</p> <p>A treaty of France with the United States provides that citizens of either country, upon whom asuccession shall devolve,shall not be required to pay a greater tax or impost than the citizens of the country in which the succession was opened. Under this treaty, property in Louisiana belonging to a Frenchman and devolving at his death upon his widow, resident of France, was not liable to the tax of ten per centum imposed by the State upon property bequeathed to foreigners.</p>

<p>An heir of a deceased spouse cannot sue for a specific object as part of the community property, as for example, land and its revenues, when there has been no liquidation of the community debts or other settlement of the community, because the heir’s rights are residuary, and non constat that anything will remain after such settlement.</p> <p>Nor can the heir avail herself of the benefits of the community without also sharing its misfortunes, and therefore before she can recover any part of the community property, she must have assisted in paying its debts — that is, she must have provoked a settlement of the community.</p> <p>The surviving spouse who has concocted legal proceedings to prepare the way for a suit, ostensibly in the interest of the heir of the deceased, must he diligent in protecting the interest of his own vendee, whose money he voluntarily received, if he would avoid the imputation or suspicion of withholding information of the affairs of the community that would tell against the heir’s claim.</p>

Rogers, J. This case is a pendant to Succession of Tabary, 31 La. Ann. 409. Carran held a note of Tabary, deceased, secured by mortgage upon a lot of ground. Tabary had sold the ground to Aymes, who assumed payment of the mortgage note as part of the purchase price. It formed, indeed, four-fifths of it.

Tissot, J. The widow Riddell, natural tutrix of her son Peter, prayed the sale of two lots on Baronne Street, upon which was a one-story shed, of which property Peter was owner, for the reason that the taxes were so burdensome as to consume the revenues, and a sale of it could be made advantageously. Experts were appointed to value the property and a family meeting was convoked. She alleged and swore there were no relations, and named eight friends who were appointed members.

Blackman, J. The allegation of the suit was that the defendant, while occupying the bench as judge, had illegally and maliciously ordered the plaintiff to jail for twenty-four hours for an alleged contempt of court, the contempt having been committed whilst the plaintiff was arguing a case before a jury. Damages to the amount of $5,000 were prayed.

For a Prohibition. Goldsmith had brought suit against the city of New Orleans, and obtained an injunction forbidding her from collecting a license of $25.00 from him on his business of keeper of a coffee-house with theatrical performances. Immediately thereafter the same judge granted an injunction to the city forbidding Goldsmith from carrying on his business without a license.

For a Mandamus. The relator sued the Mechanics & Traders’ Bank, and pending the same, the bank went into liquidation, commissioners were appointed and judgment was had against them for $3,000. They took a suspensive appeal on a bond of $250, and the plaintiff moved to execute his judgment because the bond was insufficient. He then applied for a mandamus.

The defendant had been condemned to abate a nuisance at the instance of the Board of Health, and failing or neglecting to obey, was sued for the penalty and judgment was rendered against her. She appeals, relying on the alleged unconstitutionality of the law creating the Board —that the Act of 1855 entitled “An Act to establish a quarantine,” and the Act of 1870 amendatory thereof, do not express their object in their titles.

<p>Appeal from the Fourth District Court of New Orleans. Houston, J.</p>

<p>When the petition oí appeal contains no prayer for citation, and none has been issued, the appeal must he dismissed. Where citation is prayed, the duty ol the clerk is to issue it. Where citation is not prayed, but it is issued and served, the defect in the petition is cured. If the citation had been issued before the return day but not served, this court would grant time for service upon application and a proper shewing. But citation cannot be issued and served after the return day, when none was asked or issued before the return day.</p>

Beatty, J. Mrs. Suthon, the defendant, bought certain lands, giving four notes therefor, and sold the land to Pike, who assumed payment of the notes. Suit was brought on them against Pike and judgment obtained against him. Then the notes and judgment became the property of the plaintiffs, who brought this suit to recover judgment against Mrs. Suthon, who pleaded prescription. The question was whether the suit against Pike had interrupted prescription as to Mrs. Suthon.

<p>After an order has been made transferring a cause to the Court of Appeals, under the changes in jurisdiction made by the Constitution of 1879 and the directory provisions therein for transfer, no further order in the case will be made in this court, and a motion to tiuash the order of transfer will be refused.</p>