Volume 1 — McGloin's Louisiana Court of Appeals Reports (1881–1884)

<p> Application for Writ of Prohibition. </p>

<p>Appeal from, the late Fifth District Court, for the- Parish of Orleans. Cullom, Judge.</p>

<p>1. Damages resulting from a failure to observe tbe conditions of a contract of lease, requiring tbe lessee to keep and return in good order the leased premises, are due from tbe date of demand by lessor.</p> <p>2. Tbe right to sue for and recover such damages arises ex contractu, and the prescription applicable to an action arising ex delicto, does not apply.</p>

<p> Appeal from the late Sixth District Court.- Bightor, Judge. </p>

<p>1. Where upon trial of a rule to take interrogatories pro confessis, evidence is tendered and received, without objection, touching all the issues presented by the answer of the garnishee, the proceeding will be considered as a traverse, involving the merits of the controversy.</p> <p>2. Where a rule to take interrogatories pro confessis is dismissed, the decree is interlocutory, not appealable.</p> <p>3. Aliter, where the judgment of the court is either for or against the garnishee, after trial upon traverse, involving the merits of the issues presented by the garnishee.</p> <p>4. As a general rule, a cause appealable in favor of one of the parties thereto is appealable in favor of his adversary.</p>

<p> Application for Writs of Prohibition and Mandamus to the Fourth District Court. Houston, J. </p>

<p>1. Because a law gives a court excZimw jurisdiction in specified cases, it does not thereby necessarily exclude all other jurisdiction.</p> <p>2. The law establishing a court is the warrant of its authority, and it can, in default of subsequent legislation, exercise no powers not thereby conferred upon it.</p> <p>3. Where the letter of a statute is doubtful or ambiguous, the courts are to seek the object the Legislature had in view, and the purx>oses sought to be accomplished by the enactment.</p> <p>4. Although the caption of a statute cannot control its text, yet, if the latter be ambiguous, the captiou furnishes the best guide as to the objects and purposes of the law.</p> <p>5. Courts of limited authority can entertain no controversy not clearly within the comprehension ot the laws conferring jurisdiction upon them ; and where they do entertain such matters, all orders, decrees and actions made or had therein are absolutely null and void.</p>

<p>Appeal from the Sixth District Court. Rightor, Judge.</p>

<p>The taxing power belongs to the Legislative Department, and it is entirely within the province of that department to determine the rules of assessment of property and for the collection of taxes.</p> <p>The Act of 1878, page 234, does not repeal the Act of 1877, page 154.</p>

<p>The Act No. 80, of the Legislature of 1877, extended the duties and increased the powers of the Board of Health; it did not impair the act approved March 15th, 1855, which created the Board.</p>

<p>1. The act conferring upon the City of New Orleans the right to govern, and enforce police regulations affecting private markets, does not infringe the equal rights of individuals provided for in Art. 235 of the Constitution of the State.</p> <p>2. Art. 248 of the Constitution refers to the slaughtering of animals for human food, and not to the exposure of such products for sale. The public market places of the City of New Orleans are not monopolies; established in accordance with law, they are open without discrimination to all citizens; they do not exist in contravention of Art. 258 of the Constitution.</p> <p>3. The title of an Act No. 100, approved Marcli 15, 1878, is comprehensive, and sufficiently suggests the subject-matter of the legislation. 31 An. Eep. p. 544.</p> <p>4. The general powers of the city under its charter are sufficient to warrant their enacting the necessary ordinances, controlling the management of public markets and the sale of comestibles, in the interest of the public.</p>

<p> Appeal from the Fourth District Court. Houston, Judge. </p>

<p>1. Sheriffs, under writs directing, in general terms, the seizure of a debtor’s property, must, at their peril, primarily determine whether the property to be seized belongs to the defendant or not. .</p> <p>2. Under writs commanding the seizure of specific property, the sheriffs, ordinarily, have no discretion and incnr no responsibility, being held only to look to the jurisdiction of the court, and to the proper execution of its mandate.</p> <p>3. Courts must presume that legislators are familiar with the principles of law applicable to questions they have under consideration, but this is not an absolute presumption.</p> <p>4. Where it is reasonably possible, courts will adopt an interpretation which would give to a law a wise and equitable purpose and effect, rather than one which is unjust or absurd.</p> <p>5. Nevertheless, the courts are bound, above all things, to seek for and enforce the legislative intent; and so long as this is within constitutional limits, apparent injustice or absurdity is not a reason authorizing disobedience to its mandates, or a refusal of enforcement.</p> <p>6. The presumption that the Legislature had some purpose to be accomplished in all its enactments is conclusive, and courts are not at liberty to adopt interpretations which are virtual repeals.</p> <p>7. Meaning of the term, “mesne process,” as found in the old common law.</p> <p>8. Courts will take judicial cognizance of the meaning of the words and terms forming part of the prevalent language of a country.</p> <p>9. Opinion in E. Conery & Son vs. Eugene Waggaman affirmed, on rehearing, in this case.</p>

<p>1. The titles and indices used by the editors of the Codes and Statutes, while no portion of the law, may serve in cases of doubt as going to show the meaning usually assigned to particular words or expressions.</p> <p>2. Under our Code the distinction between laws which are odious and laws entitled to favor, with a view to narrowing or extending their construction, cannot be made by the courts. C. C. Art. 20.</p> <p>3. The term “ mesne process ” has been adopted into American legal terminology with a wider application than that accorded it under the old English law.</p> <p>4. The term, as used in R. S. Sec. 3579, does cover the writ of sequestration as known to our law, aud sheriffs may demand bonds of indemnity before executing the same.</p> <p>5. Judges should avoid pride of opinion, and acknowledge freely and correct fully all errors info which they may fall.</p>

<p>1. The moneys of the City of New Orleans are to he received and disbursed according to law, and the sheriff cannot, be required to administer or disburse aDy portion thereof which may l-e in his hands.</p> <p>2. Where a person has obtained a judgment against the City of New Orleans declaring a certain thing, for which it is responsible, to be a nuisance, and ordering the sheriff to abate it, that officer has the same power to remove it as he would have were the municipal corporation not the defendant.</p> <p>3. Therefore, the relator in this case has already an adequate remedy, and cannot invoke the writ of mandamus.</p>

<p>1. In default of agreement to that effect, express or implied, persons who do work of construction or repair are not hound to charge those who employ them, for the material and labor furnished, no more than they themselves are made to pay.</p> <p>2. Such persons, when not mere superintendants disbursing a principal's money, are entitled to compensation for their own services, the judgment and experience and skill employed, and for the use of their tools ' and appliances, and for the guarantees they assume. Where there is no agreement to the contrary, they may remunerate themselves by charging such advance upon these disbursements as will in the aggregate amount to a fair compensation for their own services, etc.</p> <p>3. In the absence of express stipulation, the value of such services, etc., as in other cases, is to he determined according to the law of supply and demand. So, where the number engaged in any particular business is limited they may adopt card-rates, which, being- observed by all, establish a market-price which is fixed and general.</p>

<p>Appeal from the Fourth District Court. Houston, Judge.</p>

<p>Appeal from Second Judicial District Court. Pardee, Judge.</p>

<p>1. The authority of an agent to draw an order upon an attorney at law for the payment of the proceeds of a claim in his hands to a third person must he express and special. A general power of administration is not sufficient.</p> <p>2. A mandate conceived in general terms confers only a power of administration.</p> <p>3. Powers of attorney are strictly construed, and however general in tlioir terms, tliey will be restricted to the principal business of the grantor and not extended to cover particular and exceptional acts not necessarily connected with such business.</p> <p>4. Such an order, not being payable in any event but depending entirely upon the contingency of collection, is not a. bill of exchange or negotiable paper of any Mud.</p> <p>5. A party accepting a commercial draft or bill of exchange guarantees the. right of the drawer to execute it, and the genuineness of the signature. In innocent hands, this guarantee extends to the question of an agent’s authority where the draft is drawn by procuration. It does not, however, operate to protect the person who originally receives the paper and is so chargeable with the obligation of making due inquiry.</p> <p>6. It is only in cases where commercial paper is involved that an assignee may acquire rights greater than those of his assignor. In other cases, error, fraud, forgery or extinguishmentmaybesetup against allpersons.</p>

<p>1. Where no error of law or evidence is complained of, or suggested, or appears in the record, the appeal will he held frivolous, and damages inflicted.</p> <p>2. One who protends that a claim is canceled, or in any manner extinguished, must set up these defenses in his answer.</p> <p>:i. Failure to file an answer, or employ counsel, or to otherwise properly defend a suit, is no ground for a new trial. '</p>

<p>1. It is incumbent upon a party appearing in a fiduciary capacity as appellant to prove Ms alleged fiduciary capacity in tbe lower court wlien lie moved for an appeal.</p> <p>2. Wliere it is made to appear to tliis Court that the record is not complete, and the certificate of the clerk untrue, a certiorari will issue to the lower court for a statement as to what witnesses weré examined, and what testimony was offered on the trial, and upon the return to said writ, if it appears that all the evidence, pleadings and facts upon wMeh the District Judge decided the case have not been sent to this Court, the appeal will be dismissed.</p>

<p> Appeal from Fifth District Court. Cullom, Judge. </p>

<p>1. Sheriffs and their deputies, as public officers, owe to the community the strictest impartiality, and to favor one litigant at the expense of another, is, upon their part, a violation of duty.</p> <p>2. Neither sheriff nor deputy sheriff, has the right to undertake to watch over or protect the rights or interests of particular persons to the prejudice of others, in matters connected with or pertaining to their official duties.</p> <p>3. They cannot, to tho detriment of persons demanding their services, make public information coming to their knowledge officially, or by reason, or in consequence of their official character.</p> <p>4. It is the duty of such officers to strive to render effective the mandates and writs of the courts, whose executive officers they are.</p> <p>5. They must respond to the exigency of the writs they hold, exorcising in connection with each the degree of care and diligence necessary to make it effective.</p> <p>6. “Where a plaintiff shows that his recourse upon property seized under his ' writ has been lost by the negligence or misconduct of a sheriff, and proves the value thereof, the burden rests upon such officer to justify or legally excuso his conduct.</p> <p>7. If the value of the property so lost exceeds the amount of the judgment and costs, the aggregate of the latter is the measure of damage.</p> <p>8. If the value of such property does not equal the amount of the writ, such value becomes itself the measure of the damage.</p> <p>9. Where, however, the sheriff holds under the writ, after the loss or release of particular property, sufficient to satisfy the claim, and the plaintiff subsequently releases such remaining property, he cannot recover for the preceding negligence or misconduct. It is a case of contribution to his own loss.</p> <p>10. Presumptions which change the burden of proof cease to have such effect when their own force is broken or materially impaired.</p>

<p>Appeal from Fifth District Court. Rogers, Judge.</p>

<p> Appeal from, the Fourth District Court. Houston, Judge. </p>

<p>1. Where an appeal is taken Horn an alleged order authorizing the bonding of an injunction, and no such order appears in the record, an appeal will be dismissed.</p> <p>2. The appearance in the record simply of a motion to bond, without any endorsement or order of the judge a quo, or any minute entry showing that the motion was granted, is not sufficient.</p>

<p>■ i. Act No. 7, extra session of 1875, prohibiting sale of property for tax;es during a certain period, did not affect sales made before its passage.</p> <p>2. An action for damages for slander of title is not in the nature of a petitory action, and the plaintiff in such a shit does not assume the burden of proof.</p> <p>3. Where the defendant in such a suit sots up titlo by way of reconventiou, and asks to have it recognized, his demand is petitory in its nature, and the burden of proof is upon him.</p> <p>4. A tax-title will not bo enforced or maintained unless it affirmatively appear that all the legal formalities have been observed.</p> <p>5. Where the description of the property sold is not sufficient to enable the public to know what property was to bo sold, the sale is void.</p>

<p>Appeal from Third District Court. Monroe, Judge.</p>

<p> Appeal from Sixth District Court. Rightor, Judge. </p>

<p>1. The books which, the Recorder of Mortgages for the parish of Orleans has purchased and placed in his office to be used for making the inscriptions authorized and required by law, and which have been partially filled, have been, by such use, dedicated to the public service, and they are no longer susceptible of private ownership.</p> <p>2. It is the duty of such officers to do everything necessary to a prompt, faithful, and intelligent discharge of the duties imposed upon them by law.</p> <p>3. The researches, or memoranda, of mortgages existing against certain persons, which have been made by the clerks of the recorders, and which are used in facilitating the preparation of certificates of mortgages, are archives of the mortgage office, and not the private property of the recorders.</p>

<p>Appeal from the Sixth District Court. Bightor, Judge.</p>

<p>1. Where one of two contiguous proprietors builds a wall between the properties, in accordance with tho provisions of Civil Code, Art. 675, at his sole expense, suchjwall is the exclusive property of him who builds it, and so remains until the other contributes his share of l he expense of its construction. C. C. 676, 683, 684.</p> <p>2. The advantages flowing to a person from so contributing and making common what was before a privato wall, is that such contributor may build against such wall, make cavities therein for the purpose of affixing his beams or joists, and affix to it any work, upon taking the precautions directed by law. C. C. Arts. 680, 685.</p> <p>3 Unless such a private wall has been thus converted into one in common, tho non-contributing neighbor has not the right to make any use thereof, however slight or immaterial.</p> <p>Where, without pre-payment of his half of the. expense of erecting such 8 4. a wall, the neighbor attempts to make use of the wall, its owner may prevent him from so doing.</p> <p>5. If, however, such attempted use be not casual or trifling, the owner of the wall may suffer the same to proceed or continue, and recover from the non-contributing neighbor, his share of such portion of the wall as he may have applied to his service.</p> <p>6. Where the owner of the soil, permits his tenant to build against a wall, which has not become a wall in common, the owner of such wall may look to tho proprietor of the contiguous lot for payment of the proper contribution.</p>

<p> Appeal from Fourth District Court. Houston, Judge. </p>

<p> Appeal from the Fourth District Court. Bous ton, Judge. </p>

<p> Appeal from Sixth District Court. Bightor, Judge. </p>

<p> Appeal from, the Fourth District Court. Houston, Judge. </p>

<p>1. A party to the ax>peal who himself makes a statement in his brief of the agreement between the parties to the suit, restricting the issues to he decided, by the Court to well defined points, is bound by that agreement, and the appellate court is restricted to the consideration of these issues.</p> <p>2. The judgment in the hypothecary action, and the recording thereof in the mortgage book, have no effect after the extinguishment of the original judgment either by payment or prescription.</p> <p>3. The ■written acknowledgment of the judgment debtor by placing the claim on which the judgment is based on his schedule in bankruptcy, may have the effect of keeping alive the debt evidenced by the judgment, but not the judgment itself. 31 La. A. 397.</p>

<p>Appeal from the Fifth District Court, Parish of Orleans. Rogers, Judge.</p>

<p>Appeal from Division B. Houston, Judge.</p>

<p>1. On appeal upon questions of law, in a suit to annul a judgment, the-question of the jurisdiction of the inferior court in trying and determining the original controversy will not be noticed by this tribunal, unless presented in the first instance to the court a qua.</p> <p>2. Questions ot fact cannot be assigned as error in an appeal upon questions of law alone.</p> <p>3. In all such appeals, the findings of the judge a quo, upon questions of' fact, are conclusive.</p> <p>4. Want of finality in a judgment is no cause of nullity, unless it be shown that its execution “would be against good conscience,” and that the applicant “could not have availed himself of it in a former suit, or-was prevented by fraud or accident.” O. P. 606, 607, 608.</p> <p>5. Where a judgment decrees the payment of future rents at a fixed price,, so long as defendant occupies the leased premises, or the board of a minor, so long as a plaintiff maintains him, the amount due at any particular subsequent period may be fixed by rule.</p> <p>6. Service of such a rule is good if made upon the attorney of record of B, although the judgment is against “B, tutor,” where B has no individual interest, and the caption of the rule served bore the correct designation of parties, and it appears by the record that the attorney- “ for defendant” was present at the trial of the rule.</p>

<p>Appeal from Division D, Civil District Court. Lazarus, Judge.</p>

<p> Appeal from the Civil District Court. Houston, Judge. </p>

<p> Appeal from Fourth District Court, Parish of Orlecms. Lynch, Judge. </p>

<p>1. Individuals may renounce what the law has established in their favor, when thereby the rights of others are not affected and whore the renunciation is not contrary to public good. C. C. Art. 11.</p> <p>2. A renunciation, however, by an insolvent debtor in favor of a particular creditor, dispensing with any of the forms of law, by which the value of his property sold under execution is diminished, is contrary to good morals.</p> <p>3. A sheriff, aware of the insolvency of the debtor, who executes an order of sale, waiving the formalities and delays of advertisement, although such sale is consented to by the seizing creditor, is liable in damages to a creditor who has suffered by such a proceeding.</p> <p>4. The price brought by the property so sold will not bo taken as a standard of ils value.</p> <p>5. The court in such cases will give full damages, but not more than have been actually sustained.</p>

<p>1. Parol evidence is admissible to establish a contract with a broker, fixing a rate of compensation for securing a purchaser for real estate.</p> <p>2. Where the owner of in-operty agrees to pay a particular sum to such a broker for securing- a purchase at a fixed price, and such a purchaser is secured by tbe broker, the compensation of the latter is earned, and his claim cannot be defeated by the refusal of the owner to perfect the sale.</p> <p>'3. The failure of a broker to pay his State licenses for years preceding that of the transaction in question, could not affect his rights.</p> <p>4. When the law imposing licenses fixes a penalty, it is the only one which can be enforced against delinquents.</p> <p>5. Where the law does not declare that failure to pay State licenses shall tar the delinquent from enforcing judicially his claims for services, this penalty will not be imposed.</p> <p>6. The only penalty fixed by law for non-payment of licenses of 1880, was that the delinquent might be prevented, by process of law, from transacting business.</p>

Landry. Hudspeth, Judge. Defendant, L. J. Sinitb, purchased at sheriff’s sale, upon twelve months credit, a certain plantation. He executed for balance of price, above costs, charges, etc., his bond at twelve months, according to law, for $704 40, with the other defendant, Elbert Gantt, as surety. Before the maturity of the bond, Smith allowed the property to be sold for taxes, and Gantt became the purchaser.

<p> Appeal from the Fifth District Court. Gullom, Judge. </p>

<p>1. In determining the question of res judicata, it is the decretal part of a judgment which must govern.</p> <p>2. In determining upon such » plea, the reasoning of the court can he resorted to only when the decretal portion is ambiguous.</p> <p>3. Where plaintiff and defendant present claims and counter claims, and there is judgment in favor of either, for a specific sum and without reservation, the judgment is not ambiguous, but concludes the whole controversy.</p> <p>4. Where a defendant presents a counter claim, either in the way of reconvention or compensation, which is not properly pleadable as such, and the court a qua, despite plaintiff’s objection, permitted a full examination of such counter claim, this Court, although disapproving of the ruling of the j udge a quo, may examine the merits of the defendant’s demand, and determine against it, if not supported by the law and evidence.</p> <p>5. Where a party by vicious pleadings drags another into court, and despite the protests of the latter, compels him to disclose fully his defense, and it is a good one, this Court will pass over the objections made by him, and in his interest will put the controversy at rest.</p> <p>6. Where a judgment is susceptible of two interpretations, that one will be adopted which renders it more reasonable, effective and conclusive.</p>

<p>1. The certification of a check by the bank on which it is drawn, is equivalent to an acceptance. Such a check stands upon the same footing as an accepted bill of exchange.</p> <p>2. There is a privity between a bank certifying a check, negotiable in form, and every holder thereof up to the time of its extinguishment. The bank may be sued by any such holder.</p> <p>3. When a bank receives on deposit checks, promissory notes or similar paper, the contract is usually one of deposit for collection only. Title is not divested from the depositor and vested in the bank.</p> <p>4. Even where the bank permits its depositor to draw against such checks, the credit is only conditional, and the absolute title of the latter is not thereby divested.</p> <p>5. In such a case, where the depositor has not drawn against such deposited paper, he can, at any time before collection, revoke the agency of the bank and reclaim the deposit.</p> <p>6. Where the principal applies to a court of justice to enjoin his agent from further acting under the power, • this is a revocation of the agency.</p> <p>7. Any person who is aware of the issuance of such an injunction, or of an application therefor, is charged with notice of the revocation.</p> <p>8. Parties in their pleadings are not required to describe a thing so minutely as to furnish a detailed statement of every one of its peculiarities. It is sufficient, if by the aid of what it recited, the thing may be easily and certainly identified.</p> <p>9. Persons cannot, by wilfully closing their eyes to marks of identification in themselves sufficient, decline notice, because other particulars, are not furnished which might have been more satisfactory to them.</p> <p>10. The depositors of banks which have formed themselves into a clearing, house, are not bound by the rules and regulations or usages of the latter.</p> <p>11. They are entitled to expect certain results, and the means which the banks adopt to secure the same are a portion of the internal administration of such institutions, in which the depositors have no voice or concern.</p> <p>12. U. S. Rev. Stats. Sec. 5228, does not apply to a case like this. It does, not make property belonging to others, found in the custody of a national bank at the time of its suspension', under contracts other than special deposit, fiable for the debts of the bank.</p>

<p>An. unliquidated demand cannot he plead in compensation against one which is liquidated.</p>

<p>Appeal from the Sixth District Court. Rightor, Judge.</p>

<p> Appeal from the Sixth District Court. Bight or, Judge. </p>

<p>1. Where defendants purchased two hundred casks of Seltzer waters, packed in Prussia, in casks of one hundred stone jugs each, and it is shown that such casks cannot be transported without some breakage of the jugs; held, that these circumstances have entered into the contract, and where the actual breakage is not beyond what is usual, the vendee cannot refuse to receive the property and rescind the contract.</p> <p>2. Where, in such a case, before attempting to avoid the contract, defendants had received ninety casks, and subsequently tendered to plaintiff the price thereof, which he received, such plaintiff does not thereby necessarily waive his right to recover for the price of the remainder.</p> <p>3. Where defendants were in default by refusing to accept the property, plaintiffs were not compelled to sell at defendants’ risk immediately. Mere delay and indulgence in such a case, incurred in attempts by plaintiff to secure a settlement, cannot avail defendants as a means to avoid liability.</p> <p>4. Defendants having positively refused to accept the remainder of the consignment, no putting at default was necessary.</p> <p>5. The sale at a purchaser’s risk in cases such as this, is not a sale a la folie enohere, as provided in the Civil Code.</p> <p>6. Where evidence showed a setting apart and sale of the 110 casks, at the risk of defendants, the mere fact that the auctioneer’s statement or hill showed a purchase hy the adjudicatee of 113 casks, will not warrant the court in ignoring- the other evidence uj>on this question.</p> <p>7. Where a purchaser refuses to comply with his contract, the vendee may store the property at his risk in a public warehouse, retaining, however, the possession and control of the property to enforce and secure payment of the price.</p> <p>8. Unless the storing he made in the name of the purchaser, it is not a consignment, divesting the seller of Ms right of detention until payment of the price.</p>

<p>Appeal from Fifth District Coiort. Rogers, Judge.</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of St, Landry. Hudspeth, Judge.</p> <p>The curator of Bessinger’s estate filed a “ tableau of classification of debts ” with his petition, demanding its publication. and homologation, and “that after due homologation he he authorized t-o pay said debts in accordance therewith.” The order prayed for was granted. Mary Williams, natural tutrix of her own minor child, also natural child and judicially recognized heir of deceased, presented her petition, alleging that she alone, representing her ward, was entitled to administer this estate, to file all accounts, etc.; that the curator filing this account was functus officio, and not entitled to administer. Her-petition concludes by praying for the dismissal of the curator’s demand and the rescission of the order he had obtained. To this petition the curator answered, denying the right of the tutrix to demand such rescission, averring that he had received no funds of the estate, but had filed said tableau in accordance with vouchers furnished him by his predecessor, Elbert Gantt, late public administrator, and that he, himself, can only be discharged by the court, regularly and after a full performance of all his duties and upon suit formally brought for that, purpose. He prayed for the discharge of the motion of tutrix.</p>

<p> Appeal from the Fifth District Court. Rogers, Judge. </p>

<p>1. Where the notary protesting a draft, unable after diligent enquiry, to ascertain the address of the drawer, directed the notice of protest to-him, at the place where the draft was drawn or dated; held, that this, was sufficient.</p> <p>% The general denial imposes upon the holder of such a protested draft suing thereon the obligation of establishing due notice.</p> <p>3. Where, however, in addition to the general issue, payment is plead, the defence will be restricted to that plea, and if that is not made out, judgment must go for plaintiff.</p> <p>4. In the absence of written agreement, no more than legal interest can be recovered.</p>

<p>1. An exception of no cause of action admits for tlie purposes of its trial the allegations of the petition.</p> <p>% A creditor holding a special mortgage or privilege cannot prevent the sale of thp property affected, by a subsequent mortgagee, or by an ordinary creditor, if the price obtained be sufficient to satisfy his prior claims.</p> <p>3. It is only when jiroperty so sold brings less than prior special mortgages and privileges, that the sale is null.</p> <p>4. A bid at forced sale is only for the absolute value of the property. The purchaser owes or assumes nothing beyond the amount of his bid.</p> <p>5. The standing crop upon land at the time of sale passes as a part of the properly to which it is attached, and the bid covers such crops, as well as the soil and other improvements.</p> <p>6. Where a party takes all, or a portion of the proceeds of a judicial sale, he ratifies the same, and is estopped from disputing its validity.</p> <p>7. Where one of several owners of a concurrent mortgage, he holding also at the same time another claim secured by a special and superior privilege, in the division of the fund realized by the sale of the property, takes his pro rata of the same, as a mortgage creditor, and allows his fellow-creditors to do the same, there is an abandonment of such superior privilege.</p> <p>¡3. Such a partition of proceeds, however, if made in error of fact, might by proper proceedings be rescinded, but such rescission must be demanded in a suit regularly brought for that purpose.</p> <p>9. To such an action all the persons participating in the distribution are necessary parties.</p> <p>10. Before instituting such a suit, the plaintiff should return or tender the return of what he has received, so that the condition of affairs as they stood before the distribution might be itself restored.</p> <p>11. Sucli ;i transaction could not be rescinded as to one of such participants, and not as to the other; therefore, the tender of restitution should he made to both.</p>

<p>1. Where the place of delivery is not fixed by stipulation, the law directs that it shall be made at the jilace where the object of the contract is at the time of sale. C. C. Art. 2484.</p> <p>2. Where the place of delivery was not declared to be material, and without intent to defraud or deceive, the property is stated to be at one place, when-in fact it was at another, such error will not avoid the contract.</p> <p>3. Where, through inadverteuee the goods sold have been removed after the sale from the place at which they were at the moment of agreement, this circumstance wall not justify the rescission of the contract.</p>

<p>1. If a party applying for an injunction, in 1ns petition, cumulates with any of the grounds which, under Code of Practice, Art. 739, justify the issuance of tlio writ without bond, other grounds or facts which are not in the enumeration of that article, ho must furnish bond.</p> <p>2. Upon the trial of such a suit, damages under the statute can he accorded against the plaintiff and his surety, without proof, only up to the amount of twenty per centum of the judgment enjoined. This per eentwm, must cover all damages, beside interest, unless the proof establishes more.</p>

<p>Appeal from Fourth District Court. Houston, Judge.'</p>

<p>1. Where a commercial firm and its members are sued in solido, and judgment is so rendered against them, a suspensive appeal, in the name of the firm, with the bond of the firm, brings up the whole case, and suspends execution as to the individual members. *</p> <p>2. Parties sued as composing an existing firm, and condemned as such, may appeal in the firm name. This Court will not examine the record for evidence showing that the firm was in fact dissolved at the date of the institution of suit, or of the judgment.</p> <p>3. The principle, that upon the dissolution of a partnership its firm name ceases to exist, does not prevent the former partners from using it, by common consent, in any particular transaction.</p> <p>4. So, where all the members of a dissolved firm join in the use of the firm name upon the bond of appeal, the appeal will not he dismissed.</p> <p>5. Parties to a contract discovering that they have been deceived or defrauded therein, must, in order to avail themselves of the fraud, so soon as the vice comes to their knowledge, repudiate the entire agreement.</p> <p>6. If, instead of so doing, they advisedly continue to caray out the contract, objection is waived.</p> <p>7. A party cannot demand the partial rescission of a contract.</p> <p>8. He who approves of a contract vicious as to him, or executes it even partially, is estopped from subsequently disputing the contract, because of such vice.</p> <p>9. An employer, who continues an employee in his service after learning of negligence or misconduct upon the part of the latter, is estopped from subsequently complaining of such negligence or misconduct.</p> <p>10.No man can complain of a state of affairs which he could have prevented or terminated at any time.</p>

<p>Appeal from the Twenty-sixth Judicial District Court, Parish of Jefferson.- Hahn, Judge.</p>

<p> Appeal from the Ninth Judicial District Court. Sough, Judge. </p>

<p>1. When the law, authorizing the expropriation of private property for the use of a railroad company, requires the corporation to present an application to the judge for appraisal, and to notify the owner of the place and time at which such application is to be presented, and such notice ' is not given, the proceedings are null.</p> <p>2. In actions, joint in their nature,'all the joint defendants must be cited.</p> <p>3. Lands owned by two or more persons, in undivided interest, cannot be expropriated, unless all parties interested in the title are made party.</p> <p>4. Under such circumstances, there cannot be an expropriation of the undivided interest of only one of the co-proprietors.</p> <p>5. And each of the owners in common is entitled to citation and notices of application and proceedings for appraisal.</p>

<p> Appeal from the Parish Court, Parish of St. Martin. Bassett, ■ Judge. </p>

<p> Appeal from the Seventh Judicial District Court, Parish of Cat.ahoula. Flam, Judge. </p>

<p>1. There being no special law governing the opening and adjournment of Courts of Appeal, section 3575 of the Revised Statutes must control; and in the absence of the judges on the first day of the term, the sheriff must adjourn from day to day for three days.</p> <p>2. The want of the necessary parties to the appeal will exproprio mofu be noticed by the Court. -</p>

<p>Appeal from Fifth District Court, Parish of Orleans. Rogers, Judge.</p>

<p> Appeal from Civil District Court, Division D. Bightor, J. </p>

<p> Appeal from the Sixth District Court, Parish of Orleans. Bightor, Judge. </p>

Landry. Hudspeth, Judge. Ludger Lemelle and Ms co-heirs held a conventional and legal mortgage upon real estate of Benjamin Dejean, who, on December 28th, 1868, went into bankruptcy. The land- in question was sold by the assignee to George Willard, who subsequently disposed of it to J. M. Thompson.' Plaintiffs, on July 12th, 1870, obtained judgment in the District Court of St. Landry against their tutor, Francois.

<p>Appeal from the Civil District Court, Division D. Bightor, Judge.</p>

<p>1. This Court, as one of appellate jurisdiction, will not take notice ex officio of the rules of the inferior court; neither will it receive evidence going to establish the character of such rules.</p> <p>2. By means of an assignment of errors, only errors of law, patent upon the face of the record can be brought to the notice of this Court.</p> <p>3. Courts of record must keep a formal record, of all orders and decrees; and where there is no written note of such order and decree, it will be presumed not to exist.</p> <p>4. Therefore, where there is no formal record of the proceedings pointed out by law for the restoration of a cause to the ordinary from the dead docket, such proceedings will be considered as never having been had.</p> <p>5. Courts will not readily give a retroactive effect to legislation; but rather hold it applicable alone to the future.</p> <p>6. Where, however, legislation is not ex post facto and does not divest vested rights, impair the obligation of a contract, or otherwise violate the constitution, it may be made retroactive.</p> <p>7. The Act No. 39 of 1880, approved 23d March, 1880, had such retroactive effect and applied to cases that had been “ continued indefinitely, and remained so continued for one year,” at the date of its becoming a law.</p> <p>8. As it has not been shown that this cause was actually withdrawn from the ordinary docket and placed upon the dead one, this Court will not presume that such change was made.</p> <p>9. The mere presumption-that a clerk of the Court has done his duty, is outweighed by the sanctity with which the law clothes a final judgment.</p> <p>10. It was not the duty of the plaintiff in this case to see that his cause was transferred to the dead docket; nor could he be held to proceedings to reinstate it upon a docket from which it had never been removed.</p>

<p>Appeal from Division B, Civil District Court, Barish of Orleans. Houston, Judge.</p>

<p> Appeal from the Tenth Judicial District Court, Parish of Red River. Logan, Judge. </p>

<p> Appeal from the Fourth District Court, Farish of Orleans. Houston, Judge. </p>

<p> Appeal from the Civil District Court, Parish of Orleans, Division C. Monroe, Dodge. </p>

<p>1. Article 103, Constitution of 1879, imposes upon the Courts of Appeals tbe rules of practice regulating proceedings in the Supreme Court only-in so far as the same may be applicable.</p> <p>2. The delay of three days allowed by the Supreme .Court for applications for rehearing in cases outside of the city of New Orleans, is not obligatory upon the Circuit Courts of Appeal.</p> <p>3. Said Courts of Appeal may adopt rules regulating applications for rehearing before them, and where, under rules so adopted, such applications are to be filed before the end of the term, in any particular parish, and one is presented after adjournment sine die, it will be disregarded.-</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division B. Bightor, Judge.</p>

<p>Appeal from the Sixth District Court for the Parish of Orleans. Rightor, Judge.</p>

<p>Appdal from the Twenty-first Judicial District Court, Parish of St. Martin. Fontelieu, Judge.</p>

<p>1. This Court caunot disturb a judgment, as between appellees.</p> <p>2. Where the State, or a representative thereof, has been proceeded against and condemed below, but has abstained from appealing, this Court is without power to disturb the judgment against it, even though it be. the Sovereign.</p> <p>3. Where the State, or any representative thereof, has been garnisheed, the-debtor has no right, in his own interest, to raise the question of the-Sovereign’s exemption from judicial pursuit.</p> <p>4. It is primarily the province of the Legislature to regulate matters of public policy, and where it has undertaken so to do, the courts must enforce its will.</p> <p>5. Where the matter of exemptions is regulated by law,'the courts are without discretion either to extend or restrict.</p> <p>6. The rule is that the property of a debtor is the common pledge of all his creditors, and exemptions, being in the nature of exeeihions to the general law, will be strictly construed.</p> <p>7. Ona who does work on a public building, under a contract, is not an officer, as contemplated by La. C. C., Art. 1992, nor is the compensation duo him salary, as contem£jlated by the same.</p> <p>8. The sum due such a contractor is, therefore, not exempt from seizure.</p> <p>9. The term “ salary of an office,” as used in La. C. C. 1992, etc., applies only to compensation due public officials or employees, for personal service, and x>ayable at fixed rates by the month or year.</p>

<p>On Merits.</p> <p> For Syllabus, see page 223. </p> <p>N. B. This opinion should have appeared with that, in the same case, upon the motion to dismiss (see page 223), hut, by an oversight, it was omitted.</p>

<p> Appeal from the Civil District Court, Division D. JRightor, Judge. </p>

<p>1. The courts will not take notice, expropria mota, of municipal legislation; ordinances, etc., of municipal governments must be established by proof.</p> <p>2. Where, by law, certain restrictions are placed upon the construction of awnings, sheds or other works, there is an implied authorization toerect such structures, provi led the prohibitions of the law he respected.</p> <p>3. Without general legislation, denouncing all of its special class or character as nuisances, the municipal authorities of a city cannot declare any particular thing to be a nuisance and abate it as such.</p> <p>4. The fact that a shed, or structure is erected by one citizen, in violation of a city ordinance, does not authorize another, of his own motion, to demolish it.</p> <p>5. The fact that the authorities of a city government sanction and assist at the perpetration of an unlawful act, such as the tearing down of an awning, does not exonerate from liability those at whose instance and solicitation the illegal act was done.</p> <p>6. While a citizen cannot prevent the application of the streets and banquettes, by lawful authority, to the use of a railroad company for right of way, etc., he may insist that such banquettes or streets be used in the manner calculated to inflict the least injury.</p> <p>7. Municipal ordinances must be reasonable and not arbitrary or oppressive, otherwise they are void.</p> <p>8. The courts, although they will exercise it with extreme caution and reluctance, have the power to annul municipal legislation, when the latter is in its nature unreasonable or oppressive.</p> <p>9. Therefore, a railroad company may be prevented from mating an unreasonable or oppressive use of a street or banquet, despite municipal legislation expressly authorizing such particular manner of use.</p> <p>10. Where a plaintiff demands double relief, and this Court finds it necessary to remand for further evidence upon one issue, but is satisfied upon the other, it is not necessary to remaud as to both.</p>

<p>1. In cases of attachment, the property of the debtor can be reached only by actual seizure, or by proceedings in garnishment. McGloin, Judge, assents to the decree under the precedents, but questions the soundness of the authorities followed. 32 La. An. 594; 9 La. An. 311, 524.</p>

<p>1. Where, in the course of any suit, an order ia granted taxing the fee of a curator ad hoe, held :—</p> <p>By Rogers, Judge: The question of appellate jurisdiction is determined by the amount of the decree in favor of the curator :—</p> <p>By McGloin, Judge: Such order is but an incident of the main suit, and as such reviewable only by the Court having appellate jurisdiction over such main controversy.</p> <p>2. Where this Court is not agreed on the question of jurisdiction, the appeal will stand.</p> <p>3. Any judicial determination arrived at without notice and an opportunity to parties opposed in interest of being heard, is null and void.</p> <p>4. In the absence of general consent, courts cannot receive unsworn statements, in lieu of formal proof; and a decree based upon such unsworn statements, will be set aside.</p>

<p> Appeal from the Civil District Court. Houston, Judge. </p>

<p>1. In matters of garnishment, the jurisdiction of this Court is not determined by the amount admitted in the answer of garnishee, but, by that which, under plaintiff's writ, is sought to be collected from him.</p> <p>2. Where a garnishee answers interrogatories without reservation, he cannot complain that he was not apprised of the true amount claimed, or that the notice to him was otherwise deficient.</p> <p>3. The garnishee, in his answers, must disclose all that is necessary to inform the plaintiff as to what he is entitled to, and to enable the Court to determine fully the question of right in or to the property disclosed, if any. Where such disclosure is made, the answers are sufficient.</p> <p>4. The plaintiff, in an attachment, cannot proceed against the garnishee to have him condemned until there has been final judgmeut against the original debtor.</p> <p>5. McGloin, judge, in assenting to the proposition last announced, follows the precedents, but presents reasons for doubting their correctness.</p>

<p>1. Homestead laws, being in derogation of common, right, must be strictly-construed.</p> <p>2. A party claiming a homestead under section 1691 of the Revised Statutes, on the grounds that he has persons dependent on him for support, must show that dependence to be acUial and necessary.</p> <p>3. The fact of being the head of a family per se, does not entitle a party to a homestead under said section.</p> <p>4. The exemption right must be tested by the state of facts existing at the time the same is sought to be enforced.</p>

<p>1. Where the waters used for purposes of irrigation on a rice farm percolate through the enclosing levees, and injure the crops on an adjoining sugar plantation, notwithstanding the rice planter has exhausted all the usual and customary modes to prevent the sepage, and protect his neighbor, the damage resulting therefrom will be damnum ataque injuria.</p> <p>2. In cases where the testimony is either doubtful or conflicting, Courts of Apx^eal will not lightly disturb either the findings of juries or the judgments of courts a quo.</p>

<p>1. The fixing by tie judge a quo of a wrong day of return, is not a fault imputable to appellants; nor is the case affected by the fact that the motion for appeal is in the handwriting of appellants’ counsel, and. the erroneous return day is suggested in such motion.</p> <p>:3. A judgment or order refusing a new trial does not require signature by the judge.</p> <p>3. Where the bond is for the amount fixed by the court, the appeal will not be dismissed, even if filed too late for a suspensive appeal.</p> <p>4. Insolvent laws are for the double purpose of relieving honest debtors, and of ensuring- justice to creditors.</p> <p>5. The power of the States, in the absence of national legislation, to enact and enforce such laws, is no longer questionable.</p> <p>6. The non-resident creditor can claim no greater rights than the resident, when he invokes the resident jurisdiction.</p> <p>7. There can be no vested right in any particular form of remedy; and the States have under their control the remedies 'which are to be invoked within their own courts.</p> <p>8. The law dissolving pending attachments, in cases of insolvency, must be enforced against a non-resident who has sued in the courts of the State.</p> <p>9. He cannot, however, be forced to cumulate his suit with the proceedings in insolvency.</p>

<p>Appeal from the Twenty-Sixth Judicial District Court, Parish of Plaquemines. Livaudais, Judge.</p>

<p>Appeal from, the Twenty-Sixth Judicial District Court, Parish of St. Charles. Hahn, Judge.</p>

<p> Appeal from the Civil District Court, Division B. Houston, Judge </p>

<p>1. A person suing under a special provision of the law, must bring himself within its terms.</p> <p>2. To entitle a surety to contribution, as against his co-surety, it must appear that tho former has satisfied the debt, in consequence of a law-suit instituted against him.</p> <p>3. Until this is shown, the surety is without cause of action against his co-surety.</p>

LTudspeth, Judge. Plaintiff, in peaceful possession during many years, of certain real property, was dispossessed by defendant, and brought this action for the recovery of possession, praying at the same time for an injunction restraining defendant from further disturbing her lawful possession, and commanding also said defendant to restore the property. The writ issued as prayed for, but defendant refused compliance.

<p> Appeal from Civil District Court, Division C. Houston, Judge. </p>

Martin. Fontelieu, Judge. Plaintiff, claiming to be owner of certain lands, alleges that defendants have unlawfully cut and removed therefrom two hundred and eighty trees, worth three dollars each, or in all eight hundred and forty dollars.