Volume 105 — Louisiana Reports

<p>Syllabus.</p> <p>1. A name such as “Zeringue’s Landing, under Nine Mile Point,” sufficiently describes between the parties to an agreement of lease the object leased when other contracts for the same thing have been made between them, or the name has come to designate a particular thing in the community.</p> <p>2. A lessee of property known as “Zeringue’s Landing, under Nine Mile Point” having got into litigation with the purchaser of the plantation on the front of which that landing is situated, the parties compromised by continuing and extending the lease with full warranty. During the litigation and negotiations for compromise there having been no suggestion of a change in the thing leased, the lessee will not be concluded by having inadvertently signed an act of lease in which an upper boundary is giveD to the landing which cuts off the most valuable portion of the same which the lessor had . sold to a third person. Upon being sued on his notes the lessee has the right to show eviction from such portion and to claim a reduction of rent.</p> <p>3. He who possesses a thing belonging to another may let it to another and warrants the enjoyment of it against the claim of the owner. (C. C. 2681, 2GS2). Though the lessee, if aware that the thing belonged to another or of the danger of eviction, can recover no damages, he is entitled to reduction of rent from eviction of part of the property.</p> <p>On Reheabing.</p> <p>A reconsideration of this case confirms the conviction that the appellees were not aware, when they leased the "Zeringue Landing, under Nine Mile Point,” from Pablo Sala, that their lessor had parted with the ownership of a large proportion of that part of the river front of the Zeringue plantation which was suitable as a safe harbor and landing, and that they were in no wise to blame for their ignorance. The appellees were, therefore, entitled to a reduction in the rent and there is no error in the proportion as heretofore fixed.</p>

<p>APPEAL from the Sixth Judicial District, Parish of Ouachita — • Hall, J. '</p>

<p>APPEAL from the.Twelfth Judicial District, Parish of Vernon— Lee, J.</p>

<p>APPEAL form the Civil District Court, Parish of Orleans— Theard, J.</p>

<p>Syllabus.</p> <p>1. A mother and daughter, sole presumptive legal heirs of each other, by separate wills, bequeathed each to the other her whole estate, and having so willed, each contingently made another disposition of the same. The declared contingency in each case was the death of the instituted heir prior to that of the particular testatrix. Mother and daughter perished in a shipwreck, under conditions such as to render it impossible by evidence to ascertain which of the two survived. Under such circumstances the presumptions of survivorship fixed by the Articles of the Civil Code apply. The mother being fifty-two years of age and the daughter thirty-five, the latter must be held to have been the survivor. There is no presumption of simultaneousness of death in Louisiana.</p> <p>2. Courts construe and do not make wills, and if an event has happened for . which a testator has not provided from not having foreseen it, although if he had foreseen it, there is a strong probability he would have provided for it in a particular way, his supposed wishes shall not prevail. Quod volu.it, non dixit. Courts have to give effect to the expressed not the conjectural, or probable intention of the testators.</p> <p>3. The provision in a will that the executor should expend a certain amount tor a tomb for the testatrix does not lapse because the body of the deceased could not be recovered and deposited in it — the word “tomb” has a sufficiently broad signification to be held to be a monument in memory of the dead — as such, it should be erected.</p> <p>On Application por Rehearing.</p> <p>Where two' persons are, by law, entitled to inherit from one another, the fact that they make wills in favor of each other does not deprive either of them of the benefit of the presumption as to survivorship, established by Articles 936 et seq. of the Civil Code.</p>

<p>IN RE Widow Henry P. Bourriague, applying for Gertiorari, or Writ of Review, to the Court of Appeal, Parish of Orleans, State of Louisiana.</p>

<p>APPEAL from the Twenty-Seventh Judicial District, Parish of St James — Leche, J.</p>

<p>A PPEAL from the Civil District Court, Parish o£ Orleans — St. Paul, J.</p>

<p>Syllabus.</p> <p>On Motion to Dissolve the Attachment.</p> <p>Although one sues out a writ of attachment for a larger amount than he is entitled to, he may yet sustain the attachment for the amount to which the testimony on trial shows he is entitled.</p> <p>On the Mekits.</p> <p>The special plea of defendant was not so warded as to limit the defense to the one ground raised: that lumber, which was the consideration of the violated contract, had declined in value.</p> <p>The defendant’s agent had at first made representation regarding the percentage of the first and second clears; afterwards, this agent declined to guarantee the amount of the percentage. Plaintiff, in view of the circumstances, has no ground upon which to base an argument of false representation and warranty of percentage of measurement of the upper grades of the lumber.</p> <p>The percentage of clears is increased from fifteen to twenty-five per cent, of the lot of lumber .sold by defendant to plaintiff. Pour dollars a thousand was the extent of the profits shown which plaintiff would have made at the place of destination.</p>

<p>APPEAL from the Eleventh Judicial District, Parish of Natchitoches — Porter, J.</p>

<p>APPEAL from the Twenty-third Judicial District, Parish of St. Mary — Allen, J.</p>

<p>Syllabus.</p> <p>It is too iatc to apply for aad obtain an appeal in the matter of the liquidaron of a corporation after the final account of the liquidators has been homologated, the funds d siributed and the liquidators discharged, through a ihoUou made after the term tfuung which the judgment was obtained has expired.</p> <p>Proper parties, duly cited, must be before the appellate court.</p>

<p>APPEAL form the Civil District Court, Parish of Orleans— King, J.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans — Si. Paul, J., acting for Ellis, J., absent on leave.</p>

<p>APPEAL from the Second Recorder’s Court, City of New Orleans— Marmouget, J.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans— Si. Paul, J.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans— Ellis, J.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans— • King, J.</p>

<p>Syllabus.</p> <p>1. In so far as the action of a municipal body may be illegal and may result to the prejudice of the tax-payers, any one or more of the latter have the right to implead the city government.</p> <p>2. But a suit thus instituted by the tax-payers against a municipality must be a tona fide proceeding on their part, having the object to assert and protect their individual rights, or those common to all tax-payers.</p> <p>3. Tax-payers, simply because they are such, have not the right to lend themselves, in a suit of this character, to others who have an interest to sub-serve, but who prefer to keep in the background. As mere interposed persons they have no right to a standing in court.</p> <p>4. There is and can be no such thing as an “intervening answer” by a third person in a cause pending between others. Intervention can be only by petition and citation as prescribed by C. P. 393.</p> <p>5. An intervenor should ask timely service of his petition and citation upon the plaintiff and defendant, and where an intervention has been fUed in ample time for service on the other parties litigant and for expiration of the legal delay for citation prior to calling the case for trial, and there has been no demand for such citation and service and none made, the intervenor has not the right, at the last moment, when the case is called for trial, to obtain time to effect such service. In such case, the trial judge would rule correctly were he to hold that the intervenor, in default of citation and service of his petition, has no standing in the cause, and, ignoring him, proceed to ’trial.</p> <p>6. Municipal discretion over the preparation of ordinances importing grants of franchises will not be interfered with when no improper exercise of municipal power or authority is shown.</p> <p>7. The sale of a thing at public auction is not illegal because it happens that one purchaser, without his connivance or procurement, and without fraud, collusion or undue influence being shown, is in a position, by reason of his situation, to bid a price higher than another.</p>

<p>IN EE Fidelity and Deposit Co., Applying for Certiorari, or Writ of Eeview, to the Court of Appeals, Parish of Orleans, State of Louisiana.</p>

<p>APPEAL from the Twelfth Judicial District, Parish of Vernon— Lee, J.</p>

<p>REPLICATION for Writs of Certiorari and Prohibition.</p>

<p>APPEAL from the CítíI District Court, Parish of Orleans— Theard, J.</p>

<p>APPEAL from the Second Recorder’s Court, City of New Orleans— Mormouget, J.</p>

<p>APPEAL from the Second Eecorder’s Court, City of New Orleans— Marmouget, J.</p>

<p>Syllabus.</p> <p>In case a nuncupative testament by public act is held good as a nuncupative ' testament under private signature in other respects, the notary signing the act, and the person who signs the name of the testatrix on account of her physical disability, are competent witnesses, and may be counted as such.</p> <p>It appearing from the recitals of such an instrument, that the testatrix “was not able to sign her name on account of physical disability,” the requirements of K. C. C. 1582 will be complied with.</p> <p>On Rehearing.</p> <p>If a plaintiff, desiring to take an appeal from the judgment rendered on his peti tion, obtains an order for a “general appeal,” and perfects the same by executing a bond in favor of the clerk of court, the appeal brings up the entire judgment.</p> <p>The appellant cannot limit the scope of the appeal by a mere recital in the “condition” of the bond, that it is taken from particular parts of the judgment. If such was appellant’s intention he should have made the same known in the application for appeal and caused the order of appeal to be made accordingly.</p>

<p>APPEAL from the Eirst Judicial District, Parish of Caddo — Land, J.</p>

<p>Syllabus.</p> <p>A house without the prescribed limits, as defined by ordinances of the city of New Orleans, which is being used for purposes of prostitution, may be proceeded against and closed to such purposes and its occupants forced to remove ; but whenever a house is denounced as one of ill-fame and notice to vacate is given, the occupant is entitled to raise and have tried the issue of the immoral use of the premises, or the character of the house, before conviction for not moving can legally be made.</p>

<p>APPEAL from the Eourth Eecorder’s Court, City of New Orleans— Murray, J.</p>

<p>^ PPLIGATION for writ of mandamus.</p>

<p>Syllabus.</p> <p>In an action to set aside a sale made at public auction, on the ground of simulation, it is attempted to have it decreed that a new corporation was a mere locum tenens of an old corporation indebted to plaintiffs and which superseded the old corporation only for (plaintiffs aver) the purpose of buying the property of the latter in order to escape the payment of its debt.</p> <p>The simulation charged is not sustained against the corporation, which was the seizing creditor in the first suit. The mortgage of this creditor primed all others. The transactions between the seizing creditor and the new corporation have no appearance of being simulated and are not subject to the action en declaration de si/multation.</p>

<p>APPEAL from tbe Fifth Judicial District, Parish of Morehouse— Potts, J.</p>

<p>Syllabus.'</p> <p>1. The extent to which a witness may be cross-examined is submitted to the discretion of the district judge, and this discretion will, not be interfered with unless it be abused. If the real object of a series of cross-questions as to the particulars of the past life of a witness, in a ease of homicide, be not to affect his credibility, but incidentally to attack the character of the deceased without the prerequired foundations then existing for so doing, or to simply prejudice the jury against the witness, the court is authorized to check such examination. Defendant is not entitled to cross-examine a witness upon collateral and irrelevant matters, in order through contradiction of the testimony which might be elicited therein, to impeach his credibility.</p> <p>2. Defendant, charged with murder, is not entitled to enquire into the character of the deceased as being a man who was dangerous and violent, in the ah sence of evidence of an overt act on the latter’s part which would excuse or mitigate defendant’s act.</p> <p>3. The court is authorized in the exercise of proper legal discretion to permit one of defendant’s witnesses, who had been cross-examined by the State and then re-examined for the defense, to be re-cross-examined by the State.</p> <p>4. Where the court refuses to sign a bill of exception presented to him, on the ground that no such bill was reserved, and a bill was reserved to such refusal, the statement of the court in the second bill that no bill was originally reserved will be taken as true.</p> <p>5. The court is directly concerned in understanding the testimony given by the witnesses in a ease, in order to guide its own actions and rulings, and therefore it has the right to question itself, the witnesses to have the scope of their testimony made clear, but the conduct of criminal cases should be left as much as possible in the hands of the State’s officers specially entrusted with conducting them. Although it would have been better, in a particular case, that an incidental remark made by. a court in the course of its questioning of a witness, should not have been made, no cause for reversal exists' where it manifestly would not have influenced the jury.</p> <p>6. A homicide committed during a drunken debauch is not rendered excusable by the fact that long-continued indulgence in drinking by the party committing the killing had created in him a desire to drink so strong that it was out of his power to resist.</p> <p>7. Where a party in possession of his mind enters into a voluntary drunken debauch he is not legally excusable for a homicide which he commits during its continuance and while in a condition of drunkenness, even though this drunkenness may be such, at the time of the commission of the homicide, as to render his mind incapable of knowing right from wrong. If the debauch be one continuing voluntary drunken debauch, starting with the sanity of the party engaged in it, the mere length of time the debauch may extend over is immaterial. Drunkenness for a week no more excuses a homicide committed, as its immediate and direct result, than would drunkenness for an hour.</p>

<p>Syllabus.</p> <p>1. Plaintiff alleged a verbal contract with defendant to supply him water to irrigate his rice crop. Defendant, for answer, pleaded the general issue, denied each and every allegation of the petition and averred that plaintiff set out to make and did make a “providence crop” on his lands, and refused to take water from defendant company. Helé: This answer does not set up a special defense which is to be considered as admitting the verbal contract, and then seeking to avoid same by averments of plaintiff’s refusal to take water under the contract.</p> <p>2. The answer is not a plea of confession and avoidance. On the contrary, it is regarded as a special denial of any contract to supply water, and the burden to prove it was on plaintiff.</p> <p>On Application fob Reheaeing.</p> <p>1. In an action for damages arising from the lack of water to raise a crop of rice, the failure of defendant to furnish water to irrigate plaintiff’s crop is not sustained by the testimony.</p> <p>2. The year 1898 was the first year that the defendant sought to irrigate rice crops and it was also plaintiff’s first attempt to cultivate rice. There was a ' want of thorough preparation on the part of each. Plaintiff failed to avail himself of the defendant’s offer to furnish water to irrigate and did not, in any respect, seek to minimize the damages.</p> <p>3. An alleged verbal agreement was embodied in a subsequent written contract without reserving any of the rights now claimed, by plaintiff. The terms and conditions of the written contract have not been complied with by the plaintiff.</p> <p>4. The special plea, as interpreted by the majority of the court, affords no ground upon which the court can hold the defendant liable.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans —King, J.</p>

<p>^ PPEAL from Civil District Court, Parish of Orleans — Theard,- J.</p>

<p>Syllabus.</p> <p>The tutrix and her ward differ regarding the latter’s ability to manage her own business affairs properly. The question is whether the minor has had sufficient experience. Witnesses are not in accord in' this respect. Near relatives testify that she has the capacity to take proper care of her interests as an emancipated minor. Others, equally as near, testify that in view of her inexperience and youth, her property should remain in charge of the tutrix.</p> <p>The minor has not sustained her application by a preponderance of proof. The court holds that there is no good cause for emancipation.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans— King, J.</p>

<p>APPEAL from the.Civil District Court, Parish of Orleans — Ellis, J.</p>

<p>Syllabus.</p> <p>Where the duty to keep the sidewalks of streets in safe condition rests upon a municipal corporation, and this obligation is not met, is long neglected, and injuries resulting directly from the unsafe condition of the walk occur to a pedestrian, himself exercising ordinary care and caution, the corporation is answerable in damages .</p>

<p>APPLICATION for Writs of Certiorari and Prohibition.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans St. Paul, J.</p>

<p>APPEAL from the Ninth Judicial District, Parish of East Carroll —Kennedy, J., ad hoc.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans— Theard, J.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans — EUisj J.</p>

<p>APPEAL from tbe Thirteenth Judicial District, Parish of Eapides —Blackman, J.</p>

<p>Syllabus.</p> <p>Where two persons are sued jointly in a petitory action and one of the co-defendants, in her answer, alleges that that part of the property in her possession was acquired by purchase from the co-defendant, on whom she calls to defend her title and possession and against whom she asks judgment in warranty in case of her eviction, and defendants being cast the co-defendant and warrantor alone appealing, this appeal is considered to have brought up the whole case and the judgment of the appellate court, in affirmance of the judgment of the trial court, is held to have finally disposed of the case as to all parties, and the other defendant cannot afterwards appeal from the same judgment.</p>

<p>APPLIOATION for Writs of Certiorari and Mandamus.</p>

<p>Act No. 48 of 1900 abolished the justice of the peace court in the city of New Iberia, and established instead thereof “the City Court of the City of New Iberia,” and conferred upon the latter criminal jurisdiction of offenses committed in said city and not punishable by imprisonment at hard labor under the laws of the State. This grant of power was not intended to operate, nor did it operate a withdrawal from the judicial district court, for Iberia parish of its existing constitutional jurisdiction to try the same cases.</p>

<p>Syllabus.</p> <p>A creditor of the succession, after the account of its administration had been filed, took an appeal against the homologation by petition and citation out of court.</p> <p>The creditors whose claims had been correctly carried on the account were protected by the decree which is suflicietnly correct to protect their rights as creditors. After deducting their claims, the amount remaining for distribution was less than the lower limit of the Supreme Court’s jurisdiction. Moreover, the appealing creditors did not make the creditors who were parties to the judgment, parties to the appeal. In order to sustain an appeal, all parties to the judgment must be made parties to the appeal.</p>

<p>Syllabus.</p> <p>Tlie Supreme Court is without jurisdiction ratione materiae of an appeal from the judgment of a District Court which perpetuates an injunction sued out by a judgment debtor to restrain the seizure of his notarial fees under garnishment proceedings when the fees attempted to be seized amount to two hundred and fifty dollars and the principal of the debt for which judgment was rendered in the case in which the garnishment issued was for two thousand dollars.</p>

<p>IN RE Woodley Watson, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, State of Louisiana.</p>

<p>APPEAL from the Sixteenth Judicial District, Parish of St. Landry —Lewis, J.</p>

<p>Syllabus.</p> <p>1. The claims of several creditors between which the only connection is that they are due by a common debtor and are secured by privileges on the house of such debtor, cannot be joined together to mahe up the amount requisite for this court to entertain jurisdiction.</p> <p>2. A case must on a second appeal go to the court having jurisdiction of it in the condition in which it is, and not to the court that, had jurisdiction of it in the condition in which it was at the time of the first appeal.</p>

<p>IN RE E. H. Vordenbaumen, Applying for Certiorari, or Writ of Review to the Court of Appeal, First Circuit, State of Louisiana.</p>

<p>APPEAL from the Criminal District Court, Parish of Orleans — ■ Baker, J.</p>

<p>Syllabus.</p> <p>The testimony makes out a case in which plaintiff and defendant were both at fault. The plaintiff, by connecting himself with an act of extreme violence against the defendant, and the defendant, by afterward charging plaintiff with having committed robbery, a charge not sustained by the testimony.</p> <p>The jury and the judge considered the act of violence as having provoked the unfounded charge, and treating the two offences together, found a verdict denying plaintiff’s demand and a judgment rejecting it.</p> <p>This court affirms the verdict and judgment.</p>

<p>Syllabus.</p> <p>An error assigned as patent upon tlie face of the record, must plainly so appear, else there is nothing for the court to act upon.</p>

<p>APPEAL from the Twelfth Judicial District, Parish of Sabine— Lee, J.</p>

<p>Syllabus.</p> <p>Motion to Dismiss.the Appeal.'</p> <p>1. The prosecution was for selling liquors, other than for medicinal and sacramental purposes, within limits stated in the indictment.</p> <p>2. The right of appeal is granted in such cases from a judgment which decrees a law unconstitutional. But no law was declared unconstitutional; on the contrary the court of the first instance maintained the indictment as valid and the sentence as legal.</p> <p>3. Defendant was prosecuted for a mere misdemeanor. The sentence does not fall within the lower limits of the jurisdiction of the Supreme Court. The appellate jurisdiction cannot be substituted for the supervisory jurisdiction, to have asserted illegal proceedings reviewed.</p>

<p>Syllabus.</p> <p>1. Considering the mandatory requirement ol Act 88 of 1888, parties to an act of conveyance of real property are not at liberty to dispense with the production of evidence of the payment of taxes, and notaries and other officials authorized to execute public acts are forbidden by law to pass any act importing the sale, transfer or exchange of real estate until there is .produced the tax collector’s receipt or certificate showing payment of State, parish and municipal taxes assessed against the same for three years next preceding the execution of the act.</p> <p>2. The notice of delinquency required to be given or mailed to the tax debtor is sacramental, and failure to give it vitiates all subsequent proceedings taken for the sale of the property to enforce payment of taxes.</p> <p>3. Deeds of sale made by collectors of taxes are required by law, both constitutional and statutory, tp be received by courts in evidence as prima facia valid sales.</p> <p>4. But when there is evidence adduced sufficient to rebut this prima facia character of the deed, and to fatally imperil the presumption of regularity which attaches to the tax sale, there is thrown upon the party who holds under the tax title the burden of sustaining the latter by testimony aliunde the deed.</p> <p>5. In a matter of so much public importance as tax sales a record in writing in each case should be kept by tax-collectors of how and when, the manner, etc., of giving notice of delinquency to tax-debtors, and officially signed. And if this record does not make proof of its recitals, as does the return of the sheriff on a citation, it could be given that effect by legislation.</p>

<p>Syllabus.</p> <p>1. Where a defendant in a petitory action has been in possession, claiming as owner, of the property sued for, for more than thirty years, the action is barred by prescription, whether he can show title or not, unless the plaintiff is within some exception established by law. A fortiori is this the case where it appears that the plaintiff has always lived in the neighborhood and is aware of such possession and claim.</p> <p>2. Minors are within an exception established by law, and the prescription above referred to is inapplicable to them. And where it is once made to appear that the person whose claim is affected is a minor the burden is east upon the party who pleads the prescription, to show at what time it began to run against such person by reason of his attaining majority.</p> <p>3. As between an administrator and tbe heirs of an estate, the latter are entitled to notice, other than by publication, of the flling by the former of his account, and, in default of such notice, they are not bound, save as to creditors, by the judgment of homologation.</p> <p>4. Where it is claimed that a person is estopped from suing for the recovery of property by reason of his having received the proceeds of the sale thereof, it should be made to appear, in order to maintain the plea, that such proceeds were received knowingly, since if he received them ignorantly, supposing that they came from some other source, though he may be compelled to refund, there is no estoppel.</p>

<p>Syllabus.</p> <p>Section 12 of Act 49 of 1894 is not repealed by Act 13 of 1896.</p>

<p>Syllabus.</p> <p>1. Where by an ordinance of the city of New Orleans the doing of a certain act is prohibited as a public nuisance, and violation of the ordinance made punishable by fine or Imprisonment, and each day’s continuance of the nuisance is made a separate offence, a party convicted by a recorder upon separate and distinct and successive charges for violation on successive days of the ordinance, and separately sentenced upon each charge, cannot by certiorari have the sentence set aside as being an illegal division into different offences of a single offence, where in none of the complaints is the party charged with^more than one day’s infraction of the ordinance.</p> <p>2. The fact that evidence of the conviction of the accused of a prior and similar offence has been permitted to be introduced in evidence on his trial for the later offence and has s'erved as a “make weight” in the determination of the later charge, does not justify the claim that the party has been found guilty and punished a second time for the original offence, where other evidence has been introduced in support of the later charge, and the evidence of the prior conviction has been introduced by way of corroboration.</p>

<p>Syllabus.</p> <p>In proceedings instituted to enable one interested to examine tbe books of the company, the defendant excepted, and averred that it had not been cited. The citation was addressed to the manager. The citation should have been addressed to the defendant, and not to its manager. Bertoulin vs. Bourgeois, 19 A. 360; State ew rel. B. B. vs. Justice, 48 A. 1417 ; MePadden vs. Sheriff, 49 A. 1359. The mandamus proceedings .were directed against the manager and do not have the effect of curing the defective citation. A citation was issued and was subject to the objection urged.</p> <p>The illegality of the citation renders it necessary to remand the case for further proceedings and for service of the writ of mandamus directed to the .defendant company.</p>

<p>APPEAL from the Fifteenth Judicial District, Parish of Oaleasieu— Miller, J.</p>

<p>Syllabus.</p> <p>1. The purchaser, as such, of a sugar refinery — outfit and plant — who assumes payment of claims secured by vendor’s lien upon the machinery, has no greater right to contest and repudiate such claims than his vendors had.</p> <p>2. If they would be bound, under the circumstances existing at the time of sale, to meet the obligation of the lien, so must he meet it.</p>

<p>CERTIFIED from the Court of Appeals, Fourth Circuit, Parish of Iberia, by the Judges thereof applying for instructions.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans — St. POAjH, tF.</p>

<p>Syllabus.</p> <p>1. Rescission for the non-payment of the purchase price may be enforced if the parties to the sale can be placed in the same condition as they were “as though the obligation had not existed.”</p> <p>2. The test in a suit between the parties to the sale is: — the return to the purchaser of that portion of the price he has paid (if any) and his complete discharge as to the remainder — the unpaid portion of the price.</p> <p>3. A general endorsement on negotiable paper may, except as against a bona fide. holder, be explained and the precise terms of the agreement shown by parol testimony.</p>

<p>Syllabus.</p> <p>1. A remark by the judge, presiding upon a trial for murder, referring to tbe calling back, for tbe purposes of cross examination by counsel for defendant, of a juror who bad been examined by tbe State on his voir Mre and told xo stand aside, that “it was a useless consumption of time”, although, perhaps, better left unmade, does not call for a reversal of tbe verdict, unless there is good reason to believe that the defendant has been injured. And the same thing may be said with regard to inquiries made by the presiding judge, in the presence of the jury, as to whether the defendant’s counsel would waive his objections with regard to the matter of allowing the jurors to leave their fellows, accompanied by an officer, to attend to calls of nature. There is no necessity for consulting counsel for defendant in such cases, and it is better that it should not be done, but having been done, the setting aside of the verdict does not, necessarily, follow.</p> <p>2. To allow a juror to separate from his fellow jurors, for the purposes, and under the conditions, as stated above, is not such a separation as falls within the technical prohibition of the law, and does not, of itself, authorize any presumption of injury to the accused.</p> <p>3. Where the jury, whilst trying the accused, charged with murder, and who is convicted o£ manslaughter, is taken by the officer in charge to the post-offi<e, in order that one oC the jurors may obtain stamps, and, whilst there, one oí them is handed a newspaper, which has come through the mail, in a wrapper, but it does .not appear that any of the jurors are spoken to by outside persons, and it is shown by the testimony of the juror in question that the paper received by him was a daily from a distant city, and contained no reference to the cause on trial, and there is nothing to show injury to the accused, the facts of the jury’s going to the post-office, and of the delivery of the paper to the juror, although irregularities which are to be deprecated, do not demand the reversal of the verdict.</p>

<p>APPEAL from the Thirteenth Judicial District, Parish of Grant— Blackman, J.</p>

<p>Syllabus.</p> <p>1. Railroad corporations backing their trains through danger points in the streets of a city must use proper care and take proper precautions to safeguard citizens upon them. If they entirely fail to do this, they assume the risk of injury to individuals even if the injury received be due to some extent to the latter’s imprudence and forgetfulness. They can not fail en tirely in their duty and argue that had the duty been performed it would have been in the particular case unavailing. The results should have been put to the test by actual trial made at the time.</p> <p>2. A street of a city does not cease to be such because left unimproved and' almost its entire width, with the consent of the Council, is occupied by the tracks of railroad corporations. The open spaces between the railroad tracks are public places and persons occupying them are neither trespassers nor licensees.</p> <p>3. Where trainmen in control of a railroad train, back it down opposite a dan ger point in the street of a city, without precautions of any kind to signify its approach or to warn or protect citizens, at the precise moment that a passenger train is moving in the other direction on a parallel track, and in so doing strikes and kills a person occupying the open space between the two lines of track, the company is responsible for the injury, although the person injured may have contributed to some extent, by imprudently backiug in a moment of forgetfulness into the open space taken up by the overlapping of cars, outside the rails.</p>

<p>APPEAL from the Fourteenth Judicial District, Parish of Avoyelles — Peterman, Judge ad hoc.</p>

<p>Syllabus.</p> <p>Incorporated towns and cities may call an election, to decide as to local option within their respective limits, twelve months after an election covering the same question as to the whole parish shall have been held under the auspices of the Police Jury.</p>

<p>Syllabus.</p> <p>1. A written instrument, purporting to embody an agreement concerning a matter not required to be in writing, which bears the signatures of the party of the one part only, has, of itself, no binding effect as to the party of the - other part, who has not signed, but the fact that the latter has entered into the contract may be shown by his execution thereof, with the concurrence of the former.</p> <p>2. A contract whereby a company engaged in furnishing water to rice farmers by irrigation, acquires the right-to conduct such water by means of a canal or ditch through one farm to another does not impose a real servitude on the farm through which the water is conducted.</p> <p>3. A mandatory writ of injunction may issue ea> parte, or without a hearing on the merits, in some cases, as for instance, where a prohibitory writ issues, restraining one from obstructing the exercise of a right, the obstruction may be commanded to be removed because its continuance inflicts the injury which is prohibited.</p> <p>4. The defence that a private corporation, suing on a contract, has no standing in court because the making of such contract was ultra vires of the corporation, will not be considered if suggested for the first time in the argument. It should be’ specifically set up in the pleadings.</p>

<p>APPEAL from the First Judicial District, Parish of Caddo — Land, J.</p>

<p>Syllabus.</p> <p>Although a logging railroad is not expected or required to be laid with the same care and security, nor to be operated with the. same degree of prudence, as is demanded in the construction and operation of railway tracks in use by common carriers, nevertheless such road should be so constructed and operated as to render it reasonably safe for those whose employment necessitates their going upon such road and performing service in connection with the same.</p>

<p>Syllabus.</p> <p>1. Where in effecting a partition by authentic act, a surviving widower in community specifically admits that the other contracting party is the son and sole heir of his deceased wife, and they reciprocally convey to each other the immovable property of the community, neither such widower, nor his heirs, can, thereafter, for the purposes of a supplemental partition, and without alleging and proving that he was deceived by fraud practiced upon him by such other party, be heard to deny the admission so made.</p> <p>2. Where an authentic act is resorted to for the purpose of effecting -a partition, and it mentions immovable property, and disposes of it, and also mentions movable property, as existing and being subject to partition, but makes no disposition of it, the partition, as effected by said act, will not be held to be complete and final. And the action for a supplemental partition, one of the parties being in possession of all the property to be affected thereby, is barred only by the prescription of thirty years.</p> <p>3. Where the parties to an agreement fail to express themselves clearly, the court must endeavor, from the aid of circumstances, and by a reasonable construction of their acts, to arrive at their meaning.</p>

<p>APPEAL from the Twenty-First Judicial District, Parish of Iberville — Talbot, J.</p>

<p>CERTIFIED from the Court of Appeals, First Circuit, by the judges thereof applying for instructions.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans — Ellis, J.</p>

<p>Syllabus.</p> <p>1. An appeal will not be dismissed, under C. P. 897, for failure of the appellant to file an assignment of errors, where the transcript is duly certified as containing all the testimony adduced, and the grounds for reversal relied on are apparent upon the face of the record.</p> <p>2. The exemption accorded to manufacturers, under Article 207 of the Constitution of 1879, as extended by the amendment proposed- by the joint resolution No. 92 of 1886, became operative upon the adoption of that Constitution prior to January 1st, 1880, and continued in force for twenty years.</p> <p>3. If any tax-payer, entitled to such exemption, paid the tax of 1880, he has a claim for reimbursement, but such payment does not authorize the extension of the period of the exemption, as fixed by the Constitution.</p>

<p>APPEAL from tbe Civil District Court, Parish of Orleans— King, J.</p>

<p>Syluabus.</p> <p>1. It is beld that defendant's husband was acting for his own account and not as agent of defendant in buying the mules, the price of which is sued for.</p> <p>2. If by Missouri law a wife may bind herself for a debt of her husband, and if a wife while residing in Missouri does so bind herself, the obligation will be enforced against her after she becomes a resident of this State.</p> <p>3. Capacity to become obligated on promissory notes is tested by the law of the domicile, not by the law of the place where the notes are payable.</p>

<p>APPEAL from the Nineteenth Judicial District, Parish of Iberia— Thorpe, Judge ad hoc.</p>

<p>IN EE. Gabriel Sintes et als. applying for certiorari, or writ of review, to the Court of Appeals, Parish of Orleans, State of Louisiana.</p>

<p>Syllabus.</p> <p>1. Where porperty is pursued in enforcement of a local assessment, to secure which the statute grants the first lien, it suffices to proceed contradictorily with the man in possession as owner under recorded title translative of ownership.</p> <p>2. And the purchaser at the sale which follows acquires a good title by the adjudication, for it is a proceeding in rem — one to enforce a real charge, a debt on the property irrespective of the person owning.</p>

<p>Syllabus.</p> <p>Tbe title of Act No. 35, of 1900, is both inadequate and misleading, and fails to express the object of any provision in the act which is susceptible of independent enforcement. The act, therefore, contravenes Article 31 of the Constitution, and is void.</p>

<p>Syllabus.</p> <p>In fixing damages to be awarded for slander, the court will take into consideration the fact that the objectionable words were uttered in the heat of passion, by one, who, for the time, believed that he had a grievance, and that it was probably so understood by those who heard him. ,</p>

<p>APPEAL from the Sixth Judicial District, Parish of Ouachita— ■HfflZZ, J.</p>

<p>APPEAL from the Twenty-first Judicial District, Parish of Iberville — Claiborne, J.</p>

<p>Syllabus.</p> <p>On a trial lor morder, all twelve of the jurors must concur to find a verdict' for manslaughter; nine jurors concurring cannot find a verdict.</p>

<p>APPEAL from the Twelfth Judicial District, Parish of Vernon— Lee, J.</p>

<p>APPEAL from the Fourteenth Judicial District, Parish of Avoyelles — Gouvillon, J.</p>

<p>APPEAL from the Twelfth Judicial District, Parish of De Soto— Lee, J.</p>

<p>Syllabus.</p> <p>1. Where the accused in a criminal trial considers that the conduct or language of the prosecuting officer is improper, he should invoke the action of the trial judge. Railing to do so, he will not be heard to complain in this court.</p> <p>2. Jurors, though not permitted to impeach their own verdicts, are competent to testify in rebuttal of charges of misconduct.</p> <p>3. Where there is neither bill of exception, nor assignment of errors, no alleged error in the charge can be considered, unless, upon its face, the charge complained of is glaringly unjust and erroneous.</p>

<p>Syllabus.</p> <p>A factor to whom a customer has delivered his negotiable notes to his own order and by him endorsed to secure him for advances made and to be made, subordinates his own rights under the notes and mortgage in favor of a second factor making advances to the same person, by transferring to him the notes with the maker’s consent to be held as collateral security until the latter’s advances made and to be made, are satisfied, at which time they are to be returned to the first holder.</p> <p>The notes under such an agreement pass with their mortgage to the second factor and his mortgage rights are unaffected by the fact that the transfer of the notes is made after their .maturity and that the accounts between the first factor and the common debtor may be subsequently settled and paid. (Levy vs. Ford, 41 Ann. 873.)</p> <p>A junior mortgage creditor has no ground of complaint so long as his own righ+s are not primed for a larger amount than they were before.</p> <p>In the case at bar the first factor at the time of such .an agreement was bound towards the second as security for advances already made to his customer, and in consideration of this transfer he was released as such.</p> <p>There were no equities existing at the date of the transfer.</p> <p>On Rehearing.</p> <p>Holders of notes, secured by mortgage, transferred in good faith, are entitled to hold them between themselves and their transferrors. Third persons had not acquired an adverse right prior to their transfer.</p> <p>As relates to tbe second series of notes, tbe condition being different, tbe right of the mortgage creditors, second in rank, is recognized as priming the mortgage first in rank to the extent that it was without consideration at the date that the mortgage creditors second in rank acquired their right.</p>

<p>Syllabus.</p> <p>The establishment by the Board of Pharmacists of a domicile in the city of New Orleans was a competent exercise of implied power, necessary to the enjoyment of the powers expressly conferred upon said Board by Act No. 66 of 1888, and to the accomplishment of the object for which said Board was created ; and this proceeding, brought in the District Court for the parish of Acadia, and based upon citation served upon the president of defendant Board in the parish of Iberville, was properly dismissed for want of jurisdiction ratlcvc personae.</p>

<p>Syllabus.</p> <p>This case presents the question whether church property, part of which is a church site with buildings, another part a burial ground, owned as per deed of record by the “Pleasant Green Baptist Church,” an unincorporated religious society, is subject to partition at the instance of a minority of the congregation, among those who, at this time, claim membership in the church.</p> <p>Held — A minority of the congregation, under the case as presented, have no right to break up the church by forcing the sale of its property for purpose of partition on the plea of being owners in indivisión. While they may have certain property rights in the church holdings, they are not considered such owners in indivisión as give them a standing in court to provoke, against the will of the majority, a -partition of that which, by common understanding, intended to remain intact for the purpose of religious worship.</p>

<p>Syllabus.</p> <p>1. A judgment which does not determine the rights of the parties is not res judicata. The vendor’s lien attacked by the plaintiff was not affected by or involved in the' proceedings before the court of West Virginia in which the judgment was rendered which the defendants plead as res judicata.</p> <p>2. The immovable property of a non-resident is subject to the laws of this State (C. C. 0), and in settling his succession here it must be opened and administered as that of persons domiciled in this State.</p> <p>3. No one is the heir of the living. A transaction based upon the idea of a future right to the succession of one living is devoid of consideration. Though such a stipulation may have been valid in West Virginia, it can have no effect under the civil law. (The original act of sale between the first vendor and his vendee was not based on real and substantial consideration as between vendor and vendee, and third persons.)</p> <p>4. The purchasers from the original vendee were not in bad faith in buying the property from this vendee, who had no title. . The sale of the property of another is not entirely void when the purchaser is not in bad faith, and it is therefore subject to prescription less than the longest term of prescription (thirty years). Unless it comes within some exception, such a sale fails within the prescription of ten years. Here, there is a special prescription controlling, that is the prescription of five years.</p> <p>5. While it is true that the forced heir stands in the shoes of the de cujus and that le mort saisit le vif is a controlling doctrine, yet when heirs have gone into possession under the will under an order of court made contradictorily with a co-heir, he is concluded so far as relates to possession, and he must bring a direct action for the legitime.</p> <p>6. The heir being in possession under the will, the remedy of the co-heir not in possession is by an action for the legitime and this heir cannot ignore the will and sue for his portion. Where a forced heir is deprived of his portion under the will, and he is not in possession, he has an action for his legitime part.</p> <p>I. This action is prescribed by five years. C. C. 3541.</p> <p>8. The decree heretofore rendered by this court does not have the effect of rrs judicata as relates to prescription. The exceptions filed were overruled and the plea of prescription remained to be considered.</p> <p>9. More than five years had elapsed at the date of the filing of the instant suit. a. Prescription runs against all persons save when under certain exceptions, h. Minors and persons under interdiction cannot be prescribed against except in cases provided by law. Art. 3522, C. C.</p> <p>c. One not interdicted is not within the terms of that article. The heir from whom plaintiffs inherit never was Interdicted.</p> <p>d. A suit brought in her name would have had the effect of interrupting prescription, and she or her heirs were not without power to bring an action to safeguard their rights, and, therefore, they cannot avail themselves of the maxim contra non valentem.</p> <p>10. The claims of the heirs who are minors are within the terms of the law suspending prescription during their minority, and as to them the claim is not' prescribed.</p> <p>II. The right to reduce is not in suspense until the simulation is decreed, for simulation is a mere shadow with nothing about it to prevent the heir from asserting his right to the legitime.</p> <p>12.' The heirs regularly in possession and in good faith are not bound to demand possession of one not in possession, and who has never pretended to be in possession; but, on the contrary, the law gave consent to the possession of her co-heir.</p> <p>13. There was no attempt made at concealing fraud. The facts were all recorded. Whatever ignorance there was on the part of the plaintiffs, it was of law and not of fact.</p> <p>On Rehearing.</p> <p>1. The rule le mort saisit le vif as established by C. C. 940, applies as well to the universal legatee as to the forced heirs; and, construing the article men- , tioned with Articles 1504 and 3542, it follows that a testamentary donation, although exceeding the disposable portion, confers a title which is defeasible only at the suit of the forced heir, or his heirs or assigns, brought within five years.</p> <p>2. The law of this State being unambiguous, to the effect that the action for reduction may be brought by the heirs or assigns of the forced heir, the courts are without authority to limit the right so conferred to forced heirs or resident heirs of the forced heir.</p> <p>3. The maxim contra non valentem agere, etc., has no place in the law.of this State, and if it has been admitted through any breach in the jurisprudence, that breach will not be widened.</p> <p>4. Those who claim exemption from prescription by reason of ignorance resulting from fraud must allege and show that such ignorance was neither wilfull nor negligent.</p> <p>5. The beneficiaries of an excessive donation having organized themselves into a corporation with the donated property as their capital, and the interest of such donees and of such corporation being identical; held, that a suit for reduction on behalf of the forced heirs is properly brought at the same time against such donees and the corporation into which they had thus organized "them - selves.</p>

<p>APPEAL from the Twenty-third Judicial District, Parish of' St. Mary — Allen, J.</p>

<p>JP PPEAL from the Civil District Court, Parish of Orleans — King,</p>

<p>Syllabus.</p> <p>1. There is no warrant in any act of the Governor or legislative council of the Territory of Orleans, nor of the General Assembly of the State of Louisiana, nor yet in any act of Congress pertaining to the establishment and enlargement of the State of Louisiana, for holding that the southern boundary of the Parish of St. Tammany was ever recognized as extending south of a lioe drawn through the center of Lake Pontchartrain,</p> <p>2. “West End’* (a suburb of the city of New Orleans located in Lake Pontchartrain near its southern shore and south of the middle line of the lake) is, therefore,.held not to be within the limits of the Parish of St. Tammany.</p>

<p>Syllabus.</p> <p>In an action brought by a town against its contractor for the construction of a waterworks and electric light plant, to be reimbursed for moneys expended for repairs to the plant, made subsequently to acceptance by and delivery to the town after the work had been subjected to contract tests and the engineer agreed upon by the parties to supervise and test the work had certified that the work was complete, in accordance with the contract, the town carries the onus of establishing clearly that the expenditures were for repairs, for which the contractor was liable under his contract.</p> <p>The claim of the furnisher of supplies to a sub-contractor to be used in the construction of a building to a privilege upon the building, is dependent upon the supplies furnished being actually used in the building. It is not sufficient that the sub-contractor, after disposing of the supplies in some other way, should substitute" in replacement thereof other articles of the same kind and of the same quantity, obtained from other sources.</p> <p>Where the furnisher of supplies to a sub-contractor for the construction of a building waives any claim' to a privilege upon the building and relies, "under the Act of 1844, upon a right upon the price due by the owner to the contractor, he must comply with the conditions of that statute and serve an “attested account,” as required by its terms. The recording of an “attested account” in the recorder’s office is not the equivalent for the purposes of a right upon the fund to the service upon the proper party of an attested account. It does not, for this purpose, convey constructive notice.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans— King, J.</p>

<p>A’PEAL from the Fourteenth Judicial District, Parish of Avoyelles ■ — Couvillon, J.</p>

<p>APPEAL from the Sixth Judicial District, Parish of Ouachita— Hall, J.</p>

<p>Syllabus.</p> <p>1. Where the Court of Appeal and this court have held that an appeal in a particular ease, returnable to one court or the other, is not returnable to the Court of Appeal, the arguments, presented by the counsel for the appellant, to maintain the appeal which had been returned to the court first mentioned, will not be held to preclude him from appealing to this court after the dismissal of the appeal first taken, the delay for such second appeal not having expired.</p> <p>2. “The prohibition of building on an estate or of building above a particular height” is a continuous, non-apparent, servitude, “which can be established only by title,” and is not included in any servitude of light and view which can be acquired by prescription.</p>

<p>Syllabus.</p> <p>1. In a case where the plea of self-defense has been set up and' where the court has charged the law of self-defense, the following charge, namely: “When an injury intended against one person mortally affects another, as when a blow aimed at one person lights upon another and kills him, the enquiry will be -whether, if the blow had killed the person against whom it was aimed, the offense would have been murder or manslaughter. If ‘A,’ having malice against ‘B,’ strikes at and misses him, but kills ‘C,’ this is murder in ‘A’; but if the blow had been without malice and under such circumstances that if ‘B’ had died, it would be manslaughter. If a man, out of malice to ‘A,’ shoot at him, but miss him and kill ‘B,’ it is not less a murder than if he had killed the person intended” — is incomplete and incorrect, without the qualification to show that if “A,” in shooting at “B,” was acting in' self-defense, then that the killing of “C” would be equally in self-defense.</p> <p>2. The e® parte affidavit of the accused to a motion to quash the venire is not evidence to prove the facts on which the motion is based'.</p> <p>3. The allegation that the venire list of 300 names does not contain the name of a single colored man, although one-fourth of the population of the parish are negroes, while pregnant with the affirmation that the jury commissioners, in making up the venire list, discriminated against the negroes, yet is not a substantive allegation of that fact. However improbable it may be that the general venire list of 300 names should not contain the name of at least one colored man, if the jury commissioners had made their selection without discrimination, considering that one-fourth of the population are negroes, yet such a thing is not impossible, and the presumption is that the jury commissioners did their duty.</p> <p>4. The legal presumption arising from flight is more in the nature of an inference of fact, flight being but a circumstance in the case, to be considered by the jury, in connection with the other facts, in determining the probabilities in favor of or against the guilt of the prisoner.</p>

<p>APPEAL from the Sixth Judicial District, Parish of Ouachitá— Sail, J.</p>

<p>APPEAL from the Thirteenth Judicial District, Parish of Eapides —Blackman, J.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans — Si. Paul, J.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans— Theard, J.</p>

<p>APPEAL from the First Judicial District, Parish of Caddo — • Land, J.</p>

<p>APPEAL from the Sixteenth Judicial District, Parish of St. Landry — Lewis, J.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans— St. Paul, J.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans— Ellis, ■/.</p>

<p>APPEAL from tbe Criminal District Court, Parish of Orleans— Baker, J.</p>

<p>Syllabus.</p> <p>1. Courts may restrain an excessive noise when it interferes with the comforts of life and impairs the reasonable enjoyment of a home.</p> <p>2. If, however, the judge of the first instance, in the exercise of legal discretion, declines to issue an unrestricted preliminary injunction, not being satisfied that there is sufficient ground to issue a sweeping order stopping the ringing of all bells for any purpose whatever and however moderately rung, the ap pellate court will not make a mandamus peremptory and will not set aside the action of the lower court. '</p>

<p>Syllabus.</p> <p>1. The ownership of immovables is acquired by possession as owner during thirty years.</p> <p>2. The ownership of movables is acquired by continuous and uninterrupted, peaceable, public and unequivocal possession during ten years in good faith as owner, under a title valid in form and translative of property.</p>

<p>Syllabus.</p> <p>1. It is possible for two persons jointly to steal sis eggs, one pair of stockings and one undershirt.</p> <p>2. The granting or the refusing of a severance is a matter largely within the discretion of the trial judge.</p>

<p>Syllabus.</p> <p>The suit was for damages. There was no stipulation in the contract regardinii tlie quality of the article of food for animals. In the previous years, it had given satisfaction. Plaintiff assumed that the quality would be as good as in previous years. It was not. Defendant did not timely complain.</p> <p>It was manifest that the food was not of a superior quality. One who receives an article of food and takes the chances that it will increase the weight of his cattle and improve them, has no ground of action after having met with disappointment, because he did not succeed in selling them for as much as he expected. After the feed and cattle have been disposed of, it is too late to urge complaint. Besides, defendant made partial payments that conclude him from claiming damages.</p>

<p>Syllabus.</p> <p>1. It is error for a District Court to refuse to entertain, an application made to it by a husband and father, during his marriage, for a writ of habeas corpus to be directed to his wife, the application being based upon an alleged illegal detention by the latter of their minor child, upon the ground that the spouses can only bring suit against each other in specially permitted cases, and that application of this character is not authorized by law.</p> <p>2. A writ of habeas corpus is essentially a writ of enquiry in aid of right and liberty in respect to matters in which the State has an interest, though private rights may be involved. The writ simply brings the parties before the court for the ascertainment of the facts of the case. The court is clothed with a sound discretion, after hearing', to grant or refuse to the applicant the’ relief asked for. Neither spouse has an absolute right to the custody of the children.</p>

<p>APPEAL. from the Seventh Judicial District Court, Parish of Richland — Ellis, J.</p>

<p>IN RE Vordenbaumen & Eastman, Applying for Gertiorari, or Writ of Review, to the Court of Appeal, First Circuit, State of Louisiana.</p>

<p>ON APPLICATION for writs of certiorari, manckmius and prohibition.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans— King, J.</p>

<p>Syllabus.</p> <p>1. A creditor holding under an act importing confession of judgment a special mortgage with the clause de non alienando has the right to enforce his mortgage by executory process, though the debtor be dead and his succession be under administration. The creditor has the right to have an order which the administratrix has obtained for a probate sale of the property mortgaged, set aside, though it had been granted prior in date to an order of seizure and sale which he, himself, had obtained, unless he has lost that right by laches or has estopped himself by his acts: mere priority of dates of the orders is not determinative which of the two shall prevail, but the special facts of each case control the situation.</p> <p>2. The mortgage creditor is not estopped from enforcing his mortgage by executory process by having consented to a probate sale and bidding at an offering of the property at such sale, when his consent was given upon conditions which the administratrix had violated, and no sale had been made under the order consented to.</p>

<p>Syllabus.</p> <p>1. The case involves construction of former judgment of this court, and it is held that an erroneous interpretation was placed upon the same by the lower court.</p> <p>2. It is, after all, the decretal part of the deliverance of the court which must govern.</p> <p>3. But, anyhow, the case is held to be with the plaintiff on the facts relating to the merits.</p>

<p>Syllabus.</p> <p>Plaintiff sought to recover a tract oí land (included in the boundaries of a place known as Lovely Point plantation) which she avers was not included within . the boundaries of the property mortgaged and afterwards sold in foreclosure proceedings. »</p> <p>While the boundaries do not touch the land in question at all points, they none the less indicate well enough that the land claimed is part of the Lovely Point plantation. The evidence shows that Lovely Point plantation was mortgaged, and that this plantation was sold with boundaries, as set forth in the act of mortgage. The name of the plantation, the boundaries, and the United States’ divisions and sub-divisions, one considered with reference to the other, correctly described the land in controversy, and show that it was mortgaged and sold, as alleged by the defendant.</p> <p>After this first owner had parted with his title, he could not be heard to the end of destroying the validity of the title which he transferred to a third person, under whom defendant holds. He is bound by his own- deed of transfer, even though he is not bound in warranty, to an extent at least by which he is prevented from seeking to destroy the validity of the title he chose to transfer.</p>

<p>Syllabus.</p> <p>When the person sued for a trespass personally and individually is a public functionary or agent, the proof must affirmatively show that he did some wrongful or illegal act tending to render him liable personally ; and in the absence of such proof, he can not be held responsible for illegal acts performed under color of official authority.</p> <p>State agents and boards are endowed with no immunity from liability for trespass, but proof of some wrongful act should be made before liability will attach.</p>

<p>Syllabus.</p> <p>Where the plaintiff sues upon an express contract upon which action accrued annually subject to the prescription of three years, a failure to institute the action for its enforcement within the period of prescription, bars the action, notwithstanding the fact that it was not brought by reason of an expectation and hope by the creditor that the debtor would malee testamentary dispositions in his favor sufficient to cover the claim. Verbal expressions of the debtor indicative merely of his intention to make a legacy in favor of the creditor, but not rising to the character of an agreement to postpone payment of the claim, does not suspend prescription. See Adams vs. Succession of Mills, 49 Ann. 775 ; Succession of Gaines, 45 Ann. 1434.</p>