Volume 11 — Teissier's Louisiana Reports

<p>Appeal from the 28th Judicial District Court, Parish of Jefferson, No. 1310, Honorable P. E. Edrington, Judge.</p>

<p>Syllabus.</p> <p>1. Certificates of stock are mere .evidences of shareholding; but the shares themselves in a nascent corporation are acquired by the fact of subscription and its acceptance.</p> <p>2. Pure questions of law touching the merits of the case are put at issue as a matter of course by an answer to the merits.</p> <p>3. Where a shareholder in a corporation is aware that the corporation, with the approval of its other shareholders, is .expending large sums in furtherance of the corporate purpose, but for reasons satisfactory to himself has refrained from complaining of such expenditures at the time, he will be taken to have yielded his consent thereto; and he cannot thereafter set up want >of authority in the corporation to make such expenditures, especially where it is a question of paying the debts so contracted and equalizing matters between himself and other shareholders similarly situated.</p>

<p>Syllabus.</p> <p>1. As between the parties to a contract it is of no consequence by what name it be called, if it set forth clearly their respective rights and obligations towards each other.</p> <p>2. As regards third persons the authority of an agent is mteasured not alone by his instructions but also by the apparent scope of his duties.</p> <p>3. An architect employed to direct the construction of a building for account of the owner acts within the apparent scope of his authority in ordering materials, etc., necessary and 'proper for constructing the building.</p>

<p>On Rehearing.</p> <p>Former decree reinstated.</p> <p>Appeal from the Civil District Court, for the Parish of Orleans, Division “E,” No. 99,884. Hon. Gr. H. Theard, Judge.</p>

<p>Syllabus.</p> <p>1. A corporation may sue in its own name, without designating any officer. In such case, the corporation appears through its attorney, a denial of whose authority must be supported by affidavit.</p> <p>2. Bending an exception of misjoinder of parties defendant, the plaintiff is at liberty to cure the alleged defect, by discontinuing the suit as to one of the two defendants.</p> <p>3. In a suit' to annul a tax sale, whether the proceeding be properly termed a petitory or a possessory action, or one for slander of title, or otherwise, the defendant has a right to introduce evidence to sustain the validity of the tax sale sought to be annulled, and under which he claims; and this is true notwithstanding the fact that such evidence might incidentally tend to impeach the title under which plaintiff holds.</p>

<p>Syllabus.</p> <p>Involves only issues of -fact.</p>

<p>Appeal from the 'Civil District Court, Parish of Orleans, No. 87,923. ' Pión. G. H. T-heard, Judge.</p>

<p>Syllabus.</p> <p>The rule as to the weight that should he given to the opinion oil the trial Judge in matters of conflicting testimony, has no application where the finding of the facts depends upon the appreciation of documentary evidence.</p>

<p>Appeal from the 'Civil District Court for the Parish of Orleans, Division “A,” No. 99,633. Hon. T. C. W. Ellis, Judge.</p>

<p>Syllabus.</p> <p>1. The officers of a corporation have an undoubted right to dispose of its assets in order to pay its debts with the proceeds.</p> <p>2. The laws of this State have always recognized as valid, and therefore lawful, any payment of a just and matured debt, in money, by an insolvent, even though the creditor knew of such insolvency.</p> <p> G. G., 1986. </p> <p>3. As an insolvent may lawfully pay a just debt, in money, at any time, it follows that the resulting prejudice, if any, to other creditors, is damnum absque injuria.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, Division “D,” No. 98,068. Hon. Porter Parker, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “ D, ” No. 101,937. Hon. Porter Parker, Judge.</p>

<p>Appeal from the Civil District Court, Parish of •Orleans, Division “D,” No. 99,988. lion. Porter Parker, Judge.</p>

<p>Appeal from the ’Civil District Court for the Parish of Orleans, Division “A,” No. 97,073. Hon. T. C. W. Ellis, Judge.</p>

<p>Syllabus.</p> <p>Questions of fact only are involved, and the record does not justify a reversal of the trial Court’s conclusions.</p>

<p>Syllabus.</p> <p>1. It is not sufficient for >one who claims a particular privilege to point out in a general way the articles on which he claims such privilege; he must make it certain that his privilege covers the very articles on which he claims it.</p> <p>2. One who claims a particular privilege on the contents of an establishment, afterwards sold by the Sheriff in different lots, on some of which he has a privilege and on others not, must point out with certainty the particular lots to which his privilege extends.</p>

<p>Appeal from the Civil District 'Court, Parish of Orleans, Division “E,” No. 100,218. Hon. G. H. Theard, Judge.</p>

<p>' 'Appeal from the Civil District Court for t'he Parish of Orleans, Division “C,” No. 101,715. Hon. E. K. Skinner, Judge.</p>

<p>Syllabus.</p> <p>1. No forfeiture can be allowed unless the right thereto be clear beyond a doubt.</p> <p>2. The word “revert” is not synonymous with “forfeit.” The latter is of broader application and may include any property whencesoever derived, the. loss of which is incurred by some fault or failure of the owner; but the word “revert” means to come back to the source from which derived, and applies to such property only as was derived from, or granted by, the one to whose benefit the reversion enures.</p>

<p>Appeal from the Civil District ''Court for the Parish of Orleans. Division ££D”. No. 101,946. Hon Porter Parker, Judge.</p>

<p>Syllabus.</p> <p>1. One may cumulate in one .petition as many causes of action as he pleases, if they tend to the same end and be not inconsistent with' each other.</p> <p>2. Mere lapse of time, shórt of a statutory prescription, and unattended by other circumstances, will not operate to bar a right of action.</p>

<p>Syllabus.</p> <p>No fraud or eollusiou being charged, an ordinary judgment creditor, claiming no privilege nor other preferential right of payment, and not alleging the insolvency of his debtor, is without right to complain that certain property of his debt- or is being seized and taken in satisfaction of the debt of a third person. Under such circumstances the debtor alone can object.-</p>

<p>Appeal from the Civil District Court, Parish of Orleans, Division E,” No. 104,350. Hon. G. H. Theard, Judge.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, Division <lB,” No. 101,626. Hon F. D. King, Judge.</p>

<p>Appeal from the First City ‘‘Court, Division “C,” No. 58,766. Hon. Henry Eenshaw, Judge.'</p>

<p>Appeal from the 28th Judicial .District Court, Parish of St. John the Baptist, No. 336. Hon. P. E. Edrington, Judge.</p>

<p>Syllabus.</p> <p>1. A description in a tax deed reading “Square 51 in the Third District of New Orleans, at Milneburg,” mentioning neither measurements nor boundaries, and referring to no plan, does not physically describe any particular property; and the fact that it is “assessed to Debergue” does not assist to indentify it as the property of “Robinson.”</p> <p>2. A defective description in a tax deed may be supplemented by reference to the title of the person assessed; but,such defective description- cannot be supplemented and amplified by reference to the title of a 'third person, with a view to identify the property sold with the property of such third person.</p>

<p>Syllabus.</p> <p>1. Parole testimony is admissible to prove that the description of a lot in an act of sale was made through error and accident and that the lot actually sold is a different one from that described in the deed.</p> <p>2. When it is clearly made to appear that through error the act of sale 'expresses a different purpose from that which the parties had agreed upon and had intended to embody therein, the Courts will so correct and reform it as to express the real object and intent of the parties.</p>

<p>Appeal from tlie Civil District Court for the Parish of Orleans, Division “ D, ” No. 102,801. Hon. Porter Parker, Judge.</p>

<p>Appeal from the Twenty-seventh Judicial District Court for the Parish of St. James, No. 2,735. Hon. Charles T. Wortham, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “D,”' No. 99,942. Hon. Porter. Parker, Judge.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, Division “D,” No. 102,242. Hon. Porter Parker, Judge.</p>

<p>Syllabus.</p> <p>The terms of a written instrument, clear and unambiguous upon its face and signed by the party sought to be charged, cannot be varied, explained or contradicted by parole evidence.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “C,” No. 97,068. Hon. E. K. Skinner, Judge.</p>

<p>Appeal from the Civil District 'Court for the Parish of Orleans, Division “A,” No. 89,582. Hon. T. C. W. Ellis, Judge;</p>

<p>Syllabus.</p> <p>1. A contract should not be construed as imposing a penalty unless clearly susceptible to such an interpretation,</p> <p>2. The penalty or forfeiture prescribed in an agreement may be modified or abated by the Court, when the principal obligation has been partly executed, except in case of a contrary agreement.</p> <p>B. C. G„ 2127.</p> <p>3. The Court may condemn for the costs a defendant who unsuccessfully questions and resists his former partner’s right to secure an accounting in a proceeding instituted for that purpose.</p>

<p>;Appeal from the Civil District Court, Parish of Orleans, Division “D,”- No. 102,272.- Hon. Porter Parker, Judge.</p>

<p>Syllabus.</p> <p>The doctrine in Reiman vs. Tasquez, and Gainnie vs. Weir, reaffirmed.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “E,” No. 103,920. Hon. G. H. Theard, Judge.</p>

<p>Syllabus.</p> <p>The Auditor’s deed issued under Act 80 of 1888 and 126 of 1896 is conclusive evidence that the property described in said deed was adjudicated to the State according to'law. ,.</p> <p>A notice of sale to'the recorded owner of the property at the date of notice is of the essenceuf the validity of a tax sale.</p>

<p>Syllabus.</p> <p>1. An appeal from a judgment in plaintiff’s favor against defendant upon the main demand, does not constitute an appeal from a separate and distinct judgment, rendered prior thereto, dismissing an intervention.</p> <p>2. The correctness of a judgment upon a mam demand from which third persons appeal must be tested upon the facts pleaded and proved prior to its rendition, and cannot be made to hinge upon an allegation, unsupported by proof, contained in an intervention.</p> <p>3. C. P., 198 applies to foreign as well as to domestic corporations ; and Act 105 of 1898, and other statutes providing for service of citation upon foreign insurance corporations, does not prescribe an exclusive but additional mode of service.</p> <p>4. A sheriff’s return, in accordance with C. P., 198, reciting that citation was served upon a foreign corporation at its office, by personal service upon its agent in this State, is presumptive evidence of such agency.</p>

<p>Syllabus.</p> <p>1. An appeal from a judgment in plaintiff’s favor against defendant upon the main demand, does not constitute an appeal from a separate and distinct judgment, rendered prior thereto, dismissing an intervention.</p> <p>2. The correctness of a judgment upon a main demand from which third persons appeal must be tested upon the facts pleaded and proved prior to its rendition, and cannot be made to hinge upon an allegation, unsupported by proof, contained in an intervention.</p> <p>3. The mandate of the Secretary of State to receive service of citation on behalf of a foreign insurance corporation is irrevocable under Act 105 of 1898. p. 142, which does not contemplate that his authority shall be affected by a withdrawal of the company from the State or by its dissolution or liquidation, but on the contrary that it shall subsist, despite these ■contingencies, “as long as any policy or other liability remains outstanding,” service on him being deemed equivalent to service upon “the principal,” and of the same effect as if the corporation “existed” in this State.</p>

<p>Syllabus.</p> <p>Remanded for further evidence.</p>

<p>Syllabus.</p> <p>The right to invoke an estoppel may be waived by a party’s .judicial declarations or by his failure to timely object to evidence.</p>

<p>Syllabus.</p> <p>"Where, in the opinion of the appellate Court, the interests'of justice will best be subserved by setting aside the judgment and remanding the case, that course will be pursued.</p>

<p>Syllabus.</p> <p>1. Act 148 of 1906 is constitutional and, is not violative of Articles 31 and 33 of the Constitution.</p> <p>2. A wholesale dealer- is one who sells by the original or unbroken package or barrel only, and to dealers for resale.</p> <p>3. A claim, for licenses becomes prescribed on the lapse of three years from the time that the licenses become due and delinquent.</p> <p>Syllabus.</p> <p>1. The State is not estopped from claiming licenses or additional licenses by failing to demand them promptly. She may sue for them until prescription shall have run against them. . - ■</p> <p>2. Act 148 of 1906 relative to licenses is not unconstitutional.'</p> <p>3. A wholesale-merchant is ene who sells by the bale, box or barrel, or by the crate, sack or original package, and he owes a license as such. The fact that he sells also by the piece, pound, or gallon, or yard, or broken package, does not take away from him the character of wholesale merchant but only superadds that of retail merchant.</p> <p>4. All licenses are prescribed by three years, not including the' license of the year in which the suit is filed.</p> <p>When a class of merchants have continuously paid the license which they believed they owed within the time prescribed by law, and they are afterwards called upon by the Tax Collector to pay another license for which they are condemned by Court they will be made to pay interest on the new demand only from the date of judicial demand.</p>

<p>Syllabus.</p> <p>When an error in the -name of the sender of a telegram suggesting ‘ ‘ that it might pay to sell a little ’ ’ cotton influences the receiver of the telegram to sell his cotton for future delivery; and the receiver the next day discovers the error and buys cotton to hedge at a higher price, the telegaph company is not liable for, the excess in price when the error in the name is only the remote cause of the loss.</p>

<p>Appeal.from the Civil District Court, for the Parish of Orleans, Division “D,” No. 100,947. Hon Porter Parker, Judge.</p>

<p>Syllabus.</p> <p>This Court on appeal having rendered a final decree amending the judgment appealed from at the cost of the appellee, has jurisdiction of an appeal from a judgment subsequently rendered' by’the trial Court- on- a rule'to fix or tax the costs under said decree.</p> <p>Syllabus.</p> <p>Involves only a matter of costs.</p>

<p>Application for Writ of Certiorari and. Prohibition.</p> <p>Appeal from the Civil District Court, for the Parish of Orleans, Division “D,” No..... Hon. Porter Parker, Judge.</p>

<p>Syllabus.</p> <p>After contracting companies have paved a street in accordance with thieir contract, and after the paving has been accepted by the proper authorities, and certificates for the same have been issued, it is too late for property-owners to resist payment of the certificates upon any ground of irregularity in the giving of the contract, or of variance with the petition of the property-owners, nr of change in the material used; all such objections should be made before the work is actually completed. ■ It would be against good conscience to allow property-holders to stand by and see contractors put down the paving without any objection on their part, and thus with their tacit consent, and after. the completion of the paving, which they know they are expected to pay, to refuse to pay for the same upon grounds they might have urged before the contractors had acted.</p> <p>The pavement is an improvement to the property which the owner cannot keep and not pay for, and thus enrich himself at the expense of another.</p> <p>A street .railroad company cannot be made to pay for paving along its tracks unless it has assumed the payment thereof.</p> <p>Creditors are entitled to recover of their debtors the cost of recording the instrument securing their claims.</p>

<p>Syllabus.</p> <p>Where a person domiciled in the State, has property permanently within its limits, but moving from place to place therein, such property should be assessed and taxed at the place where he has his domicile.</p>

<p>Syllabus.</p> <p>Every exception which is actually filed by counsel, though it may not be signed by him, must be certified by him, as required by Act 157 of 1912. Unless accompanied by such certificate no exception shall have any effect or prevent the taking of a default.</p> <p>While the Court has discretion to permit the “verification” of an exception involving matters of fact, it has none as to its “certificate.”</p> <p>It is only parties who are interested that the judgment should remain undisturbed who must be made parties to the appeal; e-r in other words parties who would be injuriously affected by a reversal of the judgment.</p> <p>Recording of a sworn statement in the Mortgage Office and filing the same with the owner are conditions precedent to the right of recovery against the owner or against the surety on the building contract. Previous decisions affirmed.</p> <p>Materialmen and others have no privilege upon the building unless they have a claim against the owner.</p> <p>The tendency of the Courts is to brush away technicalities in order to reach the merits of the ease. When pleadings are defective and not broad enough to admit evidence or to authorize judgment, amendments will be permitted in furtherance of justice.</p> <p>A cause will be remanded when justice will be thereby subserved.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, Division “E,” No. 103,329. Pión. G. PI. Theard, Judge.</p>

<p>Syllabus.</p> <p>The State has a personal claim against the individual for the payment of takes in addition to its privileges upon the property assessed.</p> <p>All the property of the individual is liable for the payment of all the taxes assessed against his personal property, the Tax Collector is not limited to a seizure and sale of the personal property assessed 5 but when such property is not produced on demand, be may seize and sell any other property of the delinquent tax debtor.</p> <p>Commercial partners are bound in solido for the debts of the partnership. "When a commercial partnership fails to pay the taxes assessed against the personal property of the partnership, and fails to produce the property assessed, or other property sufficient to pay the tax, the Tax Collector may seize and sell any ether property of the partnership, or any property of any of the members of the partnership to pay and satisfy said tax. The members of a partnership cannot take advantage of their own wrong by concealing, parting with, or disposing of the property of the partnership to evade the payment -of the tax.</p> <p>Article 304 of the Code of Practice does not apply to an injunction against the collection of a tax.</p>

<p>Appeal from the Civil District Court, for the Parish of Orleans, Division “C,” No. 100,504. Hon. E. K. Skinner, Judge.</p>

<p>Appeal from the 27th Judicial District Court, Parish of St. James, No. 2813, Hon. Charles T. Wortham, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of ' Orleans, Division “C,” No. 101,837. Hon. E. K. Skinner, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “D,” No. 101,802. Hon. Porter Parker, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “D,” No. 101,913. Hon. Porter Parker, Judge.</p>

<p>Syllabus.</p> <p>1. Corporations cannot act judicially “in propria persona,” and a pleading filed on behalf of a corporation, is defective, ’ when it names neither officer nor agent, nor counsel through whom the appearance is made.’</p> <p>2. In judicial proceedings, when names are required, initials do not supply their place; they designate no particular person.</p>

<p>Appeal from, the Civil District Court for the Parish of Orleans, Division “E,” No. 104,298. Hon. G. H. Theard, Judge.</p>

<p>Appeal from the 28th Judicial District Court, for the Parish of Jefferson, No. 1148. Hon. P. E. Edrington, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division ‘ ‘ C. ” Hon. E. K. Skinner, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “B’’ No. 101,488. Hon. P. D. King, Judge.</p>

<p>Appeal from the Civil Distriet Court for the Parish of Orleans, Division “D,” No, 91,969. Hon. Porter Parker, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “A,” No. 103,798. Hon. T. 'C. W. Ellis, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “E,” No. 102,590. Hon. G-. H. Theard, Judge.</p>

<p>Syllabus.</p> <p>1. Where a co-owner has continuously enjoyed, as owner-, the separate and uninterrupted possession' of the property for' more than thirty years, he acquires full ownership by pre-, scription against his co-owners and can, upon this ground, successfully oppose their suit for a partition.</p> <p>2. The testimony of a party in his own favor to establish a stale claim against a person since dead is of the weakest character and should be receivel with the greatest caution. And when it consists merely of an alleged declaration by the decedent, a vague and indefinite acknowledgment wholly uncorroborated, it should be disregarded.</p>

<p>Syllabus.</p> <p>Property purchased during the marriage forms part of the community property, whether the title be taken in the name of the husband or of the wife or of both. But this presumption may be rebutted.</p> <p>When the act of sale to the wife declares that the price was paid with money of the wife, and when the husband joins in that declaration, and when the wife swears that she paid both the cash and the credit portions with the money donated to her, and when her testimony is corroborated by her own checks corresponding in amount with the capital and interest of the credit portions, the presumption of the law will have-been rebutted' and the property declared to be the separate property of the wife.</p>

<p>Syllabus.</p> <p>A city merchant who writes to his country salesman to attend to a shipment of rice which the consignee has refused to receive, thereby authorizes his salesman to receive the rice from the railroad and to sell and deliver it to a third party, when such is the usual course followed by the merchant in other cases and when the salesman is instructed so to do by the merchant.</p>

<p>Syllabus.</p> <p>1. The owner who has procured a solvent surety as required by Act 134 of 1906 and in whose hands no funds are arrested by the service of attested accounts, cannot be held liable for the claims of those who furnish material or labor upon the work. ■</p> <p>2. The service of a sworn statement of account upon .the husband of the owner, with the wife’s knowledge and in her presence, and at the house erected under the building con tract, in controversy, and which at the time of such service constitutes their residence or domicile, exhibits a fulfillment of the requirements of Act 134 of 1906 with reference to the “filing” with .the owner of such swiorn statements of account.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “A,” No. 103,138. Hon. T. C. W. Ellis, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “C,” No. 95,471. Hon. E. K. Skinner, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “C,” No. 107,117. Hon E. K. Skinner, Judge.-</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “B,” No. 107,512. Hon. F. D. King, Judge.</p>

<p>Appeal from the Civil District'Court for the Parish of Orleans, Division “G,” No. 104,725. Hon. E. K. Skinner, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “D,’ ’No. 106,623. Hon. Porter Parker, Judge.</p>

<p>Syllabus.</p> <p>No speculative damages can be recovered against a vendor who, in good faith, sells a property which he believes he owns but which, in fact, does not belong .to him, and to which he cannot give title.</p>

<p>Syllabus.</p> <p>Articles 836 and 837, R. O. C.. relative to fixing the limits of lands, must be read together and mean nothing more than that the wort of the surveyor shall not be final, but subject to review by the Courts; and accordingly he shall not set up any permanent bounds until the differences between the parties have been passed upon by these tribunals.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “D,” No. 97,231. Hon. Porter Parker, Judge.</p>

<p>Syllabus.</p> <p>In the absence of exception thereto on the part of his vendor, the plaintiff in a petitory action may call him in warranty and the defendant is Avithout right to object.</p>

<p>Appeal from the 28th Judicial District Court, Parish of Jefferson, No. 1399. Hon. P. E. Edrington, Judge.</p>

<p>Appeal from the First City Court of New Orleans, Division “A,” No. 61,790. Hon. Wynne Rogers, Judge.</p>

<p>Syllabus.</p> <p>A stipulation between a telegraph company and the sender of the message, that the company shall not be liable for mistakes in the transmission of a message beyond the sum received for sending it, unless the sender orders it to be iv~ peated by being telegraphed back to the originating office for comparison and pays half that sum in addition, is reasonable and valid.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “D,” No. 101,089. Hon. Porter Parker, Judge. . .</p>

<p>Appeal from the, 28th Judicial District Court, for the Parish of St. John the Baptist.' Hou. P. E. Edrington, Judge.</p>

<p>Syllabus.'</p> <p>1. The failure of the landlord to repair is not cause for the annullment of the lease. The remedy of the lessee is to call upon the landlord to make the repairs, and if he fails to do so, to make them himself at the landlord’s expense.</p> <p>2. "While R». G. G., 2686, provides that a lessee desiring to terminate the lease must notify his landlord in writing at least 15 days before the expiration of the month which has begun to run, still the actual abandonment of the property by the lessee without the landlord’s consent but with the latter’s full knowledge, is the equivalent of such notice and is as effective in terminating the lease.</p>

<p>Appeal from tibe Civil District Court'for'the Parish of Orleans, Division “D,” No. 99,073. Hon.'Porter -Parker, Judge.</p>

<p>On Application for Writs of Prohibition and Mandamus.</p>

<p>Application for Writ of Habeas Corpus.</p>

<p>Syllabus.</p> <p>Every answer in an application for insurance which is made part of the policy, and every statement of fact forming the basis of it, and are declared to be warranties, become such, and the truth of them is a condition precedent to the validity of the policy, whether they are material or not.</p> <p>Any statement of fact within the knowledge of the applicant calculated- to influence the insurer to accept the risk is a material representation the falsity of which avoids the policy.</p> <p>When the applicant for insurance was asked what relation the beneficiary bore to him, and he -answered ' ‘ wife, ’ ’ while the truth was that she was his concubine; and when th# testimony shows that the insurer would not have issued a policy in favor of a concubine, the policy is null.</p>

<p>Syllabus.</p> <p>Involves only issues of fact.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “E,” No. 105,932. Hon. Gr. H. Theard, Judge.</p>

<p>Appeal from the /Civil District Court for the Parish of Orleans, Division “C,” No. 101,372. Hon. E. K. Skinner, Judge.</p>

<p>Syllabus.</p> <p>The city had no authority to sell property for taxes due to it while the property stood in the name of the State as adjudicated in a sale for State taxes.</p> <p>Prescription does not run against the State.</p> <p>There was no law in 1909, authorizing the Auditor to grant a redemption certificate after the lapse of one year from the registry of the- act of sale in the Conveyance Office.</p> <p>The unauthorized act of one of its officers cannot estop the State.</p> <p>The State 'does not renounce title by the fact that after an adjudication to itself for taxes the assessors have continued to assess the property in the name of the former owner and the collector has received payment of taxes so assessed, when the owner was not in actual possession of the property at the time of the tax sale and the continued assessment and payment.</p> <p>An adjudieatee cannot be made to accept a title suggestive of litigation.</p>

<p>On Motion to Dismiss.</p> <p>Appeal from the Civil District Court for the Parish of Orleans, Division “D,” No. 103,686. Hon Porter Parker, Judge.'</p>

<p>Appeal from tihe Civil District Court for the Parish of Orleans, Division “B,” No. 102,196. Hon. F. D. King, Judge.</p>

<p>Syllabus.</p> <p>In order to redeem property sold for taxes it .is not enough for the owner to tender the amount due to the purchaser, he must also deposit it with the Tax Collector.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “D,” No. 94,293. Hon. Porter Parker, Judge.</p>

<p>Appeal from tibe Civil District Court for tbe Parish of Orleans, Division “D,” No. 102,884. Hon. Porter Parker, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “B,” No. 99,059. Hon. F. D. King, Judge.</p>

<p>Appeal from t)he Civil District Court for the Parish of Orleans, Division “D,” No. 103,198. Hon. Porter Par-' leer, Judge</p>

<p>Syllabus.</p> <p>1. An ordinance by a municipal corporation violative of the provisions of a legislative act, is void.</p> <p>2. Where all the provisions of an ordinance are interdependent, the invalidity of any one part carries with it the invalidity of the whole. ; • ,55</p> <p>3. Where the provisions of a .contract between a municipal corporation and its stockholders, are embedded in a legislative act and that legislative act itself is embedded in the State Constitution, the one and the other (constitutional provision and legislative act,) must first be undone before the validity of such provisions can be questioned by the municipality as having been ultra vires.</p> <p>4. Where a Statute requires that the members of a municipal board shall be appointed by the Mayor, with the consent of the Council, a municipal ordinance creating an ex officio member of such .board is null and- void.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “B,” No. 104,343. Hon. F. D. King, Judge.</p>

<p>Appeal from tibe Civil District Court for the Parish of Orleans, Division “D,” No. 102,507. Hon. Porter Parker, Judge.</p>

<p>Syllabus.</p> <p>1. Since the fact of employment is one peculiarly within the knowledge of the employer, evidence that a person was in charge of property of another, apparently performing the usual duties of a servant or employee, furnishes prima facie proof in favor of a third person and against the alleged employer that he stood in such relation.</p> <p>2. In the absence of evidence to the contrary, negligence may be inferred from the happening of the act causing the injury, where the act is one which in the ordinary course of things-would not have resulted in injury if due care had been exercised in its performance.</p>

<p>Syllabus.</p> <p>In fixing the value of an attorney’s services, those renderel out of Court are to be taken into consideration quite as much as those rendered in open Court.</p>

<p>Appeal from the Civil District Court, for the Parish of Orleans, Division “C,” No. 102,809. Hon. E. K. Skinner, Judge.</p>

<p>Syllabus.</p> <p>Where one party to a contract insists upon carrying it out in an unlawful manner, it is an active breach of the contract, entitling the other party to sue at once for the profits he would have earned thereunder.</p>

<p>Appeal from the Civil District Court, for the .Parish of Orleans, Division “B,” No. 107,512. Hon. F. D. King, Judge.</p>

<p>Appeal from the Civil District Court, for the Parish of Orleans, Division “B,” No. 108,212. Hon. F. D. King, Judge.</p>

<p>Appeal' from the Civil District Court, for the Parish of Orleans, Division “A,” No. 97,630. Hon. T. C. W. Ellis, Judge.</p>

<p>Syllabus.</p> <p>The depositary cannot withhold the' thing deposited for a debt due on account, distinct from the deposit.</p>

<p>Appealed from the 28tb Judicial District Court for the Parish of Jefferson, No. 1303. Hon. P. E. Edrington, Judge. Transferred from Supreme Court No. 20,303.</p>

<p>Appeal from the Civil District Court, for the Parish of Orleans, Division “A,” No. 101,817. Hon. T. C. W. Ellis, Judge.</p>