Volume 2 — McGloin's Louisiana Court of Appeals Reports (1881–1884)

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

<p>I. In a suit for damages for wrongful issuanoe of an injunction, the judgment dissolving the same is sufficient proof of tiie illegality of the writ.</p> <p>8, It is difficult to establish with preoislon the amount of loss suffered by reason of the wrongful issuanoe of an injunction, and the oourts, in assessing damages, will often approximate.</p> <p>3. While the law fnvors an appeal to the courts for the enforcement of legal lights, yet those who invoke its severe writs, injunction, etc., do so at their peril.</p> <p>4. In a suit for damages for issuanoe of an illegal Injunction, while the oourt will not question the original judgment dissolving the same, it may investigate the issues of such former cause, with a view- to ascertaining whether the plaintiff in the writ complained of had reasonable grounds for supposing himself entitled to the writ.</p> <p>6.A mere mark or symbol which can be used by one with as muoh propriety as another, oannot become a trade-mark.</p> <p>6. The mark must denote the origin or ownership of the goods, and not the kind or quality. Letters or figures applied to merchandise by a manufacturer for the purpose of denotiug its quality only, oannot be appropriated by him to his ex-, elusive use as a trade-mark.</p> <p>7. Tiie Recordation in the Patent Offioe of a pretended trade-mark confers no additional value to the same.</p> <p>8. In an action upon an injunction bond, the plaintiff may recover a reasonable amount as attorney’s fees paid or incurred in procuring a dissolution of the injunction.</p>

<p>1. Bills of lading are representatives of tlie property described by them, or “ symbolical ” thereof, whereas a promissory note is an unqualified promise to pay a certain sum at a certain time.</p> <p>9. A bill of lading, therefore, like the property it represents, may be transferred independent of the question of negotiability.</p> <p>9.Bills of lading are quaai-negoliable, and henos transferrable without endorsement.</p> <p>4. The law merchant is a part of the law of Louisiana; and it is such, as interpreted by the courts of other States, except where modified by our own statutes.</p> <p>5. The Aot of 1868, No. 150, p, 193, had for its object to sanotion by statute transfers of bills of lading, to prevent frauds iu connection therewith aud. to fhoilitate commercial transactions relating to bills of that character.</p> <p>6. Neither the provisions of that statute, however, nor those of La. Bevlsed Statutes, Seotion 2482, transform bills of lading, or other similar documents, into promissory notes or commercial bills of any kind.</p> <p>7. A bill of lading is not plaoed by the Louisiana law upon the same footing as ordinary commercial paper; aud the endorsement of such a bill does not briug into operation the general laws and usages which prevail as between eudbrsers and endorsees of promissory notes or bills of exchange.</p> <p>8. Where a bill.of lading, unendorsed, Is attached to a draft as a security for the latter, and the draft is eudorsed to another “ for collection,” such endorsement of the draft, accompanied by delivery of the bill of ladlug, empowers the endorsee of the draft to enforce the delivery of the property constituting the shipment.</p> <p>9. The commercial laws or usages making commercial paper negotiable, and those which exolude equities between parties thereto, are not identical; and the mere extension of the laws and usages making, commercial paper negotiable, by endorsement, to bills of lading or similar documents, docs uot extend to those last named, the rules and laws of commercial estoppel as between parties.</p> <p>10. Where, aá iu this ease, it is attempted to hold the one who collected the draft attaohed to a forged bill of lading, the latter being a security, as one who has reoelved money from another who has paid iu error, it is contradictory to contend also that the recipient is liable upon the bill of lading as an endorser or guarantor of the said bill of lading.</p> <p>11. If the contract e+ideneed by the draft be null for fraud, error or deceit, the cause of action on the part of the injured one is solely against the fraudulent drawer, for the bona flit holder oí such commercial paper is not to be affeeted by the frauds which led to the contract between the original parties.</p> <p>12. In a case where one party draws upou another, annexing as a security a fraudulent or forged bill of lading, aud negotiates the draft to an innocent third person, the purchaser of the draft is not held to know that the acceptance was solely upon the credit of the bill of lading.</p> <p>13. The unqualified acceptance or payment by the drawee, in such a oase, constitutes, against the drawee, a declaration of right in the drawer to put out the draft, and leaves him no right to object to the holder that he was negligent in the matter of accepting the bill of lading,</p> <p>14. Where the bill of lading in sucha case stipulates for the delivery of property to the order of the one who bas negotiated and paid for the draft to which it is attached, and the holder of the draft and bill of lading places upon the latter the following inscription, “Pay to the State National Bank, N. O., or order, for collection" — holi, this did not transfer title to the State National Bank, or authorize It to endorse said bill of lading to anyone else In the uame of or for the original negotiator of the draft.</p> <p>15. The authority conferred by auoh an Inscription was simply to euforee the bill of lading at the port of delivery for the benefit of the owner, in ease the draft annexed was not paid-</p> <p>la. Nor In such a ease as this could the mere stamping on tlio book of the bill of lading, upon payment of the draft attached, of the words, “ State National Bank, New Orleans, Puld," be considered In any event as an endorsement.</p>

<p>1. Where a mortgage creditor has sold, at public sale, and bought in the sole property of an estate, retaining all, or a part of the price upon his mortgage claim, the widow ami heirs, claiming homestead, may pursue such purchaser, so long ns their claim is not barred by prescription, or otherwise abrogated.</p> <p>2. The Article of the Civil Code. 1188, regulating the opening of dividends, is not applicable to such a oase.</p> <p>3. When the widow and minors oeoupy property of the estate, its rental value, duriug such occupancy, must be deducted from the homestead. 26 La. An. 539; 29 La. An. 412.</p> <p>4. So, also, the value of household furniture appropriated to their use. 26 La. An. 539 ; 28 La. An. 638.</p> <p>5. The admissibility of the Inventory of an estate, ns against a third person, questioned.</p> <p>6. The widow and minors have not an untramelled choice as to the particular fund or property out of which they will satisfy their claim. They are restricted to (he proceeds of unencumbered property, where there is enough of such, aud.if not, must attack the junior mortgages, before seeking payment at th8 expense of older ones.</p> <p>7. When seeking, as in this case, to appropriate all, or a portion of the proceeds of property specially mortgaged, the burthen is upon the widow and heirs to show the absence of other available property, not encumbered, or affected only by younger mortgages.</p> <p>S. Where a party withholds documents, or evidence, which it was his duty to have furnished, the presumption is that, if produced, they would have been unfavorable to hiui.</p> <p>9. Where there are other causes justifying suspicion, a long delay in bringing suit may itself be considered as a suspicious circumstance.</p>

<p>Appeal from the Civil District Court. Rightorj J.</p>

<p>Appeal from the Civil District Coart. Rightor, J.</p>

<p>1. Where property has been Bold under order of court, and a rule has been taken to erase a mortgage affecting the same, the question of appellate jurisdiction is determined by the amount of the mortgage, and not by the value of the property.</p> <p>2. Where a community has beeD dissolved by the death of the wife, the surviving husband remains personally bound for the commuuity debts; and the community creditors may have recourse against him and even levy upon his individual property.</p> <p>3. The surviving husband, therefore, retains full control of the community property, and settles its affairs,</p> <p>4. In such a case, until the commuuity debts are paid, the heirs of the deceased wife have no absolute interest in the community property; no interest which can be legally recognized.</p> <p>5. The community creditor, in such a case, may proceed against the community property without regard to the death of the wife.</p> <p>6. Hence, the court having cognizance of the wife’s succession cannot force such a creditor to release such property from a seizure lie has caused to be levied, nor can it order tho erasure of such creditor’s judicial mortgage.</p>

<p> Appeal from the Twentieth Judicial District Court of the Parish of Assumption. Knobloch, J. </p>

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

<p>1. Where a party applying for insurance upon a Flour and Grist Mill and Cotton Gin. lias in his answers declared that the lights used were candles in a lantern and these rarely, and that the premises were used ouly.in the daytime; and where also the policy stipulates that if the property insured be a manufacturing establishment, to run it at night, during extra time, or without a special, endorsed agreement to that effect, vacates the policy — held, all of this constitutes a warranty.</p> <p>2. Under such a policy, the insurer is not liable for a loss oeeuriug in the night time (luring the course of the unauthorized running of the Gin.</p>

<p>1. Defendant, who sets up a rcconventional demand against tlie action of a non-.resident suitor, under tlie provision of Article 375 of the Code of Practice, and which demand is not connected with or incidental to the main cause of action, becomes, as to suoh demand, a plaintiff, and the same strict rules of practice apply to him as to a plaintiff in any ordinary action.</p> <p>2. It matters not the name parties may give to their pleadings. Courts will look to the substance thereof, and determiue accordingly.</p> <p>3. When, under the guise of a rcconventional demand, a plea in compensation is clearly disclosed, and an attempt is made to introduce proof to establish the same, and the tendency of whioh is to subject the liquidated demand of the plaintiff to the unliquidated claim set up by defendant, the proof, not being of equal dignity, will be refused.</p> <p>4. The rule is without exception, that an unliquidated claim cannot be pleaded in compensation against a liquidated demand.</p>

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

<p>1. Litigants may, by implication as well as by expression, Waive particular issues in a cause.</p> <p>2. Whore a plaintiff expressly alleges that the defendant firm is commercial, and that its members are bound soUdatily, and the answer has no express denial of this fact; where, also, the judgment below was in accordance with the allegation, and the defendants moving in the court a qua for a new trial make no complaint upon this score, and where, in argument before this Court, oral and. printed, no objection is made to this feature of the judgment; held, that the issue will be considered waived, and this Court will not consider it upon application for a rehearing.</p> <p>3. Upon questions of fact, this Conrt will not lightly disturb the finding of the. Judge a quo.</p> <p>4 There.is nothing in the contraot of mandate which makes it essentially gratuitous.</p> <p>5. There is nothing in La. Civil Code, Art. 2991, which requires that the agreement which shall render a contract of agency not gratuitous shall be express.</p> <p>6. Such an agreement, therefore, may be implied from the circumstances of the oase, from actions, and even from the silence or inaction of parties.</p> <p>7. When, therefore, one party performs for another, services for which it is the universal custom to charge nud reoeive compensation at rates fixed by usage, an agreemeut for such compensation, in default of expression to the contrary, will be implied.</p>

<p>1. The fact that counsel for a party was not aware that the ease had been set for trial, wil’ not entitle auob party to relief from the effect» of a surprise and an ex parte trial, unless it be shown that the counsel could not, by the exertion of reasonable diligence, have ascertained the condition of the ease and been present at the trial.</p> <p>2. In the absence of the evidence or a statement of facts, it will be presumed that sufficient evidence was offered below.</p> <p>3. Under the reconventional demand for damage», in an injunction suit, the defendant may insist upon the trial of the case, and demand his interest aud damages, notwithstanding the abseude of the plaintiff.</p>

<p>1. Under Art. 176. Const, of 1879, no mortgage or privilege upon immovable property (not specially excepted therein) can affect third persons, unless recorded or registered in the parish where the property is situated, and as provided by law.</p> <p>2. This Article of the Constitution brings within the scope of its principal clause-both tax mortgages and tax privileges, hut among the exceptions it enumerates only tax privileges, and not tax mortgages.</p> <p>3. Therefore, tax mortgages are not excepted from the absolute necessity orregistration, in order to bind third parties, and they do not so bind unless thus recorded.</p> <p>4. Art. 176, by its language, fixes upou the registration laws then in operation¿ and permits ouly such mortgages and privileges (not for taxes) as have been registered in accordance with the then existing laws to affect immovables to the prejudice of third persons</p> <p>5. Where au inscription in the mortgage office mentious simply the tax mortgage, it will uot be recognized as preserving or concerning in any manner the tax privilege.</p> <p>6. Under the general la.ws existing in 1879, a mortgage, tax or other, perempts within ten years from the date of the first inscription,' if it be not re-lnaoribed.</p> <p>7. It is made by law the ministerial duty of the Recorders of Mortgages to erase from the books of their respective offices all perempted mortgages.</p> <p>8. Being such a merely ministerial duty, the Recorder of Mortgages may be proceeded against by mandamus to erase perempted tax mortgages, even where the State is concerned.</p> <p>9. The mortgage is simply an accessory right. It may fall, without carrying with it the principal obligation.</p> <p>10. The lapsing of a mortgage for failure to re-inseribe does not présent, strictly speaking, a question of prescription.</p>

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

<p>Appeal from the Civil District Court Monroe, J.</p>

<p>1. In a sale of machinery, or other articles of great weight, manual delivery is not contemplated or possible, and hence, is not in law required'.</p> <p>2. Where property is in the possession of a joint, owner, and his co-owner has alienated, the acceptance or recognition, by the co-owner iu possession, of the title of the acquirer, completes delivery.</p> <p>3. La. C. C. Art. 468, making immovable by destination things placed by the owner upon a tract of laud, for its service or improvement, and also movables which may be similarly attached to the tenement or building, applies only when the improvements, etc., are thus added or attached by the owner, and not when it is merely a tenant who does it.</p> <p>4. Where a tenant-bos made such additions to the soil or building, the owner has only the right, as to such improvements, etc., of compelling him who put them up, or on, to remove, or to retain them as his own, upon paying to the tenant, costs of materials and workmanship.</p> <p>5. In suck a case, until the owner elects to retain, the improvements, etc., remain the property of him who put them up, or on, such ownership, however, remaining subject to the right of the owner of 'the realty, as given by law.</p> <p>6. The conferring, therefore, by destination, of the character of an immovable upon improvements placed by a tenant upon realty belonging to the lessee, depends solely upon the volition of the lessor.</p> <p>7. Nor does this change in character take place until the lessor has exorcised his choice under the law.</p>

<p> Appeal from, the Civil District Court, Division E. Lazarus, J. </p>

<p> Appeal from, the Civil District Court, Division E. Lazarus, J. </p>

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

<p>1. Where a statute purports in its title to “fix the salaries of all deputies and employees to be paid out of the judicial expense fund; ” and, as a fact, such statute does not so fix such salaries, but merely attempts to make per centum reductions upon salaries as fixed already in precediug sootious, there is a violation of Art. 29 of the Constitution of this State, requiring every statute to express Us oiyect in the title.</p> <p>2. Where a statute, purporting to thus fix particular salaries, merely makes a per centum reduction upon salaries already fixed by preceding legislation, to which preceding legislation reference must still be made for the purpose of ascertaining the amounts of such salaries; held, such later statute is really an act amending the former ones, and hence, Art. 30 of the Constitution is violated; that Article prohibiting the amendment of statutes by mere reference to their titles, and requiring, in such cases, that the statute to be affected be re-enacted and published at length.</p> <p>3. Act No. 108 of 1882, is, for the reasons given, unconstitutional, null and void.</p> <p>4. It being the duty of the Judges of this Court to approve the warrants or vouobers of its officers, that duty requires of them to accord to such officers all that is lawfully theirs. The Judges of this Court must therefore determine for themselves what is lawfully due such officers, and to approve accordingly.</p>

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

<p>1. Where a contract, complained of as in frand of creditors, has some reality, the creditor complaining cannot ignore the same and seize the property, as though never alienated.</p> <p>2. The only remedy of the creditor in such a oase is the direct, revocatory action.</p> <p>3. Where, however, the transfer or contract impeached is a mere simulation, creditors may ignore it, and levy at once upon the property sought to he affected.</p>

<p>Appeal from the Civil District Courts Division D. Rightor, J.</p>

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

<p> Appeal from, the Civil District Court, Division A. Tissot, J. </p>

<p> Appeal from District Court, Parish of Rapides </p>

<p>1. Where a purchaser, evicted, asks relief against his warrantor, held, that he can recover from such warrantor only:</p> <p>1. Restitution of the price (originally paid by the evicted one).</p> <p>2. The amount of fruits and revenues, if these have been recovered from him with the property.</p> <p>3. The costs of suit in warranty, or of that brought by the original buyer.</p> <p>4. The damages suffered, if any, besides the price he has paid.</p> <p>2. The party evicted cannot recover from his warrantor any sum, as damages, calculated upon the increased value of the property.</p> <p>3. Neither can he recover counsel fees paid.</p> <p>4. Where a universal legatee sells property belonging to the succession which comes to him, he thereby accepts.</p>

<p>Appeal from the Civil .District Court, Parish of Orleans> Division E. Lazarus, J.</p>

<p>Appeal from the District Court of the Thirteenth Judicial District, Parish of St. Landry. Hudspeth, J.</p>

<p>1. Where property is seized under conservatory writ and bonded, it returns to the custody of the defendant in the same condition as it was before seizure.</p> <p>2. Therefore, privileges existing "upon it, before the seizure, are not affected.</p> <p>3. It is the same with regard to the very privilege to secure which the writ issued; after judgment, the privileged creditor may, notwithstanding a release upon bond, subject the property to his execution.</p> <p>4. Pending a revocatory action to set aside a fraudulent sale, the fraudulent vendee cannot lawfully dispose of the property affected. La. C. C. 2453.</p> <p>5. Where such an action was accompanied by an attachment, and the property affected, being seized, was released upon bond, the bonding does not remove the prohibition against disposition of the property, pending the suit; and, succeeding in his suit, the attacking creditor may ignore alienations, and pursue the property into third hands.</p>

<p> Appeal from the Parish of St. Landry. Hudspeth, J. </p>

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

<p>1. Where, the evidence in a cause is not brought up, and the record contains no statement of facts, or bill of exception, no assignment of errors, the appeal will be dismissed.</p> <p>3. Where, however, in such a case, the appellee has filed an answer to the appeal, praying for relief for some matter patent, the appeal will stand for the purpose of relieving him, if entitled thereto.</p> <p>3. There is no law authorizing a Judge a quo to divide the costs between a plaintiff and a defendant. If the plaintiff succeeds, even partially, he is entitled to his costs.</p>

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

<p>1. Upon an appeal from a judgment disposing of a rule by an adjudicatee, at sheriff’s sale, to secure a deed, all the documents, etc., in the record, are not to he considered hy this Court; only those specially offered and accepted upon the trial of such rule can ho noticed.</p> <p>2. Where one claimB title to property, hy virtue of a sheriff’s adjudication, to make out his case, he must exhibit in evidence the judgment, writ and sheriff’s return.</p> <p>3. The sheriff has authority only to adjudicate absolutely, or, in proper case, to decline to so do: he cannot make a conditional, or contingent adjudication.</p>

<p>1. Tin's Court will follow the jurisprudence!, as fixed and established by the Supreme Court of this State.</p> <p>2. Whore A endorses in blank a promissory note, drawn by B to the order of C, parol or other evidence, aliunde, is admissible to show actual intention— whether A signed as endorser, or surety.</p> <p>3. Under the authorities in this Stato, iu such a case, in the absence of explanatory evidence, the contract will be presumod one of surety.</p> <p>4. Where, therefore, proof was not administered showing that a contract of endorsement was intended, A was held as surety; and failure to protest and notify did not release him.</p>

<p>Appeal from, Civil District Court, Division A. Tissot, J.</p>

<p>1. Where one creditor of a particular debtor sues another creditor of the same debtor, alleging that the former possessed himself unlawfully, and against the debtor'8protest, of the goods of said debtor, rendering it impossible for the latter to pay the suing creditor’s claim, held:</p> <p>a. Such an action is not in the nature of a revocatory action.</p> <p>b. Even if such a demand could be viewed as revocatory, it could not lie without an allegation of the liquidation by preceding judgment of the complaining creditor’s debt, or without making suoh debtor party to the iustant suit, for the purpose of suoh liquidating.</p> <p>c. Until a debtor is put into insolvency, ho controls his own property; the cause of action, therefore, upon the factB stated, resides solely in the debtor, directly injured, and not in any of the remainiug creditors.</p> <p>d. The proposition last stated applies, even where the complaining creditor alleges that the wrong-doer has thus possessed himself of the very property which formed the consideration of the debt, which such complainant is seeking to enforce.</p> <p>e. The only remedy of a complaining creditor, in the ease last supposed, would bo to enforce his vendor’s privilege, if existing1, and in an action to which the debtor was made party.</p> <p>2. No cause of action is vested in any one particular creditor.</p> <p>3. Where A, contemplating selling to B, applies to C for information as to the solvency of said B, and C answered “ he was good aud honest;’’ such answer does not make of C a guarantor of the debt resulting.</p> <p>4. No one can' be compelled to respond, when applied to for information of this kind; but if he does speak, he must do so houestly. He is not however, held to extraordinary care or diligence in the matter of investigating, or in the explanation of his meaning.</p> <p>5. It is, in such case, only necessary that he should speak honestly; he can be held only for fraud in the giving of his answers, and not for mere errors of judgment.</p>

<p>1. Under La. C. C. Art. 2696, the lessor is responsible to the lessee for damages occasioned by a vice or defect of the thing leased, whether existing at the time of the execution of the lease, or arising since; and, whether known to the lessor at the time of entering upon the contract, or not. — provided only they did not arise from the fault of the lessee.</p> <p>2. The judgment, however, in such case, in favor of the lessee, should be for no more than bare indemnity, for actual loss.</p>

<p>1. Where tlio same individual is administrator of a succession, aud tutor of the minors interested therein, he is bound, by bis obligation as tutor, to accord to such minors, in the succession, the rights and the rank to which they are entitled.</p> <p>2. In a concursas, between conflicting creditors, over the account of administration, in such a case, the minors are not lawfully represented by the administrator and tutor; and the judgment, under sueh circumstances, is not binding upon the minors, in favor of the said tutor.</p> <p>3. In a proceeding, upon the part of such minor-, against such tutor, the judgment upon his account as administrator, as above recited, fixing rank among privileged creditors to the detriment of the minors’ homestead, aud his disbursements accordingly, will afford no protection to the tutor.</p>

<p> Appeal from Civil District Court, Division C. Monroe, J. </p>

<p>1. The fact that money has been borrowed, even though from a non-resident, constitutes no defence against its assessment and taxation, in the hands of him who has possession of it.</p> <p>2. The tax debtor cannot demand that the aggregate of his debts be deductod from the total of his assets, and restrict his assessment to the balance remaining.</p>

<p> Appeal from Civil District Court, Division C. Monroe,. J. </p>

<p>1. Where a party files an assignment of errors, iu a ease coming up on statement of facts, this Court will confine itself exclusively to the errors particularly assigned.</p> <p>2. A statement of facts, in a case coming to this Court on law alone, should he a statement of the ultimate facts or propositions which the evidence was intended to establish, and not a mere resumé of the evidence given below. It must be sufficient in itself, without inferences, or balancing of testimony. Without these qualities, It is not a statement to be here acted upon.</p> <p>3. Where the Jndge finds what he regards as the ultimate facts of a ease, appellant cannot assign as error that there were other or different facts established; nor can the assignment proceed upon the assumption that there were such further or different facts.</p> <p>4. An assignment must fully and plainly state the error complained of. Nothing can be assigned which depends upon the facts of the case, or which might have been cured below by legal evidence upon the trial.</p>

<p>Appeal from Civil District Court, Division E. Lazarus, J.</p>

<p> Appeal from Civil District Court, Division A. Tissot, J. </p>

<p>1. The surety upon a devolutive appeal bond secares the appellee against costs for which the latter is or may become liable; it does not extend to costs which, under the Stamp Law, must be paid by the appellant.</p> <p>2. The costs of transcript must bo paid at the time of appeal' by the appellant, mul the costs of the clerk of the Supreme Court must be covered by cash deposit, or by special bond. Such costs, therefore, are not covered by the bond in a devolutive appeal.</p> <p>y. The surety upon such a bond, who has paid costs of the character last described, is not entitled to a credit, for the amount of such payments, when sued upon his bond.</p>

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

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

<p>1. Where, within a reasonable delay, the party contemplating an appeal, applies to the Judge a quo for a statement of facts (opposing couusel having refused to co-operate), and the said Judge declares himself unable to furnish such statement, by reason of having forgotten the facts, the cause will be remanded.</p> <p>2. Where, however, the delay allowed to elapse between the rendition of the judgment and the application for sue,b statement is so long that the Judge might reasonably be expected to forget the facts, the party thus delaying will be held responsible, and the appeal will he dismissed.</p> <p>3. No question, or issue, dependent entirely or in part upon the evidence, taken below, but not brought up in original, or by statement, can be presented by way of assignment of error.</p>

<p> Appeal from Civil District Court, Division E. Voorhies, J. </p>

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

<p>1. Assessments are presumed correct until the contrary be clearly shown.</p> <p>2. In assessing stock, in jtn incorporated company, au assessment fixing- as its value, the average of market quotations of such stock, tor and during the rirsn three months of the year, is fair and will be upheld.</p> <p>3. Where a witness has substantially testified to all the facts stated in a certain memorandum iu his possession, and, subsequently, the memorandum itself i& offered and received over objection — held, the question is not of sufficient practical interest to merit review.</p>

<p>Act 136 of 1880 embodying in its caption a system for payment of fees due certain designated officers is not unconstitutional so far as it relates to this Court because it fails to name specifically in its title the Clerk of the Court of Appeal, where it does name the Clerk of the Civil District Court who by Article 137 of the Constitution is made ex officio Clerk of the Court of Appeal.</p> <p>Laws in pari materia are construed together.</p>

<p>Objection to evidence comes too late when made after its admission.</p> <p>Parole evidence is inadmissible to vary terms of a written agreement.</p> <p>Want of consideration cannot be successfully pleaded where party has ratified original transaction by subsequent acts.</p> <p>Burden of proof rests upon party who pleads want of consideration.</p>

<p> Appealed from Third District Court, Parish of Orleans, C. U. Emerson, Judge. </p>

<p>Where a defendant in an injunction suit allows a judgment to be rendered only against the principal on an injunction bond but not against the surety on the bond, and does not appeal, the matter becomes res adjudicata as between the surety and defendant. Code of Practice Art. 304 held directory rather than mandatory.</p> <p>Where principal on an injunction bond is cast for all costs and damages and the surety is not mentioned in the judgment, the surety on injunction bond may act as surety on the appeal bond.</p> <p>One appellee cannot obtain relief against his co-appellee.</p> <p>One who is not a party to a judgment is not estopped from contesting the validity thereof though he might have previously admitted its existence.</p>

<p>This Court came into existence immediately upon the ratification of the Constitution of 1879 even though the Judges hereof were not authorized to enter upon the discharge-of their duties until some seven months later.</p> <p>Under the Constitution of 1879 the District Courts were continued as Courts of final resort over matters not in excess of $500 until August 1, 1880 and no appeals from judgments rendered by them prior to that date could be had to this Court, though this Court came into existence with the ratification of the Constitution of 1879.</p>

<p> Appealed from Third District Court, Parish of Orleans. </p>

<p>Service on a curator ad hoc is valid service in a suit against an absentee who has property in the State.</p> <p>A creditor, whose debt did not originate until after the debt of one who reduced his claim to judgement, seized and had sold under writ of fieri facias and purchased a certain square of ground at the sheriff’s sale, has no interest to attack said sale or annul such title on the ground that the bid of purchase at sheriff’s sale did not cover prior recorded liens against said property.</p> <p>The privilege for paving in front of a square held not restricted to any subdivision of that square.</p>

<p> Appealed from Fifth District Court, Parish of Orleans. </p>

<p>The captain or master of a foreign ship is liable personally for its obligations.</p> <p>Though an action for towage is ordinarily one in rem and over which Admiralty Courts would ordinarily have exclusive jurisdiction, nevertheless, personal service on the master of a foreign ship in such.an action brought in the State Court, will sustain a personal judgment against him.</p>

<p>Act 64 of 1876 provides that in cases of provisional seizure or sequestration, the defendant may be cited, in first instance or on appeal, (in the jurisdiction) (1) where the property is found, or (2) at the domicile of defendant, as the plaintiff chooses.</p> <p>Privileges and mortgages on chattels need only be recorded in the Parish where the movable is situated.</p> <p>After domiciliary service has been properly had, the appointment of a curator ad hoc as in the case of an absentee, is an absolute nullity, and judgment rendered under such circumstances cannot stand, as no issue has been joined, and case must be remanded and new trial had.</p>

<p>Answers of garnishee to interrogatories must be as specific as the interrogatories, and where general, evasive answers are made to specific, unambiguous interrogatories, the interrogatories so answered will be taken for confessed and the garnishee condemned and judgment rendered accordingly.</p> <p>On application for rehearing: This court will not reverse a judgment unless the evidence upon which the case was tried below is brought up under some one of the modes prescribed by law.</p>

<p>When interrogatories on facts and articles are attached to a petition, failure to answer interrogatories within ten (10) days entitles plaintiff to have them taken for confessed.</p> <p>“A company claiming to be incorporated, has only to show, that it has been regularly made a corporate body to enable it to sustain a suit beyond the jurisdiction in which it is constituted.” Angelí on Corporations C 372.</p> <p>Although failure of defendant to answer interrogatories on facts and articles entitles plaintiff to have them taken for confessed, they need not be answered until answer to suit is necessary or required.</p>

<p> Appealed from Civil District Court, Parish of Orleans. </p>

<p>Where decedent left nothing of value and was buried by defendant heir at his own expense, the heir will not be held liable for her debts merely because her paltry belongings were taken to his house, where it is not shown that he had disposed of the belongings; that the creditors were in any way injured; or that he was seeking his own financial advantage.</p>

<p>The mere fact that a husband allows judgment to be taken by default in wife’s suit for return of paraphernal property does not, of itself, raise a presumption of fraud, particularly where ample evidence was introduced in confirmation of default to prove validity of wife’s claim.</p>

<p> Appealed from Fourth District Court, Parish of Orleans. </p>

<p> Appealed from Fifth District Court, Parish of Orleans. </p>

<p> Appealed from Fifth District Court, Parish of Orleans. </p>

<p>An agreement to submit to arbitration is valid and binding and enforceable but may be waived if not pleaded in limine lites and reserved in answer to merits.</p> <p>The vendor in a contract for the sale of mules is liable in damages if the mules do not satisfy the standards set forth in the contract and the measure of damages is the difference between the contract price and the price the purchaser had to pay on the open market to obtain mules which satisfied the contractual standards and requirements.</p>

<p>A wife is not legally bound by the pledge of her property to secure her husband’s debt.</p> <p>What one is prohibited from doing personally, one cannot do through an agent.</p>

<p>The City has the right to enforce the demolition of a building erected over waters of a lake, the bed of which belongs to the State, where the State has authorized the City to erect a revetment levee upon the land occupied by the building.</p> <p>The State cannot contract away its police power.</p>

<p> Appealed from Sixth District Court, Parish of Orleans. </p>

<p>Appealed, from Fifth District Court, Parish of Orleans.</p>

<p>Three principles of interpretation:</p> <p>(1) Exceptions to legislation of a general nature are not to be extended;</p> <p>(2) Legislation of a remedial character is to be given a force and application as wide as possible;</p> <p>(3) Laws must be construed so as to harmonize.</p> <p>Judges of the Courts of Appeal have jurisdiction and power to issue writs of habeas corpus at the instance of all persons in actual custody within their respective circuits. Art. 104 Constitution (1879).</p> <p>Courts have power to punish for contempt a husband who fails to obey its order that he pay alimony “pendente lite”.</p> <p>Imprisonment of husband for failure to pay alimony is not imprisonment for debt but rather imprisonment for contempt of a court order.</p>

<p>Privileges are strictly construed and a corporation cannot by Charter Provision retain a privilege upon all stock owned by stockholders who are in debt to said corporation; this method of creating a privilege not being found in the Code or Statutes.</p> <p>Judgment creditor is entitled to seize and sell all property of his debtor except that specifically exempt by law.</p>

<p>Court of Appeal cannot review or pass upon questions of fact where an agreed statement of facts has been presented to it under Code of Practice Articles 602 and 603.</p> <p>Legal conclusions drawn by a judgment of the lower court may be reviewed by the Court of Appeal; however, the same cannot be reviewed or reversed when based upon facts not properly presented to the Court of Appeal.</p>

<p>A defendant or his syndic, as to whom a suit has been discontinued, cannot appeal from a judgment rendered therein.</p> <p>One desiring to be made a party to a suit by way of intervention or third opposition claiming ownership must do so by petition and citation.</p>

<p>Sovereign State cannot be sued without its consent.</p> <p>Notice must be given mortgage creditor of rule or mandamus to cancel and erase inscription of mortgage, except where inscription has existed for a period of ten years.</p>

<p>Only those who have an interest in maintaining undisturbed the judgment appealed from, need be impleaded before the appellate court.</p> <p>Judgment condemning garnishee is final, and is one from which appeal may be taken.</p> <p>Debtor is not a necessary party on appeal, where judgment has been rendered against him, and only parties disputing are garnishee and creditor.</p> <p>Garnishee has no concern whatsoever with the merits of the controversy between plaintiff and actual defendant.</p> <p>Garnishee is restricted to questions in which he individually is concerned and cannot use defenses and issues which belong to original debtor.</p> <p>Courts cannot grant relief not prayed for except by consent, express or implied.</p>

<p>Mandamus will not lie against mortgagee and recorder of mortgages to compel cancellation and erasure of contested inscription where one has a remedy by ordinary suit or rule to show cause against mortgagee, and irreparable damage will not be occasioned by the delay.</p> <p>Recorder of mortgages has no legal authority to cancel inscriptions except where consent of all parties is shown or a judgment of court has so ordered.</p>

<p>The assessment of real estate fixed by the Board of Assessors will not be disturbed by the courts merely because two or three witnesses for the owner appraise the property at varying figures, all lower than that at which the property is assessed.</p> <p>Act 96 (Ex. S.) 1877 and Act 9 (Ex. S.) 1878 provides that where an owner is aggrieved by an assessment, he may appoint an appraiser, the Board of Assessors appoints an appraiser, and in case of difference, the two appoint an umpire, thus relieving the courts by providing for arbitration in such cases.</p>

<p>A statute providing for a license for any fixed place where musical, minstrel, concert, dancing, etc., performances are held applies to a Beer Saloon where an orchestra is provided merely to draw customers, the license being imposed upon the place of the performance, rather than the business, in this particular case.</p> <p>When a litigant demands a nullity he must in his pleadings recite distinctly the ground on which he relies.</p>

<p>Where an agreed statement of facts is submitted to the Appellate Court, it cannot go beyond said statement by considering evidence introduced in the lower court, (whether oral or written), which is not made part of said statement by reference or otherwise.'</p> <p>A charter providing for the establishment of a business in a place prohibited by municipal ordinance, presupposes the intention of said incorporators to have the existing ordinances changed to permit said business, and is therefore not necessarily illegal.</p> <p>Where a person subscribes for shares of stock in a corporation, said agreement is enforceable at law and he may be required to pay for said shares of stock.</p> <p>A corporation is not bound by representations of one who is not an officer, director or specially authorized to bind it.</p>

<p>A plaintiff levying by fi fa upon a judgment before the delays for suspensive appeal have elapsed is liable in damages for such injury (as may be) caused when the party against whom the fi fa is issued takes a suspensive appeal within the delay allowed and duly notifies the plaintiff.</p> <p>A judgment against a principal is not necessarily res adjudicata against his surety.</p> <p>Special defenses must be specially pleaded.</p> <p>A party may be permitted for the purpose of testing the memory of a witness, or disclosing motive, etc., to elicit facts not pertinent to the issues of the case, but he cannot use this as a pretext to enlarge his pleadings.</p> <p>A payment of a judgment made under protest, is not an acquiescence therein.</p>

<p>A factor advancing money for the raising of a crop and recording his claim for advances, as directed by Act 66 of 1874, in the parish where the crop was grown, has a “right of pledge” upon such crop, which protects him as against any other claimant even though said claimant may be in good faith and outside of the parish where the crop was grown.</p>

<p>Where a bond of appeal is neither for one half over and above the amount of the judgment, nor for a sum fixed by the Court, the appeal cannot stand, either as suspensive or devolutive.</p> <p>Where the law has expressly designated the amount of a bond to be given in any particular connection, the maxim “de minimis non curat lex” cannot be invoked.</p>

<p>Where one valid claim against the City of New Orleans for services rendered is entirely assigned by its owner, at different times, to two separate assignees, the assignee who gives notice to the city as prescribed by its ordinances will be protected; so where the administrator of public accounts of said city illegally authorizes payment to the assignee who failed to give the required notice, but merely gave informal notice, said administrator and his sureties will be held responsible to assignee injured thereby and be required to pay him the amount of his claim and damages.</p>

<p>Where an opposition is filed in a cessio bonorum proceeding, and fraud and simulation are alleged, the amount in controversy is not limited merely to the amount of the opponent’s claim, but is rather measured by the entire amount affected by the judgment, which is attacked in toto by such proceeding.</p>

<p>The question of appellate jurisdiction is determined by the amount of the claim, as found and restricted in the prayer, and not by the value of the property involved in the transfer or sale attacked.</p> <p>When a party moves this Court to dismiss an appeal because some essential document, paper or copy is absent, the demand will not be noticed unless it points out and describes specifically what piece is missing. Litigants must be certain and precise in their pleadings and a motion to dismiss, forms no exception to the operation of this wholesome rule.</p> <p>Where a sale or transfer is attacked as a nullity insofar as it affects the rights of a particular person, and the Court below erroneously renders judgment setting aside the entire sale, thus going beyond the prayer of the petition, if no amendment of the judgment is demanded by appellant but merely a reversal prayed for, the Court is powerless to amend the judgment ex proprio motu, for as to this issue, it is considered ratified by the parties, hence in such instance, since the judgment as it stands, unresticted and unqualified, involves more than the jurisdictional amount of the Court of Appeals, the appeal must be dismissed.</p>

<p>Legislation applicable to debts does not affect taxes, hence liens and privileges for taxes rank claim of widow or minor in necessitous circumstances.</p> <p>Tax judgments rendered by publication in the name of a dead person, are null and void; those rendered by publication in the name of an interdicted person, on the contrary, are valid.</p> <p>Pleas of prescription must be specially pleaded and cannot be supplied by the Court.</p> <p>On application for rehearing. The lien and privilege securing taxes is not general nor does it affect all property of the debtor, but it is restricted to the particular property assessed and taxed.</p>